spouse cannot claim damages based on economic loss incurred by
the diminution in value of her husband’s corporation as a result
of the company’s loss of his services. Id. at 385. On facts
nearly identical to the case at bar, the Heinhold.court reasoned
that, while a plaintiff may recover the pecuniary loss of
contributions made directly to the dependent from the decedent,
the decedent’s services to a corporation inured directly to the
benefit of the corporation and that the beneficiary spouse
benefitted only indirectly when the company was sold. Id. at
384-85. The Court agrees with Heinhold’s analysis of Indiana law
and finds no subsequent development in Indiana law that would
lead to any conclusion other than that reached in Heinhold:
strict construction of the Indiana Wrongful Death Statute
prohibits a surviving spouse from claiming damages based on
economic loss incurred by decrease in value of her husband’s
corporation as a result of the company’s loss of his services.
The United States’ Motion for Partial Summary Judgment on Bauer’s
claim for recovery of “market value” damages is therefore
granted.
Defendant’s Motion for Summary Judgment

Finally, Defendant moves for summary judgment on the claims

in their entirety contending that summary judgment is appropriate

because Plaintiffs point to no facts establishing a breach of a

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crashed a few minutes later, approximately five miles from the
Sullivan County Airport in New Lebanon, Indiana. John Bauer and
Terry Spurgin died of multiple trauma sustained in the crash.
The coroner determined that William Bauer died from suffocation
and carbon monoxide intoxication from the fire subsequent to the
crash. Although the pilot was also killed in the crash, his
estate is not a party to this action.

On July 18, 2002, the Plaintiffs filed Amended Complaints
naming the United States as the sole defendant and alleging
Wrongful Death and Survival Act claims under Illinois law. Now
before the Court are Defendant’s Motion to Strike Plaintiffs’
Response, Motion in Opposition to Plaintiff’s Motion to File an
Amended Complaint, Motion for Determination of Choice of Law,
Motion for Summary Judgment, and Motions for Partial Summary
Judgment on Bauer’s claim for corporate value damages and the
Plaintiffs’ Survival Act claims.

MOTION TO STRIKE

Defendant has moved to strike Plaintiffs’ Joint Response to
the United State’s Motion for Summary Judgment because it exceeds
the twenty page limitation set by the Court, did not contain a
table of cases or table of contents, and because the response was
filed one day late. A district court may exercise its discretion
to strike a response to a motion for summary judgment when the

non-moving party fails to comply with local rules regarding that

-4-


amendment is allowed, the Court will grant Defendant’s motion and
orders all allegations relating to Louisville, the Louisville
weather briefing, or relating to the FAA’s failure “to have
present adequate experienced and competent personnel at the
Evansville and Terre Haute facilities” stricken from the Amended
Complaint. See Ferguson v. Roberts, 11 F.3d 696, 706-07 (7th
Cir. 1993).

DEFENDANT’ S_ MOTION FOR DETERMINATION OF CHOICE OF LAW

The parties contend and the Court agrees that the Seventh
Circuit’s holding in Bowen v. Untied States, 570 F.2d 1311 (1978)
dictates that Indiana’s choice of law principles should be
applied to the facts of this case since Indiana is both the place
of the last act or omission having a causal effect and the place
of the act or omission having the most significant causal effect.

Id. at 1318. In Hubbard Mfg. Co. v. Greeson, 515 N.E.2d 1071
(Ind. 1987) the Indiana Supreme Court modified slightly the
strict lex loci delicti rule applied in that state, giving
Indiana courts some flexibility for dealing with unique cases
where the place of the tort bears little connection to the legal
action. The Hubbard decision does not, however, represent a
dramatic change in Indiana’s choice of law approach to tort
cases. Indiana is still a lex loci delicti state and the law of

the place where the harm occurs is still applied in all but


investigation. Charlton, 743 F.2d at 559. Plaintiffs’
administrative claims gave the origin and destination of the
flight and alleged negligence on the part of FAA employees in
their failure to warn of icing conditions and their failure to
guide the plane safely to the nearest airport. The Court finds
that this was sufficient to provide the FAA with notice of the
facts underlying the claim and allowed the FAA to conduct a
proper investigation.

Defendant also opposes the filing of the Amended Complaint
arguing that Plaintiffs never mentioned staffing and training
issues or the conduct of Louisville personnel as factual bases for
their claims at any point in the proceedings prior to the filing
of their Amended Complaints.

Plaintiffs’ FAA claims, filed two days apart in February
2000, state nearly identical claims: that the flight was en
route from Louisville, Kentucky to Aurora, Illinois when it
crashed; that the pilot had requested icing PIREPS but air
traffic controllers failed to provide him with available icing
PIREPS; and air traffic control provided the pilot with improper
vectors for approaching Sullivan County Airport. The original
complaints filed in this case allege the following negligent acts
of the air traffic controllers at Evansville Approach Control:
failure to solicit PIREPS; failure to distribute available icing

PRIREPs; failure to provide a correct and safe radar vector to

-6-


response. Rosemary B. on Behalf of Michael B. v. Board of Educ.
of Community High School Dist. No. 155, 52 F.3d 156, 158-59 (7th
Cir. 1995). Defendant is right to point out that the Local Rules
“are not suggestions or requests; they impose requirements for
practicing before this Court.” Pepsi-Cola Co. v. Steak ‘N Shake,
Inc., 981 F.Supp. 1149, 1153 (S.D. Ind. 1997). However, the
Court finds Plaintiffs’ noncompliance to be excusable in this
instance given the complexity of the case and the rather
abbreviated briefing schedule set by the Court. Defendant’s
Motion to Strike Plaintiffs’ Joint Response is therefore denied.

DEFENDANT’S OPPOSITION TO PLAINTIFF’S
MOTION TO FILE AN AMENDED COMPLAINT

Defendant opposes Plaintiff's July 12, 2002 Motion for Leave
to File an Amended Complaint arguing that the Amended Complaint
raises new factual allegations that are outside the scope of the
original administrative claim filed with the FAA. Defendant
contends that Plaintiffs therefore failed to exhaust their
administrative remedies by not first presenting these claims to
the FAA. See Charlton v. United States, 743 F.2d 557, 559 (7th
Cir. 1984). Under the FTCA, the filing of an administrative
claim with a federal agency is a jurisdictional prerequisite for
a subsequent suit. See 28 U.S.C. § 2675(a). The administrative
claim must give the federal agency sufficient notice of the facts

underlying the claim to allow the agency to conduct a proper


On July 18, 2002, four years after the accident, eighteen
months after the filing of the original complaint and after the
close of discovery, Plaintiffs filed Amended Complaints adding
allegations that FAA employees at Louisville “failed to provide
the pilot of N 1812A significant and correct weather
information . . . prior to departure from Louisville” and that
the FAA “failed to have present adequate experienced and
competent personnel at the Evansville and Terre Haute facilities
to appropriately handle the situations allowed.”

Leave to amend is to be freely given when justice so
requires. Fep.R.Civ.P. 15(a). However, leave to amend is
inappropriate “where there is undue delay, bad faith, dilatory
motive on the part of the movant, repeated failure to cure the
deficiencies . . . [or] undue prejudice to the opposing party by
virtue of allowance of the amendment.” Foman v. Davis, 371 U.S.
178, 183 (1962). In this case, Plaintiffs obtained the NTSB
Report and FAA Accident Package in 1998 and have been fully aware
of the conduct of the Louisville FAA personnel for the past four
years. Plaintiffs offer no explanation justifying why they
waited four years, until after the close of discovery, to add
allegations regarding the Louisville FAA personnel and the
staffing and training of FAA personnel at Terre Haute and
Evansville. Given the lack of explanation for this undue delay

and the obvious prejudice to Defendant if this last minute

-B-


Minute Onder Porm (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

Harry D. Leinenweber

Sitting Judge if Other
than Assigned Judge

CASE NUMBER 00 C 8075 DATE 9/4/2002
CASE Laura J. Bauer, et al vs. United States of America
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.}

DOCKET ENTRY:

dd) Oo Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) o Answer brief to motion due. . Reply to answer brief due.
(4) Qo Ruling/Hearing on set for at
(5) o Status hearing[held/continued to] [set for/re-set for] on set for at
(6) Oo Pretrial conference{held/continued to] [set for/re-set for] on set for at __
(7) o Trial[set for/re-set for] on at
(8) im [Bench/Jury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4¢m) =O Local Rule 41.1 OO FRCP41(a)(1) © FRCP41(a)(2).
ao) «of [Other docket entry} ENTER MEMORANDUM OPINION AND ORDER: Defendant’s Motion
to Strike and Defendant’s Motion for Summary Judgment are DENIED. Defendant’s Motion for
Determination of Choice of Law, Motion in Opposition to Plaintiff’ s Motion for leave to file and amended
complaint, Motion for Partial Summary Judgment Regarding Survival Act Damages, and Motion for
Partial Summary Judgment Regarding Recovery of Corporate Damages are GRANTED.
a1) @f [For further detail see order attached to the original minute order.]
No notices required, advised in open court. Document
No notices requived. Number
naib of notices
Notives mailed by judge's staff.
Notitied counsel by telephone.
¥ | Docketing to mail notices.
Mail AO 430 form binag tanieincen
Copy to judge/magistate judge. "

date mailed notice

courtroom: ‘-
deputy’s
initials

WAP

Date/time received in
central Clerk’s Office

nailing deputy initials



burden of proof on an issue may not rest on the pleadings, but
must affirmatively demonstrate that there is a genuine issue of
material fact that requires trial. Warsco v. Preferred Technical
Group, 258 F.3d 557, 563 (7th Cir. 2001).

DISCUSSION

Defendant’s Motion for Partial Summary Judgment
Regarding Survival Act Damages

Although TIllinois would allow Plaintiffs to proceed
simultaneously on Wrongful Death and Survival Act claims,
Indiana has chosen a different approach to this issue. Under
Indiana law, if the decedent dies of injuries sustained in the
accident at issue, the case falls under the Wrongful Death
Statute. See Ind. Code. Ann. § 34-23-1-1 (2000). In contrast,
the Survivorship Statute applies when a person receives personal
injuries caused by the wrongful act of another and subsequently
dies of causes other than those personal injuries. Best Homes,
Inc., v. Rainwater, 714 N.E.2d 702, 705 (Ind. Ct. App. 1999)
There is no dispute in this case that decedents died as a result
of the aircraft crash at issue and that Plaintiffs seek recovery
for that injury alone. On these facts, it is clear that Indiana
permits Plaintiffs to recover under the Wrongful Death Statute
alone. Accordingly, the United States Motion for Partial Summary
Judgment on Plaintiffs’ Survival Act claims is granted and the

counts stating Survival Act claims are dismissed.

-1l1l-


exceptional cases. See In re Bridgestone/Firestone, Inc., 288
F.3d 1012, 1016 (7th Cir. 2002). In this case, the accident
occurred in Indiana and it is the conduct of the pilot and FAA
personnel in Indiana that will be the key to determining whether
the United States will be held liable for the crash and ensuing
deaths. Because the Court finds that Indiana has a significant
connection with the legal action, the additional factors listed
in Hubbard, such as the residence of the parties, do not come
into consideration. See Judge v. Pilot Oil Corp., 205 F.3d 335
(7th Cir. 2000). Since Indiana is the place of the tort and
bears a significant connection with the legal action, Indiana law
will be applied to Plaintiffs’ claims.

MOTIONS FOR SUMMARY JUDGMENT

Standard

Summary judgment is appropriate where “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” Fsp.R.Civ.P. 56(c)
The court must “review the record in the light most favorable to
the nonmoving party and draw all reasonable inferences in that
party’s favor.” Vanasco v. National-Louis University, 137 F.3d

962, 964 (7th Cir. 1998). Nevertheless, the party who bears the

- 10 -


the Sullivan airport; failure to become aware of pertinent
weather information when coming on duty and stay aware of current
weather information; and otherwise failing to provide necessary
facilities and personnel for the protection of air traffic “as
may be revealed by discovery.”

On February 14, 2002, Defendant filed a motion seeking
greater detail in Plaintiffs’ responses to interrogatories
requesting the factual support for Plaintiffs’ contentions of
negligence on the part of Defendant’s employees. Plaintiffs
responded by listing the failure of the FAA employees at
Evansville and Terre Haute to: solicit PIREPS; distribute known
PIREPS; provide a correct and safe radar vector to the Sullivan
airport; and failure of all controllers to become aware and stay
of current weather information as it developed. No mention was
made of FAA personnel in Louisville or the FAA’s failure to train
personnel for dealing with emergency icing situations. At a
hearing before the Court on February 26, 2002, Plaintiffs
confirmed the veracity of their interrogatory responses and
depositions and expert discovery proceeded under this
understanding of Plaintiffs’ case. From the date of the accident
in 1998 to this hearing on February 26, 2002, Plaintiffs never
made any allegation that acts of any Louisville FAA employee or
staffing and training issues formed the basis of their negligence

claim.


N 1812A departed Louisville approximately one hour after the
weather briefing. Approximately 20 minutes later the aircraft
was handed over to Evansville Approach Control. The pilot
contacted Evansville Approach and requested icing reports for the
area. The controller responded that there were none for the last
two hours. In fact, there were three PIREPS confirming icing
conditions that had been received by Evansville personnel but
were not provided to the pilot. A few minutes later, the
aircraft was handed off to Terre Haute Approach as it left
Evansville’s airspace. The pilot contacted Terre Haute and
requested icing reports for the area. The controller told the
pilot that there hadn’t been any for several hours but did convey
several earlier reports of light to moderate mixed icing in the
area. Seven minutes later the pilot reported an accumulation of
ice on the aircraft and requested a deviation from the flight
plan for landing at Terre Haute, Indiana. The pilot was cleared
for landing at Terre Haute. Nine minutes after the initial
report of icing, the pilot contacted Terre Haute to report that
the plane was continuing to accumulate ice, was losing airspeed,
and requesting direction to the closest possible airport. The
Terre Haute controller directed the pilot to the Sullivan County
Airport. There is a dispute between the parties whether the
Robinson, Illinois airport actually provided a closer landing

site given the approach courses to both airports. The aircraft


recognized duty or establishing proximate cause connecting a
negligent act of the Defendant to the crash. After reviewing the
record in the light most favorable to Plaintiffs and drawing all
reasonable inferences in their favor, the Court finds that,
although there is strong evidence of negligence on the part of
the pilot of N 1812A, the failure of the Evansville personnel to
pass on icing PIREPS and the conduct of the Terre Haute
controller in directing the plane’s approach to Sullivan County
Airport create a genuine issue on the close question of proximate
causation in this case that is better resolved at trial.
Defendant’s Motion for Summary Judgment is therefore denied.
CONCLUSION
For the reasons set forth above, Defendant’s Motion to

Strike and Defendant’s Motion for Summary 3 ment are DENIED.

Defendant’s Motion for Determination of/Choice of]Law, Motion in

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
ob YA United States District Court
Date: 7 caf Lmbeh. Aaa

- 14 -



Motion to Strike Plaintiff’s Response, and Motion in Opposition
to Plaintiffs’ Motion to File an Amended Complaint.
BACKGROUND

On the evening of March 20, 1998, a single-engine Beechcraft
A-36 Bonanza aircraft carrying John Bauer, his son William Bauer,
ferry Spurgin and a pilot took off from Louisville, Kentucky
bound for Aurora, Illinois. Before takeoff, the pilot requested
and received a weather briefing for the flight from the
Louisville Flight Service Station (the “FSS”). The briefing
included an “AIRMET,” a weather advisory for pilots, that warned
the pilot of occasional moderate rime or mixed icing along the
entire route of flight from three thousand to sixteen thousand
feet locally and from the surface to sixteen thousand feet in the
areas to the north. The pilot also received pilot reports
(“PIREP”) confirming the existence of light to moderate rime
icing in the Louisville area between 3,000 and 6,000 feet and in
the Lafayette, Indiana area between 7,500 and 8,000 feet. In
addition, the pilot received a surface observation of light snow
and a surface temperature of 2 degrees Celsius from Terre Haute,
Indiana (located approximately half way between Louisville and
Aurora along the planned line of flight). The Beechcraft Bonanza
flight manual prohibits flight into known icing conditions and

the plane possessed no deicing equipment.


IN THE UNITED STATES pistRrcr court *  ¥. gr D
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

dude tany

LAURA J. BAUER, as Executor Lg, hfe Lay
of the Estate of JOHN H. Coury
BAUER, Deceased; and as Case No. 00 C 8075
Executor of the Estate of
WILLIAM H. BAUER III, Consolidated for all purposes
Deceased, with Case No. 01 C 0385

Plaintiff, Hon. Harry D. Leinenweber

Vv.

UNITED STATES OF AMERICA, Ope

Defendant. SEP 08>

8 2092

MEMORANDUM OPINION AND ORDER

This action arises out of the crash of single-engine
Beechcraft A-36 Bonanza aircraft (“N 1812A”), near New Lebanon,
Indiana on the evening of March 20, 1998. Plaintiff Linda J.
Bauer, as executor of the estates of her husband and son, and
Christ Spurgin-Dienst, as executor of her husband’s estate, filed
separate complaints suing the United States under the Federal
Tort Claims Act (the “FTCA”), 28 U.S.C. § 1346(b), alleging that
the negligence of several Federal Aviation Administration (the
“FAA”) employees caused the aircraft occupied by the decedents to
crash. The two cases were found related and consolidated for all
purposes. Before the Court are the United States’ (the
“Defendant”) Motion for Determination of Choice of Law, Motion

for Summary Judgment, Motions for Partial Summary Judgment,


Defendant’s Motion for Partial Summary
Judgment Regarding Recovery of Corporate Damages

Before his death, John Bauer was the President and sole
owner of Dynaweld, Inc. Plaintiff Bauer claims to be entitled to
the difference between the estimated value of Dynaweld at the
time of John Bauer’s expected retirement and the $10 she received
for the company two and a half years after his death, during
which time she had been the President and sole beneficial owner
of the company. Defendant argues that Indiana does not permit
the recovery of damages of this nature and moves for partial
summary judgment on this aspect of Bauer’s damages claim. The
Indiana Wrongful Death Act does not provide explicitly for the
recovery of a corporation’s fair market value. Bauer has not
produced and the Court could not find any Indiana case
interpreting the Wrongful Death Statute as allowing a surviving
spouse to recover for diminishment of the fair market value of a
family-owned corporation. Since the Indiana Supreme Court has
not ruled on this issue, the Court must look at the available
case law and adopt the rule it believes the state’s supreme court
would adopt. Allstate Ins. Co. v. Menards, Inc., 285 F.3d 630,
635 (7th Cir. 2002). After reviewing the available case law, the
Court agrees with the analysis of this issue set forth in
Heinhold v. Bishop Motor Express, Inc., 660 F.Supp. 382 (N.D.Ind.

1987). In Heinhold, the court held that, under Indiana law, a

-12-