# Murphy v. Airway Air Charter, Inc

> District Court, S.D. Florida · April 5, 2024

URL: https://www.frixlaw.com/law-library/cases/10123213

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** April 5, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10123213

## How later opinions describe it (automated extraction)

- holding that “the Warsaw Convention precludes a passenger from maintaining an action for personal injury damages under local law.”
- explaining that Rule 8(a)(2)’s pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed- me accusation”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

Case No. 23-cv-23654-BLOOM/Torres

RICHARD C. MURPHY, III; and

KATHLEEN T. MURPHY

Plaintiffs,

vs.

AIRWAY AIR CHARTER INC.
d/b/a Noble Air Charter; VENTURE
AIR SOLUTIONS, INC.;
ALEX GUTIERREZ, individually; and.
ATLANTIC AVIATION – OPA LOCKA
LLC d/b/a Atlantic Aviation,

Defendants.
_____________________________________/

ORDER ON MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendants Airway Air Charter, Inc. (“Airway”)
and Alex Gutierrez’s (“Gutierrez”) Motion to Dismiss Plaintiffs’ Fourth Amended Complaint, ECF
No. [38] (“Motion”), filed on December 22, 2023. Plaintiffs Richard Murphy and Kathleen
Murphy (collectively “Plaintiffs”) filed a Response in Opposition, ECF No [42] (“Response”), to
which Airway and Gutierrez filed a Reply, ECF No. [43] (“Reply”). The Court has reviewed the
Motion, the supporting and opposing submissions, the record in this case, the applicable law, and
is otherwise fully advised. For the reasons set forth below, the Motion is denied.
I. BACKGROUND
Plaintiffs filed their Fourth Amended Complaint on December 22, 2023, ECF No. [37].
The Fourth Amended Complaint contains the following allegations:
On January 5, 2022, Richard C. Murphy, III (“Murphy”) boarded a Cessna 402B,
Registration N145TT (“Aircraft”) in Opa Locka, Florida with a final destination of Chub Cay, The
Bahamas. Id. ¶ 18. The Aircraft is owned by Defendant Venture Air Solutions, Inc. and was
operated by Defendant Airway, with Defendant Atlantic Aviation – Opa Locka, LLC (“Atlantic

Aviation”) providing supplies and fuel. Id. ¶¶ 9-10, 17. Gutierrez was the pilot in command on
January 5, 2022. Id. ¶ 11. Murphy was the sole passenger. Id. ¶ 18. The Aircraft ran out of fuel
mid-flight, causing it to crash into the ocean. Id. Murphy sustained several injuries as a result of
the crash, including spinal fractures. Id. Kathleen Murphy suffered a loss of consortium due to the
injuries her husband suffered from the subject plane crash. Id. ¶ 45.
The Amended Complaint alleges Airway (Count I) and Gutierrez (Count II) are liable for
Murphy’s injuries under Article 17 of the Warsaw Convention. Id. ¶¶ 22-35. Count III alleges
Venture Air Solutions, Inc. is vicariously liable for Airway and Gutierrez’s negligent operation and
piloting of the Aircraft. Count IV alleges a negligence claim against Atlantic Aviation for failing
to properly fuel and supply the Aircraft. Id. ¶¶ 36-42.

Plaintiff originally filed this action against Defendants Airway, Gutierrez, and Venture Air
Solutions, Inc. on April 25, 2022 in the Circuit Court for the Eleventh Judicial Circuit for Miami-
Dade County, Florida, styled Murphy v. Airway Air Charter, Inc. et al, Case No.: 2022-007616-
CA-01.1 The initial Complaint alleged negligence and vicarious liability claims against Gutierrez
and Airway under Florida common law. Defendants filed a motion to dismiss, arguing that the
claims are governed by the Warsaw Convention, not Florida common law. Plaintiffs subsequently
filed their First Amended Complaint alleging liability for Murphy’s injuries under the Warsaw
Convention. Defendants then moved to dismiss Plaintiffs’ First Amended Complaint, arguing

1 The Court takes judicial notice of Murphy v. Airway Air Charter, Inc. et al, Case No.: 2022-007616-CA-
01, including all docket entries.
Plaintiffs’ strict liability claims are unenforceable under the Warsaw Convention. Plaintiffs then
filed a Second Amended Complaint. Defendants Airway and Gutierrez both answered the Second
Amended Complaint on July 13, 2023. Neither Gutierrez nor Airway raised the affirmative defense
of release from liability due to a contractual agreement. The state court subsequently granted

Plaintiffs leave to file a Third Amended Complaint in order to add Defendant Atlantic Aviation to
the case.
Atlantic Aviation thereafter removed this case on the basis of federal question and
admiralty jurisdiction pursuant to 28 U.S.C. §§ 1331, 1333, 1441, and 1446. See ECF No. [1].
Once removed, Plaintiffs filed a Fourth Amended Complaint, ECF No. [37], and attached a Terms
and Condition Agreement (“Charter Agreement”) signed by Murphy and Airway. See generally
ECF No. [37-2]. Relevant here, the Charter Agreement includes a provision releasing Airway of
liability “for any injury.” Id. ¶ EE (“Liability Waiver”). The Liability Waiver provides in pertinent
part:
EE. LIMITATION OF LIABILITY: CHARTER COMPANY SHALL NOT
BE LIABLE FOR ANY INJURY, DAMAGE, LOSS, EXPENSE, INDIRECT,
INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR
EXEMPLARY DAMAGES . . . WHETHER IN CONTRACT OR TORT
(INCLUDING STRICT LIABILITY OR NEGLIGENCE)

Id.
Defendants Venture Solutions and Atlantic Aviation each filed an Answer to the Fourth
Amended Complaint. ECF Nos. [39], [40]. Defendants Airway and Gutierrez filed the instant
Motion, arguing Plaintiffs fail to state a claim for relief because the Liability Waiver releases
Airway and Gutierrez from any liability arising from the plane crash. ECF No. [38]. Plaintiffs
respond that (1) the Motion is untimely, (2) Airway and Gutierrez waived their reliance on the
Liability Waiver by failing to raise this affirmative defense in state court, (3) the Liability Waiver
does not bar their claims, and (4) the Liability Waiver contravenes the Warsaw Convention. ECF
No. [42].
II. LEGAL STANDARD
A. Failure to State a Claim for Relief
A pleading in a civil action must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a complaint “does not need

detailed factual allegations,” it must provide “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule
8(a)(2)’s pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-
me accusation”). Nor can a complaint rest on “‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at
570). When a defendant moves to dismiss for failure to state a claim upon which relief can be

granted under Rule 12(b)(6), the court must accept the plaintiff’s allegations as true and evaluate
all possible inferences derived from those facts in favor of the plaintiff. See Am. Marine Tech, Inc.
v. World Grp. Yachting, Inc., 418 F. Supp. 3d 1075, 1079 (S.D. Fla. 2019). A court considering a
Rule 12(b) motion is generally limited to the facts contained in the complaint and attached exhibits,
including documents referred to in the complaint that are central to the claim. Wilchombe v. TeeVee
Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009).
B. Warsaw Convention/Montreal Convention
The Warsaw Convention was signed in 1929 with a goal to “achieve uniformity of rules
governing claims arising from international air transportation.”2 Eastern Airlines v. Floyd, 499
U.S. 530, 552 (1991). In 1999, fifty-two countries, including the United States, signed the Montreal
Convention, “a treaty to replace the Warsaw Convention.”3 Eli Lilly & Co. v. Air Exp. Int’l USA,

Inc., 615 F.3d 1305, 1308 (11th Cir. 2010); see Jacob v. Korean Air Lines Co., No. 12–62384-
CIV., 2014 WL 243150, *19 (S.D. Fla. 2014) (“The Montreal Convention became effective in the
United States on November 4, 2003, updating and replacing the uniform system of liability for
international air carriers previously established by the Warsaw Convention.”).
Courts accordingly rely on cases interpreting the Warsaw Convention “where the
equivalent provision of the Montreal Convention is substantively the same.” Espinoza Ugaz v. Am.
Airlines, Inc., 576 F. Supp. 2d 1354, 1360 (S.D. Fla. 2008). Both the Supreme Court and the
Eleventh Circuit have concluded “the Montreal Convention ‘is the exclusive mechanism of
recovery for personal injuries suffered on board an aircraft.’” Vanderwall v. United Airlines, Inc.,
80 F. Supp. 3d 1324, 1335 (S.D. Fla. 2015) (quoting Marotte v. Amer. Airlines, Inc., 296 F.3d

1255, 1259 (11th Cir. 2002)); El Al Isr. Airlines v. Tsui Yuan Tseng, 525 U.S. 155, 176 (1999)
(holding that “the Warsaw Convention precludes a passenger from maintaining an action for
personal injury damages under local law.”).
Article 1 of the Montreal Convention provides that the Convention “applies to all
international carriage of persons, baggage, or cargo performed by aircraft for reward.” Montreal

2 Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12,
1929, 49 Stat. 3000, 3014, T.S. No. 876 (1934) (“Warsaw Convention”).
3 Montreal Protocol No. 4 to Amend the Convention for the Unification of Certain Rules Relating to
International Carriage by Air, signed at Warsaw on October 12, 1929, as amended by the Protocol Done at
the Hague on September 8, 1955, reprinted in S. Exec. Rep. No. 105-20, pp. 21-32 (1998) (“Montreal
Convention”).
Convention art. 1. Article 17(1) explains aircraft carriers are liable for injuries suffered by
passengers:
1. The carrier is liable for damage sustained in case of death or bodily injury
of a passenger upon condition only that the accident which caused the death or
injury took place on board the aircraft or in the course of any of the operations of
embarking or disembarking.

Id. art. 17(1). Relevant here, Article 21(1) provides that “[f]or damages arising under paragraph 1
of Article 17 not exceeding 100 000 Special Drawing Rights for each passenger, the carrier shall
not be able to exclude or limit its liability.” Id. art. 21(1). Article 23 explains “Special Drawing
Right” refers to a national currency’s “Special Drawing Right as defined by the International
Monetary Fund.” Id. art 23.4 Article 26 in turn provides:
Any provision tending to relieve the carrier of liability or to fix a lower limit than
that which is laid down in this Convention shall be null and void, but the nullity of
any such provision does not involve the nullity of the whole contract, which shall
remain subject to the provisions of this Convention.

Id. art. 26.
III. DISCUSSION
Airway and Gutierrez seek dismissal of Plaintiffs’ Fourth Amended Complaint and contend
Plaintiffs claims fail because the Liability Waiver releases them from liability for injuries resulting
from the plane crash. Plaintiffs respond that the Motion is untimely because Airway and Gutierrez
waived their reliance on the Liability Waiver by failing to previously raise this defense when

4 The United States’ implementing regulation provides that this sum is fixed at $75,000.00 USD, not at the
United States’ Special Drawing Right. 14 C.F.R. § 203.4 (2019) (“Participation in the Montreal Agreement,
whether by signing the Agreement, filing a signed counterpart to it under § 203.3, or by operation of law
under § 203.5, shall constitute a special agreement between the carrier and its passengers as a condition of
carriage that a liability limit of not less than $ 75,000 (U.S.) shall apply under Article 22(1) of the Warsaw
Convention for passenger injury and death.”).
initially moving to dismiss Plaintiffs’ Complaint in state court.5 Plaintiffs similarly contend Airway
waived reliance on the Liability Waiver by arguing the Warsaw Convention applies to this case in
its previous motion to dismiss. Plaintiffs also argue the Liability Waiver relied upon by Airway
and Gutierrez does not bar Plaintiffs’ claims because it is ambiguous and therefore unenforceable

under Florida law, and it does not apply to Gutierrez. Lastly, Plaintiffs argue the Liability Waiver
is unenforceable under the Warsaw Convention.
A. Waiver
As noted, Airway and Gutierrez argue that the Liability Waiver signed by Murphy
constitutes a valid and enforceable agreement releasing them from any liability arising from the
subject plane crash. Plaintiffs respond that Airway and Gutierrez’s Motion must be denied because
they waived reliance on the Liability Waiver under both the Florida and Federal Rules of Civil
Procedure by failing to previously raise this affirmative defense in state court, and by previously
arguing the Warsaw Convention applies to this case. Airway and Gutierrez reply that they did not
waive reliance on the Liability Waiver because Plaintiffs have since amended their Complaint and,
accordingly, they may raise any and all arguments in favor of dismissal.

As a threshold matter, the Federal Rules of Civil Procedures apply to this case. Rule 81
provides the Federal Rules of Civil Procedure “apply to a civil action after it is removed from a
state court.” Fed. R. Civ. P. 81(c)(1). The Court consequently must “treat everything that occurred
in the state court as if it had taken place in the district court[.]” In re Savers Fed. Sav. & Loan
Ass’n, 872 F.2d 963, 966 (11th Cir. 1989). Plaintiffs’ argument that Defendants waived reliance on

5 Plaintiffs characterize this as a timeliness argument. However, Plaintiffs’ briefing makes clear their
position is that Airway and Gutierrez waived their reliance on the Liability Waiver. Plaintiffs do not argue
that the Motion is itself untimely.
the Liability Waiver under the Florida Rules of Civil Procedure thus provides no basis for denying
the Motion.
Plaintiffs correctly observe that a defendant typically waives reliance on an affirmative
defense if they fail to raise that defense in a responsive pleading. However, “[n]either a motion to

dismiss nor a motion for summary judgment constitutes a responsive pleading for purposes of the
federal rules.” Chilivis v. SEC, 673 F.2d 1205, 1209 (11th Cir. 1982). Airway and Gutierrez were
accordingly not required to raise all affirmative defenses available to them in a motion to dismiss
under the Federal Rules of Civil Procedure.6 However, when filing a responsive pleading—
namely, an answer—to a complaint, Rule 8 provides a defendant “must affirmatively state any
affirmative defense including . . . release.” Fed. R. Civ. P. 8(c)(1). Here, Airway and Gutierrez
answered Plaintiffs’ Second Amended Complaint but failed to raise the affirmative defense of
release based on the Liability Waiver. See Murphy v. Airway Air Charter, Inc. et al, Case No.:
2022-007616-CA-01, ECF Nos. [124], [126].
Airway and Gutierrez do not argue that the affirmative defense was unavailable to them

when they filed their Answers. Instead, Airway and Gutierrez point out that, under the Federal
Rules of Civil Procedure, “an amended complaint supersedes the initial complaint and becomes
the operative pleading in the case.” Lowery v. Ala. Power. Co, 483 F. 3d 1184, 1219 (11th Cir.
2007). Airway and Gutierrez contend that when Plaintiffs filed their Fourth Amended Complaint
their ability to raise the affirmative defense of release was accordingly revived. However, as
Plaintiffs correctly observe, this ignores the Eleventh Circuit’s observation that “the filing of an

6 Plaintiffs are accordingly incorrect that Airway waived reliance on the Liability Waiver by failing to raise
it when previously moving to dismiss Plaintiffs’ Complaint in state court. As explained below, Airway
waived this affirmative defense by failing to raise it in their Answer to Plaintiff’s Second Amended
Complaint.
amended complaint does not automatically revive all defenses or objections that the defendant may
have waived in response to the initial complaint.” Krinsk v. Suntrust Banks, Inc., 654 F.3d 1194,
1202 (11th Cir. 2011). Rule 8 required Airway and Gutierrez to raise the affirmative defense of
release by virtue of the Liability Waiver when they previously answered Plaintiffs’ Second

Amended Complaint. Airway and Gutierrez failed to do so. The Court thus concludes that Airway
and Gutierrez waived reliance on the Liability Waiver by failing to raise this affirmative defense
when answering Plaintiffs’ Complaint in state court.
B. Warsaw Convention/Montreal Convention
Even were the Court to find that Airway and Gutierrez did not waive reliance on the
Liability Waiver, the Liability Waiver is unenforceable under the Warsaw Convention.7 Airway
and Gutierrez do not argue the Warsaw Convention does not apply to the subject plane crash.
However, Airway and Gutierrez argue that the Liability Waiver constitutes a valid agreement
releasing them from liability under Florida law despite the Warsaw Convention’s applicability.
For support, Airway and Gutierrez accurately observe that waivers are generally valid and
enforceable under Florida law. See, e.g. Sanislo v. Give Kids the World, Inc., 157 So. 3d 256 (Fla.

2015); Banfield v. Louis, 589 So. 2d 441 (Fla 4th DCA 1991); Hardage Enters, Inc. v. Fidesys
Corp., N.V., 570 So. 2d 436, 437 (Fla. 5th DCA 1990). Airway and Gutierrez emphasize the
portion of the Liability Waiver that reads “any claim shall be adjudicated in and governed by the
laws of the state of Florida.” ECF No. [37-2] ¶ EE. Accordingly, Airway and Gutierrez argue this
Court should apply substantive Florida law and enforce the Liability Waiver.

7 The Court generally refers to the Warsaw Convention, as it is commonly used to refer to both the Warsaw
Convention and the Montreal Convention. Citations distinguish between the Warsaw and Montreal
Conventions.
Plaintiffs respond that the Liability Waiver is unenforceable under Florida law because the
Liability Waiver is ambiguous. Further, Plaintiffs contend that the Liability Waiver does not apply
to Gutierrez. The Court need not determine whether the Liability Waiver is ambiguous or
otherwise unenforceable under Florida law because it concludes the Warsaw Convention is the

exclusive remedy for recovering damages suffered in connection with the subject plane crash.
Vanderwall, 80 F. Supp. 3d at 1335. Whether the Liability Waiver is enforceable under Florida
law is therefore irrelevant, as the Warsaw Convention preempts its enforcement under state law.
In their Reply, Airway and Gutierrez recognize the application of the Warsaw Convention
to international travel, but argue the Warsaw Convention does not preclude the parties from
negotiating and entering into a different agreement limiting liability. For support, they cite to Block
v. Compagnie Nationale Air France, 229 F. Supp. 801 (N.D. Ga. 1964), aff’d, Block v. Compagnie
Nationale Air France, 386 F. 2d 323 (5th Cir. 1967).8
Airway and Gutierrez are correct that the Warsaw Convention generally allows parties to
enter into agreements providing for different limitations of liability. However, such agreements
may only provide for a limitation of liability above the Convention’s cap of $75,000.00 USD.9 See

Montreal Convention art. 21(1). Agreements fixing liability below $75,000.00 are explicitly
unenforceable under the Warsaw Convention. Id. art. 26 (“Any provision tending to relieve the
carrier of liability or to fix a lower limit than that which is laid down in this Convention shall be
null and void[.]”) (emphasis added).

8 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), the Eleventh Circuit adopted as
binding precedent all decisions of the Court of Appeals for the Fifth Circuit rendered before October 1,
1981.
9 As noted above, the United States’ implementing regulation fixes this cap on liability at $75,000.00. 14
C.F.R. § 203.4 (2019)
Furthermore, Block does not support the conclusion that agreements executed under state
law are enforceable where the Warsaw Convention applies as the exclusive remedy. To the
contrary, the court in Block squarely held that, despite a private agreement executed under Georgia
law, “the Warsaw Convention would be applicable, and the passenger or passengers would be

entitled to the presumption of liability contained in the Warsaw Convention as against Air France,
and Air France, the air carrier, would be entitled to the limitation of liability also contained in the
Convention as against the passengers.” Id. at 809. Moreover, the Supreme Court has made clear
that the “Warsaw Convention precludes a passenger from maintaining an action for personal injury
damages under local law.” El Al Isr. Airlines v. Tsui Yuan Tseng, 525 U.S. 155, 176 (1999). Airway
and Gutierrez’s position is thus foreclosed by the plain language of the Warsaw Convention and
binding precedent.
The Liability Waiver provides that Airway is released from all liability arising from the
subject plane crash. As such, the Liability Waiver is therefore unenforceable under the Warsaw
Convention, as it constitutes a “provision tending to relieve the carrier of liability[.]” Montreal

Convention art. 26. Airway and Gutierrez have accordingly failed to show the Liability Waiver
establishes that Plaintiffs have failed to state a claim upon which relief may be granted.
IV. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Airway Air and Gutierrez’s Motion to Dismiss Plaintiff’s Fourth Amended Complaint,
ECF No. [38], is DENIED.
2. Airway Air and Gutierrez’s shall file their Answers to the Complaint by April 19, 2024.
Case No. 23-cv-23654-BLOOM/Torres

DONE AND ORDERED in Chambers at Miami, Florida, on April 5, 2024.

BETH BLOOM
UNITED STATES DISTRICT JUDGE

Copies To:

Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10123213. Public record. Not legal advice.