Reply Brief — Fireman's Fund Insurance Co. v. Dekalb County, Ga.

FOR ARGUMENT

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Supreme Court, U. &,

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APR 21 197

DAK, JR_CLEAK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-700

rhIREMAN’S FUND INSURANCE COMPANY,

Petitioner,

Vv.

DEKALB COUNTY, GEORGIA, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

(Granted January 17, 1977)

REPLY BRIEF OF PETITIONER

FIREMAN’S FUND INSURANCE COMPANY

J. ArTHUR MozLey

Attorney for Petitioner

1515 Gas Light Tower

235 Peachtree Street, N.E.

Atlanta, Georgia 30303

Of Counsel:

Phillips, Hart & Mozley

1515 Gas Light Tower

235 Peachtree Street, N.E.

Atlanta, Georgia 30303

(404) 522-2010

April 21, 1977

TABLE OF CONTENTS

Page

SEAR EP ga l

REBUTTAL OF SOME OF RESPONDENT'S

ERRONEOUS FACTUAL ARGUMENTS...... 2

REBUTTAL OF SOME OF RESPONDENT'S

ARGUMENTS OF LAW...................55. 7

I. The Pervasive Federal Regulation Of All

Aspects Of Aeronautical Commerce Does

Preempt Any Conflicting State Law And

Dt iiccestceus ouecha bade he weakess sé 7

Il. Respondent’s References To The Georgia

Constitution Are Irrelevant To This Case... 11

III. Petitioner Is Not A Mere Incidental

Beneficiary Of The Grant Agreement

Safety Covemamts........ccccccsvcccccscves 1]

i .c.. ese sadawesebaweweevees eens 15

CERTIFICATE OF SERVICE.................. 16

EXHIBIT A—Cross-claim of U.S.A. against

PE andseteackenseceieaenewndedd la

TABLE OF AUTHORITIES

Page

Cases:

Arney v. United States, 479 F.2d 653 (9th Cir.

A ey ee re 12, 13

City of Burbank v, Lockheed Air Terminal,

RS re ee s

Jones v. The Rath Packing Co., 45 U.S.L.Week,

rn ea i)

Kornblut v. Chevron Oil Co., 389 N.Y.S8.2d 232

me 13, 14

Northwest Airlines, Inc. v. Minnesota, 322 U.S.

PL GS54 cauhesanbuuew deme tdekekseece 8, 10

Rapp v. Eastern Air Lines, Inc., 264 F.Supp. 673

I 13

Starr v. United States, 393 F.Supp. 1359 (N.D.Tex.

Gh skies ube dda dows eee U ke edkkisnmadas 13

Statutes:

i a a oe 8

RS 6 a non hand vavea dou neeedsusetees Ss

I on aa elle ve cbs Sod eueee becuse 4)

IG os 5s oc ove ihevon bavevesnubaes 8,9

oe i cae ee eeobuee na 12

es ee 12

I ee eee ey 11

Miscellaneous:

17 Am.Jr.2d Contracts § 302, p. 725.............. 14

rp

ll

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-700

FIREMAN’S FUND INSURANCE COMPANY,

Petitioner,

v.

DEKALB COUNTY, GEORGIA, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

(Granted January 17, 1977)

REPLY BRIEF OF PETITIONER

FIREMAN’S FUND LL.SURANCE COMPANY

INTRODUCTION

Petitioner Fireman’s Fund Insurance Company

respectfully submits this reply brief in response to the

brief recently filed by respondent DeKalb County.

The first portion of this reply brief will be devoted

to correcting some of the erroneous factual statements

and arguments contained in the respondent’s brief, and

the remaining portion of this reply brief will be devoted

to a discussion of some of respondent’s arguments con-

cerning the applicable law.

l

2

In the interest of brevity, petitioner will not attempt

to reply to all of respondent’s factual and legal argu-

ments and citations of authority. Instead, and in lieu

of a more detailed reply brief, petitioner relies upon the

facts und legal principles outlined in petitioner’s pre-

viously filed petition for writ of certiorari and brief

on the merits as constituting sufficient rebuttal of the

arguments of respondent not specifically addressed

herein.

REBUTTAL OF SOME OF RESPONDENT’S

ERRONEOUS FACTUAL ARGUMENTS

On page 4 of its brief DeKalb County mistakenly says

that by virtue of the lower court orders dismissing the

complaint as to DeKalb County, it no longer is in any

manner a party to this case.

Although the U.S.A. cross-claimed against DeKalb

County for indemnity and/or contribution (J.A. 132),'

DeKalb County never filed a motion to dismiss the

U.S.A.’s cross-claim, and the courts below have never

ruled on the specific issue of whether so-called “sover-

eign immunity” would bar the U.S.A.’s cross-claims

against the County for indemnity and/or contribution.

DeKalb County did move to dismiss the petitioner’s

complaint, but such motion by its own terms was limited

to the claims asserted by petitioner. (J.A. 176.) In

fact, the DeKalb County defendants in their motion to

dismiss asked only “that the complaint be dismissed as

to them.” (J.A. 178.)

And the June 27, 1974 formal docket entry of the

District Court regarding the order granting DeKalb

'As the U.S.A.’s cross-claim was not printed in the Joint

Appendix, a copy of the cross-claim is attached as Exhibit A to

this Brief.

3

County’s motion to dismiss the complaint specifically

provides: “‘U.S.A.’s cross-claims still pending against

DeKalb County defendant.” (J.A. 133.)

Throughout its brief DeKalb County has repeatedly

described the area immediately adjacent to the jet

runway as a “sanitary landfill’ rather than as an open

raw garbage dump. While petitioner does not wish to

be guilty of “splitting hairs,”’ there is a distinction be-

tween an “open garbage dump” and a “‘sanitary land-

fill’”’ under Georgia law. A “‘sanitary landfill” is an area

in which articles such as construction debris are placed,

whereas an “open garbage dump” is exactly what it

sounds like—a place where raw, untreated kitchen,

toilet and household garbage and waste materials are

deposited. Georgia law requires that a compacted

layer of at least six inches of clean earth be placed

daily over all such raw garbage, and that other steps

be taken to reduce the menace posed by open, raw

garbage dumps. (J.A. 169.)

It is clear from the record in this case that the airport

area immediately adjacent to the jet runway was an

open raw garbage dump, and that the County’s char-

acterization of such area as a “sanitary landfill” is both

incorrect and misleading. (See J.A. 157-158, 169-170.)

See also the exhibits appearins on pages Ild, 2e, 7e

and 13e of petitioner’s March 2, 1977 brief on the

merits.

Next, and in connection with its recent efforts to

disguise the area immediately adjacent to the jet run-

way as a harmless “sanitary landfill,’’ DeKalb County

in its brief has sought to create the illusion that this

case really does not involve the issue of sovereign

immunity vis-a-vis interstate acronautical commerce

4

and proprietary operation of a federally-funded public

airport, but, instead, involves only the question of

whether sovereign immunity attaches to the County’s

“governmental” function of operating a “sanitary

landfill.” This contention permeates the County’s

entire line of defense.

For example, on page 17 of its reply brief the County

stated (without any citation to the Record):

“The pleadings before this Court alleged that

DeKalb County was negligent not in its operation

of DeKalb-Peachtree Airport, but in the County’s

operation of a sanitary landfill in close proximity to

- the Airport.”’

And on page 6 of its Brief the County said (again with-

out Record citation): “Clearly, the central issue in this

case is the operation of a sanitary landfill, which is

obviously a local government function, lacking in any

federal consequence except in terms of the environ-

ment, not involved here.”’ (Emphasis in original.) The

County further said that petitioner has presented an

“argument that garbage collection and disposal enters

a Federal sphere of influence.” (Brief, p. 36.)

This is simply not so, and is clearly an effort to shift

attention from the subject of Federal regulation of in-

terstate aeronautical commerce and airports to an irrele-

vant, non-existent issue.

The gist of petitioner’s claim against the County is

that the County operated the airport in a negligent

fashion, and allowed and maintained an airport hazard,

and failed to take any steps at all to alleviate or guard

against the airport bird hazard, and willfully violated

federal statutes, regulations and contracts imposing

specific duties on the County with respect to airports,

5

airport operations, and airport hazards. See paragraphs

53, 54, 56, 58, 61, 63 and 64 of the complaint, and

paragraph 58A of the amended complaint. (J.A. 161-

165, 167-170 and 182-183.)

The “sovereign immunity” issues in this case relate

to and involve the County’s proprietary activity of

operating a federally-funded airport, and not to the

garbage collection duties of the County (whatever such

duties may be). The ‘central issue” is clearly the

federally-funded airport, and not a “sanitary landfill.”’

Moreover, the County’s proprietary airport activities

are not “lacking in any federal consequence,” as fed-

eral funds, federal contracts, federally-imposed duties

and the safety of interstate aeronautical travellers are

directly involved here.

Next, apparently in an effort to imply that the air-

port operation is not in fact a proprietary function, the

County says (Brief, p. 6) that the airport operated at

a loss in 1971 and 1972. The record reveals, however,

that gross receipts from airport operations in 1971 and

1972 (including commercial leases with rental computed

at fixed amounts, plus a percentage of the tenants’

revenues) totalled $241,875.00 and $267,959.00, respec-

tively. (J.A. 129-130. See also J.A. 170-172 and 185-186.)

Moreover, the fact that the airport operations may

have resulted in a net financial loss during one particu-

lar time period does not ipso facto convert the opera-

tion from a proprietary function to a governmental

function.

On page 28 of its Brief the County, without reference

to statute, regulation, case law or contract provision,

says that petitioner can have no breach of contract

6

rights greater than those possessed by the F.A.A., and

that the F.A.A.’s sole remedies for breach of the Grant

Agreements and related federal statutes and regulations

are withholding or termination of federal funds, and

possibly an action for specific performance.

There is absolutely no language in the Grant Agree-

ments and related federal statutes and regulations so lim-

iting the F.A.A.’s rights and remedies.

Moreover, if as contended by petitioner the safety

covenants in the Grant Agreements are intended directly

for the benefit and safety of ‘‘aeronautical users,”’ then

obviously such “aeronautical users” have available to

them whatever remedies are appropriate to enforce their

third-party beneficiary rights, regardless of the nature

of the remedies that may or may not be availeble to

the F.A.A. itself.

At page 35 and elsewhere in its Brief DeKalb County

refers to the total dollar volume or ad damnum of all

claims resulting from the crash, and argues that its

liability insurance and other resources are not sufficient

to ~r such amounts. The County then tries to tie

toxe . its “sovereign immunity” argument by saying

«an the event of adverse judgments the “State of

Georgia” would be compelled to pay such judgments,

and that petitioners’ claims therefore are not really

claims against the County, but are (directly or in-

directly) unconsented-to claims against the “State of

Georgia” itself.

Yet the County has referred the Court to no con-

stitutional, statutory or judicial authorities that would

make the “State” liable for any judgments entered

against the County in this case, and, indeed, the “State”’

would not be so liable.

7

Furthermore, petitioner’s property damage claim

herein is for $549,432.00, and the County admittedly

has a $1,000,000.00 property damage liability policy

providing ample coverage for such claim. (J.A. 72 and

240.) Thus, neither the County nor the “State’’ would

be obliged to pay any judgment in favor of petitioner,

as such payment would be made by the County’s own

liability insurer.

Next, even if it be assumed, arguendo, that the

“State” would be required to pay a judgment entered

against the County, such fact would not in and of it-

self render the County immune from liability, as the

arguments petitioner has previously advanced against

application of sovereign immunity in this particular

case and factual setting apply to the “State” as well

as to the County.

Last, the County’s argument concerning its alleged

inability to pay judgments reflects confusion on the

part of the County with respect to the totally separate

and distinct concepts of “‘suability” and “collectibility.”’

The question of whether a judgment in favor of peti-

tioner and against the County would be partially or

totally collectible or not has no relevancy at all to the

question of whether petitioner has the right to maintain

this particular suit against the County herein.

REBUTTAL OF SOME OF RESPONDENT’S

ARGUMENTS OF LAW

I. The Pervasive Federal Regulation Of All Aspects

Of Aeronautical Commerce Does Preempt Any

Conflicting State Law And Policies.

In its brief the County has suggested that there is

no “federal preemption” in the area of aeronautical

8

commerce, and that application of “sovereign immu-

nity” to petitioner’s claims therefore is not precluded.

Federal regulation of aeronautical commerce extends

to and includes practically every aspect of aviation, and

fills several volumes of the United States Code and even

more volumes of the Code of Federal Regulations. Spe-

cifically included in such federal regulation are fed-

erally-funded airports such as the one involved here.

See 49 U.S.C. §§ 1701, 1714 and 1718.

As noted by Justice Jackson in his concurring opinion

in Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292,

303 (1944):

“Air as an element in which to navigate is even

more inevitably federalized by the commerce clause

than is navigable water. Local exactions and bar-

riers to free transit in the air would neutralize its

indifference to space and its conquest of time.

“Congress has recognized the national responsi-

bility for regulating air commerce. Federal control

is intensive and exclusive. Planes do not wander

about in the sky like vagrant clouds. They move

only by federal permission, subject to federal in-

spection, and in the hands of federally certified

personne! and under an intricate system of federal

commands. The moment a ship taxis onto a run-

way it is caught up in an elaborate and detailed

system of controls. It takes off only by instruction

from the control tower, it travels on prescribed

beams, it may be diverted from its intended land-

ing, and it obeys signals and orders. Its privileges,

rights and protection, so far as transit is concerned,

it owes to the Federal Government alone and not

to any state government.”

More recently, in City of Burbank v. Lockheed Air

Terminal, 411 U.S. 624 (1973), this Court had occasion

9

to reaffirm that the pervasive federal regulation of all

aspects of aviation and aeronautical commerce of

necessity preempts and precludes enforcement of any

state and local laws and policies that might thwart the

policy and objectives of the federal regulation, regard-

less of whether the scheme of federal regulation contains

any express provision for such preemption. See 411 U.S.

625 and 633.

And only last month, in a different context, this

Court in Jones v. The Rath Packing Co., 45 U.S.L. Week

4323, 4325 (1977) confirmed that ‘Congressional enact-

ments that do not exclude all state iegislation in the

same field nevertheless override state laws with which

they conflict.”” The Court also noted that in deter-

mining questions of preemption it was necessary “to

consider the relationship between state and federal

laws as they are interpreted and applied, not merely as

they are written.”’ 45 U.S.L. Week 4325. (Emphasis

added.)

In the case at bar, the commands of 49 U.S.C. §§ 1716

and 1718 and the Grant Agreement safety covenants

are quite explicit—DeKalb County was required to

remove, mitigate and prevent “airport hazards,’ and

to operate the airport in a “safe condition’’ for “‘aero-

nautical users,” and to prevent “any activity thereon

which would interfere with its use for airport purposes.”

The County violated these federally-imposed statutory

and contractual duties, and such violation directly

and proximately resulted in the type of injuries and

damage the federal regulation was designed to prevent.

Any state law and policy—or any interpretation or

y :

application of state law and policy—that would pro-

hibit th. County from being held accountable for

10

breach of its federally-imposed duties can serve only to

thwart, hinder and emasculate the expressly-stated

safety objectives of federal regulation of aviation and

airports. Accordingly, such state law (here present in

the form of a local concept of county immunity) can-

not be given force and effect.

In this regard, the words of Justice Jackson in

Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292,

302 (1944) are not inappropriate:

“Any authorization of local burdens on our

national air commerce will lead to their multiplica-

tion in this country.”’

It is difficult to imagine how the safety objectives

of federal regulation of federally-funded airports could

be more burdened and thwarted than by subjecting

the ‘‘rights to sue’”’ of interstate aeronautical travellers

at such airports to the vagaries of differing laws of

various localities relating to the “immunity” vel non

of a host of various local entities such as counties,

cities, agencies, boards, authorities, ete.

DeKalb County’s argument that subjugation of the

safety objectives of the federal statutory and contrac-

tual covenants at issue here to the vagaries of local

“immunity” laws would not hinder or burden the

federal policy of airport safety just does not comport

with reality. Within the particular factual setting of

this case, the preemptive effect of federal airport

regulation does—and clearly should—preclude enforce-

ment of the local “immunity” law relied upon by the

County.

11

II. Respondent’s References To The Georgia Con-

stitution Are Irrelevant To This Case.

In addition to relying upon Georgia Code Section

23-1502 relating to county immunity, respondent has

urged that its alleged immunity from suit has a basis

in the Georgia Constitution. See pages 9-10 of respon-

dent’s brief. In this respect, respondent says that the

statutory immunity embodied in Georgia Code Section

23-1502 has been “‘constitutionalized” by the Georgia

General Assembly and the electorate.

The airplane crash in question occurred on February

26, 1973. The constitutional amendment relied upon

by DeKalb County was not proposed and approved by

the General Assembly until late in 1973, and was not

ratified by the electorate and did not become effective

until November, 1974.

Petitioner’s rights had become vested long before the

constitutional amendment relied upon by respondent

was proposed, approved and ratified, and the amend-

ment clearly cannot be given retroactive or ex post

facto effect. Such amendment therefore has no rele-

vancy at all to the issues involved in this case.

III. Petitioner Is Not A Mere Incidental Beneficiary

Of The Grant Agreement Safety Covenants.

Petitioner has no quarrel with respondent’s argu-

ments that under both Georgia and Federal law only

intended third party beneficiaries—as opposed to inci-

dental third party beneficiaries—can sue for breach of

the Grant Agreement safety covenants here involved.

Petitioner disagrees vigerously, however, with respon-

dent’s conclusory allegations that the petitioners in

12

these four cases before the Court are not intended

beneficiaries.

As discussed in our earlier petition and brief, the

safety covenants specifically imposed on the County

both by 49 U.S.C. § 1718(3) and (4) and by the Grant

Agreements are ex facie directly intended for the safety

and benefit of airport users, aeronautical travellers, and

persons on the ground who may be affected by unsafe

airport conditions. Indeed, the very essence of prac-

tically all federal regulation of aeronautical commerce

is aviation safety.

Arney v. United States, 479 F.2d 653, 658 (9th Cir.

1973), involving a different yet not wholly irrelevant

aspect of federal regulation of aviation, is apropos here:

“The Civil Aeronauties Act, the predecessor to

the Federal Aviation Act of 1958, was enacted,

and regulations promulgated thereunder, to pro-

mote civil aviation while assuring maximum safety

in the air. Rosenhan v. United States (10 Cir.

1942), 131 F.2d 932, 934, cert. denied, 318 U.S.

790, 63 S.Ct. 993, 87 L.Ed. 1156. The 1958 Act

had the same purposes. 1958 U.S. Code Cong. &

Adm. News, p. 3741. The purpose of the certifica-

tion of aircraft under the 1958 Act and regulations

was to reduce accidents, and the government may

be liable for negligence in improper issuance of a

type airworthiness certificate. Rapp v. Eastern Air

Lines, Inc. (..D.Pa. 1967), 264 F.Supp. 673, 676,

680, aff'd sub nom., Scott v. Eastern Air Lines,

Ine. (3 Cir. 1968), 399 F.2d 14, cert. denied 393

U.S. 979, 89 S.Ct. 446, 21 L.Ed.2d 439. ...

“The safety of pilots and others aboard aircraft,

as well as persons on the ground, depends upon the

airworthiness certification program under the Act.

We hold that the appellants, Arney and Baker,

13

were within the class intended to be protected by

regulations and that the alleged harm suffered was

of the kind which the regulations were intended, in

general, to prevent. The accident which occurred

was exactly the sort of risk that might reasonably

be anticipated to flow from violation of the Act

and the regulations promulgated thereunder.”

(Footnotes omitted.)

No rational argument can possibly be advanced that

petitioners in the cases at bar are not direct and intended

beneficiaries of the statutory and contractual covenants

at issue. The only conceivable beneficiaries of such cove-

nants are persons who occupy the same status or class

as petitioners.

The courts have consistently held that persons occu-

pying the same status as petitioners here are the direct

and intended beneficiaries of the safety duties imposed

by law on the F.A.A. under the various Federal avia-

tion statutes. See, e.g., Arney v. Uniied States, 479 F.2d

653, 658 (9th Cir. 1973); Starr v. United States, 393

F.Supp. 1359, 13864 (N.D.Tex. 1975); Rapp v. EHastern

Air Lines, Inc., 264 F.Supp. 673 (18.D.Pa. 1967).

Thus, as petitioners clearly are the direct and in-

tended beneficiaries of the safety duties imposed on the

F.A.A. by federal law, plain logic compels the conclu-

sion that petitioners are likewise the direct and intend-

ed beneficiaries of the similar safety covenants imposed

on the County by federal law. Accordingly, petitioners

are entitled to maintain their breach of contract claim

against the County.

In addition to the cases cited above and in our earlier

petition and brief with respect to the third-party bene-

ficiary issue, petitioner wishes to bring to the attention

of the Court the recent decision in Kornblut v. Chevron

14

Oil Co., 389 N.Y.S.2d 232 (N.Y.Sup.Ct. 1976), in which

the Court ruled that members of the traveling public

were third-party beneficiaries of certain safety and

other covenants in a contract between a governmental

entity and a private party, and that plaintiff, as a

third-party beneficiary, could bring her wrongful death

action on a breach of contract theory. The Kornblut

court based its decision in part on the principle enun-

ciated in 17 Am.Jur.2d Contracts § 302, p. 725:

“The courts generally have been more liberal in

applying the third-party beneficiary rule to public

contracts than to private contracts.” 389 N.Y.S.2d

234.

In closing, petitioner wishes to make the following

general observations in response to the other argu-

ments and case citations set forth in DeKalb County’s

brief:

(1) None of the “immunity” cases relied upon by

respondent involved proprietary operation of an

airport by a county, or federal grant agreements, or

a factual situation and framework of federal regula-

tion even remotely similar to those involved here.

(2) Respondent has not cited a single case (Geor-

gia or otherwise) holding that operation of an airport

by a county is a governmental function.

(3) Respondent has totally ignored the Georgia

decisions holding that operation of an airport by a

governmental entity is a proprietary function, one

of which decisions flatly holds that respondent’s

operation of the airport involved here is a proprie-

tary, non-governmental function.

(4) No Georgia court has ever held that a county

is entitled to immunity from damage claims arising

from the county’s ownership and operation of a

federally-funded airport.

15

CONCLUSION

If respondent really has total and complete immunity

from any and all claims resulting from its proprietary

ownership and operation of the airport, why has the

respondent each year purchased a large insurance

policy providing liability coverage to respondent with

respect to airport operations?

The answer is simple. The County has no such

immunity from liability, and like any wise business-

man, the County secured insurance to protect against its

liability.

The decision below should be reversed and petitioner

should be allowed a trial of the claims based on negli-

gence, nuisance and breach of federal statutory and

contractual safety covenants.

Respectfully submitted,

Of Counsel:

Phillips, Hart & Mozley

1515 Gas Light Tower

235 Peachtree Street, N.E.

Atlanta, Georgia 30303

(404) 522-2010

16

CERTIFICATE OF SERVICE

I, J. Arthur Mozley, attorney for Petitioner Fire-

man’s Fund Insurance Company and a member of the

Bar of the Supreme Court of the United States, hereby

certify that on the 21st day of April, 1977, I served

three true copies of the foregoing Reply Brief of Peti-

tioner Fireman’s Fund Insurance Company upon the

respondents and all parties, by depositing in a United

States mailbox true copies of said Brief, with first class

postage prepaid, correctly addressed to the following,

as required by Supreme Court Rule 33:

Mr. MeapeE Burns

Long, Weinberg, Ansley & Wheeler

191 Lawrence

300 Cobb Federal Building

Marietta, Georgia 30060

Mr. WENDELL K. WILLARD

Harvey, Rhodes & Willard

125 Trinity Place

Decatur, Georgia 30030

Mr. Ronaup R. Guancz

Appellate Section, Civil Division

United States Department of Justice

Washington, D. C. 20530

Mr. Wituiam D. MALLARD, JR.

Assistant United States Attorney

P. O. Box 912

Atlanta, Georgia 30301

Solicitor General of the United States

Washington, D. C. 20530

Respectfully,

“AruuR MCzZ.ey

Attorney for Petitioner

EXHIBIT A

= aE et Nt Ate is it al ls i A

la

EXHIBIT A

Cross-Claim of U.S.A. Against DeKalb County

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

FIREMAN’S FUND INSURANCE

COMPANY,

Plaintiff,

v.

UNITED STATES OF AMERICA,

DEKALB COUNTY, GEORGIA CIVII

A. C. GUHL , ,

: NO

WILLIAM A. WILLIAMS : 7494

T. M. CALLAWAY, JR.

HOKE CLAYTON SMITH

ROBERT J. MORRIS

W. M. COOLIDGE

HORIS A. WARD

H. F. MANGET,

Defendants.

ANSWER, CROSS-CLAIMS, AND

COUNTERCLAIM

Now comes defendant, United States of America, by

and through its attorneys, and in answer to plaintiff’s

complaint states and avers as follows:

Response to Count One

1. The United States admits the allegations of para-

graphs 6, 26, 27, 45, and 50 of Count One of plaintiff’s

complaint.

2a

2. The United States denies the allegations of para-

graphs 7, 8, 9, 12, 17, 18, 19, 42, 47, 49, 52, 55, 56, 57,

59, 60, and 64 of Count One of plaintiff’s complaint.

3. The United States denies the allegations of para-

graphs 1, 2(b), 2(c), 2(d), 2(e), 2(f), 2(g), 2(h), 2(i),

2(j), 3(b), 13, 14, 38, 39, and 40 of Count One of plain-

tiff’s complaint for iack of information sufficient to

form a belief as to their truth. :

4. The allegations of paragraphs 2(a) and 44 of

Count One of plaintiff’s complaint are conclusions of

law which require no answer and are referred to the

Court for determination.

5. Responding to the allegations of paragraphs 20,

21, 22, 23, 24, 28, 29, 30, 31, 32, 33, 35, 43, 51, 53, and

61 of Count One of plaintiff’s complaint; the United

States avers that the statutes (paragraphs 20, 21, 22,

23, and 24), Federal Air Regulations (paragraphs 28

and 29), Advisory Circular (paragraphs 30, 31, and

32), Terminal ATC Manual (paragraph 33), court

decision (paragraph 35), Grant Agreements (para-

graphs 43, 51, and 53) and the Georgia Code and 1960

DeKalb County Airport Zoning Resolution (para-

graph 61) recited therein speak for themselves and that

no answer is required.

6. The allegations of paragraphs 54, 58, 62, 63, and

66 of Count One of plaintiff’s complaint are directed to

DeKalb County; no response is required by this defen-

dant.

7. Responding further to the allegations of para-

graphs 61(h) and 63 of Count One of plaintiff’s com-

plaint the United States specifically denies the existence

of any “bird hazard” or “airport hazard.”

3a

8. Responding to the allegations of paragraph 3(a)

of Count One of plaintiff’s complaint the United States

admits it received an administrative claim on May 30,

1973 on behalf of Southeast Machinery, Inc, and Fire-

man’s Fund Insurance Company and that the Federal

Aviation Administration denied said claim on January

22, 1974. All other allegations of paragraph 3(a) are

conclusions of law which require no answer and are

referred to the Court for determination.

9. Paragraph 4 of Count One of plaintiff’s complaint

is an instruction which requires no answer.

10. Responding to paragraph 5 of Count One of the

complaint, this defendant is without knowledge or in-

formation sufficient to form a belief as to the truth of

the allegation that Southeast Machinery, Inc. owned

the described aireraft. Responding further, this de-

fendant admits on February 26, 1973, at approximately

10:12 a.m. E.S.T., a Learjet Model 24 aireraft, N-

454RN, was in the process of taking off from Runway

20L at DeKalb-Peachtree Airport. Responding further,

this defendant denies the remainder of the allegations

contained in paragraph 5 of Count One of the complaint.

11. The United States admits the allegations of

paragraph 10, 15, and 16 of Count One of plaintiff's

complaint to the best of our knowledge at this time.

12. Responding to Paragraph 11 of Count One of

the Complaint, this defendant admits some dead star-

lings or other birds were found at or near the departure

end of Runway 20L. The United States denies all other

allegations of this paragraph.

13. Responding to paragraph 25 of Count One the

United States admif$ it administers air traffic control

4a

of civil air operations within United States airspace;

operates F.A.A. air route traffic control centers, air-

port traffic control towers, flight service stations, and

related communication equipment required for control

of air traffic; and collects and disseminates information

relative to civil aeronautics and safety of flight pur-

suant to authority from Congress.

14. Responding to the allegations of paragraph 36

of Count One of plaintiff's complaint, the United States

admits the first two sentences of this paragraph; the

United States denies for lack of information sufficient

to form a belief as to its truth the reason the County

operates the airport.

15. Responding to the allegations of paragraph 37 of

Count One of plaintiff's complaint, the United States

admits that F.A.A. air traffic control personnel operated

the air traffie control tower at DeKalb-Peachtree Air-

port on February 26, 1973. All other allegations of

paragraph 37 are denied for lack of information suffi-

cient to form a belief as to their truth.

16. Responding to the allegations of paragraph 41 of

Count One of plaintiff’s complaint the United States

denies the first two sentences of this paragraph for lack

of information sufficient to form a belief as to their

truth. The last two sentences of this paragraph are

denied.

17. Responding to the allegations of paragraph 46

of Count One of plaintiff’s complaint the United States

admits there is an airport layout plan which illustrates

“airport facilities,” these facilities would not include

a garbage dump.

18. Responding to the allegations of paragraph 48

of the cause of action section of plaintiff’s complaint,

5a

the United States admits that F.A.A. personnel com-

municated with DeKalb County regarding birds and

the sanitary landfill from March 9, 1970, through Feb-

ruary 14, 1972 and that to our knowledge at this time

no communication occurred from February 14, 1972 to

February 26, 1973. All other allegations of paragraph

48 are denied including the existence of any “bird

hazard.”

19. Responding to the allegations of paragraph 65

of Count One of plaintiff's complaint, the United States

denies the allegations of paragraphs 65(a) and 65(b)

for lack of information sufficient to form a belief as to

the truth. The allegations of paragraph 65(c) are direct-

ed to DeKalb County defendants; no answer is required

by this defendant.

20. Responding to the allegations of paragraph 34

of Count One of plaintiff’s complaint the United States

admits it has had knowledge of bird strike incidents

since 1940. Each and every remaining allegation of

paragraph 34 is denied. The United States specifically

denies the existence of any ‘bird hazard” at the DeKalb-

Peachtree airport. The United States affirmatively avers

that 1946 statistics on bird strike incidents are wholly

irrelevant to the accident which is the subject matter

of this suit.

Response to Counts Two and Three

1. Responding to the allegations of paragraph 1 of

Counts Two and Three of plaintiff's complaint, the

United States hereby adopts and incorporates by ref-

erence its answers to paragraphs 1 through 66 of Count

One of plaintiff’s complaint as is fully set out herein.

6a

2. The allegations of paragraphs 2 and 3 of Counts

Two and Three of plaintiff's complaint are directed to

the DeKalb County defendants; no response is required

of this defendant.

AFFIRMATIVE DEFENSES

1. Plaintiff’s complaint fails to state a cause of action

upon which relief can be granted against the United

States.

2. Any liability that may exist for plaintiff’s death

lies in a third party, not the present defendant, United

States of America.

3. That the provisions of 28 U.S.C. § 2680(a) are

applicable to this defendant.

4. That the provisions of 28 U.S.C. § 2680(h) are

applicable to this defendant.

5. The flight of the aircraft was made in connection

with, subject to and with acceptance of the known risks

and perils of the air through which said aircraft trav-

elled, and acts of God, over which this defendant had

no control; and by undertaking said flight, the plaintiff

assumed, accepted and undertook all said risks and

dangers, of which they had actual or constructive

knowledge; and said accident arose out of and resulted

from said risks, dangers and acts of God.

6. Defendant, United States of America, denies

that any negligent or wrongful act or omission on the

part of any agent or representative of the United

States caused and/or contributed to the happening of

the accident.

7. Employees of plaintiff's insured, Machinery

Buyer’s Corp. and Southeast Machinery, Inc., were

7a

engaged in a joint venture with others in the use of the

aircraft, and any negligence by plaintiff’s insured em-

ployees contributing to the claimed damages is imputed

to plaintiff.

8. That the negligence of the crew of the aircraft

caused or contributed to the accident and the damages

sued for herein.

CROSS-CLAIMS

Now comes defendant, United States of America, by

and through its attorneys and for its cross-claims

against co-defendants DeKalb County, Georgia, A. C.

Guhl, William A. Williams, T. M. Callaway, Jr.,

Hoke Clayton Smith, Robert J. Morris, W. M. Coolidge,

Horis A. Ward and H. F. Manget states and avers as

follows:

1. Cross claimant hereby adopts by reference all the

allegations contained in the complaint filed in this case,

without prejudice to the cross claimant’s answers and

allegations heretofore entered.

2. If the facts alleged in the complaint as to them

are true, co-defendants DeKalb County, Georgia,

A. C. Guhl, William A. Williams, T. M. Callaway, Jr.,

Hoke Clayton Smith, Robert J. Morris, W. M.

Coolidge, Horis A. Ward and H. F. Manget are the

responsible parties for any damages that plaintiff may

have suffered as a result of the accident alleged in the

complaint.

3. Cross-defendants DeKalb County, Georgia, A. C.

Guhl, William A. Williams, T. M. Callaway, Jr., Hoke

Clayton Smith, Robert J. Morris, W. M. Coolidge,

Horis A. Ward and H. F. Manget are liable to the cross-

8a

claimant herein for all or part of any amounts that the

cross-claimant may be adjudged liable to plaintiffs.

COUNTERCLAIM

Now comes defendant, United States of America, by

and through its attorneys and for its counterclaim

against plaintiff, states and avers as follows:

1. Counterclaimant hereby adopts by reference para-

graphs 7 and 8 of the affirmative defenses herein.

2. That the crash occurred due to the negligence and

carelessness of the plane’s crew in operating, flying,

piloting and controlling said aircraft and in planning

said flight.

3. Plaintiff is, therefore, liable to the counterclaimant

herein for all or part of any amounts that the counter-

claimant may be adjudged liable for arising out of the

occurrence that is the subject matter of plaintiff’s claim.

Wherefore, defendant, United States of America,

demands judgment dismissing the complaint herein,

together with its costs and disbursements, and for such

other further and different relief which the Court may

deem just and proper.

JOHN W. STOKEs, JR.

United States Attorney

WiiiiaM D. MALLARD, JR.

Assistant U. 8S. Attorney

/s/GEoRGE M. FLEMING

GEORGE M. FLEMING

Trial Attorney

Torts Section, Civil Division

Department of Justice

Washington, D. C. 20530

Telephone: (202) 739-4689

9a

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy

of the foregoing Answer, Cross-Claims, and Counter-

claim was mailed this lst day of April, 1974, to:

J. ArTHUR Moz.Ley, Esquire

Smith, Cohen, Ringel, Kohler,

Martin & Lowe

2400 First National Bank Tower

Atlanta, Georgia 30303

MerAbDE Burns, EsQuiIrRE

Long, Weinberg, Ansley & Wheeler

{quitable Building

Atlanta, Georgia 30303

WENDELL WILLARD, ESQUIRE

Harvey, Willard & Elliott

Decatur, Georgia 30030

/s/ GEORGE M. FLEMING

GEORGE M. FLEMING