David A. Frank, II

Milwaukee partners John Loringer and David Frank, assisted by associate Sam Obscherning, secured summary judgment for an airline client and its insurer in the U.S. District Court for the Eastern District of Wisconsin. The plaintiff, a passenger, claimed that an overhead panel fell and struck him in the chest, allegedly causing injuries that required multiple surgeries to repair an implantable cardioverter defibrillator (ICD). The plaintiff asserted that the airline was negligent in maintaining the aircraft and sought to rely on the doctrine of res ipsa loquitur to meet his burden of proof. On summary judgment the Wilson Elser team argued that the plaintiff could not establish either negligence or causation. The court agreed, emphasizing that the plaintiff had conducted minimal discovery, taken no depositions, and neglected to retain a liability expert. In the court’s view, aircraft maintenance is a technical matter requiring expert testimony and “Plaintiff has failed to present any evidence negligence… regardless of the applicable standard of care.” The court ruled that res ipsa “cannot excuse plaintiff’s lack of evidence here.” The court also rejected the plaintiff’s request for spoliation sanctions, finding no evidence of bad faith and noting that the plaintiff did not report the injury to the airline and did not seek to inspect the aircraft panel or move for a sanction in discovery. The court ultimately held that plaintiff failed to create a triable issue of fact on breach and granted our motion for summary judgment, dismissing all claims with prejudice and removing the case from the trial calendar.

David Frank (Partner-Milwaukee, WI) secured a dismissal for an aircraft owner and its insurance company before the United States District Court for the Eastern District of Michigan. The case arose from a plane crash caused by pilot error. Shortly after the crash, the lone passenger’s estate made a demand against the aircraft owner, which was quickly settled. Several months later, the pilot’s estate made a first-party claim for the third-party liability limits without claiming the aircraft owner was liable for any conduct that would give rise to coverage. The insurance company invited the pilot’s estate to provide a theory of liability for which there would be coverage, which it failed to do. Rather, the pilot’s estate then brought suit in Michigan state court against the aircraft owner and insurance company alleging, among other things, breach of contract claims for wrongful denial of its claim. The case was removed to the Eastern District of Michigan and since the plaintiff had pled no colorable action against the aircraft owner for allegedly denying the policy benefits, the court dismissed the insured at the outset of the case. The plaintiff amended its complaint and the insurance company, now the sole defendant, moved to dismiss for failure to state a claim. In response, the plaintiff argued that the liability provisions did not require a determination of liability, rather it was entitled to the liability coverage simply because an accident had occurred regardless of fault. In granting the motion to dismiss, the court held that the plaintiff failed to put forth a plausible theory as to how it was entitled to the liability coverage whether as an insured or to the extent the estate was claiming that it was a third-party beneficiary under the policy.