Fed. Ct. Dismisses Film Companies' GA Suit over Plane Crash

A federal judge in Atlanta dismissed a complaint filed by four movie-production companies hoping to dodge liability for a fatal plane crash tied to the filming of the Tom Cruise picture American Made. Cross Creek Pictures LLC v. S&S Aviation Inc., 1:2017cv3440.

In dismissing the lawsuit, in which the production companies want to push liability onto the Georgia company responsible for the aircraft's maintenance, Judge Michael Brown of the Northern District of Georgia emphasized that the underlying litigation is currently playing out in California. “And no one knows what the outcome of that case will be,” Judge Brown wrote. “No one can say if it is likely, unlikely, probable or improbable that plaintiffs will be liable.”

American Made starred Cruise as Barry Seal, a onetime TWA pilot who turned to drug and gun-smuggling for the Medellin Cartel. Seal was recruited by the Drug Enforcement Agency during the 1980s to try to capture cocaine kingpin Pablo Escobar.

The underlying suit is one of several actions filed in California and Georgia after the twin-engine Smith Aerostar 600 crashed in the Andes in September 2015 when it ran into bad weather flying from Santa Fe de Antioquia, Colombia, to Medellin, Colombia. The pilot Carlos Berl was killed along with Alan Purwin, a co-owner of Heliblack, the company that owned the plane. Jimmy Garland, CEO of the maintenance company S&S Aviation Inc. was seriously injured.

Berl and Purwin's families filed separate wrongful death suits in Los Angeles County Superior Court naming Cross Creek Pictures, Imagine Entertainment, Quadrant Pictures and Vendian Entertainment. Those are the same production companies in the Georgia federal lawsuit dismissed by Judge Brown.

The film production companies sued S&S in Georgia's Northern District last year, claiming the company failed to properly inspect and maintain the aircraft or to provide adequate instruction to the pilot. The plaintiffs sought total indemnity for any legal fees and potential judgments or awards in the California litigation.

S&S sought to have the claims dismissed, arguing they were not ripe for adjudication, because “the outcome of this case depends on the outcome of at least one underlying state court action pending in California, which addresses the same issues as those in this case and which has been pending and hotly litigated” there.

Judge Brown agreed in his court opinion and noted that another lawsuit the production companies filed against Heliblack in Gwinnett County was dismissed in June “because plaintiffs had not yet been found liable in the California action.”

“Although that case is on appeal, at least for now, it appears plaintiffs cannot bring a state claim for indemnification before actual liability arises from a judgment or settlement,” Judge Brown wrote. He further noted: “The dismissal of the Gwinnett County action, though not binding on this court, supports this Court's conclusion that it lacks subject-matter jurisdiction because plaintiffs' claims are not justiciable.”

The plaintiffs are represented by Catherine Banich and Donald Anderson of Taylor English Duma in Atlanta.

S&S is represented by Andrew King and Ted Lavender III of FisherBroyles in Atlanta, and Arthur Hankin, Elaine Solomon and Ethan Simon of Blank Rome in Philadelphia.

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Greg Land is a Reporter for The Daily Report, an ALM Atlanta-based sibling publication of Entertainment Law & Finance.