Date: 06-22-2015

Case Style: Aircraft Specialties Services, Inc. v. Mark Meyers

Case Number: CJ-2015-83

Judge: Caroline Wall

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Joe Farris, Shannon Wheeler and Sarah Buchan

Defendant's Attorney: Adam Strange for Mark Meyers

James K. Secrest, III for Howard Berger Co., Inc.

Description: Tulsa, OK - Aircraft Specialties Services, Inc. sued Mark Meyers claiming:

1. Plaintiff is an Oklahoma Corporation with its principal place of business located in Tulsa County, Oklahoma.
2. Defendant is an individual, and at all times relevant hereto was a resident of Tulsa, County, Oklahoma.
3. The acts which give rise to this action occurred in Tulsa County,
Oklahoma.
4. Jurisdiction and venue are proper in this Court
CAUSES OF ACTION
5. Plaintiff incorporates herein by reference, as if fully set forth herein, each
and every allegation contained in paragraphs 1 through 4.
6. On or about Saturday, February 23, 2013, a fire broke out inside a building located at 6410 E. 30th St. N. Tulsa, Oklahoma (“Building”).
7. Plaintiff leases and operates out of the Building and Plaintiff was financially responsible for the damage to the Building. Additionally, the fire damaged the Building and numerous items of business personal property owned by Plaintiff located inside of the Building.
8. Defendant utilized space in the Building to continue the construction of an ongoing personal and experimental hobby airplane. Specifically, Defendant transported the project, including all parts, materials, tools, and items necessary for the assembly of the experimental aircraft to the Building from another state. The construction of this experimental aircraft was a personal project of Defendant’s, which was wholly unrelated to Plaintiffs business and/or operations. Defendant was not an employee or otherwise engaged in a business relationship with Plaintiff relating to the hobby airplane or otherwise at the time of the fire. Furthermore, Defendant was the sole owner of the hobby airplane project, its materials, tools, and intellectual property; and, likewise, exercised sole control over the project including the material selection, construction methods, labor, and schedule.
9. In the process of constructing the experimental airplane, Defendant caused the fire which damaged Plaintiffs leasehold and personal property.
10. Defendant negligently supplied, owned and utilized a space heater in and around highly flammable materials in the construction of the airplane in the Building, which caused the fire.
ventilated area inside the Building, which caused the fire.
12. Further, after Defendant negligently utilized the highly flammable materials, space heater, hot lamps or lights, and a blanket, Defendant intentionally left the items unattended and left the Building, which caused the fire.
13. Defendant failed to exercise his duty of ordinary care in the construction of the experimental hobby airplane, use of flammable materials, use of a space heater, use of hot lamps and/or lights, and a blanket in and around flammable materials. Defendant further failed to exercise his duty of ordinary care by leaving such items unattended.
14. Defendant’s failure to exercise his duty of ordinary care was the direct cause of the injury to Plaintiff.
15. Defendant knew or should have known of the seriousness of the hazard that he created through his actions.
16. Defendant’s actions were willful, malicious, and/or constitute gross negligence in complete disregard of the rights of Plaintiff.
17. As a result of Defendant’s actions, Plaintiff has suffered actual damages due to the destruction of leasehold and personal property.

MARK MEYERS’ ANSWER, COUNTERCLAIM AND THIRD-PARTY PETITION

For his answer to Aircraft Specialties’ Petition, Meyers states as follows:
1. Meyers admits the allegations in paragraph 1 of Aircraft Specialties’ Petition.
2. Meyers admits the allegations in paragraph 2 of Aircraft Specialties’ Petition.
3. Meyers admits the allegations in paragraph 3 of Aircraft Specialties’ Petition.
4. Meyers admits the allegations in paragraph 4 of Aircraft Specialties’ Petition.
5. No response is necessary to paragraph 5 of Aircraft Specialties’ Petition.
6. Meyers generally admits that a fire occurred at 6410 E. 30th St. N. Tulsa, Oklahoma on February 23, 2013 as asserted in paragraph 6 of Aircraft Specialties’ Petition.
7. Meyers lacks sufficient information to admit or deny the allegations contained in paragraph 7 of Aircraft Specialties’ Petition and therefore denies same.
8. Meyers admits he was in the process of building an airplane in space provided by Aircraft Specialties’ building as part of a joint venture agreement, all other allegations contained in paragraph 8 of Aircraft Specialties’ Petition are denied.
9. Meyers denies the allegations in paragraph 9 of Aircraft Specialties’ Petition.
10. Meyers denies the allegations in paragraph 10 of Aircraft Specialties’ Petition.
11. Meyers denies the allegations in paragraph 11 of Aircraft Specialties’ Petition.
12. Meyers denies the allegations in paragraph 12 of Aircraft Specialties’ Petition.
13. Meyers denies the allegations in paragraph 13 of Aircraft Specialties’ Petition.
14. Meyers denies the allegations in paragraph 14 of Aircraft Specialties’ Petition.
15. Meyers denies the allegations in paragraph 15 of Aircraft Specialties’ Petition.
16. Meyers denies the allegations in paragraph 16 of Aircraft Specialties’ Petition.
17. Meyers denies the allegations in paragraph 17 of Aircraft Specialties’ Petition.
AFFIRMATIVE DEFENSES
1. Failure to state a claim upon which relief can granted;
2. Contributory negligence;
3. Estoppel by consent;
4. Consent;
5. Assumption of risk;
6. Laches;
7. The damages allegedly suffered by Aircraft Specialties are the result of the negligence of third parties for which Meyers cannot be responsible; and
8. Meyers reserves the right to assert additional defenses to this action as discovery progresses.
COUNTERCLAIM
COMES NOW, Meyers and for his Counterclaim against Aircraft Specialties asserts as follows:
BACKGROUND FACTS
1. Aircraft Specialties granted Meyers the use of a commercial building apparently owned by the Trust and leased by Aircraft Specialties to manufacture a specialty aircraft for the benefit of Meyers and Aircraft Specialties.
2. Meyers had previously built two aircraft in the same space for the owner of Aircraft Specialties and for one of his partners using the same methods used by Meyers to build the aircraft which is the subject of this lawsuit.
3. Meyers constructed the aircraft for the benefit of Meyers and Aircraft Specialties.
4. Aircraft Specialties approved the methods used by Meyers to build the subject aircraft.
5. Aircraft Specialties provided Meyers with the tools, supplies, and other materials necessary to construct said aircraft.
6. On or around February 23, 2013, a Comfort Zone Howard Berger Co Electric Deluxe Milkhouse Utility Heater, CZ798 (the “space heater”), which was supplied to Meyers by Aircraft Specialties, malfunctioned and caused a fire.
7. The fire destroyed the aircraft and all molds constructed and used by Meyers to produce the specific aircraft sections and parts.
8. The total amount of loss sustained by Meyers is estimated to be at least
$670,141.23.
FIRST CAUSE OF ACTION
Negligence against Aircraft Specialties
9. Meyers incorporates the paragraphs above as if fully set forth herein.
10. Meyers sustained an injury from destruction of the aircraft and the molds constructed and used by Meyers to produce the specific aircraft sections and parts.
11. Aircraft Specialties had a duty to provide a safe work environment for Meyers and to provide Meyers with non-defective tools to complete the joint project.
12. Aircraft Specialties was negligent in providing a faulty space heater to Meyers that it knew or should have known was defective and unsafe for the purpose Meyers intended to use it for.
13. Aircraft Specialties was negligent in failing to install and maintain a properly working water sprinkler system that would have prevented the fire or that would have mitigated the substantial damage caused by the fire.
14. Aircraft Specialties’ negligence was the direct cause of the damages sustained by Meyers.
15. As a result of Aircraft Specialties’ negligence, Meyers suffered actual damages in an amount in excess of the amount required for diversity jurisdiction pursuant to Section 1332 of Title 28 of the United States Code.
SECOND CAUSE OF ACTION
Contribution against Aircraft Specialties
16. Meyers incorporates the paragraphs above as if fully set forth herein.
17. Meyers and Aircraft Specialties were members of a joint venture.
18. Meyers and Aircraft Specialties agreed to share in the profits and losses of the constructed airplane.
19. Meyers demands Aircraft Specialties reimburse Meyers for the losses suffered by Meyers in an amount in excess of the amount required for diversity jurisdiction pursuant to Section 1332 of Title 28 of the United States Code.
THIRD-PARTY PETITION
COMES NOW, Meyers and for his Third-Party Petition against Howard Berger Co., Inc., Howard Berger Co LLC, and the Linda Kay Merrell Revocable Trust, states as follows:
JURISDICTION AND VENUE
1. Meyers is a resident of Tulsa County, Oklahoma.
2. Howard Berger Co., Inc., is incorporated in New York and has its principal place of business in Cranbury, New Jersey.
3. Howard Berger Co. LLC, is incorporated in New York and has its principal place of business in Cranbury, New Jersey.
4. Howard Berger Co., Inc. and/or Howard Berger Co LLC, are the manufacturer(s) of the space heater that caused the subject fire.
5. The Trust is an entity created under the laws of the State of Oklahoma and owns property in Tulsa County, Oklahoma.
6. The actions which give rise to these proceedings occurred in Tulsa County Oklahoma.
7. Venue and jurisdiction are proper in this Court.
FIRST CAUSE OF ACTION
Negligence against the Trust
8. Meyers incorporates the paragraphs above as if fully set forth herein.
9. The Trust is the owner of the subject real property where Aircraft Specialties operates its business.
10. Aircraft Specialties acted as the agent of the Trust in allowing Meyers to manufacture the aircraft on the Trust’s property.
11. The Trust has a non-delegable duty to provide a safe work environment for Meyers to complete the joint project.
12. The Trust as the owner of the real property allowed Aircraft Specialties to provide a faulty space heater to Meyers that it knew or should have known was defective and unsafe for the purpose of Meyers’ intended to use.,
13. The Trust was negligent in failing to install and maintain a properly working water sprinkler system that would have prevented the fire or that would have mitigated the substantial damage caused by the fire.
14. The Trust was negligent in allowing Aircraft Specialties to provide Meyers with improper tools to complete the subject Aircraft.
15. The Trust’s negligence was the direct cause of the damage sustained by Meyers.
16. As a result of Aircraft Specialties’ negligence, Meyers suffered actual damages in an amount in excess of the amount required for diversity jurisdiction pursuant to Section 1332 of Title 28 of the United States Code.
SECOND CAUSE OF ACTION
Products Liability against Howard Berger Co.
17. Meyers incorporates the paragraphs above as if fully set forth herein.
18. Howard Berger Co., Inc. andJor Howard Berger Co LLC, manufactured or sold the space heater.
19. Howard Berger Co., Inc. and/or Howard Berger Co LLC, were in the business of manufacturing or selling such products.
20. The space heater was defective, and because of the defect, the space heater was unreasonably dangerous to a person or the property of a person who uses, consumes, or might be reasonably expected to be affected by the space heater.
21. The space heater was defective at the time it was manufactured or sold by Howard Berger Co., Inc. and/or Howard Berger Co LLC, or left its control.
22. Meyers was a person who used, consumed, or could have reasonably been affected by the space heater.
23. Meyers sustained damage to property directly caused by the defect in the space heater in an amount in excess of the amount required for diversity jurisdiction pursuant to Section 1332 of Title 28 of the United States Code.
THIRD CAUSE OF ACTION
CONTRIBUTION
24. Meyers incorporates the paragraphs above as if fully set forth herein
25. The combined negligent acts of the Trust and Howard Berger Co., Inc. and/or Howard Berger Co LLC, as described above contributed and/or were the cause in fact of any of the alleged damages sustained by Aircraft Specialties.
26. As a result of such negligence the Trust and/or Howard Berger Co., Inc. and/or Howard Berger Co LLC, are responsible for all alleged damages suffered by Aircraft Specialties.

Outcome: Settled on undisclosed terms and conditions and dismissed with prejudice.

Plaintiff's Experts:

Defendant's Experts:

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