EFiled: Jul 09 2015 04:27PM EDT
Transaction ID 57528554
Case No. 10735-VCN
COURT OF CHANCERY
OF THE
STATE OF DELAWARE
417 SOUTH STATE STREET
JOHN W. NOBLE DOVER, DELAWARE 19901
VICE CHANCELLOR TELEPHONE: (302) 739-4397
FACSIMILE: (302) 739-6179
July 9, 2015
Richard A. Barkasy, Esquire Joseph J. Bellew, Esquire
Schnader Harrison Segal & Lewis LLP Cozen O’Connor
824 N. Market Street, 8th Floor 1201 N. Market Street, Suite 1001
Wilmington, DE 19801 Wilmington, DE 19801
Re: Global Aerospace, Inc. v. Aero Ways, Inc.
C.A. No. 10735-VCN
Date Submitted: June 24, 2015
Dear Counsel:
Respondent Aero Ways, Inc. (“Aero Ways”) purchased insurance from
Petitioner Global Aerospace, Inc. (“Global”) for a leased aircraft.1 On July 25,
2013, the aircraft’s left main landing gear brake assembly and part of its left wing
were damaged. It was moved to its manufacturer’s facility in Wichita, Kansas for
repair, and Aero Ways made an insurance claim for the cost.
The insurance policy establishes an appraisal process for when, like here, the
parties are unable to agree on the cost of repair.2 “In such event, [Aero Ways] and
1
The aircraft is a 1986 Bombardier Challenger CL-601-1A business jet, U.S.
registration No. N163WG.
2
The cost is a function of the selected repair strategy.
Global Aerospace, Inc. v. Aero Ways, Inc.
C.A. No. 10735-VCN
July 9, 2015
Page 2
[Global] shall each select a competent appraiser, and the appraisers shall select a
competent and disinterested umpire.”3 The umpire serves to break the deadlock
should the appraisers’ values diverge. Although both sides have selected
appraisers, the appraisers cannot agree on an umpire. Global has petitioned the
Court to designate a suitable candidate.4
After considering both sides’ views on the matter, the Court has selected
Ann L. Kolarik as umpire. Ms. Kolarik is a Designated Engineering
Representative (“DER”), i.e., an individual authorized by the Federal Aviation
Administration (“FAA”) to determine an aircraft’s suitability for flight.5 She is a
structural engineer authorized to evaluate and act with respect to the wing
structures of airplanes such as the aircraft.
3
Verified Pet. for the Appointment of a Neutral Umpire ¶ 18 (“Pet.”).
4
The insurance policy does not specify a process for selecting an umpire when the
appraisers cannot reach an agreement. The Federal Arbitration Act, which applies
here, provides that “if no method [for appointing an umpire] be provided [in the
applicable agreement], . . . then upon the application of either party to the
controversy the court shall designate and appoint an . . . umpire . . . .” 9 U.S.C. 5.
5
A DER is “an individual, appointed in accordance with 14 CFR § 183.29, who
holds an engineering degree or equivalent, possesses technical knowledge and
experience, and meets the qualification requirements of Order 8100.8D.” Pet. ¶ 29.
Global Aerospace, Inc. v. Aero Ways, Inc.
C.A. No. 10735-VCN
July 9, 2015
Page 3
The FAA Consultant DER Directory indicates that Ms. Kolarik is based in
Wichita, and there has been no indication that any party or appraiser has a current
or ongoing personal or professional relationship with her. According to her
LinkedIn profile, she is a senior engineer at Bombardier Inc., the parent of the
company that manufactured the aircraft. Her selection is partly intended to address
Aero Ways’s concern that the umpire have familiarity with the wing structure of
the aircraft’s model.6
Of course, should Ms. Kolarik be unavailable or unwilling to act as umpire,
the Court may need to make another selection. Additionally, should either party
identify a material concern relating to Ms. Kolarik’s appointment (i.e., a conflict of
interest), the Court may revise its determination.
IT IS SO ORDERED.
Very truly yours,
/s/ John W. Noble
JWN/cap
cc: Register in Chancery-K
6
Global proposed that the Court appoint any structural DER with a specialty in
airplane wings. Aero Ways suggested four former employees of Bombardier (the
aircraft’s manufacturer) or, alternatively, an individual with experience in the
repair of damaged wings on aircraft similar to the model in question.