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Avery v. Ward

United States District Court, D. North Dakota

November 15, 2017

Kevin A. Avery and Denise M. Avery, Plaintiffs,
John E. Ward, Special Administrator of the Estate of Andrzej Furmanski, deceased, Defendant.


          Charles S. Miller, Jr., Magistrate Judge United States District Court


         This is a personal injury action arising out the crash of a small, private aircraft on August 12, 2013, in West Yellowstone, Montana. Plaintiff Kevin Avery, who was a passenger, is seeking recovery for the personal injuries he sustained in the crash. The claim of his wife, Denise Avery, is for loss of consortium. Plaintiffs claim that the crash and their injuries were the result of negligent operation of the aircraft by its pilot, Andrzej Furmanski, who perished in the crash.

         Prior to the filing of the Complaint, plaintiffs' counsel filed a Petition for Appointment of a Special Administrator in state district court for the Estate of Andrzej Furmanski. On February 12, 2016, the state court appointed attorney John E. Ward as the Estate's Special Administrator. On November 13, 2016, Mr Furmanski's widow executed an affidavit in which she acknowledge receipt of the Complaint and stated she would be neither contesting the action nor opposing the entry of judgment. In accordance with what Special Administrator Ward understood to be the wishes of the Andrzej Furmanski Estate, he did not file an answer on its behalf.

         On July 18, 2017, following a telephone conference with the parties, the court scheduled a one day trial for September 8, 2017, to determine liability and damages.[1] Also, since the Estate had not filed an answer, plaintiffs filed a motion for default judgment on September 1, 2017.

         A one day bench trial was held on September 8, 2017. Special Administrator Ward appeared and, on the record, informed the court that the Estate would not be contesting plaintiffs' evidence or objecting to the entry of a default judgment. Special Administrator Ward was then excused and the court proceeded to take evidence on the issues of liability and damages.

         During the trial, the court heard testimony from the following witnesses:

1. Kevin Avery;
2. Ron Stone (plaintiffs' aviation expert);
3. Denise Avery;
4. Dr. Stephen Mann (plaintiffs' orthopaedic specialist);
5. Brandon Avery;
6. Dr. Paul Randle (plaintiffs' economist); and
7. Amber Hall.

         The court also received a number of exhibits, including several expert reports, information from the NTSB investigation of the crash, photographs, and voluminous medical records.

         After careful review of the evidence, the court makes the following findings of fact and conclusions of law.

         FINDINGS OF FACT [2]


         1. This case arises out of a crash of a 1954 Beechcraft E35 Bonanza (herein “Bonanza”) on August 12, 2013, in West Yellowstone, Montana. The aircraft was piloted by Andrzej Furmanski, who perished in the crash. Surviving, but badly injured, was passenger Kevin Avery, one of the plaintiffs in this action.

         2. Plaintiffs Kevin and Denise Avery are husband and wife. At all times material hereto, they have been and continue to be residents of the State of Idaho.

         3. Mr. Furmanksi was a North Dakota resident. Following his death, John E. Ward, a North Dakota resident and attorney, was appointed to act as a Special Administrator of the Estate of Andrzej Furmanski for purposes of this action.

         4. Mr. Avery is the owner of an oilfield service company, Avery Enterprizes, Inc. (“Avery Enterprizes”).[3] Avery Enterprizes principal place of business is located in North Dakota. That was true also at the time of the accident.

         5. Avery Enterprizes owned the Bonanza aircraft involved in the crash and employed Mr. Furmanski as its pilot and mechanic. When Avery Enterprizes acquired the aircraft in October 2012, it listed Powers Lake, North Dakota as its address in the bill of sale. At the time of the crash, the aircraft was being operated for Avery Enterprizes' business purposes.

         6. Mr. Avery was approximately 55½ years of age at the time of the crash. By the time of the trial in this case, he was several months short of 60. Mr. Avery has a high school education. Until about 2006, Mr. Avery's work history consisted largely of construction work, truck driving, and, for several years, working security as a security guard domestically and then overseas providing security to contractors working in the Middle East.

         Beginning in about 2006, Mr. Avery restarted his trucking firm, Avery Enterprizes, in Wyoming. In about 2008, he moved his trucking operation to the oil fields in North Dakota at the beginning of oil boom in the “Bakken.” In the several years that followed, Mr. Avery grew the size of his trucking operation from a single truck to 111 trucks in 2011. During this same time, Mr. Avery substantially increased his reported taxable income from $49, 452 in 2008 to $429, 306 by 2011. Corresponding to the beginning of the decline in the oil boom, Mr. Avery's reported income declined in 2012 to $269, 229. After 2012, his income declined further due to two factors, one being a further decline in oil activity and the other his inability to personally manage his trucking operation for an extended period following the crash. By 2017, Avery Enterprizes was down to 11 trucks and at that point struggling to survive.

         7. Plaintiff Denise Avery has been married to Mr. Avery since November 2011. Both had been married previously and, for Mr. Avery, this was his fifth marriage. Collectively, they have eleven adult children from the prior marriages and a number of grandchildren. By all accounts, plaintiffs' marriage at the time of the accident was a sound one with the same remaining true now despite the injuries sustained by Mr. Avery and their very uncertain financial future. Following the accident, Mrs. Avery rushed to the hospital and stayed with Mr. Avery for the approximate five weeks he remained hospitalized. Following Mr. Avery's discharge, Mrs. Avery was her husband's primary care-giver during ...

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