United States District Court, D. North Dakota
Kevin A. Avery and Denise M. Avery, Plaintiffs,
John E. Ward, Special Administrator of the Estate of Andrzej Furmanski, deceased, Defendant.
AMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
ORDER FOR JUDGMENT
Charles S. Miller, Jr., Magistrate Judge United States
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
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.
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. Also, since the Estate had
not filed an answer, plaintiffs filed a motion for default
judgment on September 1, 2017.
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
the trial, the court heard testimony from the following
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.
court also received a number of exhibits, including several
expert reports, information from the NTSB investigation of
the crash, photographs, and voluminous medical records.
careful review of the evidence, the court makes the following
findings of fact and conclusions of law.
OF FACT 
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
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.
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.
Avery is the owner of an oilfield service company, Avery
Enterprizes, Inc. (“Avery
Enterprizes”). Avery Enterprizes principal place of
business is located in North Dakota. That was true also at
the time of the accident.
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.
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.
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.
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 ...