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Opinion

124 F. App'x 85

U.S. Court of Appeals for the Third Circuit · 2005-02-15

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CHERTOFF, Circuit Judge,
dissenting.
The Majority holds today that the District Court was correct in granting summary judgment in favor of Agusta based on the finding that the record does not provide sufficient evidence for a jury to find a relationship that satisfies the foreseeability test discussed in People Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246, 495 A.2d 107 (1985). For the reasons stated below, I respectfully disagree.
People Express held that the standard for determining whether a particular class of plaintiffs may recover for economic damages is whether the class is “particularly foreseeable in terms of the type of persons or entities comprising the class, the certainty or predictability of their presence, the approximate numbers of those in the class, as well as the type of economic expectations disrupted.” Id. at 116. “To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Hotel Employees & Restaurant Employees Union, Local 57 v. Sage Hospi tality Resources, LLC, 390 F.3d 206, 210 (3d Cir.2004) (quotation marks omitted). At this stage, therefore, Paramount is entitled to a trial if there is an issue of fact about whether the Paramount-Agusta relationship gave rise to a foreseeability of economic loss.
In essence, the Majority finds an insufficient relationship because it views Paramount as no more than the manager of a crashed Agusta helicopter leased to a third party. But the record shows at least three elements of evidence that support finding a stronger relationship between Paramount and Agusta that may meet the test of particular foreseeability defined in People Express.
First, the declaration of Alfred E. Bar-tone, President of Paramount, describes an ongoing brokerage arrangement between Agusta and Paramount. Under that arrangement, Paramount sold leases of Agusta helicopters and received further compensation for any Agusta helicopter ultimately purchased by the customer. (App.1031-32.)
Second, Paramount’s supplemental expert witness affidavit, states that:
Paramount had an ongoing business relationship with Agusta and had had business dealings with Agusta for a number of years. Paramount operated several Agusta helicopters at the time of the accident. Paramount received commissions from Agusta for setting up the lease of helicopters to others such as AT & T. Paramount received goods and services from Agusta, including aircraft maintenance.
(App. 327.)
If true, these proofs suggest a continuing economic relationship that might well satisfy People Express. And although neither the declaration nor witness affidavit expressly states to what extent the economic relationship between Paramount and Agusta existed before the helicopter crash, in both instances it is at least reasonable to infer that the evidence refers to an ongoing relationship before the accident that grounded the Agusta fleet. In any event, any uncertainty of the time frame at least creates a genuine issue of material fact as to whether a relationship sufficient to establish particular foreseeability existed between Paramount and Agusta before the accident.
Finally, in the transcript of summary judgment proceedings on February 5, 2001, John Altieri, lawyer for Agusta quite clearly represents that:
And you can see repeated in the Plaintiffs papers that he was proud to be our representative and made a great point to say that everybody knew he was our, the Defendants’, representative in the northeast. And I think that the benefit of that was, he had a working relationship with us, and from that, he derived income from the sale of any helicopters, the leasing of any helicopters; and, in particular, even with the helicopter involved in this unfortunate crash, he held himself out as our representative and thus was able to get the contract with FSQ, the owner.
(App. 524-25.) This representation might well support application of the People Express doctrine. Although the context in which Altieri made this argument on behalf of Agusta is different than the current context, statements made by counsel in the course of litigation are generally admissible against a client, if authorized within the scope of the legal representation. See Lightning Lube Inc. v. Witco Corp., 4 F.3d 1153, 1198 (3d Cir.1993); Hanson v. Waller, 888 F.2d 806, 814 (11th Cir.1989).
Accordingly, I believe that there is a sufficient issue of genuine fact with respect to the issue of foreseeability, and would therefore reverse and remand.
. At that time Agusta was arguing that Paramount’s economic relationship with Agusta meant that its economic damages were preempted by the UCC. (App. 605.) As a result, it was in Agusta’s best interest to emphasize the robust commercial relationship between the two parties. After the Third Circuit held in Paramount Aviation Corp. v. Gruppo Agusta, 288 F.3d 67 (3d Cir.2002), that the UCC would not preclude Paramount from proceeding on a strict liability/negligence theory, however, it became in Agusta’s interest to downplay its relationship with Paramount in order to demonstrate a lack of foreseeability. Of course Agusta cannot retract its statement admission because it is no longer helpful in the present context of the case.

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