"I"m still interviewing for my final law clerk," Truitt said.
"My a.s.sistant will call you," the Chief said, as if he hadn"t heard. Or cared. He turned back toward the junior justice. "One other thing, Sam. I read the FBI files on you. It"s all hearsay, double hearsay, and innuendo, of course, but you have a reputation as having an eye for the ladies."
An eye for the ladies. Vaudeville. Burlesque. Maybe I should crank up my Model T.
"Now, in my younger days," Whittington said, "I cut a pretty wide path through the hay field, so I understand. I don"t care if you were humping one-legged midgets in Faneuil Hall, but you"re on my Court now. The Court of Jay, Marshall, Taney ..."
And Whittington.
"I don"t know what you"re getting at Chief, but I think you"re way off base."
The chief justice ignored him and plowed ahead. "Your father-in-law"s an old friend. I don"t agree with his politics, but he"s a fine poker player. You never would have been appointed without him, and you sure as h.e.l.l never would have been confirmed."
"Senator Parham"s retired," Truitt said.
"He still has friends on both sides of the aisle. So, it seems to me, a young man like you, a man who married into a prominent family, owes something to his wife, Sam."
Truitt reddened with anger. He fought the urge to grab the chief by the lapels and tell him to mind his own business. "Chief, I"d appreciate it if you and I could confine our conversation to Court business," he said, grimly.
"This is Court business! Frankfurter once said that the Court had no excuse for its existence unless it is a monastery. Now, he meant that we should be isolated from outside influences, but I think the a.n.a.logy extends to personal lives, too. Do you follow me, Sam?"
Like a duck behind its mother.
"With all due respect, Chief, I think you"re out of line."
"Can"t I get a simple yes from you, Justice Truitt?" the chief justice snapped.
"Yes, sir," Truitt replied, feeling like a noncom responding to a superior officer. "I know how to comport myself, and I don"t need anyone to remind me."
"Don"t use that tone with me! Can"t you see I"m trying to help you? You"ve got enemies out there, and if you screw up, they"ll ship your a.s.s back to your ivy-covered tower."
"Then I should thank you for your guidance," Truitt said, gritting his teeth, getting the message.
If I roll over for the Chief, give him my vote, he"ll toss me a line, drag me out of the deep water. If I don"t, he"ll let sharks like Senator Blair and the Family Values Foundation devour me.
"You"re welcome," Whittington said. "Good to have you aboard. You have my full support, but if you ever do anything to bring disrespect on this Court ..."
The Chief paused, his eyes aflame, his smile menacing. "I"ll have your d.i.c.k on the chopping block before you can zip up your fly."
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA.
Miami Division Case No. 96-00148-CIV-Schenkel GLORIA LAUBACH, individually and as personal representative of the Estate of Howard J. Laubach, deceased, et al.
Plaintiffs, v.
ATLANTICA AIRLINES, INC.,.
a Delaware corporation, Defendant.
_________________________________/.
ORDER GRANTING DEFENDANT"S MOTION FOR SUMMARY JUDGMENT.
Defendant Atlantica Airlines, Inc. ("Atlantica") has moved for summary judgment on two grounds as to the wrongful death claims a.s.serted against it by Plaintiffs in these consolidated actions.
Procedural Background This action arises from the devastating crash of Atlantica Flight 640 in the Florida Everglades in December 1995. Howard J. Laubach was one of the 288 persons on that flight, all of whom died. In January 1996, Mrs. Laubach, acting as personal representative of her husband"s estate, filed this action in the Eleventh Judicial Circuit Court in and for Dade County, Florida. Atlantica timely removed the action to this Court pursuant to 28 U.S.C. 1332 and 1337. Numerous other lawsuits involving the same incident were transferred to this District and consolidated with the instant action in accordance with the multi-district provisions of 28 U.S.O. 1407.
Laubach"s widow and personal representative filed this action pursuant to the Florida Wrongful Death Act, sections 768.16-27 of the Florida Statutes. She contends that Atlantica was negligent in several respects, including failing to furnish an airworthy craft, to navigate and operate the plane properly, to train its crew properly, to inspect and maintain the aircraft, and to provide sufficient security to prevent the placement of explosive devices on the airplane. She contends that the Airline"s negligence directly caused her husband"s death, and that she has sustained pain and suffering and economic damages as a result of his premature death. Mrs. Laubach is seeking damages in excess of $2 million from Atlantica. The complaints filed by numerous other plaintiffs have been consolidated herein on the issue of liability.
Factual Background On December 21, 1995, Flight 640 left New York"s LaGuardia Airport bound for Miami with 275 pa.s.sengers and 13 crew members aboard. The first two hours of the flight were uneventful. On its approach to Miami International Airport, there was an explosion in the number two engine and a resulting loss of all flight controls due to severed hydraulic lines. The aircraft crashed, killing all on board.
The cause of the Flight 640 disaster has not been determined, and may never be determined, because much of the aircraft is buried in the Everglades and cannot be recovered. The only evidence of record concerning the cause of the crash is that traces of explosive components commonly found in terrorists" bombs were discovered on engine parts recovered at the crash site.
Standard of Review In considering Atlantica"s motion for summary judgment, this Court must draw all inferences from the evidence in favor of Plaintiffs, the nonmoving parties. First Union Discount Brokerage Services, Inc. v. Milos, 997 F.2d 835 (11th Cir. 1993). Summary judgment is appropriate if the record shows "that there is no genuine issue as to any material fact and that the moving party is ent.i.tled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). However, in order to demonstrate a "genuine" issue of fact, Plaintiffs "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsus.h.i.ta Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, they "must come forward with "specific facts showing that there is a genuine issue for trial."" Id. at 587.
Discussion First, Atlantica correctly notes that the federal government exclusively regulates matters of air safety and flight operations. This federal regulatory scheme was enacted to ensure the safety of all pa.s.sengers by centralizing rule-making authority and promulgating uniform federal airline regulations. Atlantica further points out that the 1978 Airline Deregulation Act includes a preemption provision "prohibiting the States from enforcing any law "relating to rates, routes, or services" of any air carrier." Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992) (finding that this clause preempted state consumer protection law restricting the advertising of airline fares). Atlantica contends that this action involves questions of airline "services," which are controlled by the federal law and therefore are outside the scope of state law. The Court agrees. Because federal law does not provide a private cause of action, Plaintiffs have no remedy. Although this result may seem harsh, this Court has no authority to create such a cause of action; it is a matter for Congress to consider and address.
Moreover, Plaintiffs" claims against the Airline fail for the additional reason that they have not presented any evidence of negligence. While not conclusive, the evidence of record is that the crash of Flight 640 appears to have been caused by an explosive device planted by unknown third parties. There has been no showing of any error of commission or omission on the part of Atlantica that contributed to the planting of such a bomb. It is Plaintiffs" burden to demonstrate such evidence.
Because Plaintiffs have failed to demonstrate a genuine issue of fact as to the essential element of negligence, their claim fails on this ground as well.
WHEREFORE, the Court grants Atlantica"s motion for summary judgment as to all claims raised in the complaint.
Norman T. Schenkel, Judge
CHAPTER 3.
One Giant Step LISA FREMONT STIRRED, CRAWLING THROUGH the cobwebs of sleep, grasping at the fragile tendrils of an early morning dream. Through the fog, she saw herself stretched between Max Wanaker and Sam Truitt, who were playing tug-of-war with her.
"I love you," Max was saying, pulling at one arm.
"But I respect you," Sam Truitt countered, pulling the other arm.
"I need your help!" Max pleaded.
"But your loyalty is to the law," Truitt said.
I want it all, she thought, waking up with a ferocious headache.
She had a breakfast of three Tylenol and black coffee. Max was gone, having left early to meet the lawyers for another session at the FAA, contesting a surprise inspection report.
Lisa had slept restlessly, her mind churning at the prospect of the job interview. She awoke several times, and now another dream came back to her. She and Max were in New York at a Broadway show. While in the office, he was a gruff corporate executive snarling at underlings, but take him to Les Miserables, and he"ll burst into tears the first time Fantine sings, "I Dreamed a Dream."
Maybe that"s why I still care for him. But is it love or a mixture of debt, grat.i.tude, and nostalgia?
Which made her wonder.
If I"m trying to change, if I"m trying to be different from Max, why do this? I want to believe in ethics and fairness and all the flowery words in all those dusty books. Why don"t I? Why can"t I?
She"d gone through so many changes that her life, which had once seemed so simple-should I wear the black fishnet stockings with the see-through toreador"s jacket?-had become incredibly complex. Including the really big questions.
Who am I? What do I believe in?
She didn"t know.
Late last night, they"d ordered Thai takeout and watched a movie. Just like being married. They had made love, but her heart wasn"t in it. It had become a mundane duty. A routine parting of the legs and disengagement of mind from body. Really like being married, she supposed.
Lisa wanted more. She wanted a man she would long for when they were apart, cherish when they were together. Sure, it sounded like soap opera stuff, but she"d had it once, oh so briefly, with Tony.
Lisa proceeded to get dressed, or rather to get dressed and undressed several times. She began with the double-breasted navy blazer. Three of them, actually, spread across her bed. One had natural shoulders and white b.u.t.tons, the second padded shoulders and gold b.u.t.tons, both with three-inch lapels, while the third was collarless.
After modeling them all in the bedroom mirror, she chose the one with gold b.u.t.tons, a nautical flair.
If he hires me, I"ll probably get all the d.a.m.ned admiralty cases. And if he doesn"t, I will have let Max down, something he never did to me.
She stood in front of the mirror, holding the jacket under her chin. The strong, dark color suited her fair complexion and blue eyes. Okay, so they weren"t really blue. They just took on whatever color framed her face. They became emeralds if she was dressed in her Sherwood Forest aerobics outfit, as she called the kelly green tights and leotard. They looked like the shallow, turquoise water off St. Kitts if she wore the light blue silk scarf knotted at her neck. In the mustard business suit she bought on sale at Saks, an instantly regretted purchase, her eyes a.s.sumed a hazel cast.
She held up two blouses, both silk and pearly white, one with a mandarin collar, the other a V-neck. She had a good neck, so why not show it. Of course, under that theory, she should also show her a.s.s.
She tossed the clothing onto the bed, the silk blouse sliding to the floor, the blazer joining a jumble of suits, dresses, and jackets already modeled, critiqued, and discarded. Now she was naked, studying herself in the mirror. It had been ten years. Strange, she looked younger now than she had as an underage dancer -"never say stripper, you"re an exotic dancer"-in her black garter belts, matching thong, and that awful red satin bolero jacket. And the makeup! Thick eyeliner on top and bottom lids, smeared upward to give a catlike look of s.e.xual ferocity, her lips painted a deep crimson.
Who was I then? Who am I now?
"I"m Lisa Fremont," she said to the mirror, extending her right hand to an imaginary interviewer.
"Ah yes, Ms. Fremont," dropping her voice to a masculine timbre. "I"ve reviewed your curriculum vitae, and I must say, you have an impressive background."
She laughed. "You don"t know the half of it, Justice Truitt."
She gave good interview-top of the cla.s.s, a first-rate law review note on the right of privacy, and street-smarts that her Ivy League compet.i.tors couldn"t match-so why was she so nervous? Another interview came back to her. In her last semester at Stanford, she had applied to one of San Francisco"s largest and stuffiest law firms. She"d gone to lunch with the senior partner and two young male a.s.sociates-all suspenders, cuff links, and pearly California teeth. They were at the Big Four, a mahogany mausoleum honoring four railroad tyc.o.o.ns, a place so masculine that testosterone replaces the vermouth in the martinis. The old coot was rambling on about the glory of representing insurance companies, banks, and manufacturers with an unfortunate predilection-his lawyerly term-for producing exploding tires, collapsing ladders, and toxic pharmaceuticals. She listened politely, ignoring the two boy-toy lawyers whose leers suggested they couldn"t wait to bend her over a stack of Corpus Juris Secundum. She wasn"t halfway through her Dungeness crab c.o.c.ktail when the boss patted his worsted wool suit pocket and turned to her apologetically. "It appears I"ve left your curriculum vitae in the office. Could you orally refresh me?"
The two a.s.sociates snorted vichyssoise up their nasal cavities, faces turning the same color as their power burgundy ties.
"No," Lisa answered, politely, "but I have a couple of girlfriends who"d love to."
She didn"t want the job, anyway. Or rather, Max didn"t want her to have the job. He was already talking about the court of appeals job, a great stepping stone to clerking for the Supremes.
Lisa Fremont, clerk on the United States Court of Appeals for the District of Columbia. That had seemed like the top of the world. But now, this ...
After a year clerking on the appeals court, she applied for a job with Samuel Adams Truitt, the newest Justice on the Supreme Court, whose vote Max"s lawyers said they needed if they were to win. Neither Max nor his deep-carpet mouthpieces could help her now. To be a law clerk on the Supreme Court of the United States, you had to earn it.
She studied herself in the mirror. She had long legs with more than a hint of muscle in the calves, a legacy of the dancing. Her stomach was flat and her bottom tight, countess squats in the gym compensating for sitting on her a.s.s the last twelve months in the chambers of Judge Mary Alice O"Brien, a sixty-six-year-old Reagan appointee who sipped bourbon during recess.
Still looking in the mirror, Lisa arched her back and stood, hip shot, an old pose from the club. Her firm, high b.r.e.a.s.t.s were too small for her prior line of work, Lisa had thought, until Sheila, the mother hen and oldest stripper, told her, "It ain"t what you got, honey, it"s what you do with what you got."
From the Tiki Club to the Supreme Court. One small step for a woman, one giant leap for a stripper.
Now, she put on her makeup, a light foundation that covered the sprinkling of freckles across her narrow nose. Her cheekbones, already strong, took on new contours with a light dusting of blush. An almost invisible application of mauve eye shadow and a coral lipstick followed. She"d already blow-dried her short, reddish blonde hair that, like her eyes, changed color in different surroundings, taking on golden red highlights at times, becoming a flaming forest fire in direct sunlight. She"d gone through law school and her one-year clerkship with a shoulder-length layered s.h.a.g. She cut her hair after her visit last spring to Harvard, a week after Professor Sam Truitt"s appointment but before his grueling confirmation hearings. She"d sat in the back of the lecture hall, listening and watching ... and learning. Not about natural law versus positive law-she"d already read Truitt"s articles-but about the man.
The hall had been packed. No Socratic inquiry this day. It was a straight lecture, or rather a performance. The tall, handsome, broad-shouldered professor, a youthful, sandy-haired forty-six-as different from his faculty colleagues as she was from her fellow students bounded across the stage, taking the cla.s.s on a trip, dramatically tracing the history of the law, the entire range of rights and responsibilities from the Code of Hammurabi to modern teenage curfews. Playing several roles, Sam Truitt became Madison and Hamilton tackling federalism, Zola shouting "J"accuse!," John Marshall Harlan dissenting against segregation, and Clarence Darrow pleading for the lives of Leopold and Loeb: "Why did they kill little Bobby Franks? They killed him because they were made that way, and that calls not for hate but for kindness."
Affecting a Boston accent, standing ramrod straight, he became Oliver Wendell Holmes Jr., the magnificent Yankee: "When the people want to do something and I can"t find anything in the Const.i.tution expressly forbidding them, I say, whether I like it or not, G.o.dd.a.m.n it let "em do it!"
He drew raucous laughter as d.i.c.kens"s Mr. b.u.mble, who, having been told that the law presumes a man to control his wife"s actions, responded, "If the law supposes that, the law is an a.s.s, an idiot!"
Near the end, he became w.i.l.l.y Loman, telling his boss, "I put thirty-four years into this firm, Howard, and now I can"t pay my insurance. You can"t eat the orange and throw the peel away." Then he asked his students to consider the moral and legal issues of w.i.l.l.y"s suicide and whether the life insurance company should pay his widow. Before anyone could think it through, he was George in Of Mice and Men, shooting Lennie to spare him from a lifetime of imprisonment, asking what George should be charged with, and what are the moral differences between his actions and those of Dr. Kevorkian?
Cooking a stew of history and law, morality and philosophy, fact and fiction, Truitt mesmerized the students. Here was a professor who was witty and entertaining, profane and profound, charismatic and charming. It was a breathtaking performance, and afterward, the students stood and applauded for several minutes, whistling their approval, stomping their feet, crowding around him, peppering him with questions. Many of the women-Lisa included-desired him. She had to remind herself that this was a job, that Sam Truitt was her mark, and what she had to sell was herself instead of a seventy-five-dollar bottle of carbonated champagne in the Tiki VIP room.
But he was so d.a.m.ned smart and so d.a.m.ned s.e.xy. What a powerful combination. In the tepid tea of academe, Truitt was a bracing shot of vodka on the rocks. Law professor as rock star.
She allowed herself a small fantasy. She was in the library of the Supreme Court, deep in the tall stacks, searching for some obscure precedent among the dusty volumes. She stood on tiptoes and stretched to pull down a volume, but it was too high. Standing behind her, Sam Truitt reached up and plucked the book from the shelf. Their bodies touched. She turned, and his arms slipped around her waist, pulling her close. She rubbed against him, an affectionate cat, and they kissed, a magical kiss that swept her away. Away from her past, from Max ... from reality. She even tried out the name, Lisa Truitt, repeating it silently, then chasing the thought away. How juvenile! Sam Truitt was one of the elite. What would he see in her? Besides, dummy, he"s married.
The day after the lecture, Lisa hung around the student lounge, where several female students were sipping coffee when one gestured toward a tall, short-haired blonde with pouty lips who breezed in, sat down, crossed her long legs, and pulled a cellular phone from her briefcase.
"Guess who"s cutting Truitt"s con law seminar," said one of the women, the apparent leader of the group.
"Teacher"s pet," another answered, a plump young woman in round gla.s.ses. "G.o.d, he likes that Eurotrash, just-back-from-Monaco look. Remember the research a.s.sistant last year. Another shorthaired blonde."
"Why go to cla.s.s," the first one said, "if you can get briefed up close and personal?"
"He does like that lean and hungry look," an Asian woman agreed.
"I"m having fantasies about Sam Bam Truitt," the first woman said, "and they don"t have anything to do with the due process clause."
The other women giggled.
She turned toward Lisa. "We"re going to play the desert island game. Are you in?"
"Sure. What are the rules?"
"We determine the world"s s.e.xiest man by the process of elimination. We start with two men, and you have to choose who you"d rather be stranded with on a desert island. We eliminate the other one and keep going. I"ll begin. John F. Kennedy Jr. and Sam Truitt."
"Ooh, tough one," the plump one said. "Does Truitt get a bonus for pa.s.sing the bar the first time?"
"Up to you. It"s your fantasy."
"I"ll take Sam Truitt," Lisa broke in. "He reminds me of a cross between Harrison Ford and Jeff Bridges."
"No, he"s more wicked," another said. "Like Nick Nolte."