Court Revives One Suit From Brazil Plane Crash

     (CN) – A mother can sue in Florida over the worst accident in Brazilian aviation history, the 11th Circuit ruled, finding that the District Court improperly dismissed her suit after lumping it along with the claims of other victims’ family members. “The manufacturers contend that these ‘inconsequential procedural differences’ make no difference, but we disagree,” the ruling states.




     The Atlanta-based federal appeals panel found that the remaining claims, including those filed by the family of the sole American killed in the 2007 TAM Linhas Aéreas plane crash, were properly dismissed.
     TAM settled with almost all of the family members in exchange for a release from liability.
     The widow of one of the victims was among those who settled with the airline and the San Francisco-based airline leasing company, Pegasus Aviation IV, but the victim’s mother, Anna Finzsch, filed suit separately in July 2009 against TAM and the plane manufacturers.
     A federal judge in Florida’s Southern District ruled to consolidate Finzsch’s complaint with the claims of 76 other family members, filed against the manufacturers after the TAM settlement in December 2008. The court then dismissed the consolidated action, finding that the matter was best handled in a Brazilian court.
     In a ruling Monday, a three-judge appellate panel considered whether the claims were properly dismissed by separating the family members into three groups: the families in Brazil, the family of the lone U.S. citizen and Finzsch.
     The court found that Brazil is an appropriate forum for most of the plaintiffs since the evidence and many witnesses are in the country, but it found that Finzsch did not receive due process since her case was dismissed before she even had a chance to file a summons and complaint on the manufacturer.
     “We conclude that the district court abused its discretion when it sua sponte dismissed Finzsch’s complaint without first affording her notice or an opportunity to be heard,” Judge William Pryor wrote for the court. “The district court dismissed Finzsch’s complaint before she had served a summons and complaint on the manufacturers, and before the manufacturers had moved to dismiss her complaint. The manufacturers contend that these ‘inconsequential procedural differences’ make no difference, but we disagree.”
     On July 17, 2007, a plane overran a rain-soaked São Paulo runway and crashed into a warehouse and fueling station, killing 187 on board and 12 on the ground.
     An ensuing investigation resulted in the indictment of 10 Brazilian citizens involved in the accident, including two employees of TAM, five employees of the Brazilian equivalent to the Federal Aviation Administration, and three employees from the public corporation that operates the airports of Brazil.

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