ESTATE OF Robin Grant KENNEDY, Plaintiff-Appellee, v. BELL HELICOPTER TEXTRON, INC., Defendant-Appellant, and Garlick Helicopters, Inc., Defendant, 283 F.3d 1107

Opinion by Judge WOOD, Jr.; Dissent by Judge PAEZ WOOD, JR., Circuit Judge. Robin Grant Kennedy was killed on November 5, 1996, when the helicopter he was piloting came apart in mid-air and crashed. At the time of the crash, Kennedy was using the helicopter for aerial logging in Washington state. The structural failure in the helicopter was caused by a fatigue crack that developed in a component of the tail boom known as the left forward vertical fin spar.

Kennedy’s estate (“Appellee”) filed this diversity products liability lawsuit in the United States District Court for the Western District of Washington against Appellant Bell Helicopter Textron, Inc. (“Bell Helicopter”) and Garlick Helicopters, Inc. (“Garlick”). The parties filed cross-motions for

summary judgment. After oral argument on all the motions, the district court issued a ruling on February 14, 2000, in which it granted Garlick’s motion for

summary judgment and dismissed all claims against Garlick based on a finding that Garlick was not the manufacturer of the helicopter and, as a result, could not be held liable under Washington products liability law. Bell Helicopter argued that it was entitled to

summary judgment because all of the claims against it were barred by the General Aviation Revitalization Act of 1994 (“GARA”), Pub. L. No. 103-298, 108 Stat. 1552 (1994), reprinted in Note, 49 U.S.C. § 40101, which establishes an eighteen-year statute of repose in certain suits involving general aviation aircraft. The district court rejected Bell Helicopter’s GARA defense. The district court then granted partial

summary judgment in favor of Appellee, finding that Bell Helicopter was the manufacturer of the helicopter and as such had a duty under Washington law to warn of design defects. The district court held that genuine issues of material fact existed as to whether Bell Helicopter did in fact fail to warn and whether the helicopter had a design defect that proximately caused Kennedy’s accident.

Despite the lack of a final judgment, Bell Helicopter filed a Notice of Appeal on March 10, 2000, challenging Garlick’s dismissal, the district court’s decision rejecting Bell Helicopter’s GARA statute of repose defense, and the determination that it owed a duty to warn of design defects. The appeal as to Garlick was dismissed by consent of the parties. Appellee filed a motion to dismiss the remaining issues on appeal for lack of appellate jurisdiction. Bell Helicopter asserts that appellate jurisdiction exists for its GARA statute of repose claim under the collateral order doctrine.

Bell Helicopter then invokes the doctrine of pendant appellate jurisdiction as grounds to support its appeal on the state law duty to warn issue. As we must, we begin our analysis with an examination of the existence of appellate jurisdiction. “Section 1291 of the Judicial Code confines appeals as of right to those from ‘final decisions of the district courts.’ ” Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 865, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) (quoting 28 U.S.C. § 1291).

The collateral order doctrine arises from a “practical construction” of 28 U.S.C. § 1291’s final decision rule and establishes “a narrow class of decisions that do not terminate the litigation, but must, in the interest of achieving a healthy legal system nonetheless be treated as final.” Digital Equip. Corp., 511 U.S. at 867, 114 S.Ct. 1992 (internal quotations and citations omitted).

In order to fall into this narrow class of immediately appealable orders, a district court decision must be conclusive, resolve important questions completely separate from the merits, and render such important questions effectively unreviewable on appeal from a final judgment in the underlying action. Id. In the present case it is clear that the first two factors are met.

The district court’s order is conclusive, and, like qualified immunity accorded to government officials, the applicability of the GARA statute of repose is an important question which is resolved completely separate from the merits of the litigation. We recognize that the Supreme Court has characterized the collateral order doctrine as a narrow exception which should “never be allowed to swallow the general rule that a party is entitled to a single appeal to be deferred until final judgment has been entered, in which claims of district court error at any stage of the litigation may be ventilated.” Digital Equip.

Corp., 511 U.S. at 868, 114 S.Ct. 1992 (internal citations omitted). However, even under a stringent approach, see id. (describing the conditions for collateral order doctrine as stringent), we believe that the GARA statute of repose meets the third condition as well because it creates an explicit statutory right not to stand trial which would be irretrievably lost should Bell Helicopter be forced to defend itself in a full trial.

The deprivation of the right not to be tried satisfies the third collateral order condition when the right is created by an explicit statutory or constitutional guarantee that trial will not occur. Midland Asphalt Corp. v. United States, 489 U.S. 794, 800-01, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989); see also Digital Equip. Corp., 511 U.S. at 874, 114 S.Ct. 1992. The plain language of GARA provides, absent exceptions not at issue in this appeal, “no civil action ... may be brought ... if the accident occurred — (1) after the applicable limitation period.... ” GARA § 2(a).

As another panel of this court recently noted in considering the GARA statute of repose, Congress decided that the economic health of the general aviation aircraft manufacturing industry depended on lifting the requirement that manufacturers abide the possibility of litigation for the indefinite future when they sell an airplane. It, therefore, generally limited their exposure to accidents which occur within 18 years of the first delivery of the airplane. GARA §§ 2(a), 3. Lyon v. Agusta S.P.A., 252 F.3d 1078, 1089 (9th Cir.2001), cert. denied, — U.S.-, 122 S.Ct. 809, 151 L.Ed.2d 694 (2002)(emphasis added).

Appellee equates the language in GARA § 2(

a) with a statute of limitations. It is well-established that interlocutory appeals are not available to address statute of limitations issues because a statute of limitations does not give rise to a right not to stand trial, but rather creates a safeguard against unfair verdicts from delinquent suits. United States v. Rossman, 940 F.2d 535, 536 (9th Cir.1991); see also Digital Equip.

Corp., 511 U.S. at 873, 114 S.Ct. 1992 (“We have, after all, acknowledged that virtually every right that could be enforced appropriately by pretrial dismissal might loosely be described as conferring a ‘right not to stand trial.’ Allowing immediate appeals to vindicate every such right would move § 1291 aside for claims ... that the statute of limitations has run ....” (citations omitted)).

However, as this circuit recognized in Lyon, “GARA is not a statute of limitations,” but rather a statute of repose, and “[t]he focus of a statute of repose is entirely different from the focus of a statute of limitations.” Lyon, 252 F.3d at 1086. “[A] statute of repose proceeds on the basis that it is unfair to make somebody defend an action long after something was done or some product was sold. It declares that nobody should be liable at all after a certain amount of time has passed, and that it is unjust to allow an action to proceed after that.” Id.

It is clear that an essential aspect of the GARA statute of repose is the right to be free from the burdens of trial. An appeal from an adverse decision of the district court by a party claiming GARA protection falls within the collateral order doctrine, and we therefore have jurisdiction to consider Bell Helicopter’s appeal. Having satisfied ourselves that appellate jurisdiction exists, we turn our analysis to the applicability of the GARA statute of repose. Because the district court decided this issue on a motion for

summary judgment, we review de novo. Botosan v. Paul McNally Realty, 216 F.3d 827, 830 (9th Cir.2000). The helicopter at issue in this case was a TH-1L Navy surplus rotor craft. The TH-1L was a part of the UH-1 or “Huey” series of military helicopters. The helicopter in this case was originally manufactured by Bell Helicopter and was delivered to the United States Navy in 1970. In 1984, the Navy sold the helicopter as military surplus for civilian use. Thereafter, it was owned by a series of private entities.

Under GARA, absent exceptions not at issue in this appeal, no civil action for damages for death or injury to persons or damage to property arising out of an accident involving a general aviation aircraft may be brought against the manufacturer of the aircraft ... in its capacity as manufacturer if the accident occurred— (1) after the applicable limitation period beginning on-— (

A) the date of delivery of the aircraft to its first purchaser or lessee, if delivered directly from the manufacturer; or (

B) the date of first delivery of the aircraft to a person engaged in the business of selling or leasing such aircraft; .... GARA § 2(a).

For GARA purposes, “the term ‘limitation period’ means 18 years with respect to general aviation aircraft.” GARA § 3(3). [T]he term “general aviation aircraft” means any aircraft for which a type eertificáte or an airworthiness certificate has been issued by the Administrator of the Federal Aviation Administration, which, at the time such certificate was originally issued, had a maximum seating capacity of fewer than 20 passengers, and which was not, at the time of the accident, engaged in scheduled passenger-carrying operations.... GARA § 2(c).

The dispute in the present case concerns the event which triggers the running of the GARA limitation period. Bell Helicopter asserts that it is entitled to

summary judgment because twenty-six years elapsed between its delivery of the aircraft to the Navy and Kennedy’s crash. Appellee contends GARA’s eighteen-year period did not begin to run until 1986, when the helicopter was first type certified and received its first airworthiness certificate. Because the helicopter began its service as a military aircraft, it was not at that time a general aviation aircraft, but rather a “public aircraft” which is defined to include aircraft “used only for the United States Government.” 49 U.S.C. § 40102(a)(37).

As such, the helicopter was not required to have either a type certificate or an airworthiness certificate. Appellee correctly asserts that GARA provides a statute of repose against civil actions for damages involving general aviation aircraft. It is undisputed that, at the time of the accident, the helicopter at issue was a general aviation aircraft as defined by GARA. Therefore, the analysis turns to an examination of the term “the aircraft” as used in GARA § 2(a)(1)(A) & (B).

Ap-pellee contends that the term “the aircraft” means “the general aviation aircraft.” Therefore, Appellee argues, the period of repose only begins to run on military surplus aircraft at the time at which those aircraft receive type and airworthiness certificates and thereby become general aviation aircraft. The plain language of GARA, however, supports Bell Helicopter’s position that the limitations period is triggered by the initial delivery of the aircraft, even if the aircraft cannot be considered a general aviation aircraft at that time. GARA § 2(a)(1)(

A) refers only to delivery of the aircraft, not delivery of the general aviation aircraft. Under GARA § 3(1), the term “aircraft” is defined broadly as “any contrivance invented, used, or designed to navigate, or fly in, the air.” GARA § 3(1) (cross-referencing 49 U.S.C. § 40102(a)(6)). Furthermore, Ap-pellee’s contention that an aircraft must meet the definition of a general aviation aircraft before the statute of repose begins to run is inconsistent with the express provisions of GARA.

Under GARA, an aircraft cannot fulfill the definition of general aviation aircraft until an accident occurs because one condition which must be met in order for an aircraft to qualify as a general aviation aircraft is that it “was not, at the time of the accident, engaged in scheduled passenger-carrying operations as defined under [Federal Aviation Act regulations].” GARA § 2(c) (emphasis added). The helicopter at issue in this case was delivered by Bell Helicopter to its first purchaser, the U.S. Navy, in 1970.

Therefore, the GARA limitations period had passed by the time of Kennedy’s crash in 1996, and Appellee’s claims are barred. Because we find Appellee’s claims are barred by GARA’s statute of repose, we need not address the district court’s finding that Bell Helicopter is the “manufacturer” under Washington products liability law and therefore owed a duty to warn of design defects. The district court’s decision denying Bell Helicopter’s motion for

summary judgment based on the GARA statute of repose is reversed. REVERSED. . In the district court, Appellee argued that this case fell under an exception set out in GARA § 2(b), and as a result, Bell Helicopter could not claim GARA protection. The district court granted Bell Helicopter’s motion for

summary judgment on this issue, holding that Appellee failed to plead its claim with sufficient specificity as required by GARA. However, the district court stated that Appel-lee could move to amend its complaint to correct this deficiency if appropriate, noting that its grant of

summary judgment on this issue was without prejudice. The record indicates that Appellee did not make a motion to amend its complaint in the district court. Ap-pellee has not appealed from this district court ruling or asked the appellate court to remand the matter to allow them to replead, so we will not address the applicability of any GARA § 2(

b) exception.