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Date: 12-10-2021
Case Style:
Case Number: 18-ci-1276
Judge: J.R. Scharnd
Court: Circuit Court, Boone County, Kentucky
Plaintiff's Attorney:
Defendant's Attorney: Scott Thomas
Description: Florence, Kentucky employment law attorney represented Plaintiff, who sued his employer for wrongful termination for being fired for refusing to fly into potentially bad weather.
Raymond Justinic, was regularly assigned to pilot corporate aircraft for the Crestview Hills-based company, Columbia Sussex, was asked to fly an insurance adjuster to the Caribbean in September 2017.
Plaintiff's Trial Brief
The Plaintiff, Raymond F. Justinic, by and through counsel and pursuant to the Court’s July 9, 2019 Order Setting for Jury Trial, presents the following Trial Brief:
I. STATEMENT OF THE ACTION
This is an employment action arising out of Mr. Justinic’s work as Chief Pilot/Captain for Airtech. As the Chief Pilot/Captain, Mr. Justinic was responsible for flying a corporate jet owned and/or used by the owners and executives of Columbia Sussex and Ft. Mitchell Construction. As the “pilot in command”, Mr. Justinic was, by law, directly responsible for, and was the final authority as to, the operation of the aircraft.
On September 6, 2017, the island of St. Martin, including a hotel and resort owned by Columbia Sussex, was nearly destroyed by Hurricane Irma. As a result, the owners of Columbia Sussex wanted Mr. Justinic to fly to St. Martin for the purpose of delivering supplies, extracting employees, and/or delivering insurance adjusters and restoration professionals to assess the property damage.
On September 9, 2017 and although St. Martin was not accessible by plane, Mr. Justinic was asked to fly the plane to San Juan, Puerto Rico to await permission to fly to St. Martin. Mr. Justinic refused to go to San Juan on September 9, 2017 and would not commit to flying to San Juan on September 10, 2017 because he was not yet satisfied that the flight could be completed safely. While Mr. Justinic would not firmly commit to the September 10, 2017 flight, he did confirm that he would continue to monitor the weather to assess the feasibility of the proposed September 10, 2017 flight to San Juan.
When Mr. Justinic refused to fly to San Juan on September 9, 2017 and because he would not commit to flying to San Juan on September 10, 2017, Joe Yung, on behalf of Ft. Mitchell Construction and/or Columbia Sussex, ordered Mr. Justinic removed as the pilot of their plane.
Mr. Justinic was formally terminated by Airtech via letter dated September 20, 2017.
Mr. Justinic has asserted the following claims: breach of contract against Airtech, wrongful termination against Airtech, Ft. Mitchell Construction, and Columbia Sussex, and tortious interference with a business relationship against Ft. Mitchell Construction and Columbia Sussex.
Airtech has asserted breach of contract, promissory estoppel, and unjust enrichment claims against Mr. Justinic based on his refusal to fly Ft. Mitchell Construction’s plane on demand and because he refused to pay a portion of the cost to get him rated to fly Ft. Mitchell Construction’s plane.
II. STATEMENT OF THE ISSUES INVOLVED
1. Did Mr. Justinic resign or was he terminated;
2. If Mr. Justinic resigned his job,
a. Did Mr. Justinic resign to take another position; and
b. If Mr. Justinic did resign to take another position, did Airtech suffer damages as a result.
3. If Mr. Justinic was terminated;
a. Was Mr. Justinic terminated for exercising his authority as the pilot in command;
b. If Mr. Justinic was terminated for exercising his authority as the pilot in command, did Columbia Sussex and/or Ft. Mitchell Construction exercise sufficient control over Mr. Justinic’s employment to qualify as “joint employers” of Mr. Justinic;
c. If Columbia Sussex and/or Ft. Mitchell Construction were not “joint employers” of Mr. Justinic, did Columbia Sussex and/or Ft. Mitchell Construction intentionally and improperly interfere with Mr. Justinic’s employment with Airtech;
d. What economic damages has Mr. Justinic sustained from the date of his termination through trial as a result of his termination;
e. What future economic damages will Mr. Justinic sustain as a result of his termination;
f. What is an appropriate sum to award Mr. Justinic for his non-economic/ emotional distress damages;
g. Have any or all of the Defendants acted toward Mr. Justinic with sufficient malice or oppression to warrant punitive damages, and if so, how much should be awarded against each Defendant in punitive damages; and
h. How much should Mr. Justinic be awarded for his reasonable attorney fees and costs.
III. SUMMARY OF THE FACTS
In or around December 2016, Ft. Mitchell Construction purchased a corporate jet for use by the owners and/or executives of Ft. Mitchell Construction, Columbia Sussex and other companies owned by the Yung family. The aircraft that was purchased was a 2006 Bombardier Challenger 600-2B16 with the tail number N224N (hereinafter “N224N”). In conjunction with the purchase of N224N, the Yungs entered into a relationship with Airtech, whereby Airtech was to store, maintain, and manage the plane.
Soon after N224N was purchased, Airtech and the Yungs began the search for a pilot for N224N. After a brief search and interview process, Ray Justinic was offered the position of “Chief Pilot and Captain” via an Offer Letter from the President/Owner of Airtech, Mark Davis. Mr. Justinic was offered an annual salary of $110,000, plus a $5,000 bonus payable at the end of the calendar year. On December 15, 2016, Mr. Justinic signed the Offer Letter.
At the time Mr. Justinic was offered the position, it was understood that he would have to get “rated” to fly this specific type of plane and that the Yungs would ultimately absorb the cost for him to get that rating as well as all other costs associated with his employment. At the insistence of Bill Yung, the patriarch of the Yung family, Mr. Justinic signed an Addendum to the Offer Letter on December 30, 2016, which provided that Mr. Justinic would pay Airtech a pro rata portion of the cost to get him rated to fly N224N if he resigned for another job within 2 years. The Addendum is clear and unambiguous and does not state that Mr. Justinic would have to reimburse Airtech if he was terminated or if he resigned for any other reason. Mr. Justinic went on to get the type rating for N224N in January 2017.
In September 2017, the Caribbean was hit with back-to-back hurricanes - Hurricane Irma (“Irma”) and Hurricane Jose (“Jose”). The Yungs owned and still own the Westin Dawn Beach Resort and Spa on the island of St. Martin. Per the National Hurricane Center, Irma made landfall on St. Martin on September 6, 2017 at UTC 1115 (7:15AM EST) with maximum winds of 155 kts (178 mph) and caused an estimated $1.5 billion in damage on the island. The Westin Dawn Beach Resort and Spa was severely damaged in the hurricane. In fact, the Yungs ultimately filed $175,000,000 in insurance claims as a result of the damage to their hotel/resort. Jose was tracking on a similar path as Irma about 3-4 days behind. On September 10, 2017 at 6:00AM EST, winds associated with Jose were recorded at 95 kts (110 mph) approximately 170 miles north-northeast of San Juan, Puerto Rico.
Around the time that Irma was pummeling St. Martin, Airtech CEO, Mark Davis informed Mr. Justinic that the Yungs wanted him to fly to St. Martin as soon as possible. Mr. Justinic was initially told that the purpose of the trip was to deliver supplies and to evacuate some employees. Mr. Justinic was later told that they also wanted him to transport insurance adjusters to St. Martin to assess the property.
St. Martin’s airport was closed through September 9, 2017 because of Irma and the damage it caused. The airport re-opened on September 10, 2017 in a limited capacity and for humanitarian flights only, and only with advance permission from the government.
Because they could not immediately fly directly into St. Martin, the Yungs, Airtech, and Mr. Justinic started considering different options for possibly getting to St. Martin. Knowing that the Yungs were anxious to get to St. Martin as soon as possible, Mr. Justinic went to the airport on the morning of Saturday, September 9, 2017 to help load supplies onto N224N so that it was ready to go when a final plan was formalized.
At some time on September 9, 2017 and presumably while Mr. Justinic was loading supplies, the Yungs began looking into the possibility of having Mr. Justinic fly to San Juan, Puerto Rico as soon as possible to wait for permission to fly into St. Martin. After spending hours physically loading the plane, Mr. Justinic went home to do some research on the San Juan option. At around 5:00PM on September 9, 2017 and after spending an hour on the phone with Universal Weather & Aviation discussing the weather, including the projected path of Jose, Mr. Justinic called Mark Davis to provide an update. When Mr. Davis did not answer, Mr. Justinic left a voice message summarizing his phone call with Universal and stating that he was not going to San Juan that evening and that going to San Juan the next day was “iffy”. Mr. Justinic ended the message by saying that he would continue to monitor the weather and that he would follow up in the morning. While the weather was “iffy”, tentative plans were made to go to San Juan on September 10 around noon.
When Mr. Davis received Mr. Justinic’s voice message, he relayed that message to Joe Yung. Upon receiving the message on September 9, 2017, Mr. Yung assumed that Mr. Justinic was making excuses to avoid making the trip and decided to have him replaced.
Having not been told of Mr. Yung’s decision, Mr. Justinic got up around 5:00AM on Sunday, September 10, 2017 to monitor the weather and to otherwise prepare for the proposed flight to San Juan. Around 8:30AM, Mr. Justinic attempted to make contact with Joe Yung to discuss the proposed flight, but got no answer. Throughout the morning of September 10, 2017, Mr. Justinic was in regular communication with Mr. Davis, providing updates on the weather and trying to confirm flight plans. At 9:56AM, having not received confirmation from Joe Yung regarding the proposed flight, Mr. Justinic made the decision to move the flight to September 11. Mr. Justinic was subsequently told of the Yungs’ decision to have him replaced as pilot.
On September 20, 2017, Mr. Justinic received a letter from Airtech’s attorney formally informing him that his employment was terminated. In the termination letter, Airtech stated that Mr. Justinic’s refusal to fly to San Juan was unjustified and constituted abandonment of his job. The letter also asked Mr. Justinic to reimburse Airtech a prorated portion of the cost of his training.
When Mr. Justinic did not immediately reimburse Airtech, Airtech filed the present lawsuit, alleging, in part, that Mr. Justinic’s refusal to reimburse Airtech was a breach of their contract. Alternatively, Airtech has asserted claims of promissory estoppel and unjust enrichment.
Mr. Justinic filed a counterclaim against Airtech for wrongful termination. Mr. Justinic subsequently filed a lawsuit against Ft. Mitchell Construction and Columbia Sussex, in which he asserts claims for wrongful termination and intentional interference with a business relationship.
IV. ITEMIZED LIST OF CLAIMED SPECIAL DAMAGES
1. Lost Wages and Benefits $ 371,442.31
Total lost salary/bonuses from September 8, 2017 [Date of Termination] through December 4, 2020 [Scheduled End of Trial].
2. Pre and Post-Judgment Interest
Plaintiff is also requesting emotional distress damages, punitive damages, and reimbursement for his attorney fees and costs.
V. APPLICABLE PRINCIPLES OF LAW
1. As the pilot in command, Mr. Justinic had exclusive authority to determine whether or not to make the proposed flight.
In Kentucky, pilots are required to comply with FAA rules. KRS § 183.100. Pursuant to FAA rules, Mr. Justinic, as the “pilot in command”, had final authority regarding the operation of N224N. See, 14 CFR § 91.3. Also, under FAA rules, Mr. Justinic was prohibited from
operating N224N in a careless or reckless manner so as to endanger the life or property of another. See, 14 CFR § 91.13. Therefore, Mr. Justinic had a legal obligation to make sure that it was safe to fly and had an obligation to ground the plane if he was not satisfied that it was safe to fly.
2. It is against public policy to terminate a pilot for exercising his lawful authority as the pilot in command.
In Kentucky, it is against public policy for an employer to terminate an employee: (a) for refusing to violate a law in the course of his employment; or (b) for exercising a right conferred by well-established legislative enactment. Grzyb v. Evans, 700 S.W.2d 399, 402 (Ky. 1985). In
the present case, both exceptions to the at-will doctrine apply, since Mr. Justinic was refusing to operate N224N in a careless or reckless manner and because Mr. Justinic was acting within his authority as the pilot in command.
3. Ft. Mitchell Construction and/or Columbia Sussex, along with Airtech, are liable for the wrongful termination of Mr. Justinic under the joint-employer doctrine.
Under the joint-employer doctrine, an entity that is not a plaintiff’s formal employer may be treated as the plaintiff’s employer for purposes of employment laws if that entity maintains sufficient control over the plaintiff’s employment. See, Sanford v. Main St. Baptist Church
Manor, Inc., 2007 U.S. Dist. LEXIS 39453 (E.D.Ky 2007). Although Airtech was Mr.
Justinic’s formal employer, Ft. Mitchell Construction and/or Columbia Sussex maintained sufficient control over Mr. Justinic’s employment to be deemed joint employers under the joint- employer doctrine.
4. If Ft. Mitchell Construction and/or Columbia Sussex were not Mr. Justinic’s employer, one or both of them are liable for intentionally and improperly interfering with Mr. Justinic’s employment relationship with Airtech.
Ft. Mitchell Construction and/or Columbia Sussex intentionally interfered with Mr.
Justinic’s employment with Airtech when they had Mr. Justinic removed as the pilot of N224N. Such interference is actionable if the motive behind the interference is improper. Eastern Ky.
Resources v. Arnett, 892 S.W.2d 617, 619 (Ky. App. 1995). Factors to be considered in
determining whether the actor’s conduct was improper are as follows: (a) the nature of the actor’s conduct; (b) the actor’s motive; (c) the interests of the other with which the actor’s conduct interferes; (d) the interests sought to be advanced by the actor; (e) the social interests in protecting the freedom of the action of the actor and the contractual interests of the other; (f) the proximity or remoteness of the actor’s conduct to the interference; and (g) the relations between the parties. Id.
Ft. Mitchell Construction and/or Columbia Sussex improperly had Mr. Justinic removed as the Chief Pilot/Captain of N224N because Mr. Justinic exercised his obligation and authority as the pilot in command.
5. Mr. Justinic is entitled to damages for back pay and front pay.
A victim of wrongful termination is entitled to recover damages, including back pay from the date of his termination through adjudication and reinstatement or front pay for damages after adjudication. Macglashan v. ABS LINCS KY, Inc., 448 S.W.3d 792 (Ky. 2014). It is incumbent
upon the trial court to consider if front pay as a substitute to reinstatement. Id.
6. Mr. Justinic is entitled to emotional distress damages.
Contrary to Defendants’ contentions, Mr. Justinic is not required to present expert testimony to substantiate his claim for emotional distress damages. Ind. Ins. Co. v. Demetre, 527
S.W.3d 12, 35 (Ky. 2017).
7. Mr. Justinic is entitled to a punitive damages instruction.
Punitive damages are recoverable in a wrongful termination case. Northeast Health
Mgmt, Inc. v. Cotton, 56 S.W.3d 440, 449 (Ky. App. 2001). Punitive damages are recoverable
upon proof, by clear and convincing evidence, that the defendant acted toward the plaintiff with oppression, fraud or malice. Id. at 448.
8. Mr. Justinic is entitled to judgment as a matter of law on Airtech’s claims.
a. Mr. Justinic was not contractually obligated to pay Airtech a portion of the cost to get him rated to fly N224N.
The construction and interpretation of a contract, including questions regarding ambiguity, are questions of law to be decided by the court, and where the written contract is clear and unambiguous, the contract is to be strictly enforced according to its terms which are to be interpreted by assigning language to its ordinary meaning. Allen v. Lawyers Mut. Ins. Co., 216
S.W.3d 657, 659 (Ky. App. 2007).
Because the contract provides that Mr. Justinic was required to pay a portion of the costs of getting him rated to fly N224N only if he resigned for another job and because Mr. Justinic did not resign from Airtech for another job, he is entitled to judgment as a matter of law on Airtech’s breach of contract claim.
b. Airtech has not established any damages
A party alleging a breach of contract must establish damages flowing from the breach of contract. Barnett v. Mercy Health Partners-Lourdes, Inc., 233 S.W.3d 723, 727 (Ky. App. 2007).
Airtech’s alleged damages are from the cost of having Mr. Justinic rated to fly N224N and the cost of hiring a replacement for Mr. Justinic after he was removed as the pilot of N224N. Because Airtech has no proof of such damages, Airtech cannot recover damages for the alleged breach of contract.
c. Mr. Justinic is entitled to judgment as a matter of law on Airtech’s equitable claims.
There was a written agreement between Airtech and Mr. Justinic. Promissory estoppel and unjust enrichment cannot be the basis for recovery when it concerns the same performance contemplated under a written contract. Tractor & Farm Supply v. Ford New Holland, 898 F.
Supp. 1198, 1205 (W.D.Ky 1995); Furlong Dev. Co., LLC v. Georgetown-Scott Cnty. Planning
& Zoning Comm’n, 504 S.W.3d 34, 40 (Ky. 2016). Therefore, Mr. Justinic is entitled to
judgment as a matter of law on Airtech’s promissory estoppel and unjust enrichment claims.
Even if Airtech were able to pursue such claims, equity would not demand payments to Airtech.
Outcome: Verdict in favor of Defendant on his counterclaim for $1.9 million.
Plaintiff's Experts:
Defendant's Experts:
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