Ind. SC: Wrongful death suit should be tried in British Columbia

Jessica M. Karmasek Aug. 2, 2012, 1:10pm


INDIANAPOLIS (Legal Newsline) - The Indiana Supreme Court said in a ruling Monday that British Columbia is an "adequate" forum for a lawsuit filed over a bizarre helicopter accident.

Plaintiffs Dalmas Maurice Otieno Anyango and Jane Tinna Agola Otieno sued Bell Helicopter Textron Inc., Rolls-Royce Corp. and Honeywell International Inc. in Indiana's Marion County Superior Court for the wrongful death of their son, 20-year-old Isaiah Omondi Otieno.

Isaiah, a Kenyan citizen and student at the College of the Rockies in Cranbrook, British Columbia, was mailing a letter from Canada to his parents in Kenya when a helicopter flying overhead lost power.

The helicopter crashed to the ground and killed him, along with the helicopter's pilot and two passengers.

In their suit, the Otienos sought to recover on theories of strict liability and negligence based on the design and manufacture of the helicopter engine and engine component parts, and on the failure to certify and recommend safe and proper replacement parts.

Bell was the manufacturer of the helicopter. Its engine was manufactured in Indiana by the Allison Division of General Motors, which sold its assets to a company that was later purchased by Rolls-Royce. The helicopter's engine components were designed at Honeywell's facility in Indiana and then manufactured in North Carolina.

Representatives of the three other people killed in the accident sued the defendants and others in British Columbia on similar theories.

Soon after, the companies filed both a motion to dismiss the Otienos' suit and a stipulation that they would submit to the personal jurisdiction of and waive any statute of limitations defenses in British Columbia.

The Marion Superior Court granted the defendants' motion to dismiss in favor of British Columbia as the more convenient forum.

The Otienos appealed, arguing that the court abused its discretion in granting the motion to dismiss based on forum non conveniens.

Specifically, they challenged the court's finding that British Columbia provided an adequate forum to pursue their cause of action.

The Indiana Court of Appeals affirmed the lower court's dismissal.

The Otienos then sought transfer to the state Supreme Court, which the Court granted.

On appeal, the companies argued that the case should be litigated in British Columbia because the events giving rise to the suit occurred there and a parallel suit is pending there.

The Otienos contended that the bulk of the evidence related to their product-liability action is in the United States, and in Indiana in particular.

Moreover, they argued that it would not be "just" to require them to litigate this case in British Columbia because their action would not be economically viable there.

"In sum, this is not so much a debate over the availability or adequacy of the British Columbia courts as it is a debate over the substantive law that would govern the Otienos' recovery in the event they were able to establish liability," Justice Frank Sullivan Jr. wrote in the Court's 14-page opinion.

"British Columbia law allows the Otienos to pursue their wrongful-death cause of action and, as they admit, to recover some substantive damages, although we acknowledge that they may be nominal in value," continued Sullivan, who is leaving the state's high court to become a faculty member at Indiana University's law school.

"There appears no danger that the Otienos would be treated unfairly or be deprived of their remedy."

From Legal Newsline: Reach Jessica Karmasek by email at

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