Case: 17-60290      Document: 00514552946         Page: 1    Date Filed: 07/12/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                      No. 17-60290                               FILED
                                                                             July 12, 2018
                                                                            Lyle W. Cayce
WACHOB LEASING COMPANY, INCORPORATED,                                            Clerk

              Plaintiff - Appellant

v.

GULPORT AVIATION PARTNERS, L.L.C., doing business as Million Air
Gulfport-Biloxi; UNITED STATES OF AMERICA,

              Defendants - Appellees


                  Appeals from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:15-CV-237


Before HIGGINBOTHAM, SMITH, and CLEMENT Circuit Judges.
PER CURIAM:*
       This case is about a damaged aircraft and the appropriate measure of
damages under Mississippi law. Plaintiff Wachob Leasing Company, Inc.
(“Wachob”) owned a 2007 Cessna Citation 680 Sovereign aircraft, which was
parked at the Gulfport-Biloxi International Airport at a facility owned and
operated by Defendant Gulfport Aviation Partners, L.L.C., d/b/a Million Air
Gulfport-Biloxi (“Million Air”). In April 2014, Million Air personnel directed a
helicopter, operated by the Mississippi Army Reserve National Guard, to park


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 17-60290

at Million Air’s facility. While taxiing, the helicopter’s rotor blades struck a
light pole, and the debris damaged Wachob’s aircraft. At the time of the
accident, Wachob’s aircraft had a market value between $7.7 million and $8.5
million. 1 After the accident, Wachob turned to Cessna for repair or replacement
options and, after considering the projected repair costs and the unavailability
of a suitable preowned aircraft, purchased a new Citation 680 Sovereign with
the same ten-seat configuration at a net cost of $13.2 million.
       Wachob then sued Million Air and the Government, asserting bailment
and negligence claims against Million Air and a negligence claim against the
Government pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§ 2671 et seq. Wachob sought compensatory damages for, among other things,
the cost of the replacement aircraft. The Government moved for partial
summary judgment to limit Wachob’s recovery to Mississippi’s so-called “before
and after” rule—i.e., damages equal pre-accident fair market value of the
property at issue less its salvage value. The court granted the motion.
       Thereafter, but before trial, Million Air and the Government filed a
Stipulation of Liability (“Stipulation”), conceding liability to Wachob “for all
legally recoverable damages” and agreeing that the Government would pay
80% of the judgment and Million Air would pay 20%. The court adopted the
Stipulation over Wachob’s objections.
       A jury determined the pre-accident fair market value of the aircraft to
be $7.8 million and the salvage value to be $2.7 million. Accordingly, the court
awarded Wachob $5.1 million against Million Air and the Government. The
Government moved to amend the judgment to specify “the amount owed by



       1 Wachob purchased the aircraft because it was lightweight and could operate at small
airports with short runways. A Cessna Citation 680 Sovereign ordinarily seats eight or nine
people; however, Wachob ordered its aircraft to seat ten passengers.
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                                       No. 17-60290

each Defendant” and requested that the court assign 80% of the judgment to
the Government and 20% to Million Air, which the court granted over Wachob’s
opposition. Wachob timely appeals, arguing that the district court erred in
applying the “before and after” rule to limit Wachob’s recovery. 2
       We review de novo the district court’s decision to grant partial summary
judgment on the appropriate measure of damages. 3 Mississippi law generally
recognizes two methods of determining damages to personal property. 4 “When
property is repairable, fair compensation encompasses the reasonable costs of
repair plus the depreciation in fair market value of the property caused by the
accident, even with the repairs.” 5 “When property . . . is so badly damaged that
the cost of repair exceeds its fair market value before the accident—a ‘total
loss’—courts apply the ‘before and after’ rule: Damages equal the fair market
value of the [property] before the [accident] less its fair market value
immediately thereafter.” 6
       Here, the district court determined that the cost of repairs to Wachob’s
aircraft exceeded its fair market value, and thus applied the “before and after”
rule. Wachob acknowledges the “before and after” rule but insists that it is



       2  Wachob additionally argues that the district court erred when it apportioned Million
Air’s liability in the absence of any finding of fact by the jury. Wachob relies on Section 85–
5–7(5) of the Mississippi Code, which provides that “[i]n actions involving joint tort-feasors,
the trier of fact shall determine the percentage of fault for each party alleged to be at fault
without regard to whether the joint tort-feasor is immune from damages.” MISS. CODE ANN.
§ 85–5–7(5). Wachob objected to the district court’s adoption of the Stipulation; however,
Wachob cabined those objections to prejudgment interest. Wachob therefore failed to make
its argument concerning Section 85–5–7(5) of the Mississippi Code below, thereby waiving
the argument on appeal. See, e.g., Celanese Corp. v. Martin K. Eby Constr. Co., 

,
531 (5th Cir. 2010).
        3 Taita Chem. Co. v. Westlake Styrene Corp., 

, 385 (5th Cir. 2001); see also

Salve Regina Coll. v. Russell, 

, 231 (1991) (explaining that this Court should
review “de novo a district court’s determination of state law”).
        4 Coursey v. Broadhurst, 

, 344 (5th Cir. 1989).
        5 

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inapplicable. Wachob claims that the “question actually at issue” is “using
replacement cost to measure damages to unique or unusual property, for which
there may be no market, or for which market value does not accurately reflect
the value to the plaintiff.” Contending that its aircraft is such property,
Wachob relies on Bell, 7 State Stove, 8 Louisville & N. R. Co., 9 and Austin. 10
Wachob’s case, however, is not like those cases. In Bell, the Mississippi
Supreme Court did not utilize replacement cost as the measure of damages. 11
In addition, the properties at issue in State Stove, Louisville & N. R. Co., and
Austin—clothing apparel or household goods, an oil painting, and architectural
drawings, respectively—are not of the same ilk as Wachob’s aircraft. The
district court therefore did not err in deploying the “before and after” rule.
       AFFIRMED.




       7  Bell v. First Columbus Nat’l Bank, 

, 970 (Miss. 1986) (allowing bank
to “proceed upon a reasonable cost of replacement and repair theory” “where replacement of
damaged or missing fixtures with new items is the only practicable means of restoring the
facility to a valuable, marketable condition”).
        8 State Stove Mfg. Co. v. Hodges, 

, 124–25 (Miss. 1966) (explaining that

damages to the owner’s wearing apparel or household goods destroyed in a home explosion
may include “an estimate of replacement costs” along with other factors).
        9 Louisville & N. R. Co. v. Stewart, 

, 394 (Miss. 1901) (concluding that proper

measure of damages regarding family portraits was not fair market value, “since such articles
have no market value, but . . . the actual value to him who owns the portraits, taking into
account the cost, the practicability and expense of replacing it, and such other considerations
as in the particular case affect its value to the owner”) (internal quotation marks omitted).
        10 Austin v. Millspaugh & Co., 

, 306 (Miss. 1907) (finding that because lost

plans and specifications had no market value, “the rule of damages seems then to be its value
to the plaintiff”) (internal quotation marks omitted).
        11 

(adopting approach set forth by the North Dakota Supreme

Court—“either diminution in value or cost of repair is the appropriate measure of damages
for waste”) (quoting Meyer v. Hansen, 

, 396–97 (N.D. 1985)).
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