Carolina Industrial Products, Inc. v. Learjet, Inc. (189 F. Supp. 2d 1147, 2001)

United States District Court for the District of Kansas 2001-12-18

Citations

Full opinion text

MEMORANDUM & ORDER

LUNGSTRUM, District Judge.

Before the court are defendant Learjet Inc.’s (“Learjet”) summary judgment motion (Doc. 80), Learjet’s supplemental motion for summary judgment (Doc. 166), defendant Raytheon Aircraft Services, Inc.’s (“Raytheon”) summary judgment motion (Doc. 172), defendant National Union Fire Insurance of Pittsburgh’s (“National Union”) motion for summary judgment (Doc. 164) and Carolina Industrial Products’ (“Carolina Products”) motion for partial summary judgment (Doc. 169). The motions are granted in part and denied in part as follows: summary judgment is granted to Learjet with respect to Counts One through Seven; summary judgment is granted to Raytheon with respect to Counts Ten and Twelve; summary judgment is granted to Raytheon in part with respect to Counts Eleven and Thirteen in that the plaintiffs may only recover damages for the repair of damages to N825D caused by the February 2000 landing accident; summary judgment is granted to National Union, in part, with respect to Counts Fourteen and Fifteen in that the court finds that National Union did not breach the insurance contract by not paying under the “total loss” provision of the policy; summary judgment is granted to National Union with respect to Count Fifteen; and the plaintiffs’ partial summary judgment motion is denied.

1. Statement of facts

Carolina Products, J.W. Equities, L.L.C. (“J.W.Equities”) and Joseph When filed this action against defendants Learjet, Raytheon and National Union. The lawsuit is the outgrowth of a dispute between the parties concerning repairs to an aircraft owned by Carolina Products and operated by J.W. Equities. The following facts are uncontroverted:

Learjet manufactured airplane model 25D, serial number 212 (“25D-212”) in 1976 and model 25D, serial number 263 (“25D-263”) in 1979. 25D-212 was damaged in a crash in 1985 and 25D-263 was damaged in a tornado in 1991. 25D-263 was determined to be a “total loss” by the insurer of the aircraft and was removed from Learjet’s list of active aircraft. Ma-ruice Houvis purchased 25D-263 and the fuselage of 25D-212 and rebuilt or repaired 25D-263 with some or all of the components of the fuselage of 25D-212. Mr. Hpuvis hired a Federal Aviation Administration (“FAA”) Designated Engineer Representative (“DER”), Harold Kosola, to confirm that the replacement of the fuselage complied with FAA regulations. Mr. Kosola issued a report concluding that “[t]he replacement of the damaged fuselage of Lear model 25D, S/N 263 by using an Airworthy Fuselage from Lear model 25D, S/N 212 is structurally acceptable” and an FAA Form 8110-3 indicating that the fuselage replacement was in compliance with FAA regulations. In May 1994, Carolina Products purchased the airplane, registered as N825D and bearing the serial number 263. When Carolina Products purchased the plane, Joseph Wilen and other representatives of Carolina Products knew that the fuselage had been replaced.

Before purchasing the plane, Carolina Products hired Raytheon to complete work on N825D, which the plaintiffs allege in the pretrial order “included complete review and determination of the adequacy of all log book entries and the compliance with all airworthiness directives and service bulletins applicable to the aircraft.” The plaintiffs allege that Raytheon breached its agreement with the plaintiffs by failing to warn the plaintiffs that the Learjet Service Bulletin 23/24/25-340, recommending replacement of the landing gear hydraulic solenoid valve, had not been followed. Raytheon disputes the plaintiffs’ characterization of the work that was to be performed and argues that Raytheon was not obligated to determine whether the aircraft was in compliance with all service bulletins.

After Carolina Products purchased N825D, Raytheon performed, on several occasions, work related to the maintenance of the airplane. In 1994, Raytheon performed six and twelve-month inspections of N825D. The plaintiffs assert that these inspections required compliance with Learjet recommended service bulletins and that Raytheon did not identify that N825D was not in compliance with Learjet Service Bulletin 23/24/25-340, recommending replacement of the hydraulic solenoid valve. Raytheon also completed maintenance in 1997 that, according to the plaintiffs, required identification of all outstanding service bulletins.

In March of 1999, the plaintiffs requested that Raytheon perform a 600-hour inspection of N825D. The Raytheon maintenance proposal provided for the completion of a “300/600/1200 hour inspection.” According to the plaintiffs, Raytheon breached the agreement by “failing to identify and comply with Service Bulletin 23/24/25-340; and by failing to inspect, test and/or replace valve 48C48603 with valve 48C48641.” The work-order authorization for the maintenance included “Terms and Conditions” limiting Raytheon’s liability to “repair and replacements” for “failure to perform Labor in accordance with Standards” and requires that an action for breach of warranty be brought within one year. The plaintiffs point out that the work-order was signed by a Raytheon employee, not Joseph When, allege that it was signed “without the knowledge or consent of Joe Wilen,” and argue that the limits on liability, therefore, are not enforceable.

In February of 2000, N825D was damaged in a landing accident. The plaintiffs allege that the accident would not have occurred if N825D was in compliance with Service Bulletin 23/24/25-340.

After the accident, Raytheon was asked to remove N825D from the runway and evaluate the airplane for needed repairs. On March 13, 2000, by means of a written document entitled “Authorization,” Joseph Wilen authorized Raytheon and Hale Aircraft Engines to repair N825D. Mark Smith, a Raytheon employee, testified at his deposition that before Joseph Wilen signed the authorization, Mr. Smith told Mr. Wilen that the repairs could not be completed without support from Learjet. The fax cover sheet sending the authorization to Mr. Wilen indicates that the time needed for repairs to N825D will “be dependent on support from Learjet.” Mr. Wilen testified in his deposition that he told Mr. Smith not to begin repairs to N825D unless they could be completed. On March 28, 2000, by a letter to Ray-theon, Mr. Wilen rescinded his authorization to proceed with the repairs to N825D.

On May 1, 2000, Raytheon faxed to Mr. Wilen a proposal for the repair of N825D. The proposal included repair of the “outboard leading edge” and a stall test following repair to the leading edge. The proposal noted that completion of the stall test “will be dependent upon the cooperation of Bombardier/Learjet.” The proposal was accepted. On June 23, 2000, Mr. Smith sent to Mr. Wilen a proposal, listing items that “are in addition to, or a revision of’ the earlier proposal. The proposal noted that all repairs to the leading edge must be performed by Learjet and included a corresponding charge of $2,500 for “outside service.” Mr. Wilen accepted the June 23, 2000 proposal.

The Learjet structural repair manual requires that repairs to the leading edge be performed by an authorized Learjet repair facility. Raytheon contacted Learjet about repairing the leading edge. Learjet responded by informing Raytheon that 25D-236 had been “attrited” in May of 1991 and sold for scrap and that Learjet would not “provide Engineering or Technical support for this aircraft.” Raytheon completed all of the repairs to N825D except for the leading edge and stall test by mid-August 2000.

The FAA initiated an investigation of the accident that included reviewing all of the maintenance records and logbook entries for N825D. At the conclusion of the investigation, the FAA stated that it “was unable to determine whether Lear 25D-263, in its present configuration, conformed to its original type design or any approved type design, and that it was in an airworthy condition.” For this reason, on October 19, 2000, the FAA issued an order suspending the airworthiness certificate of N825D. By means of a settlement agreement signed April 3, 2001, the FAA dismissed its action against N825D. The settlement agreement provided that, upon the completion of a series of actions listed in the agreement, “the proposed action to suspend the airworthiness certifícate of civil aircraft N825D is no longer necessary” and that the FAA agrees to issue an Airworthiness Certifícate for N825D with a provision limiting the aircraft to flying at 45,000 feet.

The plaintiffs allege that, in performing the log book research in 1994, Raytheon breached its duty “to properly evaluate the books and records of N825D in May, 1994 to assure that all records met the requirements of its Flight Standards District Office” and to advise the plaintiffs “that the FAA Atlanta FSDO might question September, 1992 log book entries concerning repair of N825D.”

National Union insurance policy GM3388558-01, effective on the date of the landing incident, provided coverage for “physical damage” to N825D. According to the policy, “physical damage” includes “accidental, direct physical loss of or damage to scheduled aircraft ... but does not include the loss of use or any residual depreciation in value either before or after any repairs have been made.” The policy excludes from the definition of “physical damage” any “loss damage, claim or expenses ... which is due and confined to wear and tear, deterioration, mechanical or electrical breakdown of the insured property, its equipment, components or accessories.” The policy provides that in the event of a “total loss,” National Union will pay to the insured the value of the aircraft. “Total loss” is defined as “any physical damage loss for which the cost to repair when added to the salvage value equals or exceeds” the insured value of the aircraft. The insured value of N825D is $1,000,000. The salvage value of N825D, calculated near August 2001, according to an expert retained by Joseph Wilen, was approximately $461,000. National Union has made approximately $148,000 in payments for Raytheon’s repairs to the aircraft but refused to pay $9,900 for engine repairs or $6,000 in storage costs. The plaintiffs claim that failure to pay these two costs amount to a breach of the insurance contract. The plaintiffs also claim that National Union should have “totaled” the aircraft and paid the insured value of the aircraft and allege that the failure to do so constituted “bad faith” under Georgia law.

2. Summary judgment standards

Summary judgment is appropriate if the moving party demonstrates that there is “no genuine issue as to any material fact” and that it is “entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). An issue of fact is “genuine” if “there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.” Id. (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505).

The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, the movant may simply point out to the court a lack of evidence for the other party on an essential element of that party’s claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

Once the movant has met this initial burden, the burden shifts to the nonmov-ing party to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256, 106 S.Ct. 2505; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” Adler, 144 F.3d at 671. “To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.” Id.

3. Tortious interference with contract

Count One, as set forth in the pretrial order, alleges that Learjet tortiously interfered with the plaintiffs’ contract with Raytheon for the repair of N825D following the February 2000 accident. The plaintiffs allege that “Learjet was made aware of the fact that [Raytheon] was contracted [sic] to perform the repairs” but refused to provide the support necessary for Raytheon to complete the repairs. In the pretrial order, the plaintiffs allege that Learjet tortiously interfered with the contract by falsely representing to the FAA that the fuselage installed in N825D “was an unsuitable part,” providing false and misleading information to the FAA about the airworthiness of N825D, failing to provide technical support to Raytheon, preventing Raytheon from repairing the leading edge, preventing Raytheon from completing the flight tests necessary to return N825D to service, and causing the FAA to place a condition notice on N825D and initiate an enforcement action to suspend the airworthiness certificate of N825D.

As explained above, Learjet filed two summary judgment motions. The court denies summary judgment based on the arguments advanced in the initial motion but grants summary judgment to Learjet based on the arguments made in the supplemental motion.

In its initial motion, Learjet argues that it is entitled to a qualified privilege regarding statements made about N825D. Learjet points out that Georgia law creates a statutory privilege for statements made in good faith in the performance of a legal or moral private duty and for statements made with a good faith intent to protect the interest of the speaker in a matter in which it is concerned. O.C.G.A. § 51-5-7. “The absence of a good faith belief in the truth of a slanderous statement prevents a qualified privilege ... the failure to exercise ordinary care to reasonably ascertain the truth or accuracy of the statement may show a lack of good faith when the facts and circumstances require such exercise.” Smith v. Vencare, Inc., 238 Ga.App. 621, 519 S.E.2d 735, 741 (1999). The court need not reach the issue of whether the relevant statements fall within the scope of such a privilege because whether the statements were made in “good faith” is controverted.

The plaintiffs point to evidence showing that Learjet engineers advised Mr. Houvis that there were no significant structural differences between the fuselages of 25D-212 and 25D-263. On the basis of this information, Harold Kosola determined that the two fuselage assemblies were interchangeable and issued FAA Form 8110-3 approving the use of the 25D-212 fuselage in the repair of 25D-263. The plaintiffs also point to evidence showing Lee Ramsey, representing the plaintiffs, provided Learjet a copy of Mr. Koso-la’s Form 8110-3. This evidence would be a sufficient basis for a reasonable jury to conclude that Learjet was not acting in good faith when a Learjet employee later told Raytheon that the airplane was “at-trited” in May 1991 and sold for scrap and that the airplane did not conform to the Type Certificate Sheet for Learjet Model 25D, serial number 263. Because the privilege turns on the intent of the speaker, whether the privilege applies would be a question of fact. Watkins v. Laser/Print Atlanta, Inc., 183 Ga.App. 172, 358 S.E.2d 477, 479 (1987) (“Even assuming, arguen-do, that the statement was so privileged, this privilege is conditional rather than absolute, and it remains for a jury to determine whether the intention was such as to make the defense complete.”). The court, therefore, will not grant summary judgment on the basis of Learjet’s claim of privilege.

In its supplemental motion, Learjet argues that there is an absence of evidence indicating that Learjet caused a breach of contract between Raytheon and the plaintiffs, and an absence of evidence showing that Learjet knew that the plaintiffs had a contract with Raytheon for repair of N825D. Learjet also argues that Raytheon could not contract to replace the leading edge because it was prohibited to do so by the Learjet Repair Manual, making any such contract an unenforceable contract “to perform an illegal act.”

The plaintiffs allege that Learjet’s refusal to support Raytheon’s efforts to repair the leading edge and perform a stall test caused Raytheon to breach its contract with the plaintiffs. The Learjet Structural Repair Manual requires a new leading edge “be installed at an authorized Learjet repair facility.” Raytheon is not such a facility. Following the installation of a new leading edge, a stall flight test must be performed and, according to the Learjet Maintenance and Repair Manual, the test must be performed by a Learjet-approved pilot.

Learjet admits that it refused to aid Raytheon but suggests that other Learjet-authorized repair facilities could have replaced the leading edge. At oral argument, counsel for the plaintiffs maintained that Learjet’s support was necessary. In support of the proposition that only Learjet could repair the leading edge, counsel pointed to the revised Raytheon proposal for repair of N825D, the deposition of Mark Smith, a Raytheon employee, and letters authored by Mr. Smith. The June 23, 2000 revision to the proposal to repair N825D notes that “the Learjet 20 series Structural Repair Manual stipulates that no field repair to the leading edge is allowed. All repairs must be performed by Learjet.” The manual, which is part of the record, specifies that a new leading edge must be installed “at an authorized Learjet repair facility.” In his deposition, Mr. Smith acknowledges that the Learjet repair manual requires that repair to the leading edge be done by a Learjet-authorized repair facility and that Raytheon is not such a facility. Mr. Smith was asked in his deposition whether he considered requesting a Learjet-authorized repair facility to repair the leading edge after Learjet refused to assist Raytheon. In response, Mr. Smith said “no” and explained that he “likes to work with the original equipment manufacturer because [he] know[s] that the work is going to be done right.” See 8/23/01 Smith deposition at 144-45. Mr. Smith then acknowledged that Raytheon, at the time of the deposition, was willing to allow a Learjet-authorized repair facility to make the repairs to N825D in place of Learjet. Id. The letters mentioned by counsel at oral argument do not address the subject of whether facilities other than Learjet can repair the leading edge.

The record contains a proposal from Garrett Aviation, a Learjet-authorized repair facility for the repair of the leading edge on N825D, dated September 21, 2001. The proposal does not indicate that Garrett Aviation could not have repaired the leading edge at an earlier date. The record also contains an excerpt of a deposition of a Learjet representative in which the representative states that Learjet’s position is that the leading edge should be repaired or replaced by a Learjet-authorized facility, even if the facility is not owned by Bombardier or Learjet.

At oral argument, counsel for the plaintiffs alleged that Learjet-authorized repair facilities are not able to repair N825D without the approval of Learjet. The record, however, contains no such evidence. Counsel also alleged that Garrett Aviation and other Learjet-authorized repair facilities would not repair the leading edge without Learjet’s agreement to provide Learjet-approved pilots to perform a stall test and that Learjet only recently agreed to provide that support. Again, the record contains no evidence to support this assertion.

Learjet met its summary judgment burden by pointing out to the court a lack of evidence supporting an essential element of the plaintiffs’ tortious interference claim, that Learjet induced a breach of contractual obligations. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998); Metzler v. Rowell, 248 Ga.App. 596, 547 S.E.2d 311, 320 (2001) (“Tortious interference with contractual, business, or potential business relations occurs when (1) there is improper action or wrongful conduct by the defendant without privilege; (2) the defendant acted purposely and with malice with the intent to injure; (3) the defendant induced a breach of contractual obligations or caused a party or third parties to discontinue or fail to enter into an anticipated business relationship with the plaintiff; and (4) the tortious conduct proximately caused damage to the plaintiff.”). The burden thereby shifted to the plaintiffs to set forth specific facts that would be admissible in evidence in the event of trial and from which a rational trier of fact could find for the plaintiffs. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Adler, 144 F.3d at 670.

The court concludes that the plaintiffs did not meet their burden to set out evidence from which a reasonable jury could find that Learjet caused Raytheon to breach its contractual obligations. Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (explaining that to meet its burden, the nonmovant “must set forth specific facts showing that there is a genuine issue for trial” and that an issue of fact is “genuine” if “there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way”); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (“When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.”); ARE Sikeston Limited Partnership v. Weslock National, Inc., 120 F.3d 820, 832 (8th Cir.1997) (holding that summary judgment is appropriate on tortious interference claim where the plaintiff fails to come forward with evidence of causation sufficient to create a genuine issue for trial.). The only evidence in the record suggesting that only Learjet could repair the leading edge of N825D is the statement in the June 23, 2000 proposal by Raytheon. According to Mr. Smith, the amended June 23 proposal was issued when he realized that the Learjet repair manual required that the work be done by a Learjet-authorized repair facility. See 8/23/01 Mark Smith deposition at 67. The manual, which is cited in the proposal as the basis of the requirement, requires that a new leading edge be installed “at an authorized Learjet repair facility.” The language in the proposal explaining that “Learjet” must make the repairs, does not, in the opinion of the court, amount to evidence sufficient for a reasonable jury to conclude that other Learjet-authorized facilities could not make the repairs. The language may be explained by Mark Smith’s deposition testimony that Raytheon did not consider using a Learjet-authorized repair facility other than Learjet to make the repairs because Raytheon prefers to deal with the original equipment manufacturer. It is also plausible that the statement that only “Learjet” could repair the leading edge was simply shorthand for “an authorized Learjet repair facility” or that the drafter of the proposal simply misread the manual’s requirement. The proposal specifies that the requirement is based on the manual and the manual allows any Learjet-authorized repair facility to install a new leading edge. All other evidence in the record indicates that there are Learjet-authorized repair facilities other than Learjet that could have repaired the leading edge. The attempt by counsel for the plaintiffs to explain away this evidence fails because there is no evidence in the record to support his assertions. For these reasons, the court concludes that no reasonable jury could find that only Learjet could repair the leading edge.

Because facilities other than Learjet could have repaired the leading edge, the mere refusal of Learjet to repair the leading edge of N825D or otherwise support the repairs does not amount to tortious interference with the plaintiffs’ contract. See, e.g., West Virginia Glass Specialty Co. v. Guice & Walshe Inc., 170 Ga.App. 556, 317 S.E.2d 592, 594 (1984) (holding that the refusal of one business opportunity in favor of another does not amount to tortious interference); Lively v. McDaniel, 240 Ga.App. 132, 522 S.E.2d 711, 714 (1999) (holding that summary judgment on claim of tortious interference is appropriate where there is an absence of evidence on the essential element of inducement). Raytheon could have contracted for repair of the leading edge with another Learjet-authorized repair facility. Learjet’s refusal to make the repairs, thus, did not cause Raytheon to fail to complete the repairs to N825D, allegedly in breach of the plaintiffs’ contract with Raytheon.

With respect to the stall test, the evidence submitted to the court does not indicate that Learjet refused to perform a stall test and that only Learjet could perform a stall test. As pointed out by Learjet, there is simply an absence of evidence on the subject. Learjet met its initial summary judgment burden by pointing out the lack of evidence showing that Learjet’s actions caused a breach of contract. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden, thereby, shifted to the plaintiffs to point to evidence showing that there is a genuine issue of fact for trial. The plaintiffs have failed to point the court to evidence showing that Learjet’s assistance was required for the performance of a stall test and that Learjet refused to perform the stall test if N825D was repaired by a Learjet-authorized repair facility. In its own review of the record, the only evidence the court found regarding whether Learjet would support a stall test comes from the deposition of Mark Smith. When Mr. Smith was asked if Learjet refused to provide assistance with flight tests needed to return N825D to service, he replied: ‘Well, we never came to that. But I could only assume that they wouldn’t support me for that effort.” See 2/7/01 Mark Smith deposition at 50-51. In failing to point the court to evidence indicating the Learjet refused to perform a stall test if N825D was repaired by a Learjet-approved repair facility and that only Learjet could perform a stall test, the plaintiffs have failed to meet their burden to show that there is a genuine issue for trial. Summary judgment, therefore, is appropriate.

To the extent that Count One is based on the allegations that Learjet failed to provide technical support to Raytheon, prevented Raytheon from repairing the leading edge, and prevented Raytheon from completing the flight tests necessary to return N825D to service, summary judgment is granted to Learjet. As Learjet points out, there is an absence of evidence to support these contentions and the plaintiffs have failed to point the court to evidence that would create a genuine question of fact for trial.

To the extent that Count One is based on the allegations that Learjet falsely represented to the FAA that the fuselage installed in N825D “was an unsuitable part,” provided false and misleading information to the FAA about the airworthiness of N825D, and caused the FAA to place a condition notice on N825D and initiate an enforcement action to suspend the airworthiness certificate of N825D, summary judgment is also granted. The record is devoid of evidence indicating that statements made by Learjet that 25D-263 was “attrited” in May of 1991 and sold for “scrap” and that N825D did not comply with the type certificate for 25D-263 caused Raytheon not to repair the leading edge or perform a stall test.

The evidence does not indicate that the FAA enforcement action or the FAA’s receipt of Learjet’s opinion about the airworthiness of N825D caused Raytheon to be unable to complete repairs to N825D. Instead, the evidence indicates that Ray-theon did not go forward with the repairs because Learjet refused to support repairs to the leading edge and Raytheon did not seek support from any Learjet-authorized repair facility. See 8/23/01 Mark Smith deposition at 133-34 (explaining that Learjet’s refusal to repair the leading edge stopped Raytheon from going forward with the repairs). Learjet met its initial summary judgment burden by pointing out the lack of evidence showing that Learjet’s statements caused a breach of contract and the plaintiffs failed to meet their subsequent burden to point to evidence showing that there is a genuine issue of fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment, therefore, is granted to Learjet to the extent that Count One is based on these allegations. No other allegations in support of Count One exist in the pretrial order and, thus, summary judgment is granted to Learjet as to the entirety of Count One.

4. Tortious interference with business expectancy

Count Two, as set forth in the pretrial order, is based on the allegations that the plaintiffs had a business relationship with Raytheon “on February 25, 2000, and thereafter with the probability that the damage to Learjet N825D would be promptly repaired” and that Learjet “induced a third party or parties not to enter into or continue business relationships concerning the repair of N825D.”

In its initial summary judgment motion, Learjet argues that it is entitled to a qualified privilege regarding statements made about N825D. Summary judgment on that basis is denied for the same reasons that it is denied as to Count One. Learjet also argues, in its supplemental summary judgment motion, that there is no evidence that Learjet “induced Raytheon not to enter into or continue a relationship concerning repairs to N825D” or that Learjet made false representations to the FAA or that it caused the FAA to take any actions.

To the extent that Count Two is based on the allegation that Learjet’s refusal to support repairs to the leading edge or perform a stall test caused Raytheon not to repair N825D, summary judgment is granted to Learjet because, as explained with respect to Count One, the plaintiffs failed to point to evidence creating a genuine issue for trial. To the extent that Count Two is based on the allegation that Learjet’s statements caused the FAA to initiate proceedings to suspend the airworthiness certificate of N825D, summary judgment is also granted because, as explained with respect to Count One, the plaintiffs failed to point to evidence indicating that statements made by Learjet to the FAA or FAA actions caused Raytheon not to repair the leading edge or perform a stall test.

5. Deceptive trade practices

In Count Three, the plaintiffs allege that Learjet engaged in deceptive trade practices by engaging “in a continuous pattern of false and misleading statements, including, but not limited to, Lear’s statement that N825D has been ‘attrited’ and sold for scrap and that it fails to meet the requirement of Type Data Certificate A10-CE.” Learjet argues in its summary judgment motion that its statements are privileged under Georgia law. Summary judgment on this basis is denied for the same reasons that the court denies summary judgment on that basis as to Count One.

In its supplemental motion for summary judgment, Learjet argues that the plaintiffs’ allegations in Count Three do not state a claim under the Georgia Deceptive Trade Practices Act. Learjet argues that the act does not apply to “non-commercial property or mere business assets like N825D.” The plaintiffs do not respond either in their written response or at oral argument.

In general, the act prohibits “deceptive trade practices” defined as causing confusion or misunderstanding about goods or services, or disparaging the goods, services, or business of another. O.C.G.A. § 10-l-372(a). Injunctive relief is the sole remedy for a violation of the act. O.C.G.A. § 10 — 1—373(a); Lauria v. Ford Motor Co., 169 Ga.App. 203, 312 S.E.2d 190, 193 (1983). To be entitled to injunctive relief, a plaintiff must be “[a] person likely to be damaged by a deceptive trade practice of another.” Lauria, 312 S.E.2d at 193.

The court grants summary judgment to Learjet on Count Three because it is persuaded that the statute does not apply to the disparagement of property that is neither goods sold nor services rendered by the plaintiffs. The plain language of the statute indicates that the statute applies only to cases involving misrepresentations about goods or services or creating confusion related to the same. Georgia case law applying the statute is similarly limited to such cases.

The Uniform Deceptive Trade Practices Act (“Uniform Act”), enacted by Georgia in 1968 and codified at O.C.G.A. § 10 — 1— 370 to 375, explains in the prefatory note that the law was drafted to create uniformity among state law prohibiting “unfair competition.” The note defines such unfair competition as “[d]eceptive conduct constituting unreasonable interference with another’s promotion and conduct of business” and explains that the law evolved from “the common law action for trademark infringement.” According to the note, the “practices singled out by the Uniform Act can be roughly subdivided into conduct involving either misleading trade identification or false or deceptive advertising.”

In the pretrial order, the parties agree that in order to prevail, the plaintiffs must prove that Learjet engaged in a deceptive trade practice when, in the course of its business, it:

(a) caused the likelihood of confusion or misunderstanding as to the source, sponsorship, approval or certification of goods or services;

(b) caused the likelihood of confusion or misunderstanding as to the affiliation, connection, or association with or certification by another;

(c) disparaged the goods, services, or business of another by false or misleading representation of fact;

(d) engaged in other conduct which similarly created a likelihood of confusion or misunderstanding.

The comment to Uniform Act indicates that the subsection concerning causing the likelihood of confusion or misunderstanding as to the source, sponsorship, approval or certification of goods or services encompasses “confusion as to commercial source, approval, endorsement, or certification of goods or services caused by trademarks, service marks, certification marks, or collective marks likely to be associated with preexisting trade symbols.” The comment specifies that the subsection prohibiting causing the likelihood of confusion or misunderstanding as to the affiliation, connection, or association with or certification by another “concerns the likelihood of confusion caused by misleading trade names.” The subsection concerning disparaging the goods, services, or business of another by false or misleading representation of fact “reflects the trend of authority allowing businessmen to enjoin disparagement by competitors.” Finally, the subsection prohibiting engaging in other conduct which similarly creates a likelihood of confusion or misunderstanding “permits the courts to block out new kinds of deceptive trade practices.”

The evidence before the court indicates that N825D is not a good sold or a service rendered by the plaintiffs and, in the opinion of the court, the Georgia statute is inapplicable to the facts of this case. The evidence does not show that Learjet created confusion about a product because of a mark associated with another trade symbol, used a confusing trade name, made disparaging remarks about the products or services of a competitor, or engaged in other deceptive trade practices as defined by the Uniform Act or Georgia law.

Furthermore, a remedy for violation of the act is limited to cases where a plaintiff can demonstrate that it is likely to be injured by a deceptive trade practice. Launa, 312 S.E.2d at 193. In this case, while the plaintiffs allege past injury, the situation leading to that injury has been resolved and there is no indication that the plaintiffs would be subject to injury in the future. The plaintiffs, therefore, are not eligible for injunctive relief under Georgia law. Lauria, 312 S.E.2d at 193.

6. Common law disparagement

In Count Four, the plaintiffs allege that Learjet made “false and misleading statements concerning N825D” that “have diminished the value of N825D.” Learjet makes arguments under both Kansas and Georgia law and, in the pretrial order, asserts that Kansas law applies. The plaintiffs maintain that Georgia law applies. As explained above, this court must apply the Kansas choice of law rules. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Under the Kansas choice of law provisions, the law of the state where the tort occurs controls and the tort is deemed to have occurred where the wrong was felt. Ling v. Jan’s Liquors, 237 Kan. 629, 635, 703 P.2d 731 (1985). In the case of alleged financial harm, the court looks to the state in which the plaintiff felt the financial harm. Bushnell Corp. v. ITT Corp., 973 F.Supp. 1276, 1286 (D.Kan.1997); Altrutech, Inc. v. Hooper Holmes, Inc., 6 F.Supp.2d 1269, 1276 (D.Kan.1998). In this case, the alleged harm to the plaintiffs was the diminution in value of N825D, located in Georgia, and the resulting financial loss to the plaintiffs, also located in Georgia. Thus, under the facts of this case, the harm from the alleged disparagement was felt in Georgia and the law of Georgia applies.

As with Count One, the court denies summary judgment based on the arguments made in Learjet’s initial summary judgment motion, but grants summary judgment based on the arguments advanced in its supplemental summary judgment motion.

In Learjet’s initial motion, Learjet points out that, under Georgia law, there is a one-year statute of limitations applicable to actions for injury to reputation. O.C.G.A. § 9-3-33. Learjet asserts that the plaintiff “has known since at least 1994 that Learjet listed Ship 263 as ‘attrited’ from the fleet and that it did not recognize N825D to be a ‘Learjet’ because it claimed that the logbook did not accurately reflect cycles and times on the component parts of the aircraft and there was inadequate documentation to show that the fuselage systems comply with the Type Certificate for Ship 263.”

While Learjet does not develop the argument, the court believes that Learjet is arguing that the statute of limitations runs from the point that the plaintiffs first became aware of Learjet’s views and not from the point that the allegedly disparaging remarks were made. O.C.G.A. § 9-3-33 provides that an action for injury to reputation “shall be brought within one year after the right of action accrues.” In this case, the cause of action accrued on February 28, 2000, when Learjet made statements to Raytheon about N825D. Kicklighter v. Woodward, 267 Ga. 157, 159, 476 S.E.2d 248 (1996) (“[A] cause of action accrues when the plaintiff could have first maintained the action to a successful re-suit.”). The complaint was filed within one year of that date and is not barred by the statute of limitations.

Learjet also asserts that truth is an absolute defense to a claim for disparagement, but does not develop the argument. As counsel for the plaintiffs pointed out at oral arguments, a true statement can create a likelihood of confusion or misunderstanding if the speaker omits other material information. Such “half-truths,” are “often more damaging and devastating than would be an outright falsehood.” Davis v. Macon Tel. Pub. Co., 93 Ga.App. 633, 92 S.E.2d 619, 626 (1956). For example, the statement that N825D was “attrit-ed” in 1991 and sold for scrap, even if true, can create confusion or misunderstanding if the speaker knows that N825D was rebuilt or repaired and certified as airworthy but does not disclose this information as well. Thus, even if the statements made by Learjet were true, Learjet does not have an absolute defense to the allegation, set out in the pretrial order, that Learjet made “misleading” statements. Furthermore, the plaintiffs dispute the “truth” of some of the statements made by Learjet. For example, the plaintiffs challenge the allegations that the airplane was “attrited” in 1991 and sold for scrap and that N825D does not meet the Type Certification for 25D-263. Summary judgment, therefore, is not appropriate on the basis that truth is an absolute defense.

In its supplemental summary judgment motion, Learjet argues that Georgia does not recognize a tort of “common law disparagement.” The plaintiffs did not respond either in their papers or at oral argument.

The plaintiffs allege in the pretrial order that Learjet made false and disparaging remarks about the plaintiffs’ property, N825D. The tort of “common law product disparagement” is also known as “trade libel” and, according to the Restatement, applies to “the publication of matter disparaging the quality of another’s land, chattels or intangible things.” Restatement of Torts § 626. The plaintiffs seem to state a claim for trade libel, or common law disparagement, as set out by the Restatement. The issue is whether Georgia recognizes the tort as it is set out in Restatement section 626.

The Georgia Supreme Court declined to decide whether a cause of action lies for product disparagement, or trade libel, in Georgia Society of Plastic Surgeons v. Anderson, 257 Ga. 710, 363 S.E.2d 140, 143-44 (1987). In Anderson, the court declined to address the argument that “in Georgia there is no cause of action for damages resulting from disparagement of goods and services (i.e., trade libel)” because “assuming that damages will lie for trade libel, appellants are correct in arguing that in this case such damages constitute an impermissible double recovery.” Id. The Georgia court has not since revisited the subject.

“Trade libel and product defamation lie within the general rubric of the tort of injurious falsehood, itself born of the cause of action for unlawful interference.” College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 919 F.Supp. 756, 762 (D.N.J.1996); See also Restatement of Torts §§ 626, 623A. There is no indication in the law of Georgia that the state would adopt section 626 of the Restatement. In fact, Georgia has not recognized the tort of “injurious falsehood.” Section 626 of the Restatement simply extends section 623A of the Restatement, applying the elements of injurious falsehood to “the publication of matter disparaging the quality of another’s land, chattels or intangible things.” In holding that Georgia would recognize “trade libel” as defined in section 626, the court would, in effect, also have to hold that Georgia would recognize the tort of “injurious falsehood” as defined in section 623A.

This area of the law is far from uniform among the states. See System Operations, Inc. v. Scientific Games Dev. Corp., 555 F.2d 1131, 1138 (3d Cir.1977) (noting the slow development of and confusing state of the law); CMI, Inc. v. Intoximeters, Inc., 918 F.Supp. 1068, 1086-89 (W.D.Ky.1995) (“Those grappling with the tort’s scope and application are not found exclusively in the jurisdiction of Kentucky.”); McCarthy on Trademarks and Unfair Competition § 27:100 (4th ed.) (“Confusion surrounds the tort of ‘commercial disparagement’ because not only is its content blurred and uncertain, so also is its very name. The tort has received various labels, such as ‘commercial disparagement,’ ‘injurious falsehood,’ ‘product disparagement,’ ‘trade libel,’ ‘disparagement of property,’ and ‘slander of goods.’ ”); Arlen W. Langvardt, Free Speech Versus Economic Harm: Accommodating Defamation, Commercial Speech, and Unfair Competition Considerations in the Law of Injurious Falsehood, 62 Temple Law Review 903, 917 (1989) (“The confusion concerning the appropriate sort and degree of intent or fault is enhanced by the need to consider the level of proof required to demonstrate the defendant’s abuse of an otherwise applicable conditional privilege. In its present state, the common law of injurious falsehood is badly in need of coherence and direction with regard to the fault issue”). Without a stronger indication that Georgia would recognize sections 626 and 623A of the Restatement, or a tort containing the elements set out in the pretrial order with regard to Count Four by whatever name one wishes to call it, the court is unwilling to hold that the plaintiffs have stated a valid cause of action under Georgia law. See CMI, Inc. v. Intoximeters, Inc., 918 F.Supp. 1068, 1086-89 (W.D.Ky.1995) (“The Court concludes that there is insufficient authority upon which it could predict that Kentucky courts would establish an entirely new cause of action for injurious falsehood.”). Summary judgment, therefore, is granted to Learjet on Count Four.

7. Abuse of monopoly power

In Count Five, the plaintiffs allege that Learjet maintains a monopoly over the market for repair and maintenance of Model 26D airplanes “through Learjet prepared Maintenance Manuals and Repair Manuals; and through agreements with authorized repair facilities and test pilots.” The plaintiffs allege in the pretrial order that Learjet abused its monopoly power by making false and misleading statements that N826D fails to meet the “Type Certificate Data Sheet requirements for TCA10CE [and] that it had been destroyed and sold for scrap,” failing to provide technical support and instructions for continued airworthiness for N825D, limiting maintenance to the leading edge without factory approval to removal and installation and requiring that a new wing leading edge be installed at an authorized Learjet repair facility, requiring that stall tests be performed after the completion of repair to the leading edge and that the test be performed only by Learjet-approved pilots, refusing to provide the plaintiffs or Raytheon instructions for continued airworthiness of N825D, refusing to provide support, information, personnel and equipment needed to repair N825D, and by removing N825D from the list of Learjet aircraft and refusing to recognize it as an active aircraft.

Learjet argues in its initial summary judgment motion that the plaintiffs have failed to identify a market that Learjet is capable of monopolizing and that none of the acts alleged in the pretrial order constitute restraint of trade. In its supplemental summary judgment motion, Learjet argues that there is a lack of evidence showing Learjet holds a monopoly over the relevant market.

Section 2 of the Sherman Act, 15, U.S.C. § 2, makes it unlawful to “monopolize, or attempt to monopolize, or combine or conspire ... to monopolize” any part of interstate or foreign commerce. Abuse of monopoly power under section two of the Sherman Act has two elements: 1) the possession of monopoly power in the relevant market; and 2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superi- or product, business acumen, or historic accident. United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966). As the second element makes clear, “[t]he mere possession of monopoly power does not ipso facto condemn a market participant.” Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 275 (2 Cir.1979). Instead, violations occur when a company with this power engages in “conduct directed at smothering competition.” Id.

Learjet argues that, under section two of the Sherman Act, Learjet cannot have a monopoly over its own products. The Supreme Court rejected this argument in Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 481-82, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (citations omitted):

Kodak also contends that, as a matter of law, a single brand of a product or service can never be a relevant market under the Sherman Act. We disagree. The relevant market for antitrust purposes is determined by the choices available to Kodak equipment owners. Because service and parts for Kodak equipment are not interchangeable with other manufacturers’ service and parts, the relevant market from the Kodak equipment owner’s perspective is composed of only those companies that service Kodak machines. This Court’s pri- or cases support the proposition that in some instances one brand of a product can constitute a separate market. The proper market definition in this case can be determined only after a factual inquiry into the “commercial realities” faced by consumers.

In this case, the plaintiffs allege that Learjet maintains a monopoly over the repair and maintenance of Learjet airplanes. Following Kodak, it is possible for Learjet to maintain a monopoly over the service and repair of its airplanes.

In its supplemental summary judgment motion, Learjet points out to the court that there is a lack of evidence indicating the presence of a monopoly in the relevant market. Learjet notes that the plaintiffs have not designated an expert to testify about such a market.

The evidence before the court shows that the Learjet structural repair manual requires that repairs to the leading edge be performed by an authorized Learjet repair facility and that a stall test be performed by a Learjet-approved pilot. The court has not been presented with evidence about the number of authorized repair facilities, the market share of such facilities and the relationship between Learjet and the facilities. The evidence in the record merely establishes that there are facilities other than Learjet that are Learjet-authorized repair facilities. No evidence has been submitted to the court regarding the number of Learjet-approved pilots or their relationship with Learjet.

Learjet met its summary judgment burden by pointing out to the court a lack of evidence on the first element of a violation of section two of the Sherman Act. Adler, 144 F.3d at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The plaintiffs failed to meet their burden to set forth specific facts showing that there is a genuine issue for trial. The evidence before the court is simply inadequate for a reasonable jury to conclude that Learjet has a monopoly over the market for repair and maintenance of Learjet airplanes. Summary judgment, therefore, is granted to Learjet with respect to Count Five.

8. Negligence

In Count Six, as set forth in the pretrial order, the plaintiffs allege that Learjet breached a duty to the plaintiffs “to exercise ordinary care by failing to provide instructions for continued airworthiness and inspection of hydraulic landing gear control valve 48C48603 and by failing to warn Plaintiffs of the dangerous condition.” The plaintiffs also allege that Learjet breached its duty “to exercise ordinary care in the design, testing and/or modification of valve 48C48603; and in failing to provide adequate maintenance instructions and/or warnings.”

Learjet argues in its summary judgment motion that the claim is barred by the eighteen-year statute of repose established by the General Aviation Revitalization Act (“GARA”), 49 U.S.C. § 40101. The statute provides that “no civil action for ... damages 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 a manufacturer if the accident occurred” eighteen years after the date of the delivery of the aircraft by the manufacturer to its first purchaser or lessee. Pub.L. No. 103-298, 108 Stat. 1552 (1994) (codified at 49 U.S.C. § 40101 note). According to Learjet, N825D was delivered more than eighteen years before the accident and the lawsuit, therefore, is barred by the statute.

The plaintiffs point out that the statute provides that the applicable limitation period begins anew upon the replacement of a component or part with a new component or part. The plaintiffs argue that the maintenance manual sections concerning the landing gear issued in 1983, the flight manual excerpts issued in 1986 and the service bulletin issued in 1989 should be considered new components or parts. For support, the plaintiffs point to Caldwell v. Enstrom Helicopter Corp., 230 F.3d 1155 (9th Cir.2000). In Caldwell, the plaintiffs sued the manufacturer of a helicopter alleging that a flight manual was defective in that it did not include a necessary warning. Id. at 1156. The Ninth Circuit was careful to point out that the plaintiffs did not allege negligence based on a failure to warn but “under theories of strict liability and negligence, that the revised manual itself is the defective product that caused the accident.” Id. at 1157. The court held that the GARA statute of repose did not prohibit the lawsuit because the flight manual was published less than eighteen years before the accident and the flight manual should be considered a new part added to the aircraft, thereby extending the period of time in which a lawsuit could be brought regarding that new part. Id. at 1157. The court explained, however, that in order to state a claim, a plaintiff must allege that an alteration to the flight manual was the proximate cause of an accident. Id. at 1158.

Unlike the plaintiff in Caldwell, the plaintiffs in this case do not allege that the accident was proximately caused by any of the three documents mentioned in their response. Instead, the plaintiffs allege that the accident was caused by Learjet failing to warn owners of its planes about a defect in the landing gear hydraulic and failing to instruct owners how to fix the defect. Following the rationale of Caldwell, the plaintiffs’ claim is barred by the statute of repose. The court agrees and holds that this claim is barred by the GARA statute of repose.

9. Mandamus

In Count Seven, as set forth in the pretrial order, the plaintiffs allege that Learjet breached a duty created by 14 C.F.R. § 25.1529 and 21.50 “to make available and provide Plaintiffs with instructions for continued airworthiness, technical support, support personnel and special equipment needed to repair and maintain Learjet N825D.” The plaintiffs seek an order, pursuant to KS.A. § 60-801, compelling Learjet to fulfil its duty. The plaintiffs also seek damages pursuant to K.S.A. § 60-802 for the alleged breach.

KS.A. § 801 grants courts the authority to order a corporation or person “to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.” K.S.A. § 801. Learjet argues in its summary judgment motion that it does not have a duty to provide the requested services and support for N825D. The plaintiffs specify that the duty owed is created by 14 C.F.R. § 25.1529 and 21.50. The regulations require Learjet to provide instructions for continued airworthiness to Learjet airplane owners. The regulations do not create any other duty and to the extent that the pretrial order seeks an order compelling Learjet to provide technical support, personnel, equipment, drawings and other information, summary judgment is granted to Learjet on Count Six.

In its supplemental summary judgment motion, Learjet points out that there is a lack of evidence showing that Learjet failed to meet its duty to provide instructions for continued airworthiness to Learjet airplane owners. The plaintiffs did not respond either in their papers or at oral argument. The regulations require that Learjet provide “one set of complete Instructions for Airworthiness” to aircraft owners upon the airplane’s delivery and to make “changes to the Instructions for Continued Airworthiness” available to the owners. The evidence does not indicate that Learjet failed to comply with the regulations or that Raytheon’s inability to repair N825D was related to the unavailability of the airworthiness instructions. Instead, the evidence indicates that Learjet’s refusal to repair the leading edge stopped Raytheon from completing the repairs. See 8/23/01 Mark Smith deposition at 133-34. Learjet met its summary judgment burden by pointing out a lack of evidence on an essential element of a mandamus claim and the plaintiffs failed to meet their burden to set forth specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment, therefore, is granted to Learjet with respect to Count Six.

10. Breach of May 1, 2000 contract

In Count Ten, as set forth in the pretrial order, the plaintiffs allege that Raytheon breached its. contract with the plaintiffs to repair N825D. According to the pretrial order, Raytheon breached the contract by failing to repair the leading-edge of N825D and perform a stall test. The plaintiffs also assert that “an oral provision was added [to the contract] by Plaintiffs that repairs not be commenced unless and until [Raytheon] was sure that it could complete all repairs necessary to return the aircraft to service, including the leading edge of the right wing.” This provision was breached, according to the plaintiffs.

Raytheon argues in its summary judgment motion that the claim is precluded by the terms of the May 1, 2000 repair agreement and the supplemental June 23, 2000 agreement. Raytheon points out that the agreements indicate that repairs to the leading edge and the stall test were dependent on support from Learjet. Raytheon characterizes this language as a condition precedent that must occur before the contract is enforceable. Raytheon also argues that the alleged oral statement by Mr. Wilen is inadmissible because of the parol evidence rule. Finally, Raytheon argues that the plaintiffs are not entitled to recover the alleged damages because they are not the “natural and probable consequences” of a breach of the contracts.

The parties agree that Georgia law applies to the contracts. Under Georgia law, “precise technical words” are not needed to create conditions precedent. Fulton County v. Collum Properties, 193 Ga.App. 774, 388 S.E.2d 916, 918 (1989). Although a condition precedent may be created by language such as “on condition that,” “if,” and “provided,” or by explicit statements that certain events are to be construed as conditions precedent, Georgia law is clear that none of these are prerequisites. Id. On the other hand, if the contract’s terms are clear and unambiguous and do not clearly establish a condition precedent, Georgia courts will not construe the contract to create one. Id.

The May 1, 2000, proposal indicates that the leading edge has “impact damage” and includes a quote for associated parts and labor, presumably to repair the leading edge. The proposal also gives an estimate for a stall test and indicates that the test “shall be dependent upon co-operation of Bombardier/Learjet factory support.” The June 23, 2000, proposal lists “items [that] are in addition to, or a revision of’ the earlier proposal. The June 23 proposal indicates that the Learjet Structural Repair Manual “stipulates that no field repair to the leading edge is allowed” and that “[a]ll repairs must be performed by Learjet.”

Raytheon’s statement of uncontroverted facts, paragraph 52, states that, “[o]n June 23, 2000, Mark Smith on behalf of [Ray-theon] forwarded to plaintiff Wilen on behalf of J.W. Equities an