Jennifer R. Harris, by and Through Her Guardian Ad Litem, Lucian J. Harris, III v. Ford Motor Company
110 F.3d 1410
9th Cir.
1997
Check Treatment

*1 slipped on food passenger mandating pre- curred when preemption of a state no attendant, employees, flight not if the wages apprentice dropped by Dill- but vailing for unanimously emphasized ingham by banking of caused a sudden accident was applied “relating not be to” should Airlines, words plane.” Continental literalism,” with an em- “uncritical but (Tex.Sup.Ct. Kiefer, 920 S.W.2d objectives and its of the statute phasis on the history nothing in I can find at-, law. Id. S.Ct. effect on state sug in and Wolens to the ADA or Morales omitted). (internal is a Of note citation hodge Congress intended such a gest that (the au- concurring opinion by Justice Scalia podge results. Morales), joined by Justice thor of who was Wolens). (the After cit- Ginsburg author of Ill decisions to the ing statements from earlier likely than the Today’s opinion is no more “relating to” effect that ERISA’s clarity bring to the airline Harris decision sweep, wrote expansive Justice Scalia has can avoid anomalous preemption field. We function of “greatly it would assist our results, however, analytical if framework acknowledged clarifying simply if the law we regulatory effect of the state rests on the that our first take on this statute inquiry proper then tort claim. at-, In at 843. his wrong.” Id. S.Ct. remedies the state common law tort whether view, pre-emp- to’ clause of the “the ‘relate frustrating purpose of have the effect meant, not to set forth a test tion by interfering with the forces of deregulation identify pre-emption, but rather not have competition. If the state law does ap- ordinary in field which field effect, requisite regulatory then it is sim- regulating plies namely, the field laws — “ ” tenuous, remote, peripheral a ply ‘too or ‘employee plan[s]’ described benefit Morales, preemptive matter’ to have effect.” (emphasis original). ERISA. Id. 390, 112 at 2040. 504 U.S. at analysis preemption of the Court’s (and case, Fifth recent this court’s should have set our own house Because we Circuit’s) preemption is archa- test for airline order, majority’s I to embrace the decline ic. air- between airline services and distinction Second, airline operations a distinction between ser- craft and maintenance. operations and mainte- vices and aircraft instance, For

nance is difficult draw. difficulty viewing

majority Hodges had no operations

Hodges’ claim as related to rather services, judges dissenting

than while two opposite equally by HARRIS, through concluded that the view was her Jennifer R. clear. Because the ADA offers no definition litem, HARRIS, guardian ad Lucian J. “services,” for the term courts are left to III, Plaintiff-Appellee, beverages providing alcoholic decide whether persons warning passengers to intoxicated COMPANY, FORD MOTOR dangers falling of items from overhead Defendant-Appellant. compartments are related to an airline’s “ser- No. 94-56527. “operations.” many an amateur vices” As observed, everything philosopher has is at Appeals, United States Court theoretically everything else. least related to Ninth Circuit. example, damage airplane “For claim an April Argued and Submitted 1996. falling passenger hit an article from an preempted if the overhead bin would be Aug. 1996. Submission Withdrawn flight not if dropped attendant the article but 1, 1996. Resubmitted Oct. open a latch that had the bin came because of April Decided maintained, properly or because the been jolted by An plane was turbulent weather.

airplane passenger in an who fell aisle prohibited suing if the accident oc-

14H Wheeler, Parcel, Mauro, Malcolm E. Hui- Denver, Spaanstra, P.C., Colorado, tín & for defendant-appellant. Esner, Esner,

Stuart B. Higa, Zakheim & Monica, California, plaintiff-appel- Santa lee. TROTT,

Before: O’SCANNLAIN and SICKLE,* Judges, District Circuit VAN Judge.

O’SCANNLAIN, Judge: Circuit We must pre- decide whether federal law empts liability product state law claim against automobile manufacturer for fail- airbag. ure to install a driver side I August driving On while a rented York, Mercury Topaz in New Jennifer Harris, citizen, year a sixteen old California vehicle, control of smashed into a lost tree, injured. seriously and was

Harris complaint filed a Ford Mo- (“Ford”) in Company California tor alleging, things, among other that the court defectively designed vehicle was and that negligent pro- it failed “to Ford because airbag.” The ease was vide driver side District of California removed Central summary partial judg- Ford where moved for ground ment on the Harris’ tort claims * Dakota, Sickle, sitting by designation. The Honorable Bruce M. Van Senior Unit- Judge States District District ed for the of North effect, political no subdivision pre-empted

under state were authority Traffic and Vehicle shall have either Motor of State National Act”), (“Safety effect, establish, Act of 1966 or to continue (1988),1 promul- regulations seq. et or item of respect motor vehicle thereunder-specifically, by Motor Vehi- gated any safety motor vehicle *3 (“Standard 208”), Safety 49 Standard 208 cle aspect per- of applicable to the same dard § court entered 571.208. The district C.F.R. equip- item of of such vehicle or formance denying motion and certified an order Ford’s to the which is not identical Federal ment appeal 28 order under U.S.C. its standard. 1292(b). this, petitioned court for § Ford 1392(d). § 15 U.S.C. interlocutory appeal on file an the leave to 208, promulgated 1967 first Standard issue, granted. which we Act, governs pas- pursuant Safety the safety manufactur- restraints automobile sive

II install. cars manufactured af- ers must For history Safety and of Stan of the 1, 1989, gives 208 September Standard ter extensive, ably is and has been dard option the in- automobile manufacturers of by See several other courts. Pok discussed stalling airbag an or an automatic either Co., F.2d orny v. Ford Motor 902 signal the driver a that would seatbelt (3rd Cir.1990); Taylor v. General 1123-24 warning light if became unhooked. the belt Corp., 875 F.2d 822-23 Motors § 49 571.208. C.F.R. Cir.1989); Corp., v. Wood General Motors Cir.1988). (1st par Of 865 F.2d history In of the of this stan- however, appeal, relevance to is ticular this dard, flexibility it that and indisputable traffic acci- that the Act aimed “to reduce regulato- are choice essential elements injuries persons and deaths and to dents ry in Standard 208.2 framework established accidents,” 15 resulting from traffic U.S.C. only Pokomy, 902 at 1124. Not did the F.2d 1381, by enabling regulators § federal carefully Secretary Transportation of consid- uniform promulgate national motor vehicle deliberately provide er and choose such safety standards. Fed.Reg. 28962, flexibility, (citing id. see 49 (1984); (1981)); uniformity Congress provided Fed.Reg. for such 53419 28997 46 § expressly pre-empting Congress specifically law in Taylor, 875 F.2d at of the Act: Transportation prohibited Department the congressional requiring airbags without a Federal motor vehicle

Whenever (1988).3 review, subchapter this 15 U.S.C. 1410b standard established under First, Safety was 1. The Act is now embodied in 49 U.S.C. the clear intent and seq., Secretary following Congress’ Transportation § 30103 et minor that automobile the case had amendments 1994-after com be allowed to choose between manufacturers 103-272, 1(e), airbags. Pub.L. warning light menced. See No. 108 with a seatbelts any Stat. 943. To the extent that amendments to unambiguous policy providing federal such a analysis, they the Act would alter we believe our individual choice would frustrated if states Landgraf given should not be retroactive effect. See airbags. could force manufacturers to install At Products, 244, 272, debate, USI Film seatbelt-airbag regard least (1994) (pre L.Ed.2d uniformity integrity national is essential for the sumption against retroactivily applies absent regulatory of the federal scheme. Congressional clear evidence intent con Second, requiring that dissent assumes air- trary). Safety Act are to All references to the bags safety, all automobiles will increase earlier version. requirement airbag an therefore Safety purpose. Act's is inconsistent with the however, Flexibility assumption misplaced, 2. and choice are essential elements because This year applies higher safety Standard 208 as it to model Act not mandate does automobiles; applies cost, Standard different only re- those standards but quirements year cars. See Secretary Transpor- different model dards determined "reasonable, C.F.R. 571.208 practicable appro- tation to be 1392(f)(3). priate.” Pursuant direction, Secretary argues increasing safety, Congress’ considered 3. The dissent that not rejected requiring airbags. purpose a national the sole standard was behind considered, so, alia, Secretary respectfully disagree. doing Act. We inter dispute that the car she Harris does standard. Harris contends that driving complied with Standard 208. contemplated by § standards are Nonetheless, that, she claims under Califor- by legislatures regulators, created law, nia she is entitled to recover judges juries. Recovery on her tort provide airbag Ford for its failure to argues, she pursuant would not be notwithstanding compliance with Standard “safety standard.” Two recent sup- Court decisions port contrary conclusion. In Ill Liggett Group, of the Court provides Article VI of the Constitution rejected argument a similar regarding the the laws of the United States “shall be the Cigarette Public Health Smoking Act of Land; supreme any Thing Law of ... 1969, concluding judgments in state the Constitution or Laws of state to the *4 damage common imposed actions “re- Contrary notwithstanding.” U.S. Const. art. quirement[s] prohibition^]” or and hence VI, Maryland, cl. 2. v. Since M’Culloch 17 pre-empted by were regu- that Act.5 “[S]tate (4 Wheat.) 316, 427, (1819), 4 U.S. L.Ed. 579 effectively lation can through be as exerted “it has been settled that state law that con damages through award of as some form flicts with federal law “without effect.’” preventive obligation relief. pay The Liggett v. Group, 505 U.S. compensation be, designed can indeed is S.Ct., 2608, 2617, 112 120 L.Ed.2d be, potent governing method of conduct (1992) Louisiana, (quoting Maryland 407 controlling policy.” Cipollone, 505 U.S. 746, 725, 2114, 2128-29, 451 U.S. 101 S.Ct. 68 521, (plurality at 112 at opinion) S.Ct. 2620 (1981)). Pre-emption may L.Ed.2d 576 be (quoting Diego Building San Trades Council express implied, compelled “either or and is Garmon, 236, 773, 359 U.S. 79 S.Ct. 3 Congress’ explicitly whether command is (1959)); id., 548, 505 U.S. at 112 stated in the implicitly statute’s or (Scalia, J., concurring S.Ct. at 2634 in judg- purpose.” contained in its structure and in part dissenting part). ment Airlines, Inc., Morales v. Trans World 504 (1992). 374, 383 U.S. recently, More the Court decided Med — tronic, Lohr, begin pre-emption analysis U.S.-, by We our ex- 116 S.Ct. amining expressly (1996), whether the Act 135 L.Ed.2d 700 which con pre-empts Harris’ claims.4 pre-emption provisions strued the (“MDA”).6 Medical Device Amendments

A majority opinion expressed pre two 1392(d) sumptions prohibits pre-emption: about the nature of Section States establishing “any Congress cavalierly continuing pre-empt or effect does not safe ty action, standard” not identical to the Federal state law causes of and that the intent by airbags the increased achieved as well 5. The relevant ”[n]o of that Act reads: Rg. as their cost. See 49 Fed. requirement prohibition smoking or based on judiciary, As members of the we are not imposed and health shall be under State law position second-guess Secretary’s in a de- respect advertising promotion to the or cision. any cigarettes packages are which labeled conformity provisions with the of this Act.” question, 4.While we have never considered this Cipollone, 505 U.S. at 112 S.Ct. at 2617 (pre-Cipollone) other have circuits concluded 91-222, (quoting Pub.L. 84 Stat. 15 U.S.C. expressly pre-empt that the Act does not 1334(b), amended). "no-airbag” although they agree that impliedly pre-empted. such claims are See Pok Co., orny (3rd v. Ford Motor 902 F.2d 1116 pre-emption provision 6. The relevant of the MDA Cir.1990); Taylor Corp., v. General Motors political states: "no State or of a subdivision (11th Cir.1989); F.2d 816 Kitts v. General Motors may establish or continue in effect with (10th Cir.1989); Corp., 875 F.2d 787 Wood v. respect to a device intended for human use (1st Corp., General Motors 865 F.2d 395 Cir. from, requirement ... is different or in which 1988); Perry but see v. Mercedes North Benz of to, any requirement applicable addition under America, Inc., (5th Cir.1992) (no 957 F.2d 1257 device____” chapter this express implied of claim that 360k(a). defect). airbag design installed had Medtronic, § regulation does is the ultimate touchstone Congress “particular re- limit Id, -, at every pre-emption case. quirement[s threaten] which interfere particu- 2250. It concluded that S.Ct. at — interest,” Medtronic, specific federal by the brought lar law claims Lohrs common Instead, -, at at U.S. 116 S.Ct. pre-empted the MDA. were “any speaks expansively about ... applicable to the same standard Nonetheless, sup Court is not identical to item of which can ported view that common law claims Federal standard.” requirements equivalent those impose Moreover, generality/specifie Medtronic’s legislature regulatory by a state written at---, ity analysis, see id. consequently pre-empted agency and can be 2257-58; Amalgam Dental at Comm. “require speaks only about when Stratton, & Distribs. v. F.3d Mfrs. at---, Id. 116 S.Ct. at ments.” analysis Cir.1996), informs our here. (O’Connor, J., part) dissenting in Indeed, precisely Standard 208 seems C.J., (joined Rehnquist, Thom Scalia type specific requirement federal as, JJ.) 521, 112 (citing Cipollone, at 505 U.S. missing in Supreme Court noted was Med- —id., -, 2620); at at S.Ct. tronic: J., (Breyer, concurring) (citing S.Ct. at 2259 generality of these medical [Federal 521, 112 Cipollone, at requirements quite un- device] make *5 Papike v. 107 F.3d See Tambrands like a case in the Federal which Govern- Cir.1997). Breyer 740-42 As Justice weighed competing has ment the interests observed, reasonably can read “[o]ne requirement to particular relevant legal ‘requirement’ including as re word unambiguous question, reached ah conclu- quirements grow application, that out of the competing sion about how those consider- circumstances, a particular of State’s tort particular in a should ations be resolved —Id., at-, cases, implemented at ease or set of and that law.” U.S. 116 S.Ct. specific conclusion via mandate on a manu- J., (Breyer, concurring).7 Cipollone’s rea producers. or facturers soning damage common about law actions —Id., -, at 116 S.Ct. vitality at thus retains its after Medtronic. (which Furthermore, gives Standard phrase prohibi- or “requirement Like the Ford a choice to either automatic seat- install safety Cipollone, “any tion” in standard” airbags) operates belts or on the same level broadly suggests and sweeps no distinction specificity Hams’ state claim as positive (which between enactments and common required would Ford install have to airbags).8 law. Unlike the narrow FDA that, (like law) Breyer applicability 7. Justice went on to remark in his tort is involved. Justice view, the MDA’s am- Breyer's analyzed only specifici- concurrence biguous and hence he turned to other consider- suggested ty requirement and of the Federal that to conclude that the Lohr’s claims were ations (e.g., “general” a law claims state law common pre-empted. Specifically, to he looked premised tort action on the failure use a 1- statute, clarity regulations, the federal the FDA aid) hearing pre-empted inch wire in would be "ordinary principles and and of 'conflict' 'field' by specific requirements. as "[I]nsofar Federal pre-emption.” pre-empts requirement the MDA a state embod- support view in Such considerations statute, rule, regulation, ied in a state or other pre-empts the Act Harris' case that First, claims. action, pre-empt also administrative it would Transporta- Congress, Department requirement similar that takes the form of a tion, Highway Transportation National imposed by standard of care or behavior a state- carefully weighed Administration Medtronic, airbags -U.S. advantages disadvantages law tort action.” at-- -, J., clearly (Breyer, determined that manufacturers should 116 S.Ct. concur- passive a choice of have restraints install. ring). plurality Medtronic in the Second, highly the federal standards are specific opinion require- about the need for state specific regard airbags. with See 49 C.F.R. Breyer's of Justice ments must read in above, Finally, § 571.208. noted in footnote analysis. Papike, 107 F.3d 741-42. There implied pre-emption. other circuits have found dispute in that if a state or is no this case statute regulation required airbags, Ford to install precludes 8. We do believe that Medtronic 1392(d). general pre-empted by § express pre-emption would be when a state law standard____” successful, effect, impose if any safety Harris’ tinue in ... liability massive on Ford for its decision to By operation Supremacy Clause, install automatic seatbelts rather than air- standard not identical bags. judgment A for Harris would have an Federal standard is “void” and “without ef- effect on Ford identical to a state statute or Louisiana, Maryland fect.” regulation requiring airbags in all vehicles. 746, 747, 2114, 2128-29, 2129, Furthermore, rule “[a] of the common law It is axiomatic that no permits recovery monetary which liability imposed could be for the breach of a damages self-evidently for its breach sets a “void,” effect,” standard which is “without standard____” County, Cox Baltimore which the authority state has no to establish (D.Md.1986) F.Supp. (concluding or enforce. 1392(d) claims). expressly § “no-airbag” bars Court has said as much True, 1397(k) § compliance states that asking and Medtronic. Harris is a with Federal standards exempt “does not judge jury apply appropriately what is any person any liability from under common perfor- characterized as a standard for “exempted” law.” To be liability, from how- equipment. mance of a vehicle or item of We ever, subject one must first be to it. And § conclude that expressly pre-empts removes the authority States’ action, Harris’, including state law causes of subject anyone liability for the breach of airbags failure to install non-identical standards. The most plausible reasonable reading B 1397(k), therefore, compliance is that We must next consider whether exempt anyone Federal standards does not 1397(k) may pro save Harris’ claim. It any liability from the States have au- “Compliance vides: Federal motor thority impose. vehicle standard issued under this subchapter exempt any person does not 1397(k) nullity. This does not render *6 1397(k). any liability § under common law.” Liability still exists under common law for a 1397(k) argues § logically Harris that must variety dealing of claims with automobile mean that state common law remedies safety. example, For where no Federal safe against automobile manufacturers are not ex exists, ty may standard manufacturers be pressly pre-empted by Act. The district design liable under common law for defects. agreed. court Freightliner Corp. Myrick, 1397(k) persuaded § We are not that 1483, 131 Oth isolation; rather, should be in construed that, er courts have ruled when manufactur 1392(d) 1397(k) §§ and must be construed ers airbag.pursuant choose install an together. § pur- The text of and its 208, they may Standard be liable for defects pose in the overall structure of Act- particular design connected with the of an ensuring uniformity national in stan- airbag as well as its Perry manufacture. See dards-clearly pre-empts common law claims. America, Inc., v. Mercedes Benz North of It is difficult why Congress to understand (5th Cir.1992). 957 F.2d 1265-66 would use broad in the 1397(k), the absence of manufacturers provision carving of the Act while out an might compliance claim that with all Federal exception to that for common law standards satisfies their common tort in part claims a different of the Act.9 law, they duties as a matter of and that 1392(d) deprives design

Section should not be liable for a the States of manufac “any authority establish, turing either to or to con- defect even when no Federal standard that, speculated Taylor 9. At least one Corp., court has when v. General Motors 875 F.2d 816 passed Congress the Act was (11th Cir.1989) did not (arguing that crashworthiness lit- foresee the use of common law actions to create igation contemplated by could have been Con- manufacturers, safety standards for automobile resolved, gress). point, We think this however is and hence did not harmonize and because, below, not decisive as we conclude 1397(k). Corp., See Wood v. General Motors provisions two can be harmonized. (1st 865 F.2d Cir. see But 1397(k) traffic argu- resulting sons accidents. that forecloses exists. Section Therefore, ment; that it pre-emption. determines it does not vitiate necessary to establish motor vehicle

IV for motor vehicles1 and standards commerce; interstate airbag” “no claims Because Harris’ support necessary safety undertake and pre-empted by the expressly Ford are development; summary and and to ex- denying partial research order register. judgment pand case is the national driver is REVERSED and the the district with in- court REMANDED (as and This recodified amended section summary judgment to enter structions 1994) Purpose 30101 entitled predi- those causes of action favor of Ford on Policy purpose this and reads: “The of airbags, to install and cated Ford’s failure on chapter traffic and to reduce accidents remaining proceedings on for further injuries resulting from ac- deaths traffic matters. unresolved Congress has never to list cidents.” chosen and REMANDED. REVERSED separate purpose, uniformity as a even though the issue SICKLE, Judge, dissenting: District VAN bag” claims been common law “no air had Introduction raised times. numerous District I affirm the Court’s denial subsidiary goals defendant-appellant’s par- motion for manufacturers, flexibility revealed in the summary judgment, and that as a tial hold objectives clearly only legislative history, are law, tort claims are not matter of they support primary extent preempted either the Act or Stan- safety. goal increasing The record of the majority’s disagree dard I with the legislative history supports interpreta- objective primary assertion that a tion: uniformity Safety Act was to create national centralized, production, high mass vol- standards, where, particularly ume of the motor vehicle manu- character here, undis- it would conflict the Act’s industry in facturing the United States puted improving enhancing purpose requires that motor vehicle safety. My analysis motor vehicle only strong adequately dards framework, text, purpose Act’s structure enforced, they be uniform but designed that it lead me to conclude throughout country____ Accordingly, improved safety by motor achieve vehicle preempted only if State standards are establishing minimum standards. *7 they appli- from Federal standards differ Analysis Purpose of in of the Statement aspect cable of particular the vehicle Safety the Act Text of the equipment. or item of vehicle The States Safety Act in- The text of the reveals no stringent permitted are to set more also achieving except tention of as a requirements procurement. own for their establishing safety minimum stan- method Moreover, the Federal minimum Congress explicit pur- was the dards. about interpreted not be standards need as re- pose Safety designed Act. It of the was stricting common law standards safety by promote establishing vehicle feder- Compliance care. with such standards standards, al and the text reveals no other necessarily any per- not thus shield purpose. liability product son at common law. Congressional Declara- (em- 89-1301, Rep. S. 1966 WL at 12 Purpose tion of added). phasis Congress hereby pur- declares that the addition, only In chapter Standard 208 states that: pose of this traffic reduce injuries per- purpose and deaths and “The of this standard is to reduce accidents " cable, fact, 1391(2) U.S.C. the need for vehicle In states: 'Motor which meets motor provides objective means a vehicle standards' minimum and which criteria.” nearly performance, dard motor vehicle or motor The 1994 for recodification identical. 30102(9). performance, practi- U.S.C. vehicle which is occupants, particularly the number of deaths of vehicle in areas of traditional state au- severity injuries, by specifying law,2 and the thority as tort and with the clear —such requirements vehicle crashworthiness clause, language savings broad of the I can- terms of forces and accelerations measured agree not that state common law claims are crashes, anthropomorphic on dummies in test preempted, by specifying equipment requirements Analysis Savings of the Clause of the Safe- passive systems.” for active and restraint tyAct 571.208CS2)(1995). C.F.R. Standard 208 uniformity goal, makes no mention of as a let language The savings the clause of the primary goal rivaling safety alone as Safety given plain meaning its and ex- only significance, or as the method which Safety only amined of the Act’s ex- is to be ensured. The cites press goal, Congress shows pre- intended to descriptions in other circuit court decisions of serve common law claims. the face of a long agonized history the of Standard contentious, litigious and longstanding debate relevant, however, history 208. This is not airbags, Congress over has not seen fit to determining Congress’ statutory purpose. ‘clarify’ revise or language savings the What, example, particular for individual Yet, majority’s joint clause. the reading of may administrator have believed or said the express two clauses is that preemp- regulation necessary about what sort of tion clause eliminates all state law Safety objectives to achieve simply Act’s savings merely and that prevents clause trump cannot serve the clear an compliance absolute defense of Safety Act with feder- itself. suppose al law. There is no reason to uniformity National of motor vehicle Congress preserve only intended to state law ancillary goal, standards is at most an subor- of, example, claims for defective manufacture primary goal improved dinate to the motor design regulated by in areas not the feder- Indeed, safety. Congress vehicle has chosen government, eliminating al while all claims uniformity principal goal articulate as a regulated which touch on areas important purpose where has been an be- result, Act. If why that was the intended e.g., Transporta- hind a statute. See CSX tion, Easterwood, sweeping language? savings use such U.S. 1732, 1736-37, 123 L.Ed.2d 387 clause simply refers to “the common law”3 (1993)(quoting law, of the Federal with no restriction to a of that subset Railway Safety Act which elaborates on na- particular Further, causes of action. — uniformity goal). tional Appellant does Medtronic, supra, Court seriously airbags contest enhance at---, 2249-50, safety. argue It is convoluted to that state presumption pre- held that might impose liability common law which emption police power regulations of state airbags, failure to install and thus advance applied only should be to determine primary purpose, Act’s should be preemption, whether intended preempted satisfy implicit ancillary ob- scope but also to determine the ex- jective. press preemption. presumption against *8 preemption supports interpretation a narrow pri- When deference to the Act’s mary objective express preemption of even an clause combined the histori- and is cally strong presumption against preemption- “consistent with both federalism concerns 504, Liggett Group, security persons property, 2. which derive 112 S.Ct. 120 L.Ed.2d 407 authority solely usages their from and customs - Medtronic, Lohr, (1992); -, antiquity, judg- of immemorial or from the ---, 2240, 2249-50, recognizing, ments and decrees of the courts affirming, enforcing usages such and cus- general body toms ... it is a of law that Dictionary 3. Black's Law defines common law: judicial develops through and derives deci- distinguished statutory as from law created sions, distinguished legislative as enact- legislatures, the enactment of the common law ments. comprises body principles of those action, ed., relating government Dictionary rules of Blacks Law regulation primacy historie of state and the safety.” Id. of health and

of matters

Conclusion

There is not sufficient basis assume what it Congress did not understand passed doing when express clearly when it it could not itself preservation of common so. The

did and/*the for states set

claims allowance procurement

higher standards in their own exceptions

processes to be the twin were uniformity. savings ignore the

national To

clause, reading impose or to a convoluted on

it, supplant meaning in- is to

tended, meaning this court divergent agree Because with the

prefers. I cannot primacy on the interpretation savings proper

clause, respectfully I must dissent. POLIDO, individually; Matthew

Celeste Polido, person Poli

K. minor Celeste guardian, Plaintiffs-Appellants,

do FARM AUTOMOBILE

STATE MUTUAL COMPANY,

INSURANCE

Defendant-Appellee.

No. 95-16756. Appeals,

United States Court of

Ninth Circuit.

Argued and 1996. Submitted Nov.

Submission Deferred Nov. 1996.

Resubmitted March 1997. April

Decided