Moore v. Brunswick Bowling & Billiards Corp.

promise agreement, forceable unless the or it,

or a memorandum of

(1) in writing; and

(2) signed by person to be

charged promise agreement with the or lawfully

or someone authorized to

sign for him.

(b) (a) applies Subsection this section

to: contract, agreement, promise, warranty relating of cure to medical by physi-

care or results thereof made provider

cian or health care as defined 1.03, Liability Section Medical Improvement

Insurance Act of Texas. apply pharma-

This section shall not

cists. 26.01(b)(8)

Tex.Bus. & Com.Code Ann. 1987).5 (Vernon reasons,

For these I would reverse the appeals of the court of and render

judgment for Sorokolit. MOORE, Individually

Shannon By Friend, Next Donal Moore, Petitioners,

R.

BRUNSWICK BOWLING & BILLIARDS

CORPORATION, Mercury Division, In dividually and dba Outboard Mercruiser;

Motors and Vivian and/or Plastics, Individually Industrial Boats, Respondents.

and dba V.I.P.

No. D-3997.

Supreme Court of Texas.

Argued Feb. 1994. April

Decided 1994.

Rehearing Overruled June 1994.

Certiorari Denied Dec.

See 115 allegations solely at 240. 5. Rhodes' are based on oral 889 S.W.2d supra misrepresentations and warranties. See liability.2 Moore contended that

and strict defectively designed the motor was propeller guard. it did not include Mercu- ry summary judgment moved for grounds products liability that Moore’s suit preempted by Safety was the Federal Boat Mercury’s granted Act. The trial court mo- tion, stating in its order that Moore’s claims preempted by were federal law. To serve judicial economy, parties agreed that the summary judgment should also be rendered V.I.P., on Moore’s identical claims necessity filing sepa- without the of V.I.P. granted rate motion. The trial court then severance, Mercury and V.I.P.’s motion for whereupon summary judgment the became purposes appeal. final for the of The court Paster, Houston, petitioners. Neal H. for affirmed, appeals agreeing that Moore’s Lewis, Lewis, Jr., James B. H. Lee Hous- preempted. claims were 853 S.W.2d 842. ton,' respondents. The doctrine of federal is CORNYN, Justice, opinion supremacy rooted in the delivered the clause of Article VI Court, Constitution, GONZALEZ, the in which the United States which DOGGETT, GAMMAGE, states that the laws of the United SPECTOR and States ENOCH, Justices, Land; join. supreme “shall be the Law of the ... any Thing in the Constitution or Laws of presents question This ease of whether Contrary notwithstanding.” State to the the Federal Boat 46 U.S.C. VI, U.S. Const. art. cl. 2. Thus a state law 4301-4311, §§ preempts a state law tort that conflicts with federal law is “without claim that a boat was defective because it —Inc., Cipollone Liggett Group, effect.” propeller guard. lacked a We hold that such -, 2608, 2617, expressly claims are neither impliedly nor (1992). L.Ed.2d 407 The “ultimate touch preempted by Therefore, the Act. we re- preemption analysis congression stone” of verse the appeals of the court of al intent. Malone White Motor and remand to the trial court for further 98 S.Ct. 55 L.Ed.2d proceedings. (1978) (quoting Retail Clerks v. Scherme 4,1986, May On Petitioner Shannon Moore rhorn, 223, 11 swimming was in the San Bernard River (1963)). County Brazoria by when she was struck propeller of a may supersede motorboat. The boat was Federal by Respondent ways. Congress may explic mаnufactured Vivian Indus- law different Plastics, Inc., (V.I.P.), trial itly and contained a its intent lan motor guage Hillsborough and drive unit manufactured Re- of a federal statute. See Labs., Inc., spondent Bowling County Brunswick & Billiards v. Automated Medical Corp., Mercury (Mercury). Division Shan- injuries right Preemption may pre

non suffered to her arm from L.Ed.2d 714 propeller, equipped legislation perva which was not with a sumed when federal is “so Moore, guard. Donal next sive as to make reasonable the inference that Shannon’s friend,1 sup sued and V.I.P. in state left no room for the States it,” negligence plement district court under theories or touches “field which the accident, operators 1. At the time Shannon Moore 2. Moore also sued the owners and boat, majority a minor. was She attained her while parties appeal. who are not to this pеnding. this suit was personal injury interest is so dominant that the public. fed- 46 U.S.C. system 4302(c)(3). eral will preclude be assumed to en- subject.” forcement of state laws on the same legislative history Congress’ The indicates Rice v. Santa Fe Elevator uniformity necessary belief that 91 L.Ed. 1447 goals achieve the of the Act: “The need for (1947). Finally, preempted state law is uniformity in if standards interstate com- actually the extent it conflicts with federal unduly impeded supports merce is not to be law. law State conflicts with federal the establishment of uniform construction impossible comply when it is with the law equipment and standards at the Federal lev- both, Hillsborough, of see 471 U.S. at el.” 1971 at U.S.C.C.A.N. 1335.4 The lan- or when state law “stands guage of the Act also reflects this desire for accomplishment as an obstacle to the and degree uniformity. some of Seсtion objectives execution of full purposes the and Preemption,” provides: entitled “Federal Congress.”

of Paper International Co. Ouellette, permitted by Unless Secretary the under title, political The section 4305 of this a or term “fed- State eral ‍​​​‌‌‌​​​​‌‌​​​​‌‌‌‌‌​‌‌‌‌‌​​‌‌‌​‌​​​‌​‌‌‌​​​‌​‌‍regulations establish, law” this context may includes subdivision of a State effect, as well as Hillsborough, statutes. See continue in or enforce a law or 105 S.Ct. at 2375. regulation establishing a recreational ves- equipment performance sel or associated To determine whether law is safety imposing or other standard or case, preempted in this we must first exam- (ex- requirement equipment for associated history, purpose, ine the and cept political insofar as the State or subdi- Safety origi- Federal Boat Act. The Act was may, vision in the of absence the Secre- nally promulgated improve boating safety “to tary’s disapproval, regulate carrying the or by requiring provide manufacturers safer safety use of marine articles to meet boating equipment boats and public uniquely hazardous conditions or circum- through compliance with standards to State) stances within the that is not identi- promulgated by Secretary the of the De- regulation prescribed cal to a under sec- partment in operat- which the Coast is Guard tion 4302 of this title. ing presently Secretary Transporta- the 3 S.Rep. tion.” Cong., No. 92d 1st Sess. “savings The Act also contains a clause” (1971), reprinted in 1971 U.S.C.C.A.N. § 4311(g), provides: which prescribing regulations 1333. Before estab- standards, Compliance chapter with this or lishing safety standards under the the regulations, prescribed or orders under Secretary must consult with the National chapter person does not relieve a from Boating Advisory concerning Council liability at common law or under law. State the need for the and the extent to Mercury5 which it will contends Moore’s claims enhance recreational vessel safe- 4302(c)(4). ty. expressly preempted by are the combination pass regu- U.S.C. To compelling lation of 4306 and the Coast Guard’s decision not substantial future alteration piece propeller guards through regula- of a or to mandate equipment, vessel of associated tion, Secretary determine, the report. must first with the as evidenced Coast Guard Council, help Advisory Secretary In regula- of the Coast Guard necessary Advisory tion is to avoid a substantial risk of instructed the Council to investi- Secretary Transportation delegated regulations appli- 3. The has the Act was to standardize the powers and duties under the Act Secre- cable to the manufacture of recreational vessels tary of the Coast Guard. H.R.Rep. No. and to establish uniform standards for recre- (1983), Cong., reprinted 98th 1st Sess. 122-23 numbering safety equip- ational vessel ment.”). 924, 934-35; H.R.Rep. 1983 U.S.C.C.A.N. No. (1988), Cong., reprinted 100th 2d Sess. 9 1988 U.S.C.C.A.N. 5.Although V.I.P. did not file a brief with this court, argument Mercury’s at oral counsel stated 4. See also Andrew W. Anderson & David Fam- F. represented the that he also interests of V.I.P. ulari, Boats, Practice Guide: Pleasure (1992) ("The purpose U.S.F.Mar.L.J. gate feasibility requiring guards argues to with that decision. Moore that her accidents, prevent underwater expressly preserved under the claims subsequently appointed the Council a “Pro- plain language clause in peller Guard Subcommittee.” The Subcom- § 4311(g). mittee recommended that “the Coast Guard should take no action to determining When whether such an (1) require propeller guards,” concluding that preempts clause indeed current can be “counter^ law, assumption we “start with the productive create new hazards police powers the historic of the States were equal greater consequence,” no univer- superseded by not to be the Federal Act available, design presently making sal pur unless was the clear and manifest retrofitting cost of the millions of boats — pose Congress.” Cipollone, U.S. at (3) country prohibitive, this boating and “the Rice, (quoting 112 S.Ct. at 2617 public must not be thinking misled into there 1162). at purpose U.S. 67 S.Ct. at The is a ‘safe’ device which would eliminate or presumption provide of such a is to “assur significantly injuries reduce such or fatali- аnce that the ‘federal-state balance’ ... will Report ties.” Propeller See Guard unintentionally by not be Congress disturbed (November Subcommittee, 1989). at 20-24 unnecessarily by or the courts.” Jones Advisory The approved report, Council Co., Packing The Rath 430 U.S. and the accepted Coast Guard all of the This Subcommittee’s recommendations. See Let- presumption against preemption particularly Nelson, ter from Robert T. Rear Admiral when, case, obtains inas this Guard, Chief, Navigation U.S. Coast Office of of health and matters is involved. See Waterway Services Mr. A. Newell Hillsborough, 471 U.S. 105 S.Ct. at Garden, 1990). Chairman, (February Mercury plain contends that the lan The Coast position Guard’s stated was that guage §of 4306 indicates that common law propeller guard “available accident data do regulations suits not identicаl to federal support imposition not regulation requir- of a preempted. recognize We that the term ing propeller guards motorboats,” noting on can “law” include both common law and stat guard that a fitting types all of boats was not utory However, Cipollone, law. the Su then feasible retrofitting and that the cost of preme generally pre Court stated that “the major millions of boats was a economic con- sumption against pre-emption might give sideration. agreed The Coast Guard to con- good phrase reason to construe the ‘state propeller guard tinue to monitor accident any improvements pre-emption provision data and law' in a propeller more narrow guard technology. ly phrase Id. than an identical in another con — at -, text.” 112 S.Ct. at Mercury’s The crux argument is that recognize jury 2620-21. We also that awards regulation” § the term or “law in the regulation. can have effect akin to preemption encompasses clause common-law at -, Cipollone, jury tort claims because damages awards of (“[Regulation effectively can be as exerted by requiring have a effect defen- through damages through an award of companies dant to install preventive some form of relief. The obli upon liability.6 Mercury posits threat of that gation pay compensation be, is indeed only such awards would not not be “identical” be, designed potent governing method of Guard’s decision not to Coast controlling policy.”) conduct and guards regulations concerning (quoting mandate or Garmon, guards, Diego Bldg. but also would create a direct conflict San Trades Council v. assumes, course, (Tex. 1979). plaintiffs will that S.W.2d Our prevail on their claims that motors without preempted prevent Moore’s claim is not does not guards defectively designed. were To determine party presenting either from its own evidence of product defectively designed, whether technological feasibility and economic aof jury utility product must balance Houston, guard. See Boatland Inc. gravity injury from the likelihood (Tex.1980). Bailey, 609 S.W.2d Corp., 584 its use. Turner v. General Motors See, e.g., of a clause. Domestic (1959)). However, regulato Housing Recovery Fi- L.Ed.2d 775 and International §§ ry positive Stability nancial 1715z- effect is not as direct as that of U.S.C. -18(e) (1989) 17(d), any Goodyear Corp. (preempting Atomic “State enactments. See Miller, constitution, statute, decree, court 185-86 n. common (1988) (stat 1704, 1712-13, law, rule, public policy”); Copyright Act 301(a) (1977) reasonably (preempting § ing Congress may determine 17 U.S.C. given regulato rights in a that the “incidental “under the common law or statutes of ease State”); ry Employee pressure” of state common-law actions is Retirement Income 1144(a), Security § acceptable regulatory au Act of when direct state U.S.C. Co., (c)(1) (1985) “laws, not); English (preempting thority Elec. all state deci- General sions, rules, regulations, or other State action law”). (holding regulato having that the the effect of ry petitioner’s effect of state common-law The existence of the clause also claims was direct nor substantial “neither buttresses our construction of 4306. Sec enough” place preempted them within the conjunction tion 4306 must be read with field). precepts We conclude 4311(g).7 4311(g) demonstrates Section narrowly preemption clauses must be con only explicit knew how to Congress’ preempt strued and that intent to desired, ly it refer to common law when so must “clear and manifest” counsel us to be Congress but also that did not mean to regulation” broadly “law or so decline read preempt actions under all state tort as to include state common-law claims. See Mercury urges § that read 4306. we 2275; English, 496 U.S. 4311(g) narrowly expressly preserve § Products, al., see also Alan J. Lazarus et only regu claims based on state common-law Liability, An General and Consumer Law: that to fed lations and statutes are identical Survey Developments, 28 nual Recent eral ones. See Shields Outboard Marine (1993) (“The TORT & Ins.L.J. (M.D.Ga.1991). F.Supp. Cipollone preemption lessons of are that the savings a construction would render the Such applied nаrrowly, that defense will be redundant, assuming even clause regula preemptive language of a statute or actions, § applies that to common-law it interpreted strictly, tion will be and that few establishing a stan would not bar an action damage preempt will state-law claims Mer dard “identical” to a federal standard. ed.”). cury urges 4311(g) preserves § also that militating against concerning safety areas which the fed

An additional factor claims regulation” government has not addressed. While reading the term “law or so eral broadly Congress reading plausible, we find no is that in other enactments this is more language legisla in statute or explicitly has referred to state common law basis scope history it for such a narrow construction.8 when it meant to include within tive Similarly, reject reasoning Cipollone, phrаse behind the In the Court construed the we appeals' v. Out court of distinction of Mulhern "requirement prohibition under state law” in Corp., 146 Wis.2d 432 N.W.2d board Marine Cigarette Labeling Advertising the Federal (Wis.Ct.App.1988), and Rubin v. Brutus preemption clause to include some com Act’s (Fla.Dist.Ct.App.1986). Corp., 487 So.2d 360 at -, mon law claims. 112 S.Ct. at holding read these cases as that The court however, Cipollone, 2621. The statute at issue in using 4311(g) prevents § a manufacturer from clause; consequently did not contain compliance standards with the minimum ‘good had reason to believe’ that the Court "no Safety Act as a set forth in the Federal Boat Congress meant less than what it said.” Id. at liability defectively designed defense for 112 S.Ct. at 2620. The Court also based its safety products "actually that are installed." reading of the clause’s broad reading of S.W.2d at 845-46. Such a history Congress legislаtive of the Act: when 4311(g) the court of is not consistent with "obviously amended the Act in 1969 it added regulation” appeals’ “law or determination that pre language" “extended ... [the] broader that includes common-law actions. If common-law original preemption emptive reach” of the encompassed by then tort actions are at -, 112 S.Ct. at 2621. clause. Id. would actions like those in Rubin and Mulhern holding Mercury Our urges jury should not be that a in award this lightly part inferred in this case rests on case conflict will with and undermine the significant state interest at issue. The goals by creating of the Act a standard re State of Texas has a decided interest quiring propeller guards, in the face of the providing compensation and relief for its citi- Coast Guard’s determination that injured waterways. zens who are on its This guards not should be mandated. pаrticularly interest acute because the points holding to eases failure provide Federal Boat Act does not regulate preemptive can have the same effect compensatory remedies. Silkwood Cf. See, regulate. e.g., as a decision to Trans 238, 251, Corp., 464 Kerr-McGee Pipe Corp. continental Gas Line v. State Oil 615, 623, (1984) (stating Bd., & Gas the lack of congressional evidence of Arkansas Elec. intent to bar state common-law remedies Comm’n, Coop. Corp. v. Arkansas Pub. Serv. significance “takes on light added of Con- gress’ provide any remedy failure to recognize poten We conduct”).9 persons injured by for such Giv- conflict, justifies tial for but do think it interest, en Congress this state must demon- preemption.10 arguable It is strate its intent to such remedies Coast Guard’s decision that clear and certаin Maryland terms. See guards regulated should not be does not re Louisiana, flect an intention to foreclose state tort liabil (1981) (“Consideration First, above, ity. as noted Supremacy under the Clause starts with the damage effect equivalent awards is not assumption basic did not in- positive that of enactments: manufacturer law.”); displace tend to Bethlehem Steel liability failing who incurs tort to install Bd., v.Co. New York State Labor Relations propeller guards has a choice not available to 67 S.Ct. regulated the installing (Frankfurter, J., L.Ed. 1234 separate manufacturer — guards taking on future boats or opinion) (“Any no action indulgence in construction bearing liability and States, doing should be in the as a cost of favor of the Congress 185-86, speak Goodyear, with clarity drastic business. See 486 U.S. at whenever it chooses to (stating assure full federal 1712-1713 that the de States”). authority, completely displacing “may disregard” safety the fendant choose to the still create ry standards not “identical” to federal construction must in the first instance focus regulations. clause, plain wording of the which neces- sarily Congress' contains the best evidence of intent.”). Safety 9. The provides pre-emptive Federal Boat Act for civil penalties paid government to be to the federal Cipollone, After a number of federal circuit permits Attorney and the General to file suits questioned propriety courts have the of an im seeking 4311(a) (f). injunction. an See — plied preemption analysis presented when with express preemption Myrick an clause. v. Freu respect, Mercury’s argument 10. In this resembles 1516, (11th Corp., 13 F.3d Cir. hauf implied preemption argument. an Cipоllone, In 1994); 1391, ‍​​​‌‌‌​​​​‌‌​​​​‌‌‌‌‌​‌‌‌‌‌​​‌‌‌​‌​​​‌​‌‌‌​​​‌​‌‍Draper Chiapuzio, v. F.3d specifically preemption Court limited its (9th 1993); Co, Cyanamid Cir. Worm v. American analysis express preemp to examination of the (4th 1993); Kinley Corp. F.3d Cir. Cigarette Labeling tion clause in the and Adver Bd., (8th 1993); Iowa Utils. 999 F.2d Cir. at -, tising Cipollone, Act. See -U.S. Stamps Collagen Corp., 984 F.2d ("When Congress S.Ct. at 2618 has considered — (5th denied, Cir.), -, cert. 114 S.Ct. pre-emption the issue of and has included in the (1993); Piper Cleveland legislation provision explicitly enacted address (10th Cir.), Corp., 985 F.2d issue, ing provision provides that and when that Aircraft — denied, cert. 114 congressional a ‘reliable indicium of intent with Movement, Agric. American respect authority,' to state ... 'there is no need Trade, (7th Inc. v. Board 977 F.2d congressional pre-empt to infer intent to 1992); Massachusetts, Cir. GreenwoodTrust v.Co. provisions' legis laws from the substantive lation.”); of the Easterwood, (1st Cir.1992), Trаnsp., see also CSX -, Inc. -,U.S. - U.S. -, discussion, (1993) ("If however, purposes the statute contains For of this we clause, Mercury’s implied preemption the task of statuto- address claims. imposed by pay regulations “only Act are minimum

standards state tort law and awarded). Second, damages they safety provide pri- are as standards which do not Propeller Report remedies”); Rubin, Subcommittee mentions vate tort 487 So.2d at (in that manufacturers have been sued for not suit manufacturer for defec- installing propeller guards, recognizes standards, reject- tive seat that met federal requirement that a federal ing idea that the Act “is intended to be the guards prima would establish a facie case of for a lia- exclusive basis boat manufacturer’s liability in manufacturer some states. See bility damages under maritime or civil Rеport Propeller of the Guard Subcommit- law”).11 However, light tee, at 4-5. Thus even if the Coast Guard apparent turn stricter Court’s determination, carrying made analysis, supra see note we do not find preemptive weight, reasoning persuasive. their See also regulated, preemptive effect should not be its Famulari, supra at 105 Anderson & note necessarily would not include state common (arguing regulations Guard Coast law. standards, leaving minimum are room for requiring state common-law claims additional addition, In believe that we equipment). or stricter measures willing clause reflects concept tolerate some tension between the hold that tort claims We Moore’s safety regulations that uniform should be preempted by are not the Federal Boat Safe- established at the federal level аnd the con- ty Act. Therefore we reverse cept may that a state nevertheless award tort appeals of the court of and remand the cause Silkwood, damages products. for unsafe Cf. proceedings. to the trial court for further at 625. While uniformity goals is indeed one of the PHILLIPS, Justice, dissenting, Chief Act, costs, it is not to be obtained at all HECHT, joined by HIGHTOWER by exception for non-identical evidenced Justices. necessary state standards when to meet respectfully Although agree I I dissent. “uniquely hazardous conditions” within the that state law tort claims based on the failure 4306; state. see also propeller guard expressly to install a are not U.S.C.C.A.N. at 1341. The broad I preempted the Federal Boat § 4311(g), ambiguity, while not free from they impliedly preempted. believe preserved. directs that Moore’s clаims be Therefore, judgment I affirm the would recognize We that our conflicts appeals. the court of that with the four courts have considered the jury damage awards can Because preemption of state law tort actions based on effect, regulatory we must have an indirect guards. the failure to install See claim that the boat examine whether Moore’s Bayliner Corp., Shield v. Marine 822 defectively designed it lacked a (D.Conn.1993); F.Supp. v. Shields impliedly propeller guard is nevertheless Corp., F.Supp. Outboard Marine pur preempted because it conflicts with (M.D.Ga.1991); Mowery Mercury regulatory scheme. (N.D.Ohio poses of the Act and its Marine, F.Supp. —Inc., Cipollone Liggett Group, U.S. See 1991); Corp., Ill. Farner v. Brunswick 2608, 2620, -, -, 120 L.Ed.2d S.Ct. App.3d 180 Ill.Dec. 607 N.E.2d effectively (“[Rjegulation can be as (Ct.1992); Mulhern, 432 N.W.2d but see damages through an award of exerted (holding in manufac at 135 suit through preventive form of relief. The some for throttle which met federal turer defective be, standards, pay compensation in obligation im to expressly 4306 does not be, designed potent to a method of tort claims because the deed is pliedly (Ala. Marine 584 So.2d We note that the Alabama courts have Outboard also 1991); Corp., 903 F.2d 1505 Ala Elliott v. Brunswick entertained suits like the instant one under law, (11th Cir.1990), although expressly 498 U.S. tort without ad bama (1991) (applying dressing preemption. Ala Veal v. 112 L.Ed.2d the issue of suit). (Ala.1991); diversity Teleflex, law a Beech v. bama in 586 So.2d 188 governing controlling policy.” Oberly, conduct and Baltimore & Ohio Railroad Co. v. (3d Cir.1988). (quoting Diego Building San Trades Council Garmon, 236, 247, principle applies This here because the (1959))). 780, 3 L.Ed.2d 775 Moore concedes Coast Guard made a decision that a judicial imposition liability failing regulation mandating propeller guards is not Rico, propeller guards may install force manu- warranted at this time. See Puerto 503-04, (explaining at 1355 guards. to install such facturers She candid- quoted language is not meant in an ly concedes as well that the decision to install sense, unqualified only applies but rather guards may expose also manufacturers to “comprehensive where a federal scheme in- liability. consequence merely Either tentionally portion regulated leaves a for,” contends; juries “what we have she controls”) added); (emphasis field without cf. since the passed Coast Guard has not Electric, Arkansas 461 U.S. at 103 S.Ct. subject propeller guards, (holding principle at 1912 that this did there is no conflict with federal law. apply agency on the facts because the fedеral me, policy” did not determine “as a matter argument To this does not accord given unregulated); area should be left proper significance to the Coast Guard’s af Toy Manufacturers, (deny- 986 F.2d at 622 firmative unregu decision leave this area ing preemptive effect to a federal decision lated. As the repeatedly Court has labels, regulate warning not to where the held, “a forgo regulation federal decision to agency had made no about the given may in a imply area an authoritative efficacy warning of or need for a re- label federal determination that the area is best case, Guard, quirement). In this the Coast regulated, left un and in that event would in adopting addition to the Subcommittee’s pre-emptive have as much force as a decision recommendation thаt it take “no regulate.” Cooperative Arkansas Electric require propeller guards,”1 specifi- action to Corp. v. Arkansas Public Senice Commis cally stated that should not sion, 375, 384, 461 U.S. 103 S.Ct. be mandated because of the lack of a feasible (1983) (emphasis original); propeller guard universal and the economic Pipe Transcontinental Corp. Gas Line require- costs would attend such Board, State &Oil Gas Nelson, ment. Letter from Robert T. Rear (1986); 106 S.Ct. Admiral, Chief, Guard, U.S. Coast Office of Department Puerto Rico Consumer Af Navigation Safety Waterway Services to v. Isla Petroleum fairs Garden, Chairman, NBSAC, Mr. A. Newell 1990). (February Allowing jury at 1 (1988); Boats, Bonito Inc. v. Thunder impose damages Craft on manufacturer Boats, Inc., 141, 151-52, 489 context would effect create a stan- 971, 977-78, 103 see also dard direct conflict with the Coast Guard’s America, Toy Inс. v. Blu determination that manufacturers should not Manufacturers of menthal, 615, (2d Cir.1992); 986 F.2d required propeller guards2 be to install and (1) 1. The Subcommittee expresses opinion concluded that current the Subcommittee no on the suits, "counter-productive viability of and the such Coast Guard letter equal greater can create new hazards of or con- adopting the Subcommittee’s recommendations (2) sequence,” design presently no universal is litigation. does not refer to such available, making retrofitting the cost of the mil- argues Moore Subcommittee’s investi- (3) country prohibitive, lions of boats in this extensive, exhaustive, gation, while was not "boating public the thinking must not be misled into implies expert that some of the evidence and a there is 'safe' device which would testimony by considered actu- Subcommittee significantly injuries eliminate or reduce such or ally against preemption. militated Moore con- Boating Safety Advisory fatalities." See National concerning [NBSAC], tends that a "fact issue” exists Report Propeller Council of the (Nov. 7, 1989). Guard However, Subcommittee, feasibility guards. propeller for at 22-24 In a purposes ascertaining preemptive "Key effect of report of the section ered entitled Points Cov- Materials," by Input the Coast Guard’s determination that a Verbal and Written desirable, guard requirement Subcommittee would not be notes that a number of lawsuits against have been filed of the wisdom of a deci- manufacturers for failure Court’s estimation such However, propeller guards. to install Id. at 4. sion irrelevant. is (citation omitted)); goal uniformity saving with the Act’s clause.’” Cleve Thus, 1438, standards. while Moore’s claims are Piрer Corp., land v. 985 F.2d Aircraft — 4306, (10th expressly preempted by they Cir.), denied, not 1443 n. 11 cert. U.S. impliedly preempted specific (1993) -, based 126 L.Ed.2d 240 S.Ct. policy (“[T]he decision the Coast Guard and the [Supreme] limited a sav Court has uniformity embraced the Act. ings presents clause if it ‘an irreconcilable statutory conflict between the scheme and language savings compli The clause remedies,’ persistence of common-law cates, alter, but does not this conclusion. carefully [a] ... ‍​​​‌‌‌​​​​‌‌​​​​‌‌‌‌‌​‌‌‌‌‌​​‌‌‌​‌​​​‌​‌‌‌​​​‌​‌‍or if it would ‘undermine review, implied preemption Under courts do (citations omitted)); drawn statute.’” Buz apply presumption against pre not the same Inc., Trucking, zard v. Roadrunner 966 F.2d emption express preemption as under review. (3d Cir.1992) (“A savings 780-81 n. 6 Casey, See Felder v. 487 U.S. (1988) preserve ... S.Ct. 101 L.Ed.2d 123 clause does not state common (“ law.”) (citing importance relative to the State of law actions that subvert federal ‘[T]he Ouellette); Co., Pokomy its own law is not material when there is a Ford Motor law,’ (3d ‘any Cir.), denied, conflict with a valid federal F.2d cert. law, clearly however within a State’s 853, 111 U.S. S.Ct. L.Ed.2d 113 acknowledged power, (1990) (“[I]t which interferes with savings is well-established that a ” law, contrary yield.’ or is federal must ... ac clause does not ‘save’ common law Bland, (quoting Free v. statutory tions that would subvert federal (1962))); S.Ct. 8 L.Ed.2d 180 scheme.”); v. General Wood Taylor Cir.1988), Corp., v. General Motors 875 F.2d (1st Motors (11th denied, Cir.1989), rt. U.S. S.Ct. ce (1990) (“Ouellette 1781, 108 L.Ed.2d 782 be (1990) (“[I]n strong presump contrast to the supposed principle general that a liefs] the apply in tion that we savings precludes looking clause court from determining whether the of a feder implied preemption.”); Chicago into also see regulation expressly preempts al statute or Transportation & North Western Co. v. Kalo law, presumption applicable no such Co., 311, 328-31, 101 Brick & Tile deciding whether state law conflicts with 1124, 1135-37, S.Ct. law, subject federal even where the (where plainly state common-law action was traditionally regarded state law is a matter contrary purposes of the federal stat properly scope within the of the states’ ute, “not free to assume” that Court was circumstances, rights.”). In such preserved). Nothing in such action had been courts have not read a clause to history legislative of the Act evinces eviscerate the federal In Interna statute. intent to allow state law claims clash Ouellette, Paper Company tional the Su purposes regulato with the of the Act and its presume preme Court declined to that Con ry scheme.3 gress intended to undermine its own statute Implied preemption review is foreclosed through general savings clause. 479 U.S. only clause where congression Airlines, “provides indicium of a ‘reliable see Morales v. Trans World ” — authority.’ -, respect to state al intent with at -, (1992)(“As Cipollone, 2037, 119 Interna Ouellette, (quoting Motor Paper Malone White tional Co. v. ‘we do 505, 497, 1185, 1190,55 L.Ed.2d Congress to this U.S. 98 S.Ct. believe intended undermine (1978)); Toy Manufacturers, carefully through general see drawn statute legislative history distinguishable from Silkwood found direct evidence in 3. Thus this case is Congress’ Corporation, intent to allow the "tension" between v. Keir-McGee 464 U.S. (1984), lay principles. these two It did not down 104 S.Ct. 78 L.Ed.2d 443 where general savings damages general for nucle- rule that clauses reflect the Court held that state tort safety congressional between did not conflict with laws sаnction of the tension ar violations clashing products government vesting with the exclusive the federal Wood, authority regulate safety. liability at 413. nuclear The Court law. See 865 F.2d to 623-24; Cyan Worm v. American F.2d at enforcing any safety from standard which Co., (4th amid 744, Cir.1993); 5 F.3d safety to a is identical Federal standard. Co., (11th Papas Upjohn 516, 985 F.2d 1397(k), Section entitled “Continuation of denied, Cir.), cert. -, 114 S.Ct. liability,” provides: common law 300, (1993); v. Ford Gills 126 L.Ed.2d 248 Co., 894, Motor F.Supp. (W.D.Ky. 897-98 Compliance any with Federal motor ve- 1993); Covey Surgidev Corp., F.Supp. hicle standard issued under (N.D.Ohio 1089, 1993); Burke v. Dow subchapter exempt any person does not Co., Chemical 1128, F.Supp. 1139-40 any liability from under common law. Co., (E.D.N.Y.1992); Marrs v. Ford Motor 570, (Tex.App.-Dallas S.W.2d 575-76 Four circuit courts have considered the 1993, writ); Boyle Chrysler Corp., no 177 preemptive effect of on NTMVSA state com 207, 865, (Ct.App. Wis.2d 501 N.W.2d mon-law suits auto manufacturers 1993). Stamps Collagen But Corp., see failing See Buzzard v. bags. to install air (5th Cir.), cert. de 984 F.2d (3d Trucking, Roadrunner 966 F.2d 777 — nied, 114 S.Ct. 126 Cir.1992); Pokorny Co., v. Ford Motor (1993) (holding that existence of denied, (3d Cir.), cert. F.2d 1116 498 U.S. precludes clause reliance (1990); 111 S.Ct. 112 L.Ed.2d 113 doctrine, implied preemption on without de Taylor v. Corp., General Motors 875 F.2d termining provision whether constituted a denied, (11th Cir.1989), cert. 494 U.S. congressional intent”); “reliable indicium of (1990); 110 S.Ct. 108 L.Ed.2d 783 Movement, Agriculture American Inc. v. Kitts v. General Motors 875 F.2d 787 Trade, (7th Board (10th Cir.1989), denied, cert. 494 U.S. Cir.1992) (“Only if a statute ‍​​​‌‌‌​​​​‌‌​​​​‌‌‌‌‌​‌‌‌‌‌​​‌‌‌​‌​​​‌​‌‌‌​​​‌​‌‍is devoid of 110 S.Ct. explicit preemptive language may we resort Wood v. General Motors 865 F.2d 395 to implied either variant of preemption.”).4 I (1st Cir.1988), 494 U.S. find no such intent here. As example, For courts very have construed a did the respect Coast Guard with to statutory similar scheme under the National guards, Congress Secretary and the Traffic Act, and Motor Vеhicle Transportation amade conscious decision not seq. [“NTMVSA”], § 1381 et U.S.C. as effect- bags mandate air at the time of these ing 1392(d) preemption. Section of that Thus, regulations cases. under the manufac “Supremacy standards,” entitled of federal given turers were the choice to install either provides: Pokorny, or seat belts. bags air Whenever a Federal motor vehicle safe- 1123; Wood, F.2d at 865 F.2d at 399. After ty standard established under this sub- determining express under an chapter effect, is in political no State or 1392(d) 1397(k), review that taken subdivision of a any State shall have au- together, did not indicate an unmistakable establish, thority either to or to continue in claims, intent state tort see effect, respect with motor vehicle or Wood, 401; Pokorny, 865 F.2d at 902 F.2d at item equipment of motor any safety vehicle 1121; Taylor, 825; Kitts, 875 F.2d at аpplicable standard aspect to the same F.2d at these courts all held performance the Act to of such vehicle or item of facially ambiguous equipment which as to is not identical whether Con gress Federal Nothing preserve standard. in this meant section state tort claims shall preventing any be construed as State that had the effect of conflicting with the U.S.A., Cipollone 4. This reaffirms the stan Chevron Council, Inc., Inc. v. Natural Resources Defense principle 842-43, dard clear, "[i]f the intent of 104 S.Ct. at matter; court, (1984)); Gills, that is the end of the for the see also (“The agency, give F.Supp. as well as the must Cipol effect to the at 897 Court [in unambiguously expressed Congress.” ground intent of lone] broke no new with that discus sion.”). Railway & Western Congress may Co. v. American Train It is axiomatic that fail to Norfolk Dispatchers' Ass’n, clеarly unambiguously express its intent in a (1991) (quoting preemption clause. 256 Wood, holdings comports with the of the few courts 865 F.2d at scheme. See (“The issue, precise although difficulty arises because section that have decided this

401 clause) 1392(d) (the and section appear courts to have arrived some of these clause) 1397(c) (the conflicting send preemption using a determination of an at messages particular in circum- these analysis. See Shield v. stances.”).5 Therefore, they proceeded to an 81, Bayliner Corp., F.Supp. Marine 822 84 review,6 implied preemption and determined (D.Conn.1993); Shields v. Outboard Marine failure to damage based on a awards 1579, (M.D.Ga.1991); Corp., F.Supp. 776 1581 actually bags air would conflict with install Marine, Mowery Mercury F.Supp. 773 v. they the effect of creat- the Act because had (N.D.Ohio 1012, 1991); 1017 Farner v. ing bag requirement, in contravention air 885, Ill.App.3d 180 Ill. Brunswick 239 prematurely not man- of the federal desire 498, 493, 562, Dec. 607 N.E.2d 567 bags.7 air date America, Toy Inc. see also Manufacturers of Blumenthal, 336, F.Supp. 806 in this A similar conclusion is warranted (2d Cir.1992) (D.Conn.), aff'd, 986 F.2d 615 damage would ef- case. State court awards dicta, (expressing agreement, in with the in- fectively require boat manufacturers holding Mowery); of Thomas A. Russell & propeller guards, in direct contravention stall Ducey, Topics in the Mitchell F. Current policy against man- expressed of the federal concedes, Boating, 5 Law Recreational dating such devices.8 As the Court of (1992) (“As 107, essentially 119 finding implied preemption U.S.F.Mae.L.J. a of 1397(k) (E.D.N.Y.1987); 1397(c) redesignated Gingold § 929 v. Audi-NSU- 5. Section as Union, Pa.Super. a amendment to the NTMVSA. Anto 389 567 A.2d in 1988 (1989), weight authority sup- the clear recently panel ports opposite position. 6. A of the Eleventh Circuit reex- See Gardner v. Hon- preemption analysis employed Co., it amined the da Motor 145 A.D.2d N.Y.S.2d Taylor, light Court’s decision (pointing "great 304 n. 2 Myrick Cipollone. See authority upholding finding weight judicial a Freuhauf (11th Cir.1994). The court held that context); F.3d 1516 Gingold, preemption” in this Taylor, expressly did not under the NTMVSA holding (acknowledging that its A.2d at 315 alleging a law action that a state tort minority regarding places it in the of courts negligently designed because tractor-trailer was Annotation, Jacklin, issue); Beverly L. Federal In a 2 to it lacked anti-lock brakes. Id. Pre-Emption Products Lia- State Common-Law decision, engage the court declined to in im- Vehicles, bility Pertaining Claims to Motor preemption analysis grounds plied (1990 Supp.). § & 1993 A.L.R.Fed. 1392(d) 1397(k) provided §§ a reliable indi- congressional intent. Id. at 1525. cium reject that these cases are 8. I Moore’s assertion they distinguishable involved an actual because argument, Moore re In her brief and oral regulation placed an affirmative obli peatedly Dorsey Compa relies on v. Honda Motor above, gation a on manufacturers. As discussed (5th Cir.1981), ny, 655 F.2d forgo regulation can have as federal decision to regulation. preemptive effect as a federal much (1982), bag are not that air cases Electric, U.S. at Arkansas See However, preempted under federal law. Moore Moreover, focused on the these cases at 1912. Dorsey. Dorsey a misconstrues did not involve regulations were vehicle fact that the motor Moreover, bags. failure to install air the court’s provide manufacturers with a "choice." meant to discussion focused on whether undеr Florida Taylor, The Coast Guard’s 875 F.2d at 827. regulations precluded compliance with federal guards reflects mandate decision not to finding justifying of recklessness an award of provide with a manufacturers desire to similar punitive damages, compliance not whether Mowery Ma area. See choice in this preempted. at 656- meant such claim was Id. (N.D.Ohio 1991). rine, F.Supp. expressly recognized 57. The Fifth Circuit has posed 1392(d) in Wood et al. remains arguably that the exact issue acknowledge § less I Peny 1392(d) undecided that court. See v. Mercedes expressly than broad America, F.2d North open Benz those areas of to state leaves (5th Cir.1992). actually regulated by the federal not motor However, government. does such distinction bag hold that air While some lower court cases analogy validity between the not affect the passive tort claims are or other restraint involved in see, case and the issue issue in the instant preempted, example, Garrett v. Ford Mo- ah, Co., concern (D.Md.1987); those cases did not Wood et since F.Supp. Mur- tor U.S.A., government. unregulated by the federal F.Supp. areas phy Corp. Nissan Motor indicated, Shields court it is essential uniformity

sake of Rudy RIOS, Relator, of decision in this area courts, state, apply that all federal and feder- injuries resulting al law to cases of from Jerry CALHOON, The Honorable L. propellers.”).9 Judge, and the Twelfth Court of Concluding impli- that Moore’s claims are Appeals, Respondents.

edly preempted does not leave her without No. D-4357. any possibility recovery. Persons Moore’s situation would still Court of Texas. be free sue operators ‍​​​‌‌‌​​​​‌‌​​​​‌‌‌‌‌​‌‌‌‌‌​​‌‌‌​‌​​​‌​‌‌‌​​​‌​‌‍the owners and of the boat for April 1994. S.Rep. negligence. Cоng., No. 92d Rehearing Overruled June (1971), reprinted 1st Sess. (“Th[is]

U.S.C.C.A.N. section [on preemption] does not

law or opera- directed at safe boat use, appropri-

tion and which was felt to be

ately purview within the of state or local

concern.”). propeller guard, Even without a

persons unlikely injuries are to suffer serious conduct,

in the negligent absence of some

either themselves or someone else. See

NBSAC, Report Propeller Guard Sub- (Nov. 1989)

committee, at 23 (“Operator clearly

error significant factor the vast

majority of impacts underwater which result injuries/fatalities.”).

I believe Moore’s claims that the boat was

defective because it propeller guard lacked a impliedly preempted by the Federal Boat Accordingly, Act. I would affirm the appeals. of the court of applied products Alabama courts have Elliott v. Brunswick (11th Cir.1990), liability law to suits based on the failure to install (1991) (in propeller guards. Teleflex, diversity See Veal v. S.Ct. suit, (Ala.1991) (holding So.2d that under that the defendant was not liable failing propel Alabama tort law there is no cause of action for law for under Alabama install However, pleasure guard). failure to install on none ler of these cases consid motors); issue, boat outboard Beech Ma ered the and I v. Outboard would therefore (same); (Ala.1991) rine 584 So.2d decline to follow them.

Case Details

Case Name: Moore v. Brunswick Bowling & Billiards Corp.

Court Name: Texas Supreme Court

Date Published: Jun 22, 1994

Citation: 889 S.W.2d 246

Docket Number: D-3997

Court Abbreviation: Tex.