Lead Opinion
Debra Weatherspoon appeals from the Tuscaloosa Circuit Court’s dismissal of her claims against Tillery Body Shop, Inc. (“Tillery”). The trial court dismissed the claims, finding that they were preempted by federal law. We affirm.
Factual Background and Procedural Histo'ry
On April 9, 2005, Weatherspoon sued Tillery, Dennis Horton, and several fictitiously named defendants. Her complaint alleged the following facts. Weather-spoon, a resident of Hale County, owned a 1995 Chevrolet Blazer sport-utility vehicle (“the Blazer”). In December 2002, Weath-erspoon’s adult son used the Blazer and, without Weatherspoon’s knowledge, left it in the parking lot of a restaurant in Tuscaloosa, where it remained for several days. The Tuscaloosa Police Department determined that the Blazer was an abandoned vehicle and directed Tillery to tow it from the parking lot. Tillery did so.
On December 30, 2002, without knowledge that Tillery had towed the Blazer, Weatherspoon contacted the Hale County Sheriffs Department and reported the Blazer missing. In April 2003, Tillery published notice in The Tuscaloosa News for three consecutive weeks that the Blazer would be sold at public auction. An
In her complaint, Weatherspoon stated claims of negligence and wantonness; de-pravation of possession of the Blazer under § 6-5-260, Ala.Code 1975; recovery of chattel in specie; conversion; negligent and wanton supervision; and fraudulent suppression. Weatherspoon based her negligence and wantonness claims on several theories, including Tillery’s alleged breach of the standard of care in failing to investigate the identity of the Blazer’s owner; improperly selling the Blazer; and failing to comply with the requirements of § 32-13-4, Ala.Code 1975, regarding the notice of sale of abandoned vehicles. Regarding the fraudulent-suppression claim, Weatherspoon alleged that Tillery had a duty to disclose to her that it had possession of the Blazer, a duty arising, she alleged, from notice Tillery had by virtue of the vehicle-identification number and tag number of the Blazer and “the requirements placed upon entities such as [Till-ery] by Alabama law regarding the sale of vehicles that are presumed to be abandoned.” Weatherspoon sought $50,000 in damages as to each claim asserted in her complaint. Weatherspoon also sought a judgment declaring that she was the owner of the Blazer and that she was entitled to possession of it.
Tillery and Horton each answered the complaint. On June 9, 2008, Tillery moved to dismiss the claims against it under Rule 12(h)(3), Ala. R. Civ. P.
Standard of Review
“In Newman v. Savas,
“ A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews,622 So.2d 297 , 299 (Ala.1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C.,828 So.2d 285 , 288 (Ala.2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately*450 prevail but whether the pleader may possibly prevail. Nance,622 So.2d at 299 .’
“
Pontius v. State Farm Mut. Auto. Ins. Co.,
19 U.S.C. § 11501(c)
Section 601 of the FAAAA amended Title 49 of the United States Code to, among other things, add § 11501(h), which was later recodified as § 14501(c). Section 14501(c) provides, in relevant part:
“(1) General rule. — Except as provided in paragraphs (2) and (3), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier ... or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.
“(2) Matters not covered. — Paragraph (1)~
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“(C) does not apply to the authority of a State or a political subdivision of a State to enact or enforce a law, regulation, or other provision relating to the price of for-hire motor vehicle transportation by a tow truck, if such transportation is performed without the prior consent or authorization of the owner or operator of the motor vehicle.”
(Emphasis added.)
“[W]here ‘federal law is said to bar state action in fields of traditional state regulation, ... we have worked on the “assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” ’ ” California Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc.,
“In Morales, the Court determined: (1) that ‘[s]tate enforcement actions having a connection with, or reference to ’ carrier ‘“rates, routes, or services” are pre-empted,’504 U.S., at 384 (emphasis added); (2) that such pre-emption may occur even if a state law’s effect on rates, routes or services ‘is only indirect,’ id., at 386 (internal quotation marks omitted); (3) that, in respect to pre-emption, it makes no difference whether a state law is ‘consistent’ or ‘inconsistent’ with federal regulation, id., at 386-387 (emphasis deleted); and (4) that pre-emption occurs at least where state laws have a ‘significant impact’ related to Congress’ deregulatory and preemption-related objectives, id., at 390. The Court described Congress’ overarching goal as helping assure transportation rates, routes, and services that reflect ‘maximum reliance on competitive market forces,’ thereby stimulating ‘efficiency, innovation, and low prices,’ as well as ‘variety’ and ‘quality.’ Id., at 378 (internal quotation marks omitted). Morales held that, given these principles, federal law pre-empts States from enforcing their consumer-fraud statutes against deceptive airline-fare advertisements. Id., at 391. See American Airlines, Inc. v. Wolens,513 U.S. 219 , 226-228,115 S.Ct. 817 ,130 L.Ed.2d 715 (1995) (federal law pre-empts application of a State’s general consumer-protection statute to an airline’s frequent flyer program).”
Based on the language of § 14501(c)(2), the United States Supreme Court has agreed that “tow trucks qualify as ‘motor carrier[s] of property’” within the meaning of § 14501(c)(1). City of Columbus v. Ours Garage & Wrecker Serv., Inc.,
Analysis
The trial court in the present action concluded that “[t]he state tort claims brought by [Weatherspoon] against [Till-ery] constitute enforcement of state law within the meaning of the preemptive provision of 49 U.S.C. § 14501(c).” The trial court concluded that Weatherspoon’s claims against Tillery were preempted and that the trial court lacked subject-matter jurisdiction over the claims. In her brief on appeal, Weatherspoon contends that the trial court’s decision should be reversed because, she argues: 1) § 14501(c)(1) is unconstitutional under the Commerce Clause, Art. I, § 8, c. 3, and the Tenth Amendment to the United States Constitu
Weatherspoon does not cite authority to support her third, fifth, and sixth arguments. Regarding the lack of Alabama authority on the issue of preemption under the circumstances presented here, Weatherspoon merely identifies the fact that preemption under § 14501(c)(1) is a question of first impression in Alabama; she does not cite any authority for the proposition that there must be binding authority from an Alabama appellate court before the trial court can resolve a question of first impression. Regarding Weatherspoon’s argument that Tillery waived its right to assert preemption as a defense because Tillery complied, or attempted to comply, with state law, Weath-erspoon does not cite any authority for the proposition that acting under a state statute in a field preempted by Congress is a waiver of any right to assert preemption. Regarding Weatherspoon’s argument that a finding of preemption would leave her without a remedy, she examines the language of the FAAAA and the ICCTA, but she does not cite any authority to support her argument that a denial of remedies to her by an act of Congress constitutes a ground for reversal of the judgment of the trial court dismissing her claims.
This Court has stated:
“Rule 28(a)(10), Ala. RApp. P., requires that arguments in an appellant’s brief contain ‘citations to the cases, statutes, other authorities, and parts of the record relied on.’ Further, ‘it is well settled that a failure to comply with the requirements of Rule 28(a)(10) requiring citation of authority in support of the arguments presented provides this Court with a basis for disregarding those arguments.’ State Farm Mut. Auto. Ins. Co. v. Motley,909 So.2d 806 , 822 (Ala.2005) (citing Ex parte Showers,812 So.2d 277 , 281 (Ala.2001)). This is so, because ‘ “it is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.” ’ Butler v. Town of Argo,871 So.2d 1 , 20 (Ala. 2003) (quoting Dykes v. Lane Trucking, Inc.,652 So.2d 248 , 251 (Ala.1994)).”
Jimmy Day Plumbing & Heating, Inc. v. Smith,
I. Constitutionality of 19 U.S.C. § 11501(c) (1)
Weatherspoon argues that in enacting 49 U.S.C. § 14501(c)(1) the United States Congress exceeded its authority under the Commerce Clause, Art. I, § 8, c. 3. Weatherspoon also argues that § 14501(c)(1) violates the Tenth Amendment to the United States Constitution. Tillery responds, citing Kelley v. United States,
In Kelley, the attorneys general of Michigan and Kansas, the International Brotherhood of Teamsters, and several other organizations (“the plaintiffs”) filed an action for declaratory and injunctive relief,
Regarding the plaintiffs’ argument that § 601 of the FAAAA, including what is now codified at § 14501(c), violated the Commerce Clause, the Tenth Circuit Court of Appeals explained:
“The Commerce Clause of the United States Constitution, provides that Congress shall have the Power ‘[t]o regulate Commerce ... among the several States,’ Art. 1, § 8, cl. 3, and ‘[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers....’ Art. 1, § 8, cl. 18.
“Recently, in United States v. Lopez,514 U.S. 549 ,115 S.Ct. 1624 ,131 L.Ed.2d 626 (1995), the Supreme Court identified three broad categories of activity that Congress may regulate under the Commerce Clause: (1) ‘the use of channels of interstate commerce’; (2) ‘the instrumentalities of interstate commerce, or persons or things in interstate commerce’; and (3) ‘activities that substantially affect interstate commerce.’514 U.S. at 558-59 ,115 S.Ct. at 1629-30 . With respect to the third category of activity, the Court emphasized that it had repeatedly ‘upheld a wide variety of congressional Acts regulating intrastate economic activity where [it had] concluded that the activity substantially affected interstate commerce.’514 U.S. at 559 ,115 S.Ct. at 1630 .
“Here, we find that the activity at issue, state regulation of intrastate motor carrier activities, falls squarely within the third category of activity cited in Lopez. In enacting § 601, Congress made express findings, set forth in subsection (a) of § 601, that state regulation of intrastate motor carrier activities substantially affects interstate commerce:
“ ‘(1) [T]he regulation of intrastate transportation of property by the States has
“ ‘(A) imposed an unreasonable burden on interstate commerce;
“ ‘(B) impeded the free flow of trade, traffic and transportation of interstate commerce; and
“ ‘(C) placed an unreasonable cost on the American consumers; and
“ ‘(2) certain aspects of the State regulatory process should be preempted.’
“Pub.L. No. 103-305.
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“We believe these findings are rational. See Hodel v. Virginia Surface Min. & Recl. Assn.,452 U.S. 264 , 276,101 S.Ct. 2352 , 2360,69 L.Ed.2d 1 (1981). Granted, there are undoubtedly various state regulations that affect and pertain only to purely intrastate motor carrier activities, and have little or no effect on interstate commerce. Nonetheless, Congress rationally determined the regulation of intrastate motor carrier activities, considered as a whole, does in fact impact and impede interstate commerce.”
Kelley,
Having concluded that intrastate motor-carrier activities impact interstate commerce and that they are thus subject to federal regulation under the Commerce
“[T]he only remaining question is whether ‘the means chosen by [Congress] [are] reasonably adapted to the end permitted by the Constitution.’ Hodel,452 U.S. at 276 ,101 S.Ct. at 2360 . Plaintiffs set forth several reasons why § 601 is not reasonably adapted to the end sought by Congress. First, plaintiffs claim § 601 is overly broad and preempts not only state economic regulation of intrastate trucking, but also ‘state tort laws, state antitrust laws, state consumer protection laws, state laws regarding cargo loss and damage claims, state laws governing the transportation of solid and hazardous waste, and state uniform commercial codes.’ Appellants’ br. at 20. Second, plaintiffs argue that the overbreadth of § 610 ‘has created a disjointed two-tiered system of regulation,’ in which interstate carriers are regulated by Congress, but in which purely intrastate carriers remain wholly unregulated. Appellants’ br. at 21-22. Finally, plaintiffs argue that § 601 is improper because it preempts state law ‘in favor of nothing.’ Appellants’ br. at 23.
“Notwithstanding plaintiffs’ arguments, the means chosen by Congress are reasonably adapted to the ends sought by Congress. First, § 601’s preemption of state regulations pertaining to ‘pricefs], route[s], or service[s]’ of intrastate motor carriers clearly serves to eliminate the ‘patchwork’ of varying state regulations that concerned Congress. Second, although § 601 undoubtedly preempts a wide range of state regulations, it is far from clear that its impact is as far-reaching as plaintiffs would have the court believe.... Third, assuming the rationality of Congress’ findings with respect to the negative impact of state regulations on interstate commerce, what choice did Congress have except to enact a statute that preempts a fairly broad range of state economic regulations? In any event, the Supreme Court rejected the notion of second-guessing Congress by belatedly reviewing other possible legislative options. See South Carolina State Highway Dept. v. Barnwell Bros.,303 U.S. 177 , 190,58 S.Ct. 510 , 516-17,82 L.Ed. 734 (1938). Finally, although § 601 may have had some unintended effects, such as freeing the reins on intrastate towing and wrecker services, plaintiffs have not cited any cases holding that unintended effects of legislation, by themselves, serve to make the legislation irrational for purposes of Commerce Clause analysis.
“For these reasons, the district court properly concluded that § 601 does not violate the Commerce Clause.”
Kelley,
Consistent with the plaintiffs in Kelley, Weatherspoon argues that in enacting § 14501(c)(1) Congress exceeded its powers under the Commerce Clause because, she argues, § 14501(c)(1) regulates intrastate commerce, not simply interstate commerce. However, as the Tenth Circuit Court of Appeals noted in Kelley, intrastate motor-carrier activities substantially affect interstate commerce, and congressional regulation of intrastate activities eliminates the creation of a patchwork of state law. We agree, and, bound by the United States Supreme Court’s conclusions in United States v. Lopez,
“The Tenth Amendment to the Constitution provides that ‘ [t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’
“In New York v. United States,505 U.S. 144 , 155-56,112 S.Ct. 2408 , 2417,120 L.Ed.2d 120 (1992), the Supreme Court noted that ‘[i]n a ease ... involving the division of authority between federal and state governments,’ the inquiries under the Commerce Clause and the Tenth Amendment ‘are mirror images of each other.’ Specifically, the Court noted as follows:
“ ‘If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States; if a power is an attribute of state sovereignty reserved by the Tenth Amendment, it is necessarily a power the Constitution has not conferred on Congress.’
“Id
“Thus, even if plaintiffs are correct in their assertion that § 601 intrudes upon a domain traditionally left to the states, it is constitutional as long as it falls within the commerce power. Gregory v. Ashcroft,501 U.S. 452 , 460,111 S.Ct. 2395 , 2400-01,115 L.Ed.2d 410 [ (1991) ] (holding that Congress may impose its will on the states as long as it is acting within the powers granted by the Constitution); United States v. Lopez,2 F.3d 1342 , 1346-47 (5th Cir.1993), aff'd,514 U.S. 549 ,115 S.Ct. 1624 ,131 L.Ed.2d 626 (1995). Having concluded that § 601 was a proper exercise of the commerce power by Congress, the only remaining question we must decide is whether Congress, in enacting § 601, somehow ‘commandeer[ed] the legislative processes of the States.... ’ Hodel [v. Virginia Surface Mining & Reclamation Ass’n], 452 U.S. [264,] at 288, 101 S.Ct. [2352,] at 2366,69 L.Ed.2d 1 [(1981)].
“Plaintiffs argue that § 601 violates the Tenth Amendment because it does not give the states a choice between regulating in a fashion consistent with federal regulation of motor carriers or having their state regulatory scheme preempted by a federal regulatory scheme, but instead compels the states not to regulate at all....
“[P]laintiffs’ arguments [are not] meritorious. In New York, the Court reaffirmed that Congress may not exercise its Article I plenary powers to ‘“eom-mandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”’505 U.S. at 145 ,112 S.Ct. at 2420 (quoting Hodel,452 U.S. at 288 ,101 S.Ct. at 2366 ). Notwithstanding these limitations, however, Congress does enjoy ‘several options short of imposing a coercive regulatory directive on the states.’ Ponca Tribe of Okla. v. Oklahoma,37 F.3d 1422 , 1433 (10th Cir. 1994) .... Congress may, under the Supremacy Clause, ‘preempt an entire field of regulation and thereby deprive the states of any regulatory role.’ Id.
“Here, Congress has clearly chosen ... to preempt the entire field of price, service, and route regulation of intrastate motor carrier activities. Although plaintiffs have attempted to otherwise characterize Congress’ actions, it is clear that Congress has not compelled the*456 states to voluntarily act by enacting or administering a federal regulatory program. Rather, Congress has simply imposed rules on the states via its Supremacy Clause powers....
“We affirm the district court’s denial of plaintiffs’ Tenth Amendment challenge to § 601.”
Kelley,
Under the binding authority of United States v. Lopez, we conclude that Congress acted within its powers under the Commerce Clause in enacting § 14501(c), and Congress has, under the Supremacy Clause, preempted the field of law regarding the price, route, and service of motor carriers of property. We again adopt the reasoning of the United States Court of Appeals for the Tenth Circuit as to Weath-erspoon’s argument that § 14501(c) violates the Tenth Amendment to the United States Constitution. We, therefore, conclude that § 14501(c) is not unconstitutional as Weatherspoon contends.
II. Preemption of State Claims
Weatherspoon next argues that § 14501(c)(1) does not preempt her private state-law claims against Tillery. Citing the general law regarding express and implied preemption stated in Cliff v. Payco General American Credits, Inc.,
As stated above, in Kelley the Tenth Circuit Court of Appeals concluded that § 14501(c) preempts the field of law regarding price, route, and service of motor carriers of property. See Kelley,
The dissent relies on two cases that it says hold “that state causes of action relating to storage and disposition of towed vehicles are not preempted by” § 14501(c).
It is undisputed that Tillery is a motor carrier of property subject to the provisions of § 14501. See, e.g., City of Columbus,
III. The § 14.501(c)(2)(C) Exception
Section 14501(c)(2)(C) provides that the preemption mandated by § 14501(c)(1)
“does not apply to the authority of a State or a political subdivision of a State to enact or enforce a law, regulation, or other provision relating to the price of for-hire motor vehicle transportation by a tow truck, if such transportation is performed without the prior consent or authorization of the owner or operator of the motor vehicle.”
(Emphasis added.) The trial court concluded that Weatherspoon’s “claims do not fit within ... the exemption! ] to preemption found in 49 U.S.C. § 14501(c)(2).” Weatherspoon argues on appeal that the trial court erred in so concluding and that
This Court has stated:
“ ‘The fundamental principle of statutory construction is that words in a statute must be given their plain meaning.’ Mobile Infirmary Med. Ctr. v. Hodgen,884 So.2d 801 , 814 (Ala.2003). ‘When a court construes a statute, “[w]ords used in [the] statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says.” ’ Ex parte Berryhill,801 So.2d 7 , 10 (Ala.2001) (quoting IMED Corp. v. Systems Eng’g Assocs. Corp.,602 So.2d 344 , 346 (Ala. 1992)).”
Trott v. Brinks, Inc.,
The construction of a federal statute presents a federal question. See, e.g., Mississippi Band of Choctaw Indians v. Holyfield,
By its plain language, § 14501(c)(2)(C) relates only to the price of nonconsensual transportation by a tow truck. Weather-spoon’s claims against Tillery relate to its service of towing and selling the Blazer, not to the price Tillery charged for those services. Weatherspoon has not presented any authority mandating a departure from the plain language of § 14501(c)(2)(C). The trial court, therefore, correctly determined that Weatherspoon’s claims are not exempted from preemption under § 14501(c)(2)(C).
Conclusion
Because Weatherspoon’s claims against Tillery are preempted by § 14501(c)(1),
AFFIRMED.
Notes
. Rule 12(h)(3) provides: “Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”
. Relying on City of Columbus v. Ours Garage & Wrecker Serv., Inc.,
The Supreme Court in Rowe recently addressed and rejected an argument similar to that made by the dissent, explaining:
"[The State of] Maine suggests that [§ 14501(c)'s] history indicates that Congress' primary concern was not with the sort of law it has enacted, but instead with state 'economic' regulation. See, e.g., H.R. Conf. Rep., at 88; see also Columbus v. Ours Garage & Wrecker Service, Inc.,536 U.S. 424 , 440,122 S.Ct. 2226 ,153 L.Ed.2d 430 (2002). But it is frequently difficult to distinguish between a State’s 'economic'*451 related and 'health'-related motivations, see infra, at 997, and, indeed, the parties vigorously dispute Maine’s actual motivation for the laws at issue here. Consequently, it is not surprising that Congress declined to insert the term 'economic' into the operative language now before us, despite having at one time considered doing so. See S.Rep. No. 95-631, p. 171 (1978) (reprinting Senate bill).”
. The dissent correctly notes that neither Data Manufacturing nor Deerskin Trading Post involved claims against tow-truck operators. The dissent also notes that A.J. 's Wrecker Service of Dallas, Inc. v. Salazar,
. The dissent also notes its concern that “the federal statutory scheme contains no provision granting the owner of a wrongfully disposed of vehicle any remedy at all for such tortious conduct.”
. Weatherspoon also speculates that "if [Till-ery] argues that, in a broad sense, the prices it charges for what it does are related to potential liability that may arise from not doing those things well or in accordance with the law, then the exception to preemption is triggered.” However, Tillery has made no such argument, and Weatherspoon does not cite any authority to support her supposition. See Rule 28(a)(10), Ala. R.App. P.
. The dissent discusses the nature of preemption under § 14501(c) and questions the trial court's characterization of the dismissal of Weatherspoon’s action as being for lack of subject-matter jurisdiction and prefers a dismissal based upon failure to state a claim.
Dissenting Opinion
(dissenting).
Preemption
As the United States Supreme Court stated just last year, “ ‘[i]n all pre-emption cases, and particularly in those in which Congress has “legislated ... in a field which the States have traditionally occupied,” ... we “start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” ’ ” Wyeth v. Levine, — U.S. -, -,
“The principles governing the circumstances under which preemption may arise ... may be summarized as follows: first, when acting within constitutional limits, Congress has expressly stated an intention to preempt there is preemption; second, though it has not expressly preempted a field or an identifiable portion thereof, preemption exists if Congress has adopted a ‘scheme of federal regulation ... sufficiently comprehensive to make reasonable the inference that Congress left no room ... for supplementary state regulation;’ and finally, ‘where the field is one in which “the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject,” ’ or ‘when “compliance with both federal and state regulation is a physical impossibility,” ’ there will be preemption. [Hillsborough County v. Automated Med. Labs.,471 U.S. 707 , 713 (1985) ]. In applying these prinei-*461 pies, though, it is important to bear in mind that ‘where the state’s police power is involved, preemption will not be presumed.’ Chrysler Corp. v. Rhodes,416 F.2d 319 , 324, n. 8 (1st Cir.1969).”
Specialized Carriers & Rigging Ass’n v. Virginia,
In § 14501, Congress expressed its intention to legislate and to preempt state regulation regarding the “price, route, and service” of motor carriers of property. In so doing, Congress expressed its concern with what the United States Supreme Court terms “economic regulation” of tow-truck operators. City of Columbus v. Ours Garage & Wrecker Serv., Inc.,
The main opinion relies primarily upon the decision of the United States Court of Appeals for the Tenth Circuit in Kelley v. United States,
On the other hand, some federal and state courts that have considered the towing industry, and in particular the preservation or storage of a vehicle after it has been towed, have held that state causes of action relating to storage and disposition of towed vehicles are not preempted by the Act. See, e.g., Rhode Island Public Towing Ass’n, Inc. v. State, (No. CV-96-454 ML, Feb. 28, 1997) (D.R.I.1997) (not published in F.Supp.) (concluding “that the regulation of storage rates is not sufficiently related to a price, route, or service of a tow truck” and therefore the state regulation of those rates was not preempted by § 14501(c) (emphasis added)); CPF Agency Corp. v. Sevel’s 24. Hour Towing Serv.,
Congress did not undertake in the Act to “regulate” the tortious conduct of tow-truck operators, at least with respect to the wrongful disposition of towed vehicles. Again, the federal statutory scheme contains no provision granting the owner of a wrongfully disposed of vehicle any remedy at all for such tortious conduct. I therefore cannot conclude that 49 U.S.C. § 14501 reflects the requisite “clear and manifest purpose” by Congress to preempt traditional state tort-law claims in this area, i.e., statutory and common-law claims in the nature of negligence, conversion, fraud, and suppression relating to the wrongful sale of a towed vehicle by a tow-truck operator who allegedly has not made reasonable efforts to determine the rightful owner of the vehicle, to notify that owner of the whereabouts of his or her vehicle, and to provide that owner a reasonable opportunity to retrieve his or her vehicle before selling it to a third party.
Jurisdiction
The trial court based its judgment of dismissal in this case on the ground that the purported federal preemption of state claims, in its view, deprived it of subject-matter jurisdiction. The main opinion initially appears to base its affirmance of the trial court’s judgment on the same ground, beginning its analysis by “ ‘set[ting] out the standard of review of a ruling on a motion to dismiss for lack of subject-matter jurisdiction.’”
Specifically, I simply note that, even if we could glean from the text of § 14501(c) a congressional intent to preempt state-law tort claims of the nature at issue in this case, the result would not be to deprive Alabama state courts of jurisdiction to address the viability of those claims, as the trial court held. Instead, the result would be the failure of the complaint to state a viable claim because the state-law claims would have simply been vitiated by the federal Act. This form of preemption is referred to by courts and commentators as “choice-of-law” preemption. It results not in a defect of the subject-matter jurisdiction of the state court, but rather a defect in the plaintiff’s state-law cause of action that would warrant a dismissal under Rule 12(b)(6), Ala. R. Civ. P., for failure to state a viable claim. It stands in contrast to the “choice-of-forum” preemption found to exist in International Longshoremen’s Ass’n v. Davis,
Conclusion
I disagree with the conclusion in the main opinion that § 14501(c) preempts Alabama’s common-law and statutory claims in the nature of conversion, negligence, fraud, and suppression that would otherwise be available when a tow-truck operator wrongfully disposes of a towed vehicle without first making reasonable efforts to discern, locate, and notify the owner of the towed vehicle and give that owner a reasonable chance to retrieve his or her vehicle. Therefore, I respectfully dissent.
.I cannot conclude that the United States Supreme Court, in its decision in Rowe v. New Hampshire Motor Transport Ass'n,
. To be clear, I do not reach the issue whether the Act is unconstitutional, i.e., that it is "irrational for purposes of Commerce Clause analysis.” See discussion in note 4 of the main opinion,
. This is true as well of the next two cases cited in the main opinion regarding preemption, Data Manufacturing, Inc. v. United Par