Airline Deregulation Act does not preempt routine personal injury claims.

Passengers may maintain "run of the mill" state law personal injury suits against airlines, an en banc panel of the Ninth Circuit Court of Appeals has unanimously held. The decision clarified the proper preemption analysis under the Airline Deregulation Act (ADA) and overruled several circuit precedents holding that personal injury claims are preempted. (Charas v. Trans World Airlines, Inc., 160 F.3d 1259 (9th Cir. 1998).)

The ADA prohibits states from enacting or enforcing any law relating to rates, routes, or services. The scope of this preemption has been a source of considerable dispute since the enactment of the ADA in 1978.

In Charas, the Ninth Circuit was confronted with a series of consolidated cases dealing with personal injury actions against airlines, ranging from a passenger being hit on the head by a piece of luggage that fell from an overhead compartment to a woman who was injured while disembarking after her request for special assistance was denied. In each case, the trial court held the suit involved the rendering of services and was preempted by the ADA.

The Ninth Circuit took the cases to "rethink" and clarify the law of the circuit on ADA preemption. Circuit Judge Barry Silverman, writing for the panel, reversed the lower courts' decisions. He noted that although the U.S. Supreme Court has never defined "service" under the ADA, it has indicated in two cases that the act does not preempt most state law tort claims.

Silverman said Congress's purpose in enacting the ADA was to achieve economic deregulation of the airline industry. The purpose of the statute's preemption clause is to avoid interference with deregulation. Nothing in the statute or its legislative history indicates Congress's purpose was to displace state tort law in actions that do not affect deregulation in more than a peripheral manner, the court said.

As further support, Silverman noted the ADA still requires airlines to maintain insurance to pay for bodily injuries or deaths for which they may be liable. Also, the statute's savings clause--which provides that nothing in the statute abridges or alters common law remedies--when read together with the preemption clause, shows Congress's intent to prohibit states from regulating the airlines while preserving state common law tort remedies, providing they do not significantly affect federal deregulation, the court said.

Congress did not imply that "service," in the context of deregulation, includes dispensing food and beverages, flight attendant assistance, or the like. Rather, the term "service" refers more narrowly to such things as the scheduling of transportation and the selecting of markets to which transportation is provided, the court said. "To interpret `service' more broadly is to ignore the context of its use, and it effectively would result in the preemption of virtually everything an airline does," Silverman wrote. "It seems clear to us that that is not what Congress intended."

Stewart Starry, a Houston attorney who represented four of the plaintiffs, said the decision gives new life to hundreds of personal injury cases pending against airlines. "Now you'll see a lot of cases start to settle out of court because the parties will have to come to the table," he said.