Where does Myrick lead us? No preemption of defective restraint system claims.

No Preemption of Defective Restraint System Claims

In April, the U.S. Supreme Court announced its long-awaited decision in Freightliner Corp. v. Myrick.(1) A unanimous Court affirmed firmed the decision of the Eleventh Circuit Court of Appeals. That court had rejected the motor vehicle manufacturers' arguments that the National Traffic and Motor Vehicle Safety Act of 1966 (Safety Act)(2) preempted the plaintiffs' state common law design defect claims based on the defendants' failure to install an antilock braking system (ABS) in its tractor-trailers.(3)

Although the Supreme Court did not directly address all the issues litigants face in cases involving defective restraint systems - defective automatic (passive) seat belts and no air bags - its reasoning supports the proposition that these claims are not preempted. This article seeks to put the Myrick decision into perspective vis-a-vis defective restraint system cases.

The plaintiffs in Myrick had alleged that the lack of an ABS on tractor-trailers manufactured by the defendants constituted a design defect. The trial court granted the defendants summary judgment, holding that the claims were preempted by the Safety Act and the National Highway Traffic Safety Administration's (NHTSA) Standard 121. The Safety Act forbids states from enacting or maintaining motor vehicle safety standards when there are federal standards in effect governing the same aspect of performance. Standard 121 imposed truck stopping distances shorter than those that could be achieved with trucks lacking an ABS. The Eleventh Circuit reversed the trial court ruling, finding no preemption.(4)

Affirming the appellate court's decision in the case, the Supreme Court found no express preemption because no existing federal safety standards either required or prohibited an ABS. The Court noted that a federal court had suspended Standard 121 because the agency had not compiled sufficient evidence to justify it.

The Court rejected the manufacturers' contention that because the government had decided not to require an ABS, a common law action that would result in a verdict "mandating" an ABS would conflict with this earlier decision.

The Court ruled that preemption cannot be inferred from a government agency's decision not to mandate the use of certain safety equipment. The absence of regulation does not constitute regulation, the Court said.

The Court next turned to implied preemption, which arises when it is impossible to comply with both state and federal standards. The Court rejected the plaintiffs' argument that implied preemption can never exist when Congress has chosen to include an express preemption clause in a state.

While an express preemption clause certainly supports an inference that implied preemption is unnecessary, it does not, by itself, foreclose the possibility of implied preemption.

The Court concluded, however, that the plaintiffs' claims were not implicitly preempted. There can be no conflict with federal law, the Court reasoned, because there is no applicable safety standard. Moreover, a finding of liability would not undermine any federal objectives with respect to these devices since none exist absent a federal standard.

The Court also reaffirmed several important legal principles, including:

1. The primary purpose of the Safety Act is to reduce accidents, injuries, and deaths.(5)

2. The act authorizes the issuance of minimum standards for performance of motor vehicles or equipment.

3. There cannot be implied preemption when:

(a) The Federal Motor Vehicle Safety Standards (FMVSS) do not require or prohibit specific equipment that the plaintiff alleges already should have been installed;

(b) The common law action would not frustrate the purposes and objectives of Congress; and

(c) NHTSA has not ordered manufacturers to refrain from using an ABS.

It is important that the Court chose not to address directly whether the term "standard" in the Safety Act deals only with statutes and regulations, exclusive of state common law, and whether the act's Savings Clause,(6) Which preserves all common law claims despite compliance with federal standards, precludes manufacturers from asking for immunity based on compliance with minimum standards. The Court also chose not to consider the effect of NHTSA promulgating Standard 208, Which governs occupant crash protection and allows for optional means of compliance with minimum standard.

Defense Posture

Manufacturers in defective restraint system cases are likely to argue that Myrick means a return to the implied preemption analysis.

The response to this argument is that there is no need to look at implied preemption because what Congress intended to preempt was well defined. The Express Preemption Clause of the Safety Act preempts inconsistent state and political subdivision equipment standards. The Savings Clause preserves all common law claims despite compliance with federal standards. There is no reason to infer any broader preemption.

[I]n the Safety Act, Congress put its statements about preemption in two statutory provisions, one of which we refer to as a Preemption Clause [[section] 1392(d)] and the other one of which we call a Savings Clause [[section] 1397(k)]. Our terminology notwithstanding, both of the clauses are preemption provisions in the material sense of the word, because both clauses explicitly deal with the subject of what is and is not preempted.

This analysis is consistent with the basic rule of statutory construction that legislative intent is discerned by examining a statute's provisions as a whole.(7)

It is not dispositive that the Court in Myrick looked at implied preemption. The Court did so because it chose not to analyze the full statutory scheme - because there was no existing standard applicable to the plaintiffs' claim.

Defendants in these cases may also try to argue the Savings Clause saves only manufacturing defects. Plaintiffs should respond that the clause clearly shows Congress's intent to allow common law actions despite compliance with federal standards. There is no basis on which a court can, or should, accept the argument that this clause "saves" only matters not covered by the standards. If the latter argument were true, it would render the clause superfluous because there cannot be preemption if there is no existing standard.

Equally untenable is the argument that a jury verdict imposing liability because a manufacturer has chosen to comply merely with the minimum requirements of FMVSS 208 (by selecting either a manual belt or a poorly designed passive belt) conflicts with "federally granted options." FMVSS 208 neither requires nor prohibits air bag systems or any other alternative seat belt system.(8) Instead, the standard has, for the past 20 years, allowed manufacturers to choose any type of restraint system it deemed appropriate to seat this minimum standard.

Consequently, a manufacturer can both comply with FMVSS 208 and satisfy the common law principles relevant to a crashworthiness case. In fact, this type of claim is consistent with the true purpose of the Safety Act because adding an air bag system to any seat belt system enhances safety. Rather than creating conflict, these common law claim spur safety

Finally, manufacturers may argue, as they did in Myrick, that NHTSA has impliedly rejected mandatory air bag installation by not mandating air bags and by providing the options of FMVSS 208. The Supreme Court rejected this argument, ruling that the absence of a federal mandate does not constitute a regulation that will justify preemption.

In truth, if a court were to adopt this argument, then it would, in one broad stroke, preempt any common law claim once a manufacturer could show that NHTSA thought about a particular design or safety feature and chose not to regulate that aspect of performance.

Consumers purchasing motor vehicles have been wrongly deprived of air bags and safe seat belt systems. Congress intended for the common law to motivate manufacturers to go beyond the minimum federal standards, and manufacturers' attempts to alter Congress's plan by arguing preemption of state law claims must be opposed. Attorneys can successfully argue that the Court's reasoning in Myrick rejecting preemption applies to defective restraint system cases.

Notes

(1) 115 S. Ct. 1483 (1995). (2) 15 U.S.C. [sections] 1381-1431. (3) Myrick v. Freuhauf Corp., 13 F. 3d 1516 (11th Cir. 1994). (4) The Eleventh Circuit decided that it was unnecessary to reach the implied preemption issue because the Safety Act contained the Express Preemption Clause, 15 U.S.C. [section] 1392(d). (5) Manufacturers have argued the act's purpose was uniformity of standards. Uniformity, however, was only a secondary purpose. (6) 15 U.S.C. [section] 1397(k). (7) Loulos v. Ford Motor Co., 882 S.W.2d 149, 151 (Mo. Ct. App. 1994). (8) FMVSS 208 was amended in the late 1980s to require air bags for all cars (driver position first and passenger position car). Certainly, the assertion of common law liability for not including an air bag would not apply to these newer models that include air bags.