Supreme Court Rejects Implied Preemption Defense Concerning Imposition of State Tort Liability for Auto Manufacturer's Decision to Install Lap Belt
By Alan Untereiner, Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP
More than a decade ago, in Geier v. American Honda Co., 529 U.S. 861 (2000), the Supreme Court held that federal law preempted a design defect claim alleging that a car manufacturer was negligent in failing to equip a vehicle with a driver's-side airbag. Although the Court rejected the argument for "express" preemption based on the preemption clause of the National Traffic and Motor Vehicle Safety Act ("Safety Act"), 49 U.S.C. § 30103(b), reasoning that the clause's reference to nullified "safety standard[s]" did not include safety standards imposed through state common law, it held by a 5-4 vote that the tort claim nevertheless was "impliedly" preempted because it conflicted with a Department of Transportation ("DOT") safety standard (known as "FMVSS 208") that granted manufacturers a choice of whether to use an airbag or another type of passive restraint system on their vehicles.
Last week, in Williamson v. Mazda, No. 08-1314, the Court addressed some of the confusion that had arisen in the lower courts over the meaning of Geierby addressing a very similar issue. Specifically, the Court examined whether a different portion of a more recent version of FMVSS 208 - which gave manufacturers the choice of installing either lap belts or lap-and-shoulder belts on rear aisle seats - preempted a tort claim alleging that a vehicle was defective because it included lap belts rather than lap-and-shoulder belts on such seats. The Court held that such claims are notimpliedly preempted (unlike the claims in Geier). The National Chamber Litigation Center (NCLC) filed an amicusbrief in support of Mazda, drafted by Alan Untereiner of Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP.
Williamsonis an exceedingly narrow decision that should be quite easy for manufacturers and other defendants to distinguish. Notably, the Court went out of its way not to reopen various issues that were hotly disputed in Geier. Nonetheless, the decision unfortunately does include some loose language that may sow further confusion - and spur litigation - in the lower courts in certain conflict preemption cases involving federal regulations.
The Supreme Court's Decision
The implied preemption ruling in Geierwas issued by a divided Court and elicited a sharply worded dissent from Justice Stevens (joined by Justices Souter, Thomas, and Ginsburg). Although implied "conflict" preemption - under which the Supremacy Clause nullifies state and local laws that conflict with federal law - is an extremely old doctrine, in recent years it has been criticized by certain Justices in some of its applications as involving a high degree of subjectivity. This has been especially true in cases involving so-called "obstacle" preemption, a form of implied conflict preemption under which state or local laws are preempted if they present an obstacle to, or "frustrate the purposes of," federal law - an inquiry that, among other things, requires judges to identify the federal purposes in question. Obstacle preemption can be especially controversial in cases where a federal regulation, and the regulatory objectives of an administrative agency, are allegedly being thwarted by state law - and where the relevant state requirements are imposed through tort law, so that the effect of preemption is to nullify tort remedies. Both Geierand Williamsonfall into this category.
Given the substantial changes in the Court's composition since 2000, there was concern in the business community that the plaintiffs and their amiciin Williamsonwould seek to reopen some of the issues on which the manufacturer prevailed in Geier, including whether "ordinary" rules of conflict preemption should be applied to the preemption defense under the Safety Act (as opposed to an approach strongly disfavoring preemption). NCLC's amicusbrief devoted considerable attention to addressing these arguments of the plaintiffs and their amici.
In Williamson, the Court declined to revisit these favorable aspects of the Geierdecision. It did, however, reject the manufacturer's implied preemption defense and, in so holding, distinguished Geieron several grounds. The Court noted that the phased-in "choice among different kinds of passive restraint devices" at issue in Geierserved a variety of DOT purposes, including providing manufacturers with time to improve airbag technology, preventing a public backlash that might result from an all-airbag requirement, and furthering other cost and safety objectives. Slip op. at 6. In addition, the federal government in Geierhad taken the position that the objectives served by the regulatory option at issue there were important and would be frustrated by the plaintiffs' tort claim. In Williamson, in contrast, the different regulatory option granted by a later version of FMVSS 208 served a variety of quite different purposes, and the federal government was nottaking the position that the maintenance of the tort lawsuit would frustrate those purposes.
Justice Breyer's opinion for the Court in Williamsonthus turned on narrow grounds having to do with the particular regulation at issue in that case, the agency's purposes underlying that regulation, and the position taken by the United States on whether federal objectives were being undermined. The Court's decision was unanimous. Justice Sotomayor wrote a concurring opinion to emphasize that she disagreed with a broad reading of Geieradopted by some lower courts (under which state law is preempted any time it predicates liability on a manufacturer's exercise of a choice granted by a federal regulation). Justice Thomas also wrote an opinion concurring in the judgment in which he reiterated his prior criticisms of obstacle preemption and suggested he would rely on provisions in the Safety Act that the Geiermajority held were not dispositive. Justice Kagan did not participate.
The Practical Effect
For reasons just explained, Williamsonis a narrow decision that should have little impact outside of the area of certain product claims involving auto manufacturers. Nevertheless, the Court's opinion includes some loose language that may lead to mischief and confusion. In explaining why "the regulation, including its history, the promulgating agency's contemporaneous explanation of its objectives, and the agency's current views of the regulation's pre-emptive effect" did not give rise to preemption, the Court acknowledged not only that FMVSS 208 "leaves the manufacturer with a choice" to install either lap belts or lap-and-shoulder belts but also that "the tort suit here would restrict that choice." Slip op. 8. It then went on to say that there was no conflict preemption, however, because "unlike Geier, we do not believe here that [the] choice is a significant regulatory objective." Id. (emphasis added); accord id. at 12 (explaining that relevant regulation did not seek to "further significant regulatory objectives").
Traditionally, conflict preemption has turned on whether there is a conflict or incompatibility between federal and state law. To decide a question of conflict preemption, courts must interpret state or local law, then interpret federal law (and in some cases discern the federal purpose), and finally decide whether the tension between state and federal law (or purposes) rises to the level of a conflict forbidden by the Supremacy Clause. In prior cases, the Court has not considered as part of that analysis whether the federal purposes are "significant." Certainly it would be odd to do so in a case where Congress itself has stated its purposes in the text of a statute.
It will be left to the lower courts to figure out if this reference to "significant" regulatory objectives is simply stray or loose language in the Court's opinion, as opposed to a new method of analysis for obstacle preemption cases involving federal regulations. The Court's repetition of this language suggests that it was deliberately chosen, and yet the Court nowhere explains why an inquiry into the "significan[ce]" of federal purposes is appropriate or consistent with the Supremacy Clause.
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Alan Untereiner is a partner at Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP and the author of The Preemption Defense in Tort Actions: Law Strategy, and Practice (2008), a handbook published by the Chamber. For further information, please contact Alan Untereiner at (202) 775-4505.
The National Chamber Litigation Center is the leading voice of business in the courts. For more information about this and other NCLC litigation, please contact Sheldon Gilbert at (202) 463-5337, sgilbert@uschamber.com.
