OPINION AND ORDER
HUYETT, District Judge.
Defendant General Motors Corporation ("GM") moves for partial summary judgment in this action which arises out of an automobile accident.
Plaintiff Michael J. Kolbeck ("Kolbeck") was a passenger in a 1980 Pontiac Grand Prix that collided on October 29, 1985 with an automobile operated by defendant Charles N. Tait ("Tait") which was owned by defendant Tait Design and Machine Company ("Tait Design"). On January 29, 1988, based on diversity of citizenship, GM removed this action from the Court of Common Pleas of Philadelphia County. The action seeks recovery for injuries plaintiff sustained in the accident. The complaint states two counts against the defendants. Count I alleges, inter alia, that GM is liable for failing to design the Pontiac with adequate occupant restraint systems, specifically
GM, in its partial summary judgment motion, contends that federal law, specifically the National Traffic and Motor Vehicle Safety Act, 15 U.S.C. §§ 1381-1426 (1982 & Supp. IV 1986 & West Supp.1988) [hereinafter, Safety Act], and Federal Motor Vehicle Safety Standard 208, 49 C.F.R. § 571.208 (1979) [hereinafter, FMVSS 208], preempt any claim based on Pennsylvania common law for GM's failure to include a passive restraint system in the 1980 Pontiac. The question of whether the Safety Act and FMVSS 208 preempt common law claims is the subject of numerous court decisions and a substantial divergence of opinion among the courts that faced the question.
The facts are simply stated. Plaintiff's vehicle, a 1980 Pontiac Grand Prix, collided with an auto driven by Charles Tait on October 29, 1985. Tait allegedly ran a red light and broadsided the Pontiac in which Kolbeck was a passenger. The force of the collision threw Kolbeck forward, and he struck a portion of the Pontiac's interior. As a result of this "second collision," Kolbeck sustained severe injuries. He is now a quadraplegic. The medical reports of the incident state that Kolbeck was not wearing the seat belts the auto was equipped with at the time of the accident. The Pontiac contained a three point lap and shoulder safety belt occupant restraint system.
GM moves for partial summary judgment on plaintiff's claims that the Pontiac was defectively designed because it was equipped with seat belts and not with a passive restraint system such as airbags, an energy absorbing interior, or automatic seat belts. Plaintiff asserts that the Pontiac was unreasonably dangerous as designed and that there were safer design alternatives available. Essentially, Kolbeck argues that compliance with FMVSS 208 is only "some evidence of due care" in designing the car. GM, on the other hand, contends that the seat belt system in the Pontiac was in full compliance with federal law. Thus, it claims that plaintiff's defective design theory is expressly or impliedly preempted by federal law.
In 1966, Congress enacted the Safety Act, 15 U.S.C. §§ 1381-1426. According to
Two specific provisions of the Safety Act are most relevant to GM's motion. Section 1392(d) provides that whenever the Secretary of Transportation
The Department of Transportation first adopted FMVSS 208, 49 C.F.R. § 571.208 (1979),
The regulation itself is also complex. It provides for three restraint systems for an automobile. The "First Option" provides that a car may be equipped with a "complete passive restraint system ... that require[s] no action by the vehicle occupants." This system is designed to protect occupants from front and lateral crashes. 49 C.F.R. § 571.208 S18.104.22.168. The "Second Option" permits cars with a lap belt protection system and a belt warning system, such as a buzzer or light. The buzzer or light, which is activated immediately after ignition, reminds the occupant to "fasten your seat belt." Under this option, the manufacturer is required to include a passive restraint system to protect from frontal crashes. 49 C.F.R. § 571.208 S22.214.171.124. The "Third Option" provides for a lap and shoulder belt with a belt warning system. 49 C.F.R. § 571.208 S126.96.36.199.
The purpose of the regulation is
49 C.F.R. § 571.208 S2.
In general, there are three ways in which a state law may be preempted by federal law. First, Congress may expressly preempt state law by including specific language in a statute. Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977). Second, Congress may preempt by the use of language which although not expressly preemptive, "evidence[s] a Congressional intent to completely occupy a regulatory field." Baird, 654 F.Supp. at 29; see Fidelity Federal Savings & Loan v. De La Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982). Lastly, where the statutory language does not totally preempt state law, federal law preempts state law if the state law actually conflicts with federal law. See Michigan Canners & Freezers Ass'n v. Agricultural Marketing & Bargaining Bd., 467 U.S. 461, 469, 104 S.Ct. 2518, 2523, 81 L.Ed.2d 399 (1984); International Paper Co. v. Ouellette, 479 U.S. 481, 490-92, 107 S.Ct. 805, 811, 93 L.Ed.2d 883 (1987).
Where preemption is claimed because of a state law conflict with Congressional action, federal law preempts the conflicting state law where compliance with both the state and federal regulations is a physical impossibility, see Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 1217-18, 10 L.Ed.2d 248 (1963), or where the state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941); see Jones v. Rath Packing Co., 430 U.S. 519, 526, 97 S.Ct. 1305, 1310, 51 L.Ed.2d 604 (1977). Overriding any preemption analysis is the presumption that the federal law does not displace existing state law. Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2129, 68 L.Ed.2d 576 (1981); Cipollone v. Liggett Group, Inc., 789 F.2d 181, 185 (3rd Cir.1986) cert. den., 479 U.S. 1043, 107 S.Ct. 907, 93 L.Ed.2d 857 (1987); Baird v. General Motors, 654 F.Supp. 28, 29 (N.D.Ohio 1986).
GM does not suggest that Congressional regulation occupies the entire field of motor vehicle safety.
GM urges that 15 U.S.C. § 1392(d) expressly preempts plaintiff's claims. That statute provides in part:
Thus, GM claims that any state regulation of safety standards, such as common law damage awards, must be "identical" to the federal regulation. In its brief, GM relegates the provision which plaintiff argues saves his passive restraint claim to a footnote.
Section 1397(c) provides a savings clause. It provides that compliance with the Safety Act does not prevent liability under the "common law." The Third Circuit explicitly stated that an automobile manufacturer is not relieved of common law liability for failing to select a safer design alternative
Further, section 1392(d) only prohibits the states from implementing safety standards of their own. It does not directly address the state common law. Baird, 654 F.Supp. at 30. To determine the effect of this failure to address the state common law, I turn to Cipollone v. Liggett Group, Inc., 789 F.2d 181, 185-86. In Cipollone, the court found that the failure of Congress to refer explicitly to the state common law in the Cigarette Labeling Act's preemption provision, 15 U.S.C. § 1334 (1982), when it had done so in other preemption provisions, id. at n. 5, foreclosed the possibility that the Labelling Act expressly preempted a state common law claim.
The courts which find express preemption of passive restraint claims reason that state common law damage awards are equivalent to state regulation and, since FMVSS 208 provides manufacturers with three options for restraint systems, a state damage award can not be used to require passive restraint systems. See Heftel v. General Motors, no. 85-1713 (D.D.C. February 23, 1988); Hughes v. Ford Motor Co., 677 F.Supp. 76 (D.Conn.1987); Vanover v. Ford Motor Co., 632 F.Supp. 1095 (E.D.Mo.1986). These courts construe the savings clause to apply only to matters not covered by the FMVSS, or in cases of negligent compliance with FMVSS.
Further, I disagree with the emphasis these courts place on the legislative history of the Safety Act. The Vanover court concluded that a damage award from a passive restraint claim would be a state law standard "which would require the installation of airbags on the penalty of enormous liability in tort, certainly which would not be identical to the federal standard, which expressly authorizes manufacturers of automobiles to use any of several restraint systems, only one of which is airbags." 632 F.Supp. at 1097; see Cox, 646 F.Supp. at 763-64.
As discussed further below, it is not that I believe the regulatory effect of common law damage awards is irrelevant to the preemption issue. Cipollone counsels that express preemption analysis be narrowly tailored to the specific provisions of the statute in question. Accord Palmer v. Liggett Group, Inc., 825 F.2d 620, 626 (1st Cir.1987). Here, section 1381 expressly declares the Safety Act's purpose. That section does not expressly include national uniformity among the Act's purposes. Thus, I
I, therefore, hold that the failure of Congress to explicitly include reference to the state common law in section 1392(d), coupled with the express reference to common law actions in the savings clause of section 1397(c), compels the conclusion that the Safety Act does not expressly preempt plaintiff's common law products liability claim. I do not believe that Congress intended to foreclose common law damage awards when it gave the Secretary of Transportation the authority to adopt FMVSS 208.
To determine whether a common law damage award for failing to include a passive restraint claim would stand as an obstacle to the accomplishment and execution of the full objectives of Congress, I must "examine first the purposes of the federal law and second the effect of the operation of state law on these purposes." Finberg v. Sullivan, 634 F.2d 50, 63 (3rd Cir.1980) (in banc) citing Perez v. Campbell, 402 U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971); see Cipollone, 789 F.2d at 187. The regulatory scheme presented by the Safety Act requires that I look not only to the purposes of Congress in adopting the Safety Act, but also to the purposes of the Secretary of Transportation in adopting FMVSS 208.
As stated above, the Safety Act contains an express declaration of purpose in section 1381. That section sets forth the purpose of the Safety Act as "reduc[ing] traffic accidents and deaths and injuries...." 15 U.S.C. § 1381. Reading the Safety Act as a whole, including the savings clause and the preemption provision, makes clear that the possibility of common law damage awards was viewed by Congress as consistent to some extent with the overall objective of reducing highway carnage.
GM vigorously contends that allowing plaintiff's passive restraint claim to be heard by a jury will impede another purpose of the Safety Act. That purpose, although not expressly contained in section 1381, is found in the legislative history of the Act. "[The nature] of the motor vehicle manufacturing industry in the United States requires that motor vehicle safety standards be not only strong and adequately enforced, but they be uniform throughout the country." S.Rep. No. 1301, at 12. GM finds support for this argument in statements from Dawson v. Chrysler Motors Corp., 630 F.2d 950 (3rd Cir.1980). In Dawson, Judge Adams discussed the effect of section 1397(c) on automobile manufacturers.
Id. at 962.
Admittedly, Judge Adams eloquently expresses the dilemma faced by automobile manufacturers. However, the Dawson court did permit the plaintiff to maintain his common law crashworthiness claim. Thus, to reconcile the possible conflict between the stated purpose of the Safety Act to reducing highway carnage and the interest in national uniformity of design standards, I look to the recent Supreme Court decisions concerning preemption doctrine.
In International Paper Co. v. Ouellette, 479 U.S. 481, 107 S.Ct. 805, 93 L.Ed.2d 883 (1987), the Supreme Court found that an action brought under Vermont nuisance law against a pollution source located in New York state was impliedly preempted by the Clean Water Act, 33 U.S.C. § 1251 et seq [hereinafter CWA]. The conflict at issue in Ouellette was between a standard imposed on a pollution source under New York law and the standard that could potentially be imposed on the source under Vermont law. The Court refused to accept the claim that a savings clause
In Fidelity Federal Savings & Loan v. De La Cuesta, 458 U.S. 141, 159, 102 S.Ct. 3014, 3025, 73 L.Ed.2d 664 (1982), the Court concluded that a Federal Home Loan Bank Board regulation governing due-on-sale practices of federally insured savings and loan institutions preempted any conflicting state regulation, including decisions of a state supreme court. In reaching its conclusion that the regulation preempted any contrary state law, the Court emphasized the clear intent of the Board in promulgating the regulation to preempt any conflicting state law as evidenced by the preamble accompanying and explaining the regulation. Id. at 158 & n. 13, 102 S.Ct. at 3025 n. 13. Nothing in the legislative history of the Safety Act or in FMVSS 208 provides a clear statement that any safety standard was designed to preempt a common law product liability claim.
Moreover, close scrutiny of these decisions reveals that a Congressional purpose gleaned from one statement in the legislative history of a statute does not provide an adequate foundation to support a finding of preemption based on "interference with the achievement of the `full purposes and objectives of Congress.'" Ouellette, 479 U.S. at 492, 107 S.Ct. at 812, quoting Hillsborough County v. Automated Medical Laboratories, 471 U.S. 707, 713, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985). Particularly where a savings clause has been interpreted to preserve common law actions for failing to exceed the safety standards promulgated by the Secretary, Dawson, supra, I am unwilling to conclude that any interest in national uniformity of design standards, standing alone, predominates over the purposes expressly included in the Safety Act by the adoption of section 1397(c).
Turning to the purposes of safety standards in general, GM argues that the effect of the existence of an explicit standard governing any specific aspect of automobile performance requirements is such that it precludes conflicting state regulation in the form of a damage award for failing to select any specific option within FMVSS 208. To address this argument, it is necessary that I determine the effect of a safety standard on a common law claim.
GM argues, based on a pronouncement of the National Highway Transportation Administration ("NHTA"), that the standards are a minimum in the "sense that a manufacturer `must not fall short' of them." The NHTA pronouncement states:
41 Fed.Reg. 2391, 2392 (1976).
As far as it goes, GM's position is consistent with the Safety Act and the NHTA statement. A manufacturer faces sanctions for falling short of the safety standards promulgated by the Secretary. 15 U.S.C. §§ 1398, 1400, 1414 (1982). However, the caselaw under the Safety Act has consistently given safety standards the effect contemplated in the legislative history of the Act discussed above. See Shipp v. General Motors Corp., 750 F.2d 418, 421 (5th Cir.1985) ("Of course compliance with such minimum safety standards does not exempt or immunize a manufacturer from common law strict liability...."); Dawson, 630 F.2d at 957-58 (expressly rejecting the argument that compliance with all authorized safety standards precludes a common law product liability claim); Larsen, 391 F.2d at 506 (finding that the safety standards promulgated under the Safety Act are "supplementary of and in addition to the common law of negligence and product liability"). This interpretation of the effect of the safety standards is consistent with that of courts interpreting the effect of safety standards promulgated by federal authorities under other statutes. See, e.g., Ferebee, 736 F.2d at 1543 ("[F]ederal legislation has traditionally occupied a limited role as the floor of safe conduct; before transforming such legislation into a ceiling on the ability of states to protect their citizens, and thereby radically adjusting the historic federal-state balance, courts should wait for a clear statement of congressional intent to work such an alteration." (emphasis in original) (citation omitted)). I, therefore, conclude the purpose of safety standards is to establish minimum performance standards for automotive safety; they do not establish the standard of conduct required under the common law.
Concerning the purposes and objectives of FMVSS 208, it contains an explicit statement of purpose as required by the Safety Act. 15 U.S.C. § 1392; S.Rep. No. 1301, 89th Cong., 2d Sess. 7 (1966) ("In issuing each standard, the Secretary is expressly required to publish a statement of the basis and purpose which provides a non-technical explanation sufficient to enable the public to understand the purpose and, where appropriate, the limitation's of the standards coverage...."). Similar to the purpose of the Safety Act, the purpose of the regulation is to reduce deaths and the severity of injuries resulting from accidents "by specifying crashworthiness requirements...." 49 C.F.R. § 571.208 S2. Again, as stated above, the regulation's specification of crashworthiness requirements must be viewed as "supplementary of and in addition to" the standards established by the common law. Larsen, 391 F.2d at 506.
The purposes of safety standards and any subsidiary interest in national uniformity they are designed to further, standing alone may not provide an adequate basis to overcome the presumption against finding preemption. See Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2129, 68
Clearly, a common law damage award may have the effect of imposing requirements contrary to federally established purposes and objectives.
Through the subsidiary objectives of promoting national uniformity, and preserving restraint system options and the common law to the extent possible, the Safety Act and FMVSS 208 are designed to achieve the Safety Act's primary goal of reducing highway deaths and injuries. Plaintiff's passive restraint claim would tip the carefully drawn balance of those purposes by foreclosing options in favor of common law damage awards. Cf. Cipollone, 789 F.2d at 187. Thus, the effect of plaintiff's passive restraint claim "interferes with the methods by which the federal statute was designed to reach [the primary] goal," Ouellette, at 494, 107 S.Ct. at 813, to an extent sufficient to overcome the presumption against preemption. On this extremely
Lastly, I address the certification of an interlocutory appeal of the question before me. Under 28 U.S.C. § 1292(b) (1982), I must find that the question subject to an interlocutory appeal is (1) a controlling question of law, (2) about which there is a substantial ground for a difference of opinion, and (3) that an immediate appeal may materially advance the ultimate disposition of the litigation. 28 U.S.C. § 1292(b); In re Cement Antitrust Litigation (MDL no. 296), 673 F.2d 1020, 1026 (9th Cir.1982). Further, § 1292(b) is to be used "only in exceptional situations in which allowing an interlocutory appeal would avoid protracted and expensive litigation." Id.; see Coopers & Lybrand v. Livesay, 437 U.S. 463, 475, 98 S.Ct. 2454, 2461, 57 L.Ed.2d 351 (1978) (discussing the legislative history of § 1292(b)); Milbert v. Bison Laboratories, 260 F.2d 431, 433-35 (3d Cir.1958).
The issues raised by GM's motion for partial summary judgment in this lawsuit concern important areas of state and federal concern. My resolution of the preemption question is dispositive of plaintiff's passive restraint claims. Cf. Trans World Airlines, Inc. v. American Coupon Exchange, Inc., 682 F.Supp. 1476, 1489 (C.D. Cal.1988) (certifying for interlocutory appeal an order which is dispositive of liability issues).
As evidenced by the diversity of federal court decisions on the matter, supra at n. 1, there is a substantial ground for difference of opinion as to whether the Safety Act and FMVSS 208 preempt passive restraint claims. The cases cited demonstrate a "substantial ground for difference of opinion." "Substantial grounds for difference of opinion may be demonstrated by adducing conflicting and contradictory opinions of courts which have interpreted and ruled upon the particular question of law." Dorward v. Consolidated Rail Corp., 505 F.Supp. 58, 59 (E.D.Pa.1980). Also, the preemption question is an issue of first impression in this circuit and one on which courts disagree as a matter of law. See Board of Education of Township High School District no. 214, Cook County v. Climatemp, Inc., 91 F.R.D. 245, 251 (N.D.Ill.1981). An immediate appeal of this issue will advance the ultimate resolution of this dispute.
To promote an expeditious and efficient resolution of this litigation once the Court of Appeals resolves the interlocutory appeal, discovery on plaintiff's claims, other than the passive restraint claims, shall continue. Discovery on the passive restraint claims shall be stayed.
An appropriate order follows.
Upon consideration of defendant General Motors Corporation's Motion for Partial Summary Judgment, plaintiff Michael J. Kolbeck's response thereto, the supporting memoranda, letters, oral argument, and for the reasons stated in the attached opinion,
1. Defendant General Motors Corporation's Motion for Partial Summary Judgment is GRANTED. Summary Judgment on the "passive restraint claims" contained in Count I of the complaint shall be entered in favor of defendant General Motors Corporation and against plaintiff Michael J. Kolbeck.
2. Discovery on plaintiff's passive restraint shall be stayed pending resolution of the interlocutory appeal. Discovery on all other claims shall continue.
3. The following issue is certified for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) (1982):
Whether the provisions of the National Traffic and Motor Vehicle Safety Act, 15 U.S.C. §§ 1381-1426 (1982 & Supp. IV 1986 & West Supp.1988), and Federal Motor Vehicle Safety Standard 208, 49 C.F.R. § 571.208 (1979), preempt a claim based on the Pennsylvania common law of products liability for an automobile manufacturer's failure to include a passive restraint system in an automobile manufactured in compliance
IT IS SO ORDERED.
Other federal courts have found passive restraint claims expressly preempted. See, e.g., Heftel v. General Motors Corp., slip op., no. 85-1713 (Feb. 23, 1988 D.D.C.) [1988 WL 19615]; Cox v. Baltimore County, 646 F.Supp. 761 (D.Md.1986); Vanover v. Ford Motor Co., 632 F.Supp. 1095 (E.D.Mo.1986). Still other courts have found that FMVSS 208 preempts state law damage claims under an "implied preemption" theory, but not under a theory of express preemption. See, e.g., Staggs v. Chrysler Corp., 678 F.Supp. 270 (N.D.Ga.1987); Schick v. Chrysler Corp., 675 F.Supp. 1183 (D.S.D.1987); Wattelet v. Toyota Motor Corp., 676 F.Supp. 1039 (D.Mont.1987); Baird v. General Motors Corp., 654 F.Supp. 28 (N.D.Ohio 1986).
Finally, some courts reason that under the relevant state law, the failure to include airbags could not be the basis for finding the duty necessary to support a defective design claim, and, therefore, do not reach the preemption issue. See, e.g., Hughes v. Ford Motor Co., 677 F.Supp. 76 (D.Conn.1987); Higgs v. General Motors Corp., 655 F.Supp. 22 (E.D.Tenn.1985). At oral argument, counsel for GM stated that GM is not challenging plaintiff's claim on this ground. Transcript of Oral Argument, at 7 [hereinafter, Transcript].
Nothing in this section shall restrict any right which any person ... may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief....
Further, in 1974, Congress explicitly proclaimed that occupant safety standards may not require the installation of airbags. 15 U.S.C. § 1410b(b)(2) (1982) states:
This amendment to the Safety Act also authorized the Secretary of Transportation to develop occupant safety standard restraint standards. 15 U.S.C. § 1410b(b)(3)(A).