Carden v. General Motors Corp.

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
December 4, 2007

No. 06-11182 Charles R. Fulbruge III
Clerk

LISA ANN CARDEN, Individually and for and on
behalf of those entitled to recover for the wrongful
death on behalf of Alexa Lee Wilson;
RONALD LEE WILSON, II,

Plaintiffs-Appellants,
v.

GENERAL MOTORS CORPORATION,

Defendant-Appellee.
---------------------------------------------------------------------------------------------

RONALD LEE WILSON, II, Individually,
and as an Heir to Alexa Lee Wilson,
Plaintiff-Appellant,
v.

GENERAL MOTORS CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Texas

Before JONES, Chief Judge, and DeMOSS and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:

I. Factual and Procedural Background
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On June 17, 2004, Ronald Lee Wilson, II, was driving a 1999 Pontiac
Grand Am when it was struck near the left rear door by another vehicle. His
daughter, twelve year-old Alexa Wilson, was seated in the rear center seat at the
time. This position was equipped with a lap-only seat belt, which Alexa was
wearing at the time of the accident. As a result of the impact, Alexa sustained
serious injuries which led to her death.
Plaintiffs-Appellants Lisa Ann Carden, decedent’s mother, and Ronald Lee
Wilson, II, (hereinafter “Carden and Wilson”) filed suit against General Motors
Corporation (“GM”) under Texas tort law. Appellants claimed that the 1999
Pontiac Grand Am was defectively and negligently designed because: (1) the rear
center position of the vehicle was equipped with a lap-only seat belt (“Type 1 seat
belt”) as opposed to a lap/shoulder belt (“Type 2 seat belt”); (2) the rear center
seat belt was equipped with a manual adjusting device, rather than a retractor;
and (3) the vehicle lacked side impact airbags or other side impact protections.
Carden and Wilson also brought a defective marketing claim, arguing that the
vehicle lacked adequate warnings and instructions associated with the vehicle’s
use. The district court found that Carden’s and Wilson’s seat belt claims were
preempted and granted summary judgment to GM. Subsequently, Carden and
Wilson agreed to dismiss their remaining claims. Carden and Wilson timely
appeal the district court’s grant of summary judgment to GM. For the following
reasons we affirm.
II. Discussion
A.
Federal Motor Vehicle Safety Standard (“FMVSS”) 208 was promulgated
by the National Highway Traffic Safety Administration (“NHTSA”) under the
authority of the National Traffic and Motor Vehicle Safety Act of 1966 (the
“Safety Act”). 15 U.S.C. § 1391 et seq., recodified as amended, 49 U.S.C. § 30101
et seq. The Safety Act was enacted to “reduce traffic accidents and death and

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injuries resulting from traffic accidents.” 49 U.S.C. § 30101. Federal Motor
Vehicle Safety Standards implement the Safety Act “by specifying vehicle crash
worthiness requirements . . . [and] by specifying equipment requirements for
active and passive restraint systems.” 49 C.F.R. § 571.208.S2 (1996). FMVSS
therefore establishes the types of passenger restraint systems which car and
truck manufacturers must install in their vehicles. It is undisputed that at the
time the 1999 Pontiac Grand Am was manufactured, FMVSS 208 required that
manufacturers install either a lap-only seat belt or the lap/shoulder belt in a rear
center position.
Carden and Wilson argue that the district court erred in finding that their
seatbelt claims where preempted by FMVSS 208 for two reasons. First, they
assert that the regulation sets a minimum standard and therefore does not exert
preemptive effect absent some regulatory policy that would be undermined by the
imposition of common law liability. Second, Carden and Wilson contend that
NHTSA’s decision not to mandate lap/shoulder belts in the rear center seat does
not give rise to preemption analysis. GM argues that because federal law gave
manufacturers the option between lap-only and lap/shoulder belts, a state
common law suit that would effectively foreclose one of these options is
preempted. This court reviews the district court’s preemption analysis de novo.
Frank v. Delta Airlines Inc., 314 F.3d 195, 197 (5th Cir. 2002).
Under the Supremacy Clause, federal law will preempt state law when
Congressional intent to preempt may be inferred from the existence of a
pervasive federal regulatory scheme, or when state law conflicts with federal law
or its purposes. AT&T Corp. v. Pub. Util. Comm’n of Tex., 373 F.3d 641, 645 (5th
Cir. 2004) (citation omitted). Actual conflict between state and federal law exists
where “the federal scheme expressly authorizes an activity which the state
scheme disallows.” Wells Fargo Bank of Tex. v. James, 321 F.3d 488, 491 n.3 (5th
Cir. 2003). The question before this court is whether Appellants’ state common

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law tort claim actually conflicts with FMVSS 208, and is thus preempted by
federal law. We conclude that it is.
In Geier v. American Honda Motor Co., Inc., 529 U.S. 861 (2000), the
Supreme Court was confronted with essentially the same question presently
before this court: whether FMVSS 208 preempted a state common law tort claim.
In that case, an injured motorist brought a defective design action against an
automobile manufacturer under District of Columbia tort law, arguing that the
manufacturer was negligent for failing to equip the automobile with driver’s side
airbags. Geier, 529 U.S. at 865. The Court interpreted the petitioners’ claim as
imposing a duty on the manufacturer to have installed airbags in their vehicles
rather than another passive restraint system, and in turn, as a requirement that
all manufacturers of similar cars also install airbags. The Court held that the
petitioners’ claim actually conflicted with FMVSS 208, explaining that the
Department of Transportation’s comments accompanying the promulgation of
FMVSS 208 “make clear that the standard deliberately provided the
manufacturer with a range of choices among different passive restraint devices.”
Geier, thus, compels the conclusion that a state tort suit that would foreclose a
safety option intentionally left to vehicle manufacturers by Federal Motor Vehicle
Safety Standards is preempted. See Griffith v. Gen. Motors Corp., 303 F.3d 1276,
1282 (11th Cir. 2002) (“[U]nder Geier, when a Federal Motor Vehicle Safety
Standard leaves a manufacturer with a choice of safety device options, a state
suit that depends on foreclosing one or more of those options is preempted.”);
Hurley v. Motor Coach Indus., Inc., 222 F.3d 377, 383 (7th Cir. 2000).
Carden and Wilson attempt to distinguish their claims from those in Geier,
arguing that their claims are consistent with the policy objectives identified by
the NHTSA because the agency never enunciated any specific regulatory policy
for allowing manufacturers to install either lap belts or lap/shoulder belts. We
disagree. A review of the regulatory and rule making history of FMVSS 208

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supports the conclusion that the NHTSA’s decision to allow car manufacturers
the option to install either lap-only or lap/shoulder seat belts in the rear center
seating position of passenger vehicles was deliberate, and the agency identified
specific policy reasons for its decision. In 1967, when FMVSS 208 was initially
promulgated, the DOT required either lap-only or lap/shoulder seat belts in each
seating position in passenger vehicles. 32 Fed. Reg. 2408, 2415 (Feb. 3, 1967).
As technology advanced and seatbelt use became more widespread, seatbelt
requirements evolved. In 1989, noting the decreased cost and increased use of
seatbelts in rear seating positions, the NHTSA amended FMVSS 208 to require
the use of lap/shoulder seat belts in rear outboard seating. 54 Fed. Reg. 46257-01
(Nov. 2, 1989). The commentary preceding the final rules indicates that the
NHTSA considered comments suggesting that lap/shoulder seat belts be required
in the rear center seating position as well, but decided to leave manufacturers the
option to select between lap-only and lap/shoulder belts.1 Id. at 46258. In
excluding the rear center seat from this requirement, the agency explained that
“there [were] more technical difficulties associated with any requirement for
lap/shoulder belts at center rear seating positions, and that lap/shoulder belts at
center rear seating positions would yield small safety benefits and substantially
greater costs, given the lower center seat occupancy rate and the more difficult
engineering task.” Id.2 Based on this language, it is clear that the agency’s

1
In 2002, Anton’s Law was signed into legislation. Pub. L. No. 107-318. Anton’s Law
directed NHTSA to complete rule-making within two years that would require the installation
of lap/shoulder belts in all rear seating positions. Id. at § 5. The NHTSA promulgated a new
version of FMVSS 208, requiring that lap/shoulder belts be phased into all passenger vehicles
over a three year period beginning in September 2005. 69 Fed. Reg. 70904-01 (Dec. 8, 2004).
This legislation, however, has no bearing on this Court’s preemption analysis in this case as
we look to the version of FMVSS 208 in effect at the time the 1999 Pontiac Grand Am was
manufactured.
2
Moreover, FMVSS's extensive rule making history indicates that child safety concerns
also played a part in the decision not to require lap/shoulder belts in rear seating positions.
Specifically, the NHTSA struggled to find balance between seat belt options in rear seating
positions that could accommodate adult passengers and also properly restraint child safety

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decision was deliberate and based on managing technological constraints and cost
efficiency.
Carden and Wilson also contend that Sprietsma v. Mercury Marine, 537
U.S. 51 (2002) is controlling, not Geier. In Sprietsma, the Supreme Court
considered whether the U.S. Coast Guard decision not to adopt a regulation
requiring propeller guards on motorboats preempted a claim alleging an engine
was defectively designed because it was not equipped with propeller guards. The
Court held that the claim was not preempted, reasoning that although the Coast
Guard intentionally declined to require propeller guards, it did not convey an
authoritative message of a federal policy against them. Id. at 64. Carden and
Wilson argue that the NHTSA's decision to allow manufacturers the option
between lap-only belts and lap/shoulder belts is essentially the same as the U.S.
Coast Guard's decision in Sprietsma. This argument is without merit. Sprietsma
involved a complete absence of regulatory action, which was not the case here.
As discussed above, the NHTSA identified particular policy reasons for its
decision to allow manufacturers the option of selecting between the two seat belt
designs, and included this option as a part of a comprehensive regulatory scheme.
See, e.g., Frank, 314 F.3d at 199 n.6 (5th Cir. 2002) (distinguishing Sprietsma
and explaining that Frank involved “the preemptive effect of adopted FAA
regulations as opposed to the preemptive effect of the Coast Guard's decision not
to regulate propeller guards.”). Thus, Sprietsma does not control.
The rule-making and legislative history of FMVSS 208 indicates that the
decision to allow manufacturers the option of selecting either lap-only or

seats. See, e.g., 49 Fed. Reg. 15241, 15241-15242 (April 18, 1984) (“The installation of Type
2 belts in rear outboard seating positions would made the installation of conventional child
safety seat much less convenient than with current Type 1 belt.”); 64 Fed. Reg. 10786, 10788
(Mar. 5, 1999) (discussing the difficulty of designing seat belts that both restrain older
children, teenagers and adults and tightly secure child seats). The NHTSA has since
promulgated standards that attempt to address these concerns with child safety by using
devices other than seat belts. See 49 C.F.R. § 571.213.

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lap/shoulder belts was deliberate and for specific policy reasons, particularly the
technological problems associated with requiring the installation of lap/shoulder
belts, and the resulting cost. Because Carden’s and Wilson’s claim would
foreclose a deliberate option left to manufacturers under Standard 208, namely
the option of installing manual lap-only seat belts, Carden’s and Wilson’s seat
belt claims are preempted.
Similarly, FMVSS 208 gives manufacturers the option of selecting between
either a lap-only or a lap/shoulder belt which may be equipped with either a
retractor or a manual adjusting device. Separate analysis of Carden’s and
Wilson’s no-retractor claims is not necessary as these claims would also foreclose
an express option given to manufacturers. Accordingly, Carden’s and Wilson’s
retractor claims are also preempted.
B.
Alternatively, Carden and Wilson contend that even if this court were to
find that their seatbelt claims are preempted, the district court's grant of
summary judgment should nevertheless be reversed because the unique design
of the 1999 Pontiac Grand Am rendered the vehicle unsafe without a lap/shoulder
belt installed in the rear center seat. We review a grant of summary judgment
de novo, using the same criteria as the district court. Plyant v. Hartford Life and
Accident Ins. Co., 497 F.3d 536, 538 (5th Cir. 2007). Summary judgment is
proper if the record reflects “that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” FED. R.
CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A genuine
issue of material fact exists “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Plyant, 497 F.3d at 538.
We agree with Carden and Wilson that pursuant to Geier a manufacturer’s
decision to employ a unique vehicle design might foreclose certain options
otherwise available to it under the federal standards and that suits brought

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under this defective design theory are not preempted. See 529 U.S. at 885 (“It is
possible that some special design-related circumstance concerning a particular
kind of car might require airbags, rather than automatic belts, and that a suit
seeking to impose that requirement could escape pre-emption”). The question
remains, however, whether Carden and Wilson submit sufficient evidence to meet
the summary judgment bar.
Carden and Wilson present evidence in the form of expert testimony to
support their claim that design aspects of the 1999 Grand Am were such that
installation of a lap-only seat belt in the rear center seat made the car unsafe.
Upon close review of the record, the expert testimony fails to identify any
significant differences between the 1999 Grand Am and other vehicles designed
during the same time period that would justify this claim. Further, Carden and
Wilson have produced no other evidence to support their claim that the 1999
Grand Am is in fact unique. This claim appears to be merely an attempt to
circumvent the preemption bar and also does not justify a reversal of the district
court's grant of summary judgment to GM.
C.
Finally, Carden and Wilson appeal the district court’s grant of summary
judgment in favor of GM on their defective marketing and failure to warn claims.
Carden and Wilson contend that these claims are not preempted by FMVSS 208
because at the time the 1999 Grand Am was manufactured, no federal safety
standard regulated the instructions or warnings for the rear center seat in
passenger vehicles. The Eleventh Circuit addressed a similar issue, and held
that where the defective marketing and failure to warn claims are themselves
premised on defective design claims found to be preempted, the defective
marketing and failure to warn claims are also preempted federal law. Griffith,
303 F.3d at 1282; Irving v. Mazda Motor Corp., 136 F.3d 764, 770 (11th Cir. 1998)

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(“Because Plaintiff’s defective-design claim is preempted by FMVSS 208, there
was no defect about which to warn.”).
The section of Carden’s and Wilson’s brief addressing their defective
marketing and failure to warn claims is sparse. However, from what we can
gather, it appears that Carden’s and Wilson’s defective marketing and failure to
warn claims are based on GM’s decision to install a manual lap-only seat belt.
Because Carden’s and Wilson’s defective marketing and failure to warn claims
appear to be tied to their defect claims, these claims are also preempted.
III. Conclusion
The Supreme Court’s decision in Geier governs this case, and as such we
hold that Carden’s and Wilson’s design defect and defective marketing claims are
preempted by FMVSS 208. Also, Carden and Wilson have not succeeded in
showing that the 1999 Pontiac Grand Am was uniquely designed so as to warrant
exemption from preemption analysis. Accordingly, we AFFIRM the rulings of the
district court.

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