PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 97-8021
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D. C. Docket No. 1:94-CV-2964-HTW
JULIETTE IRVING, as Guardian of the Persons
and Property of BRYANA BASHIR, and as
Administratrix of the Estate of BONITA L.
IRVING, Deceased,
Plaintiff-Appellant,
versus
MAZDA MOTOR CORP. a.k.a. Mazda Motors Corp.
f.k.a. Toyo Kogyo, Ltd., MAZDA (NORTH
AMERICA), INC., et al.,
Defendants-Appellees,
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Appeal from the United States District Court
for the Northern District of Georgia
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(March 5, 1998)
Before HATCHETT, Chief Judge, EDMONDSON and COX, Circuit Judges.
EDMONDSON, Circuit Judge:
Plaintiff appeals the district court’s
grant of summary judgment for
Defendants. The district court decided that
Plaintiff’s state law claims were
preempted by federal law. We conclude that
Federal Motor Vehicle Safety Standard
(“FMVSS”) 208, 49 C.F.R. § 571.208, (enacted
under the authority of the National
Traffic and Motor Vehicle Safety Act of
1966, 15 U.S.C. §§ 1381 et seq.) does preempt
2
Plaintiff’s state law claims. And, we
affirm the grant of summary judgment.
Background
Plaintiff Juliette Irving filed suit
against Defendant Mazda Motor
Corporation on behalf of her daughter,
Bonita Irving. Bonita was killed in a
single-car accident while driving a 1990
Mazda MX-6. After her daughter’s death,
3
Plaintiff filed this suit claiming that the
seat belts in the MX-6 were defectively
designed and that Mazda failed to warn
consumers adequately of the risks of not
utilizing all portions -- particularly the
manual lap belt portion -- of the safety
belt system.
The safety belt system used in the
Mazda MX-6 included a two-point passive
shoulder restraint (automatic shoulder belt)
with a manual lap belt. This kind of
4
restraint system was one of three
options provided to car manufacturers by
FMVSS 208. Plaintiff contends the design
represented by this option was defective.
Defendants filed a motion for
summary judgment claiming that FMVSS
208 both expressly and impliedly preempts
state law (including common-law) claims
and that no recovery can be had on a
claim based on the use of a design
permitted by the federal standards. The
5
district court granted this motion and --
concluding that Plaintiff’s failure-to-warn
claim was dependent upon the design-defect
claim -- also dismissed Plaintiff’s failure-to-
warn claim.
Discussion
Whether Plaintiff’s state law claims are
preempted under the federal law is
reviewed by this Court de novo. Lewis v.
6
Brunswick Corp., 107 F.3d 1494, 1498 (11th Cir.),
cert. granted, 118 S.Ct. 439 (1997).
I. Preemption: Defective-Design Claim
The Supremacy Clause of the United
States’ Constitution provides that the laws
of the United States “shall be the supreme
Law of the Land; . . . any Thing in the
Constitution or Laws of any State to the
Contrary notwithstanding.” U.S. Const.
7
art. VI. Thus, state law that conflicts with
federal law is “without effect.” Cipollone v.
Liggett Group, Inc., 112 S.Ct. 2608, 2617
(1992) (citing Maryland v. Louisiana, 101
S.Ct. 2114, 2128 (1981)). And, “common law
liability may create a conflict with federal
law, just as other types of state law can.”
Pokorny v. Ford Motor Co., 902 F.2d 1116, 1122
(3d Cir. 1990); see also CSX Transp., Inc. v.
Easterwood, 113 S.Ct. 1732, 1737 (1993).
8
Whether federal statutes or regulations
preempt state law is “a question of
congressional intent.” Perry v. Mercedes
Benz of North America, Inc., 957 F.2d
1257, 1261 (5th Cir. 1992); see also
Medtronic, Inc. v. Lohr, 116 S.Ct. 2240,
2250 (1996) (“The purpose of Congress is the
ultimate touchstone in every preemption
case.”) (internal quotations and citation
omitted). Congress -- through federal laws
and regulations -- may effectively
9
preempt state law in three ways: (1)
express preemption; (2) field preemption
(regulating the field so extensively that
Congress clearly intends the subject area
to be controlled only by federal law); and (3)
implied (or conflict) preemption.
Defendants claim that the National
Traffic and Motor Vehicle Safety Act of
1966 (“the Act”) both expressly and impliedly
preempts Plaintiff’s state law claims.
A. Express Preemption
10
“[A] strong presumption exists against
finding express preemption when the
subject matter, such as the provision of
tort remedies to compensate for personal
injuries, is one that has traditionally been
regarded as properly within the scope of
the states’ rights.” Taylor v. General
Motors Corp., 875 F.2d 816, 823 (11th cir.
1
1989) (citation omitted). Thus, express
Our pronouncements in Taylor were
1
partially abrogated by Myrick v. Freuhauf
Corp., 13 F.3d 1516, 1521-22 (11th Cir. 1994),
where we wrote that the Supreme Court’s
decision in Cipollone v. Liggett Group Corp.,
112 S.Ct. 2608 (1992), would not permit an
11
preemption clauses must be construed
narrowly. Taylor, 875 F.2d at 823-24.
Defendants first contend that
Plaintiff’s design-defect claim is expressly
preempted by the preemption clause of the
Act. That clause makes this statement:
analysis of implied preemption where an
express preemption clause existed in the
relevant federal law. But, the Supreme
Court reviewed Myrick on appeal and,
although affirming the outcome, stressed
that implied preemption is possible despite
the presence of an express preemption
clause. Freightliner Corp. v. Myrick, 115 S.Ct.
1483, 1487 (1995). Thus, Taylor is correct and
can be used for evaluating preemption of
state law.
12
When a motor vehicle safety
standard is in effect
under this chapter, a State or a
political subdivision of
a State may prescribe or continue
in effect a standard
applicable to the same aspect of
performance of a
motor vehicle or motor vehicle
equipment only if the
standard is identical to the
standard prescribed under
this chapter. . . .
49 U.S.C. § 30103(b)(1) (formerly 15 U.S.C. §
1392(d)). But, the Act also contains a
savings clause which provides that
“[c]ompliance with a motor vehicle safety
standard prescribed under this chapter does
13
not exempt a person from liability at
common law.” 49 U.S.C. § 30103(e) (formerly
15 U.S.C. § 1397(k)). Thus, “[t]he question of
express pre-emption is properly analyzed
only after considering both § 1392(d) and §
1397(k).” Pokorny, 902 F.2d at 1120 (citing
American Textile Mfrs. Inst., Inc. v.
Donovan, 101 S.Ct. 2478, 2492 (1981)).
In Taylor, after reading these two
sections together, we determined that the
conflict between them made the
preemption of common-law claims
14
ambiguous. Thus, the presumption against
preemption controlled; and no express
preemption could be found. Taylor, 975 F.2d
at 825.
We also considered express preemption
for the Federal Boat Safety Act (“FBSA”), in
Lewis v. Brunswick Corp., 107 F.3d 1494. The
FBSA contains language similar to that of
the National Traffic and Motor Vehicle
Safety Act, containing both a preemption
2
clause and a savings clause.
The pertinent portions of the FBSA read
2
this way:
15
Again we (as in Taylor) read the
preemption clause narrowly and said that
the FBSA’s preemption clause did not cover
[A] State or a political subdivision of a
State may not establish, continue in
effect, or enforce a law or regulation
establishing a recreational vessel or
associated equipment
performance or other safety standard
or imposing a
requirement for associated equipment
. . . that is not identical to a regulation
prescribed under . . . this title.
46 U.S.C. § 4306. The FBSA further provides
that “[c]ompliance with this chapter or
standards, regulations, or orders
prescribed under this chapter does not
relieve a person from liability at
common law or under State law.” 46 U.S.C.
§ 4311(g).
16
common-law claims. Lewis, 107 F.3d at 1501.
Taylor and Lewis point to the same
3
conclusion for this case. So, Plaintiff’s
defective-design claim is not expressly
preempted by the Act.
B. Implied Preemption
3
This conclusion is the same as that
reached by other circuits. See, e.g., Perry,
957 F.2d at 1264; Pokorny, 902 F.2d at 1121;
Kitts v. General Motors Corp., 875 F.2d
787, 789 (10th Cir. 1989) (adopting Wood v.
General Motors Corp.); Wood v. General
Motors Corp., 865 F.2d 395, 402 (1st Cir.
1988).
17
Conflict preemption exists where state
law actually conflicts with federal law,
making it impossible to comply with both,
or where the state law “stands as an
obstacle to the accomplishment and
execution of the full purposes and
objectives of Congress.” Lewis, 107 F.3d at
1500 (internal quotations and citation
omitted).
The existence of an express
preemption clause does not necessarily
preclude the presence of implied
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preemption. Freightliner Corp. v. Myrick,
115 S.Ct. 1483, 1487-88 (1995). Thus, if
Plaintiff’s state law claim conflicts with
FMVSS 208 or if her claim would hinder
Congress’s objectives in passing the Act,
the state law will be preempted.
FMVSS 208 directly addresses the kinds
of restraint systems permitted to be used
by car manufacturers. It allows
manufacturers to choose from three
options: (1) a complete passive restraint
system (automatic seat belts with or
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without air bags); (2) passive protection
for frontal crashes (for example,
automatic shoulder belts or air bags) plus
manual lap belts for lateral crashes and
rollovers with a seat belt warning system;
or (3) manual lap and shoulder belts with a
seat belt warning system. FMVSS 208;
Perry, 957 F.2d at 1260.
Defendants chose the second option --
installing two-point passive shoulder
restraints with manual lap belts. That
Congress specifically intended the standard
20
to give manufacturers a choice should
preempt common-law claims that two-
point passive shoulder belts, paired with
manual lap belts, constitute inherently a
design defect. See Pokorny, 902 F.2d at 1123
(actual conflict exists with the Act and
FMVSS 208 to the extent a claim would
stand for a manufacturer’s choice of an
option provided by the standards).
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i. An argument made for the first
time on appeal.
As we understand the record, Plaintiff’s
claim in district court was not that a
differently designed two-point system with
a manual lap belt would have been without
4
defect. On the contrary, Plaintiff based
If a claim was asserted that two-point
4
systems (such as that installed in the
Mazda MX-6) were not defective in
general, but that the specific design selected
by Mazda for its two-point system was
unreasonably dangerous, preemption would
be less clear.
22
her claim on the allegation that the option
provided in the standards represented
inherently a defective design. “Plaintiff
allege[d] that the option selected by Mazda
is defective.” Plaintiff’s Brief in
Opposition to Defendants’ Motion for
Summary Judgment at 12.
Plaintiff, however, seems to argue for
the first time in this appeal that
different, nondefective designs could have
been selected by Defendants under the
same regulatory option: automatic
23
shoulder belt with manual lap belt. Thus,
Plaintiff now argues that she is not
challenging Defendants’ choice of a
regulatory option. This argument differs
from Plaintiff’s argument in the district
5
court. Too often our colleagues on the
5
The option selected by Defendants
permitted passive protection for frontal
crashes -- either air bags or passive
shoulder harnesses -- plus lap belts for
lateral crashes. The only alternative
designs put forward by Plaintiff in the
district court were three-point seat belts,
fully automatic belts, and restraint
systems with more elaborate warning
systems. These alternatives do not fall
within the regulatory option exercised by
Defendants. A three-point seat belt
24
system would have to be either fully passive
(for example, the seat belt is attached to
the car door and is positioned upon closing
the door) or fully manual (requiring
passenger action to position the
restraint), which would place that system
in either of the two options not selected by
Defendants. The option exercised by
Defendants allowed for a partially passive,
partially manual restraint system. For
the same reason, a fully automatic belt
system also would not fall under the same
option selected by Defendants. Finally, the
warning systems proposed by Plaintiff
would have been different from the
warning system specifications set out for
the option selected by Defendants, with
which specifications Defendants
undisputably complied.
In the district court, Plaintiff stated
that she was “not suggesting that the
options be taken away; rather, Plaintiff
alleges that the option selected by Mazda is
25
district courts complain that the appellate
cases about which they read were not the
cases argued before them. We cannot allow
Plaintiff to argue a different case from
the case she presented to the district court.
Because Plaintiff failed to make this
argument in the district court, we decline
defective.” Plaintiff’s Brief in Opposition
to Defendants’ Motion for Summary
Judgment at 12 (emphasis added). To
sharpen this point more, Plaintiff went so
far as to challenge the appropriateness of
FMVSS 208. See id. at 2 (“[A]lthough the
restraint system may comply with the
minimum standards, the standards are
inadequate and should not impede the
progress towards improved designs.”).
26
to consider it here. See Narey v. Dean, 32
F.3d 1521, 1526-27 (11th Cir. 1994).
ii. The argument made in district
court.
When considering implied preemption,
no presumpt io n exis t s ag ainst
preemption. “Under the Supremacy Clause
of the Federal Constitution, ‘[t]he relative
importance to the State of its own law is
not material when there is a conflict with
27
a valid federal law,’ for ‘any state law,
however clearly within a State’s
acknowledged power, which interferes with
or is contrary to federal law, must yield.’”
Lewis, 107 F.3d at 1502 (citation omitted).
Because Plaintiff sued Defendants for
exercising an option explicitly permitted
by Congress, a conflict exists between
state and federal law if Plaintiff goes
forward with this state law claim of
defective design. Taylor, 875 F.2d at 827
(“[A] state cannot impose common law
28
damages on individuals for doing what a
federal act or regulation ‘authorized them
to do.’”) (quoting Chicago & N.W. Transp. Co. v.
Kalo Brick & Tile Co., 101 S.Ct. 1124, 1131 (1981)).
Therefore, Plaintiff’s suit against
Defendants for their exercise of an
option provided to Defendants by FMVSS
208 conflicts with federal law and, thus, is
preempted.
II. Failure-to-Warn Claim
29
In addition to granting Defendants’
motion for summary judgment on
Plaintiff’s claim of defective design, the
district court also dismissed Plaintiff’s
failure-to-warn claim. The district court
said that “[s]ince plaintiff’s defective
design claims are preempted, the court will
not address plaintiff’s failure to warn
claim, as it is premised on a defective
design.” District
Court Order at 8 n.8 (emphasis added).
30
Plaintiff argues on appeal that a
failure-to-warn claim is separate from
and not dependent upon a defective-design
claim. As a general statement of law,
Plaintiff’s proposition is often correct.
See, e.g., Michael v. Norfolk Southern Ry. Co.,
74 F.3d 271 (11th Cir. 1996) (applying Georgia
law); see also Sheckells v. AGV-USA Corp., 987
F.2d 1532, 1533 (11th Cir. 1993) (applying
Georgia law); Stapleton v. Kawasaki Heavy
Indus., Ltd., 608 F.2d 571, 572-73 (5th Cir.
1979) (applying Georgia law). But, in this
31
case Plaintiff (not the district court or
Defendants) tied the claims of defective
design and failure to warn together. In
Plaintiff’s opposition to Defendants’
motion for summary judgment, she argued
that she would ask the jury to find that “the
1990 Mazda MX-6 equipped with the two-
point motorized shoulder belt and manual
lap belt option is defective without
6
plaintiff’s desired warning.” Plaintiff’s
Plaintiff presented several warning
6
systems as safer alternatives to the
system present in the 1990 Mazda. The
Mazda warning system included a buzzer,
32
Brief in Opposition to Defendants’
Motion for Summary Judgment at 23.
Because Plaintiff’s defective-design
claim is preempted by FMVSS 208, there
was no defect about which to warn.
Plaintiff’s failure-to-warn claim -- which is,
in this case, dependent on the preempted
a light indicating a failure to secure the
lap belt, and a written warning on the
sun visors on both the driver and
passenger sides of the car. Plaintiff alleges
these warnings were inadequate. But,
Plaintiff does not dispute that the
warnings provided in the 1990 Mazda fully
complied with the federal standards. See
FMVSS 208 at S7.3; 49 C.F.R. § 571.208, S.5.
33
defective-design claim -- was properly
dismissed.
AFFIRMED.
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