Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

April 26,2004

The Honorable Burt R. Solomons Opinion No. GA-01 83

Chair, Committee on Financial

Institutions Re: Whether 49 U.S.C. 5 14501(c)(l) preempts

Texas House of Representatives chapter 145 of the Texas Civil Practice and

Post Office Box 2910 Remedies Code (RQ-0123-GA)

Austin, Texas 78768-2910

Dear Representative Solomons:

You ask whether 49 U.S.C. 5 14501(c)(l), which prohibits states from regulating motor

carriers of property, preempts chapter 145 of the Texas Civil Practice and Remedies Code, which

provides a residential delivery or in-home service company that has obtained an employee criminal

history background check with a “presumption of no negligence” in certain actions.’

I. Backwound

A. Civil Practice and Remedies Code, Chapter 145

Chapter 145, which the Seventy-eighth Legislature enacted in the 2003 regular

session, pertains to in-home service companies and residential delivery companies that obtain

criminal history background checks for certain employees whose job duties require entry into homes.

SeeT~x. CIV.PRAC.&REM.CODEANN. $5 145.001-.004(Vemon Supp. 2004). Yourqueryfocuses

on residential delivery companies, which may also be regulated by federal law governing motor

carriers. Thus, we limit our discussion to residential delivery companies.

Under chapter 145, the term “residential delivery company” means “a person who employs

a person to, for a fee: (A) deliver an item to another person’s residence; and (B) enter the residence

to place, assemble, or install the item.” Zci.5 145.001(2). Section 145.002 provides that a residential

delivery company

‘See Letter from Honorable Burt R. Solomons, Chair, Committee on Financial Institutions, Texas House of

Representatives, to Honorable Greg Abbott, Texas Attorney General (Sept. 30,2003) (on file with Opinion Committee,

also available nf http:l/www.oag.state.tx.us.) [hereinafter Request Letter].

The Honorable Burt R. Solomons - Page 2 (GA-01 83)

shall obtain from the Department ofPublic Safety or a private vendor

approved by the department and offering services comparable to the

services offered by the department all criminal history record

information relating to an officer, employee, or prospective employee

of the company whose job duties require or will require entry into

another person’s residence.

Id. 5 145.002,

Chapter 145 does not impose sanctions against a company that fails to obtain a criminal

history background check for an employee. Rather, it provides a company that has performed a

check as required by section 145.002 with a rebuttable “presumption of no negligence” in an action

for damages brought against the company for negligent hiring. See id. § 145.003(b) (“In an action

to which this section applies, an in-home service company or residential delivery company is

rebuttably presumed to have not acted negligently if [the company obtained criminal history record

information for the employee and the records meet certain criteria.]“). The presumption applies in

an action that:

(1) arises out of a criminal act or omission by an officer or

employee of the company as to whom the company is required to

obtain criminal history record information under Section 145.002;

(2) is brought by or on behalf of a person whose home the

officer or employee entered while in the performance of the

employee’s job duties, without regard to where the criminal act or

omission occurred; and

(3) seeks damages from the company for the negligent hiring

of the officer or employee.

Id. 5 145.003(a). Thechapteralsoprovides arebuttable “presumptionofno negligence”for aperson

who contracts with a company to deliver an item, i.e., a person who hires a residential company as

a subcontractor, if the company has complied with the requirement or if the person requested in

writing that the company comply.* The legislative history indicates that chapter 145’s purpose is to

provide an incentive for residential delivery and in-home service companies to perform employee

‘See TEX. Crv. PRAC. &REM. CODE ANN. $145.004 (Vernon Supp. 2004) (p roviding a rebuttable presumption

for a person who contracts with a residential delivay company or an in-home service company “if: (1) the residential

delivery company or in-home service company is in compliance with Section 145.003(b); or (2) thepersonwho contracts

with the residential delivery company or in-home service company requests that the company obtain a criminal history

background check described by Section 145.002 on any employee ofthe company being sent to deliver, place, assemble,

repair, or install an item and the person’s request is in writing and is delivered to the company prior to the company’s

employee being sent”).

The Honorable Burt R. Solomons - Page 3 (GA-0183)

criminal history background checks.’

B. Regulatory Scheme for Transportation of Property by Motor Carriers

Your questions pertain to the federal-state scheme regulating transportation of

property, particularly household goods. Title 49 of the United States Code generally governs

interstate and international transportation of passengers and property, see 49 U.S.C. 5 13501 (2000)

(granting the federal Surface Transportation Board jurisdiction over transportation between a place

in a state and in another state or country), including household goods, see id. 5 14104 (authorizing

the federal Department of Transportation to issue regulations protecting individual shippers who

transport household goods by motor carriers subject to federal jurisdiction). For example, the

Carmack Amendment, see id. 9 14706, limits the liability of interstate carriers for loss or damage

to goods shipped in interstate commerce, including household goods, and preempts state-law

remedies. Another federal statute requires interstate household goods carriers to offer shippers

arbitration as a means of settling disputes concerning damage or loss to household goods. See id.

5 14708. And the Federal Motor Carrier Safety Administration has promulgated rules governing

interstate motor carriers of household goods to protect individual shippers. See 49 C.F.R. pt. 375

(2003); see also id. 5 375.101 (“[A] for-hire motor carrier engaged in the interstate transportation

ofhousehold goods, must follow these regulations whenoffering. . services to individual shippers,

. . . only when . . transport[ing] household goods for individual shippers by motor vehicle in

interstate commerce.“).

Historically, while the federal government regulated interstate transportation ofproperty, the

states regulated intrastate transportation of property. In 1994, however, Congress deregulated

intrastate transportation of property by motor carriers in an effort to level the playing field between

air carriers, which were not subject to state regulation, and motor carriers, which were.4 The federal

statute at the heart of your request was enacted as part of that 1994 deregulation effort as 49 U.S.C.

‘See SENATE COMM. ON STATE AFFAIRS, BILL ANALYSIS, Tex. H.B. 705,78th Leg., R.S. (2003) (bill analysis

for Senate Committee Report) (“Currently, there is no incentive in [the] statute for ‘in-home service’ or ‘residential

delivery’ companies to perform background checks on their employees. H.B. 705 creates a rebuttable presumption on

any criminal act committed by an employee that the company did not act negligently if it performed a criminal

background check on the employee with a clear result.“); see n/so HOUSE COMM. ON CIVILPRACTICES, BILL ANALYSIS,

Tex. Comm. Substitute H.B. 705,78th Leg., R.S. (2003) (bill analysis for House Committee Report).

4See Federal Aviation Administration Authorization Act of 1994, H.R. CONF. REP. No. 103-677 (1994),

reprinted in 1994 U.S.C.C.A.N. 1754.

The Honorable Burt R. Solomons - Page 4 (GA-01 83)

9 115015andreenactedin 1995 as49U.S.C. 5 14501.6 Modeledon49U.S.C. 9 41713; the Airline

Deregulation Act of 1978: which limits state authority over air carriers, section 14501 prohibits

states from enacting or enforcing a law or regulation related to the price, route, or service of a motor

carrier, freight forwarder, or broker. See 49 U.S.C. § 14501(b)-(c) (2000).

The provision you ask about, 49 U.S.C. 5 14501(c)(l), articulates the general rule that “a

State . may not enact or enforce a law, regulation, or other provision having the force and effect

of law related to a price, route, or service of any motor carrier or any motor private carrier,

broker, or freight forwarder with respect to the transportation of property,” except as provided in

paragraphs (2) and (3). Id. 5 14501(c)(l). Paragraph (2) provides that the general rule prohibiting

state regulation of transportation by motor carriers of property “does not apply to the transportation

of household goods.” Id. 5 14501(c)(2)(B)?

For purposes of title 49, section 13102(10) defines the term “household goods” to mean

personal effects and property used or to be used in a dwelling, when

a part of the equipment or supply of such dwelling, and similar

property if the transportation of such effects or property is --

(A) arranged and paid for by the householder, except such

term does not include property moving from a factory or store, other

than property that the householder has purchased with the intent to

use in his or her dwelling and is transported at the request of, and the

transportation charges are paid to the carrier by, the householder; or

(B) arranged and paid for by another party.

‘See Federal Aviation Administration Authorization Act of 1994, Pub. L. No. 103-305, 108 Stat. 1569 (1994)

(adding 49 U.S.C. 5 11501).

%iee Interstate Commerce Commission Termination Act of 1995, Pub. L. No. 104-88, 109 Stat. 803; see also

Interstate Commerce Commission Termination Act of 1995, H.R. COW. REP. NO. 104-422 (1995), reprinted in 1995

U.S.C.C.A.N. 793.

‘see Federal Aviation Administration Authorization Act of 1994, H.R. CONF. REP. No. 103.677 (1994),

reprinted in 1994 U.S.C.C.A.N. 1757.

*See Airline Deregulation Act of 1978, Pub. L. No. 95-504 9 105,92 Stat. 1705 (now codified at 49 U.S.C.

$41713).

%mgraph (2) also provides that the general prohibition shall not restrict “safety regulatory authority ofa State

with respect to motor vehicles,” 49 U.S.C. § 14501(c)(2)(A) (2000); state size, weight, or hazardous cargo mute

restrictions, see id.; OI state motor carrier fmancial responsibility and insurance requirements, see id. Subsection

(c)(2)(C) provides that the general prohibition does not apply to the authority of a state orpolitical subdivision to regulate

nonconsent towing by tow trucks. See id. 5 14501(c)(2)(C).

The Honorable Burt R. Solomons - Page 5 (GA-0183)

Id. 5 13102(10).‘” In other words, the term “household goods” generally includes “personal effects

and property used or to be used in a dwelling.” See id. Property moving from a factory or store does

not constitute “household goods” unless the householder has purchased it “with the intent to use in

his or her dwelling and [it] is transported at the request of, and the transportation charges are paid

to the carrier by, the householder.” Id. 5 13 102( 1O)(A). In addition, for purposes of federal law, the

term “transportation” includes not just the actual movement ofproperty from one location to another.

See id. 5 13102(21)(A). It also embraces “services related to movement [ofproperty], including

arranging for, receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage,

handling, packing, unpacking, and interchange of passengers and property.” Id. 3 13102(21)(B).

Consistently with federal law, chapter 643 of the Texas Transportation Code, the state law

governing motor carriers, does not apply to “a motor vehicle registered under the single state

registration system established under [federal law] when operating exclusively in interstate or

international commerce.” TEX. TRAMP. CODE ANN. § 643.002(l) (Vernon 1999). The

Transportation Code now expressly limits the Texas Department of Transportation’s (TxDOT)

authority over “prices, routes, or services provided by a motor carrier.” Id. § 643.15 1. Section

643.153 provides TxDOT with authority over a motor carrier transporting household goods, as

defined by 49 U.S.C. 3 13102, including the authority to adopt consumer protection rules. See id.

5 643.153 (Vernon Supp. 2004); see also id. 3 643.001(4) (“‘Household goods’ has the meaning

assigned by 49 U.S.C. Section 13102.“)”

C. Federal Preemption

You ask, in essence, whether federal law preempts chapter 145 of the Civil Practice

and Remedies Code. As the Texas Supreme Court has recently noted:

Federal preemption of state law is grounded in the Supremacy

Clause of the United States Constitution, which provides that “the

Laws of the United States shall be the supreme Law of the Land;

and the Judges in every State shall be bound thereby, any Thing in the

Constitution or Laws of any State to the Contrary notwithstanding.”

U.S. CONST., art. VI, cl. 2. Under the Supremacy Clause, if a state

law conflicts with federal law, the state law is preempted and

“without effect.” Maryland v. Louisiana, 451 U.S. 725,746, 101 S.

Ct. 2114,68 L. Ed. 576 (1981).

Delta Airlines, Inc. v. Black, 116 S.W.3d 745,748 (Tex. 2003). “A federal law may preempt a state

law expressly[, or it] may. preempt a state law impliedly, either (i) when the scheme of federal

“‘49 U.S.C. 5 13102 defines terms for title 49, part B, which includes section 14501. See id. g 13 102 (“In this

part, the following definitions shall apply. .“).

“Congress is currently considering legislation that would permit states to enforce federal consumer-protection

statutes and regulations related to the transportation of household goods in interstate commerce. See S. 1072, 108th

Gong. $4308 (2003) WL 2003 CONG US S 1072.

The Honorable Burt R. Solomons - Page 6 (GA-0183)

regulation is sufficiently comprehensive to support a reasonable inference that Congress left no room

for supplementary state regulation or (ii) if the state law actually conflicts with federal regulations.”

Id. (citation omitted). “A state law presents an actual conflict when a party cannot comply with both

state and federal regulations or when the state law would obstruct Congress’ purposes and objectives:

‘The purpose of Congress is the ultimate touchstone’ in every preemption case.” Id. (quoting Retail

Clerks Znt’l Ass’n v. Schermerhorn, 375 U.S. 96, 103 (1963)).

When Congress adopts a statute that provides a reliable indication of congressional intent

regarding preemption, the scope of federal preemption is determined by the statute. In this case,

preemption of state authority over transportation ofproperty is expressly governed by the statute that

is the focus of your query, 49 U.S.C. 5 14501(c).

II. Analysis

You ask three questions about the relationship between chapter 145 of the Civil Practice and

Remedies Code and 49 U.S.C. 5 14501(c):

1) Does the requirement of a background check affect the

price, route or service of a motor carrier?

2) Does 49 U.S.C. 5 14501(c) preempt the application of

Chapter 145 . to interstate motor carriers, including those

transporting household goods?

3) Does 49 U.S.C. 5 14501(c) preempt the application of

Chapter 14.5 . to intrastate motor carriers, including those

transporting household goods?

Request Letter, supra note 1, at 2.

As a preliminary matter, we examine the purpose of section 145Ol(c)‘s general prohibition

and savings clauses. Congress enacted section 14501(c) to deregulate intrastate transportation of

property.” As the United States Supreme Court recently noted in construing section 14501 (c)(2)(A),

in the 1994 statute adopting the predecessor to section 14501(c), “Congress reported its finding that

‘the regulation of intrastate transportation of property by the States’ unreasonably burdened free

trade, interstate commerce, and American consumers. Congress therefore concluded that ‘certain

aspects of the State regulatory process should be preempted.“’ City of Columbus v. Ours Garage

and Wrecker Serv., Inc., 536 U.S. 424,440 (2002) (citing Pub. L. No. 103-305,s 601(a)(l)-(a)(2),

108 Stat. 1605). However, while49 U.S.C. 5 14501(c)(l) g enerallypreempts state laws “related to

a price, route, or service of any motor carrier with respect to the transportation of property,”

it preserves state authority over certain matters in paragraphs (2)-(3). Id. at 429-30; 49 U.S.C.

14501(c)(l) (2000). It is clear from the Court’s opinion that the power preserved in paragraphs (2)-

(3) relates to states’ authority over intrastate transportation. See City ofColumbus, 536 U.S. at 439.

The Honorable Burt R. Solomons - Page 7 (GA-0183)

The legislative history also confirms that the savings clauses are intended to preserve existing state

authority over certain intrastate matters, not to give states new regulatory authority, such as the

authority to regulate interstate activities. See Federal Aviation Administration Authorization Act of

1994, H.R. Conf. Rep. No. 103-677 (1994) reprinted in 1994 U.S.C.C.A.N. 1756 (“The conferees

emphasize that nothing in these new subsections contains a new grant ofFederal authority to a State

to regulate commerce . The intention of the conferees is solely to identify certain areas that are

not preempted by the preemption provision.“).

Thus, section 14501(c)(l) limits state authority to regulate transportation of property

generally while section 14501(c)(2)(B) preserves state authority to regulate intrastate transportation

of household goods. The latter provision does not grant states new authority to regulate interstate

transportation of household goods.

A. Does the Chapter 145Background-CheckRequirementAffect the Price,Route,

or Service of a Motor Carrier?

First, you askwhether the chapter 145 background-check requirement affects amotor

carrier’s price, route, or service. See Request Letter, supra note 1, at 2 (question 1). In essence, you

ask whether the state-law requirement is preempted by 49 U.S.C. § 14501(c)(l), which prohibits a

state from enacting or enforcing “a law, regulation, or other provision having the force and effect of

law related to aprice, route, or service of any motor carrier. or any motor private carrier, broker,

or freight forwarder with respect to the transportation ofproperty.” 49 U.S.C. § 14501(c)(l) (2000)

(emphasis added).

Your question assumes that at least some residential delivery companies affected by chapter

145 of the Civil Practice and Remedies Code are motor carriers within the meaning of the federal

statute, which appears to be a fair assumption. Compare id. 5 13 102( 12) (defining “motor carrier”

to mean “aperson providing motor vehicle transportation for compensation”), with TEX. CIV. PRAC.

&REM. CODEANN. 5 145.001(2) (Vernon Supp. 2004) (defining “residential delivery company” to

mean “a person who employs a person to, for a fee: (A) deliver an item to another person’s

residence; and (B) enter the residence to place, assemble, or install the item”).

We also note that property delivery by a motor carrier is a service that may fall within the

ambit of federal law. An item that maybe placed, assembled, or installed in a dwelling is “property

under title 49. See 49 U.S.C. 5 13102(10) (2000) (defining “household goods” as property to be

used in a dwelling). In addition, title 49 broadly defines the term “transportation of property” to

embrace “services related to movement [of property], including arranging for, receipt,

delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, packing,

unpacking, and interchange of passengers and property.” Id. 5 13 102(2 l)(B). Thus, under federal

law, transportation of property includes some services provided by a motor carrier in a residence

related to the property it has transported, such as placing, assembling, or installing the property.

Courts broadly construe 49 U.S.C. 5 14501 (c)( 1). We have not located a case that addresses

whether a state statute requiring motor carriers to perform employee background checks is a “law

The Honorable Burt R. Solomons - Page 8 (GA-0183)

related to a price, route, or service” of a motor carrier. With respect to state tort actions, in the case

law that comes closest to addressing the issues raised by chapter 145, courts have broadly construed

the phrase “related to a price, route, or service” of a motor carrier to preempt any state action against

a carrier “where the subject matter ofthe action is related to the carrier’s prices, routes, or services.”

Deerskin Trading Post, Inc. v. United Parcel Serv. of Am. Inc., 972 F. Supp. 665, 672 (N.D. Ga.

1997) (claims for breach of contract, statutory fraud, common-law f?aud, negligence, gross

negligence, unjust enrichment, and imposition of constructive trust preempted by 49 U.S.C.

14501(c)(l)); seealsoMastercraftZnteriors, Ltd. v. ABFFreightSys., Inc., 284 F. Supp. 2d284,288

(D. Md. 2003) (concluding that 49 U.S.C. 14501(c)(l) preempted “[cllaims of misrepresentation,

negligent misrepresentation, and unjust enrichment” because they “are tort actions reflecting

‘state-imposed obligations external to a contract”‘) (citing Deerskin Trading Post, 972 F. Supp. at

673). Inconstruing49U.S.C. 5 14501(c)(l), these courtsrelyheavilyontheUnited States Supreme

Court’s interpretation of the Airline Deregulation Act of 1978 (the “Act”),13 which preempts any

state “law, regulation, or other provision having the force and effect of law related to price, route,

or service of an air carrier,” 49 U.S.C. 5 41713(b) (2000). See Deerskin Trading Post, 972 F. Supp.

at 668-73; see also Mustercraft Interiors, 284 F. Supp. 2d at 286 (“[Tlhere is a dearth of case law

interpreting [49 U.S.C. 8 14501(c)], and, thus, case law interpreting the [Act] is particularly

instructive in analyzing the issues in this case.“).‘4 The Court has held that “State enforcement

actions having a connection with or reference to airline ‘rates, routes, or services’ are pre-empted

under [the Act’s preemption provision.]“” Following this precedent, the Supreme Court of Texas,

reasoning that “state tort actions can be state enforcement” that “impose[s] state policies on the

operation of air carriers,” held that the Act preempted a plaintiffs fraud and misrepresentation

claims relating to an airline’s services. See Delta Airlines, 116 S.W.3d at 756-57.

Clearly, the chapter 145 background-check requirement relates to motor carriers’ services

and imposes state obligations and policies on motor carriers. See id.; Mastercraft Interiors, 284 F.

Supp. 2d at 286. Accordingly, the background-check requirement is preempted (as it applies to

motor carriers), as would be any attempt by a state actor to enforce it against a motor carrier. For

the same reason, chapter 145 would also be preempted to the extent it could be construed to create

an affirmative presumption that a motor carrier that failed to perform a criminal history background

check acted negligently.

While section 145Ol(c)( 1) clearlypreemptschapter 145’s background-checkrequirement as

it applies to motor carriers, it is less clear whether section 14501(c)(l) preempts chapter 145’s

“presumption ofno negligence.” In the event amotor carrier was sued for a state cause of action that

‘3SeeAm. Airlines, Inc. v. Wolens, 513 U.S. 219 (1995); Morales v. Tram WorldAirlines, Inc., SO4 U.S. 374

(1992).

“See also supra note 7 (legislative history establishing that predecessor to section 14501(c) modeled on the

Act).

‘sMorales, 504 U.S. at 384 (citation omitted).

The Honorable Burt R. Solomons - Page 9 (GA-01 83)

was not preempted by section 14501(c)(1)r6 or other federal law,” and the plaintiff established that

the motor carrier owed the plaintiff a duty to perform a criminal history check,” the presumption

would work to the advantage of a carrier that performed a background check consistent with the

‘6You do not ask and we do not resolve whether section 14501 (c)( 1) would preempt a state-law cause ofaction

against a motor carrier for negligent hiring. Although cases addressing section 14501(c)(l) generally conclude that it

preempts state tort actions, see, e.g., Masfercraftlnteriors, 284 F. Supp. 2d at 288 (49 U.S.C. 5 14501(c)(l) preempts

claims of misrepresentation, negligent misrepresentation, and unjust enrichment); Deerskin Trading Post, 972 F. Supp.

at673 (49U.S.C. 5 1450l(c)(l)preemptsclaimsfornegligence andgrossnegligence);Rockwel[v. UnitedParceZSeTv.,

Inc., No. 2:99 CV 57, 1999 WL. 33100089, at **l-2 (D.Vt. July 6, 1999) (49 U.S.C. $ 14501(c)(l) preempts state

personal injury and wmngful death claims), cases addressing the Act suggest that in some instances 49 U.S.C. 5 4 17 13

does not preempt state tort actions for personal injuries against airlines, see, e.g., Charm Y. Tram World Airlines, Inc.,

160 F.3d 1259, 1266 (9th Cir. 1998) (concluding that 49 U.S.C. 5 41713 did not preempt state tort claims for personal

injuries because Congress “did not intend to immunize the airlines from liability for personal injuries caused by their

tortious conduct”); Hodges v. Delta Airlines, Inc., 44 F.3d 334,340 (5th Cir. 1995) (holding that 49 U.S.C. 5 41713 did

not preempt state-law claim for damages against airline based on airline’s alleged negligence in allowing storage in

overhead compartment ofcase ofrum that fell on plaintiff and cut her arm and wrist); Cant ‘lAirlines, Inc. v. Kiefer, 920

S.W.2d 274,279 (Tex. 1996) (holding that 49 U.S.C. 5 41713 did not preempt common-law negligence claims against

air carriers for personal injuries sustained during flights). See also infix note 17.

“When a shipper sues a carrier for loss or damages to goods in an interstate move under a valid bill of lading,

the Carmack Amendment, 49 U.S.C. 5 14706, generally preempts state-law claims, including tort claims. See D.M.

Diamond Corp. v. DunbarArmored, Inc., 124 S.W.3d 655,661 (Tex. App.-Houston [14thDist.] 2003, no pet.) (“State

law claims that are preempted by the Carmack [Amendment] include the tort of outrage, intentional and negligent

infliction of emotional distress, breach of contract, breach of implied warranty, breach of express warranty, violation of

the Texas [Deceptive Trade Practice Act], slander, misrepresentation, fraud, negligence and gross negligence.“).

Whether the Carmack Amendment preempts state-law claims for negligence arising from injuries to individuals separate

from loss or damage to property in connection with interstate movement of property, such as injuries arising from an

assault by a carrier’s employee, appears to be an unresolved question. Several courts have suggested in dicta that federal

lawwouldnotpreemptsuchanaction. SeeRiniv. United VanLines, Inc., 104F.3d502,506(lstCir. 1997) (“[Lliability

arising from separate harm--apart from the loss or damage of goods--is not preempted. For example, if an employee

of the carrier assaulted and injured the shipper, state law remedies would not be preempted.“); see also Morris v. Covan

Worldwide Moving, Inc., 144 F.3d 377, 382 (5th Cir. 1998) (“the Carmack Amendment preempts any common law

remedy that increases the carrier’s liability beyond ‘the actual loss or injury to the property,’ unless the shipper alleges

injuries separate%nd apaltfromthose resulting directlyfromthe loss ofshippedproperty”) (citing Rini, 104 F.3d at506-

07); Gordon v. United Van Lines, Inc., 130 F.3d 282, 289.90 (7th Cir. 1997) (“the Cannack Amendment does not

preempt those state law claims that allege liability on a ground that is separate and distinct fromthe loss of, or the damage

to, the goods that were shipped in interstate commerce”) (citing Rini, 104 F.3dat 506);Richter Y. N. Am. Van Lines, Inc.,

110 F. Supp. 2d 406,4 11 (D. Md. 2000) (“Another non-preempted state cause of action would arise where an employee

of the carrier assaults and injures the shipper.“) (citing Rini, 104 F.3d at 506); cf: Rehm v. Baltimore Storage Co., 300

F. Supp. 2d408,415 (W.D. Va. 2004) (shipp a’s state-law claim to recover for damage to real property not preempted

by the Cannack Amendment). On the other hand, the only case directly addressing the issue reached the opposite

conclusion. See United Van Lines v. Shooster, 860 F. Supp. 826,829.30 (S.D. Fla. 1992) (holding that state-law claims

arising from alleged assault and battery, committed on shippers by representatives of carrier, v,we preempted by the

Camxick Amendment).

“See, e.g., Rend Y. Scott Fetzer Co., 990 S.W.2d 732,733, 736 (Tex. 1998) (holding that manufacturer owed

legal duty to customer who was raped by door-to-door vacuum cleaner salesman employed by distributor because

manufacturer retained control over details of distributor’s work); Wheaton Van Lines, Inc. V. Mason, 925 S.W.2d 722,

730 (Tex. Civ. App.-Fort Worth 1996, writ denied) (holding that facts did not establish that interstate moving company

owed duty to plaintiff who sued interstate moving company in connection with assault committed by local booking

agent’s employee in a local move).

The Honorable Burt R. Solomons - Page 10 (GA-0183)

chapter 145 requirement. In a case in which a motor carrier asserts the presumption based on a

background check that the carrier performed voluntarily, a court could conclude that the presumption

is not preempted by section 14501(c)(l) because it does not impose state obligations or policies on

motor carriers and it primarily relates to the burden of proof in the civil action as opposed to the

carrier’s services.

In the event a court were to conclude that the presumption is not preempted, whether the

presumption is severable from the background-check requirement would be a question of state law.

See Exxon Corp. v. Hunt, 475 U.S. 355,376 (1986) (“We leave to the New Jersey Supreme Court

the state-law question whether, or to what extent, the nonpre-empted provisions of the statute are

severable from the pre-empted provisions.“).‘” Because the statute that enacted chapter 145 did not

contain a provision governing its severability,” severability will depend on whetherthepresumption,

which is established in section 145.003, may be given effect without the mandatory background-

check requirement set forth in section 145.002. See TEX. GOV’T CODE ANN. 5 3 11.032(c) (Vernon

1998) (“In a statute that does not contain a provision for severability or nonseverability, if any

provision ofthe statute or its application to any person or circumstance is held invalid, the invalidity

does not affect other provisions or applications of the statute that can be given effect without the

invalid provision or application, and to this end the provisions ofthe statute are severable.“). A court

could determine that the section 145.003 presumption can be given effect without the section

145.002 background-check requirement. See TEX. Qv. PRAC. & REM. CODE ANN. $5 145.002

(Vernon Supp. 2004) (requiring a company to “obtain from the Department of Public Safety or a

private vendor approved by the department and offering services comparable to the services offered

by the department all criminal history record information relating to an officer, employee, or

prospective employee of the company whose job duties require or will require entry into another

person’s residence”), ,003 (establishing actions against in-home service and residential delivery

companies in which presumption applies).

B. Does 49 U.S.C. 5 14501(c)Preempt Chapter 145 with Respect to Intrastate

Motor Carriers, Including Those Transporting Household Goods?

You also ask whether “49 U.S.C. 5 14501(c) preempt[s] chapter 145 with respect to

intrastate motor carriers, including those transporting household goods.” See Request Letter, supra

note 1, at 2 (question 3).*’ In essence, you ask us to address the scope of49 U.S.C. 5 14501 (c)(2)(B),

the household goods exception to section 14501(c)(l).

‘9Seeako Lenvittv. Jane L., 518 U.S. 137, 139 (1996)(“S everability is of course a matter of state law.“); Ta.

PharmacyAss’n V. PrudentialIns. Co. @Am., 105 F.3d 1035, 1039 (5thCir. 1997) (“Whetherportions ofastatestatute

found to contravene federal law are severable is a question of state law.“).

?%x Act of May 30,2003,7Sth Leg., RX, ch. 228,2003 Tex. Gen. Laws 1053

2’Because 49 USC. 5 14501(c)(2)(B), the household-goods savings clause, pertains to state authority ova

intrastate as opposed to interstate activities, we address your third question, which relates to intrastate activities, before

your second, which relates to interstate activities. See Request Letter, supra note 1, at 2 (questions 2 and 3).

The Honorable Burt R. Solomons - Page 11 (GA-01 83)

Section 14501 (c)(2)(B) preserves the authority ofthe State ofTexas to regulate the intrastate

“transportation of household goods.” 49 U.S.C. 5 14501(c)(2)(B) (2000). Thus, we consider the

extent to which chapter 145 pertains to the transportation of household goods within the meaning

of federal law.

Again, the Texas statute applies to a “residential delivery company,” acompanythat employs

a person to deliver an item to a residence, which the employee enters to place, assemble, or install

the item. See TEX. Crv. PRAC. &REM. CODE ANN. § 145.001(2) (Vernon Supp. 2004). Although

chapter 145 does not define the term “item,” the term refers to property that may be placed,

assembled, or installed in a home, see id., and therefore such items are “household goods” as defined

in49U.S.C. 5 13102(10). Becausedeliveringandplacing, assembling,orinstallingsuchgoods falls

within the federal definition of “transportation,“see 49 U.S.C. § 13 102(21) (ZOOO),such a company

engages in “transportation” within the meaning of title 49.

We havelocatedonlytwocasesapplying49U.S.C. 5 14501(c)(2)(B), bothofwhichconstrue

the term “household goods”narrowly. See UnitedParcel Serv., Inc. v. Flares-Galarza, 275 F. Supp.

2d 155, 160-61 (D.P.R. 2003) (holding that 49 U.S.C. $5 13102, 14501(c)(2)(B) did not permit

Commonwealth of Puerto Rico to impose excise tax on household goods deliveries by carrier that

did not perform specialized services); A.A. MetcalfMoving & Storage Co., Inc. v. N. St. Paul-

Maplewood-OakdaleSchs., 587N.W.2d311,317-19 (Minn. Ct.App. 1998)(holdingthat49U.S.C.

$5 13102, 14501(c) preempted state tariff rate schedules applicable to move of school property,

which did not fall within federal definition of household goods). Based on the legislative history,

a federal district court has held that the term is intended only to “refer to the carriage of goods by

carriers that perform ‘a specialized service requiring skilled workmen,’ including ‘the proper placing

of furniture , , the laying of rugs, hanging of pictures, and other services in connection with the

removal of furniture or fixtures from one location to another.“’ United Parcel Serv., 275 F. Supp.

2d at 160 (citation omitted). Even using this very narrow definition, however, the items referred to

in chapter 145, which are placed, assembled, or installed in homes, are household goods forpurposes

of49 U.S.C. 5 14501(c)(2)(B).

In sum, section 14501(c)(2)(B) expressly’preserves state authority to regulate intrastate

transportation ofhousehold goods, and chapter 145 of the Civil Practice and Remedies Code applies

to transportation ofhousehold goods within the meaning ofthat provision. Therefore, to the extent

chapter 145 is preempted by section 14501(c)(l), section 14501(c)(2)(B) saves chapter 145 t?om

preemption with respect to residential delivery companies’ intrastate activities. We note, however,

that section 14501(c)(2)(B) does not preserve state authority with respect to the transportation of

items that arenot household goods. In particular, section 13102, which defines householdgoods for

section 14501, excludes “property moving from a factory or store, other than property that the

householder has purchased with the intent to use in his or her dwelling and is transported at the

request of, and the transportation charges are paid to the carrier by, the householder.” 49 U.S.C.

9 13102(10)(A) (2000).

The Honorable Burt R. Solomons - Page 12 (GA-0183)

C. Does 49 U.S.C. 3 14501(c) Preempt Chapter 145 with Respect to Interstate

Motor Carriers, Including Those Transporting Household Goods?

Finally, you ask whether 49 U.S.C. 3 14501(c) preempts chapter 145 with respect to

interstate motor carriers transporting household goods. See Request Letter, supra note 1, at 2

(question 2). As we have discussed, 49 U.S.C. 5 14501(c) was enacted to deregulate intrastate

transportation ofproperty, and 49 U.S.C. 5 14501(c)(2)(B) merely preserves state authority over the

intrastate transportation of household goods. Section 14501(c)(2)(B) does not preserve state

authority over interstate motor carriers transporting household goods and does not save the chapter

145 background-check requirement to the extent it applies to such carriers. In the event a plaintiff

were to succeed in bringing a state-law claim for negligent hiring against an interstate motor carrier

fhat is not preempted by federal law, however, a court might apply the chapter 145 “presumption of

no negligence.” See supra part ILA., pp. 8-10.

The Honorable Burt R. Solomons - Page 13 (GA-01 83)

SUMMARY

The employee background-check requirement established by

section 145.002 of the Texas Civil Practice and Remedies Code is

preempted by 49 U.S.C. 5 14501(c)(l) to the extent the state-law

requirement applies to motor carriers regulated by federal law. The

background-check requirement is not preempted to the extent it

applies to motor carriers’ intrastate transportation of household

goods. See 49 U.S.C. $5 13102(10) (2000) (defining “household

goods”), 14501(c)(2)(B) (preserving state authority over motor

canicrs’ transportation of household goods). Although interstate

transportation of property, including household goods, is generally

governed by federal law, the chapter 145 “presumption of no

negligence” might apply in a state-law tort action against a motor

carrier that is not preempted by federal law.

BARRY R. MCBEE

First Assistant Attorney General

DON R. WILLETT

Deputy Attorney General for Legal Counsel

NANCY S. FULLER

Chair, Opinion Committee

Mary R. Grouter

Assistant Attorney General, Opinion Committee