Cellucci v. General Motors Corp.

DEL SOLE, Judge,

dissenting.

Today the Majority, by its decision to shield automakers from our state’s liability laws, has taken the unenlightened approach, refusing to recognize the current trend, sanctioned by no less than the United States Supreme Court, which would allow plaintiffs claim to proceed.

The question presented to the court is whether under the terms of the National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. §§ 1381 et. seq. (the “Safety Act”), a common *458 law cause of action against an auto manufacturer may be based upon the failure to install an airbag in a vehicle built before such safety equipment became federally mandated. A resolution of this issue is grounded on the language of the Act which must be examined to determine whether Congress has exercised its power to preempt state law. Such a determination can be made only by ascertaining “the intent of Congress.” California Federal Savings and Loan Association v. Guerra, 479 U.S. 272 , 107 S.Ct. 683 , 93 L.Ed.2d 613 (1987). It has been stated:

Congress is empowered to preempt state law by the Supremacy Clause, Art. VI, cl.2, of the United States Constitution---- Thus, preemption ‘is compelled [when] Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.’

Gingold v. Audi-NSU-Auto Union, A.G., 389 Pa.Super. 328, 338 , 567 A.2d 312, 318 (1989). (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525 , 97 S.Ct. 1305, 1309 , 51 L.Ed.2d 604 (1977)).

Two provisions of the Act are relevant to ascertain Congressional intent on this subject. They provide:

Whenever a Federal motor vehicle safety standard established under this subchapter is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item' of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard....

15 U.S.C. § 1392 (d).

Also included is a provision referred to as a “savings clause.”

Compliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under common law.

15 U.S.C. § 1397 (k).

The Majority, in reading these clauses together, found that Congress did not expressly preempt the “no air bag” claim *459 made in this case. Majority slip opinion at 259. I agree with this conclusion. There is nothing expressly written in this statute which would evidence an unambiguous congressional intent to preempt state claims of this nature. Such clear language would be necessary to overcome the presumption which exists against preemption. Silkwood v. Kerr-McGee Corporation, 464 U.S. 238 , 104 S.Ct. 615 , 78 L.Ed.2d 443 (1984). It has been stated:

‘Consideration of issues arising under the Supremacy Clause starts with the assumption that the historic police powers of the States (are) not to be superseded by ... Federal Act unless that (is) the clear and manifest purpose of Congress.’ Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 , 67 S.Ct. 1146, 1152 , 91 L.Ed. 1447 (1947).

Cipollone v. Liggett Group Inc., 505 U.S. 504, 515-16 , 112 S.Ct. 2608, 2617 , 120 L.Ed.2d 407 (1992).

Courts must tread cautiously in this arena because the authority to displace a sovereign state’s law is ‘an extraordinary power ... that we must assume Congress does not exercise lightly.’ Gregory v. Ashcroft, 501 U.S. 452, 460 , 111 S.Ct. 2395, 2400 , 115 L.Ed.2d 410 (1991).

Mazaika v. Bank One, Columbus, N.A. 439 Pa.Super. 95 , 653 A.2d 640, 644 (1994), (quoting Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 2400 , 115 L.Ed.2d 410 (1991).

Thus, I do not hesitate to agree with the Majority’s conclusion that Congress has not, by the terms set forth in the Act, expressly preempted the type of claim made by plaintiff in this case. However, unlike the Majority, I do not conclude that the language of the Act is “ambiguous” making it necessary to determine whether Congress has by implication preempted this type of claim. In my view, a view which follows the lead of the United States Supreme Court in its recent action with respect to a New Hampshire case, the question of implied preemption cannot be reached because Congress has clearly and expressly preserved all common law claims.

The Supreme Court of New Hampshire in the case of Tebbetts v. Ford Motor Company, 140 N.H. 203 , 665 A.2d 345 *460 (1995) was also asked to consider whether to grant summary judgment to defendant-automaker and rule that the plaintiffs claim of defective design for failure to install an airbag was preempted. The court refused to grant this relief and reversed a lower court ruling holding that the plaintiffs “no airbag” claim was impliedly preempted. The United States Supreme Court on January 16, 1996, denied a Petition for Writ of Certiorari filed in this matter, and a petition for rehearing. Id., — U.S. —, 116 S.Ct. 773 , 133 L.Ed.2d 726 (1996) .

In reaching its decision the Tebbetts court first looked to the United States Supreme Court’s decision in Cipollone v. Liggett Group, Inc., 505 U.S. 504 , 112 S.Ct. 2608 , 120 L.Ed.2d 407 (1992). The Tebbetts court, as well as my colleagues in the Majority cite to the same passage in the Cipollone decision:

When Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly addressing that issue, and when that provision provides a reliable indicium of congressional intent with respect to state authority, there is no need to infer congressional intent to pre-empt state laws from the substantive provisions of the legislation.

Cipollone, 505 U.S. at 517 , 112 S.Ct. at 2618 .

The Tebbetts court, however, determined that the Act did provide a “reliable indicium of congressional intent” and that the clear intent of Congress as expressed in the Act was to preserve not preempt common law causes of action. It remarked that “given the express utilization of the term ‘common law' in the savings clause, we agree with the analysis of those courts that have held that actions such as this are not preempted.” Tebbetts, 665 A.2d at 348 . In support of this interpretation the court looked to the history of the Act. It stated:

Although the original Senate version of the proposed Safety Act contained no saving clause, the committee report noted that the compliance with federal standards would not preempt common law claims: ‘[T]he Federal minimum safe *461 ty standards need not be interpreted as restricting State common law standards of care. Compliance with such standards would thus not necessarily shield any person from product liability at common law.’ S.Rep. No. 1301, 89th Cong., 2d Sess. 12 (1966), reprinted in 1966 U.S.C.C.A.N. 2709, 2720. The bill’s sponsor, Senator Warren Magnuson, commented: ‘Compliance with Federal standards would not necessarily shield any person from broad liability at the common law. The common law on product liability still remains as it was.’ 112 Cong. Rec. 14230 (1966).

An examination of the House committee report is equally instructive. By inserting the saving clause, the committee ‘intended ... that compliance with safety standards is not to be a defense or otherwise to affect the rights of parties under common law particularly those relating to warranty, contract, and tort liability,’ H.R.Rep. No. 1776, 89th Cong., 2d sess. 24 (1966).

665 A.2d at 347-48 .

Like the court in Tebbetts , I too read the language of the Act as a clear and plain attempt by Congress to preserve, rather than preempt, common law claims. My position in this matter is strengthened by the recent action of the United States Supreme Court and its denial of certiorari in Tebbetts , where the issue at hand had been clearly defined and presented.

The Majority’s position is that the language set forth by the Supreme Court in Cipollone , which directs the court to refrain from inferring congressional intent where that intent is evident from the explicit provisions of the Act itself, is tempered by the Court’s later comments in Freightliner Corp. v. Myrick, — U.S. —, 115 S.Ct. 1483 , 131 L.Ed.2d 385 (1995). Therein the Court wrote that Cipollone does not preclude an implied preemption analysis whenever there is a express preemption provision. The Court stated:

The fact that an express definition of the pre-emptive reach of a statute ‘implies’ — i.e. supports a reasonable inference— that Congress did not intend to pre-empt other matters *462 does not mean that the express clause entirely forecloses any possibility of implied preemption.... At best, Cipollone supports an inference that an express pre-emption clause forecloses implied pre-emption; it does not establish a rule.

Freightliner Corp. v. Myrick, — U.S. at —, 115 S.Ct. at 1488 , 131 L.Ed.2d at 393 .

The Court’s statements in Myrick advise that an implied preemption analysis remains appropriate even where there is an express definition of pre-emption contained in the Act, whenever that language merely “implies” Congressional intent. The provisions of the Act in question do not leave open the question of what matters are and are not preempted. The savings clause found in the Safety Act explicitly preserves common law claims. Because this language provides more than a “rehable indicium” of Congressional intent and expressly states that compliance with safety standards does not exempt any person from liability under common law, an implied preemption analysis is inappropriate.

I also find it necessary to respond to three points raised in the concurring opinion. First, refusing to find pre-emption does not punish a manufacture for complying with federal safety standards. Rather, allowing a claim based on product defect, would hasten the goal of providing safe products for the public.

Second, suggesting that permitting this type of action would lay “the foundation for a patchwork of differing standards throughout the country” ignores the fact that throughout our history, each state has developed its own body of common-law. It is the nature of the Republic that states set individual standards for liability. The concurring opinion seems to be suggesting a federalized approach, to the detriment of the citizens of the individual states.

Third, while I agree that customers have the ability to select and pay for options, this argument ignores the issue, should this case be initially permitted to proceed. The availability of options has nothing to do with the question of pre-emption.

*463 My review of the issue at hand causes me to concur with the statement of my colleague, the Honorable Kate Ford Elliott, in her opinion in Heiple v. C.R. Motors, Inc., 446 Pa.Super. 310 , 666 A.2d 1066 (1995). Therein she stated “we find a clear statement by Congress that common law causes of action are not in conflict with the goals and purposes of the Safety Act. Therefore, we are precluded from finding such a conflict by implication.” 446 Pa.Super. at 351 , 666 A.2d 1066 . In closing she cites to a passage from the decision of this court in Gingold v. Audi-NSU-Auto Union, A.G., supra., which I too find compelling:

A finding of no federal preemption [of state law causes of action] merely allows [plaintiff] to raise [his] passive restraint claims at trial. This by no means insures that [he] will prevail. It is not inconceivable that a jury could reject the claims ... [T]he only issue before us is whether Congress intended that such issues go before juries. It did. Congress articulated this intent in section 1397[k]....

... Tort actions can lead to greater insights into the inherent hazards or shortcomings of existing occupant restraint systems and test the public’s acceptance of new systems through jury verdicts. Moreover, ‘the specter of damages actions may provide manufacturers with added dynamic incentives to continue to keep abreast of all possible injuries stemming from the use of their product so as to forestall such actions through product improvement.’ ... Viewed in this manner, section 1397[k] is in complete harmony with the purpose of the Act as set forth in section 1381.

Gingold, supra at 54-55, 360 , 567 A.2d at 326, 329 (citations omitted).

Heiple v. C.R. Motors, Inc., 666 A.2d at 1086-7 .

For the above reasons I would find that plaintiffs “no air bag” claim is not preempted by federal law, and, therefore, I dissent from the Majority’s ruling. See also the recent decision of the Commonwealth Court following the reasoning in *464 Heiple, Muntz v. Commonwealth of Pennsylvania, 674 A.2d 328 (Pa.Cmwlth.1996).