Amicus Curiae Brief — Wood v. General Motors Corp.

13 1990

Iu the Supreme Court of the United STAVE asx

OCTOBER TERM, 1989

PATRICIA M. WOOD, ET AL., PETITIONERS

Vv.

GENERAL MoToRS CORPORATION

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

JOHN G. ROBERTS, JR.

Deputy Solicitor General

PAUL J. LARKIN, JR.

Assistant to the Solicitor General

DOUGLAS N. LETTER

JOHN F.. DALY

Attorneys

Department of Justice

PHILLIP D. BRADY Washington, D.C. 20530

General Counsel (202) 633-2217

STEPHEN P. Woop

Acting Chief Counsel

KENNETH N. WEINSTEIN

Assistant Chief Counsel

National Highway Traffic Safety Administration

Department of Transportation

Washington, D.C. 20590

QUESTION PRESENTED

Whether Section 103(d) of the National Traffic and

Motor Vehicle Safety Act of 1966, 15 U.S.C. 1892(d),

or Federal Motor Vehicle Safety Standard 208 preempts

a state common law design defect tort action based on

the failure to install an airbag in a motor vehicle.

(1)

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Cases:

Arbet v. Gussarson, 66 Wis. 2d 551, 225 N.W.2d

ee ecaeosnnaanib

Chicago & N.W. Trans Co. v. Kalo Brick & Tile

er oe wceocemambuncen

City of New York v. FCC, 486 U.S. 57 (1988)....

Dawson Vv. Chrysler Corp., 630 F.2d 950 (3d Cir.

1980), cert. denied, 450 U.S. 959 (1981) ............

Fidelity Federal Savings & Loan Ass’n v. De la

Cucsm, 406 U.5. 141 (1962) .............................. 8,

Florida Lime & Avocado Growers, Inc. v. Paul, 373

ERR ee ra

Fox v. Ford Motor Co., 575 F.2d 774 (10th Cir.

EAR SCS tad dh eS RR a a

Gardner v. Honda Motor Co., 536 N.Y.S.2d 303

(1988), appeal dismissed, 543 N.Y.S. 401 (App. — =

Div. 1989) ...... 1S RE LLCS EE SE ELTA OI

General Motors Corp. v. Edwards, 482 So. 2d 1176,

nn scslentocdonuauoces

Gingold v. Audi-NSU-Auto Union, A.G., No. 2058

Pa. meer. Ce. Dee. 6, 1960) ................................

Goodyear Atomic Corp. v. Miller, 486 U.S. 174

al SOM Ebe UES EL ler ee

Grimshaw v. Ford Motor Co., 119 Cal. App. 3d

757, 174 Cal. Rptr. 384 (Ct. App. 1981) _............

H.P. Hood & Sons, Inc. v. Ford Motor Co., 370

Mass. 69, 345 N.E. 683 (1976) ........0000000. ee.

Hall v. General Motors Corp., 647 F.2d 175 (D.C.

RS SE de

Hines v. Davidowitz, 312 U.S. 52 (1941) —...............

Hospital Employees Labor Program v. Ridgeway

Hospital, 570 F.2d 167 (7th Cir. 1978) ..............

(IIT)

16

8, 16

15, 17

14, 18

11

IV

Cases—Continued : Page

INS v. Chadha, 463 U.S. 919 (1988) ...................... 15

International Paper Co. v. Ouellette, 479 U.S. 481

St 5 NPR n top Uncen NR RGU aR eWNTEEALEE NORRIS EE 9, 14, 16

Kitts v. General Motors Corp., 875 F.2d 787 (10th

Cir. 1989), petition for cert. pending, No. 89-

279 . 17

Knippen V. Ford Motor Co., “546 F.2d 993 (D. C.

Nite NAA ane eat eRe fT A 2 OT on So. ee 17

Kotler v. American Tobacco Co., 685 F. Supp. 15

Oa: es UR a ne 18

Larsen Vv. General Motors Corp., 391 F.2d 495 (8th

ee re ce ees eet ee 17

Meier Vv. Nissan Motor Co., 212 Cal. App. 3d 980,

261 Cal. Rptr. 80 (Ct. App. 1989), petition for

cert. pending, No. BO-940 .......o...-cccccecccosccecececss-s 17

Motor Vehicle Mfrs. Ass’n v. State Farm Mut.

Auto. Ins. Co., 468 US. 29 (1988) ...................... 2

Nader vy. Allegheny Airlines, Inc., 426 U.S. 290

GN FEORP An SON LE Sen ere ee a RNS DERE aes ETS 16

Northwest Central Pipeline Corp. v. State Corp.

Comm’n, 109 S. Ct. 1262 (1989) .......................... 8

Pacific Legal Foundation vy. DOT, 593 F.2d 1338

(D.C. Cir.), cert. denied, 444 U.S. 830 (1979).. 12

Public Citizen v. Steed, 851 F.2d 444 (D.C. Cir.

| Rat A ats A ancl cae esa os ane 3

San Diego Bldg. Trades Council vy. Garmon, 359

SE creer ce ee eee ere 6,9

Schneidewind v. ANR Pipeline Co., 108 S. Ct. 1145

SE ces crtesen ee dae ee eee tee 8

Schwartz v. American Honda Motor Co., 710 F.2d

ee ee Ee oe a ee 17

Shipp v. General Motors Corp., 750 F.2d 418 (5th

ED SE ieee ce etal peor aR ts Cie pM 17

Silkwood v. Kerr-McGee Corp., 464 U.S. 238

5 ae ae aa Te RT Te oI OP ORD IRON OS OC 10

Smith v. Ariens, 375 Mass. 620, 377 N.E.2d 954

MR isc iced soe nasiearee canine he Se ee 6

Sours v. General Motors Corp., 717 F. 24 1511 (6th

es ee ree a a ee 17

State Farm Mut. Auto. Ins. Co. v. Dole, 802 F.2d

474 (D.C. Cir. 1986), cert. denied, 480 U.S. 951

Ss a ee ee 2,3

Cases—Continued : Page

Stonehocker v. General Motors Corp., 587 F.2d

SE Ce RE. BPO vacettencteececeetceeome 17

Sumnicht v. Toyota Motor Sales, U. S.A., Inc., 121

Wis. 2d 338, 360 N.W.2d 2 (1984) ........000200000..... 13

Taylor v. General Motors Corp., 875 F.2d 816

(11th Cir. 1989), petition for cert. pending, No.

ERAN SCE ROSES EU E pe OS PLE Bie ere AY Fey 16

Texas & Pacific Ry. v. Abilene Cotton Oil Co., 204

Uae a CE eerie eee ica eee 16

Volkswagen of America, Inc. v. Young, 272 Md.

Oat: Gh ABE TET UIST hoe 17

Wickstrom Vv. Maplewood Toyota, Inc., 416 N.W.2d

838 (Minn. Ct. App. 1987), cert. denied, 108

eee Bi: : eee a ae 17

Statutes and regulation:

Motor Vehicle and Schoolbus Safety Amendments

of 1974, Pub. L. No. 93-492, § 109, 88 Stat. 1482

CEB SAG DR a ncctctcreer e a 12

National Traffic and Motor Vehicle Safety Act of

1966, 15 U.S.C. 1381 et seq.:

pik 2 ay Siem pre tetera tener Sok Cine ats 8s eH |

TER Sere tei eee 1,14

Se i By csi as essne caine nsrerctes ceneeaes 11

SE aes I ooo ince sre ee eee, 1,2

TB Ue CE ree oe eee 9

15 U.S.C. 1892(d) (§ 103(d)) ............ 2, 4, 5, 6, 7, 8, 9,

10, 11, 15, la

BU GE Dens RD res se erase eee 2

EG Ue: BES OD oo oreeveeirecs sodas 2

pi EIS 0 _. eeeeenelcarp tonearm ar nn neon Fes z, 13

SE Ui PE onder 2

15 U.S.C. 1397 (c) (1982) (§ 108(c)) —............. 4, la

15 U.S.C. 1397(k) (§ 108(c)) -.....-.......... A, 5, 6, 7, 8, 9,

10, 11, 15, 16

15 U.S.C. 1898 (a) -............. SiLSe ee ERROP RE RURRe ETM oor Pt 2

SB Ua Sr ice ee cans 2

PERS ae |, Bas asmemepntins Shea sek Acie cessor nein 2

SUR See ke ee eee 15, 16

18 U.S. T4700) 0) (0) oo ne 16

BB Ui SER 00 deena 15

VI

Statutes and regulation—Continued : Page

15 U.S.C. 1414 (a) Bee RE Nia 2

28 U.S.C. 1292 (b) nigisehadannimasedaiie plication 5

49 C.F.R.:

Section 1.50 (a)

Section 571.3 Re an 4

Miscellaneous : Page

Federal Motor Vehicle Safety Standard 208

CRIED citvasccsinns suns 2, 5, 7, 8, 11, 18, 14, 15, 17, 18, 19

49 Fed. Reg. (1984) :

Oe | Renner ee sh ee 3,13

Dh, HE sceseecaintcsanceas sslesick nda wie epenionaiiotan deanna 12

p. 28,987-28,997 .. WEBI SEs ectsn sccm nO 13

i; FE erence. cident 12

Ds TP saeneccnitanetecenstaeicice sn ee = 13

p. 28,991-28,992 peiniiaesnteaiebetaina tial ee eae 12

pp. 28,999-29,000 _...... cassettes ae ee 3

oe! | amr es) cet ee" 13

Wa: SEIO tavsnetincecodnncixtocseiecezaich eee lecoe cahens 12

54 Fed. Reg. 8,046 (1989) shiccbienicetascotaashidioean eee eae 3

G6 Fed. Neg. TET CLOGS)... oe 18

H.R. Rep. No. 1776, 89th Cong., 2d Sess. (1966)... 4

S. Rep. No. 1301, 89th Cong., 2d Sess. (1966)... 4,14

Iu the Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-46

PATRICIA M. WOOD, ET AL., PETITIONERS

Vv.

GENERAL MOTORS CORPORATION

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

This brief is submitted in response to the Court’s order

inviting the Solicitor General to express the views of the

United States in this case.

STATEMENT

1. In 1966 Congress enacted the National Traffic and

Motor Vehicle Safety Act (the Safety Act or Act), 15

U.S.C. 1381, for the purpose of “reducing traffic accidents

and deaths and injuries to persons resulting from traffic

accidents.” To accomplish that goal, the Act directs the

Secretary of Transportation! to promulgate federal mo-

tor vehicle safety standards, 15 U.S.C. 1892(a), which

are defined as “minimum standard[s] for motor vehicle,

or motor vehicle equipment performance,” 15 U.S.C.

1391(2), and prohibits the manufacture, sale, or delivery

into interstate commerce of any motor vehicle that does

1The Secretary has delegated most of his authority under the

Safety Act to the Administrator of the National Highway Traffic

Safey Administration (NHTSA). See 49 C.F.R. 1.50(a).

(1)

2

not comply with those standards, 15 U.S.C. 1397.2. Each »

standard “shall be practicable, shall meet the need for

motor vehicle safety, and shall be stated in objective

terms.” 15 U.S.C. 1892(a). The Secretary must consider

whether a proposed standard “is reasonable, practicable

and appropriate” for the particular type of motor vehicle

and “the extent to which such standards will contribute

to carrying out the purposes” of the Act. 15 U.S.C.

1392 (f) (3) and (4).

The question presented by this case involves the effect

on state tort law of one vehicle safety standard, Federal

Motor Vehicle Safety Standard (FMVSS) 208. The cur-

rent version of FMVSS 208 was issued in 1984 after

nearly 15 years of analysis, rulemaking, and litigation.

See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29, 34-38 (1983); State Farm Mut.

Auto. Ins. Co. Vv. Dole, 802 F.2d 474, 477-478 (D.C. Cir.

1986) (chronicling the development of FMVSS 208),

cert. denied, 480 U.S. 951 (1987). FMVSS 208 now re-

quires (with certain exceptions not relevant here) in-

stallation in the front seats of all new passenger cars

“passive occupant restraint systems,” i.e., devices that

are intended to help protect occupants from injury during

a collision and that do not require any action on the oc-

cupant’s part other than that necessary to operate the

vehicle. The rule gives auto makers the option of install-

ing automatic seat belts or airbags, and also allows them

to develop other technologies to satisfy the passive protec-

tion requirements, such as passive interiors, although no

2The Safety Act imposes stiff penalties on manufacturers that

do not comply with the Secretary’s standards. A manufacturer is

subject to a $1,000 civil fine by the Secretary for each vehicle not

in compliance (subject to a $800,000 cap for any related series of

violations), 15 U.S.C. 1398(a), and the Secretary may bring suit

to enjoin the sale or distribution of such vehicles, 15 U.S.C. 1399(a).

Manufacturers (or distributors) also must repurchase such vehicles,

or modify or replace them at their own expense. 15 U.S.C. 1400(a),

1414(a). Moreover, the States can adopt their own enforcement

mechanisms for noncomplying vehicles. 15 U.S.C. 1392(d).

3

such technology has been developed at this time.* The

1984 rule phased in its requirements over a four-year

period beginning in 1986.4 Inadopting this rule, Secre-

tary Dole considered and rejected a proposal that would

have required all motor vehicles to have an airbag protec-

tion system, see pp. 11-13, infra, and her decision was

upheid in State Farm Mut. Auto. Ins. Co. v. Dole, 802

F.2d at 487-489. The essential features of the rule have

remained unchanged since 1984.°

3 Automatic seat belts close around the driver and a passenger

when the door is closed or the engine is started. An airbag is a

balloon-like device that inflates during a collision in order to help

prevent an occupant from being thrown forward into the steering

wheel, dashboard, or front windshield. Passive interiors are a poten-

tial protection system. They involve the use of additional padding

in the dashboard, for example, and alterations in the steering

column in order to protect occupants even without safety belts or

airbags. State Farm, 802 F.2d at 476 n.1.

4In particular, the rule requires manufxcturers to install a pas-

sive restraint system in 10% of passenger cars (except convertibles)

built in the 1987 model year (between September 1, 1986, and Au-

gust 31, 1987), 25% of the cars built in the 1988 model year, 40%

in the 1989 model year, and all passengers cars manufactured after

September 1, 1989. 49 Fed. Reg. 28,962, 28,999-29,000 (1984). The

1984 rule also provided auto makers with an incentive to install air-

bags because the Secretary determined that most manufacturers

would install detachable passive seat belts and because she concluded

that public acceptability concerns required that a variety of types of

passive restraints be available. If a manufacturer included an air-

bag on the driver’s side and any other passive restraint (e.g., an

automatic seat belt) on the passenger side, the manufacturer could

count that one vehicle as 1.5 vehicles for the purpose of fulfilling

the phase-in requirements.

5In 1985 and 1987, the Secretary adopted additional incentives

for auto makers to install airbags to promote further the availa-

bility of consumer choice among alternative passive protection sys-

tems. See Public Citizen v. Steed, 851 F.2d 444, 446 (D.C. Cir.

1988) (describing the rules); id. at 447-450 (upholding the 1987

rule). The Secretary also recently announced a program of coopera-

tive educational efforts to encourage greater use of existing protec-

tions and to foster public acceptance of passive restraints. 54 Fed.

Reg. 8,046 (1989).

4

2. The question decided by the court below is whether

a common law tort action seeking to hold a manufacturer

liable for its failure to install an airbag in a vehicle is

preempted by federal law. Two provisions of the Safety

Act speak to that question. The first provision, Section

103(d), 15 U.S.C. 1392(d), is a preemption clause. It

states that “[w]henever a Federal motor vehicle safety

standard * * * is in effect, no State or political sub-

division of a State shall have any authority * * * to

establish * * * with respect to any motor vehicle * * *

any safety standard applicable to the same aspect of per-

formance of such vehicle * * * which is not identical to

the Federal standard.” That provision was designed to

ensure that the Secretary could promulgate minimum

safety standards that auto manufacturers could uniformly

implement on a nationwide basis. H.R. Rep. No. 1776,

89th Cong., 2d Sess. 17 (1966); S. Rep. No. 1301, 89th

Cong., 2d Sess. 12 (1966).

The second pertinent provision, Section 108(c), 15

U.S.C. 1397(k),® is a savings clause. It states that

“[ejompliance with any Federal motor vehicle safety

standard * * * does not exempt any person from any

liability under common law.” This section was designed

to preserve common law rights. H.R. Rep. No. 1776,

supra, at 24; 8. Rep. No. 1301, supra, at 12.

3. In 1981, petitioner Patricia Wood was riding with-

out wearing a seatbelt in a 1976 Blazer, a multipurpose

passenger vehicle (MPV) manufactured by respondent

General Motors Corporation.’ The Blazer left the road

and collided with a tree, rendering Wood a quadriplegic.

Petitioners thereafter filed this tort action against re-

6 The courts below cited the pre-1988 version of Title 15, which

listed Section 108(c) as 15 U.S.C. 1397(c) (1982). The Safety Act

was amended in 1988, and Section 108(c) was renumbered without

change as 15 U.S.C. 1397(k) (1988). We will refer to the original

sections of the Safety Act.

7 An MPV is defined by NHTSA’s regulations as “a motor vehicle

with motive power, except a trailer, designed to carry 10 persons .

or less, which is constructed either on a truck chassis or with special

features for occasional off-road operation.” 49 C.F.R. 571.3.

5

spondent in federal district court in Massachusetts. Pet.

App. 2a-3a, 71a-72a. When the Blazer was manufactured

(and at present), vehicle manufacturers could comply

with FMVSS 208 for MPVs by installing either a passive

restraint system or manual lap and shoulder belts with

a belt warning system. Jd. at 9a-10a (citing regulations).

The gravamen of petitioners’ claims was that the Blazer

was defectively designed because it was not equipped with

a passive restraint system, such as an airbag.®

Respondent moved for summary judgment on the

ground, inter alia, that Section 103(d) of the Safety Act,

15 U.S.C. 1892(d), and FMVSS 208 preempted peti-

tioners’ state tort law design defect claims. The district

court denied respondent’s summary judgment motion,

holding that petitioners’ tort claims were neither ex-

pressly nor impliedly preempted by federal law. Pet. App.

79a-93a. The court certified the preemption question for

interlocutory appeal under 28 U.S.C. 1292(b), and the

First Circuit agreed to decide “whether federal law pre-

empts a state law product liability claim against a motor

vehicle manufacturer based on its installing seat belts,

rather than airbags, in a motor vehicle,” Pet. App. 3a-4a.

On the merits, a divided court of appeals reversed the

district court. Pet. App. la-54a. The majority concluded

that design defect claims for not installing airbags in

motor vehicles were neither expressly preempted by Sec-

tion 103(d) nor expressly preserved by Section 108(c).

Pet. App. 17a-27a. The majority reasoned that when the

Safety Act was adopted in 1966, design defect claims

were a nascent theory of liability, and Congress could not

have foreseen that state common law tort actions against

motor vehicle manufacturers preserved by Section 108 (c)

would have the practical effect of imposing on manufac-

turers the same type of state safety standards preempted

8 See Complaint para. 7.d, at 14 (filed Mar. 12, 1984) (‘Defendant

negligently failed to provide reasonably safe and adequate safety

devices, which include but are not limited to ‘air bag’ devices, to

protect passengers and minimize the seriousness of injuries in rea-

sonably foreseeable circumstances which include collisions.”).

6

by Section 103(d). The legislative history of the Act,

the court noted, also confirmed that Congress was un-

aware of that possibility. Pet. App. 24a-27a. The court

thus held that neither Section 103(d) nor Section 108 (c)

controls this case. Pet. App. 27a.

The majority then ruled that design defect claims are

impliedly preempted by Section 103(d) because they

“would stand as an obstacle to Congress’s chosen method

of increasing automobile safety,” which was to grant DOT

exclusive authority to set performance standards. Pet.

App. 37a. Noting that “[t]he obligation to pay com-

pensation can be, indeed is designed to be, a potent method

of governing conduct and controlling policy,” Pet. App.

32a (quoting San Diego Bldg. Trades Council v. Garmon,

359 U.S. 236, 247 (1959) ), and that the purpose of state

law design defect actions was to “adapt[] standards of

conduct” to “serve the needs of our society until the legis-

lature imposes higher standards,’ Pet. App. 33a-34a

(quoting Smith v. Ariens, 375 Mass. 620, 624-625, 377

N.E.2d 954, 957 (1978) (quoting Larsen v. General

Motors Corp., 391 F.2d 495, 506 (8th Cir. 1968))), the

majority found that a compensatory damage award in a

design defect action for not installing an airbag would

regulate the conduct of vehicle manufacturers by requir-

ing them to use airbags in their fleets. Pet. App. 32a-41a.

Thus, holding a manufacturer liable for not installing air-

bags would “circumvent” Section 103(d) because it would

be “tantamount to establishing a conflicting safety stand-

ard that necessarily encroaches upon the goal of uni-

formity specifically set forth by Congress in this area.”

Pet. App. 16a.°

Judge Selya dissented. Pet. App. 56a-65a. Although-

describing the question as “close[],” id. at 69a, Judge

® Later in its opinion, the majority explained that federal law

preempted design defect claims only when two conditions were met.

First, “the theory of recovery advanced by the product liability suit

(must be] directed at the same ‘aspect of performance’ * * * as the

federal safety standards.” Pet. App. 50a. Second, “the theory of

recovery [must be] of sufficiently general applicability that a suc-

cessful tort suit would be equivalent to a state regulation.” Jbid.

7

Selya concluded that Section 108(c) preserves design de-

fect tort claims and that such claims do not disrupt the

policy underlying the Safety Act, because manufacturers

have the choice of redesigning their vehicles or paying

tort awards. Pet. App. 56a-68a.

DISCUSSION

In our view, Section 103(d) of the Safety Act does not

expressly or impliedly preempt design defect tort actions

based on the claim that a vehicle was defective simply

because it did not contain an airbag. We therefore dis-

agree with the reasoning of the majority below, which

concluded that Section 103(d) impliedly preempts such

claims. At the same time, we believe that FMVSS 208

impliedly preempts tort claims that frustrate the Secre-

tary’s policy of encouraging vehicle manufacturers to

offer the public a choice of either automatic seatbelts or

airbag passive protection systems. Nonetheless, we do not

believe that the judgment below warrants review by this

Court. Although numerous federal and state courts have

considered the preemption question, there is no conflict

among the federal circuits or the state courts of last

resort. In addition, this case does not present various

other questions that must be addressed in order fully to

resolve the preemption controversy. Moreover, under our

analysis, FMVSS 208 would impliedly preempt state tort

claims for cars now being manufactured. Under these

circumstances, the petition should be denied.

1. In litigation on this question to date, both the par-

ties and the courts have tended to take an all-or-nothing

view of the preemption issue. The manufacturers have

argued, and most courts have held, that Section 103(d)

expressly or impliedly preempts any common law ruling

imposing a standard of care greater than the standard

set by federal law. The theory underlying this pro-

preemption position is that holding manufacturers liable

under standards developed at common law will lead to

disuniformity in the standards applicable to manufac-

turers. In contrast to this sweepingly pro-preemption

approach, plaintiffs have argued that common law tort

8

claims can never be expressly or impliedly preempted

because Section 108(c) preserves all common law actions.

Adherents to this equally adamant no-preemption ap-

proach are unmoved by the possible effects of common law

liability on vehicle manufacturers’ conduct (e.g., driving

them in the direction of all-airbags design).

We agree with neither approach. This Court has ex-

plained that when a federal regulatory scheme preserves

a role for state law, “conflict preemption analysis must be

applied sensitively * * * to prevent the diminution of

the role Congress reserved to the States while at the same

time preserving the federal role.” Northwest Central Pipe-

line Corp. v. State Corp. Comm’n, 109 S. Ct. 1262, 1276

(1989). Neither the manufacturers’ position nor that of

the plaintiffs’ bar reflects the sensitivity to competing

values that should carefully and fully be taken into

account.

In our view, Section 103(d) does not preempt state tort

claims on the ground that a judgment in a plaintiff’s

favor, reflecting a more stringent standard of care than

that imposed by a federal standard, would put at risk

the federal interest in uniformity. At the same time, Sec-

tion 108(c) does not preserve state tort claims that put at

risk a specific federal policy promoting motor vehicle

safety. FMVSS 208 establishes just such an express fed-

eral safety policy of encouraging diversity in passive pro-

tection systems. Holding a motor vehicle manufacturer

liable for failing to install one specific system—an airbag

protection system—would conflict with that fundamental

objective of FMVSS 208.

2. Federal law, including agency regulations, City of

New York v. FCC, 486 U.S. 57 (1988); Fidelity Fed-

eral Savings & Loan Ass’n Vv. De la Cuesta, 458 U.S. 141

(1982), can expressly or impliedly supplant state law.

Schneidewind v. ANR Pipeline Co., 108 S. Ct. 1145, 1150-

1151 (1988). At the most obvious level, Congress or an

administrative agency acting within its delegated au-

thority can preempt state law by so stating in express

terms. Ibid. In addition, federal law impliedly preempts

state law when (1) it is impossible to comply with both;

9

(2) the federal interest in the field is so dominant that

federalism principles prevent enforcement of complemen-

tary or auxiliary state laws; (3) the federal regulatory

scheme is so pervasive as to be exclusive; or (4) state law

hinders the accomplishment and execution of the full pur-

poses and objectives of federal law. bid.

We agree with the courts below that the Safety Act

does not expressly preempt common law design defect

claims. If Section 103(d) were the only relevant section,

it could be read expressly to preempt state design defect

tort actions that are tantamount to a direct state regula-

tion.’ But Section 103(d) does not stand alone; it must

be read together with Section 108(c), which states that

“Tejompliance with any Federal motor vehicle safety

standard issued under this subchapter does not exempt

any person from any liability under common law.” Sec-

tion 108(c) thus preserves common law tort remedies in

some, if not all, cases. The question is how to define

that category.

The court of appeals excluded design defect tort claims

from the scope of Section 108(c). It reasoned that, in

1966, Congress could not have foreseen that such claims

would be permitted under state law, that holding manu-

facturers liable for not installing airbags would have the

same practical effect as a law requiring airbags to be

installed, and that such an outcome would disrupt the

federal interest in having uniform standards. Pet. App.

19a-27a. In our view, that interpretation of Section

108(c) is mistaken.

10 Section 103(d) does not focus on the common law process, and

was likely instead directed at the legislative process, since design

defect actions were a novel liability theory when the Safety Act was

adopted in 1966, as the court of appeals noted. Pet. App. 19a-24a.

But that factor is not necessarily dispositive, because the Act

forbids a State from “establish[ing]” or “continu[ing] in effect

* * * any safety standard” different from an applicable federal

performance standard, 15 U.S.C. 1392(c), and this Court has noted

that in some cases tort liability can have the same effect and intent

as direct regulation in the form of a statute. See Garmon, 359 U.S.

at 246-247; International Paper Co. v. Ouellette, 479 U.S. 481, 492-

493, 498 n.19 (1987). See Pet. App. 32a-37a.

10

There is no reason to treat design defect claims dif-

ferently from other tort claims. The text of Section

108(c) certainly does not do so. It preserves “any lia-

bility under common law” and therefore encompasses any

tort theory, old or new. By its nature, the common law

has always been a developing body of law. Congress obvi-

ously knew that in 1966. Moreover, design defect actions

do not necessarily conflict with the purposes of the federal

safety regulatory scheme. On the contrary, tort suits can

complement federal regulations by supplying manufac-

turers with an additional incentive to design a safe prod-

uct. Cf. Goodyear Atomic Corp. v. Miller, 486 U.S. 174,

186 (1988) (“Congress may reasonably determine that

incidental regulatory pressure is acceptable, whereas di-

rect regulatory authority is not.”). Accordingly, there is

no reason not to read Section 108(c) generally to preserve

all categories of tort claims, whether or not they were

well known in 1966.

To be sure, interpreting Section 108(c) to preserve

design defect tort claims creates tension within the Act.

Allowing manufacturers to be held liable for design ‘“de-

fects” in vehicles that comply with federal standards can

disserve Congress’s interest in having uniform perform-

ance standards. But that tension stems from the fact that

Sections 103(d) and 108(c) represent a compromise be-

tween the interests in uniformity and in permitting

States to compensate accident victims. While a state

legislature cannot direct manufacturers to comply with

its own performance standards, a state court (absent

a conflict with federal law or policies) can order a manu-

facturer to compensate accident victims for injuries

caused by a defectively designed vehicle, even if the ve-

hicle met all federal performance standards and even if

such liability induces the manufacturer to redesign some

or all of its cars. Whatever tension this creates is one

that Congress decided to tolerate by enacting both Sec-

tions 103(d) and 108(c), and the courts must do so as

well. See Silkwood v. Kerr-McGee Corp., 464 U.S. 238,

256 (1984).

11

3. For the reasons given above, we disagree with the

court of appeals’ holding that design defect claims are

impliedly preempted by Section 103(d). If Section 108 (c)

preserves those actions, they do not conflict with “Con-

gress’s chosen method of increasing automobile safety,”

Pet. App. 37a, because that method includes common law

liability for design defects. Holding manufacturers liable

for defects in vehicles designed in compliance with federal

standards would frustrate that method only if the Act

bestowed on manufacturers an immunity from the incen-

tives that the tort system can provide, and Section 108 (c)

disproves the existence of any such immunity.

At the same time, Section 108(c) does not preserve all

design defect claims. The purpose of the Safety Act “is

to reduce traffic accidents and deaths and injuries to per-

sons resulting from traffic accidents,” 15 U.S.C. 1381,

and the primary method that Congress chose to carry out

that purpose was to empower the Secretary to issue motor

vehicle performance standards, 15 U.S.C. 1392, 1397. In

some cases, holding a manufacturer liable for a design

defect could interfere with the Secretary’s efforts to

achieve the statutory objective. For example, if the Sec-

retary determined that a particular item of equipment

must have precise specifications in order to accommodate

competing goals (e.g., a headrest that is large enough to

protect the driver, but not too large so as to obscure his

view), a state court could not hold a manufacturer liable

under a design defect theory on the ground that the device

was too small (or too large) since the state standard

would expressly conflict with federal requirements. Or, if

the Secretary directed manufacturers to install only a

specific passive protection system, a state court could not

hold a manufacturer liable for not using a different sys-

tem. State tort law would be preempted in such cases

since it would be impossible to comply with both federal

and state law. Cf. Florida Lime & Avocado Growers, Ine.

Vv. Paul, 373 U.S. 132, 142-143 (1963).

This case does not pose that type of conflict, but it does

involve a closely related one. In issuing the current ver-

sion of FMVSS 208, Secretary Dole rejected a proposal

12

that would have required airbags to be installed in all

vehicles, in favor of a rule encouraging manufacturers to

offer consumers a variety of passive protection systems.

She determined—based on a very substantial history of

consumer (and congressional) responses to passive re-

straint requirements—that diversity would promote motor

vehicle safety by helping to ensure public acceptance of

passive protection systems,'! by encouraging the develop-

ment of new and improved technologies,’ and by enabling

11 In 1972, DOT adopted a rule requiring an interlock mechanism

preventing engine ignition unless manual seat belts were fastened.

That rule provoked a strong public reaction, prompting Congress

to ban the interlock requirement and impose procedural limitations

on DOT’s future efforts to require restraints other than seat belts.

Motor Vehicle and Schoolbus Safety Amendments of 1974, Pub. L.

No. 93-492, § 109, 88 Stat. 1482 (codified at 15 U.S.C. 1410b(b)).

Given the public’s adverse reaction to the interlock system, one factor

the Secretary considered was the public’s willingness to accept various

passive restraint technologies. 49 Fed. Reg. at 28,987. See Pacific

Legal Foundation v. DOT, 593 F.2d 1338, 1345-1346 (D.C. Cir.)

(the Secretary must consider public reaction to safety standards in

order to determine whether a particular standard is “‘practicable’’),

cert. denied, 444 U.S. 830 (1979). The Secretary found that some

people were concerned about the operation of an airbag protection

system, i.e., some people feared that the chemical used to inflate

airbags would be hazardous, that airbags would deploy inadvertently

and thereby cause injury, or that airbags would not deploy during

an accident. 49 Fed. Reg. at 29,001. The Secretary concluded that

it would be easier to overcome these fears if airbags were not re-

quired in all vehicles. Ibid. Emphasizing the public’s need “to

become accustomed to the technology and the need for protection,”

Secretary Dole concluded that “an across-the-board mandate too

quickly could engender adverse public reaction.” Jd. at 28,989. Given

widespread public concern about the safety and efficacy of airbags,

the Secretary concluded that “[i]f air bags were required in all

cars, these fears, albeit unfounded, could lead to a backlash affecting

the acceptability of air bags, * * * [including a possible] repeat of

the interlock reaction.” Jd. at 29,001. See id. at 28,991-28,992.

12 The Secretary determined that experience could show that auto-

matic seatbelts would be used far more frequently than anticipated,

and that manufacturers might be able to develop better and more

acceptable automatic seatbelt systems. That development may result

in automatic seat belts that were as effective at saving lives as

airbags, but that did so at a lower cost. The Secretary also con-

a a |

13

the agency to acquire a more extensive data base upon

which future regulatory decisions could be made. See 49

Fed. Reg. 28,962, 28,987-28,997, 29,000-29,001 (1984).

The Secretary also concluded that an all-airbag require-

ment would be too costly for consumers, due to replace-

ment costs, and that these cost considerations could lead

consumers to decline to replace airbags after they were

deployed, which could leave occupants without passive pro-

tection. Jd. at 29,000-29,001.'* For similar reasons, the

Secretary took steps to ensure that manufacturers in-

stalled airbags in some of their cars. See page 3 notes

4-5, supra. Accordingly, a critical feature of FMVSS 208

is the Secretary’s policy judgment that safety will best be

promoted if manufacturers install alternative protection

systems in their fleets, rather than one particular system

in every vehicle.

That policy is likely to be frustrated if manufacturers

are held liable for not installing airbags in their vehicles.

The incentive effects of state tort law are likely to be

particularly powerful in product liability cases involving

deaths or serious injuries, where the damage awards are

likely to be large. While we know of no cases that have

gone to judgment involving alleged liability for not in-

stalling airbags, the damages awarded in other product

liability cases against motor vehicle manufacturers have

been substantial.’* If manufacturers are held liable for

cluded that an all-airbag requirement would unnecessarily stifle

innovation in occupant protection systems. 49 Fed. Reg. at 29,001.

13 The Secretary estimated that airbags themselves will cost $320

more per car than manual belts, and that they would increase fuel

costs by $39 and insurance costs by $18 over the life of the car.

The Secretary also estimated that the replacement cost for a de-

ployed airbag would be $800, which may lead some persons not to

have an airbag replaced. The Secretary found that automatic seat-

belts, by contrast, would cost only $40, would increase fuel costs by

only $11, and would have no post-deployment replacement cost. 49

Fed. Reg. at 28,991, 29,000-29,001.

14 F}.g., Hall v. General Motors Corp., 647 F.2d 175 (D.C. Cir.

1980) (affirming judgment of $4.75 million); Suwmnicht v. Toyota

Motor Sales, U.S.A., Inc., 121 Wis. 2d 338, 360 N.W.2d 2 (1984)

14

not installing airbags, the burden of paying sizeable

compensatory and punitive damage awards along with

“(t]he centralized, mass production, high volume charac-

ter of the motor vehicle manufacturing industry in the

United States,” S. Rep. No. 1301, supra, at 12, is likely

to lead auto makers to install airbags in all cars. That

outcome would obviously eliminate the diversity that the

Secretary found necessary to promote motor vehicle

safety. At the least, holding manufacturers liable for not

installing airbags would drastically “interfere[] with the

methods by which [FMVSS 208] was designed to reach

[its] goal.” International Paper Co. v. Ouellette, 479

U.S. 481, 494 (1987). Under these circumstances, design

defect tort actions would “stand[] as an obstacle to the

accomplishment and execution of the full purposes and

objectives of [the agency],” Hines v. Davidowitz, 312

U.S. 52, 67 (1941), and thus would be preempted by fed-

eral law. See De la Cuesta, 458 U.S. at 155-159 (regula-

tions issued by the Federal Home Loan Bank Board per-

mitting federal savings and loan associations to include

due-on-sale clauses in mortgage contracts preempt con-

trary state law).

Respondent argues that FMVSS 208 preempts state

tort claims because that standard has always allowed

manufacturers to use various types of occupant re-

straints. Br. in Opp. 6-11, 19-20. We disagree with this

reasoning. Nothing in the Safety Act or FMVSS 208 con-

fers on car makers a “right” to comply with the federal

standards without tort liability, and Section 108(c)

proves that Congress did not grant any such immunity.

That state tort law may compel an auto maker as a prac-

tical matter to choose one of the options authorized by

federal law also does not necessarily establish an actual

conflict between federal and state law. Federal standards

are “minimum standard{s],” 15 U.S.C. 1391(2), permit-

ting manufacturers to use any design that satisfies federal

(same, $2.35 million) ; Grimshaw v. Ford Motor Co., 119 Cal. App.

3d 757, 174 Cal. Rptr. 348 (Ct. App. 1981) (same, more than $6

million).

a ee |

15

requirements. If any design “permitted” in this sense

could not be the subject of a common law design defect

claim, manufacturers would obtain by implication what

Congress expressly denied them in Section 108(c): im-

munity from common law liability by complying with

minimum federal standards. That result would be con-

trary to Congress’s statutory design, which was to sup-

plant direct state regulation of vehicle design, but to leave

the common law intact absent an actual conflict with fed-

eral standards.’® Thus, the mere fact that manufacturers

may comply with federal law by installing one of several

types of occupant restraint systems does not mean, stand-

ing alone, that a state law tort action seeking to impose

liability for failing to install airbags is preempted.

What distinguishes this issue from most is that the

Secretary determined not simply to allow either automatic

belts or airbags, but that an all airbag rule would dis-

serve the safety purposes of the Act. She therefore af-

firmatively sought to encourage manufacturers to use a

variety of protection systems in their fleets. It is that

policy of affirmatively encouraging diversity that would

be disrupted by tort liability, which therefore would be

preempted."®

15 DOT has long taken that view. In a January 1981 letter by

Frank Berndt, Chief Counsel of NHTSA, written to counsel for one

of the parties in Dawson v. Chrysler Corp., 630 F.2d 950 (3d Cir.

1980), cert. denied, 450 U.S. 959 (1981), DOT stated that, under

Section 108(c), compliance with a federal standard is not a defense

in a products liability action.

16 Respondent errs in relying on 15 U.S.C. 1410b, Congress’s

response to the Secretary’s 1972 ignition interlock proposal, as a

basis for preemption. Br. in Opp. 5-6, 14-15, 20. Section 1410b

required the Secretary to rescind the interlock rule and imposed

additional procedural requirements on the Secretary’s ability to

issue regulations requiring occupant restraints other than seat belts.

15 U.S.C. 1410b(b)-(d). Section 1410b is irrelevant to this case for

several reasons. First, it does not purport to modify either Section

103(d) or 108(c), the two sections at issue here. Second, Section

1410b purports to allow Congress to exercise a legislative veto over

the Secretary’s rule, but such provisions are now null and void. INS

v. Chadha, 463 U.S. 919 (1983). In any event, the Secretary com-

16

Section 108(c) does not require a contrary result. The

Court has repeatedly held that a clause preserving state

tort remedies should not be interpreted in a manner that

would lead the act to “destroy itself.” Texas & Pacific

Ry. v. Abilene Cotton Oil Co., 204 U.S. 426, 446 (1907).

See also, e.g., Ouellette, 479 U.S. at 494. Compare Nader

v. Allegheny Airlines, Inc., 426 U.S. 290, 298-300 (1976).

The most analogous decision is Chicago & N.W. Trans.

Co. Vv. Kalo Brick & Tile Co., 450 U.S. 311 (1981). In

Kalo Brick, the Court held that a carrier could not be held

liable under state tort law for abandoning a railroad line

when the Interstate Commerce Commission had approved

the carrier’s application for abandonment and had con-

sidered the matters that the plaintiff sought to raise in

state court. Jd. at 325-327. The Court so held even

though the Interstate Commerce Act had a savings clause

similar to Section 108(c) of the Safety Act. 450 U.S. at

328. That clause, the Court held, did not allow a state

court to second-guess the agency’s judgment on matters

committed to its discretion. Jd. at 330. The same is true

here. The task of issuing regulations that would imple-

ment the policies underlying the Safety Act was commit-

ted to the agency’s care by that statute, cf. City of New

York v. FCC, 486 U.S. at 63-64, and the state tort lia-

bility at issue here would disrupt the policy of encourag-

ing diversity in passive protection systems. Section

108(c) does not preserve tort claims that would obstruct

that or any other purpose of federal law.

4. Despite our disagreement with the approach to the

preemption issue taken by the court of appeals, we never-

theless believe that review by this Court is not warranted.

Like the First Circuit, the Tenth and Eleventh Circuits

and three state appellate courts have ruled that federal

law preempts a state law claim that a motor vehicle manu-

facturer can be liable for not installing an airbag. Taylor

v. General Motors Corp., 875 F.2d 816 (11th Cir. 1989),

plied with Section 1410b when the 1977 version of FMVSS 208 was

adopted, and Section 1410b does not apply to subsequent amend-

ments to that standard. 15 U.S.C. 1410b(b)(3)(C).

iia aia linia nia

17

petition for cert. pending, No. 89-852; Kitts v. General

Motors Corp., 875 F.2d 787 (10th Cir. 1989), petition

for cert. pending, No. 89-279; Meier v. Nissan Motor

Co., 212 Cal. App. 3d 980, 261 Cal. Rptr. 80 (Ct. App.

1989), petition for cert. pending, No. 89-940; Wickstrom

Vv. Maplewood Toyota, Inc., 416 N.W.2d 888 (Minn. Ct.

App. 1987), cert. denied, 108 S. Ct. 2905 (1988);

Gardner V. Honda Motor Co., 586 N.Y.S.2d 303 (App.

Div. 1988), appeal dismissed, 543 N.Y.S.2d 401 (1989)

(Table). One intermediate state appellate court has ruled

to the contrary. Gingold v. Audi-NSU-Auto Union, A.G..,

Nos. 2058 & 2059 (Pa. Super. Ct. Dec. 6, 1989).!7 That

disagreement, however, is not so severe that review is

warranted at this time.

Our preemption theory also may not lead to a result

that differs from the one below. On the one hand, the

17 None of the cases cited in the petition conflicts with the deci-

sion in this case. As the First Circuit explained, Pet. App. 49a,

those cases state only that compliance with a federal standard is

not a defense to a tort suit. See Shipp v. General Motors Corp.,

750 F.2d 418, 421 (5th Cir. 1985); Sours v. General Motors Corp.,

717 F.2d 1511, 1517 (6th Cir. 1983); Schwartz v. American Honda

Motor Co., 710 F.2d 378, 383 (7th Cir. 1983); Dawson, 630 F.2d

at 957-958; Stonehocker v. General Motors Corp., 587 F.2d 151,

156-157 (4th Cir. 1978); Knippen v. Ford Motor Co., 546 F.2d 993,

1000 (D.C. Cir. 1976) (dictum); Larsen, 391 F.2d at 506; Volks-

wagen of America, Inc. v. Young, 272 Md. 201, 321 A.2d 737, 746

(1974); H.P. Hood & Sons., Inc. v. Ford Motor Co., 370 Mass. 69,

345 N.E. 683, 688 (1976). Compare Fox v. Ford Motor Co., 575

F.2d 774, 778 (10th Cir. 1978) (court simply noted an admission by

the defendant to this effect). None of those cases involved the

question whether the Safety Act or FMVSS 208 preempted a tort

claim. That issue, as the court of appeals explained, Pet. App. 50a,

is quite different analytically, because only tort claims that are

tantamount to a direct state regulation have the potential to disrupt

federal policy.

The courts in General Motors Corp. v. Edwards, 482 So. 2d 1176,

1198 (Ala. 1985), and Arbet v. Gussarson, 66 Wis. 2d 551, 225

N.W.2d 431, 438 (1975), both used the term “preempt” in discuss-

ing the question whether compliance with a federal standard was

a defense to a tort suit. But neither court discussed the preemption

issue, and neither decision can be said to have passed on this ques-

tion.

18

vehicle in this case, a 1976 Blazer, was designed and

manufactured before the Secretary’s 1984 rule was

adopted. Moreover, FMVSS 208 does, not require that

MPVs like the Blazer have passive protection systems

(although the Secretary has issued a notice of proposed

rulemaking that would subject such vehicles to that re-

quirement, see 55 Fed. Reg. 747 (1990) ). Those circum-

stances could indicate that this particular action is not

preempted.'® On the other hand, a tort judgment that has

the effect of inducing manufacturers to switch to an all-

airbag fleet would stand as an obstacle to the fulfillment

of FMVSS 208’s policies, regardless of whether that judg-

ment was entered in a case involving a 1976 or a 1990

vehicle, and regardless of whether that judgment involved

a vehicle subject to the passive protection requirements of

FMVSS 208. This Court’s decision in De la Cuesta could

suggest that the Secretary’s rule should be given preemp-

tive effect with respect to all vehicles, regardless of their

date of manufacture.”

18 See Kotler v. American Tobacco Co., 685 F. Supp. 15, 18 (D.

Mass. 1988) (holding that the 1966 Federal Cigarette Labelling

and Advertising Act preempts common law claims based on ciga-

rette manufacturers’ failures to provide warnings, but only for

actions based on a failure to warn after 1966). See also Hospital

Employees Labor Program Vv. Ridgeway Hospital, 570 F.2d 167 (7th

Cir. 1978).

19 De la Cuesta involved the issue whether a federal regulation

authorizing banks to include due-on-sale clauses in loan agreeménts

preempted state laws prohibiting such clauses. A subsidiary issue

stemmed from the fact that two deeds in that case were signed years

before the effective date of the federal regulation. 458 U.S. at 150

n.7, 170-171 n.24. This Court ruled that the regulation nonetheless

applied to those documents since when they were executed state law

appeared to allow due-on-sale clauses, a proposition rvinforced by

the later federal regulation, and the state courts did not an-

nounce the contrary rule until six years later. Becawje that state

law rule, the Court held, was “pre-empted by a previausly promul-

gated federal regulation,” applying the Court’s decisiou to the two

deeds did not interfere with any “vested rights.” Jd at 170-171

n.24. The reasoning in De la Cuesta is pertinent, because petitioners

seek a new (and arguably novel) common law ruling in this case.

Since there was no common law precedent in 1984 establishing a

~

19

Furthermore, adjudication of this case could require the

Court to pass on difficult issues that have not been con-

sidered by the lower courts. One is whether the preemp-

tive effect of FMVSS applies to vehicles that are manu-

factured after the 1984 rule was promulg«.ted, or only

after it went into effect (on September 1, 1986). Another

is how vehicles should be treated if they were manufac-

tured during the first three years of the phase-in period

(1987-1989) when manufacturers had to install passive

protection systems in only a percentage of their new cars.

To our knowledge, no federal or state appellate court has

considered any of these questions, and we believe it pref-

erable that this Court not be the first to do so.””

Finally, FMVSS 208 requires that all passenger cars

manufactured after September 1, 1989, have passive pro-

tection systems. Thus, although we would analyze the

preemption question in a manner different from that fol-

lowed by the court of appeals, the result would be the

same for all passenger cars now being manufactured.

For these reasons, we believe that the Court should stay

its hand and see whether a conflict on the preemption

question hereafter develops among the federal courts of

duty to install airbags in cars, application of the preemptive effect

of the 1984 version of FMVSS 208 to vehicles designed and manu-

factured before 1984 would not upset a vested right of plaintiffs.

As in De la Cuesta, one could view the ruling that petitioners seek,

which would come in 1990 or later, as “pre-empted by a previously

promulgated [i.e., 1984] federal regulation.”

2° The decision below is also unsuitable for review for another

reason. Petitioners’ complaint alleged that respondent’s vehicle was

defectively designed because it did not have an adequate occupant

protection system, such as an airbag. The question that the court

of appeals addressed was whether federal law preempted a design

defect claim based on the failure to install an airbag, instead of

seatbelts. Pet. App. 3a-4a. The court of appeals’ opinion, however,

does not appear to distinguish between manual and automatic seat-

belts. It therefore may be open to petitioners on remand to claim

that the vehicle was defectively designed since it did not have auto-

matic seatbelts. That possibility, coupled with the interlocutory

posture of this case, militates against further review at this time.

20

appeals or the state courts of last resort. Even then, the

Court may prefer to resolve a case that does not raise

the other complex timing issues noted above, such as a

case involving a car as to which the 1984 version of

FMVSS 208 is applicable. At this point, we see no press-

ing need for the Court to consider these issues.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

JOHN G. ROBERTS, JR.

Deputy Solicitor General

PAUL J. LARKIN, JR.

Assistant to the Solicitor General

DOUGLAS N, LETTER

JOHN F. DALY

Attorneys

PHILLIP D. BRADY

General Counsel

STEPHEN P. Woop

Acting Chief Counsel

KENNETH N. WEINSTEIN

Assistant Chief Counsel

National Highway Traffic Safety Administration

Department of Transportation

MARCH 1990

APPENDIX

RELEVANT STATUTORY PROVISIONS

1. Section 103(d) of the National Traffic and Motor

Vehicle Safety Act of 1966, 15 U.S.C. 1392‘d), provides

that:

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 au-

thority 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 Fed-

eral standard. Nothing in this section shall be con-

strued as preventing any State from enforcing any

safety standard which is identical to a Federal safety

standard. Nothing in this section shall be construed

to prevent the Federal Government or the govern-

ment of any State or political subdivision thereof

from establishing a safety requirement applicable to

motor vehicles or motor vehicle equipment procured

for its own use if such requirement imposes a higher

standard of performance than that required to com-

ply with the otherwise applicable Federal standard.

2. Section 108(c) of the National Traffic and Motor

Vehicle Act of 1966, 15 U.S.C. 1397(c) (1982), provides

that:

Compliance with any Federal motor vehicle safety

standard issued under this subchapter does not ex-

empt any person from any liability under common

law.

(la)