Opposition Brief — Wickstrom ex rel. Wickstrom v. Maplewood Toyota, Inc.

|

Supreme Court, U.S.

FILED

JUN 13. is08

No. 87-1881 JOSEPH F. SPANIOL, JR.

CLERK

In the

Supreme Court of the United States

October Term, 1987

JAN MARIE WICKSTROM, by H. D. WICKSTROM

and JOHN RING, conservators of the

person and estate of JAN MARIE WICKSTROM,

Petitioner,

v.

MAPLEWOOD TOYOTA, INC., a Minnesota corporation,

TOYOTA MOTOR DISTRIBUTORS, INC., a California corporation,

TOYOTA MOTOR SALES, U‘S.A., INC., a California corporation,

TOYOTA MOTOR CORPORATION, a Japanese corporation,

and LOUIS CHAPMAN,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF MINNESOTA

BRIEF IN OPPOSITION

BOWMAN AND BROOKE

David W. Graves, Jr.

Wayne D. Struble

Cynthia J. Atsatt

600 Midwest Plaza West

801 Nicollet Mall

Minneapolis, Minnesota 55402

(612) 339-8682

Attorneys for Respondents

Of Counsel:

Toyota Motor Sales, U.S.A., Inc.

Douglas M. West, General Counsel—Product Law

Edward O. Hunter, Managing Counsel

19001 S. Western Avenue

Torrance, California 90509

(213) 612-4798

as Bachman Printing, 845 Second Avenue So., Mpls., MN 55402 — (612) 339-9518 # FAX 612-337-8053

FEE ANILINE EE OL LLNS EDS TEER NE TIO a ah Sa 3

QUESTION PRESENTED FOR REVIEW

Whether the National Traffic and Motor Vehicle Safety Act of

1966 and Federal Motor Vehicle Safety Standard 208, as amended

by 15 U.S.C. § 1410b, expressly or impliedly preempt common law

actions seeking to impose tort liability upon motor vehicle manu-

facturers who, in accordance with federal law, install lap and

shoulder belt protection systems rather than airbags in passenger

cars manufactured for sale in the United States.

a it ne a

PARENT COMPANIES, SUBSIDIARIES,

AND AFFILIATES

Pursuant to Rule 28.1, respondents state that Maplewood

Toyota, Inc., is a Minnesota corporation and has no parent com-

panies, subsidianes, or affiliates. Toyota Motor Distnbutors, Inc., is

a California corporation and a wholly-owned subsidiary of Toyota

Motor Sales, U.S.A., Inc., which is also a California corporation

and a wholly-owned subsidiary of Toyota Motor Corporation, a

share company organized under the laws of Japan. There is no

public holding, or market for, the stock of Toyota Motor Distnbu-

tors, Inc., or Toyota Motor Sales, U.S.A., Inc., or the stock of

any other United States subsidiary or affiliate of Toyota Motor

Corporation. The stock of Toyota Motor Corporation is traded on

some public exchanges in Japan, but is not regularly traded over-

the-counter or on any exchange in the United States.

. eae >

—— oe he) re '

i) ll |

TABLE OF CONTENTS

Page

CONSTITUTIONAL PROVISIONS, STATUTES.

pee Re Coe yy eB Bs) na |

iF Vi 3 | le errr rr Serer re 3

pe i: Ee ery sh PON nr, ery rE We Pye Per 4

1. The Petition for a Wnt of Certioran Fails

to Present a Conflict Requinng Review by

pe Pere ery POR eT PET PoC eT ETS TIT 5

a. No conflict between state courts of

| Eee re ee Pe Ore Tee TET TEE EES 5

b. No conflict between a state court of

last resort and a federal court of appeals........ 5

c. No conflict with any Supreme Court

re eer eis Wer cet ea eye 7

2. The Minnesota Court of Appeals Reached

Gk COE SRI cocked eeeeaceesad shesecrewins 8

a. Comports with the clear weight of

a eae ra ere rr rr re a 8

b. Denial of discretionary review by the

Minnesota Supreme Court. ........5..ssc0008. 9

c. Petitioner’s reliance on arguments

discredited by decades of Supreme

CHE CI oka kc aces btessc ender enccaeans 9

3. This Court’s Consideration of the Question

Presented Appears Premature at This Time........ 17

CHIT I ook cud eke heehee a ew cea ee eee ees 18

APPENDIX

Summary of Federal and State Cases

Addressing Preemptive Effect of Safety Act on

oe ge Pree r er errr rer errr try Les. A-!

TABLE OF AUTHORITIES

Page

Cases:

Baird v. General Motors Corp., 654 F. Supp. 28

GPa GD CDs 0:6 040 dewedeeseadanhbeneensuuas 13

Chicago & Northwestern Transportation Co. v. Kalo

Brick and Tile Co., 450 U.S. 311 (1981)........... 14. 16

City of Burbank v. Lockheed Air Terminal, Inc.,

Gee Gee Se CUES éndc0k cscncduuesesebcesercerul 7

Cox v. Baltimore County, 646 F. Supp. 761

CER, BS 66 668.6056 ovccsacksncencoesees 9, 12. 15

Dawson v. Chrysler Corp., 630 F.2d 920

Ce Gi Se aude bakaeéacacannyecivasedeeecs l4n3

Donnelly v. General Motors Corp., No. 86-576-JU

Ge GR See Bet See panccadddacetensdvesesceksess 13

Fidelity Federal Savings and Loan Association v

ae te Comet, S56 US. 142 (IGEZ) 2. ccc cccccccccccces 12

Hines v. Davidowitz, 312 U.S. 52 (1941) ............... 11-12

Hughes v. Ford Motor Co., 677 F. Supp. 76

CR: SS Coren ocean dec dkcawadenwennesada0secsnns 12

International Paper Co. v. Ouellette, 107 S. Ct. 805

SUE cian ana 66n0endeuiee uuu teandbinnsees 7, 14, 15,

1S-16

Kitts v. General Motors Corp., No. 85-0967 JC

(D.N.M. Sept. 29, 1987), appeal pending. ~-

POR, Gees CUe GED occ cccneueeduesccachbascencen 17

Lawrence County v. Lead-Deadwood School

aries, 45D US. FeO CURD cc cccccacsccscccssscccs 12

1\

————————————

Offshore Logistics, Inc. v. Tallentire, 106 S. Ct. 2485

Ne os eden ee abnnneedaeseeeceens 16

Richart v. Ford Motor Co., 681 F. Supp. 1462

(D.N.M. 1988), appeal pending, No. 88-8012

BD gc cnacdabedceubntascccnnsecescacceeds 17

San Diego Building Trade Council v. Garmon,

B99 U.S. FB (IDB). ccccccccccccccccccccccccseees 14

Schwartz v. Volvo, N. Am. Corp., No. CV 86-7701

(Ala. Cir. Ct. Mar. 10, 1988) ....... 0c cece eeeneeees 13

Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984)...... 7,8

Staggs v. Chrysler Corp., 678 F. Supp. 270

ETD GON. Gaia cc cccvnncccasscddacssiccescssesoes 13

Vanover v._Ford Motor Co., 632 F. Supp. 1095

ETD Ble, FID 6c ccccccccccccccccssneseces 12, 13, 15

Vasquez v. Ford Motor Co., No. 86-0657 PHX

WPC (D. Anz. Nov. 4, 1986), motion for

reconsideration denied, No. CIV 86-0657 PHX

WPC (D. Ariz. Feb. 19, 1987)..........cccceceecees 13

Wattelet v. Toyota Motor Sales, U.S.A., Inc., 676

F. Supp. 1039 (D. Mont. 1987) ........--5e cece eens 13

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

838 (Minn. App. 1987) ........--2- eee eevee 4, 14, 15

Wood v. General Motors Corp., 673 F. Supp. 1108

(D. Mass. 1987), appeal pen&ing, No. 87-1750

No eceusescebarcenesaescanaweuedse soe 17

Constitution, Statutes, and Regulations:

U.S. Constitution

i MCE ES lo a ob ee ednadeear rete |

Atomic Energy Act of 1954, 42 U.S.C. 2011 ef WE: as00s0% 7-8

Nationa! Traffic and Motor Vehicle Safety Act of 1966,

IS U.S.C. 1381 er seq.

SP en MOD o'o nko 00 ssuobvhsébcbwnveccuccaci. 10

Pe DC Pa Stee Sa eae 1, 6. 7.

10, Il, 14, 16

oe a ES aoe eb kédbeuke cites ee eee 10

tS | eae” SAE Re eee RCE a Sd Nd Ag l, 6.

15, 16

Lt ed RE PEPE me. a. |

8-9 12, 13

| RES a et Ae a ee ANd Bn at ed 4

Federal Motor Vehicle Safety Standard 208,

Fr Gls SO bias overs see de oe ae vee es |. 3, 6, 8.

Ht, 12. 13

Miscellaneous:

H. Rep. No. 1776, 89h Cong., 2d Sess. (1966) ............ I]

S. Rep. No. 1301, 89h Cong., 2d Sess. (1966)....... 9. 10, 12

ee SN OT ee 16

49 Fed. Reg. 28,997, 29.001 (July 17, 1984) ............... 12

Hoenig, Resolution of “Crashworthiness” Design

Claims, 55 St. John’s L. Rev. 663 (1981) .............. 9

Souk, Airbag Litigation Crisis, Prod. Liab. Cases &

Trends (Prentice-Hall) p. 4 (Apr. 1987) ................ 9

Vi

a

Wilton. Federalism Issues in “No Airbag” Tort

Claims: Preemption and Reciprocal Comity,

61 Notre Dame L. Rev. | 1. 6, 9, 10-11

Wilton & Campbell, Effect of Federal Safety

Regulations on Crashworthiness Litigation, 22

Y

ABA. Tort & Ins. L.J. 54 ., 7) SPP Per ReeLEe

Vil

No. 87-1881

In the

Supreme Court of the United States

October Term, 1987

JAN MARIE WICKSTROM, by H. D. WICKSTROM

and JOHN RING, conservators of the

person and estate of JAN MARIE WICKSTROM,

Petitioner,

v.

MAPLEWOOD TOYOTA, INC., a Minnesota corporation,

TOYOTA MOTOR DISTRIBUTORS, INC., a California corporation,

TOYOTA MOTOR SALES, U.S.A., INC., a California corporation,

TOYOTA MOTOR CORPORATION, a Japanese corporation,

and LOUIS CHAPMAN,

Respondents

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF MINNESOTA

BRIEF IN OPPOSITION

CONSTITUTIONAL PROVISIONS, STATUTES,

AND REGULATIONS INVOLVED

The question presented by this petition for a wnt of certioran

involves Article VI, clause 2, of the United States Constitution

(“supremacy clause”); sections 1392(d) and 1397(c) of the National

Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. § 1381 er

seq. (“Safety Act”); and Federal Motor Vehicle Safety Standard 208,

49 C.F.R. § 571.208 (“FMVSS 208”). All of these constitutional

provisions, statutes, and regulations appear in the petition at pp.

2-3 and A-18 through A-20.

However, the petition fails to cite, set forth, or argue pertinent

provisions of the 1974 amendments to the Safety Act, as codified

in 1S U.S.C. § 1410b:

§ 1410b. Occupant restraint systems

(a) Amendment of Federal motor vehicle safety stand-

ard numbered 208; effective date. Not later than 60 days

after the date of enactment of this section, the Secretary

shall amend the Federal motor vehicle safety standard

numbered 208 (49 CFR 571.208), so as to bring such

standard into conformity with the requirements of para-

graphs (1), (2), and (3) of subsection (b) of this section.

Such amendment shall take effect not later than 120 days

after the date of enactment of this section.

(b) Federal motor vehicle safety standard requirements.

After the effective date of the amendment prescnbed

under subsection (a):

(1)

(2) Except as othermse provided in paragraph (3),

no Federal motor vehicle safety standard respect-

ing occupant restraint systems may—

(A) have the effect of requinng, or

(B) provide that a manufacturer is per-

mitted to comply with such standard by

means of,

an occupant restraint system other than a

belt system.

(3)

(A)

tr

(B) Paragraph (2) shall not apply to

any Federal motor vehicle safety stan-

dard which the Secretary elects to pro-

mulgate in accordance with the proce-

dure specified in subsection (c), unless it

is disapproved by both Houses of Con-

gress by concurrent resolution in accor-

dance with subsection (d). .. .

STATEMENT OF THE CASE

While fleeing Minneapolis police officers after a bank robbery on

March 31, 1983, Louis Chapman sped the wrong way down Inter-

state 94 in a fullsize 1973 Pontiac Catalina and smashed into a

subcompact 1983 Toyota Tercel owned and operated by petitioner

Jan Mane Wickstrom.

Following the accident, on May 15, 1985, petitioner brought

action in the Second Judicial District Court, County of Ramsey,

State of Minnesota, against Chapman, who has not made an

appearance in this matter, and the Toyota respondents, who com-

prise the chain of manufacture and distribution of petitioner's

vehicle. In her complaint against the Toyota respondents, petitioner

did not allege that any defect in the design or manufacture of her

automobile caused the accident itself; instead, she claimed, inter alia,

that the absence of airbags in the vehicle enhanced her injunes in

the accident (“no airbag claim”).

In response to petitioner’s no airbag claim, the Toyota respon-

dents moved for partial summary judgment on the ground that the

Safety Act and FMVSS 208, as amended by 15 U.S.C. § 1410b,

expressly and impliedly preempt common law actions seeking to

impose tort liability upon motor vehicle manufacturers who, in

accordance with federal law, install lap and shoulder belt protection

systems rather than airbags in passenger cars manufactured for sale

in the United States.

On March 12, 1987, the district court granted the motion, find-

ing both express and implied preemption. Pursuant to Rule 54.02

of the Minnesota Rules of Civil Procedure, the court also found

3

no just reason for delay of entry of final judgment dismissing peti-

uoner’s no airbag claim: thus, entry of final judgment on that claim

alone occurred on March 24, 1987. See Pet. App. A-8 to A-18

(“Order Granting Partial Summary Judgment” and “Corrected

Judgment’).

On June 19, 1987, petitioner appealed that-judgment to the

Minnesota Court of Appeals, which unanimously affirmed the dis-

trict court on December 22, 1987. See Wickstrom v. Maplewood

Tovota, Inc., 416 N.W.2d 838 (Minn. App. 1987), reprinted in Pet.

App. A-!1 to A-7.

On January 21, 1988, petitioner requested the Minnesota

Supreme Court to exercise discretionary review of the Court of

Appeals decision. However, in an order filed on February 17, 1988,

the Minnesota Supreme Court denied further review. See Pet. App.

A-| (“Order”).

On May 16, 1988, the Toyota respondents received this petition

for a wnt of certioran, which invokes this Court’s junsdiction pur-

suant to 28 U.S.C. § 1257(3).

Further proceedings on petitioner's other claims against respon-

dents have been held in abeyance in the state distnct court pending

appellate disposition of petitioner’s no airbag claim.

ARGUMENT

This Court should deny the petition for a wnt of certioran on

principally three grounds. First, the decision of the Minnesota Court

of Appeals does not conflict with any decision of this Court, a

federal court of appeals, or another state court of last resort.

Additionally, the decision is correct, conforming to the overwhelm-

ing weight of authonty on the question presented, and warranting

no further review by the Minnesota Supreme Court. Finally, the

Court should await consideration of the question presented by a

number of appellate courts rather than undertake this, the very first

appellate decision of its kind.

1. The Petition for a Writ of Certiorari Fails to Present a

Conflict Requiring Review by This Court.

Perhaps by oversight, the petition neglects to inform this Court

that the decision below constitutes the first and only appellate court

opinion on the preemptive effect of the Safety Act on no airbag

claims. As such, the decision cannot possibly conflict with any on-

point decision of this Court, a federal court of appeals, or another

State court of last resort.

Nevertheless, petitioner contrives a number of alleged conflicts in

an effort to obtain review on certioran pursuant to Rule 17.1(b)

and Rule 17.1(c). Those purported conflicts disappear upon critical

review.

a. No conflict between state courts of last resort.

On the basis of a few tral court decisions, petitioner presumes

(Pet. 4-5) that, “Had Petitioner been injured in Massachusetts,

California, Pennsylvania, or a number of other junsdictions, she

would have been able to make her airbag claim before a jury.” At

best, however, those decisions represent a minonty viewpoint! lack-

ing appellate acceptance by any state court at this time. Accord-

ingly, petitioner can only speculate that the appellate courts of other

states would reach a different result than the Minnesota Court of

Appeals, and she cannot substitute sheer speculation for actual con-

flict among state courts of last resort in seeking review on certiorani.

b. No conflict between a state court of last resort and

a federal court of appeals.

Nor can petitioner claim any conflict between the decision of the

Minnesota Court of Appeals and a decision of a federal court of

‘Petitioner purports to provide this Court with a complete “Summary of State

and Federal Cases Addressing Preemptive Effect of Safety Act on Airbag Claims”

(Pet. App. A-25 to A-28). However, that “Summary” omits 18 of the 46 cases

deciding the issue, including a number of unfavorable decisions which respondents

had previously identified for the courts—and petitioner—below. Moreover, peti-

tioner’s “Summary” erroneously includes a case dealing with the Safety Act's pre-

emption of “no rear seat shoulder harness claims.” not no airbag claims. For a list

of all known airbag preemputon decisions, both state and federal, see Appendix A-|.

5

appeals. No federal appellate court has addressed the preemptive

effect of the Safety Act on air bag claims; therefore, no conflict

could possibly exist between the decision below and a federal court

of appeals decision.

Nevertheless, petitioner attempts to manufacture a conflict by cit-

ing (Pet. 5-7) and appending (Pet. A-20 to A-25) twenty-one cases

which allegedly “concluded that Congress did not intend to preempt

common law claims” (Pet. 7). As recognized by the courts below,

petitioner either misreads or miscites each case. None of the cases

cited by petitioner declined to find preemption when the plaintiff's

common law action involved the same aspect of motor vehicle per-

formance or equipment as an on-point federal standard; rather, each

case concerned a federal motor vehicle safety standard governing

aspects of vehicle performance or equipment different from the

specific defect alleged by the plaintiff. See Wilton, Federalism Issues

in “No Airbag” Tort Claims: Preemption and Reciprocal Comity,

61 Notre Dame L. Rev. |, 17 n.108 & 24-27 (1985) (distinguishing

cases of the type cited by petitioner).

In this sense, petitioner’s authority actually confirms, rather than

conflicts, with the interpretation given to the Safety Act by the

court below. Section 1392(d), the preemption provision, preempts

those common law claims “applicable to the same aspect of per-

formance . ... or item of equipment” as a federal motor vehicle

safety standard; however, section 1397(c), the savings clause, pre-

serves any claims based on aspects of performance or equipment

not covered by federal regulation.

Significantly, therefore, none of the cases cited by petitioner

addresses the specific claim of defect (no airbags), the specific

federal motor vehicle safety standard (FMVSS 208), or the specific

aspect of vehicle performance or equipment (occupant restraint sys-

tems) at issue in this case. Accordingly, petitioner cannot fashion a

conflict between the Minnesota Court of Appeals decision in this

case and an on-point federal court of appeals decision. Indeed, no

such conflict could exist, given that the opinion below represents

the first appellate decision, federal or state, addressing the Safety

Act’s preemption of no airbag claims.

c. No conflict with any Supreme Court decision.

Failing to establish any conflict with a decision of another state

court of last resort or a federal court of appeals, petitioner turns to

selected decisions of this Court and seeks (Pet. 9 & 13) the benefit

of a presumption against preemption, especially where preemption

would leave a plaintiff without an adequate remedy at law. But, as

this Court observed in International Paper Co. v. Ouellette, \07 S.

Ct. 805, 811 (1987), that presumption simply means that the “courts

should not lightly infer pre-emption,” not that the courts can or

must overlook an actual conflict between federal and state law.

Thus, the preemption issue turns not on presumptions, but “on the

peculianties and special features of the federal regulatory scheme in

question.” City of Burbank v. Lockheed Air Terminal, Inc., 411

U.S. 624, 638 (1973). Here, the Safety Act—unlike the statutes

involved in the cases cited by petitioner—contains an express pre-

emption provision. Moreover, that provision ordy preempts common

law actions based upon “the same aspect of [vehicle] performance

. or item of equipment” as an on-point federal standard, rather

than occupies the entire field of motor vehicle regulation. Consis-

tent with the claimed presumption, therefore, petitioner retains an

adequate remedy at law in the form of her other common law

claims against respondents in this case.

Still lacking a direct conflict with a Supreme Court decision,

petitioner argues by anaiogy to Silkwood v. Kerr-McGee Corp.,

464 U.S. 283, 256 (1984), that Congress intended to “tolerate the

tension” between uniform federal standards and common law

damage awards (Pet. 12-13). How Congress evidenced that inten-

tion in the Safety Act remains unclear from the petition, since peti-

tioner never completes the analogy through any comparative analy-

sis of the statutes involved in this case and in Silkwood. In any

event, however, “the peculiarities and special features of the federal

regulatory scheme in question,” City of Burbank v. Lockheed Air

Terminal, Inc., 411 U.S. at 638, would defeat the analogy.? Unlike

the Safety Act, the Atomic Energy Act involved in Silkwood con-

2For a more detailed explanation of the statutory provisions and legislative his-

tory of the Safety Act in the context of this federal preemption issue, see pp.

9-11 and 16 wjra.

tains no express preemption provision. Moreover, Congress amended

the Atomic Energy Act to provide an indemnification scheme for

operators of federally licensed nuclear facilities, which would have

been totally unnecessary if Congress intended the Act to preempt

common law actions. See Silkwood v. Kerr-McGee Corp., 464 U.S.

at 251-56. In contrast, Congress amended the Safety Act to pro-

hibit the Department of Transportation from requiring airbags with-

Out pnor congressional approval and special hearing procedures,

thus reserving this particular issue to the federal governmert rather

than to state common law. See 15 U.S.C. § 1410b. Finally, judicial

recognition of no airbag claims would do far more than foster a

“tension” with FMVSS 208; it would destroy the standard. No air-

bag claims, if successful, would require a vehicle to contain what

FMVSS 208 does not require (airbags) and would forbid what

FMVSS 208 expressly permits (the manufacturer’s choice of an

approved occupant restraint system). See pp. 11-13 infra.

Thus, petitioner cannot claim as a basis for review on certioran

a direct conflict between the opinion below and any decision of the

Supreme Court. Nor can she create a conflict by analogy to other

decisions of this court, which turn on statutory provisions and legis-

lative histones unique to those cases.

2. The Minnesota Court of Appeals Reached the

Correct Result.

This Court should also deny the petition for a wnt of certioran

because the Minnesota Court of Appeals correctly decided the ques-

tion presented for review. The decision comports with the clear

weight of authority; the Minnesota Supreme Court found no cause

for discretionary review; and, in its argument for review, the peti-

tion ignores decades of Supreme Court precedent.

a. Comports with the clear weight of authority.

The essential correctness of the Minnesota Court of Appeals deci-

sion derives in part from the substantial, if not overwhelming,

weight of authority confirming its judgment. See note | supra. For

example, of the twenty federal district courts to consider the issue,

sixteen agree that the Safety Act, FMVSS 208, and 15 U.S.C.

8

§ 1410b either expressly or impliedly preempt the assertion of no

airbag claims. See Appendix A-1.

The majonty of state tnal courts concur in this view. See note |

supra and Appendix A-1. Even the contrary decisions tend to pre-

date the emerging federal case law and frequently consist of one-

page “summary orders . . . contain[ing] no analysis of the pre-

emption issue.” Cox v. Baltimore County, 646 F. Supp. 761, 763

n.3 (D. Md. 1986). At this time, moreover, only this case carnes

the impnmatur of appellate court review.

Well-considered academic commentary also supports the pre-

emption of no airbag claims. See Wilton, Federalism Issues in “No

Airbag” Tort Claims: Preemption and Reciprocal Comity, 61 Notre

Dame L. Rev. 1, 12-27 (1985); Wilton & Campbell, Effect of

Federal Safety Regulations on Crashworthiness Litigation, 22

A.B.A. Tort & Ins. L.J. 554, 561-67 (1987). See also Hoenig,

Resolution of “Crashworthiness” Design Claims, 55 St. John’s L.

Rev. 663, 706-16 (1981); Souk, Airbag Litigation Crisis, Prod. Liab.

Cases & Trends (Prentice-Hall), p. 4 (Apr. 1987).

b. Denial of discretionary review by the Minnesota

Supreme Court.

That the Minnesota Supreme Court decided to deny further

review also seems significant in this case. As an error correcting

body, the Minnesota Supreme Court had an opportunity to con-

sider all the arguments repeated in this petition for review. It

apparently found no error or other cause for discretionary review.

In fact, none exists.

c. Petitioner’s reliance on arguments discredited by

decades of Supreme Court precedent.

In 1966, Congress determined that “{t]he centralized, mass pro-

duction, high volume character of the motor vehicle manufacturing

industry in the United States requires . . . not only strong and

adequately enforced, but . . . uniform [motor vehicle safety stan-

dards] throughout the country.” S. Rep. No. 1301, 89th Cong., 2d

Sess. 4, reprinted in 1966 U.S. Code Cong. & Ad. News 2709,

2720. It therefore concluded that “the primary responsibility for

9

regulating the national automotive manufactunng industry must fall

squarely upon the Federal Government” and that the states should

play only “a consultive role in the setting of standards.” /d. at 2712

(emphasis added).

Accordingly, Congress enacted the National Traffic and Motor

Vehicle Safety Act and directed the Department of Transportation

to issue “reasonable, practicable and appropriate” federal motor

vehicle safety standards that “meet the need for motor vehicle

safety” throughout the country. See 15 U.S.C. § 1392(a), (f). To

further assure the “primary” role of the federal government in the

establishment of “uniform” motor vehicle safety standards, Congress

included a preemption provision in the Safety Act:

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 authonty

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.

Id. § 1392(d).

Rather than occupy the entire field of motor vehicle safety, sec-

tion 1392(d) only preempts state standards “not identical to” the

federal standards and “applicable to the same aspect of performance

. or item of equipment” as the federal regulations. The states

remain free under the Act to regulate aspects of performance or

items of equipment not governed by a federal standard or even to

enforce identical regulations on aspects of performance or equip-

ment covered by the federal standards.

Nevertheless, section 1392(d) contains an “unusually strong pre-

emption clause” in comparison to other federal statutes. As one

commentator explained:

It is noteworthy that the National Traffic and Motor

Vehicle Safety Act of 1966 is unlike other federal regula-

tory schemes, which set minimum standards and allow

States to impose more stmngent requirements. .. .

10

eens perme

. . . States may enforce only “identical” regulations

under 15 U.S.C. § 1392(d), not ones which are less or

even more demanding. The choice of the word “identi-

cal” rather than “inconsistent” manifests an apparent

intent to preempt all state regulations which do not mur-

ror the precise requirements of federal regulations pro-

mulgated under the Act, rather than merely those state

regulations which do not comport with the general poli-

cies underlying the Act.

This unusually strong preemption clause in the statute

was intended to express serious congressional concern

for the need for uniformity in safety standards for the

sake of both the automobile industry and the dnving

public... .

Wilton, 61 Notre Dame L. Rev. at 14-15 (footnotes omitted).

Or, as Congress itself summanzed the purpose of section 1392/d):

Basically this preemption subsection is intended to result

in uniformity of standards so that the public as weil as

industry will be guided by one set of cntena rather than

by a muluplicity of diverse standards.

H. Rep. No. 1776, 8%h Cong., 2d Sess. 17 (1966).

Upon this histoncal foundation, the proper application of section

1392(d) to petitioner’s no airbag claim becomes clear and evident.

Pursuant to its authonty under the Safety Act, the Department of

Transportation promulgated FMVSS 208, which now—and at the

time of manufacture —permitted the Toyota respondents to install

seat belts, without airbags, in petitioner's vehicle. Petitioner contends

that her vehicle should have contained both seat belts and airbags.

Because the requirement advocated by petitioner applies to “the

same .. . item of equipment” as FMVSS 208 (occupant restraint

systems) and because petitioner's requirement (both seat belts and

airbags) is “not identical” to FMVSS 208 (seat belts alone per-

mitted), section 1392(d) expressly preempts petitioner's no airbag

claim.

Even if not expressly preempted, petitioner's no airbag claim must

fall under the implied preemption doctnne “as an obstacle to the

—————

accomplishment and execution of the full purposes and objectives

of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67 (1941). In effect.

petitioner's no airbag claim would require what federal law makes

optional (the installation of airbags) and would forbid what federal

law expressly permits (the use of seat belts or other restraint sys-

tems without airbags). Cf Lawrence County v. Lead- Deadwood

School District, 469 U.S. 256 (1985) (state law requiring counties to

- distmbute federal funds in one specific way conflicted with federal

statute permitting counties to use such funds for any valid govern-

mental purpose); Fidelity Federal Savings and Loan Association v.

de la Cuesta, 458 U.S. 142 (1982) (state law precluding enforcement

of due-on-sale clauses in home mortgages conflicted with federal

regulation permitting, but not requiring, the use of such clauses).

More specifically, petitioner's no airbag claim would frustrate the

purposes of the Safety Act, FMVSS 208, and 15 U.S.C. § 1410b

in at least three ways.

First, allowing state courts and juries to determine the need for

airbags on an ad hoc basis would severely undermine the Safety

Act’s objective of “uniform [motor vehicle safety standards] through-

out the country.” See S. Rep. No. 1301, 89%h Cong., 2d Sess. 4,

reprinted in 1966 U.S. Code Cong. & Ad. News 2709, 2720. “[T]}he

vaganes of jury standards of safety could result in a different result

in each suit brought.” Hughes v. Ford Motor Co., 677 F. Supp.

76, 77-78 (D. Conn. 1987). Thus, rather than provide a uniform

standard on occupant restraint systems, FMVSS 208 would

succumb to a patchwork of different jury standards in different

states and, in all likelihood, different standards set by different

junes in the same state. Accord, Cox v. Baltimore County, 646 F.

Supp. at 764; Vanover v. Ford Motor Co., 632 F. Supp. 1095,

1096 (E.D. Me. 1986).

Second, judicial recognition of no airbag claims would effectively

compel automobile manufacturers to abandon any design that

omitted airbags, thereby depmving manufacturers of the flexibility

that the Department of Transportation found necessary “for indus-

try to develop the most effective [restraint] systems.” See 49 Fed.

Reg. 28.997, 29.001 (July 17, 1984). FMVSS 208 grants manufac-

turers a choice among approved occupant restraint systems. In

contrast:

|?

Court decisions that create common law liability tor a

manufacturer's failure to install the air bag option in an

automobile will effectively force automobile manufactur-

ers to choose the air bag option over statutonly approved

options. An automobile manufacturer taced with the

prospect of choosing the air bag option, or facing poten-

tial exposure to compensatory and punitive damages for

failing to do so, has but one realistic choice. A court

decision that removes the element of choice authonzed

in the occupant crash safety regulations will frustrate the

Statutory scheme.

Baird v. General Motors Corp., 654 F. Supp. 28, 32 (N.D. Ohio

1986). Accord, Wattelet v. Tovota Motor Corp., 676 F. Supp. 1039,

1041 (D. Mont. 1987); Vanover v. Ford Motor Co., 632 F. Supp.

at 1096; Donnelly v. General Motors Corp., No. 86-576-JU (D.

Ore. July 31, 1987), slip op. at 10; Vasquez v. Ford Motor Co.,

No. 86-0657 PHX WPC (D. Anz. Nov. 4, 1986), slip op. at 2.

Finally, no airbag litigation would contravene the federal purpose

underlying enactment of 15 U.S.C. § 1410b, which prohibits the

Department of Transportation from requinng airbags without pnor

Congressional approval after special hearing procedures. See 15

U.S.C. § 1410b(b)-(d). To allow state court junes, but not the fed-

eral agency charged with responsibility for motor vehicle safety, to

require airbags without special hearing procedures and pnor Con-

gressional approval would clearly violate the purpose and intent of

section 1410b. Accord, Staggs v. Chrysler Corp., 678 F. Supp. 270,

272 (N.D. Ga. 1987); Wattelet v. Tovota Motor Corp., 676 F.

Supp. at 1040; Baird v. General Motors Corp., 654 F. Supp. at

32, Vasquez v. Ford Motor Co., slip op. at 2; Schwartz v. Volvo,

N. Am. Corp., No. CV 86-7701 (Ala. Cir. Ct. Mar. 10, 1988), slip

op. at 5, 6.

Significantly, petitioner does not deny the existence of these~pur-

poses or policies underlying the Safety Act, FMVSS 208. or 15

U.S.C. § 1410b. Instead, as she has done throughout the appellate

proceedings, petitioner repeats three arguments,’ all of which have

been discredited by decades of Supreme Court precedent.

Petitioner first argues (Pet. 7) that the express preemption provi-

sion, section 1392(d), applies only to state statutes or administrative

regulations, not to state court judgments. The Minnesota Court of

Appeals, 416 N.W.2d at 840, correctly rejected this artificial distinc-

tion on the basis of this Court's celebrated language in San Diego

Building Trade Council v. Garmon, 359 U.S. 236, 247 (1959):

[R]egulation can be as effectively exerted through an

award of damages as through some form of preventive

relief. The obligation to pay compensation can be, indeed

is designed to be, a potent method of governing conduct

and controlling policy. Even the State’s salutary effort to

redress private wrongs or grant compensation for past

harm cannot be exerted to regulate activities that are

potentially subject to the exclusive federal regulatory

scheme.

Accord, International Paper Co. v. Ouellette, 107 S. Ct. 805, 813

& 815 n. 19 (1987); Chicago & Northwestern Transporation Co. \

Kalo Brick and Tile Co., 450 U.S. 311, 327 (1981).

‘Petitioner argues additionally (Pet. 9-11) that the Minnesota Court of Appeals

rmusconstrued the intent of Congress regarding federal preemption of common law

claims. This argument, of course, hinges upon petitioner's musinterpretation of the

savings clause, see pp. 15-16 infra, and legislative history, see pp. 9-11 supra, ot

the Safety Act. Petitioner also argues (Pet. 11-12) that a letter from a former

National Highway Traffic Safety Administration staff member to the plainuff’s

attorney in Dawson v. Chrysler Corp., 630 F.2d 950 (3rd Cir. 1980), establishes

that Congress did not intend the Safety Act to preempt common law claims. Peti-

uoner musconstrues the substance of this letter and, indeed, repeats the mustakes

discussed at p. 6 supra. The letter only purports to address whether the Safety

Act occupies the entire field of regulation, not whether an on-point federal stan-

dard preempts a non-identical state regulation applicable to the same aspect ot

vehicle performance or equipment. Indeed, the letter had no reason to discuss the

preemption issue before this Court: (1) because the federal standard at issue 1’

Dawson, FMVSS 214, applied to side door strength and therefore could not con-

flict with the plainuff's alleged detect, insufficient mgidity of the vehicle trame, and

(2) because Dawson involved a type of vehicle, a local government police car

which the Safety Act specifically excludes from operation of the preemption

provisic yn

14

Petitioner next asserts (Pet. 8) that common law damage awards

would complement, rather than frustrate, the Safety Act’s concern

for highway safety. This Court recently highlighted the fallacy of

that argument in /niernational Paper Co. v. Ouellette, at 813, which

explicitly held that federal preemption analysis turns not only on

the pnmary purpose of the federal statute at issue, but also on the

method selected by Congress for accomplishing that purpose.

In determining whether Vermont nuisance law “stands

as an obstacle” to the full implementation of the [Clean

Water Act], it is not enough to say that the ultimate

goal of both federal and state law is to eliminate water

pollution. A state law also is preempted if it interferes

with the methods by which the federal statute was

designed to reach this goal.

Thus, while Congress may have viewed highway safety as the pn-

mary goal of the Safety Act, it also believed in the establishment

of uniform safety standards as the best method to achieve that goal.

Accordingly, the Minnesota Court of Appeals properly

recognized that the [Safety Act’s] legislative history makes

it clear that a “significant subsidiary purpose — itself

intended to promote the pmmary purpose — was to create

uniform motor vehicle safety standards.” Allowing indi-

vidual state junes and courts to create different standards

clearly would frustrate this purpose.

416 N.W.2d at 841, citing Cox v. Baltimore County, 646 F. Supp.

at 764; Vanover v. Ford Motor Co., 632 F. Supp. at 1096.

Finally, petitioner argues (Pet. 10-11) that the savings clause,

section 1397(c), preserves all common law claims and therefore her

no airbag Claim as well. This argument, however, rests on a fun-

damental misinterpretation of the purpose and effect of general

savings clauses in federal statutes. As the Minnesota Court of

Appeals recognized, 416 N.W.2d at 840, general savings clauses

cannot preserve common law claims that frustrate the underlying

purposes of a federal act. See, e.g., /nternational Paper Co. v.

Ouellette, 107 S. Ct. at 812 (Clean Water Act preempts Vermont

common law nuisance action as inconsistent with federal regulatory

1S

structure, despite savings clause providing that “{nJothing in this

section shall restnct any mghts which any person . . . may have

under common law . . . to seek any other relief”); Offshore Logis-

tics, Inc. v. Tallentire, 477 U.S. 207 (1986) (Death on the High Seas

Act preempts state wrongful death statute as “unduly divergent”

from uniform mantime law sought by Congress, despite savings

clause stating that “(t]he provisions of any state statute giving or

regulating mghts of action or remedies for death shall not be

affected by this chapter”). Instead, savings clauses serve only to

defeat a claim that Congress has occupied an entire field of regula-

tion. See, e.g., Chicago & Northwestern Transportation Co., 450

U.S. at 328 (savings clauses appear in federal statutes because,

without them, “it might have been claimed on Congress having

entered the field, the whole subject of liability . . . has been with-

drawn from the state courts”).

Only in this context does the legislative history of the Safety Act's

savings Clause make sense. If Congress had been silent on the future

of common law actions after the Safety Act, the courts might have

concluded from the presence of a preemption provision in the Act

and from the comprehensive federal standards to follow that Con-

gress intended to occupy the entire field of motor vehicle safety.

Congress therefore included a savings clause in the Act so that in

the words of Senator Magnuson, upon whom petitioner so heavily

relies, “[c]ompliance with federal standards would not necessarily

shield any person from broad liability in common law.” See |11

Cong. Rec. 14230 (1966) (emphasis added). The “not necessarily”

remarks thus confirm what respondents said at the outset: section

1392(d) preempts those common law claims “applicable to the same

aspect of performance . . . or item of equipment” as a federal

motor vehicle safety standard; however, section 1397(c) saves any

claims based on aspects of performance or equipment not covered

by a federal regulation.

rename IIIA

3. Supreme Court Review of the Question Presented Seems

Premature at This Time.

The question presented in this case—the preemptive effect of the

Safety Act on no airbag claims—has not been decided by any

other appellate court, state or federal; it has in fact just begun the

“summenng” process. The First Circuit heard argument on this ques-

tion in December 1987, but has not yet decided the case. Wood v.

General Motors Corp., 673 F. Supp. 1108 (D. Mass. 1987), appeal

pending, No. 87-1750 (Ist Cir.). Two cases presenting this issue also

remain on appeal in the Tenth Circuit. Richart v. Ford Motor Co.,

681 F. Supp. 1462 (D.N.M. 1988), appeal pending, No. 88-8012

(10th Cir.) (neither bnefed nor argued); Kitts v. General Motors

Corp., No. 85-0967 JC (D.N.M. Sept. 29, 1987), appeal pending,

No. 87-2517 (10th Cir.) (briefed, but not argued).

Consideration of this question in a number of different contexts

by a number of different courts would undoubtedly benefit this

Court in its decision process. Especially here, therefore, where the

Minnesota Court of Appea!s resolved the preemption issue in the

correct manner, where the decision conforms to the clear weight of

federal authority, and where no conflict arises under Rule 17, there

exists no reason why this Court should exercise discretionary review

over the very first case

CONCLUSION

The Court should deny this petition for a wnt of certioran.

Respectfully submitted,

BOWMAN AND BROOKE

David W. Graves, Jr.

Wayne D. Struble

Cynthia J. Atsatt

600 Midwest Plaza West

: 801 Nicollet Mail

Minneapolis, Minnesota 55402

(612) 339-8682

Attorneys for Respondents

Of Counsel:

Toyota Motor Sales, U.S.A., Inc.

Douglas M. West, General Counsel— Product Law

Edward O. Hunter, Managing Counsel

19001 S. Western Avenue

Torrance, California 90509

(213) 618-4798

SUMMARY OF FEDERAL AND STATE CASES

ADDRESSING PREEMPTIVE EFFECT OF

SAFETY ACT ON NO AIRBAG CLAIMS

Federal Court

Baird v. General Motors Corp., 654 F. Supp. 28 (N.D. Ohio

1986) (implied, but no express, preemption)

Bass v. General Motors Corp., No. SA-86-CA-279 (W.D. Tex.

July 24, 1987) (express and implied preemption)

Cox v. Ford Motor Co., 646 F. Supp. 76! (D. Md. 1986)

(express and implied preemption)

Distler v. General Motors Corp., No. 4-86-821 (D. Minn.

Sept. 3, 1987) (express and implied preemption)

Donnelly v. General Motors Corp., No. 86-576-JU (D. Ore.

July 31, 1987) (express and implied preemption)

Fisher v. Chrysler Corp., No. 85-699-T (D. Mass. Feb. 9,

1987) (no preemption) (no wntten order or memorandum)

Heftel v. General Motors Corp., No. 85-1713 (D.D.C. Feb.

23, 1988) (express and implied preemption)

Hughes v. Ford Motor Co., 677 F. Supp. 76 (D. Conn. 1987)

(implied preemption)

Kelly v. General Motors Corp., No. 87-0828 (W.D. La. Feb.

18, 1988) (implied preemption)

Kitts v. General Motors Corp., Civ. No. 85-0967 JC (D.N.M.

Sept. 29, 1987), interlocutory review granted, No. 87-2517

(10th Cir.) (express and implied preemption)

Murphy v. Nissan Motor Corporation in U.S.A., 650 F.

Supp. 922 (E.D.N.Y. 1987) (no preemption)

Richart v. Ford Motor Co., 681 F. Supp. 1462 (D.N.M. 1988)

interlocutory review granted, No. 88-8012 (10th Cir.) (no

preemption)

A-|

Ritt v. General Motors Corp., No. 86C1737 (N.D. Ill. Jan.

20, 1988) (express and implied preemption)

Schick v. Chrysler Corp., 675 F. Supp. 1183 (D.S.D. 1987)

(implied, but no express, preemption)

Staggs v. Chrysler Corp., 678 F. Supp. 270 (N.D. Ga. 1987)

(implied, but no express, preemption)

Surles v. Ford, No. CA487-270-K (N.D. Tex. May 10, 1988)

(express preemption)

Vanover v. Ford Motor Co., 632 F. Supp. 1095 (E.D. Mo.

1986) (express and implied preemption)

Vasquez v. Ford Motor Co., No. CIV 86-0657 PHX WPC

(D. Anz. 1986), motion for reconsideration denied, No.

CIV 86-0657 PHX WPC (D. Ariz. Feb. 19, 1987)

(express and implied preemption)

Wattelet v. Toyota Motor Sales, U.S.A., Inc., 676 F. Supp.

1039 (D. Mont. 1987) (express and implied preemption)

Wood v. General Motors Corp., 673 F. Supp. 1108 (D. Mass.

1987), interlocutory review granted, No. 87-1750 (Ist Cir.)

(no preemption)

State Court

Aronowitz v. General Motors Corp., No. 23118 84 (N.Y.

S. Ct. Mar. 18, 1988) (preemption)

Barfels v. Holman Imports, Inc., No. 85-1901-CB (Fla. 17th

Cir. Ct. Aug. 20, 1986) (no preemption)

Burge v. American Honda Motor Co., Inc., No. 41-75-75

(Sup. Ct. Cal. June 30, 1987) (no preemption)

Gardner v. Honda Motor Company, Litd., No. H-72107

(N.Y. S. Ct. Aug. 26, 1987) (preemption)

Garman v. Mazda Motor Corp., No. 85-13839-F (Tex. 116th

Dist. Ct. Apr. 6, 1988) (preemption)

A-2

Gingold v. Audi-NSU-Auto Union A.G., No. 6155 (Pa. Ct.

Cmmn. Pleas (May 12, 1988) (express and implied pre-

emption, but summary judgment denied on other grounds)

Groves v. Chrysler Corp., No. 84-7-302 (Ore. Sth Cir. Ct.

Mar. 15, 1988) (express preemption)

Kimbrel v. Jones, No. 85V-009 (Bleckley Cty. Ga. Sup. Ct.

Nov. 19, 1987), cert. granted, No. 76473 (Ga. Ct. App.)

(no preemption)

Little v. Chrysler Corp., No. 8411-103 (Ore. Cir. Ct. Mar.

15, 1988) (express preemption)

Lynch v. Mims, No. GCG 85-0019 (Fla. 10th Cir. Ct. Aug.

20, 1985) (no preemption)

Mc Laughlin v. General Motors Corp., No. LK-27-2, (Va. Cir.

Ct. May 2, 1988) (preemption)

Mackey v. American Honda Motor Co., No. 83CV-O8-4508

(Ohio Ct. C.P. Feb. 17, 1987) (preemption)

Morgan v. Noble, No. 84-C1-136 (Ky. Cir. Ct. Feb. 17, 1985)

(no preemption)

Munson v. Ford Motor Co., No. B-840,570 (Tex. 163rd Dist.

Ct. May 16, 1986) (no preemption)

Pederson v. Ford Motor Co., No. 3AN-85-15565 (Alaska

Super. Ct. Sept. 24, 1987) (preemption)

Phillips v. Namie, No. 85-33951-CA-O07 (Fla. Iith Cir. Ct.

Sept. 22, 1986) (preemption)

Picadio v. General Motors Corp., No. GD-85-14613 (Pa. Ct.

C.P. Dec. 28, 1987) (no preemption)

~ Puzio v. General Motors Corp., No. L-)72325-85 (N.J. Sup.

Ct. Mar. 27, 1987) (preemption)

Ross v. Ford Motor Co., No. CV-119361 (Ohio Ct. C.P.,

May 5, 1987) (preemption)

A-3

Russell v. Johnson, No. 83-3931 CA-WJN (Fla. 20th Cir. Ct.

July 17, 1987) (no preemption)

Salinas v. Yarborough, No. 85-6068-B (Tex. 117th Dist. Ct.

Oct. 13, 1987) (no preemption)

Schwartz v. Volvo, N. Am. Corp., No. CV 86-7701 (Ala. Cir.

Ct. Mar. 10, 1988) (express and implied preemption) ~

Soboscienski v. Ford Motor Co., No. 2NO-85-246 (Alaska

Super. Ct. Oct. 28, 1986) (express preemption)

Steenbergen v. Ford Motor Co., No. 85-15718-C (Tex. 68th

Dist. Ct. June 30, 1986) (no preemption)

Sutton v. Allenberg, No. 6551 (Id. Dist. Ct. Feb. 25, 1988)

(preemption)

Wolfe v. General Motors Corp., No. CV 8720704 (Ohio Ct.

C.P. Mar. 17, 1988) (preemption)

A-4