Petition for Writ of Certiorari — Black v. Delta Air Lines, Inc.
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FILED
“03 861 DEC 1 0 2003
No.
Jn The
Supreme Court of the Gnited States
¢
ROBERT C. BLACK,
Petitioner,
V.
DELTA AIR LINES, INC. and AL PEREZ,
Respondents.
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On Petition For Writ Of Certiorari
To The Supreme Court Of Texas
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PETITION FOR WRIT OF CERTIORARI
+
RONALD E. HARDEN GABRIEL H. ROBLES
DOROTHY J. HARDEN Attorney at Law
THE LAW OFFICES OF Counsel of Record
RONALD E. HARDEN 8828 North Stemmons
113 West Mulberry Freeway, Suite 143
Kaufman, Texas 75142 Dallas, Texas 75247
Telephone: (972) 932-0600 Telephone: (214) 361-2411
Telecopier: (972) 932-0602 Telecopier: (214) 361-7074
Counsel for Petitioner
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED
1. Whether the Airline Deregulation Act of 1978, 49
U.S.C. § 41713(b)(1) (the “ADA”), preempts state com-
mon law claims for breach of contract, negligent mis-
representation, and fraud against an airline and a gate
supervisor for failing to honor confirmed first-class res-
ervations on a flight and for representations made in
relation to those reservations.
2. Whether the Department of Transportation (“DOT”)
regulations regarding oversales and notice-of incorpo-
rated terms, 14 C.F.R. §§ 250.1-.11 and 253, which ap-
ply to airline contracts of carriage, require preemption
of state common law claims for breach of contract, neg-
ligent misrepresentation, and fraud under the ADA.
ii
TABLE OF CONTENTS
Page
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SE A CREED vosiuntimmckcimaiamaannenaae il
TABLE OF AUTHORED unccsccccccsesecesvesensossentnsenconensone iv
CO EET RIEU GTR sicisevsakiasssinoninteatenmadioeineia peclnaacints 1
FU EON sii sansinscntacavassaesnabiiae gmail 1
CONSTITUTIONAL AND STATUTORY PROVISIONS
EEO ARIE EBED ssincccciensciiniinerasiniubnadiad aman auamaliaaias 1
SF LARA EDOEREN ES IE LEGER AMIE ovccavcecxsnivscinncieocieniawsnanions 2
ARGUMENT AND REASONS FOR GRANTING THE
WHITE E ksstisssienvdunicaciialeemeaieaibiaaemaaeee icici 5
I. The Supreme Court of Texas Ignored the Fun-
damental Purpose of the ADA and Held, Con-
trary to American Airlines, Inc. v. Wolens, that
the ADA Preempts a Routine Breach of Contract
Claim by a Passenger Against an Airline............. 6
II. This Court, Not the Supreme Court of Texas,
Should Settle the Important Federal Issues of
Whether the ADA Preempts State Common
Law Claims for Fraud and Negligent Misrep-
POR nenhisrtcrinncnccincensnniaedadaeauaen 11
III. The Supreme Court of Texas Interpreted
“Services” Under the Preemption Provision of
the ADA, an Important Federal Question that
has Divided the Courts of Appeals and Should
be Settled by This Court Alone ...................000006 13
IV. The State Court Has Interpreted Federal
Regulations Regarding Denied Boarding
Compensation as Barring Common Law
Claims Under State Law and Rendering Pas-
sengers Like Black Without a Remedy.............. 14
ili
TABLE OF CONTENTS — Continued
Page
A. The Federal Regulations on Oversales, 14
C.F.R. §§ 250.1 through 250.11, Do Not
Preempt Biack’s CHAM ...........cccccssesssscccsoes 15
B. 14 C.F.R. § 250.6 Does Not Bar Black’s
ee re Te cineca cn adacet avandia tbaabeninenive 16
C. 14C.FR. § 250.9(b) Does Not Apply Only if
a Passenger is Eligible for Denied Board-
BEN TOTTI oats vcsssvcnssesscsncnsseconcesexeose 18
V. The State Court Decision Reflects an Overly
Broad Application of ADA Preemption and
This Court Should Step in to Provide Consum-
ers Like Black With a Meaningful Remedy
PIE TE FAP IIOD ona s se scsssorsivvsccsrssvsccnserersessese 20
NN cnt Siaeeskantscancarbeissiesstactsbenishingenenstes 22
lV
TABLE OF AUTHORITIES
CASES
Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504
CRD cinksnseiiransstntociesnnentitniontaenseionpeubehiocanuemenaniniiinds
American Airlines, Inc. v. Wolens, 513 U.S. 219
(FID sttene vstienianhseean'dnsnsansanvainseasvenbiaens 5, 6, 7, 8, 9,
Bayne v. Adventure Tours USA, Inc., 841 F. Supp.
ee, es is ct cciessiiasinievclaubided tadtcbiiaktneendenes
Cal. Div. of Labor Standards Enforcement v.
Dillingham Constr., N.A., 519 U.S. 316 (1997)......
Charas v. Trans World Airlines, Inc., 160 F.2d 1259
(9th Cir. 1998) (en banc), op. amended on denial
of reh’g, 169 F.3d 594 (9th Cir. 1999)......... eee
Chukwu v. Board of Directors of Varig Airlines, 880
PF. Bet. BEL DD. Bates, TODG) occ ccrecensresievccscccescavssces
Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992)
DeBuono v. NYSA-ILA Medical & Clinical Servs.
Festal, GOO UB. DO IE) as sasessensscnesssericinasncerseisiess
Decker v. Browning-Ferris Industries of Colo., Inc.,
DE FB Ge CCN. FOG) vine sc iisicscnsicsinsscnscsessssnviens
Duncan v. Northwest Airlines, Inc., 208 F.3d 1112
(9th Cir.), cert. denied sub nom., Northwest Air-
lines, Inc. v. Duncan, 531 U.S. 1058 (2000)............
Hodges v. Delta Airlines, Inc., 44 F.3d 334 (5th Cir.
I i aa a arenes
Lathigra v. British Airways PLC, 41 F.3d 535 (9th
ARE IE scciccstsescenearenTbninicaniansioindeniaiuuanadunnsteaitaaee
Morales v. Trans World Airlines, Inc., 504 U.S. 374
(Asis ss ci case tad citn tnismiédddantabhaenaaiereanbome 5, 6,
10, 21
TABLE OF AUTHORITIES — Continued
Page
Nader v. Allegheny Airlines, Inc., 426 U.S. 290
(FFP tctintvehicavicumaadnieiane daa 16
Sedigh v. Delta Airlines, Inc., 850 F. Supp. 197
FO Re: RRO AORN MIWA aE PMU Ma ce iPea yeh ty 12
Smith v. Comair, Inc., 134 F.3d 254 (4th Cir. 1998).......... 14
Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164
2 SE GA SEE takai ae ee 13
Travel All Over the World, Inc. v. Kingdom of Saudi
Arabia, 73 F.3d 1423 (7th Cir. 1996)..............0.06.. 8, 12, 14
West v. Northwest Airlines, Inc., 995 F.2d 148 (9th
Cir. 1993), cert. denied, 510 U.S. 1111 (1994)................ 12
Woodson v. U.S. Airways, Inc., 67 F. Supp. 2d 554
COR er Gs RUNG cssssestncsenanianisinnncesiccmsadeinissaeane ore 12
UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358
UFO xchnssdsosiinevasnnsuiaguniienngiieloateiaiianie de aaa ee 15
CONSTITUTIONAL AND STATUTORY PROVISIONS
7 SR. I. Fe ik kissed ec ee 2
ee BAe BPP sivcnstintercdcscidonmadanies sigsivaueninicaannciae 1
GP ARS, FG re wtsscnsnccseseicnaiindacn eee 2
REGULATORY MATERIALS
RE CPR. BE BOO BAG oink cceivscrcrernceutanen 2, 15
BG GT BO itisnsnrsisiesaniionissietnene eee 11
Re CAF I sonceinistinsiccrticianiandenaee 19, 20
BE CA ae I wctisinitsntcnntonseantecanuinianae aan ee 17
Be ee vs evmnionieciemaaaleinean 16, t7, 19, 20
TABLE OF AUTHORITIES — Continued
Page
Rae sO IN visusincccsccunsenshiiinsetedsrioomiatiamenamedaa 19
BAe ee ID cinisovsieiessnnvvsnnrtsacmesasineneseaate 17, 18, 19
Re ee i ROOD siecessasasssnsscsesyicnasentieoonaniiauanielians 2
Ga Bh it skcterrerirevicmasicoanimamninnines 7
14 C.F.R. § 399.110 repealed by 68 Fed. Reg. 43882-
ee PO A, Be ostkescenevinininccsacntssinatovintiadinntonminiana 20
43 Fed. Reg. 24277, 24279 (June 5, 1978)...............ce0eeeeees 11
43 Fed. Reg. 24277, 24281-82 (June 5, 1978)................0008 11
47 Fed. Reg. 52128-02, 52129 (Nov. 19, 1982).................... 7
‘47 Fed. Reg. 52980, 52983 (Nov. 24, 1982).................. 15, 17
; MISCELLANEOUS
H.R. Conf. Rep. No. 95-1779, 95th Cong., 2d Sess.
Bh POD icicascrasivspinbeneusnctenniabionua mina 9
Daniel Rosenthal, Note, Legal Turbulence: The
Court’s Misconstrual of the Airline Deregulation
Act’s Preemption Clause and the Effect on Pas-
sengers’ Rights, 51 Duke L.J. 1857 (2002)..................... 11
1
OPINIONS BELOW
The opinion of the Supreme Court of Texas (App. 1-26)
is reported at 116 S.W.3d 745 (Tex. 2003). The opinion of
the Tenth Court of Appeals of Texas (App. 30-53), was
originally unpublished, but the Supreme Court of Texas
ordered it published and the court of appeals’ opinion
appears at 2002 WL 32156264 (Tex. App. — Waco 2002).
The district court issued no opinion and district court
judgment (App. 54-56) is unreported.
¢
JURISDICTION
The Supreme Court of Texas issued its judgment and
opinion on June 26, 2003. On September 11, 2003, the
Supreme Court of Texas granted Robert C. Black’s timely
filed motion for rehearing in part (App. 1-2), and a cor-
rected judgment and opinion issued that day. (App. 3-26).
The jurisdiction of this Court is invoked under 28 U.S.C.
§ 1257/(a).
¢
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
The Supremacy Clause of the Constitution provides
that:
This Constitution, and the Laws of the United
States which shall be made in Pursuance thereof;
and all Treaties made, or which shall be made,
under the Authority of the United States, shall
be the supreme Law of the Land; and the J udges
in every State shall be bound thereby, any Thing
9 7
in the Constitution or Laws of any State to the
Contrary notwithstanding. 7
U.S. Const. art. VI, cl. 2.
The relevant preemption provision of the ADA, 49
U.S.C. § 41713(b)\(1) is reproduced at App. 57-58. The
relevant regulations adopted by the Department of Trans-
portation (“DOT”) applicable to this case, 14 C.FR.
§§ 250.1-250.11, 253.1-253.8 (2002), are reprinted at App.
58-74."
¢
STATEMENT OF THE CASE
Robert C. Black (“Black”) brought suit against Delta
Air Lines, Inc. (“Delta”) and a Delta supervisor, Al Perez
(“Perez”), for damages for breach of contract, negligent
misrepresentation, and fraud/intentional misrepresenta-
tion arising out of the failure to honor two confirmed first-
class reservations for air travel and for the representa-
tions made regarding those tickets. On June 23, 1995,
Black purchased two first-class tickets for Delta flight 661
leaving from Dallas/Fort Worth the afternoon of the 23rd
* On September 8, 2003, three days before the Texas supreme court.
issued its corrected judgment and opinion, the DOT promulgated
certain revisions to Part 250 of the Code of Federal Regulations,
specifically 14 C.F.R. §§ 250.1, 250.2, 250.2b, 250.5, and 250.9, to take
effect October 8, 2003. 68 Fed. Reg. 52835 (Sept. 8, 2003). These
revisions provided technical corrections to the regulations at issue, such
as changing references from the former regulatory board to the DOT.
Because only the 2002 regulations were brought to the state supreme
court’s attention by Delta and Perez (Pet. for Rev. at App. 5), Black
reproduces those regulations in his Appendix.
3
and arriving in Las Vegas, Nevada at 3:55 p.m. with a
return trip on June 25, 1995, from a Dallas travel agency.
Black bought the tickets so that he and his wife, Mary,
could have a romantic weekend together to repair his
damaged marriage. Black planned the surprise trip as well
as several activities, including a leisurely dinner and
attending a Tom Jones concert the evening of their arrival.
The invoices for the tickets Black received from the
travel agency reflected two first-class reservations on
flight 661 and the return flight. Although the invoices
showed seat assignments for Black for both directions, the _
_ invoice for Mary Black’s ticket reflected a seat assignment
only for the réturn flight. The invoice for Mary Black’s
ticket reflected first-class reservations for both directions.
Each ticket purchased by Black indicated that they were
“Issued by DELTA AIRLINES INC” and reflected first-
class travel for the Blacks on flight 661 and the return
flight.
After receiving the tickets, Black departed for the
airport, fully expecting that both he and his wife would fly
first class together as planned. At no time prior to his
arrival at the airport, did anyone at Delta or the travel
agency ever inform him there was any problem with the
reservations or the two first-class seats that he had
purchased were incorrect in any way. In fact, the travel
agent and manager of the travel agency specifically
represented to Black that he had two confirmed first-class
tickets.
When Black arrived at the gate, Black requested
adjacent seats in first class, and the gate agent responded
“Tl see what I can do.” While in the process of boarding,
Perez, a Delta gate supervisor, appeared and informed
4
Black that he did not have two confirmed first class seats
for the flight. According to Delta, Delta had a confirmed
first-class seat for Black, but only a confirmed coach seat
for Black’s wife, who Delta placed on a priority waiting list
for first class. Perez and the travel agent spoke on the
telephone, and the travel agent insisted that Black had
two confirmed first-class tickets.
Delta and the airline industry routinely encounter the
situation at issue in this case. Passengers, in many cases,
show up for flights with confirmed tickets but no reserva-
tions. Further, Delta’s reservations system commonly
failed to confirm a reservation for a passenger under a
rival reservations system that the travel agency used in
this case.
In response to the Blacks’ plight, Delta offered Black
some options: the Blacks could sit together in coach for the
flight; they could fly separately on the flight; or they could
fly first class on a later flight. Each of the alternatives
claimed by Delta included free travel vouchers for coach
seats. Because the alternatives were unacceptable given
the purpose of the trip and the schedule, Black rejected
Delta’s proposals and made other flight arrangements,
specifically, he hired a private air carrier to transport him
and wife to Las Vegas.
—
Thereafter, Black sued Delta for breach of contract
and sued both Delta and Perez for intentional misrepre-
sentation and negligent misrepresentation. Delta and
Perez moved for summary judgment on several grounds,
including preemption under the ADA. (App. 7-8, 33). The
trial court entered a take nothing summary judgment in
favor of Delta and Perez. (App. 54-56). Black appealed.
5
The state court of appeals reversed the trial court
judgment and remanded the case for trial. (App. 30, 51).
After undertaking considered analysis of the statute, case
law, and federal regulations, the court of appeals held that
the ADA did not preempt Black’s claims against Delta for
breach of contract, (App. 35-43), or his claims against
Delta and Perez for fraud and negligent misrepresenta-
tion. (App. 44-46).
Delta and Perez petitioned the Texas supreme court
for review of a single issue — preemption. (App. 8). After
reviewing the statutory framework of the ADA, Morales v.
Trans World Airlines, Inc., 504 U.S. 374 (1992), American
Airlines, Inc. v. Wolens, 513 U.S. 219 (1995), and certain
DOT regulations, the court held that the ADA expressly
preempted all of Black’s claims against Delta and Perez,
(App. 25-26), and left Black with no remedy whatsoever
against the airline.
¢
ARGUMENT AND REASONS
FOR GRANTING THE WRIT
This case raises important, recurring questions
relating to the preemptive scope of the ADA on state
common law claims, the meaning of the words “related to,”
“service,” and “enact or enforce a law” under the ADA, as
well as the proper application of Wolens, Morales, and the
relevant DOT regulations. This case directly impacts the
boundaries of federalism and states’ rights. It cries out for
review by this Court to safeguard the rights of the travel-
ing public to bring state law claims against the airlines for
their conduct and the agreements they undertake. Action
by this Court, it is hoped, wil! halt the ever-growing abuse
6
of the ADA as a means of achieving sweeping immunity for
the airlines — a result unintended by Congress and con-
trary to the purposes behind the ADA. Among other
things, the Texas supreme court’s holding that the ADA
preempts a routine breach of contract claim brought by a
passenger flies in the face of Wolens and does violence to
the deregulatory purpose behind the ADA for the airline
industry to “maximize reliance on competitive market
forces.” Morales, 504 U.S. at 378. Deregulation should
triumph, not the economic protectionism artificially
created by courts such as the Texas supreme court with its
overly expansive interpretation of the ADA.
In the wake of Morales and Wolens, lower courts’
application of ADA preemption has been turbulent and
contradictory. The legal principles at stake in this case
have ramifications for a wide variety of tort and contract
claims against the airlines, and review by this Court
would bring much needed guidance, certainty, and tran-
quility to this area of the law. For the reasons that follow,
the Court should grant certiorari review.
I. The Supreme Court of Texas Ignored the Fun-
damental Purpose of the ADA and Held, Con-
trary to American Airlines, Inc. v. Wolens, that
the ADA Preempts a Routine Breach of Con-
tract Claim by a Passenger Against an Airline.
Unfortunately, the state supreme court ruled, contrary
to Wolens, that the ADA preempts a breach of contract
claim against an airline. (App. 22-25). In reaching this
erroneous conclusion, the supreme court’s holding directly
contradicts Wolens and the cogent analysis of that case.
This case comes within the ambit of Wolens. The “terms
and conditions airlines offer and passengers accept” are
7
“privately ordered obligations” not amounting to a State’s
“enact[ment] or enforce[ment] [of] any law, rule, regula-
tion, standard, or other provision having the force and
effect of law” within the meaning of the ADA. Wolens, 513
U.S. at 228-29; see also Cipollone v. Liggett Group, Inc.,
505 U.S. 504, 526 (1992). Wolens should not be read so
strictly, as the supreme court of Texas did, that only “some
of” the terms and conditions airlines offer and passengers
accept are privately ordered obligations not preempted by
the ADA. (App. 12-13).
Further, the court below overlooked a key passage
from Wolens where this Court explicitly stated that the
“FAA's text, we note, presupposes the vitality of contracts
governing transportation by air carriers.” Wolens, 513 U.S.
at 230. The presence of federal regulations in a contract of
carriage poses no bar to the adjudication of a breach of
contract claim:
Section 411(b) [of the Federal Aviation Act] thus
authorizes airlines to “incorporate by reference in
any ticket or other written instrument any of the
terms of the contract of carriage” to the extent
authorized by the DOT. And the DOT's regula-
tions contemplate that, upon the January 1,
1983, termination of domestic tariffs, “ticket con-
tracts” ordinarily would be enforceable under
“the contract law of the States.” 47 Fed. Reg.
52129 (1982). Correspondingly, the DOT requires
carriers to give passengers written notice of the
time period within which they may “bring an ac-
tion against the carrier for its acts.” 14 C.FR.
§ 253.5(b)(2) (1994).
Id. Thus, the presence of federal regulations weakens the
conclusion reached by the state court that Black’s breach
of contract claims are preempted by the ADA. Nor can it be
8
said that Black’s claims impermissibly raise the spectre of
intrusive regulation. (App. 20).’
The court overstated its concerns that Black’s claims
have any potential for intrusive regulation of airline
business practices. This Court recognized in Wolens, the
essence of contract law is that this body of law is not
“diverse, nonuniform, and confusing.” Jd. at 233. This
Court found no large risk of nonuniform adjudication of a
state court enforcement of the terms of a uniform agree-
ment prepared by an airline and entered into with its
passengers nationwide. Jd. at 233, n.5.
Although Black believes the result unintentional, in
reality, the net effect of the state supreme court’s adverse
decision will be to undermine Congress’ intent behind the
? In Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73
F.3d 1423 (7th Cir. 1996), the Seventh Circuit, after thoughtful analy-
sis, explicitly rejected the argument that federal regulations are
“external to the parties agreement”:
[The airline] argues that the contract claims in Wolens
were based on American Airlines’ unregulated frequent flyer
program, while the contract claims here are based on [the
airline]’s heavily regulated “bumping” practices. [The air-
line] asks us to read “privately ordered obligations” as en-
compassing only those obligations outside the purview of
federal regulation of rates, routes, or services. Yet Wolens
did not distinguish between various types of contracts; the
Court limited its analysis to the question of whether a
state’s enforcement of private contracts amounted to an
“enactment or enforcement of any law.” Id. at 824. We see no
reason to distinguish Wolens based on the mere existence of
“bumping” regulations. The question of whether a State has
“enacted or enforced a law” cannot depend on the existence of
federal regulations in the same area.
73 F.3d at 1432 (italics added).
9
ADA preemption clause — that efficiency, low prices,
variety, and quality would be furthered by reliance on
competitive market forces rather than pervasive federal
regulation. See H.R. Conf. Rep. No. 95-1779, 95th Cong.,
2d Sess. 53 (1978). By refusing to permit Black’s claims,
particularly his breach of contract claim, to proceed in
state court, the Texas supreme court has actually
thwarted market forces and stymied efficiency. This Court,
in considering the scope of ADA preemption, recognized:
Market efficiency requires effective means to en-
force private agreements.... “The stability and
efficiency of the market depend fundamentally
on the enforcement of agreements freely made,
based on needs perceived by the contracting par-
ties at the time.” ... That reality is key to sensi-
ble construction of the ADA.
Wolens, 513 U.S. at 230 (citations omitted). The Texas
supreme court has not sensibly construed the ADA and
has overlooked the reality that there must be a mecha-
nism to enforce agreements by passengers against the
airlines.
The basis of a contract action is the parties’ agree-
ment. Jd. at 233. In this case, what Black and Delta
agreed to — a contract of carriage — they bargained for
against the backdrop of the DOT regulations as well as the
common law. Black is seeking enforcement of the terms of
his contract. Unlike the Consumer Fraud Act claims that
this Court in Wolens found objectionable because the
statutory claims did not simply give effect to bargains
offered by the airlines and accepted by airline customers,
id. at 228, Black is simply seeking to give effect to the
bargain offered by the airlines and accepted by airline
10
customers like him, and the business judgments an airline
made public about its ability to transport. See id. at 229.
Moreover, the Texas supreme court glossed over the
ADA’s savings clause, dismissing the savings provision as
“a mere relic of the FAA” which does not supercede the
specific substantive ADA preemption provision. (App. 10-
11 n.2, citing Morales, 504 U.S. at 385). Far from being a
throwback to a bygone era, this Court relied on the ADA’s
savings clause to find no preemption of routine breach of
contract claims:
The conclusion that the ADA permits state-law
based court adjudication of routine breach-of-
contract claims also makes sense of Congress’ re-
tention of the FAA’s saving clause, (preserving
“the remedies now existing at common law or by
statute”). The ADA’s preemption clause, read to-
gether with the FAA’s saving clause, stops States
from imposing their own substantive standards
with respect to rates, routes or services, but not
from affording relief to a party who claims and
proves that an airline dishonored a term the air-
line itself stipulated.
Wolens, 513 U.S. at 232-33 (citations omitted). Reading the
preemption provision with the savings clause gives effect
to the savings provision and properly construes the stat-
ute.
In this case, to hold an airline to the terms of its
contract of carriage, which allow Black to reject compensa-
tion and recover damages in state court, and to hold an
airline to the representations made regarding that con-
tract will not undo federal regulation. In fact, enforcing
contracts such as Black’s will promote the policy of ensur-
ing that every air carrier achieves the smallest practicable
11
number of persons holding confirmed reservations is
denied boarding involuntarily. 14 C.F.R. § 250.2a. Un-
doubtedly, the airlines would have an incentive to reduce
the number of passengers denied boarding involuntarily to
the lowest amount practicable, and reduce its litigation
and other costs. Or, in fact, the airlines may “find it in
their interest to develop new methods of controlling
oversales to augment or supplant the procedures con-
tained in [14 C.F.R. Part 250],” an effect that the former
regulatory agency, the Civil Aeronautics Board (the “CAB”
or “Board”) has urged in the past. 43 Fed. Reg. 24277,
24279 (June 5, 1978); see also id. 24281-82.
II. This Court, Not the Supreme Court of Texas,
Should Settle the Important Federal Issues of
Whether the ADA Preempts State Common Law
Claims for Fraud and Negligent Misrepresentation.
This Court has not yet decided whether the ADA
preempts state common law claims for negligent
misrepresentation and fraud. These are important federal
issues concerning the scope of ADA preemption. The
language and legislative history of the ADA do not
manifest a clear congressional intent to preempt the vast
majority of state law claims, including the commonly
occurring claims of passengers that relate to airline
negligence or fraud. See Daniel Rosenthal, Note, Legal
Turbulence: The Court’s Misconstrual of the Airline
Deregulation Act’s Preemption Clause and the Effect on
Passengers’ Rights, 51 Duke L.J. 1857, 1871 (2002). Not
only are Black’s claims not preempted under the Wolens
exception to preemption, see discussion supra at §I, his
other claims are not so distinct from breach of contract
claims that they should be preempted under the ADA.
Black’s claims for negligent misrepresentation and fraud
12
are no more intrusive than the numerous personal injury
claims found not to be preempted by the ADA. See, e.g.,
Wolens, 513 U.S. at 242-43 (O’Connor, J., concurring in
part and dissenting in part) (citing numerous cases in
which state tort claims found not preempted).°
The claims at issue here do not arise from overreach-
ing guiding and policing of marketing practices of the
airlines that this Court found offensive when applying
state deceptive trade statutes. See Wolens, 513 U.S. at 228.
Further, Black’s claims are based on the conduct and .
undertakings of the airlines themselves. It is critical to
note the DOT has neither the authority nor the apparatus
needed to superintend contract disputes. Jd. at 232. This
* See also Travel All Over the World, Inc. v. Kingdom of Saudi
Arabia, 73 F.3d 1423 (7th Cir. 1996) (slander and defamation claims
and other tort claims based on representations made by airline not
preempted); Lathigra v. British Airways PLC, 41 F.3d 535, 540 (9th Cir.
1994) (looking to congressional intent, concluding the ADA did not
preempt state tort actions for negligent reconfirmation against an
airline because they did not undermine the goals of airline deregula-
tion.); West v. Northwest Airlines, Inc., 995 F.2d 148, 151 (9th Cir. 1993),
cert. denied, 510 U.S. 1111 (1994) (holding that claim for breach of duty
of good faith and fair dealing and unjust discrimination in connection
with airline reservation and refusal to board not preempted under the
ADA); Woodson v. U.S. Airways, Inc., 67 F. Supp. 2d 554 (M.D.N.C.
1999) (ADA does not preempt fraud, breach of contract and negligent
supervision claims against airline); Chukwu v. Board of Directors of
Varig Airlines, 880 F. Supp. 891 (D. Mass. 1995) (breach of contract
claim for refusal to board airplane not preempted); Sedigh v. Delta
Airlines, Inc., 850 F. Supp. 197 (E.D.N.Y. 1994) (passenger’s breach of
contract claim for being forced off airline not preempted); Bayne v.
Adventure Tours USA, Inc., 841 F. Supp. 206 (N.D. Tex. 1994) (passen-
ger’s state law claim for breach of warranty not preempted); Decker v.
Browning-Ferris Industries of Colo., Inc., 931 P.2d 436 (Colo. 1997)
(breach of express covenant of good faith and fair dealing is breach of
an obligation created by contract and, therefore, not preempted).
13
reality applies with equal force to tort claims and cuts
against preemption.
III. The Supreme Court of Texas Interpreted “Ser-
vices” Under the Preemption Provision of the
ADA, an Important Federal Question that has
Divided the Courts of Appeals and Should be
Settled by This Court Alone.
This case also warrants review because it presents an
important issue, namely, the meaning of what constitutes
an airline “service” under the ADA — an issue that has
divided the courts of appeals. The Texas supreme court
properly found that the ADA is silent on what activities
qualify as airline services and recognized this Court has
not determined that issue. (App. 16; see also App. 25).
Because Congress failed to define services” or specify
what state action the ADA clause preempts, the courts
were left to their own devices.
In the wake of this legislative silence, lower courts
have adopted two directly divergent tests to determine
whether a claim qualifies as a “service” under the ADA.
The Ninth and Third Circuits have held that the term
“service” encompasses the “prices, schedules, origins and
destinations of the point-to-point transportation of pas-
sengers, cargo, or mail” but does not include “ ‘provision of
in-flight beverages, personal assistance to passengers, the
handling of luggage, and similar amenities.’” Duncan v.
Northwest Airlines, Inc., 208 F.3d 1112, 1114-15 (9th Cir.),
cert. denied sub nom., Northwest Airlines, Inc. v. Duncan,
531 U.S. 1058 (2000) (quoting Charas v. Trans World
Airlines, Inc., 160 F.2d 1259 (9th Cir. 1998) (en banc), op.
amended on denial of reh’g, 169 F.3d 594 (9th Cir. 1999));
Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186,
14
194 (3d Cir. 1998). This narrow definition espoused by
these circuits was necessary to avoid preemption of virtu-
ally everything an airline does. Duncan, 208 F.3d at 1114.
Other courts of appeal have adopted a more expansive
approach and found the word “service” to include contrac-
tual features of air transportation, including ticketing,
boarding procedures, provision of food and drink, and
baggage handling. Smith v. Comair, Inc., 134 F.3d 254, 259
(4th Cir. 1998); Travel All Over the World, Inc. v. Kingdom
of Saudi Arabia, 73 F.3d 1423 (7th Cir. 1996); Hodges v.
Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir. 1995) (en
banc). When applying the expansive approach of these
circuits, preemption has predictably resulted.
Black contends that the Court should grant certiorari
and resolve this important conflict among the circuits over
the meaning of “service” under the ADA. In this regard,
Black urges approval of the Ninth Circuit’s approach.
Black’s claims involve an airline’s dishonoring first-class
tickets and the representations made in relation to those
tickets. Black’s claims do not directly assault Delta’s
pricing structure, airline schedules, or the routes Delta
intends to fly. Only this Court can resolve the differing
approaches among the circuits. Black respectfully urges
the Court to intervene.
IV. The State Court Has Interpreted Federal
Regulations Regarding Denied Boarding Com-
pensation as Barring Common Law Claims Un-
der State Law and Rendering Passengers Like
Black Without a Remedy.
In reaching its conclusion finding preemption of all of
Black’s claims, the supreme court incorrectly claimed that
15
Black was seeking to improperly enlarge Delta’s obliga-
tions to him. (App. 23). The court muddied its analysis and
merged implied preemption theories into its express
preemption analysis. (App. 20-22). By construing the
regulations as it has, the supreme court has robbed Black,
and other members of the flying public, of any remedy
against the airline. This absurd result runs counter to the
salutary legal maxim — “the law abhors a forfeiture.” See
UNUM Life Ins. Co. of Am. v. Ward, 526 U.S. 358, 360
(1999).
A. The Federal Regulations on Oversales, 14
C.F.R. §§ 250.1 through 250.11, Do Not Pre-
empt Black’s Claims.
Far from capable of being adjudicated only by refer-
ence to policies and laws external to its contract, Black’s
claims are fully able to be addressed under state contract
and tort law, which continues as part of the remedies now
existing at common law and fills in any contractual gaps.
The court reasoned that the presence of the regulations
modified Black’s claims. In actuality, the analysis is the
reverse — common law existed first, and the regulations
are in derogation of that law. Further, the Texas supreme
court failed to recognize that the federal regulations on
oversales are not comprehensive. They simply reflect the
minimum standards for treatment of passengers holding
confirmed reservations due to an oversold flight. The
Texas supreme court held the regulations were the maxi-
mum standards for treating passengers not accommodated
on a flight. (App. 20-22). This result runs contrary to the
agency interpretation of the Oversales regulations in the
wake of ADA preemption. 47 Fed. Reg. 52980, 52980 (Nov.
24, 1982) (stating that 14 CFR Part 250 establishes
16
minimum standards for the treatment of airline passen-
gers holding confirmed reservations who are not accom-
modated because their flight has been oversold.). The
denied boarding compensation, a regulatory remedy, is
only a minimum obligation of the airlines. It is not the
exclusive remedy.‘
B. 14 C.F.R. § 250.6 Does Not Bar Black’s
Claims.
The state supreme court’s conclusion that 14 C.F‘R.
§ 250.6 supports express preemption under the ADA (App.
22-23), if permitted to stand, produces another absurd
result. It allows Delta to claim Black is not entitled to
denied boarding compensation when Delta kept offering
him denied boarding compensation, including other
tickets. Instead of being ineligible for denied boarding
compensation or being denied boarding under the regula-
tions, Delta itself recognized that Black was entitled to
* In fact, the CAB specifically rejected a proposal from the air
carriers that the denied boarding compensation be an exclusive remedy
to passengers:
The Board specifically rejected the carriers’ proposal that
the denied boarding compensation be made an exclusive
remedy:
(T)o the extent that the proposed tariff provision is designed
to restrict a passenger from seeking damages to which he
would otherwise be entitled under the common law, we find
it to be adverse to the public interest. Accordingly, we shall
condition our approval of the agreement to make clear that
the prescribed remedy is a minimum obligation of the
carrier which, only if accepted by the passenger, would ter-
minate the carrier’s obligation.
Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 307 m.18 (1976).
ny
4]
4
4
re
]
17
such compensation. According to Perez, every alternative
offered by Delta included travel vouchers (tickets). (I
Clerk’s R. 67.) Travel vouchers are specific denied boarding
compensation permitted by 14 C.F.R. §§ 250.5(b) (“Carriers
may offer free or reduced air transportation in lieu of the
cash due under paragraph (a) of this section.... ”) and
250.9(b) (“The airline may offer free tickets in place of the
cash payment”). Black was permitted to refuse the com-
pensation and seek recourse in a court of law. Delta is
estopped to deny its own conduct repeatedly offering Black
denied boarding compensation under § 250.5(b).
The CAB even recognized that the exceptions to
denied boarding compensation, even if they did apply, do
not preclude a passenger from taking action against the
air carrier. In discussing subsection (d) to 14 C.FR.
§ 250.6, then a new exception, the Board in 1982 stated:
Carriers will not be required to make payments
to passengers who can be accommodated on al-
ternate flights that are scheduled to arrive at the
passenger’s next stopover or final destination
within 1 hour of the scheduled arrival time of the
original flight.... Passengers that can make
their connecting flight or that are provided
alternative flights that are scheduled to arrive
within 1 hour of the original time will not be
compensated. Passengers will still, of course, be
free in these situations to take action against car-
riers in situations where they feel it is justified.
47 Fed. Reg. 52980, 52983 (Nov. 24, 1982) (italics added).
The Board recognized that a passenger who is not entitled
to denied boarding compensation can still take action
against the carrier. The Board did not consider the excep-
tion to preempt the passenger’s claims. Although the
18
subsection at issue is subsection (d), not (c), the same
rationale applies to (c). If a passenger can still take action
against the carrier even though he is denied compensation
due to the application of subsection (d), then the same
passenger surely can take action against the carrier in the
face of subsection (c).
C. 14 C.E.R. § 250.9(b) Does Not Apply Only if a
Passenger is Eligible for Denied Boarding
Compensation.
Although the supreme court looked to a portion of 14
C.F.R. § 250.9(b) for guidance (App. 20-22), it did not
consider critical language in the section and unnecessarily
applied the section too restrictively. 14 C.F.R. § 250.9(b)
provides that, among other things:
COMPENSATION FOR DENIED BOARDING
If you have been denied a reserved seat on (name
of air carrier), you are probably entitled to mone-
tary compensation. This notice explains the air-
line’s obligation and the passenger’s rights in the
case of an oversold flight, in accordance with
regulations of the U.S. Civil Aeronautics Board.”
METHOD OF PAYMENT
.... The air carrier may offer free tickets in
place of the cash payment. The passenger may,
however, ... refuse all compensation and bring
private legal action.
* See note 1 supra.
19
PASSENGER'S OPTIONS
Acceptance of the compensation may relieve [the
air carrier] from any further liability to the pas-
senger caused by its failure to honor the con-
firmed reservation. However, the passenger may
decline the payment and seek to recover damages
in a court of law or in some other manner.
14 C.F.R. § 250.9(b) (italics added).
The section clearly provides “If you have been denied a
reserved_seat on (name of air carrier), you are probably
entitled to monetary compensation. This notice explains
the airline’s obligation and the passenger’s rights in the
case of an oversold flight, in accordance with regulations of
the U.S. Civil Aeronautics Board.” Id. The section does not
state that it only applies in instances when a passenger is
guaranteed denied boarding compensation.
This written explanation must be given to “anyone
who requests it,” not just persons denied boarding invol-
untarily. 14 C.F.R. § 250.9(a). The statement required by
section 250.9(b) is not limited to only those persons enti-
tled to the regulatory denied boarding compensation. If
section 250.9(b) was intended only to cover persons who
are eligible for denied boarding compensation, as the
Texas supreme court has held, then surely the regulation
would have so specified at the outset and not required the
airlines to give the regulation to passengers “probably
entitled to monetary compensation.” Id. at § 250.9(b).
Further, the statement confirms the right to “seek to
recover damages in a court of law,” and does not restrict its
benefits only to those persons entitled to denied boarding
compensation under 14 C.F.R. § 250.5 and those not
subject to the exceptions of 14 C.F.R. § 250.6. The notice
20
applies to the “passenger,” not “the passenger who is
eligible for denied boarding compensation under § 250.5
and who does not fall within an exception provided in
§ 250.6.”
V. The State Court Decision Reflects an Overly
Broad Application of ADA Preemption and This
Court Should Step in to Provide Consumers
Like Black With a Meaningful Remedy Against
the Airlines.
The overly broad interpretation of ADA preemption by
the Texas supreme court unfairly denies airline consumers
their fair day in court. The unfortunate decision is but the
latest step in a series of legal maneuvers by the airlines
who have used the ADA preemption provision, not for
economic deregulation as intended by Congress, but as a
sweeping immunity provision to unfairly safeguard the
airlines. The stated purposes of the ADA do not counte-
nance this result.°
In other contexts, this Court typically starts its
preemption analysis with the presumption against pre-
emption — that Congress did not intend to preempt areas
of traditional state regulation. “Related to” language
contained in a preemption statute will not vitiate this
* On July 24, 2003, the DOT recently repealed its long-standing
rule detailing its policy statement on federal preemption of state
economic regulations. 14 C.F.R. § 399.110 repealed by 68 Fed. Reg.
43882-43883 (July 24, 2003). The rule provided examples of regulatory
actions preempted under the ADA, specifically, tariff filing, certification,
regulations governing flight frequency, mode of operation, in-flight
amenities, liability, insurance, bonding, and capitalization. Id.
§ 399.10(d).
21
presumption. DeBuono v. NYSA-ILA Medical & Clinical
Servs. Fund, 520 U.S. 806, 815 (1997). Where legislative
intent is not “clear and manifest,” this Court will not
interpret a federal act to supersede the laws of the sover-
eign states. Cal. Div. of Labor Standards Enforcement v.
Dillingham Constr., N.A., 519 U.S. 316, 334 (1997). Black
fears that the opinion of the state supreme court fails to
accord the proper deference to federalism concerns. Pre-
emption, at its heart, respects “the separate spheres of
governmental authority preserved in our federalist sys-
tem.” Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504,
522 (1981). Given the Court’s reasoning in cases like
DeBuono and Dillingham and its construction of preemp-
tion under the Employee Retirement Income Security Act
of 1974, this Court should grant review and revisit the
scope of preemption under the ADA to take into considera-
tion this trend. After all, Morales relied on this Court’s
ERISA jurisprudence then in effect to strictly interpret the
ADA, 504 U.S. at 385, and led us down the path to where
Black stands before the court today — a passenger whose
state common law rights are completely eviscerated.
¢
22
CONCLUSION
For the reasons discussed above, the Court should
grant the petition for a writ of certiorari and reverse the
decision of the Supreme Court of Texas.
Respectfully submitted,
GABRIEL H. ROBLES
Attorney at Law
Counsel of Record for Petitioner
8828 North Stemmons Freeway,
Suite 143
Dallas, Texas 75247
Telephone: (214) 361-2411
Telecopier: (214) 361-7074
RONALD E. HARDEN
DOROTHY J. HARDEN
THE LAW OFFICES OF
RONALD E. HARDEN
113 West Mulberry
Kaufman, Texas 75142
Telephone: (972) 932-0600
Telecopier: (972) 932-0602
Attorneys for Petitioner,
Robert C. Black
App. 1
[SEAL] THE SUPREME COURT OF TEXAS
Post Office Box 12248
Austin, Texas 78711 (512) 463-1312
September 11, 2003
Mr. Dan K. Horn
Maloney Bean Horn & Hull, P.C.
102 Decker Drive, Suite 200
Irving, TX 75062-2740
Mr. Ronald E. Harden
The Law Offices of Ronald E. Harden
113 W. Mulberry
Kaufman, TX 75124
RE: Case Number: 02-0255
Court of Appeals Number: 10-00-00156-CV
Trial Court Number: F96-06320-K
Style: DELTA AIR LINES, INC. AND AL PEREZ
v.
ROBERT C. BLACK
Dear Counsel:
Today, the Supreme Court of Texas granted the
Respondent’s motion for rehearing in part. The Court
withdraws its opinion and judgment of June 26, 2003, and
substitutes the opinion and judgment issued today. The
Court reverses the court of appeals’ judgment in part and
renders judgment. Encl.
Sincerely,
Andrew Weber, Clerk
by /s/ Nancy J. Vega
Nancy J. Vega, Chief Deputy
App. 2
cc: Ms. Sharri Roessler, Clerk
Mr. Jim Hamlin
John De Noyelles
App. 3
IN THE SUPREME COURT OF TEXAS
No. 02-0255
DELTA AIR LINES, INC. AND AL PEREZ
V.
ROBERT C. BLACK
ON PETITION FOR REVIEW
FROM THE COURT OF APPEALS
FOR THE TENTH DISTRICT OF TEXAS
CORRECTED JUDGMENT
THE SUPREME COURT OF TEXAS, having heard
this cause on petition for review from the Court of Appeals
for the Tenth District, and having considered the appellate
record, briefs, and counsels’ argument, concludes that the
court of appeals’ judgment should be reversed in part.
IT IS THEREFORE ORDERED, in accordance with
the Court’s opinion, that:
1) The court of appeals’ judgment is reversed in
part;
2) Judgment is rendered that Robert C. Black take
nothing on his claims against Delta Airlines, Inc.
and Al Perez;
3) Delta Air Lines, Inc. and Al Perez shall recover,
and Robert C. Black shall pay, the costs incurred
in this Court and in the court of appeals; and
4) The court of appeals’ opinion is ordered published.
Copies of this judgment and the Court’s opinion are
certified to the Court of Appeals for the Tenth District and
App. 4
to the District Court of Dallas County, Texas, for obser-
vance.
Opinion of the Court delivered by Justice Jefferson.
September 11, 2003
App. 5
IN THE SUPREME COURT OF TEXAS
No. 02-0255
DELTA AIR LINES, INC. AND AL PEREZ, PETITIONERS
Vv.
ROBERT C. BLACK, RESPONDENT
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE TENTH DISTRICT OF TEXAS
Argued on January 15, 2003
JUSTICE JEFFERSON delivered the opinion of the Court.
We grant Robert C. Black’s motion for rehearing in
part. We withdraw our opinion of June 26, 2003 and
substitute the following in its place.
The Airline Deregulation Act of 1978 (ADA) provides
that states “may not enact or enforce a law... related toa
price, route, or service of an air carrier....” 49 U.S.C.
§ 41713(b)(1). This case concerns the scope of this preemp-
tion provision, specifically, its application to state breach
of contract and misrepresentation claims challenging an
airline’s ticketing and boarding procedures. The trial court
rendered summary judgment in favor of Delta Airlines,
Inc. and its gate supervisor, Al Perez, without specifying
the grounds. The court of appeals reversed, holding that
the ADA did not preempt Black’s claims, and remanded
the case for trial.__—s- S.W.3d __ . We granted Perez
and Delta’s petition for review to decide whether the ADA
App. 6
preempts a passenger’s state law claims for an airline’s
alleged failure to honor a confirmed first-class seat. 46
Tex. Sup. Ct. J. 14 (Oct. 10, 2002). We hold that it does and
accordingly reverse the court of appeals’ judgment in part
and render judgment that Black take nothing on his
claims against Delta and Perez.
I
BACKGROUND
On June 23, 1995, Robert Black purchased two Delta
airline tickets for travel from Dallas/Fort Worth to Las
Vegas leaving that afternoon and returning on June 25.
The invoice from Black’s travel agent showed two first-
class reservations for Black and his wife. Although the
invoice assigned Black first-class seats for both directions,
his wife had an assigned seat only for the return flight.
Black’s travel agent and manager of Smith Travel &
Limousine, Melissa Shinn, suggested that Black ask the
Delta gate agent if he and his wife could sit together in
first class for the Dallas to Las Vegas flight.
Upon arrival at the departure gate, Black requested
adjacent seats in first class. The gate agent said that he
would “see what [he] could do.” As other passengers
boarded the plane, a Delta gate supervisor, Al Perez,
appeared and informed Black that he and his wife did not
have two confirmed first-class seats for the flight. While
Delta had a confirmed first-class seat for Mr. Black, it only
had a confirmed coach seat for his wife, whom Delta
placed on a priority waiting list for first class. Perez told
Black that, unless a first-class passenger relinquished a
seat, Black’s wife would be seated in coach for the three-
hour flight from Dallas to Las Vegas. This would not,
App. 7
however, affect her first-class seat for the return flight. At
Black’s request, Perez spoke by telephone with Shinn.
Shinn told Perez that her computer showed two confirmed
first-class seats from Dallas to Las Vegas. Delta’s com-
puters, however, did not show a confirmed first-class seat
for Black’s wife.
Unable to provide Black’s wife with first-class accom-
modations, Delta offered several alternatives: (1) the
Blacks could sit in coach on their scheduled flight, (2) they
could fly separately on the scheduled flight, one in coach
and one in first class, (3) they could fly first class on a
later flight to Los Angeles and then connect to Las Vegas,
or (4) they could take a direct flight later that day to Las
Vegas with confirmed first-class seats. Each of these
alternatives included free travel vouchers, which Black
asserts could be used only for coach seats. Black declined
Delta’s offers. Instead, the Blacks drove to Love Field
airport and chartered a private jet to and from Las Vegas
at a cost of $13,150, which included the aircrew’s expenses
in Las Vegas for two days.
Black sued Delta for breach of contract and inten-
tional and negligent misrepresentation, and sued Perez for
misrepresentation only.’ Delta and Perez moved for sum-
mary judgment on four grounds: (1) preemption under the
* Black also sued Abe Haddad d/b/a Smith Travel & Limousine for
breach of contract, intentional and negligent misrepresentation,
violations of the Texas Deceptive Trade Practices Act, and negligence.
Haddad moved for summary judgment, which the trial court granted.
The court of appeals reversed that summary judgment and remanded
Black’s claims against Haddad for trial. Haddad does not challenge that
judgment in this Court.
App. 8
ADA, (2) Black’s failure to mitigate damages, (3) lack of
causation, and (4) lack of an agency relationship between
Smith Travel and Delta. The trial court granted summary
judgment for Delta and Perez, without specifying the
grounds. Black appealed the judgment.
The court of appeals reversed the trial court’s judg-
ment and remanded the case for trial. The court of appeals
held that fact issues precluded judgment as a matter of
law on the causation, mitigation, and agency issues. __
S.W.3d at __. As to the key issue before this Court, the
court of appeals held that Black’s claims were not pre-
empted by the ADA because “federal airline regulations
allow passengers whose reservations are not honored due
to overbooking to seek recovery for damages ‘in a court of
law or in some other manner.” Jd. at __. We granted
Perez and Delta’s petition for review to decide the single
issue Perez and Delta (collectively, Delta) presented —
preemption.
II
APPLICABLE LAW - PREEMPTION
Federal preemption of state law is grounded in the
Supremacy Clause of the United States Constitution,
which provides that “the Laws of the United States ...
shall be the supreme Law of the Land; and the Judges in
every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary not-
withstanding.” U.S. CONST., art. VI, cl. 2. Under the
Supremacy Clause, if a state law conflicts with federal law,
the state law is preempted and “without effect.” Maryland
v. Louisiana, 451 U.S. 725, 746 (1981). Preemption can
take one of several forms. A federal law may preempt a
App. 9
state law expressly. Great Dane Trailers, Inc. v. Estate of
Wells, 52 S.W.3d 737, 743 (Tex. 2001). It may also preempt
a state law impliedly, either (i) when the scheme of federal
regulation is sufficiently comprehensive to support a
reasonable inference that Congress left no room for sup-.
plementary state regulation or (ii) if the state law actually
conflicts with federal regulations. Jd. A state law presents
an actual conflict when a party cannot comply with both
state and federal regulations or when the state law would
obstruct Congress’ purposes and objectives. Id.
“The purpose of Congress is the ultimate touchstone”
in every preemption case. Retail Clerks Intl Ass’n. v.
Schermerhorn, 375 U.S. 96, 103 (1963). Congressional
intent is discerned primarily from the statute’s language
and structure. Medtronic, Inc. v. Lohr, 518 U.S. 470, 486
(1996). Also relevant is the purpose of the statute as a
whole, which is revealed through “the reviewing court’s
reasoned understanding of the way in which Congress
intended the statute and its surrounding regulatory
scheme to affect business, consumers, and the law.” Id.
We begin our analysis with a discussion of the rele-
vant federal statute and the United States Supreme Court
cases that control this area.
A
Statutory Framework
Before 1978, the Federal Aviation Act of 1958 (FAA)
authorized the Civil Aeronautics Board (CAB) to regulate
the interstate airline industry. 49 U.S.C. § 1301 (current
version at 49 U.S.C. § 40101); Am. Airlines, Inc. v. Wolens,
513 U.S. 219, 222 (1995). The Act provided that “nothing
App. 10
. in this chapter shall in any way abridge or alter the
remedies now existing at common law or by statute, but
the provisions of this chapter are in addition to such
remedies.” 49 U.S.C. § 1506. Thus, before 1978, states
were allowed to regulate intrastate airfare. Morales uv.
Trans World Airlines, Inc., 504 U.S. 374, 378 (1992).
In 1978, Congress amended the FAA by enacting the
Airline Deregulation Act (ADA), which deregulated the
industry. 49 U.S.C. §40101(a)(6), (a)(12)(A) (formerly
codified at 49 U.S.C. § 1302(a)(4), (a)(9)). In enacting the
ADA, Congress determined that “‘maximum reliance on
competitive market forces’ would best further ‘efficiency,
innovation, and low prices’ as well as ‘variety [and] quality
... of air transportation services.’” Morales, 504 U.S. at
378 (quoting 49 U.S.C. § 1302(a)(4), (a)(9)). Congress
included an express preemption provision in the ADA “[t]o
ensure that the States would not undo federal deregula-
tion with regulation of their own.” Morales, 504 U.S. at
378. The preemption clause states:
Except as provided in this subsection, a State,
political subdivision of a State, or political au-
thority of at least 2 States may not enact or en-
force a law, regulation, or other provision having
the force and effect of law related to a price, route,
or service of an aircarrier.... -
49 U.S.C. § 41713(b)(1) (emphasis added).’ Thus, to deter-
mine the propriety of the court of appeals’ judgment, we
* The Blacks base their claims in part on the ADA’s savings
clause, which provides that “a remedy under this part is in addition to
any other remedies provided by law.” 49 U.S.C. § 40120(c). This
clause, however, has been dismissed as a relic of the FAA and does not
(Continued on following page)
App. 11
must ascertain whether Black’s state law claims fall
within the ADA’s express preemption provision. If they do,
Black’s claims fail.
B
Morales and Wolens
The Supreme Court has discussed the scope of the
ADA’s express preemption clause on two occasions. It first
considered the ADA’s preemptive scope in Morales, 504
U.S. at 374. There, the Court examined whether the ADA
preempted enforcement of guidelines concerning regula-
tion of airline fare advertising through Texas’s consumer
protection statutes. Id. at 378. The Court focused on the
preemption clause’s “relating to” language. Id. at 383-86.
Relying on its ERISA line of cases and the ordinary mean-
ing of the statute’s words, the Court construed the phrase
“relating to” broadly to preempt “State enforcement
actions having a connection with, or reference to, airline
‘rates, routes, or services.” Jd. at 384. Based on this
“broad preemptive purpose,” the Court rejected conten-
tions that section 1305(a)(1)* only preempted states from
actually prescribing rates, routes, or services, or that only
state laws specifically aimed at the airline industry were
preempted. Id. at 384-86.
supersede the specific substantive preemption provision in the ADA.
Morales v. Trans World Airlines, Inc., 504 U.S. 374, 385 (1992).
* 49 U.S.C. section 1305(a)(1) is the previous version of the ADA
preemption clause. The current version, the one at issue in this case, 49
U.S.C. section 41713(b)(1), was recodified into the Federal Aviation
Administration Act in 1994 without substantive change. Continental
Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 278 (Tex. 1996).
App. 12
Although the Court warned that “‘some state actions
may affect [airline fares] in too tenuous, remote, or pe-
ripheral a manner’ to have preemptive effect,” it concluded
that the obligations imposed by the guidelines would
impact airlines’ ability to market their product and the
fares they charged. Jd. at 390 (quoting Shaw v. Delta Air
Lines, 463 U.S. 85, 100 n.21 (1983)). Thus, the guidelines
had a “forbidden significant effect” on the airlines’ rates,
routes, and services, primarily because they restricted fare
advertising, which “relates to” price. Jd. at 388-89. The
Court held that, under these circumstances, the ADA
preempted the fare advertising provisions in the general
state consumer protection statutes at issue. Jd. at 391.
The only other time the Court has addressed the scope
of the ADA’s preemption provision was in American
Airlines, Inc. v. Wolens, 513 U.S. 219. That case involved
state law consumer fraud and breach of contract claims
arising from retroactive changes in an airline’s frequent
flyer program. Id. at 224-25. The Court focused on another
portion of the ADA’s preemption clause — the phrase “enact
or enforce any laws” — to determine the ADA’s preemptive
scope. Id. at 226. it held that, like the guidelines at issue
in Morales, Illinois’s consumer fraud statute “serve[d] as a
means to guide and police the marketing practices of the
airlines.” Jd. at 228. Thus, the ADA preempted the plain-
tiffs’ consumer fraud claims. Id.
The Court then turned to the plaintiffs’ breach of
contract claims. Jd. It held that the ADA’s preemption
clause did not shield airlines from “suits alleging no
violation of state-imposed obligations, but seeking recov-
ery solely for the airline’s alleged breach of its own, self-
imposed undertakings.” Id. at 228. The Court reasoned
that some of the terms and conditions airlines offer, such
App. 13
as frequent flyer programs, are private obligations and do
not amount to State “‘enactment or enforcement [of] any
law, rule, regulation, standard, or other provision having
the force and effect of law’ within the meaning of section
1305(a)(1).” Id. at 228-29. The Court limited its holding,
however, to suits based on the terms of the parties’ bargain
“with no enlargement or enhancement based on state laws
or policies external to the agreement.” Jd. at 233. Courts
have interpreted this to mean that if a contract claim
cannot be adjudicated without resort to external law, the
claim is preempted by the ADA. See, e.g., Smith v. Comair,
Inc., 134 F.3d 254, 257 (4th Cir. 1998); Boon Ins. Agency,
Inc. v. Am. Airlines, Inc., 17 S.W.3d 52, 58-59 (Tex. App. —
Austin 2000, pet. denied); Howell v. Alaska Airlines, Inc.,
994 P.2d 901, 905 (Wash. Ct. App. 2000).
C
Kiefer
In the wake of the Supreme Court’s decisions in
Morales and Wolens, lower federal and state courts have
struggled with determining when the ADA preempts state
law claims.‘ This Court considered the scope of the ADA’s
preemption clause in Continental Airlines, Inc. v. Kiefer,
920 S.W.2d 274 (Tex. 1996). In Kiefer, we decided the
* See, e.g., Taj Mahal Travel, Inc. v. Delta Airlines Inc., 164 F.3d
186, 192 (3rd Cir. 1998); Charas v. Trans World Airlines, Inc., 160 F.3d
1259, 1263 (9th Cir. 1998); Alasady v. N.W. Airlines Corp., Civ. No. 02-
3669, 2003 U.S. Dist. LEXIS 3841, at *24 (D. Minn. Mar. 3, 2003);
Somes v. United Airlines, Inc., 33 F. Supp. 2d 78, 81 (D. Mass. 1999);
Aquino v. Asiana Airlines, Inc., 130 Cal. Rptr. 2d 223, 230 (Cal. Ct. App.
2003).
App. 14
extent to which “state common-law personal-injury negli-
gence actions against airlines are preempted by the
[ADA].” Id. at 275. Following Morales and Wolens, we
applied a two-part analysis to determine whether the
plaintiffs’ personal injury claims were preempted. Jd. at
281-82; see also 49 U.S.C. § 41713(b)(1). First, we exam-
ined whether the claims related to airline rates, routes, or
services. Id. at 281. Second, we explored whether the
claims constituted the enactment or enforcement of a state
law, rule, regulation, standard or other provision. Id. at
281-82. We concluded that, although the plaintiffs’ per-
sonal injury claims clearly related to airlines’ services,
their claims did not amount to enforcement of a state law
and thus were not preempted. Id. at 282.
In reaching this conclusion, we acknowledged the
difficulty in differentiating between claims that are
preempted and those that are not. Jd. at 281. We noted
that, unlike the state consumer protection legislation at
issue in Morales, negligence actions do not “carry the same
‘potential for intrusive regulation of airline business
practices....’” Id. at 282 (quoting Wolens, 513 U.S. at
227). We were careful to state, however, that certain tort
actions, such as negligent misrepresentation, may be
indistinguishable from the statutory consumer protection
actions in Morales and Wolens. Id. at 283. And depending
on the nature and extent of damages sought, even simple
negligence actions may constitute an impermissible
regulation of the airline industry through state tort law.
Id. at 282.
Rather than declare categorically that personal injury
claims are always excepted from preemption, we focused
on the extent to which the claims in Kiefer threatened to
App. 15
encroach on the congressional objective of airline deregu-
lation. Id. Because preemption depends on the nature of
the particular claim, we observed that the ADA’s preemp-
tive effect on other state law claims would require a “closer
working out.” Jd. at 281. With respect to breach of contract
claims, we noted that the “very strict limitation” Wolens
puts on permissible contract claims “demonstrates the
breadth of ADA preemption.” Id. Like Wolens, we recog-
nized that the ADA allows breach of contract claims only if
they involve contract terms-voluntarily undertaken by the
parties. Jd. at 281-82. And we noted that voluntary con-
tractual undertakings do not “effectuate purposes that
could have a prohibited regulatory effect on airlines.” Jd.
at 282.
With this framework in mind, we turn to a “closer
working out” of the ADA preemption clause with respect to
Black’s claims. Wolens, 513 U.S. at 235; Kiefer, 920 S.W.2d
at 281.
III
ANALYSIS
Black contends that Wolens and Kiefer shield his
breach of contract claim from preemption. He argues that,
by refusing to provide his wife a first-class seat on the
flight from Dallas to Las Vegas, Delta breached a self-
imposed contractual obligation. Because his claims arise
from Delta’s own undertakings, as opposed to an obliga-
tion imposed by state law, Black argues that there is little
risk similar state claims would undo federal deregulation.
Thus, according to Black, his claims are not subject to
preemption under the ADA.
App. 16
Delta, on the other hand, contends that Black’s claims
are preempted by the ADA because they relate directly to
the airline services Delta provides. Delta argues that
ticketing and boarding procedures are fundamental to
airline services and are far removed in character from the
voluntary frequent flyer program at issue in Wolens.
Specifically, Delta contends that because Department of
Transportation (DOT) regulations define and control the
procedures for denied boarding, Black’s state law claims
are preempted. For the reasons discussed below, we agree
with Delta.
A
Related to an Airline’s Services
To answer whether a claim is preempted by the ADA,
we first determine whether the claim is related to an
airline’s prices or services within the meaning of the ADA’s
preemption provision. Kiefer, 920 S.W.2d at 281. The ADA
does not specify, and the United States Supreme Court has
not determined, what activities constitute airline services.
It is not surprising, then, that courts have fashioned
inconsistent tests for determining whether a state law
action is related to an airline’s services. Compare Charas
v. Trans World Airlines, Inc., 160 F.3d 1259, 1261 (9th Cir.
1998), with Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336
(5th Cir. 1995). The United States Court of Appeals for the
Ninth Circuit has narrowly defined services as “the prices,
schedules, origins and destinations of the point-to-point
transportation of passengers, cargo, or mail.” Charas, 160
F.3d at 1261. That court reasoned that because the word
services appears next to the words rates and routes in
section 41713(b)(1), “services” must refer to “the provision
of air transportation to and from various markets at
App. 17
various times.” Jd. at 1266. Under this interpretation, in-
flight beverages, personal assistance to passengers,
handling luggage, keeping aisles clear, and other ameni-
ties are not included in the definition of services. Jd. at
1261.
The Fifth Circuit’s more expansive interpretation of
airline services includes “ticketing, boarding procedures,
provision of food and drink, and baggage handling, in
addition to the transportation itself.” Hodges, 44 F.3d at
336. Hodges relied in part on the CAB’s statements im-
plementing the ADA, which made clear that reservation
and boarding practices are services within the meaning of
the ADA. See id. at 337 (citing 44 Fed. Reg. 9948, 9951
(Feb. 15, 1979)); see also Smith v. Am. W. Airlines, Inc., 44
F.3d 344, 347 (5th Cir. 1995) (limiting services to “eco-
nomic decisions concerning boarding, e.g., overbooking or
charter arrangements, and contractual decisions whether
to board particular ticketed passengers”). The Hodges
court reasoned that, because these “matters are all appur-
tenant and necessarily included with the contract of
carriage between the passenger or shipper and the air-
line,” Congress intended them to be services protected
from state regulation. 44 F.3d at 336.
In this case, Black’s claims relate to Delta’s boarding
procedures and seating policies. Although several courts
have fashioned different tests to determine whether a
state law action relates to an airline’s services, most courts
generally agree that state law claims involving seating
App. 18
and boarding procedures relate to services.’ This approach
is consistent with both the Fifth and Ninth Circuit Court
of Appeals’ conclusions that an airline’s boarding proce-
dures are an integral part of the services that an airline
provides. See, e.g., Somes v. United Airlines, Iinc., 33
F. Supp. 2d 78, 85 (D. Mass. 1999) (noting that both the
Fifth and Ninth Circuits’ definitions of services would
include boarding). The mere fact that Black’s claims relate
to the denial of first-class status, rather than point-to-
point transportation, does not remove his claims from the
definition of “services.” See Wolens, 513 U.S. at 226 (noting
that the term “services” includes “access to flights and
class-of-service upgrades”).
* See, e.g., Smith v. Comair, 134 F.3d 254, 259 (4th Cir. 1998)
(“Undoubtedly, boarding procedures are a service rendered by an
airline.”); Travel All Over the World, Inc. v. The Kingdom of Saudi
Arabia, 73 F.3d 1423, 1434 (7th Cir. 1996) (“airline ‘services’. . . include
ticketing”); Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir.
1995); Alasady, 2003 U.S. Dist. LEXIS 3841, at *24 (noting that “the
term ‘service’ in § 41713(b)(1) encompasses boarding procedures”);
Somes, 33 F. Supp. 2d at 85 (“the denial of boarding and the refusal to
transport a particular passenger, . .. without question, are at the heart
of the ‘services’ that airlines provide”); Nazarian v. Compagnie Nation-
ale Air France, 989 F. Supp. 504, 510 (S.D.N.Y. 1998) (“[C]ases that
involve ticketing, boarding, in-flight services, or the implementation of
airline policies, such as ‘bumping’ of passengers, denial of boarding, .. .
relate to services and are preempted.”); Peterson v. Continental Airlines,
Inc., 970 F. Supp. 246, 250 (S.D.N.Y. 1997) (“A flight crew’s conduct
during the boarding stage of a flight, specifically, flight attendants’
efforts to locate appropriate seat assignments and resolve seat conflicts,
constitutes an airline service... .”); Pearson v. Lake Forest Country Day
Sch., 633 N.E.2d 1315, 1320 (Ill. App. Ct. 1994) (“An airline’s boarding
and seating policies come within the ambit of the ‘services’ it provides to
its customers.”); El-Menshawy v. Egypt Air, 647 A.2d 491, 492 (N.J.
Super. Ct. Law Div. 1994) (The plaintiff’s claim against the airline —
“that it failed to honor an allegedly confirmed reservation — beyond a
shadow of a doubt ‘relates to’ airline services.”).
App. 19
Unlike the frequent flyer program in Wolens, seating
policies and boarding procedures are not peripheral to the
operation of an airline, but are inextricably linked to the
contract of carriage between a passenger and the airline
and have a definite “connection with, or reference to”
airline services. Morales, 504 U.S. at 384. Given Morales’
broad interpretation of the words “relating to,” and the
generally accepted understanding of the word “services,”
we conclude that an airline’s boarding procedures and
seating policies “relate to” the services an airline provides
to its customers.
We next consider whether the ADA prohibits enforce-
ment of Black’s claims.
B
State Enactment or Enforcement
The second step in the preemption analysis involves
determining whether Black’s claims, if allowed, would
constitute enactment or enforcement of a state law within
the meaning of the ADA’s preemption clause. Kiefer, 920
S.W.2d at 281. In deciding whether contract claims are
preempted, we distinguish between obligations dictated by
the State and those voluntarily undertaken by the airline.
Wolens, 513 U.S. at 233. When parties privately negotiate
a contract’s terms and then sue in state court for breach of
those terms, there is generally no specter of state-imposed
regulation. Jd. at 228-29. Thus, as we noted in Kiefer, the
enforcement of a contractual commitment voluntarily
undertaken does not amount to state enactment or en-
forcement of a law that the ADA’s preemption provision
forbids. 920 S.W.2d at 281-82.
App. 20
In Wolens, the Supreme Court determined that a
frequent flyer program was a self-imposed undertaking
between private parties and was therefore too tenuous or
peripheral to constitute state enforcement. 513 U.S. at
228-29. Unlike Wolens’ claims that related to a self-
imposed frequent flyer program, Black’s claims relating to
Delta’s ticketing and boarding procedures implicate
directly the federal interest in deregulated air transporta-
tion. See Somes, 33 F. Supp. 2d at 85; Rockwell v. UPS, No.
2:99-CV-57, 1999 U.S. Dist. LEXIS 22036, at *6 (D. Vt.
July 7, 1999) (noting that “preemption applies to services
which are ‘regular, recurrent, or necessary features of
actual flight or airline operations’ (as opposed to beverage
services and similar amenities)”) (quoting Somes, 33
F. Supp. 2d at 83); Smith, 134 F.3d at 259; Chukwu v. Bd.
of Dirs. British Airways, 889 F.Supp. 12, 13 (D. Mass.
1995). Thus, contrary to the ADA’s purpose, Black’s claims
have the potential for “intrusive regulation of airline
business practices.” Kiefer, 920 S.W.2d at 282.
When Black purchased the airline tickets, a binding
contract of carriage was created between Black and Delta.
See Woodward v. Tex. & P. Ry. Co., 86 S.W.2d 38, 39 (Tex.
1935); Boon, 17 S.W.3d at 55. Pursuant to the regulatory
authority conferred by Congress under the ADA, the DOT
promulgated comprehensive regulations interpreting the
ADA. Black and Delta’s contract for carriage incorporates
these regulations. See 14 C.F.R. §§ 253.4, .5; Wolens, 513
U.S. at 230 (authorizing airlines to incorporate the federal
regulations into their contracts of carriage). In particular,
part 250 permits the DOT to regulate “oversales” in air
carrier service. 14 C.F.R. §§ 250.1-.9. These regulations
require every air carrier to “establish priority rules
and criteria for determining which passengers holding
App. 21
confirmed reserved space shall be denied boarding on an
oversold flight in the event that an insufficient number of
volunteers” agree to relinquish their seat. Jd. § 250.3.
Section 250.5 requires airlines to pay compensation to
any passenger who is involuntarily denied boarding
caused by an oversold flight. Jd. § 250.5. A passenger who
is involuntarily denied boarding, however, is not required
to accept this compensation and can instead “decline the
payment and seek to recover damages in a court of law or
in some other manner.” Id. § 250.9. The federal regulations
also provide that under certain circumstances, a passenger
denied boarding involuntarily from an oversold flight is
not entitled to receive compensation from the airline. Id.
§ 250.6. In particular, if a passenger “is offered accommo-
dations or is seated in a section of the aircraft other than
that specified on the ticket at no extra charge,” then that
passenger is not eligible for denied boarding compensa-
tion. Id. § 250.6(c).
Black contends that, pursuant to section 250.9, he had
the option to decline compensation under the federal
scheme and instead “seek to recover damages in a court of
law.” Id. § 250.9(b). The court of appeals agreed and held
that, although Black was not entitled to denied boarding
compensation, he could forego the remedies provided by
the DOT regulations and seek damages in court. __
S.W.3d at __. The court of appeals based its decision on
the DOT regulations relating to passengers that are
involuntarily denied boarding. Id.; see also 14 C.FR.
§ 250.9. But Black and the court of appeals misread these
regulations. Black was not denied boarding, as that term
relates to section 250.9.
App. 22
The passenger option of declining payment from the
airline and instead seeking recovery in a court of law is
reserved for those passengers who are involuntarily
denied boarding and thus eligible for denied boarding
compensation. 14 C.F.R. § 250.9. Because Delta offered
Black’s wife another seat on the same flight, she was not
denied boarding. Even if we considered Black’s wife to
have been involuntarily denied first-class boarding, the
Blacks do not have a valid claim for “denied boarding
compensation.” This is so because they fall within one of
the eligibility exceptions to qualify for compensation — a
passenger is not eligible for denied boarding compensation
if the airline offers the passenger accommodations in
another section of the aircraft at no charge. Id. § 250.6.
Because Delta offered Black and his wife various accom-
modations, including coach seats, Black and his wife were
ineligible for denied boarding—compensation. Jd. And
because Black and his wife were not eligible to receive the
_ denied boarding compensation from Delta, they could not
possibly decline this compensation and “seek to recover
damages in a court of law.” Id. § 250.9. Accordingly, Black
cannot rely on section 250.9, which, as a prerequisite to
recover, requires the party to be eligible to receive denied
boarding compensation.
As discussed above, the parties’ contract incorporated
the DOT regulations on denied boarding compensation.
_ Black, however, seeks to enlarge Delta’s obligations to
him. He attempts to modify the contract terms to allow
him and his wife to forego the regulatory remedies and
instead sue in court. This Court, however, is confined, “in
breach-of-contract actions, to the parties’ bargain.” Wolens,
513 U.S. at 233. We cannot enlarge or enhance that
bargain based on state law or policies external to the
Te. ET
App. 23
agreement. Id. Nothing in the contract entitles Black to
the external remedy of reimbursement for the cost of a
private chartered jet. The regulations promulgated under
the ADA, which are incorporated as part of the contract,
provide the procedure and remedy in the event a passen-
ger is denied boarding but offered specified accommoda-
tions, and therefore preclude the additional remedies
Black has pursued in state court. See 14 C.F.R. §§ 250.1-.9.
Even were the contract silent about the federal
regulations, other courts have applied similar reasoning to
preempt breach of contract claims that relate to price or
service and seek to impose state laws or policies.° As the
court of appeals in this case correctly noted:
* See, e.g., Lyn-Lea Travel Corp. v. Am. Airlines, Inc., 283 F.3d 282,
288 (5th Cir. 2002) (breach of contract claim was preempted because it
had a connection with an airline’s prices and services); Smith, 134 F.3d
at 259 (breach of contract claim was preempted to the extent it com-
plained of an airline’s boarding procedures); Statland v. Am. Airlines,
Inc., 998 F.2d 539, 542 (7th Cir. 1993) (passenger’s breach of contract
challenge to an airline’s ten percent cancellation policy was preempted
because it related to price); Breitling U.S.A. Inc., v. Fed. Express Corp.,
45 F. Supp. 2d 179, 186-87 (D. Conn. 1999) (breach of contract claim
arising from a contract to transport watches was preempted because it
amounted to an enlargement or enhancement based on state laws or
policies external to the parties’ agreement); Leonard v. N.W. Airlines,
Inc., 605 N.W.2d 425, 431 (Minn. Ct. App. 2000) (breach of contract
claim regarding a reissue fee was preempted because it related to price
and sought to enforce state law); Blackner v. Continental Airlines, Inc.,
709 A.2d 258, 260 (N.J. Super. Ct. App. Div. 1998) (breach of contract
claim was preempted because it constituted an enlargement or en-
hancement of a passenger’s rights based on state laws or policies); Boon
Ins. Agency, Inc. v. Am. Airlines, Inc., 17 S.W.3d 52, 58-59 (Tex. App. —
Austin 2000, pet. denied) (breach of contract claim involving a reissue
fee was preempted because it sought to modify the contract by relying
on state law); Howell v. Alaska Airlines, Inc., 994 P.2d 901, 905 (Wash.
(Continued on following page)
App. 24
[W]e cannot overlook the fact that the alleged
contractual violation at issue in this appeal in-
volves a common condition unique to the airline
industry — the failure to seat an allegedly con-
firmed ticket holder because of overbooking —
and that unlike the frequent-flier agreements at
issue in Wolens, specific federal regulations gov-
ern compensation for air passengers who are in-
voluntarily prevented from boarding a flight due
to overbooking.
___ §.W.3d at __. These “specific federal regulations” have
a national purpose in that they provide a uniform system
of compensation to passengers. If passengers were permit-
ted to challenge airlines’ boarding procedures under state
common law, the airline industry would potentially be
subject to regulation by fifty different states. Smith, 134
F.3d at 258-59 (allowing passengers to challenge boarding
procedures would permit “the fifty states to regulate an
area of unique federal concern — airlines’ boarding prac-
tices.”); see also John W. Freeman, State Regulation of
Airlines and the Airline Deregulation Act of 1978, 44 J. AIR
L. & CoM. 747, 755 (1979) (noting that “the effect of the
provision was to ‘prevent conflicts and inconsistent regula-
tions’”) (quoting H.R. REP. No. 1211, 95th Cong., 2d Sess.
16 (1978)). The fact that federal regulations expressly
Ct. App. 2000) (breach of contract challenge to an airline’s refusal to
refund the price of a nonrefundable ticket was preempted because it
sought to enlarge or enhance the agreement based on external state
laws). But see Travel All Over the World, Inc., 73 F.3d at 1432 (breach of
contract claim was not preempted because it involved the breach of a
self-imposed undertaking); Aquino, 130 Cal. Rptr. 2d at 233 (breach of
contract claim was not preempted because it did not involve a state
policy).
alia i aaa
App. 25
address airline boarding procedures strengthens our
conclusion that Black’s breach of contract claims resulting
from Delta’s boarding and seating procedures are pre-
empted by the ADA. To hold otherwise could create exten-
sive multi-state litigation, launching inconsistent assaults
on federal deregulation in the airline industry, every time
an airline reassigned a passenger’s seat.
We conclude that Delta’s boarding and seating policies
relate to the services it provided to Black, and that Black’s
claims can only be adjudicated by reference to laws and
policies external to its contract with Delta. Accordingly, we
hold that 49 U.S.C. section 41713(b) preempts Black’s
contract claims.
We now turn to Black’s remaining claims for misrep-
resentation and fraud, which he argues survive ADA
preemption. We disagree. Because Black’s misrepresenta-
tion and fraud claims are premised on Delta’s ticketing
and boarding procedure, they are directly related to
Delta’s services. See discussion supra Part III.A. The court
of appeals concluded, however, that because Black’s
misrepresentation claims did not turn on any requirement
imposed by a Texas legislative body, they were not pre-
empted. __ S.W.3d at __. To the contrary, state tort
actions can be state enforcement under 49 U.S.C. section
41713(b)(1). See, eg., Buckman Co. v. Plaintiff’s Legal
Comm., 531 U.S. 341, 351 (2001); San Diego Bldg. Trades
Council v. Garmon, 359 U.S. 236, 247 (1959) (recognizing
the regulatory effect of state law damage claims and their
potential for frustrating congressional objectives); Kiefer,
920 S.W.2d at 282.
Moreover, both Wolens and Kiefer suggest that state
misrepresentation and fraud claims are preempted by the
App. 26
ADA. Wolens, 513 U.S. at 228; Kiefer, 920 S.W.2d at 283.
Wolens held that state law claims under a state consumer
fraud act were preempted by the ADA. Wolens, 513 U.S at
228. Claims under a consumer fraud statute are compara-
ble to claims for misrepresentation. In Kiefer, we indicated
that “an action for negligent misrepresentation might be
... indistinguishable froin the statutory consumer protec-
tion actions in Morales and Wolens.” Kiefer, 920 S.W.2d at
283. Both would impose state policies on the operation of
air carriers that are external to the parties’ agreement.
Wolens, 513 U.S. at 229 n.5; Kiefer, 920 S.W.2d at 282. A
state’s common law cannot operate against an airline in
this context when it would constitute state enforcement of
a law relating to airline services. See Morales, 504 U.S. at
383. Accordingly, because Black’s misrepresentation and
fraud claims relate to the services Delta provides and if
allowed would amount to enactment or enforcement of
state law, they are preempted.
IV
CONCLUSION
For these reasons, we reverse the court of appeals’
judgment in part and render judgment that Black take
nothing on his claims against Delta Airlines, Inc. and Al
Perez.
Wallace B. Jefferson
Justice
OPINION DELIVERED: September 11, 2003
App. 27
[SEAL]
TENTH COURT OF APPEALS
Chief Justice P.O. Box 1606 Clerk
Rex D. Davis Waco, Texas 76703-1606 Sharri Roessler
Phone: (254) 757-5200
Justices Fax: (254) 757-2822
Bill Vance
Tom Gray
January 30, 2002
In accordance with the enclosed Opinion, below is the
judgment in the numbered cause set out herein to be
entered in the Minutes of this Court as of the 30th day of
January, 2002.
10-00-156-CV ROBERT C. BLACK v. DELTA AIRLINES,
INC., AL PEREZ, AND ABE HADDAD
D/B/A SMITH TRAVEL & LIMOUSINE -
ON APPEAL FROM 192nd DISTRICT
COURT OF DALLAS COUNTY - TRIAL
COURT NO. 96-06320-K — REVERSED
AND REMANDED -— Opinion by Justice
Richards (Sitting by Assignment) — Concur-
ring Opinion by Justice Gray:
“This cause came on to be heard on the transcript of
the record, and the same being considered, because it is
the opinion of this Court that there was error in the
judgment of the court below; it is therefore ordered,
adjudged and decreed that the judgment of the court below
be, and hereby is, reversed and this cause is remanded to
the 192nd Judicial District Court of Dallas County, Texas, in
accordance with the opinion of this Court. It is further
ordered that Appellees Delta Airlines, Inc., Al Perez, Abe
App. 28
Haddad d/b/a Smith Travel & Limousine pay costs of appeal
and that this decision be certified below for observance.”
App. 29
[SEAL]
IN THE
TENTH COURT OF APPEALS
No. 10-00-156-CV
ROBERT C. BLACK,
Appellant
Vv.
DELTA AIRLINES, INC., AL PEREZ,
AND ABE HADDAD D/B/A SMITH
TRAVEL & LIMOUSINE,
Appellees
From the 192nd District Court
Dallas County, Texas
Trial Court # 96-06320-K
ORDER
The motion for rehearing filed by Delta Airlines, Inc:
and Al Perez is denied. The majority and concurring opin-
ions and the judgment dated September 12, 2001, are
withdrawn, and the majority and concurring opinions and
judgment dated January 30, 2002, are substituted therefor.
PER : ?) 3IAM
Before Justice Vance,
Justice Gray, and
Justice Richards (Sitting by Assignment)
Order issued and filed January 30, 2002
Do not publish
[CV06]
App. 30
[SEAL]
IN THE
TENTH COURT OF APPEALS
No. 10-00-156-CV
ROBERT BLACK,
Appellant
Vv.
DELTA AIRLINES, INC.,
AL PEREZ, AND ABE
HADDAD D/B/A SMITH
TRAVEL & LIMOUSINE
Appellees
From the 192nd District Court
Dallas County, Texas
Trial Court # F96-06320-K
OPINION
This is an appeal from two take nothing summary
judgment orders entered against Robert Black [“Black”], a
Dallas resident, in connection with his suit for damages
arising from a planned airline flight to Las Vegas from
Dallas/Fort Worth International Airport. The summary
judgment motions were filed pursuant to TEx. R. Civ. P.
166a(b). Delta Airlines, Inc. [“Delta”], Al Perez [“Perez”],
and Abe Haddad d/b/a Smith Travel & Limousine [“Smith
Travel”] were defendants in the court below. We will
reverse the district court’s summary judgment orders and
remand the case for trial.
App. 31
I. Factual Background
On June 23, 1995, Black purchased two airline tickets
for seats on Delta Airlines for an afternoon flight to Las
Vegas, Nevada. According to Black, he intended the trip to
be a surprise present for his wife, Mary. Black hoped that
the trip would help repair his damaged marriage and, to
that end, ne attempted to ensure a romantic weekend by
arranging for, among other things, first-class airline seats,
a leisurely dinner, and tickets to a Tom Jones concert on
the evening of their arrival. Viewed in the light most
favorable to Black, the nonmovant in the district court, the
record reflects the following events: |
Black purchased the airline tickets on June 23, 1995
from Smith Travel, a Dallas travel agency. The cost for the
two, round-trip, first-class tickets was $2,384, an amount
Black charged on a credit card. The written invoices
appellant received from Smith Travel reflected two first-
class reservations on Delta Airlines Flight 661 to Las
Vegas, scheduled to depart that same day, June 23, at 3:18
p.m. The invoices also reflected the details of a scheduled
return flight to Dallas on June 25. Close inspection of the
invoices shows seat assignments for “Robert Black” for
both directions, however, Mary Black’s invoice reflects a
seat assignment only for the return flight. Nevertheless,
her invoice reflects first-class reservations both directions.
According to Black, Melissa Shinn, the manager of Smith
Travel, personally represented to him that both tickets
were confirmed for first-class travel. Two round-trip
tickets accompanied the itinerary/invoices. Each ticket
indicates, “Issued by DELTA AIRLINES INC,” and reflects
first-class travel for each of the Blacks on flight 661 to Las
Vegas, and flight 1800 on the return trip.
App. 32
The Blacks arrived at the gate prior to departure and
informed the gate agent that they desired to sit together.
The agent said, “I’ll see what I can do.” As the plane
boarded, a Delta supervisor, Al Perez, appeared and told
the Blacks that there was a problem with their reserva-
tions and that one of the tickets was, in fact, not confirmed
tor first-class travel. According to Delta, Black’s ticket was
confirmed for first-class, but the ticket for Mary was
merely a confirmed ticket for a seat in coach, which had
been placed on a “priority wait list for first-class.” Because
first-class was completely filled, Mary would have to fly in
coach. Perez spoke on the phone to Shinn, then told the
Blacks that Shinn’s computer indicated that the tickets
were confirmed for first-class. Perez told them that Delta’s
computer indicated Mary’s ticket was not confirmed. The
Blacks presented summary judgment evidence that this
situation is routinely encountered by Delta and that
hundreds of times passengers arrive at the gate with
confirmed tickets that are somehow not reflected in the
SABRE reservation system used by Delta. In response to
the Blacks plight, several alternatives were offered by
Perez: the Blacks could sit together in coach; fly sepa-
rately, one in coach, one in first-class; or take a later flight.
Black presented evidence that the offered alternatives
were unacceptable given the purpose of the trip: a first-
class romantic flight, and the tight schedule for attending
already paid-for functions in Las Vegas, including the Tom
Jones concert that evening.
After rejecting Delta’s proposed alternatives Black
made other flight arrangements. At a cost of $13,150,
Black hired a private air carrier to transport them to Las
Vegas.
i
App. 33
II. Procedural Background
Black sued Delta under theories of breach of contract,
intentional misrepresentation, and negligent misrepresen-
tation. He sued Haddad, in his capacity as owner of Smith
Travel, under theories of breach of contract, intentional
misrepresentation, negligent misrepresentation, violations
of the Texas Deceptive Trade Practices Act,’ and negli-
gence. Black sued Perez, the Delta flight supervisor, for
intentional misrepresentation and negligent misrepresen-
tation.’
Delta and Perez moved for summary judgment on four
grounds: (1) preemption under the Airline Deregulation
Act of 1978 [“ADA”];’ (2) lack of causation; (3) avoidable
consequences; and (4) Smith Travel’s lack of an agency
relationship with Delta. That motion for summary was
granted. Haddad moved for summary judgment on similar
grounds, save for the agency claim. In addition, Haddad
alleged that summary judgment was proper because he
was not the owner of Smith Travel at the time Black
purchased the tickets. His motion for summary judgment
was also granted.
* See TEx. Bus. & CoM. CODE ANN. § 17.45 (Vernon Supp. 2001).
* Other parties originally included in the suit were either non-
suited by Black or had default judgments entered against them.
* See 49 U.S.C. § 1305 (1994). ‘
App. 34
III. Discussion
A. Standard of review
In a summary judgment case, the issue on appeal is
whether the movant met his summary judgment burden
by establishing that no genuine issue of material fact
exists and that the movant is entitled to judgment as a
matter of law. TEX. R. Civ. P. 166a(c); KPMG Peat Marwick
v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748
(Tex. 1999); City of Houston v. Clear Creek Basin Auth.,
589 S.W.2d 671, 678 (Tex. 1979). The burden of proof is on
the movant, and all doubts about the existence of a genu-
ine issue of material fact are resolved against the movant.
Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.
1999); Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d
280, 282 (Tex. 1996); Great Am. Reserve Ins. Co. v. San
Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.
1965). Therefore, we must view the evidence and its
reasonable inferences in the light most favorable to the
nonmovant. Great Am., 391 S.W.2d at 47.
In deciding whether there is a material fact issue
precluding summary judgment, all conflicts in the evi-
dence are disregarded and the evidence favorable to the
nonmovant is accepted as true. Rhone-Poulenc, 997 S.W.2d
at 223; Harwell v. State Farm Mut. Auto. Ins. Co., 896
S.W.2d 170, 173 (Tex. 1995). Evidence that favors the
movant’s position will not be considered unless it is uncon-
troverted. Great Am., 391 S.W.2d at 47.
The summary judgment will be affirmed only if the
record establishes that the movant has conclusively proved
all essential elements of the movant’s cause of action or
defense as a matter of law. Clear Creek Basin, 589 S.W.2d
at 678. Where, as here, the trial court grants summary
App. 35
judgment in a general order without specifying the ground
or grounds relied on for its ruling, summary judgment will
be affirmed on appeal if any of the theories advanced are
meritorious. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471,
473 (Tex. 1995). —
B. Preemption Analysis
We begin by considering whether the ADA prevents
Black from advancing his causes of action in state court.
Under the supremacy clause of the United States Consti-
tution, federal law may preempt state law either by
express provision, by implication, or by a conflict between
federal and state law. N.Y. Conference of Blue Cross v.
Travelers Ins., 514 U.S. 645, 653-55, 115 S.Ct. 1671, 1676,
131 L.Ed.2d 695 (1995), see also U.S. ConsT. ART. VI. The
manifest intent of the ADA’s preemption provision is to
“ensure that the States would not undo federal deregula-
tion with regulation of their own.” American Airlines v.
Wolens, 513 U.S. 219, 222, 115 S.Ct. 817, 821, 130 L.Ed.2d
715 (1995) (quoting Morales v. TransWorld Airlines Inc.,
504 U.S. at 378, 112 S.Ct. at 2034); see also Legend Air-
lines v. City of Fort Worth, 23 S.W.3d 83 (Tex. App. — Fort
Worth 2000, pet. denied). The ADA prohibits States from
“enact[ing] or enforcling] any law ... relating to [air
carrier] rates, routes, or services.” 49 U.S.C. § 40101, et
seq. (1995). This language has been interpreted by the
* The Federal Aviation Act cited by the parties was repealed,
revised, and recodified in July 1994, prior to the date Black purchased
his tickets. Congress enacted 49 U.S.C. § 40101, et seq. (1995), which
replaced section 1305 without substantive change. The new law
includes section 41713 entitled “Preemption of authority over prices,
routes, and services,” intended to replace section 1305. The revised
(Continued on following page)
App. 36
United States Supreme Court as preempting, and thus
barring, state-imposed regulations of air carriers. Amert-
can Airlines, Inc. v. Wolens, 513 U.S. at 222. Claims for
breach -of contract,’ however, do not constitute “state
imposed regulations,” where parties seek redress in state
court for the violation of contract terms set by the parties
themselves. Id. at 232. The specific issues addressed in
Wolens involved claims brought in Illinois state cotrt
alleging that American Airlines’ action in changing mile-
age credits in its frequent flier program for credits passen-
gers had already accumulated, constituted a breach of
contract and a violation of the Illinois Consumer Fraud
and Deceptive Business Practices Act (Consumer Fraud
Act), 815 Ill. Comp. Stat. Sec 505/1 et seq. (1992). Id. at
224.
Because the Illinois Consumer Fraud Act controlled
the primary conduct of those parties falling within its
section contains only a few minor changes in the language, but the
substance is left intact. Section 41713(b)(1) in part provides: “a State
... May not enact or enforce a law . . . having the force and effect of law
related to price, route, service of an air carrier ... ” This is substan-
tially the same as the old section 1305 cited by the parties. The
legislative history indicates that the “purpose of [the revision] is to
restate in comprehensive form, without substantive change, certain
general and permanent laws related to transportation and ... to make
other technical improvemenis in the Code.” H.R. Rep. No. 180, 103rd
Cong., 2nd Sess. 1 (1993) reprinted in 1994 U.S. Code Cong. and Admin.
News at 818.
* A claim for a breach of contract requires proof that (1) a binding
contract existed; (2) defendants breached the contract; (3) plaintiffs
suffered damages caused by the defendant’s alleged breach. East Tex.
Med. Center Cancer Inst. v. Anderson, 991 S.W.2d 55, 62 (Tex. App. —
Tyler 1998, pet. denied); Ryan v. Superior Oil Co., 813 S.W.2d 594, 596
(Tex. App. — Houston [14th Dist.] 1991, writ denied).
App. 37
governance, the United States Supreme Court held that
the Illinois statute might be used as a means to guide and
police the marketing practices of airlines. Id. at 232.
Noting that the purpose of the Airline Deregulation Act
was to prohibit the states from controlling the selection
and design of marketing mechanisms appropriate to the
furnishing of air transportation services, the Supreme
Court held the ADA preempted the plaintiff’s claims
under the Iilinois Consumer Fraud Act. Id. at 228-232.°
* In Morales, the high court held the ADA precluded state attor-
neys general from seeking to compel air carriers to comply with
guidelines adopted by the National Association of Attorneys General.
Morales, 504 U.S. at 383-90, 112 S.Ct. at 2036-40. American Airlines v.
Wolens stands for the proposition that the ADA does not preclude state
courts from entertaining certain common law tort and contract actions
based on the actions of air carriers. See American Airlines v. Wolens,
513 US. at 232-34, 115 S.Ct. at 826.
Using those benchmark cases as guides, reviewing courts of this
state have carefully examined the nature of the plaintiff’s cause of
action in order to determine whether the claim is preempted by the
ADA. See Continental Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 284
(Tex.1996) (claims for simple negligence held not preempted by the
ADA); The Boon Insurance Agency, Inc. v. American Airlines, Inc., 17
S.W.3d 52 (Tex. App. — Austin 2000) cert. denied 148 L.Ed.2d 712 (2000)
(class-action suit challenging penalties imposed by the airline when the
holder of an economy-class ticket fails to travel according to the ticket’s
original terms, held barred by preemption doctrine because claim
sought to modify terms of the contract by relying on state law); Legend
Airlines v. City of Fort Worth, 23 S.W.3d 83 (Tex. App. — Fort Worth
2000, pet. denied) (enforcement of bond ordinance restrictions to
prevent long-haul air service at Dallas Love Field held preempted by
the ADA); Shupe v. American Airlines Airlines [sic], Inc. 893 S.W.2d 305
(Tex. App. — Fort Worth 1995), aff’d 920 S.W.2d 274 (Tex.1996) (breach
of contract cause of action for failure to comply with agreement to
provide a “meet and assist” service at airport terminal gate held not
preempted).
App. 38
A different result was reached by the high court on the
question of whether breach of contract claims are pre-
empted. Reasoning that the Airline Deregulation Act was
not intended to regulate contracts between individual
parties, the court held it would not read the preemption
clause, 49 U.S.C.S. § 1305(a)(1), to “shelter airlines from
suits alleging no violation of state-imposed obligations, but
seeking recovery solely for the airline’s alleged breach of
its own, self-imposed undertakings,” and ruled breach of
contract causes of action were not subject to federal
preemption. Jd. at 229, 115 S.Ct. at 824. The Supreme
Court clarified its ruling by noting the disparate treat-
ment of statutory causes of action as opposed to those
arising out of contractual agreements:
This distinctior between what the State dictates
and what the airline itself undertakes confines
courts, in breach of contract actions, to the par-
ties’ bargain, with no enlargement or enhance-
ment based on state laws or policies external to
the agreement.
Id. at 233, 115 S.Ct. 232 (footnote omitted).
A rote application of the ruling in Wolens would
require us to hold that Black’s breach of contract claim
against Delta is permissible because it involves alleged
violations of “the parties bargain,” rather than state laws
external to the agreement. Nevertheless, we cannot
overlook the fact that the alleged contractual violation at
issue in this appeal involves a common condition unique to
the airline industry — the failure to seat an allegedly
confirmed ticket holder because of overbooking — and that
unlike the frequent-flier agreements at issue in Wolens,
specific federal regulations govern compensation for air
passengers who are involuntarily prevented from boarding
App. 39
a flight due to overbooking. See 14 C.F.R. §§ 250.4, 250.5,
250.6 (1984).
In other contexts, the Supreme Court has held that
when the statute is silent or ambiguous courts should turn
to agency regulations for clarification. West v. Northwest
Airlines, Inc., 99 F.2d 148 (9th Cir. 1993). If Congress has
explicitly left a gap for the agency to fill, there is an
express delegation of authority to the agency to provide a
specific provision of the statute by regulation. Federal
regulations provide for compensation for passengers whose
confirmed reservations are not honored, without requiring
that the passenger prove economic damages or physical
injury. 14 C.F.R. §§ 250.4, 250.5, 250.6 (1984). The regula-
tions provide for a maximum compensation of $400, which
is halved if the carrier provides alternate transportation
that is planned to arrive at the passenger’s next destina-
tion within a designated time of the arrival time of the
original flight from which the passenger is bumped for
flights within the United States and its territories. Signifi-
cantly, 14 C.F.R. § 250.2a states that the policy behind its
creation is to ensure that every air carrier ensure that the
smallest practicable number of persons holding confirmed
reserved space on flights are denied boarding involuntar-
ily. The regulations provide a uniform system of compen-
sation that may be enforced by the ticket holders, or
declined by the ticket holders, at their discretion, in favor
of damages to be decided “in a court of law or in some
other manner.” See 14 C.F.R. § 250.9(b) (1984). By Black’s
own admission Delta attempted to placate him with
alternatives, but none were acceptable.
As noted above the regulations provide that the
“bumped passenger has the right to decline the compensa-
tion provided for in the regulation and seek to recover
App. 40
damages in a court of law.” See 14 C.F.R. § 250.10 (1984)
(Emphasis added). Delta argues Black was not bumped
because she was offered $60 compensation for sitting in
the flight’s coach cabin, rather than in the first class cabin.
According to Delta, all other remedies are preempted
because § 250.6, provides that, among other exceptions to
eligibility for “denied boarding compensation,” are passen-
gers “ ... seated in a section for which a lower fare is
charged shall be entitled to an appropriate refund.” Black
produced summary judgment evidence showing she held a
confirmed, first-class ticket. Delta produced summary
judgment evidence showing the ticket was confirmed only
for coach. As noted above, settled summary judgment law
requires us to construe the evidence in the light most
favorable to Black, the nonmovant. Under this standard,
we assume that Black was denied her “confirmed reserved
space”’ on Flight 661 due to airline overbooking. Address-
ing Delta’s claim that Black was entitled to only $60
because she was offered seating in coach, we note that 14
C.F.R. § 250.6 does not specifically preempt Black’s claim.
It merely lists Black’s situation (denied first class boarding
with an offer for coach boarding) as an “exception” to
“eligibility for denied boarding compensation.” We there-
fore agree with Delta’s contention that, because Mary was
offered coach seating, Black would not be entitled to
demand the federally required damages available to
" See 14 C.FR. § 250.1 (1983). “‘Confirmed reserved space’, means
space on a specific date and on a specific flight and class of service of a
carrier which has been requested by a passenger and which the carrier
or its agent has verified, by appropriate notation on the ticket or in any
other manner provided therefor by the carrier, as being reserved for the
accommodation of the passenger.”
App. 41
“bumped” passengers choosing compensation under the
regulations of “200 percent of the sum of the values of the
passenger’s remaining flight coupons up to the passenger’s
next stopover, or if none, to the passenger’s final destina-
tion, with a maximum of $400.” 14 C.FR. § 250.5. How-
ever, to say the [sic] Black cannot claim damages outside
the regulation’s compensation system would be incorrect.
In fact, nothing in the code of federal regulations bars
anyone from foregoing regulation remedies and seeking
damages in state court. 14 C.F. R. § 250.9 (1984) requires
the airlines to inform passengers paid compensation that
“[a]eceptance of the compensation may relieve (name of air
carrier) from any further liability to the passenger caused
by its failure to honor the confirmed reservation. However,
the passenger may decline the payment and seek to recover
damages in a court of law or in some other manner.”
(Emphasis added). Because federal airline regulations
allow passengers whose airline reservations are not
honored due to overbooking to seek recovery for damages
“in a court of law or in some other manner,” we hold that
Black’s breach of contract cause of action against Delta is
not preempted by the ADA. Moreover, even if Delta were
correct in its contention that passengers in Black’s situa-
tion can recover only an “appropriate refund” for involun-
tary seating in coach while holding a reserved, first class
ticket, Delta has not shown that the $60 tendered to Black
was “appropriate.”
Federal regulations provide that a person offered
accommodations in a section of the aircraft other than as
specified on their ticket gives up his or her right to com-
pensation under scheme available in the regulations, but
no such waiver is stated for persons who choose the
“passenger option” of “recovering damages in a court of
—
App. 42
law.” See 14 C.F.R. § 250.9 (1984). We additionally note
that Black contends no Delta employee requested other
first-class passengers holding reservations to volunteer for
a payment of Delta’s choosing in return for sitting in
coach. If Mary’s ticket was confirmed for first-class and
Delta did not request volunteers from other ticketed
passengers to give up their seat assignment in exchange
for an airline incentive, Delta itself was in violation of the
very federal regulations it contends foreclose Black from
recovering in a court of law. 14 C.FR. § 250.9 (1984)
provides:
Written explanation of denied boarding compen-
sation and boarding priorities.
(a) Every carrier shall furnish passengers
who are denied boarding involuntarily from
flights on which they hold confirmed reserved
space immediately after they are denied board-
ing occurs, a written statement explaining the
terms, conditions, and limitations of denied
boarding compensation. ...
(b) The statement shall read as follows:
If a flight is oversold (more passengers hold
confirmed reservations than there are seats
available), no one may be denied boarding
against his or her will until airline personnel
first ask for volunteers who will give up their
reservation willingly, in exchange for a payment
of the airline’s choosing. If there are not enough
volunteers, other passengers may be denied
boarding involuntarily in accordance with the fol-
lowing boarding priority of (name of air carrier):
(In this space carrier inserts its boarding priority
rules or a summary thereof, in a manner to be
understandable to the average passenger).
we Le ee
App. 43
To be sure, Delta offered summary judgment evidence
that Al Perez did seek volunteers from other first-class
passengers and that, in fact, he offered the generous
incentive of an additional round-trip ticket to anywhere in
the United States to any first-class passenger who would
give up their seat to Mary and agree to fly on the same
flight in coach. According to Perez, only after no passenger
volunteered did he deny Mary first-class seating. However,
other evidence suggested that was not true. Every reason-
able inference must be indulged in favor of the non-
movant and every doubts resolved in its favor. See, e.g.,
Nixon v. Mr. Property Management Co., 690 S.W.2d 546,
548-49 (Tex. 1985). Black offered summary judgment
evidence that he and his wife arrived at the departure gate
between one hour and forty-five minutes in advance of
boarding, that he did not witness Perez seeking volunteers
from the other first-class passengers, and that, in fact, the
flight was already in the process of boarding when Mary
was first informed that her reservation for first-class
would not be honored. Significantly, Black also averred
that Perez did not appear at the gate until the gate agents
were in the process of boarding passengers for the flight. It
is reasonable to infer that if Perez had asked every first-
class passenger to volunteer to give up their ticket, he
would have done so over the gate public address system.
Because Black was present when Perez arrived at the gate
and did not witness Perez make any offer seeking volun-
teers from the other first-class passengers, in viewing the
evidence in the light favorable to Black, a reasonable
inference is that Delta did not seek volunteers before
denying Mary first-class seating.
App. 44
Whether Black’s claims against Delta for intentional
and negligent misrepresentation® are preempted by the
ADA presents a closer question. In both Morales and
Wolens, the United State’s Supreme Court held that
causes of action based on state consumer protection
statutes are preempted under the ADA. The Texas Su-
preme Court accurately predicted in Continental Airlines
v. Kiefer that this very question would one day be pre-
sented to a reviewing court:
An action for negligent misrepresentation might
be argued to be indistinguishable from the statu-
tory consumer protection actions [held preempted]
in Morales and Wolens. Strict products liability
could be argued to embody State policies to a de-
gree prohibited by ADA regulation policy. These
are but two examples. We need not address these
issues here but leave them for “a closer working
out” in future cases. We hold only that the ADA
does not preempt common-law personal injury
cases negligence claims against air carriers, sub-
ject to the reservations we have expressed as to
damages.
Continental Airiines v. Kiefer, 920 S.W.2d 274, 283 (Tex.
1996).
We now proceed to the “closer working out,” antici-
pated in Kiefer. We begin by noting that while Black seeks
relief under the Texas consumer protection law corollary to
the state laws held preempted by the ADA in Morales and
* We here address only the issue of preemption. Whether the facts
could support a claim under either of these theories was not presented
to the trial court.
App. 45
Wolens — the Texas Deceptive Trade Practices Act® — he
does so only in relation to his claims against Haddad, the
owner of the travel agency. A claim against Delta for
alleged violations of the Deceptive Trade Practices Act
would be preempted by the ADA, in order to prevent our
state legislature from controlling, through consumer
protection acts, “the design and implementation of market-
ing mechanisms appropriate to the furnishing of air
transportation services.” See American Airlines v. Wolens,
513 U.S. 219, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995); See
also Shupe v. American Airiines, Inc., 893 S.W.2d 305, 307-
308 (Tex. App. — Fort Worth 1995), affirmed 920 S.W.2d
274. However, the theories of intentional and negligent
misrepresentation actually pleaded by Black do not turn
on any requirement imposed on Delta by any Texas legis-
lative body. Instead they turn on represe-atations alleged
by Black to have been personaily ma?* to him by Delta
through Perez, and Delta’s alleged agent, Haddad. This
makes the misrepresentation causes of action more similar
to the breach of contract claims historically held not to be
preempted by the ADA, than the consumer protection act
causes of action determined by courts to be preempted,
because the misrepresentation claims involve actions
between the parties in connection with “self-imposed
undertakings,” a factor deemed significant by the Supreme
Court in Wolens. cite. For this reason, we hold that Black’s
causes of action against Delta for intentional and negli-
gent misrepresentation are not preempted by the ADA.
* TEx. Bus. & Com. CoDE ANN. § 17.46 (Vernon Supp. 2001).
App. 46
Because Delta flight supervisor Al Perez’s summary
judgment claims are based on the same grounds advanced
by Delta, including the preemption claims, we find that
Black’s causes of action against Perez for intentional and
negligent misrepresentation are also not preempted by the
ADA. Our disposition of the preemption issue against
Delta and Perez is similar, except that we must also
determine whether travel agencies are covered under the
ADA.
Haddad maintains that as a travel agency marketing
airline tickets, Black’s cause of action against his business
for alleged violations of the Texas Deceptive Trade Prac-
tices Act is preempted by the ADA for the same reason
such a cause of action would not be permitted against an
airline.” Haddad specifically argues that the ADA pre-
empts claims, “directly related to services provided by an
air carrier and those that make reservations for service for
an air carrier.” We disagree. The ADA provides that no
state “shall enact or enforce any law, rule, regulation,
standard, or other provision having the force and effect of
law relating to rates, routes, or services of any air carrier.”
49 U.S.C. § 41713(b)(1) (1994) (emphasis added). The
burden of demonstrating preemption is on the party who
asserts it. See Silkwood v. Kerr-McGee Corp., 464 U.S. 238,
255, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984). Haddad has
not demonstrated on appeal, nor in the court below, a
‘© Haddad took no position in his summary judgment motion on the
question of whether he was acting as an agent of Delta in issuing the
tickets to Black. We therefore are not presented with (and do not
address) whether Haddad is entitled to protection from Black’s decep-
tive trade practices cause of action if Haddad is proven to be Delta’s
agent.
App. 47
congressional intent to shield travel agencies from state
consumer protection laws through the ADA. We agree with
Black’s assertion that his claims against Haddad involve
privately-ordered undertakings that affect the airlines, if
at_all, in too tenuous, remote, or peripheral a manner to
have preemptive effect. See Morales v. Trans World Air-
lines, 504 U.S. at 390. We therefore hold that Black’s
causes of action against Haddad, including the claimed
violation of the Texas Deceptive Trade Practices Act, are
not preempted by the ADA.
C. Causation
Summary judgment was also sought on grounds that
the damages Black suffered were not caused by any
wrongdoing on the part of any appellee. The specific
argument made by Delta, Perez, and Haddad in their
summary judgment motion in the district court follows:
The undisputed evidence shows that plaintiff and
his wife could have traveled on flight 661, with
one passenger in first-class and the other in
coach. Even if Mrs. Black was wrongfully denied
a seat in first-class, the ultimate result of that al-
leged wrongdoing is that Mrs. Black would sit in
coach for the 2 1/2 hour flight, just like 185 other
passengers on this particular Boeing 767. Be-
cause the Blacks were not denied transportation
on flight 661, alternate flight arrangements were
not necessary.... At most, the Blacks would
have suffered “mental anguish” from the moral,
social, or marital humiliation of travel in coach
rather than first-class. As the Blacks are proba-
bly aware, of course, such a claim would not have
a significant legal value.
hneeeeeemennenemenmneniemsnenibnniiaiiiiiiiieaaall
App. 48
Put another way, the movants contend that the Blacks
were, as a matter of law, required to fly on Flight 661 to
avoid having their claim dismissed on grounds of causa-
tion. We do not agree. Although the economic damages
allegedly suffered by Black when he chartered a private jet
to fly him to Las Vegas to ensure his arrival for dinner and
the Tom Jones concert were substantial, we cannot say, as
a matter of law, that a rational jury could not find that
Black suffered at least some damage as a result of the
appellee’s conduct. “[T]he question of causation (foresee-
ability) which controls liability should be determined from
the facts and circumstances of each particular case, and
except where reasonable minds cannot differ, the issue is
one for the jury.” Strakos v. Gehring, 360 S.W.2d 787, 792
(Tex. 1962). We hold that there is at least some evidence
that the allegedly improper conduct of the defendants
caused Black damages.
D. Avoidable Consequences
Delta, Perez and Haddad, contend that Black could
have avoided the damages he allegedly suffered if he had
mitigated his damages through other available travel
alternatives. As a general rule, whether a party has
mitigated his damages is a question of fact reserved to the
fact finder at trial. Walker v. Salt Flat Water Co., 128 Tex.
140, 96 S.W.2d 231, 233 (Tex. 1936). Black presented
evidence that he could not take a later Delta flight to Las
Vegas because his already scheduled post-arrival plans,
including pre-purchased tickets to the Tom Jones concert,
would not permit a later arrival. He also presented evi-
dence that sitting in coach would conflict with the reason
for the trip: a demonstration, through first-class accom-
modations, of his love for his wife and a desire to
App. 49
strengthen his weakening marriage. Whether Black could
have avoided the expense of a privately chartered jet is an
issue we believe is best left to the trier of fact. Appellate
courts are particularly ill-equipped to determine, as a
matter of law, whether particular actions undertaken to
advance interests in “affairs of the heart,” such as Black’s
stated motivation here, are reasonable. Such issues are
better left to the trier of fact to resolve. We therefore hold.
that summary judgment in favor of appellees is not proper
under the theory of “avoidable consequences.”
E. Agency
Delta and Perez contend that summary judgment was
appropriate because Smith Travel was, as a matter of law,
not acting as their agent at the time Black purchased his
tickets. In other words, Delta and Perez claim that they
were not parties to the travel contract made between
Black and Smith Travel. We hold that like the issues of
causation and avoidable consequences, the agency ques-
tion presented in this case cannot be resolved as a matter
of law.
Delta and Perez moved for summary judgment under
this defensive theory based solely on the affidavit of Linda
Wilson, a Reservation Sales Supervisor for Delta. In her
affidavit, Wilson averred she has been employed in Delta’s
reservation department for twenty-nine years and that
Smith Travel, “like all U.S. travel agencies,” is authorized
by a separate corporation, the Airline Reporting Corpora-
tion (“ARC”), to issue tickets on airlines, but that it does
App. 50
not act as an agent for Delta.” She also avers that the ARC
does not authorize travel agents to confirm or accept a
reservation on an airline flight and that when requesting
reservations on Delta travel agents act exclusively on
behalf of the passenger. In response to Wilson’s affidavit,
Black presented the affidavit of James Hargis, a former
Delta passenger service agent with twenty five years’
experience. In connection with the question of agency,
Hargis directly contradicted Wilson and stated that “when
a travel agent issues a ticket, the travel agent acts on
behalf of the air carrier, which in this case is Delta.” The
written disclaimer on the travel documents Black received
from the travel agency at the time of ticketing similarly
states that Smith Travel & Limousine is acting as an
agent for Delta. Under these disputed facts we hold that
Delta and Perez have not established, as a matter of law,
that Smith Travel & Limousine was not acting as Delta’s
agent.
F. Ownership of Smith Travel & Limousine
Haddad moved for summary judgment on the addi-
tional ground that he was not the owner of Smith Travel &
" An agent is one who consents to act on behalf of, and subject to,
the control of the principal, who has manifested consent that the agent
so act. Hand v. Dean Witter Reynolds, Inc., 889 S.W.2d 483, 493 (Tex.
App. — Houston [14th Dist.] 1994, writ denied). Each side tendered
summary judgment affidavits which purported to establish whether
Haddad was Delta’s agent. To the extent that each respective affidavit,
in addition to providing facts pertinent to that issue, addressed the
ultimate question of whether an agency relationship existed, the
affidavits were improper. See Watkins v. Hammerman & Gainer, 814
S.W.2d 867, 870 (Tex. App. — Austin 1991, no writ).
App. 51
Limousine on June 23, 1995. In support of that claim,
Haddad signed an affidavit in which he averred that on
April 1, 1995, he sold Smith Travel & Limousine to a
corporation, Around the Glop, Inc. A written purchase
agreement documenting the sale was attached to his
affidavit. In response, Black produced a certified record
from the Dallas County Clerk’s Office certifying Abe
Haddad began doing business as “Smith Travel & Limou-
sine,” on June 10, 1991, and that he was still on record in
that same capacity as of August 22, 1997. Black also
tendered an affidavit certified by the office of the Texas
Secretary of State indicating that there was no record of
entry indicating any assumed names certificates on file for
the corporation known as Around the Glop, Inc. We hold
that because of this conflicting evidence, that it was not
established, as a matter of law, that Abe Haddad was not
doing business as Smith Travel & Limousine on the date
Black purchased his airline tickets.
Having determined that summary judgment was not
proper on any of the grounds advanced by appellees in the
district court, we sustain issues one and two. Given our
disposition of those issues, it is not necessary that we
address the remaining issues advanced by Black on
appeal. We reverse the district court’s orders granting
summary judgment and remand the case for trial.
DAVID L. RICHARDS
Justice
Before Justice Vance,
Justice Gray, and
Justice Richards (Sitting by Assignment)
(Justice Gray concurring)
Reversed and Remanded
Opinion delivered and filed January 30, 2002
App. 52
Do not publish
CV25
CONCURRING OPINION
This case is being reversed and remanded. With that I
agree. But the only issue which we needed to decide to
reach that result is the question of whether Haddad is the
agent for Delta. Black presented some evidence that
Haddad is the agent of Delta. Accordingly the motions for
summary judgment of Delta and Perez must be reversed
for a determination of that issue. Haddad’s motion must
also be reversed because of the same issue and for the
additional reason that Black introduced some evidence
from which it could be inferred that Haddad was the
owner of the unincorporated travel agency at the time that
Black purchased the tickets.
Once the issue of agency is determined on remand,
many of the other issues purportedly decided in this
opinion: will be advisory opinions because they will no
longer be necessary to a disposition of this case. The
answer to the agency question will control the causes of
action that Black can assert and against whom, the nature
of the damages that can be recovered (tort versus contract’
— general versus special’), what evidence can be considered
against which defendants, and a multitude of other “ripple
" See Weber v. Domel, 2001 Tex. App. LEXIS 3589 (Tex. App. —
Waco 2001, no pet. h.).
* See Hadley v. Baxendale, 9 Exch. 341, 156 Eng. Rep. 145, 5 Eng.
Rul. Cas. 502 (1854).
App. 53
effects” in the manner in which some of the issues pre-
sented in this appeal should ultimately be decided.
The majority gets trapped into attempting to resolve
many of these issues prematurely because this is a very
complex area of the law and the parties have failed to
appreciate the conflicts in the various arguments they
have made in their briefs. This problem is compounded
because the briefs of the parties have failed to clearly
present what allegations were made in the alternative and
the consequences of “proving” one alternative or the other.
On these briefs, and because on remand there may be
additional factual development that would assist us, I
would not attempt to decide whether Black’s claims for
intentional misrepresentation (fraud) and negligent
misrepresentation are preempted by the Airline Deregula-
tion Act.
Finally, because I believe any decision regarding the
preemption issue to be premature, I express only my
reservations about the majority's conclusion that the torts
of fraud and negligent misrepresentation are more similar
to breach of contract claims than they are to consumer
protection statutes and therefore are not covered by the
Airline Deregulation Act’s preemption of efforts by the
various states to regulate the airline industry.
With these comments, I concur in the judgment.
TOM GRAY
Justice
Concurring opinion delivered and filed on January 30, 2002
Do not publish
App. 54
Cause No. 96-6320
ROBERT C. BLACK, § INTHE DISTRICT
Plaintiff, ; COURT
+“ ; DALLAS COUNTY,
: TEXAS
DELTA AIRLINES, INC.
AL PEREZ, ABE HADDAD $ 192nd JUDICIAL
D/B/A SMITH TRAVEL & $ DISTRICT
LIMOUSINE, AND §
MELISSA SHINN, :
Defendants. §
ORDER GRANTING DEFENDANTS DELTA
AIR LINES, INC. AND AL PEREZ’S MOTION
FOR SUMMARY JUDGMENT
(Filed Jan. 9, 1998)
On the 24th day of November, 1997, came on to be
considered Defendant DELTA AIR LINES, INC.’s and
Defendant AL PEREZ’s Motion for Summary Judgment in
the above-styled and -numbered case. After due considera-
tion, the Court finds that there is no material issue of fact
with respect to plaintiffs claims against Delta Air Lines,
Inc. and Al Perez and that judgment should be entered in
favor of these defendants as a matter of law.
IT IS, THEREFORE, ORDERED, ADJUDGED, AND
DECREED that the Motion for Summary Judgment filed
by Delta Air Lines, Inc. and Al Perez is hereby granted in
its entirety and that al claims and causes of action
against Delta Air Lines, Inc. and Al Perez are dismissed
with prejudice to the refiling of same.
App. 55
IT IS FURTHER ORDERED that Robert Black
shall pay Delta Air Lines, Inc. and Al Perez costs of court.
SIGNED this 5 day of January, 1998
/s/ Ted M. Akin
JUDGE PRESIDING
Former JUDGE Court of
Appeals JUDICIAL DISTRICT
COURT SITTING FOR
JUDGE 192nd JUDICIAL
DISTRICT COURT OF
DALLAS COUNTY, TEXAS
APPROVED AS TO FORM:
Ronald E. Harden
State Bar No. 00792079
Dorothy J. Harden
State Bar No. 02342050
The Harden Law Firm, L.L.P.
1221 Texas Community Bank Bldg.
8235 Douglas Avenue, LB 55
Dallas, TX 75225
(214) 369-9871
- (214) 368-4653 Telecopier
Attorneys for Plaintiff
/s/ John G. Sams
Dan K. Horn
State Bar No. 09998615
John G. Sams
State Bar No. 17566100
App. 56
Rynn Freiling
State Bar No. 00784081
102 Decker Court, Suite 200
Irving, Texas 75062
(972) 281-2900
(972) 281-2929 Telecopier
Attorneys for Defendants
Delta Air Lines, Inc. and
Al Perez
App. 57
49 U.S.C.A. § 41713. Preemption of authority over prices,
routes, and service
(a) Definition. - In this section, “State” means a
State, the District of Columbia, and a territory or posses-
sion of the United States.
(b) Preemption. — (1) Except as provided in this
subsection, a State, political subdivision of a State, or
political authority of at least 2 States may not enact or
enforce a law, regulation, or other provision having the
force and effect of law related to a price, route, or service of
an air carrier that may provide air transportation under
this subpart.
(2) Paragraphs (1) and (4) of this subsection do not
apply to air transportation provided entirely in Alaska
unless the transportation is air transportation (except
charter air transportation) provided under a certificate
issued under section 41102 of this title.
(3) This subsection does not limit a State, political
subdivision of a State, or political authority of at least 2
States that owns or operates an airport served by an air
carrier holding a certificate issued by the Secretary of
Transportation from carrying out its proprietary powers
and rights.
(4) Transportation by air carrier or carrier
affiliated with a direct air carrier. —
(A) General rule. — Except as provided in subpara-
graph (B), a State, political subdivision of a State, or
political authority of 2 or more States may not enact or
enforce a law, regulation, or other provision having the
force and effect of law related to a price, route, or service of
an air carrier or carrier affiliated with a direct air carrier
App. 58
through common controlling ownership when such carrier
is transporting property by aircraft or by motor vehicle
(whether or not such property has had or will have a prior
or subsequent air movement).
(B) Matters not covered. — Subparagraph (A) —
(i) shall not restrict the safety regulatory authority
of a State with respect to motor vehicles, the authority of a
State to impose highway route controls or limitations
based on the size or weight of the motor vehicle or the
hazardous nature of the cargo, or the authority of a State
to regulate motor carriers with regard to minimum
amounts of financial responsibility relating to insurance
requirements and self-insurance authorization; and
(ii) does not apply to the transportation of household
goods, as defined in section 13102 of this title.
(C) Applicability of paragraph (1). — This para-
graph shall not limit the applicability of paragraph (1).
14 C.F.R. § 250.1 Definitions.
“Airport” means the airport at which the direct or
connecting flight, on which the passenger holds confirmed
reserved space, is planned to arrive or some other airport
serving the same metropolitan area, provided that trans-
portation to the other airport is accepted (i.e., used) by the
passenger.
“Carrier” means (a) a direct air carrier, except a
helicopter operator, holding a certificate issued by the
Board pursuant to sections 401(d)(1), 401(d)(2), 401(d)(5)
and 401(d)(8) of the Act, or an exemption from section
App. 59
401(a) of the Act, authorizing the transportation of per-
sons, or (b) a foreign route air carrier holding a permit
issued by the Board pursuant to section 402 of the Act, or
an exemption from section 402 of the Act, authorizing the
scheduled foreign air transportation or persons.
“Comparable air transportation” means transporta-
tion provided to passengers at no extra cost by a carrier as
defined above. ;
“Confirmed reserved space”, means space on a specific
date and on a specific flight and class of service of a carrier
which has been requested by a passenger and which the
carrier or its agent has verified, by appropriate notation
on the ticket or in any other manner provided therefor by
the carrier, as being reserved for the accommodation of the
passenger.
“Large aircraft” means any aircraft that has a passen-
ger capacity of more than 60 seats.
“Stopover” means a deliberate interruption of a
journey by the passenger, scheduled to exceed 4 hours, at a
point between the place of departure and the final destina-
tion.
“Sum of the values of the remaining flight coupons”
means the sum of the applicable one-way fares, including
any surcharges and air transportation taxes, less any
applicable discounts.
14 C.F.R. § 250.2 Applicability.
This part applies to every carrier, as defined in
§ 250.1, with respect to flight segments with large aircraft
eee
App. 60
in (1) interstate or overseas air transportation and (2)
foreign air transportation originating at a point within the
United States.
14 C.F.R. § 250.2a Policy regarding denied boarding.
In the event of an oversold flight, every carrier shall
ensure that the smallest practicable number of persons
holding confirmed reserved space on that flight are denied
boarding involuntarily.
14 C.F.R. § 250.2b Carriers to request volunteers for
denied boarding.
(a) In the event of an oversold flight, every carrier
shall request volunteers for denied boarding before using
any other boarding priority. A “volunteer” is a person who
responds to the carrier’s request for volunteers and who
willingly accepts the carriers’ offer of compensation, in any
amount, in exchange for relinquishing the confirmed
reserved space. Any other passenger denied boarding is
considered for purposes of this part to have been denied
boarding involuntarily, even if that passenger accepts the
denied boarding compensation.
(b) If an insufficient number of volunteers come
forward, the carrier may deny boarding to other passen-
gers in accordance with its boarding priority rules. How-
ever, the carrier may not deny boarding to any passenger
involuntarily who was earlier asked to volunteer without
having been informed about the danger of being denied
App. 61
boarding involuntarily and the amount of Board-mandated
compensation.
14 CFR. § 250.3 Boarding priority rules.
(a) Every carrier shall establish priority rules and
criteria for determining which passengers holding con-
firmed reserved space shall be denied boarding on an
oversold flight in the event that an insufficient number of
volunteers come forward. Such rules and criteria shall
reflect the obligations of the carrier set forth in §§ 250.2a
and 250.2b to minimize involuntary denied boarding and
to request volunteers, and shall be written in such manner
as to be understandable and meaningful to the average
passenger. Such rules and criteria shall not make, give, or
cause any undue or unreasonable preference or advantage
to any particular person or subject any particular person
to any unjust or unreasonable prejudice or disadvantage in
any respect whatsoever.
14 C.F R. § 250.4 [Reserved]
14 C.FR. § 250.5 Amount of denied boarding compensa-
tion for passengers denied boarding involuntarily.
(a) Subject to the exceptions provided in § 250.6, a
carrier as defined in § 250.1, shall pay compensation to
passengers denied boarding involuntarily from an oversold
flight at the rate of 200 percent of the sum of the values of
the passenger’s remaining flight coupons up to the pas-
senger’s next stopover, or if none, to the passenger's final
App. 62
destination, with a maximum of $400. However, the
compensation shall be one-half the amount described
above, with a $200 maximum, if the carrier arranges for
comparable air transportation, or other transportation
used by the passenger that, at the time either such ar-
rangement is made, is planned to arrive at the airport of
the passenger’s next stopover or if none, at the airport of
the passenger’s destination, not later than 2 hours after
the time the direct or connecting flight on which confirmed
space is held is planned to arrive in the case of interstate
air transportation, or 4 hours after such time in the case of
foreign air transportation.
(b) Carriers may offer free or reduced rate air trans-
portation in lieu of the cash due under paragraph (a) of
this section, if (1) the value of the transportation benefit
offered is equal to or greater than the cash payment
otherwise required, and (2) the carrier informs the pas-
senger of the amount of cash compensation that would
otherwise be due and that the passenger may decline the
transportation benefit and receive the cash payment.
14 C.FR. § 250.6 Exceptions to eligibility for denied
boarding compensation.
A passenger denied boarding involuntarily from an
oversold flight shall not be eligible for denied boarding
compensation if:
(a) The passenger does not comply fully with the
carrier’s contract of carriage or tariff provisions regarding
ticketing, reconfirmation, check-in, and acceptability for
transportation;
App. 63
(b) The flight for which the passenger holds con-
firmed reserved space is unable to accommodate that
passenger because of substitution of equipment of lesser
capacity when required by operational or safety reasons;
(c) The passenger is offered accommodations or is
seated in a section of the aircraft other than that specified
on the ticket at no extra charge, except that a passenger
seated in a section for which a lower fare is charged shall
be entitled to an appropriate refund; or
(d) The carrier arranges comparable air transporta-
tion, or other transportation used by the passenger at no
extra cost to the passenger, that at the time such ar-
rangements are made is planned to arrive at the airport of
the passenger’s next stopover or, if none, at the airport of
the final destination not later than 1 hour after the
planned arrival time of the passenger’s original flight or
flights.
14 C.FR. § 250.7 [Reserved]
14 C.FR. § 250.8 Denied boarding compensation.
(a) Every carrier shall tender to a passenger
eligible for denied boarding compensation, on the day
and place the denied boarding occurs, except as provided
in paragraph (b), cash or an immediately negotiable check
for the appropriate amount of compensation provided in
§ 250.5.
App. 64
(b) Where a carrier arranges, for the passenger’s
convenience, alternate means of transportation that
departs before the payment can be prepared and given to
the passenger, tender shall be made by mail or other
means within 24 hours after the time the denied boarding
occurs.
14 C.F-.R. § 250.9 Written explanation of denied boarding
compensation and boarding priorities.
(a) Every carrier shall furnish passengers who are
denied boarding involuntarily from flights on which they
hold confirmed reserved space immediately after the
denied boarding occurs, a written statement explaining
the terms, conditions, and limitations of denied boarding
compensation, and describing the carriers’ boarding
priority rules and criteria. The carrier shall also furnish
the statement to any person upon request at all airport
ticket selling positions which are in the charge of a person
employed exclusively by the carrier, or by it jointly with
another person or persons, and at all boarding locations
being used by the carrier.
(b) The statement shall read as follows:
COMPENSATION FOR DENIED BOARDING
If you have been denied a reserved seat on (name of
air carrier), you are probably entitled to monetary
compensation. This notice explains the airline’s obligation
and the passenger’s rights in the case of an oversold flight,
in accordance with regulations of the U.S. Civil Aero-
nautics Board.
App. 65
VOLUNTEERS AND BOARDING PRIORITIES
If a flight is oversold (more passengers hold confirmed
reservations than there are seats available), no one may
be denied boarding against his or her will until airline
personnel first ask for volunteers who will give up their
reservation willingly, in exchange for a payment of the
airline’s choosing. If there are not enough volunteers,
other passengers may be denied boarding involuntarily in
accordance with the following boarding priority of (name of
air carrier): (In this space carrier inserts its boarding
priority rules or a summary thereof, in a manner to be
understandable to the average passenger.)
COMPENSATION OF INVOLUNTARY
DENIED BOARDING
If you are denied boarding involuntarily, you are
entitled to a payment of “denied boarding compensation”
from the airline unless:
(1) You have not fully complied with the airline’s
ticketing, check-in, and reconfirmation requirements, or
you are not acceptable for transportation under the air-
line’s usual rules and practices, or (2) you are denied
boarding because the flight is canceled; or (3) you are
denied boarding because a smaller capacity aircraft was
substituted for safety or operational reasons; or (4) you are
offered accommodations in a section of the aircraft other
than specified in your ticket, at no extra charge, (a pas-
senger seated in a section for which a lower fare is charged
must be given an appropriate refund); or (5) the airline is
able to place you on another flight or flights that are
planned to reach your final destination within one hour of
the scheduled arrival of your original flight.
App. 66
AMOUNT OF DENIED
BOARDING COMPENSATION
Passengers who are eligible for denied boarding
compensation must be offered a payment equal to the sum
of the face values of their ticket coupons, with a $200
maximum. However, if the airline cannot arrange “alter-
nate transportation” (see below) for the passenger, the
compensation is doubled ($400 maximum). The “value” of
a ticket coupon is the one-way fare for the flight shown on
the coupon including any surcharge and air transportation
tax, minus any applicable discount. All flight coupons,
including connecting flights, to the passenger’s final destina-
tion or first 4-hour stopover are used to compute the
compensation.
“Alternate transportation” is air transportation (by an
airline licensed by CAB) or other transportation used by
the passenger which, at the time the arrangement is
made, is planned to arrive at the passenger’s next sched-
uled stopover (of 4 hours or longer) or final destination no
later than 2 hours (for flights within U.S.-points, including
territories and possessions) or 4-hours (for international
flights) after the passenger’s originally scheduled arrival
time.
METHOD OF PAYMENT
The airline must give each passenger who qualifies for
denied boarding compensation a payment by cash or check
for the amount specified above, on the day and place the
involuntary denied boarding occurs. However, if the airline
arranges alternate transportation for the passenger’s
convenience that departs before the payment can be made,
the payment will be sent to the passenger within 24 hours.
The air carrier may offer free tickets in place of the cash
=_
App. 67
payment. The passenger may, however, insist on the cash
payment, or refuse all compensation and bring private
legal action.
PASSENGER'S OPTIONS
Acceptance of the compensation may relieve (name of
air carrier) from any further liability to the passenger
caused by its failure to honor the confirmed reservation.
However, the passenger may decline the payment and seek
to recover damages in a court of law or in some other
manner.
(Approved by the Office of Management and Budget
under control number 3024-0003)
(Authority: Sec. 204 of the Federal Aviation Act of
1958, as amended, 72 Stat. 743; 49 U.S.C. 1324).
14 C.F.R. § 250.10 Report of passengers denied confirmed
space.
Every carrier shall file, on a quarterly basis, the
information specified in BTS Form 251. The reporting
basis shall be flights originating or terminating at, or
servicing, a point within the United States. The reports
are to be submitted within 30 days after the quarter
covered by the report. The calendar quarters end March
31, June 30, September 30 and December 31. “Total
Boardings” on line 7 of Form 251 shall include only pas-
sengers on flights for which confirmed reservations are
offered. No reports need be filed for inbound international
flights on which the protections of this part do not apply.
App. 68
(Approved by the Office of Management and Budget
under control number 2138-0018)
14 C.FR. § 250.11 Public disclosure of deliberate overbook-
ing and boarding procedures.
(a) Every carrier shall cause to be displayed continu-
ously in a conspicuous public place at each desk, station,
and position in the United States which is in the charge of
a person employed exclusively by it, or by it jointly with
another person, or by any agent employed by such air
carrier or foreign air carrier to sell tickets to passengers, a
sign located so as to be clearly visible and clearly readable
to the traveling public, which shall have printed thereon
the following staternent in boldface type at least one-
fourth of an inch high:
NOTICE —- OVERBOOKING OF FLIGHTS
Airline flights may be overbooked, and there is a
slight chance that a seat will not be available on a flight
for which a person has a confirmed reservation. If the
flight is overbooked, no one will be denied a seat until
airline personnel first ask for volunteers willing to give up
their reservation in exchange for a payment of the airline’s
choosing. If there are not enough volunteers the airline
will deny boarding to other persons in accordance with its
particular boarding priority. With few exceptions persons
denied boarding involuntarily are entitled to compensation.
The complete rules for the payment of compensation and
each airlines boarding priorities are available at all
airport ticket counters and boarding locations. Some
airlines do not apply these consumer protections to travel
from some foreign countries, although other consumer
App. 69
protections may be available. Check with your airline or
your travel agent.
(b) Every carrier shall include with each ticket sold
in the United States the notices set forth in paragraph (a)
of this section, printed in at least 12-point type. The notice
may be printed on a separate piece of paper, on the ticket
stock, or on the ticket envelope. The last two sentences of
the notice shall be printed in a type face contrasting with
that of the rest of the notice.
(c) It shall be the responsibility of each carrier to
ensure that travel agents authorized to sell air transporta-
tion for that carrier comply with the notice provisions of
paragraphs (a) and (b) of this section.
(d) [Reserved]
(e) Any air carrier or foreign air carrier engaged in
foreign air transportation that complies fully with this
part for inbound traffic to the United States need not use
the last two sentences of the notices required by para-
graph (a) of this subsection.
(Approved by the Office of Management and Budget
under control number 3024-0018)
(Authority: Sec. 204 of the Federal Aviation Act of
1958, as amended, 72 Stat. 743; 49 U.S.C. 1324).
14 C.F.R. PART 253 - NOTICE OF TERMS
OF CONTRACT OF CARRIAGE
§ 253.1 Purpose.
The purpose of this rule is to set uniform disclosure
requirements, which preempt any State requirements on
App. 70 ~
the same subject, for terms incorporated by reference into
contracts of carriage for scheduled service in interstate
and overseas passenger air transportation.
§ 253.2 Applicability.
This rule applies to all scheduled direct air carrier
operations in interstate and overseas air transportation. It
applies to all contracts with passengers, for those opera-
tions, that incorporate terms by reference.
§ 253.3 Definitions.
Large aircraft means any aircraft designed to have a
maximum passenger capacity of more than 60 seats.
Passenger means any person who purchases, or who
contacts a ticket office or travel agent for the purpose of
purchasing, or considering the purchase of, air transporta-
tion.
Ticket office means station, office, or other location
where tickets are sold that is under the charge of a person
employed exclusively by the carrier, or by it jointly with
another person.
§ 253.4 Incorporation by reference in the contract of
carriage.
(a) A ticket or other written instrument that embod-
ies the contract of carriage may incorporate contract terms
by reference (i.e., without stating their full text), and if it
does so shall contain or be accompanied by notice to the
passenger as required by this part. In addition to other
remedies at law, an air carrier may not claim the benefit
App. 71
as against the passenger of, and the passenger shall not be
bound by, any contract term incorporated by reference if
notice of the term has not been provided to _ passenger
in accordance with this part.
(b) Each air carrier shall make the full text of each
term that it incorporates by reference in a contract of
carriage available for public inspection at each of its
airport and city ticket offices.
(c) Each air carrier shall provide free of charge by
mail or other delivery service to passengers, upon their
request, a copy of the full text of its terms incorporated by
reference in the contract. Each carrier shall keep available
at all times, free of charge, at all locations where its
tickets are sold within the United States information
sufficient to enable passengers to order the full text of
such terms.
(The notice requirements contained in paragraphs (b)
and (c) were approved by the Office of Management and
Budget under control number 3024-0061)
§ 253.5 Notice of incorporated terms.
Except as provided in § 253.8, each air carrier shall
include on or with a ticket, or other written instrument
given to a passenger, that embodies the contract of car-
riage and incorporates terms by reference in that contract,
a conspicuous notice that:
(a) Any terms incorporated by reference are part of
the contract, passengers may inspect the full text of each
term incorporated by reference at the carrier’s airport or
city ticket offices, and passengers have the right, upon
request at any location where the carrier’s tickets are sold
App. 72
within the United States, to receive free of charge by mail
or other delivery service the full text of each such incorpo-
rated term;
(b) The incorporated terms may include and passen-
gers may obtain from any location where the carrier’s
tickets are sold within the United States further informa-
tion concerning:
(1) Limits on the air carrier’s liability for personal
injury or death of passengers, and for loss, damage, or
delay of goods and baggage, including fragile or perishable
goods;
(2) Claim restrictions, including time periods within
which passengers must file a claim or bring an action
against the carrier for its acts or omissions or those of its
agents;
(3) Rights of the carrier to change terms of the
contract. (Rights to change the price, however, are gov-
erned by § 253.7);
(4) Rules about reconfirmation of reservations,
check-in times, and refusal to carry;
(5) Rights of the carrier and limitations concerning
delay or failure to perform service, including schedule
changes, substitution of alternate air carrier or aircraft,
and rerouting.
(Approved by the Office of Management and Budget
under control number 3024-0061)
App. 73
§ 253.6 Explanation of incorporated terms.
Each air carrier shall ensure that any passenger can
obtain from any location where its tickets are sold within
the United States a concise and immediate explanation of
any terms incorporated by reference, concerning the
subjects listed in § 253.5(b).
(Approved by the Office of Management and Budget
under control number 3024-0061)
§ 253.7 Direct notice of certain terms.
A passenger shall not be bound by any terms restrict-
ing refunds of the ticket price, imposing monetary penal-
ties on passengers, or permitting the carrier to raise the
price, unless the passenger receives conspicuous written
notice of the salient features of those terms on or with the
- ticket. F
(Approved by the Office of Management and Budget
under control number 3024-0061)
§ 253.8 Qualifications to notice requirements.
(a) If notice is not provided in accordance with
§ 253.5 at a ticket sales location outside of the United
States that is not a U'S. air carrier ticket office, the price
paid for the portion of such ticket that is for interstate and
overseas air transportation shall be refundable without
penalty if the passenger refuses transportation by the
carrier. Each air carrier shall ensure that passengers who
have bought tickets at those locations without the notice
required in § 253.5 are given that notice not later than
App. 74
check-in for the travel in interstate or overseas air trans-
portation, and that conspicuous notice is included on or
with the ticket stating that the price for that travel is
refundable without penalty.
(b) An air taxi operator (including a commuter air
carrier) not operating under Subpart I of Part 298 of this
chapter shall not be considered to have incorporated terms
by reference into its contract of carriage merely because a
passenger has purchased a flight segment on that carrier
that appears on ticket stock that contains a statement that
terms have been incorporated by reference. However, such
an air taxi operator may not claim the benefit as against
the passenger of, and the passenger shall not be bound by,
any contract term incorporated by reference if notice of the
term has not been provided to the passenger in accordance
with this part.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.