Opposition Brief — Hyundai Motor Co. v. Phillip

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No. 94-867 OFFICE OF THE CLERK

In The

Supreme Court Of The United States

October Term 1994

HYUNDAI MOTOR COMPANY, et al.,

Petitioners,

VS.

EVELYN PHILLIP,

Respondent.

On Petition For A Writ Of Certiorari

To The District Court of Appeal of Florida,

Third District

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

MICHAEL COHEN MARC COOPER

Grand Bay Plaza, Suite 201 Counsel of Record

2665 South Bayshore Drive MAUREEN E. LEFEBVRE

Miami, Florida 33133 COOPER & WOLFE, P.A.

Telephone: (305) 859-9099 700 Courthouse Tower

44 West Flagler Street

Miami, Florida 33130

Telephone: (305) 371-1597

Counsel for Respondent

TABLE OF CONTENTS

Page

pe Py ee ee ee iii

Pa creda hans 6 40s eal Cee ee Oh 1

SEATGMGeres GOP TEM GAGE cc ccc eccces 5

WHY CERTIORARI SHOULD NOT BE GRANTED .... 14

eT Oe SUD oo RS 0 bee es FOS ws we 14

(FRE ra ge ae eo Care ay ee eee ee 16

A. FMVSS 208 does not authorize defective design

CE 6 Ch es Ve hee eae 18

B. FMVSS 208 does not regulate the aspect of per-

CN CED ND ow hh Rice ho res 25

C. At the least, the failure to warn claims against

Hyundai and Central Hyundai were not preempted . 27

CIS 6 Naser e CERCA Se Vee beheeew ees 30

TABLE OF AUTHORITIES

Cases Page

Banks v. California,

SP: POD 8 aap s baw eked née 1

Buzzard v. Roadrunner Trucking Co..,

Fae Fe ee Ge Gas ED once en ecedeewdeaenn 17

Chrysler Corp. v. Tofany,

ere 17,25

Cipollone v. Liggett Group, Inc.,

SES RGR SPE wh uc cacsteneaxe 5 ,24,27,28,29

Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc.,

SG FPPC TIT TE rere Cee 26

Costarelli v. Massachusetts,

i Se, TEED 6 b.o. co sb'n bnce ecb ceews 1

Emerald Acres Inv., Inc. v. Bd. of County Comm'rs,

Gol So0.26 S77 Gee. WE DEA TES 6 acc vcwccuces 3

English v. Gen. Elec. Co.,

Gp ae. ED os wise d 90 4e0 0b0den knee cee 27

Fisher v. Carrico,

See es EE 4-6 ek 6 weet inten ess baneees 1

Garcia v. United States,

So Ge PE oak eh cveeess bucast eueades 26

Garrett v. Ford Motor Co..,

684 F.Supp. 407 (D.Md. 1987) ..............4.. 17

iii

Gingold v. Audi-NSU-Auto Union,

567 A.2d 312 (Pa.Super.Ct. 1989) ............. 17,27

Gotthilf v. Sills,

I Ng 7 A te ee a 3,4,5

In re The Fla. Bar Rules of App. Pro.,

ee tke bea ete e ese 3,4

Jordan v. Paccar, Inc.,

792 F.Supp. 545 (N.D.Ohio 1992) ............... 26

Lake v. Konstantinu,

189 So.2d 171 (Fla. 2d DCA 1966) .............. 6

Matthews v. Huwe,

ad Og Be Si ag Sle bie @ o.4 1

McMaster v. Gould,

ek ae aly Bale ae ed 6 e l

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

Auto. Ins. Co.,

ee ee he ok eee ee ee ds 16

Mullen v. Western Union Beef Co..,

CR eee 1

Myrick v. Fruehauf Corp.,

13 F.3d 1516 (11th Cir. 1994), cert. granted

Freightliner Corp. v. Myrick, Case No. 94-286

I 2664S 5 ce oo Oe 88 a passim

Nash v. Florida Indus. Comm’n,

ee ee eee 4,5

Parker v. Leon County,

601 So.2d 1223 (Pia. ist DCA 1992) .........605. 2

iV

Perry v. Mercedes Benz,

957 F.2d 1257 Ga Cir. 199%)... we es 20,21,22,23,24

Pokorny v. Ford Motor Co..,

SOS F.26 CESS GS Cor. TOP nw cee esas 20,23,26

Rice v. Santa Fe Elevator Co..,

Be ee 6 3b orks oo ORS ere cee eee 27

Richards v. Michelin Tire Corp.,

786 F.Supp. 959 (S.D.Als. 1992) . 0 ww ee ne 29

Silkwood v. Kerr-McGee Corp..,

ee ee eee a ee 28

Sours v. Gen. Motors Corp.,

FER ae Bee Ss TO ¢ be oie Hb baie aa 18

Stratton v. Stratton,

ee es I bk cba oo od ee ee eee 1

Strohm v. Winn-Dixie Stores, Inc.,

174 So.2d 441 (Fla. 2d DCA 1965) .............. 6

Suazo v. Del Busto,

587 So.2d 480 (Fla. 3d DCA 1991) ...........44.. 3

Taylor v. Gen. Motors Corp.,

Bw Fe Le | er rrn rs 2 eee ee 27

Wood v. Gen. Motors Corp.,

Be ey | reer re 20,23,26

. Wright v. State,

S85 So.26 321 (Fila. Sth DCA 1991) 2... ccc cen 3

Wyche v. State,

573 So.2d 953 (Fla. 2d DCA 1991) ...........2.5.4. 3

Zeigler v. Hawkins, /

Sis BO.28 dou (me. tt DCA E975) «ww. cece 6

Statutes

PT: DN MMNEED 6 cee wn ces sc ewsbews deus 4

8 Bea eee Te ee re ory Pee eee 2

PS CUE 6 obs CU ew bee Ve eee wes 2,4

National Highway Traffic Safety Act

gS aa be ome Leer er ae 14,16,28

AD UB. GEIRe certo ssncsecees 16,20,25,26,27

Rane TEE oo 6 kaa ee baa ead 16,19,28

ee ask hee Oh AHA A Os 1,4

i aN 1,2

Federal Motor Vehicle Safety Standard 208........ passim

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

H.R. Rep. No. 1776, 89th Cong., 2d Sess. (1966) ...... 17

1

JURISDICTION

Hyundai asks this Court to review a final judgment based on

a jury verdict which was affirmed by Florida’s Third District

Court of Appeal. It claims that this Court has jurisdiction pursu-

ant to 28 U.S.C. § 1257. Hyundai is wrong.

This Court’s jurisdiction to review state court judgments is

limited. This Court may issue writs of certiorari to review

"[flinal judgments or decrees rendered by the highest court of a

State in which a decision could be had” on matters of federal

law. 28 U.S.C. § 1257(a). However, the final judgment Hyun-

dai asks this Court to review was not rendered by such a court.

Consequently, this Court does not have jurisdiction.

The decision here was rendered by Florida’s Third District

Court of Appeal, an intermediate appellate court. The Florida

Supreme Court is the state’s highest court. Fla. Const. art. V.

Obviously, if further review could have been sought in the Flor-

ida Supreme Court, then the Third District’s decision was not

rendered by the highest court in Florida in which review could be

had. Thus, this Court’s jurisdiction depends on whether the

Florida Supreme Court had jurisdiction to review this decision.

If it did, then Hyundai’s failure to seek that review precludes

jurisdiction here. A long line of precedent demonstrates this

Court’s unwavering devotion to this basic principle. E.g., Costa-

relli v. Massachusetts, 421 U.S. 193 (1975); Banks v. California,

395 U.S. 708 (1969); McMaster v. Gould, 276 U.S. 284 (1928);

Matthews v. Huwe, 269 U.S. 262 (1925); Stratton v. Stratton,

239 U.S. 55 (1915); Mullen v. Western Union Beef Co., 173

U.S. 116 (1899); Fisher v. Carrico, 122 U.S. 522 (1887). The

limitation applies even if the Florida Supreme Court’s jurisdiction

was purely discretionary; the Florida Supreme Court had to be

given the opportunity to exercise that discretion. E.g., Stratton,

239 U.S. 55 (Court did not have jurisdiction to review decision

of Ohio intermediate appellate court where Ohio Supreme Court

had discretion to review decision but petitioner did not seek review).

The Florida Supreme Court’s jurisdiction to review decisions

2

by the district courts of appeal is set out in the Florida Constitu-

tion. It may review district court decisions which conflict with

decisions of other district courts or the Florida Supreme Court.

Fla. Const. art. V, § 3(b)(3); Fla.R.App.P. 9.030(2)(iv). It may

also review district court decisions which pass upon questions

which the district court certifies to be of great public importance.

Fla. Const. art. V, § 3(b)(4); Fla.R.App.P. 9.030(2)(v).

Phillip and Hyundai agree the Florida Supreme Court did not

have conflict jurisdiction to review this decision. However, this

agreement does not confer jurisdiction on this Court since con-

flict is not the sole basis for Florida Supreme Court review.

Hyundai could have moved the Third District to certify the ques-

tion as one of great public importance. It did not do so. If the

Third District agreed to certify the question, the Florida Supreme

Court would have had discretionary jurisdiction under the state

constitution and Fla.R.App.P. 9.030(2)(v)./

A party has the right to request certification by the district

court. "A motion for . . . certification may be filed within 15

days of an order or within such other time set by the court.”

Fla.R.App.P. 9.330(a). See, e.g., Parker v. Leon County, 601

\/ Hyundai claims that Phillip acknowledged the Florida Supreme Court had

no jurisdiction to review the Third District’s decision:

Indeed, in opposing a stay of execution pending Hyundai’s

efforts to seek review in the Florida Supreme Court or in this

Court, plaintiff stated that “(t]he required basis for Florida

Supreme Court jurisdiction does not exist. See Fla.R.App.P.

9.030(a)(2)."

Hyundai's Petition at 1 n.2. This is a misleading abbreviation of Phillip’s

argument. Hyundai lifted this quotation out of context from a paragraph which

dealt with whether Hyundai could show a likelihood of success in the Florida

Supreme Court. Hyundai ignores the two sentences Phillip wrote which pre-

cede the quoted sentence: “This Court’s decision has not been certified to be

one of great public importance; Hyundai never even moved for such certifica-

tion. The required basis for Florida Supreme Court jurisdiction does not exist.”

Thus, Phillip never conceded that Hyundai had exhausted its state remedies. To

the contrary, Phillip pointed out that Hyundai abandoned those remedies. Its

abandonment of those remedies is central to this Court’s jurisdiction.

3

So.2d 1223 (Fla. Ist DCA 1992); Emerald Acres Inv., Inc. vy.

Bd. of County Comm'rs, 601 So.2d 577 (Fla. Ist DCA 1992)

(both granting motion to certify question to Florida Supreme

Court). A district court may deny rehearing but grant the motion

for certification. E.g., Suazo v. Del Busto, 587 So.2d 480 (Fla.

3d DCA 1991); Wright v. State, 585 So.2d 321 (Fla. Sth DCA

1991). Indeed, a party may move for certification without

moving for rehearing. In re The Fla. Bar Rules of App. Pro.,

529 So.2d 687 (Fla. 1988). A motion for certification may be

granted when the issue is one on which the Florida Supreme

Court should be given the opportunity to pass, but there is no

conflict which would allow the court to take jurisdiction. Wyche

v. State, 573 So.2d 953, 955 (Fla. 2d DCA 1991).

That is the situation here. The Florida Supreme Court did

not have conflict jurisdiction. However, Hyundai had the option

of asking to have the question certified. The very lack of conflict

indicated that Hyundai should have asked for a certified question

if it wanted further review of the case. Hyundai chose not to

take advantage of that option. Having failed to seek certification

to the Florida Supreme Court, Hyundai cannot claim now that the

Third District’s decision was "rendered by the highest court of a

State in which a decision could be had."

Gotthilf v. Sills, 375 U.S. 79 (1963), is on point. In that

case, New York’s Appellate Division affirmed a trial court order.

The Court of Appeals denied petitioner’s motion for leave to

appeal because the order was not a final one: it dismissed an

appeal as of right on the same ground. However, New York law

allowed the petitioner to request the Aypellate Division to certify

the question to the Court of Appeals; the petitioner failed to take

advantage of that right. As a result, this Court held that it could

not review the matter because the decision was not from the

highest state court in which review could be had.

Section 589 of the New York Civil Practice Act

provides inter alia that appeals from nonfinal orders

can only be taken to the Court of Appeals by leave

of the Appellate Division upon certified questions.

4

The petitioner at no time applied to the Appellate

Division for such permission. It therefore appears

that the Appellate Division, First Judicial Depart-

ment "was not the last state court in which decision

of that [constitutional] question could be had."

Gorman v. Washington University, 316 U.S. 98,

100, 62 S.Ct. 962, 963, 83 L.Ed. 1300 (1942).

The judgment of the Appellate Division is not that

of the "highest court of a State in which a decision

could be had" within the meaning of 28 U.S.C. §

1257.

375 U.S. at 80.

The same is true here. Fla.R.App.P. 9.330 provides that a

party may request the district court to certify a question to the

Florida Supreme Court as one of great public importance. Thus,

Hyundai had a right to ask the Third District to do so. Hyundai

at no time applied to the Third District for such certification. As

in Gotthilf, "[i]t therefore appears that the [Third District Court

of Appeal] ’was not the last state court in which decision of that

[federal preemption] question could be had.’"

In Nash v. Florida Indus. Comm’n, 389 U.S. 235 (1967), this

Court reached a different conclusion because, at that time, Flor-

ida’s appellate rules did not allow a party to request certification.

389 U.S. at 237 n.1. Because the rules made no provision for a

party to request certification, a party’s "suggestion" that certifica-

tion might be appropriate was a legal nullity. Jd.

However, Florida’s appellate rules have been changed since

Nash was decided. Those rules now specifically allow a party to

ask the district court to certify an issue to the Florida Supreme

Court. Compare former Fla.R.App.P. 3.14 (1973)(authorizing

motions for rehearing) with arrent Fla.R.App.P. 9.330 (replac-

ing rule 3.14 and authorizing motion for certification). See

generally In re The Fla. Bar Rules of App. Pro., 529 So.2d at

687 (Rule 9.330(a) and (b) “have been amended to allow a party

to move for certification of a question to the Florida Supreme

Court based on . . . question of great public importance, without

5

also having to file a separate motion for rehearing"). Because of

the rule change, Florida’s present procedure for seeking review

by certification to the Florida Supreme Court is like the New

York procedure which this Court confronted in Gotthilf, rather

than the one it confronted in Nash. The holding in Gorthilf, not

Nash, controls. This Court has no jurisdiction to review this

State court judgment.

STATEMENT OF THE CASE AND FACTS”!

Introduction. According to Hyundai, plaintiff claimed Hyun-

dai’s seat belt system "was defective because it was equipped

with that [sic] 2-point belt system, and not the 3-point belt system

plaintiff preferred." Hyundai’s Petition at 2. From this premise,

Hyundai argues that this case is worthy of review because it is

like the pre-Cipollone "air bag cases," which held that liability

based on a manufacturer’s decision to install air bags instead of

seat belts was preempted, or the decision in Myrick, which held

that, after Cipollone, liability based on a manufacturer’s decision

to install regular brakes instead of air brakes was not preempted.

The fact is that Hyundai’s characterization of this Case,

designed to make it appear worthy of review, is wrong. Hyundai

was found liable by a state court jury for defectively designing its

two-point system, not for choosing to install one federally

approved option instead of another federally approved option,

i.e., a two-point restraint system instead of a three-point system.

a Plaintiff/Respondent Evelyn Phillip, as Personal Representative of the

Estate of Ann Marie Phillip, will be referred to as she stands in this Court, as

she stood in the trial court and as Phillip. Decedent Ann Marie Phillip will be

referred to as “Ann Marie." Defendants/Petitioners Hyundai Motor Company

(Korea), Hyundai Motor America ("Hyundai") and Central Hyundai Company,

d/b/a Central Hyundai ("Central Hyundai") will be referred to as they stand in

this Court, as they stood in the trial court and by name where appropriate.

"R" refers to the state court record on appeal; "T” refers to the trial transcript;

"SR" refers to the supplemental record filed with the Third District Court of

Appeal. Emphasis is supplied by counsel unless otherwise noted.

6

The long list of cases cited by Hyundai stand for the proposi-

tion that a car manufacturer cannot be held liable merely for

choosing one of the general restraint system options allowed by

the federal government over another. They do not stand for the

proposition that Hyundai may defectively design its chosen option

and then escape common law liability. Hyundai, not the federal

government, designed Hyundai’s two-point system. Thus, Hyun-

dai’s liability for Anne Marie’s death caused by that defective

design is not within the scope of this Court’s review in Myrick or

the cases on preemption cited by Hyundai. To understand this

conclusion, a discussion of the facts and evidence is necessary.

Statement of the case. Ann Marie was involved in a routine

two-car accident while driving a 1988 Hyundai Excel. Her liver

was cut in half by Hyundai’s unusual two-point system and she

bled to death. By interrogatory verdict, the jury found both that

Hyundai's restraint system was defective and that Hyundai and

Central Hyundai negligently failed to warn Ann Marie of the

dangers of that system even though it had other Hyundai Excel’s

on its lot with safer restraint systems. Hyundai and Central

Hyundai appealed. On appeal, they ignored the jury’s tidings

of both defect and failure to warn. They only challenged the trial

court’s denial of their pretrial motion for summary judgment

based on preemption.” The Third District Court of Appeal

ad That summary judgment motion was supported by an affidavit which

stated that federal law gave a manufacturer different options for passenger

restraint systems; the Excel involved in this case used one of those options~an

automatic shoulder belt with no lap belt; and that Hyundai’s implementation of

that option met the minimum crash test criteria of Federal Motor Vehicle Safety

Standard [FMVSS] 208. (R. 247-50). Hyundai's affidavit did not say the

restraint system was reasonably safe and free of any defect—it did not address

defectiveness at all. And, it failed to mention the failure to warn theory at all.

Under Florida law, a summary judgment motion which does not address all

issues is properly denied. Zeigler v. Hawkins, 315 So.2d 200 (Fla. Ist DCA

1975); Lake v. Konstantinu, 189 So.2d 171 (Fla. 24 DCA 1966); Strohm v.

Winn-Dixie Stores, Inc., 174 So.24 441 (Fla. 24 DCA 1965).

In opposition, Phillip relied on the deposition of her expert. He said Hyundai's

(continued...)

ES eee Mee

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7

affirmed. It held that Phillip’s products liability claims, i.e., that

the restraint system in the 1988 Excel was defectively designed

and that Central Hyundai failed to warn, were not preempted by

the National Highway Traffic Safety Act [the Act].

The accident. Ann Marie bought a 1988 Excel from Central

Hyundai in January 1989. (T. 274; 723-24). It had no lap belt,

only an automatic shoulder belt which «as very stiff or rigid.

(T. 443). Hyundai relied on the seat and padding on the lower

dashboard to provide the lower body restraint other systems and

manufacturers provided with a lap belt. (T. 419-21).

Seven months later, Ann Marie was driving her 1988 Excel.

(T. 273, 305-06). She struck an oncoming 1989 Toyota Corolla.

(T. 869, 889-90). Both cars were going about 35 m.p.h. (T.

806). There was nothing unusual about this accident, as even

Hyundai’s expert admitted. (T. 915, 916).

Ann Marie and her front seat passenger wore shoulder belts.

The Toyota’s driver and front seat passenger wore lap and shoul-

der belts. None of the rear passengers in either car wore seat

belts. Everyone walked away without life-threatening injuries--

except Ann Marie.” (T. 506, 928, 932-33, 941). She died

from injuries inflicted by her shoulder belt. (T. 1021, 1469).

Emergency surgery revealed that Ann Marie’s liver was

essentially torn in two; the left lobe was split off from the right.

3/ (...comtinued)

restraint system was defectively designed. Its overly stiff shoulder belt, com-

bined with its web clamp and lack of pelvic restraint, placed unreasonably high

loads on the body’s organs and rendered it defective. (SR. 73-78, 85-87, 94-

100). Indeed, all persons in a crash like this one should survive if the restraint

system is properly designed. (SR. 113).

The trial court denied Hyundai and Central Hyundai's motion for summary

judgment. (R. 316). The case was then tried for nine days. Hyundai and

Central Hyundai both lost. (T. 1611).

“This evidence is in clear contradistinction to Hyundai’s statement to this

Court at 5 that “Ann Marie was killed in a severe car accident.”

8

The vena cava, the principal vein in the body, was torn; the left

hepatic vein was severed. More than four quarts of blood pooled

in Ann Marie’s abdomen. The surgeons could not save her. (T.

633). She bled to death. (T. 1469).

The autopsy report noted that the liver laceration was due to

"blunt force” injury to the abdomen as a result of a car accident.

(T. 636). Phillip’s expert, an engineer and physician, explained

the “blunt force" which killed Anne Marie was the shoulder

harness she was wearing: "[T]he blunt force was caused by the

diagonal shoulder belt that loaded the left lobe of the liver.” (T.

637). The homicide report concurred: Ann Marie’s injuries

were inflicted by the shoulder belt.*/ (T. 1021, 1469).

Restraint system design. A review of the facts in this case

shows that Hyundai’s liability, as found by the jury, was based

on the defective design of its restraint system, not on its decision

to use a two-point system instead of a three-point system.

The first task in designing a restraint system is to restrain the

pelvis. (T. 630). Without adequate pelvic restraint, the body

slides up, down or sideways; this changes the shoulder belt’s

position over the torso and shoulder. (T. 424). The belt can slip

off the shoulder and chest. If it does, then the 2,000 pounds of

force generated in a 30 m.p.h. collision no longer load on the

body’s strong bones. (T. 448, 630). Rather, the shifted belt can

load on the lower ribs; these compress easily because they are

not attached to the sternum. Or, it can load on the liver, spleen

or bowel, which are unprotected by the ribs; this can rupture or

lacerate these organs. (T. 631). From the early 1980’s, General

Motors warned that using a shoulder belt without adequate pelvic

restraint was dangerous. (T. 1252, 1333-34).

The first restraint systems used a lap belt to accomplish the

5/ Hyundai informs this Court at 7 that the coroner testified that Ann

Marie’s injuries were caused by the accident forces, not the shoulder belt.

Hyundai simply ignores the contrary evidence, including that of the neutral

police officer in his homicide report. It also ignores the jury verdict which

rejected Hyundai’s evidence.

9

necessary pelvic restraint. See (T. 630). In the 1970’s, shoulder

belts were added. These direct the load through the strong shoul-

der, down the very strong spine, to the very strong pelvis. (T.

630). However, if a shoulder belt is too stiff, inertial injuries

occur.” If the belt restrains the chest too quickly, the body does

not have enough time to absorb the energy. (T. 1094). The

System must be designed to prevent the chest and abdomen from

slamming into a rigid shoulder strap. (T. 967, 1299-1300).

Another risk of a shifting shoulder belt is "roping"--the edge

of the belt curls on itself. (T. 571). As it curls, it may dig into

flesh and organs beneath. The rigid chest keeps the belt flat.

However, the edge can curl in on the soft abdomen and cut the

liver or other unprotected Organs. (T. 571, 691). Roping

increases the chance and severity of injury. (T. 571, 585).

The liver and spleen "are the most vulnerable organs in the

body for belt loading.” (T. 632). Part of the left lobe of the

liver is totally unprotected; the right lobe is only protected by the

less sturdy part of the lower ribs. (T. 631). This vulnerability is

why it is so important that the shoulder beit not shift and exert

too much pressure in the soft abdominal area. See (T. 632).

Even Hyundai’s experts agreed that a restraint system which

loaded on the abdomen during an accident was a dangerous one.

(T. 1031, 1303-04). See (T. 362).

The federal government requires restraint systems to meet

minimum performance standards. Federal Motor Vehicle Safety

Standard [FMVSS] 208 sets restraint system performance stan-

dards in three areas: the head, chest and femur. (T. 376, 114i,

1295-98). It does not establish standards for every aspect of a

restraint system’s performance. Significantly, it does not estab-

6/ Inertia is the tendency of a body to continue in motion unless disturbed

by an external force. In a 30 m.p.h. collision, the chest organs move ahead at

30 m.p.h. until halted by the chest wall and restraint system. (T. 967, 1299).

10

lish any standards for impact to the abdomen. (T. 377, 692).7/

The Excel’s restraint system. The 1988 Excel restraint

system had an automatic shoulder harness, but no lap belt.

Phillip’s engineering expert found the Excel’s system defective

and unreasonably dangerous. (T. 412). It posed an unreasonable

risk of injury or death in collisions at normal speeds. (T. 412).

Ann Marie’s injuries were caused by three aspects of the Excel’s

restraint system design: (1) the lack of adequate pelvic restraint;

(2) a too-rigid shoulder belt; and (3) a web clamp which made

the belt system too "aggressive." (T. 443-44).

Hyundai attempted to control the pelvis with a knee bolster (a

padded area on the lower dashboard) and a slightly angled seat

reinforced with steel to prevent the occupant’s buttocks from

plowing through the bottom. (T. 419-21, 533, 538). It directed

the restraint load for the lower body to the femur rather than the

pelvis. (T. 1095). The system allowed too much lower body

movement. The knee bolster let the hips slide forward until the

knee hit the bolster. (T. 423, 434, 641-42). Even then, the

pelvis continued to move forward. (T. 643).

Because the occupants of a car involved in an accident are

thrown in the direction of the impact, the knee bolster system

allows even greater lower body movement when, as here, the

accident is not a head-on collision. (T. 640). Here, Ann

Marie’s knees moved 45° to 60° right; they had farther to go

before hitting the knee bolster than if moving straight ahead. (T.

640, 642). This allowed the shoulder belt to shift from loading

safely to the shoulder and spine to loading directly on the abdo-

7/ FMVSS 208 sets minimum standards. Reasonable engineering standards

may require more. (T. 446, 560). A system with a belt that stretches from one

side of the car to the other might meet FMVSS 208’s standards; it might also

strangle the user. (T. 448, 524). Even Thomas, Hyundai’s engineering expert,

admitted that FMVSS 208 does not give the whole picture. He has seen crash

tests where all of FMVSS 208’s performance standards were met but the

dummy flew through the windshield. (T. 1302). Thus, even he acknowledged

that meeting FMVSS 208’s performance standards is the start, not the end, in

designing a reasonably safe occupant restraint system. (T. 560).

11

men and liver area. (T. 436, 635, 642-43).

Another expert explained the effect of Hyundai’s restraint

system on Ann Marie. After the collision, Ann Marie’s pelvis

began moving off the seat, forward and to the right. (T. 641).

The shoulder belt shifted; it tried to restrain her by loading over

her lower rib cage. (T. 642). This did not restrain her pelvis,

which continued to move. (T. 643). Her knees had a long way

to travel before hitting the bolster because she was moving obli-

quely right. Even when her knees hit the bolster, her pelvis kept

moving forward and right, along with her spine and right lobe of

the liver. (T. 642, 643). Simultaneously, the shoulder belt

continued to compress the liver’s left lobe. (T. 643). It was

probably roping moderately. (T. 691-92). As the torso contin-

ued to move to the right, the force applied by the belt opened up

the liver. In the process, it tore off the liver’s left hepatic vein

and ruptured the inferior vena cava. (T. 643).

In addition to inadequate pelvic restraint, Phillip’s expert

identified a second defect in the restraint system: the shoulder

harness itself. Hyundai suggested it simply "borrowed" an

already proven system designed by Volkswagen.®’ It ignored the

differences between the systems. Hyundai altered the seat and

knee bolster. More importantly, the stiffer shoulder strap and

use of a "web clamp" made Hyundai’s system dangerously differ-

ent. See (T. 1098-99).

Shoulder belts are designed to stretch when fully loaded in an

accident; the greater the stretch, the longer the body has to

absorb the energy. (T. 823-34, 1094). The 1988 Excel’s shoul-

der harness was rigid--"just in and of itself there is not enough

energy absorption in the shoulder harness, it is very stiff." (T.

443). It stretched too little-only 4.5%. (T. 444, 577). By

&/ Volkswagen originally developed this “no lap belt" system in the 1970’s

and used it in the 1975 Rabbit. (T. 364, 1074, 1153). However, the 1988

Excel system was not a faithful copy of Volkswagen's two-point system, which

it allegedly copied. See (T. 444). The knee bolster, seat and shoulder harness

were all different. (T. 1098-99).

12

contrast, Volkswagen’s two-point "shoulder belt-only" system

which Hyundai "copied" stretched 20%. (T. 444).

Hyundai also used a web clamp. The shoulder belt pulls out

of a retractor. The web clamp is a device in the retractor that

locks the belt in an accident and prevents the release of excess

webbing. (T. 444, 528-32). Volkswagen did not use one in its

"shoulder belt-only" system. (T. 1098). A web clamp may be

fine with a belt that stretches more than Hyundai’s. (T. 581).

But Hyundai’s combination of a belt with a low stretch factor and

a web clamp “makes it a very aggressive belt." (T. 579). Very

simply, the web clamp accentuated the problems caused by the

rigid shoulder belt. See (T. 581).

The expert analyzed films of Hyundai’s crash tests. (T.

432). They show Hyundai’s shoulder harness did not work well

with the knee bolster. The shoulder belt on the dummy acted as

it had on Ann Marie. The dummy’s hips moved forward and the

shoulder belt took all the load. It slipped under the rib cage and

into the abdomen. The sequence of photos shows the shoulder

strap pressing progressively further into the abdomen, with the

load primarily underneath the rib cage and around the dummy’s

side. (T. 436-37). This means the shoulder belt loaded over the

driver’s liver. (T. 437). The films show at least moderate

roping in this area. (T. 436). All this could be seen by someone

experienced in film analysis, crash tests and restraint systems, but

Hyundai’s engineers saw none of it.” (T. 432-33, 585).

Significantly, the federal regulations on which Hyundai relies

for preemption merely said that Hyundai could use a two-point

” One explanation for Hyundai’s use of such a dangerous system was lack

of experience. Crash testing and evaluating automobile restraint systems and

their effect on people is the province of biomechanical engineering. (T. 624-

25). Hyundai employed no biomechanical engineers when it designed and

tested the 1988 Excel. (T. 330, 345, 624). The engineer in charge of testing

this system had no academic or practical experience. (T. 324). He admitted he

"was just a greenhorn, just two years in the company and not in a position to

conduct research or investigation” when he was put in charge of the crash

testing. (T. 387).

:

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13

system. Those regulations did not tell Hyundai how to safely

design that design. Because proper design was not mandated by

the government but left to Hyundai, the jury’s decision that

Hyundai’s design was defective is not only supported by abun-

dant evidence, but is also not preempted.

Failure to warn. Phillip alleged not only that the seatbelt

system was defectively designed, but also that Hyundai and Cen-

tral Hyundai failed to inform Ann Marie about other seatbelt

systems which were available in Hyundai’s Excels and which had

safer seatbelt systems. Significantly, this failure-to-warn claim

was grounded in unique facts. When Ann Marie went to Central

Hyundai in January 1989 to buy a car, it had various 1988 and

1989 Excels on its lot from which Ann Marie could choose. (T.

723-24, 730). The restraint systems on all the cars were not the

same. Hyundai had three different restraint systems in its

Excels: 1988 models with two-point automatic shoulder belts and

no lap belt; 1988 and 1989 models with conventional three-point

shoulder and lap belts; and 1989 models with two-point automatic

shoulder belts plus a lap belt.

In the 1989 Excels, all of which had a lap belt, the owner’s

manual and driver’s sun visor warned about dangers in not using

the manual lap belt. Hyundai’s visor clearly stated:

IMPORTANT SAFETY INFORMATION:

For full restraint protection, THE MANUAL LAP

BELT AND THE AUTOMATIC SHOULDER

BELT MUST BE SECURELY FASTENED when-

ever the car is moving.

(T. 592, 1240; Pl.Ex. 28). Hyundai’s visor also noted: "Failure

to follow these instructions could increase the chance and/or

severity of injury in an accident.” Id.

Thus, when Ann Marie bought her Excel, Central Hyundai

knew the pelvic restraint offered by its seat/knee bolster was

inadequate. It knew that restraint systems with a lap belt--avail-

able in some 1988 and 1989 Excels—were safer than the shoulder

belt-only system in the 1988 Excel Ann Marie purchased. But

14

Central Hyundai never passed this information on to Ann Marie.

Because Central Hyundai did not tell Ann Marie of the restraint

system differences between the various 1988 and 1989 Excel

models, Ann Marie had no opportunity to make an educated

decision as to which car and which restraint system she wanted.

The jury properly found liability based on this failure to

warn. Because the federal regulations do not address the issue of

warnings at all, this liability, like Hyundai’s liability for defective

design, is not preempted.

WHY CERTIORARI SHOULD NOT BE GRANTED

Summary of Argument. In its attempt to gain certiorari

review by this Court, Hyundai has mischaracterized the claims

against it. Hyundai suggests that certiorari is appropriate because

this case involves preemption under the National Traffic and

Motor Vehicle Safety Act, 15 U.S.C. § 1381 et seq. [the Act],

and the administrative regulations promulgated thereunder

[FMVSS]. Hyundai notes that this Court accepted jurisdiction in

Freightliner Corp. v. Myrick, Case No. 94-286 (Oct. 7, 1994), to

consider the preemptive scope of the Act, and suggests Myrick

will be dispositive here. Hyundai also suggests that, regardless

of Myrick, this Court should review this case because FMVSS

208 and the Act immunize it from tort liability for utilizing a

defective two-point restraint system. Neither suggestion is accu-

rate. Regardless of whether the Act expressly or impliedly pre-

empts conflicting tert claims, Hyundai’s liability here does not

conflict with FMVSS 208 and therefore is not preempted.

To create its preemption argument, Hyundai asserts at 5 that

it was found liable because its vehicle “was defective because it

was equipped with that [sic] 2-point belt system, and not the 3-

point belt system plaintiff preferred." Hyundai is wrong. Hyun-

dai was found liable for defectively designing its two-point sys-

tem, not for choosing to install one federally approved option

instead of another federally approved option, i.e., a two-point

restraint system instead of a three-point system.

While some cases hold that a car manufacturer cannot be

15

liable for choosing one type of federally approved restraint option

instead of another (i.e., airbags instead of belts; regular brakes

instead of anti-lock brakes), neither the federal regulations nor

the cases construing them allow a manufacturer to defectively

design the restraint option chosen. Hyundai, not the federal

government, designed Hyundai’s particular two-point system.

Although the federal regulations allowed Hyundai to use a two-

point system, they did not tell Hyundai how to design it. The

regulations do not specify the degree of rigidity of the shoulder

belt or its other characteristics; they do not mandate the use of

web clamps; they do not specify the existence or degree of seat

ramping; they do not specify the existence, placement, or charac-

teristics of a knee bolster.

Here, Hyundai was found liable, not for using a two-point

system, but for designing a defective one. The two-point system

Hyundai used was defective—the shoulder belt was too stiff, a

web clamp was inappropriate and the pelvic restraint was inade-

quate. As a result, the system allowed too much roping and

placed too great a load on the abdomen. Thus, there is no pre-

emption because the issue before the jury in this case—whether

Hyundai properly designed its two-point system--is outside the

scope of the federal regulations.

Moreover, Myrick does not address the defective design of a

permissible option; it involves the issue of liability based solely

on the use of one federally approved option (regular brakes)

instead of another (anti-lock brakes). Thus, this Court’s decision

in Myrick will not determine Hyundai’s liability here.

Finally, preemption must be applied on a claim by claim

basis. Here, Phillip claimed both failure to warn and design

defect. Under the unique facts of this case, a jury could easily

conclude Central Hyundai had a duty to inform Ann Marie about

the choices in restraint system options and about the availability

of Hyundai Excels on the very same lot with better restraint sys-

tems. Because the federal regulations do not address the issue of

warnings at all, there is no conflict and therefore no preemption.

In sum, even if this Court were to hold that FMVSS 208

16

allows auto manufacturers the freedom to choose a two-point

system, that holding would not address the issue here. It would

not insulate Hyundai from liability for designing the defective

restraint system involved in this case.

The Act. Hyundai bases its preemption claim on the Act.

The Act contains a limited preemption provision:

Whenever a Federal motor vehicle safety standard

established under this subchapter is in effect, no

State or political subdivision of a State shall have

any authority either to establish, or to continue in

effect, with respect to any motor vehicle or item of

motor vehicle equipment any safety standard appli-

cable to the same aspect of performance of such’

vehicle or such item of equipment which is not

identical to the Federal standard.

15 U.S.C. § 1392(d). This preemption clause does not stand

alone. It is molded both by the Act’s purpose and by a savings

clause that protects common law causes of action against the

manufacturer from preemption. Both apply here.

The clear purpose of the Act was to increase the safety of

automobile occupants in car accidents. That purpose was clearly

expressed by Congress within the confines of the Act itself. The

Act’s opening section states:

Congress hereby declares that the purpose of this

chapter is to reduce traffic accidents and deaths and

injuries to persons resulting from traffic accidents.

15 U.S.C. § 1381. This Court has acknowledged that this is the

Act’s true purpose. Motor Vehicle Mfrs. Ass’n v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 32-33 (1983).

To achieve this goal, the Act authorized the administrative

promulgation of safety standards. These standards do not replace

common law standards of care. Section 1397(k)(formerly §

1397(c)) unequivocally provides:

17

Compliance with any Federal Motor Vehicle Safety

Standard issued under this Chapter does not exempt

any person from any liability under common law.

The legislative history makes the same point. The Senate

report addressed the Act’s effect on state law. It concluded:

Moreover, the Federal minimum safety standards

need not be interpreted as restricting State common

law standards of care. Compliance with such stan-

dards would thus not necessarily shield any person

from product liability at common law.

S. Rep. No. 1301, 89th Cong., 2d Sess. at 2710 (1966). The

House report also notes the savings clause is intended to ensure

[t}hat compliance with safety standards is not to be

a defense or otherwise to effect the rights of parties

under common law, particularly those relating to

warranty, contract and tort liability.

H.R. Rep. No. 1776, 89th Cong., 2d Sess. at 24 (1966). !°

(T]hese expressions of legislative purpose should

govern our assessment of the preemptive effect of

the Act and the standards issued under it.

Chrysler Corp. v. Tofany, 419 F.2d 499, 508 (2d Cir. 1969). In

10/ Courts consistently reject the auto industry’s assertion that the Act’s real

purpose is uniform regulation, not safety. “[Uniformity] is a goal only insofar

as it promotes safety. Uniformity is not a goal in and of itself; nor is uniformi-

ty a goal of the Safety Act so that vehicle equipment manufacturers might avoid

tort liability." Welsh v. Century Products, 745 F.Supp. 313, 319 (D.Md.

1990). See also Garrett v. Ford Motor Co., 684 F.Supp. 407, 409 (D.Md.

1987)("Congress intended the Act to save the lives of automobile passengers

through safety standards; not the dollars of automobile manufacturers through

uniformity"); Gingold v. Audi-NSU-Auto Union, 567 A.2d 312, 329-30

(Pa.Super.Ct. 1989). Uniformity cannot “take precedence over Congress’

primary goal of safety." Buzzard v. Roadrunner Trucking Co., 966 F.2d 777,

783 (3d Cir. 1992)("strict uniformity may even interfere with the safety goal,

thus frustrating the Act’s purpose").

18

other words, the federal motor vehicle safety standards are mini-

mum standards. They set a floor for automotive safety, not a

ceiling. By their very terms, compliance does not relieve the

manufacturer of common law liability. Sours v. General Motors

Corp., 717 F.2d 1511 (6th Cir. 1983).

Hyundai claims that FMVSS 208 is an exception to these

rules because it allows a manufacturer to choose among three

different types of systems. Even if FMVSS 208 allows a manu-

facturer to choose any of the general alternatives listed there

without being subjected to tort liability, that exception does not

apply here. Hyundai is not liable because it chose one alternative

over another; Hyundai is liable because it defectively designed its

two-point system. Any exception for FMVSS 208 which Hyun-

dai suggests exists simply does not encompass this action.

A. FMVSS 208 does not authorize defective design

of a restraint system.

Introduction. A jury found that Hyundai’s restraint system

was defectively designed. Hyundai did not challenge the suffi-

ciency of the evidence to support that factual finding in its

appeal. Thus, the simple legal issue which was before the Third

District and which is before this Court is whether the Act and

FMVSS 208 allow Hyundai to design and install an admittedly

defective and unreasonably dangerous two-point restraint system

and then hide behind the fact that two-point systems are generally

authorized. That issue was properly decided adversely to Hyun-

dai; it does not merit further review here.

FMVSS 208. FMVSS 208 authorizes a manufacturer to use

either an automatic two-point system, an automatic three-point

system or airbags. Congress and its reguiatory agencies did not

try to design or approve all such systems. To the contrary, the

government allowed manufacturers to choose between these

general types of systems and relied on the manufacturers to

design them safely. With respect to design, the government

merely set minimum safety standards that each option must meet.

The safety standards for restraint systems involve the head, chest

and femur. There is no safety standard for abdominal loading.

19

Importantly, Congress specifically stated that compliance with

these minimum safety standards does not insulate a manufacturer

from common law liability. Even if some actions are preempted,

claims based on an authorized option’s defective design are not.

Simply put, the federal standards do not shield a manufacturer

from liability when it uses a defective two-point system, a defec-

tive three-point system or a defective airbag system.

Hyundai installed a defectively designed restraint system in

the 1988 Excel which caused Ann Marie’s injury rather than

prevented it. Phillip’s experts identified three defects: (1) inade-

quate pelvic restraint; (2) a too-stiff shoulder harness; and (3) a

web clamp which made the system too “aggressive.” The

restraint system consisted of a single shoulder strap which,

together with the knee bolster, did not adequately confine the

pelvis. The shoulder belt was stiff; a web clamp made it more

rigid. Because the pelvis was unconfined, the shoulder belt could

load 2,000 pounds of force on the abdomen in a collision.

Hyundai cites numerous cases in support of its preemption

claim. Almost all relate to the issue of whether a manufacturer

may be held liable solely because it failed to install airbags.

They recognize that Congress allowed options in lieu of manda-

tory airbags; liability predicated only on a manufacturer’s exer-

cise of the very choice Congress granted would be improper.!!/

These “airbag” cases do not apply here. Phillip does not

claim that Hyundai should have chosen airbags, or some other

authorized system, as its safety restraint option. Instead, she

claimed that once Hyundai chose a "shoulder belt-only” system,

it had a duty to design a system that was not unreasonably dan-

gerous to the user. Under § 1397(k), that duty is enforceable in

sad In the typical airbag case, the plaintiff was not wearing his seatbelt.

Thus, he could not claim the seatbelt system was defective. He could only

claim the manufacturer should have used an automatic system like an airbag.

Courts hold such claims are preempted because federal law allows seatbelts

instead of airbags and states cannot eliminate a choice expressly allowed by

federal law.

20

a common law action.

Hyundai blurs the difference between these two liability

theories. However, the distinction is critical. In one, a plaintiff

attempts to hold a manufacturer liable for choosing one general

type of restraint system authorized by FMVSS 208 over another

authorized system. In the other, a plaintiff attempts to hold a

manufacturer liable for defectively designing the particular type

of restraint system chosen. Both Myrick and H i address the

first situation; they do not address the second.'~ Yet, the second

situation is the issue in this case.

The distinction between liability based on choosing an

approved system and liability based on improper design of that

system is not novel or particularly controversial. Wood v. Gen..

Motors Corp., 865 F.2d 395 (ist Cir. 1988), and Pokorny v.

Ford Motor Co., 902 F.2d 1116 (3d Cir. 1990), are airbag cases

which found preemption. However, both recognized that pre-

emption does not encompass defective design of an approved

option. Wood discussed § 1392(d), the “preemption” clause:

We, of course, do not imply that section 1392(d)’s

prohibition immunizes the manufacturer from liabil-

ity for defective design of an airbag.

865 F.2d at 402 n.10.

Perry v. Mercedes Benz, 957 F.2d 1257 (Sth Cir. 1992), is

on point. Perry drove her car into a ditch. Her airbag did not

inflate on impact. She claimed the airbag was defectively

designed because the force required to trigger its deployment was

too high. The restraint system Mercedes Benz used--airbags—-was

one of the general types approved by FMVSS 208. The system

also met the government’s minimum safety standards. As a

12/ Hyundai cites a few cases which consider whether the failure to install

a lap belt, in itself, is a design defect. They utilize the same reasoning as the

“no airbag” cases and hold that the mere failure to install a lap belt is not an

actionable design defect. They do not suggest that a manufacturer may defec-

tively design that “no lap belt” system.

21

result, Mercedes Benz argued, like Hyundai here, that Perry’s

claim was preempted. The Fifth Circuit disagreed.

The court analyzed the "no-airbag” cases, the same cases on

which Hyundai relies. It acknowledged that some courts have

found preemption in such cases because

the tort claims sought to impose liability on the

manufacturer for choosing an option that the federal

scheme expressly granted them the right to choose.

957 F.2d at 1264. However, Perry concluded that these were

not controlling; the issue was not the same. The issue in Perry

was the manufacturer’s defective design of the chosen system and

not the decision to install one type of system rather than another.

As Perry recognized, common law liability is, at best, preempted

only when the claim is based solely on the manufacturer’s choice

of one alternative allowed by FMVSS 208 over another: preemp-

tion is not a factor when the claim is based on the manufacturer’s

defective design of the alternative it has chosen

Specifically, Perry found no preemption of a claim that the

chosen restraint system was defectively designed because

[I]iability for the defective design of an air bag

system would not necessarily conflict with the

objectives of the Safety Act or the methods that

have been chosen to fulfill those objectives.

957 F.2d at 1265. Perry then concluded:

[E]ven if we assume that allowing liability for a

manufacturer’s failure to install an air bag would

conflict with Congress’ chosen method by removing

or requiring one of the manufacturer’s choices,

Perry’s claim presents a different scenario. Once

the manufacturer chooses an option that includes an

airbag system, Standard 208 S5-S6 merely set forth

minimum performance requirements for that system.

To allow tort liability for the design of that system

would not remove or require any particular choice,

22

or otherwise frustrate the "flexibility" that the fed-

eral scheme provides. We recognize that the manu-

facturer who chooses to meet only the bare mini-

mum performance requirements will be burdened

with the potential for tort liability, but this is the

exact burden that Congress preserved in the Savings

Clause, when it stated that "[c]ompliance with any

Federal motor vehicle safety standard . . . does not

exempt any person from any liability under common

law."

Id. (footnote omitted; emphasis by court).

The same is true here. Once Hyundai chose the option of a

shoulder belt without a lap belt, the regulations merely set forth

minimum performance requirements for that system.'*/ To allow

tort liability for the design of that system does not remove one of

the federally approved options. It merely holds Hyundai respon-

sible for its defective implementation of the option it chose.

Preemption is simply not a factor in this situation.

Hyundai nowhere suggests that Perry was wrongly

decided.'“ Indeed, Hyundai ignores the fact that the Third Dis-

trict relied on Perry, not just Myrick, to support its holding that

the Act did not preempt Phillip’s common law claims. This

selective blindness, however, does not change the fact that Perry

distinguishes between preemption for simply choosing an allowed

option and no preemption for defective design of that option.

Indeed, that was the only point for which Phillip cited Perry in

13/ The cases cited by Hyundai do not suggest that a car manufacturer is

insulated from liability simply because its system meets the minimum standards

for head, chest and femur loads; nor do they do not hold that, because the

minimum standards only address head, chest and femur loads, Hyundai had no

duty to design its system to provide for safe abdomen loads.

14/ —_ Hyundai’s sole reference to Perry is in a footnote where it makes the

cursory claim that Perry is “an off-point case.” Hyundai's Petition at 7.5. It

may be “off-point” for Hyundai’s purposes. However, it is directly “on-point"

to the facts and liability theories at issue here.

23

her Third District brief. The Third District’s citation to Perry

recognizes this distinction and implicitly holds that Phillip’s

claims fall on the "no preemption” side.

The distinction drawn by the Fifth Circuit in Perry, and

acknowledged by the First Circuit in Wood and the Third Circuit

in Pokorny, is common sense. Suppose Hyundai designed a lap

belt with knife-sharp edges which cut into the user during an

accident. Obviously, Hyundai would not be insulated from liabil-

ity simply because the manual belt was part of a restraint system

whose general type was acceptable and which met minimum

performance standards for head, chest and femur compression.

Or, suppose that Hyundai designed an airbag which clung to the

user’s face on deployment and smothered him. Hyundai would

not be insulated from liability simply because an airbag is an

acceptable type of system. Yet, that is exactly what Hyundai

argues here. It claims it may design a restraint system, which

can itself kill the user, and elude liability simply because the

system is of a type generally approved under FMVSS 208 and

meets minimum head, chest and femur force standards.

FMVSS 208 allows a manufacturer to choose a two-point

system; it does not mandate any particular two-point system. It

certainly does not set out the design details of that system.

Although FMVSS 208 may immunize a manufacturer from state

tort liability for simply choosing to use a non-defective two-point

system, it does not immunize a manufacturer from state tort

liability for designing a defective one.

The Myrick case. The Third District cited Myrick v. Frue-

hauf Corp., 13 F.3d 1516 (11th Cir. 1994), to support its

holding that Phillip’s claims against Hyundai were not pre-

empted. This Court has accepted jurisdiction to review Myrick.

From this, Hyundai concludes that this Court’s decision in

Myrick will be controlling here. Hyundai’s argument is mis-

guided. Myrick does not address defective design of an approved

system. Thus, regardless of how this Court decides Myrick, this

24

action will not be affected. !%/

Myrick is factually similar to the airbag cases. In Myrick, the

defendants are two truck manufacturers who did not install anti-

lock brakes on their trucks. The applicable federal safety stan-

dard allowed truck manufacturers to choose whether to install

anti-lock brakes or to use regular brakes instead; the defendants

chose not to install anti-lock brakes.

In other words, the issue in Myrick, like the airbag cases, is

whether the Act preempts common law actions based solely on

the manufacturers’ choice of an equipment option which is speci-

fically allowed by federal safety standards. Even if this Court

decides that the Act preempts such liability, that decision would

not address the issue here. Hyundai is not liable because it chose

a two-point system; Hyundai is liable because it designed and

installed a fatally defective two-point system. Hyundai’s reliance

on Myrick is fueled by Hyundai’s consistent disregard of the

difference between liability for choosing one of several

authorized options, which may be preempted, and liability for the

defective implementation of that choice, which is not.

In sum, Hyundai chose to install a system without a lap belt.

Although that choice was permissible under the federal standards,

Hyundai still had a common law duty to design its system so as

to safely implement that choice. It had a duty not to design a

system where, because of lack of adequate pelvic restraint, the

shoulder belt could shift and load 2,000 pounds of collision force

onto the user’s abdomen and liver. It had a duty to design a

shoulder belt which was not so extraordinarily stiff as to cause its

15/ The Third District’s citation to Myrick as well as to Perry indicates that

it had alternative independent bases for its holding that the claims against

Hyundai were not preempted. The citation to Myrick suggests that it agreed

that, under the rationale of Cipollone v. Liggett Group, Inc., 112 S.Ct. 2608

(1992), the Act did not impliedly preempt the claims. Its citation to Perry indi-

cates that it also agreed that claims based on the defective design of an autho-

rized option were not preempted. Because Hyundai does not attack the Perry

alternative, a decision in Myrick, even if contrary to the Eleventh Circuit’s

decision, will not insulate Hyundai from liability.

25

user fatal injuries in a collision. It had a duty not to use a web

clamp which accentuated the injury producing potential of the

shoulder belt. In short, it had a duty to design a shoulder belt-

only system whose parts functioned together to protect, not kill,

the user. Its failure to do so subjects it to liability. That liability

is not preempted by the Act.

B. FMVSS 208 does not regulate the aspect of

performance at issue here.

Hyundai’s preemption argument is inapplicable to this case

for another reason as well. The federal regulations do not

address abdominal loading; a defect relating to abdominal loading

is therefore not preempted.

Hyundai relies on the following language in the Act:

Whenever a Federal motor vehicle safety standard

established under this subchapter is in effect, no

State or political subdivision of a State shall have

any authority either to establish, or to continue in

effect, with respect to any motor vehicle or item of

motor vehicle equipment any safety standard appli-

cable to the same aspect of performance of such

vehicle or such item of equipment which is not

identical to the Federal standard.

15 U.S.C. § 1392(d). Thus, by its own terms, the Act only

preempts a conflicting state safety standard if two conditions are

met. First, the state standard must apply to the same "item of

motor vehicle equipment” as the federal standard. Second, the

state standard established for that item of equipment must apply

"to the same aspect of performance" as the federal standard. See

Chrysler Corp. v. Tofany, 419 F.2d 499, 506 (2d Cir. 1969).

Both requirements must be met.

The “aspect of performance" at issue in this lawsuit is

abdominal loading. Ann Marie died because Hyundai’s restraint

system allowed the force from the collision to be transmitted to

and exerted against the abdomen instead of the shoulder, spine or

pelvis. But, FMVSS 208 only sets safety standards for three

26

aspects of a restraint system’s performance: the forces which

may be placed on the head, chest and femur during a certain type

of crash test. FMVSS 208 does not regulate performance vis-a-

vis abdominal forces; it is silent on that matter. Even Hyundai

admitted there was no federal standard for this aspect of its

restraint system’s performance. (T. 349, 363, 377).

If there is no federal standard on a particular aspect of per-

formance, there is no preemption under 15 U.S.C. § 1392(d).

Hyundai cannot rely on federal standards which are silent as to

an aspect of performance to preclude liability. Any other conclu-

sion ignores the plain terms of the statute.

Interpretation of a statute must begin with its language.

"Absent a clearly expressed legislative intention to the contrary,

that language must ordinarily be regarded as conclusive." Con-

sumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S.

102, 108 (1980). Moreover, “only the most extraordinary

showing of contrary intentions" of congressional intent "would

justify a limitation on the ’plain meaning’ of the statutory lan-

guage." Garcia v. United States, 469 U.S. 70, 75 (1984)(cita-

tions omitted). When the terms of a statute are unambiguous,

"judicial inquiry is complete, except in rare and exceptional

circumstances." Jd. at 75 (citations omitted).

The language in § 1392(d) on the scope of preemption vis-a-

vis aspect of performance is unambiguous. It must be given

effect according to its plain meaning. Consequently, this action

is not preempted because it does not involve the same aspect of

performance which is addressed by the federal safety standards.

Other rules of statutory construction lead to the same result.

The lower courts have consistently held that the phrase “same

aspect of performance” should be narrowly read to promote the

purposes of the Act. Pokorny, 902 F.2d at 1126; Wood, 865

F.2d at 418; Tofany, 419 F.2d at 510; Jordan v. Paccar, Inc.,

792 F.Supp. 545, 550 (N.D.Ohio 1992). A broad reading is

inconsistent with the Act’s purpose and savings clause. See

Tofany, 419 F.2d at 509-10; Jordan, 792 F.Supp. at 550.

27

A broad reading is also inconsistent with general preemption

principles announced by this Court. The starting place for pre-

emption analysis is the precept that federal preemption is not

favored. Cipollone v. Liggett Group, Inc., 112 S.Ct. 2608,

2617-18 (1992). Courts start “with the assumption that the his-

toric police powers of the States are not to be superseded by [a]

Federal Act unless that is the clear and manifest purpose of

Congress." Id. at 2617 (citations, quotation marks and ellipses

omitted); English v. Gen. Elec. Co., 496 U.S. 72 (1990). This

is especially true when the subject is of traditional state concern,

like tort remedies for personal injuries. See Rice v. Santa Fe

Elevator Co., 331 U.S. 218, 230 (1947); Taylor v. Gen. Motors

Corp., 875 F.2d 816, 823 (11th Cir. 1989); Gingold v. Audi-

NSU-Auto Union, A.G., 567 A.2d 312, 318-19 (Pa.Super.Ct.

1989). Application of these principles mandates that preemption

provisions should be narrowly construed. See Cipollone, 112

S.Ct. at 2618.

Whether viewed as a matter of the plain terms of 15 U.S.C.

§ 1392(d), or whether viewed as a matter of statutory construc-

tion and federalism, the result is the same. Hyundai remains

tortiously liable for the defective design of its restraint system

vis-a-vis abdominal loading because that aspect of its restraint

system’s performance is not the subject of a federal standard.

Simply put, Hyundai cannot design a restraint system which

meets minimum requirements for head, chest and femur loading

but which nevertheless causes serious injuries to other parts of

the body not covered by any federal standards and then seek to

avoid liability under the guise of preemption. Thus, Hyundai’s

common law liability is not preempted by the Act.

C. At the least, the failure to warn claims against

Hyundai and Central Hyundai were not pre-

empted.

Phillip’s claims against Hyundai were not limited to design

defects. To the contrary, through interrogatory verdict the jury

specifically found a negligent failure to warn in addition to defec-

tive design. (T. 1611). Hyundai’s motion for summary judg-

28

ment, the denial of which was the only issue it raised on appeal,

never addressed this claim; it did mot argue that the failure to

warn claims were preempted. Yet, that claim makes certiorari

inappropriate here.

Federal preemption is a scalpel, not a bludgeon. It must be

used precisely and narrowly. It requires a claim by claim analy-

sis of the causes of action. The fact that one claim is preempted

does not mean that all are. Cipollone, 112 S.Ct. at 2621-25.

Here, even if the design defect claim is preempted, the failure to

warn claim is not.

There are two general ways in which state law claims are

preempted. If Congress evidences an intent to occupy the entire

field, then state laws within that field are preempted. Silkwood

v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984). There is no

suggestion here that Congress intended to wholly occupy the field

of automotive safety to the exclusion of the states. Indeed, the

savings clause in 15 U.S.C. § 1397(k) evidences the opposite

intent since it saves state common law actions.

State law may also be displaced if the state law actually

conflicts with the federal law. This means that a state law may

not be enforced if it: (1) is impossible for a manufacturer to

comply with both the state and the federal law; or (2) obstructs

the achievement of the full purposes and objectives of Congress.

Silkwood, 464 U.S. at 248. Neither of these reasons for preemp-

tion exist here either.

Tnere is no actual conflict between a state tort claim

imposing a duty to warn and FMVSS 208. In fact, the Act and

FMVSS 208 are completely silent on the issue of warnings. It is

not impossible to comply with FMVSS 208 as well as with state

law requirements on warnings. As a result, there is no preemp-

tion because of actual conflict.

Moreover, imposing a duty to warn does not impede Con-

gress’ objectives under the Act. The explicit and announced

purpose of Congress in passing the Act was to improve automo-

bile occupant safety. 15 U.S.C. § 1381. Imposing a duty to

29

warn does not obstruct this goal.

In short, there is no preemption of the duty to warn.

FMVSS 208 addresses equipment performance requirements. At

best, it preempts state regulations that establish standards "appli-

cable to the same aspect of performance of such vehicle or such

items of equipment." Enforcing a duty to warn does not estab-

lish contrary standards; neither does it frustrate the Act’s pur-

pose. As a result, the state claim is not preempted. See

Richards v. Michelin Tire Corp., 786 F.Supp. 959 (S.D.Ala.

1992)(Act does not preempt claim based on duty to warn of

tire/rim mismatching).

Hyundai makes no reference in its petition to the failure to

warn claims. Hyundai simply fails to address this Court’s analy-

sis in Cipollone which distinguished between claims based on

failure to warn and other claims in the case.

Cipollone involved the Cigarette Labeling and Advertising

Act which mandated that specific warnings be put on packs of

cigarettes. The Act had a preemption clause which provided that

no other warnings shall be required on the package or in adver-

tising. This Court addressed the scope of federal preemption of

common law tort claims against the cigarette manufacturer. It

held that duty to warn claims based on allegations that the manu-

facturer should have included additional or clearer warnings were

preempted. However, failure to warn claims based on the manu-

facturer’s testing or research practices were not preempted.

Claims for breach of express warranty, fraudulent misrepresenta-

tion and conspiracy also were not preempted. Thus, Cipollone

held that warning claims were preempted only to the extent they

fell within the statute. Other claims were not preempted.

In Cipollone, the federal legislation addressed warnings and

nothing else. Thus, only warning claims were preempted.

Claims which were not addressed by the federal legislation were

not preempted. Here, the federal legislation does not say any-

thing about warnings. Those claims are not preempted.

There is no conflict between the restraint systems suggested

30

by FMVSS 208 and imposing a duty to warn a customer that the

manufacturer’s shoulder and lap belt system is safer than that

manufacturer’s shoulder belt-only system, or that the same model

is available with a lap belt. Moreover, establishing such a duty

is not detrimental to the safety goals of the Act. Hyundai and

Central Hyundai could easily have met both requirements, with

no detriment to the safety of automobile occupants. A duty to

warn simply requires Hyundai and Central Hyundai to notify the

buyer of her alternatives. Because there is no conflict between

this common law duty to warn and FMVSS 208, there is no pre-

emption of this claim.

CONCLUSION

This is not a case where Hyundai was found liable for

choosing one federally approved option instead of another. To

the contrary, the jury specifically found Hyundai liable because it

defectively designed the chosen option and because it negligently

failed to warn about the availability of its cars with different

restraint systems. Thus, although the question Hyundai presents

is interesting and perhaps important, it is not a basis for certior-

ari review in this case. Certiorari should be denied.

Respectfully submitted,

MICHAEL COHEN MARC COOPER

Grand Bay Plaza, Suite 201 Counsel of Record

2665 South Bayshore Drive MAUREEN E. LEFEBVRE

Miami, Florida 33133 COOPER & WOLFE, P.A.

Telephone: (305) 859-9099 700 Courthouse Tower

44 West Flagler Street

Miami, Florida 33130

Telephone: (305) 371-1597

Counsel for Respondent

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