# Opposition Brief — Schlotz v. Hyundai Motor Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 823

## Text

No. 96-2032 YUL 28 1997
& CLERK
In The

Supreme Court of the United States

October Term, 1996
¢

ROBERT C. SCHLOTZ AND CINDY J. SCHLOTZ,

Petitioners,

HYUNDAI MOTOR COMPANY, A SOUTH KOREAN
CORPORATION; HYUNDAI MOTOR AMERICA, INC.,
A CALIFORNIA CORPORATION; MITSUBISHI MOTOR
SALES OF AMERICA, INC., A DELAWARE
CORPORATION, AND WALTER CARL ALBERS,

Respondents.
¢

On Petition For A Writ Of Certiorari
To The Minnesota Court Of Appeals
+

OPPOSITION TO PETITION
FOR A WRIT OF CERTIORARI
¢

BOWMAN AND Brooke, LLP McCurtTcHEn, Doy.e, BROowN

Davip W. Graves, JR. & ENersEN, LLP
Rosert M. Lewis Davip M. HEILsBRON
150 South Fifth Street Lesure G. LANDAU*
Suite 2600 Han N. TRAN

Minneapolis, MN 55402 Three Embarcadero Center
Telephone: (612) 339-8682 San Francisco, California
94111
Telephone: (415) 393-2000

Attorneys for Respondents Hyundai Motor Company,
Hyundai Motor America, Inc. and Mitsubishi Motor
Sales of America, Inc.

*Counsel of Record
July 28, 1997

~\
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\

TABLE OF CONTENTS

Page
gt Ft ag 8 Meee Prey Tyee Te ee Pee ET TPeeTeee 1
REASONS FOR DENYING THE PETITION......... 3

I.

THE COURT HAS NO JURISDICTION
BECAUSE THERE IS AN INDEPENDENT
AND ADEQUATE STATE LAW GROUND
PO Way Se hnds in cdenpeecas cede

A.

The Ruling That State Law Bars Peti-
tioners’ Action Forecloses Review Of The
Separate Preemption Ground. ...........

Petitioners’ Failure To Adequately Raise A
Federal Constitutional Challenge To Min-
nesota’s Application Of Its Own Statute
PE AE, cccdneccanusviencaeeni

In Any Event, The New-Found Federal
Constitutional Argument Is Not Signifi-

THERE WOULD BE NO REASON TO REVIEW
THE PREEMPTION ISSUE, EVEN IF THERE
pop gs

A.

The History Of Federal Regulation Of
TTP ETT eee

Re AE PRES ahs 0'b5 da ences os ece'nc
De SR Chats shbesehinwennin vanes

3. NHTSA’s Approval Of The System In
PE Airs ieietthOhesd 004 + eden

4. Secretary Dole’s Final Rule...........

7

10

12
12
13

15

ii

TABLE OF CONTENTS - Continued
Page

B. There Is No Significant Conflict Or
Urgency On The Question Whether
FMVSS 208 Preempts “No Lap Belt”

CARIES... 6 2 ov 0cnvchasdnesn> pdapeaiuakuncn 18

C. The Court Correctly Resolved The Pre-
emngtiom TGGUBy. acess cstdsns sis dunidiagese 22
1. Express Preemption. ................. 22

a. The Meaning Of The Preemption
CRINRE. bien ccascccicscsantenennes 22

b. The Meaning Of The Savings
CPOUER. 11
Panarites v. Williams, 629 N.Y.S.2d 359 (N.Y. App.

Che. BO ash es ae BUR Encl TRF RS 10
Pennsylvania R.R. v. Puritan Coal Mining Co., 237

WB. TRE COD ESD ook RE, EG a RG 26

ix
TABLE OF AUTHORITIES - Continued

Pennsylvania v. Nelson, 350 U.S. 497, reh’g denied,
tn ne ree ee 27

Perry v. Mercedes Benz, 957 F.2d 1257 (5th Cir. 1992) .... 28
Pokorny v. Ford Motor Co., 902 F.2d 1116 (3d Cir.),

cert. denied, 498 U.S. 853 (1990) ............... passim
San Diego Bldg. Trades Council v. Garmon, 359 U.S.
hha a eek Che kids habe Brief of
Appellants at 39.

In the end, Petitioners attack a straw man here: a
decision by a different court, in a different case, after the
decision here, and on which the decision here necessarily
could not have been based. (Pet. 25-28 [citing Olson v.
Ford Motor Co., 558 N.W.2d 491 (Minn. 1997)]) The time
for petitioning in Olson has passed. There is no reason to
revive it through the back door, via a case that does not
address the issue at all.

In sum, Petitioners seek review of an issue that was
not fairly presented to the Court of Appeals, and that was

3 See Adams, 117 S. Ct. at 1030 (“The discussion of ‘a federal
case, in the midst of an unrelated argument, is insufficient to
inform a state court that it has been presented with a claim’ ”)
(quoting Board of Directors of Rotary Int’l v. Rotary Club of Duarte,
481 U.S. 537, 550 n.9 (1987)).

a

7

not decided by that Court, much less by the highest court
of the state. There is, accordingly, no “adequate factual
and legal record” to “assist [the Court] in [its] delibera-
tions” and “aid in [its] understanding of the [Minnesota
statute] as a predicate to [the Court’s] assessment of [its]
constitutional adequacy.” Adams, 117 S. Ct. at 1031. The
Court should deny certiorari.

C. In Any Event, The New-Found Federal Consti-
tutional Argument Is Not Significant.

On the merits, Petitioners’ constitutional argument is
muddled. In essence, Petitioners propose that Minnesota
cannot, as a matter of its own state policy, determine
rules of evidence governing evidence about seat belts.
That is, at the outset, an odd proposition. A state is
constitutionally entitled to set its own rules of evidence,
even if those rules may adversely affect some cases. See,
e.g., Montana v. Egelhoff, 116 S. Ct. 2013, 2017, 2022-23
(1996) (“any number of familiar and unquestionably con-
stitutional evidentiary rules . . . authorize the exclusion of
relevant evidence” and “the introduction of relevant evi-
dence can be limited by the State for a ‘valid’ reason”)
(plurality opinion); Marshall v. Lonberger, 459 U.S. 422, 438
n.6 (1983). That is all the Minnesota statute does: it even-
handedly excludes evidence about installation or use of
seat belts - by either party - in automotive litigation.
That rule may have the effect of precluding some actions
or defenses, both ways, but there is no constitutional
affront in that. See Egelhoff, 116 S. Ct. at 2071 n.1.

Petitioners object that a purpose behind the rule — to
“shield manufacturers from lawsuit should state-manda-
ted seat belts ultimately result in injuries to motorists”
(Olson, 558 N.W.2d at 495) - no longer is valid. Appar-
ently, the argument is that now the federal government,
not the state government, requires seat belts, so the pur-
pose fails. But to the extent Petitioners made an equal

8

protection challenge below, that was not it.4 Anyway,
Petitioners do not quarrel with the proposition that pro-
tection of a manufacturer from liability for following the
law’s mandate is a rational exercise of state power; it
should not matter, then, that the mandate’s source is now
federal, not state, law. See Heller v. Doe, 509 U.S. 312,
319-20, 324 (1993) (legislature “need not actually articu-
late at any time the purpose or rationale supporting its
classification. Instead, a classification must be upheld
against equal protection challenge if there is any reason-
ably conceivable state of facts that could provide a ratio-
nal basis for the classification”; “statutory classification
fails rational-basis review only when it rests on grounds
wholly irrelevant to the achievement of the State’s objec-
tive”) (citations omitted).5

Indeed, there is an irony to Petitioners’ argument. In
opposing preemption, Petitioners urge that the Safety

* Rather, below Petitioners urged that the statute’s purpose
was (1) “impossible to evaluate;” and (2) maybe was to prevent
injured people from confronting contributory. negligence
arguments because they didn’t buckle up, and so did not justify
application of the statutory ban on seat belt evidence to
crashworthiness claims. Brief of Appellants at 44. Petitioners
said nothing whatever about the purpose they now address: to
protect manufacturers from liability when they followed the
law’s requirements for installing seat belts.

5 See also Nordlinger v. Hahn, 505 U.S. 1, 11 (1992) (“Equal
Protection Clause is satisfied so long as there is a plausible
policy reason for the classification, the legislative facts on which
the classification is apparently based rationally may have been
considered to be true by the governmental decisionmaker, and
the relationship of the classification to its goal is not so
attenuated as to render the distinction arbitrary or irrational”)
(citations omitted); Bowen v. Gilliard, 483 U.S. 587, 601 (1987) (“A
statutory discrimination will not be set aside if any state of facts
reasonably may be conceived to justify it.”) (quoting Dandridge
v. Williams, 397 U.S. 471, 485 (1970)).

9

Act’s “savings clause” permits states to decide for them-
selves whether to permit common-law juries to judge
what seat belts should be installed, and whether the
federal restraint system options are appropriate. Pp.
25-28, below. Yet, when Minnesota decides as a matter of
state policy not to allow any inquiry into seat belt
choices, Petitioners insist that the same savings clause
forecloses that state decision: “the Federal government -
via the Safety Act and its regulations - now sets the
appropriate standards and liability,” Petitioners argue.
(Pet. 26) “Congress’ decision to create universal safety
regulations,” Petitioners say, “now dictates the appropri-
ate liability.” (Pet. 27; see also id. at 29) (“[I]t is Congress,
not the State of Minnesota, which now prescribes the
appropriate seat belts.”). Petitioners cannot have it both
ways. The Safety Act cannot both let the states decide
whether to permit claims, and dictate what decision they
make.

As to the argument about timing - the fact that the
statute preceded both the Safety Act and crashworthiness
liability (Pet. 27) - Petitioners have it backward. The
statute set state policy about seat belts, and prohibited
seat belt evidence offered by any party, before any crash-
worthiness cause of action existed. Thus, Petitioners have
not been deprived of a crashworthiness cause of action by
the statute (Pet. 26); they never had one. Minnesota
adheres to the universal rule that the common law may
not abrogate a legislafive rule. State v. DeWitt, 389 N.W.2d
722, 726 (Minn. 1986) (“It is not the function of the courts
to frustrate the clearly expressed will of the legislature.”).
Its adherence to that rule raises no constitutional prob-
lem.

Finally, whatever the merits of Petitioners’ arguments
about Minn. Stat. § 169.685, subd. 4, the issue is not one
worthy of review. A decision in this case, either way,
would have limited practical effect in Minnesota, and
none elsewhere. The constitutionality of a limited appli-
cation of a Minnesota rule of evidence simply does not

NN

10

present a substantial question that merits this Court's
attention.

II. THERE WOULD BE NO REASON TO REVIEW
THE PREEMPTION ISSUE, EVEN IF THERE WERE
JURISDICTION.

Over 100 courts - including every federal circuit to
address the question,® over a dozen state appellate courts,”

6 Harris v. Ford Motor Co., 110 F.3d 1410 (9th Cir. 1997);
Montag v. Honda Motor Co., 75 F.3d 1414 (10th Cir.), cert. denied,
117 S. Ct. 61 (1996); Pokorny v. Ford Motor Co., 902 F.2d 1116 (3d
Cir.), cert. denied, 498 U.S. 853 (1990); Kitts v. General Motors
Corp., 875 F.2d 787 (10th Cir. 1989), cert. denied, 494 U.S. 1065
(1990); Taylor v. General Motors Corp., 875 F.2d 816 (11th Cir.
1989), cert. denied, 494 U.S. 1065 (1990); Wood v. General Motors
Corp., 865 F.2d 395 (1st Cir. 1988), cert. denied, 494 U.S. 1065
(1990); see also Gracia 0. Volvo Europa Truck, N.V., 112 F.3d 291
(7th Cir. 1997) (finding preemption of common-law claim under
FMVSS 212).

7 Zimmerman v. Volkswagen of America, 920 P.2d 67 (Idaho
1996), cert. denied, 117 S. Ct. 1245 (1997); Cooper v. General Motors
Corp., 1996 WL 272362 (Miss. May 23, 1996); Martinez v. Ford
Motor Co., ___ N.W.2d __, 1997 WL 341786 (Mich. App. June 20,
1997); Minton v. Honda of America, 1996 WL 402070 (Ohio Ct.
App. July 19, 1996), certif. granted, 670 N.E.2d 1007 (Ohio Oct. 23,
1996); Cellucci v. General Motors Corp., 676 A.2d 253 (Pa. Super. |
Ct.), appeal granted, 684 A.2d 555 (Pa. Oct. 22, 1996); Dykema v. ;
Volkswagenwerk A.G., 525 N.W.2d 754 (Wis. App. 1994), cert. |
denied, 116 S. Ct. 60 (1995), reh’g denied, 116 S. Ct. 549 (1995);
Miranda v. Fridman, 647 A.2d 167 (N.J. Super. Ct. App. Div.), ’
certif. denied, 649 A.2d 1291 (N.J. 1994); Panarites v. Williams, 629
N.Y.S.2d 359 (N.Y. App. Div. 1995); Marrs v. Ford Motor Co., 852
S.W.2d 570 (Tex. Ct. App. 1993); Boyle v. Chrysler Corp., 501
N.W.2d 865 (Wis. Ct. App.), rev. denied, 510 N.W.2d 137 (Wis.
1993); Nissan Motor Corp. v. Superior Court (Meier), 212 Cal. App.
3d 980 (1989), cert. denied, 494 U.S. 1066 (1990); Gardner v. Honda
Motor Co., 536 N.Y.S.2d 303 (N.Y. App. Div. 1988), motion for
reargument denied, 74 N.Y.2d 715 (1989); Wickstrom v. Maplewood

Ta eas IM at

11

and scores of federal district courts® — have held that the
Safety Act and FMVSS 208 preempt claims that a vehicle

Toyota, Inc., 416 N.W.2d 838 (Minn. App. 1987), cert. denied, 487
U.S. 1236 (1988).

8 E.g., Courtney v. Mitsubishi Motors Corp., 926 F. Supp. 223
(D. Mass. 1996); Martin v. Ford Motor Co., 914 F. Supp. 1449 (S.D.
Tex. 1996); Folkes v. Volkswagen of America, No. 94-D-977 (D.
Colo. June 11, 1997); Thomas v. General Motors Corp., No.
2:96CV38 (E.D. Tex. Dec. 3, 1996); Marcum v. General Motors
Corp., No. 93-40 (E.D. Ky. Nov. 21, 1996); Klugerman v. Nippon
Seiko, K.K., No. 94-11900-NG (D. Mass. Nov. 20, 1996); Wiley v.
General Motors Corp., No. 96-1692 (JHG) (D.D.C. Nov. 15, 1996);
Kaiser v. Fuji Heavy Industries Ltd., No. 95-B-633 (D. Colo. Sept.
24, 1996); Schuyler v. Volkswagen A.G., No. 4:96ev25 (E.D. Va.
Aug. 28, 1996); Taylor v. General Motors Corp., 1996 WL 671648
(N.D. Miss. Aug. 6, 1996); Waters v. Ford Motor Co., 1996 WL
114791 (E.D. Pa. Mar. 13, 1996); Sieck v. General Motors Corp.,
1996 WL 426818 (W.D. Pa. Mar. 5, 1996); Schroeder v. General
Motors Corp., No. 8:CV96-591 (D. Neb. Feb. 7, 1996); Johnson v.
General Motors Corp., 889 F. Supp. 451 (W.D. Okla. 1995); Hill v.
General Motors Corp., No. 94-AR0088-S (N.D. Ala. Nov. 15, 1995);
Beeman v. Lovelace, 1995 WL 813722 (W.D. Okla. Nov. 2, 1995);
Tammen v. General Motors Corp., 857 F. Supp. 788 (D. Kan. 1994);
Gills v. Ford Motor Co., 829 F. Supp. 894 (W.D. Ky. 1993); Heath v.
General Motors Corp., 756 F. Supp. 1144 (S.D. Ind. 1991); Cerniak
v. Nissan Motor Co., 1991 WL 147366 (N.D. Ill. July 26, 1991); Pak
v. Chrysler Motors Corp., 1990 WL 198821 (E.D. Pa. Dec. 3, 1990),
aff'd, 941 F.2d 1200 (3d Cir. 1991); Dallas v. General Motors Corp.,
725 F. Supp. 902 (W.D. Tex. 1989); Hunt v. Ford Motor Co., Prod.
Liab. Rep. (CCH) { 12,292 (N.D. Ala. Mar. 30, 1989); Kelly v.
General Motors Corp., 705 F. Supp. 303 (W.D. La. 1988); Kolbeck v.
General Motors Corp., 702 F. Supp. 532 (E.D. Pa. 1988); Surles v.
Ford Motor Co., 709 F. Supp. 732 (N.D. Tex. 1988); Heftel v. General
Motors Corp., 1988 WL 19615 (D.D.C. Feb. 23, 1988); Hunter v.
General Motors Corp., Prod. Liab. Rep. (CCH) { 12,039 (D. Conn.
Dec. 27, 1988); Howard v. American Motors Corp., Prod. Liab. Rep.
(CCH) ¥ 11,955 (S.D. Tex. July 26, 1988); Schick v. Chrysler Corp.,
675 F. Supp. 1183 (D.S.D. 1987); Staggs v. Chrysler Corp., 678 F.
Supp. 270 (N.D. Ga. 1987); Hughes v. Ford Motor Co., 677 F. Supp.

12

is defective because it has one restraint system option
granted by FMVSS 208, instead of a different FMVSS 208
option. The Court of Appeals joined that wealth of
authority. This Court has declined to review the FMVSS
208 preemption issue eleven times, including one case,
based on essentially the same petition, just last March.
Zimmerman v. Volkswagen of America, 920 P.2d 67 (Idaho
1996), cert. denied, 117 S. Ct. 1245 (1997). There is no
reason to review it now, particularly in this case.

A. The History Of Federal Regulation Of Restraint
Systems.

1. The Safety Act.

In 1966 Congress enacted the Safety Act. The Act
directs the DOT and its subdivision, NHTSA, to issue
federal motor vehicle safety standards that are “practica-
ble,” that “meet the need for motor vehicle safety,” and
that apply throughout the country. 15 U.S.C. § 1392(a).?

76 (D. Conn. 1987); Wattelet v. Toyota Motor Corp., 676 F. Supp.
1039 (D. Mont. 1987); Bass v. General Motors Corp., 1987 WL
54449 (W.D. Tex. 1987); Vasquez v. Ford Motor Co., 1986 WL 18670
(D. Ariz. Nov. 18, 1986); Cox v. Baltimore County, 646 F. Supp. 761
(D. Md. 1986); Baird v. General Motors Corp., 654 F. Supp. 28 (N.D.
Ohio 1986); Vanover v. Ford Motor Co., 632 F. Supp. 1095 (E.D.
Mo. 1986).

9 The Safety Act was recodified in 1994 so all “laws related
to transportation [appear] in one comprehensive title,” and
moved from Title 15 to Title 49 of the United States Code. H.R.
Rep. No. 103-108, 103d Cong., 2d Sess. 3 (1994), reprinted in 1994
U.S.C.C.A.N. 818, 820. In the course of the recodification, there
were some “technical improvements” to language to promote
“clarity” and “consistency,” and avoid “surplusage;”
“precautions [were] taken against making substantive changes
in the law.” See id. 49 U.S.C.A. § 30103, Historical and Statutory
Notes. The preemption cases and the Petition here discuss the
provisions as codified in Title 15 (though some early cases refer

ee

13

The standards were to be “strong and adequately
enforced,” and “uniform throughout the country.” S. Rep.
No. 1301, 89th Cong., 2d Sess., reprinted in 1966
U.S.C.C.A.N. 2709, 2720 (emphasis added); see H.R. Rep.
No. 1776, 89th Cong., 2d Sess. 17 (1966).

The Safety Act contains a preemption clause -
§ 1392(d) (now in 49 U.S.C. § 30103(b)). It permits a state
to “prescribe or continue in effect” a “standard applicable
to the same aspect of performance of a motor vehicle or
item or equipment” as an FMVSS, but “only if the stan-
dard is identical” to the FMVSS. Or, as the statute pro-
vided before the recodification, “whenever” DOT
establishes a federal standard, “no State or political sub-
division of a State shall have any authority either to
establish, or to continue in effect” “any” state “standard”
as to “the same aspect of performance” not “identical to
the Federal standard.” 15 U.S.C. § 1392(d). The Act also
recites that compliance with a federal standard “does not
exempt a person from liability under common law.” 49
U.S.C. § 30103(e) (1995) (previously in 15 U.S.C.
§ 1397(k)). But that provision is not denominated a pre-
emption clause; structurally is not part of the preemption
clause; and on its face says nothing about preemption,
much less purports to preclude preemption of claims
based on a non-identical common-law standard that
directly conflicts with a federal standard. Pp. 25-28,
below.

2. FMVSS 208.

FMVSS 208 is the federal standard governing
restraint systems. Options and flexibility have been at the
heart of FMVSS 208 for over a quarter century. Beginning
in 1971, FMVSS 208 granted manufacturers three options:
(1) passive restraints for all crashes; (2) passive restraints

to § 1397(k) as § 1397(c), its pre-1988 designation). To avoid _
confusion, we use the Title 15 designations as well.

14

for head-on crashes plus manual belts; or (3) manual
three-point seat belts. 49 C.F.R. § 571.208, S4.1.2.1.-.3
(1971).1° Passive restraints work without any action by
the user; active restraints, like manual belts, require user
action — buckling up.

FMVSS 208 did not mandate which form of passive
restraint was to be installed by a manufacturer who chose
to put in passive restraints. Instead, it set forth perfor-
mance requirements for those restraint options, and, as to
passive belts, provided in effect a fourth option: A manu-
facturer could install “a seat belt assembly that requires
no action by vehicle occupant,” that is, an automatic belt
system, to “meet the crash protection requirements of
any” of the first three options, and “in place of any seat belt
assembly otherwise required by that option.” 49 C.F.R.
§ 571.208, S4.5.3 (1971) (emphasis added). Thus, a manu-
facturer could opt to comply with FMVSS 208 by install-
ing passive belts that met the performance requirements
of any of its three options, without any manual belts at
all.

10 In the early 1970s, DOT required vehicles “to carry either
passive restraints or [manual] lap and shoulder belts coupled
with an ‘ignition interlock’ that would prevent starting the
vehicle if the belts were not connected.” Motor Vehicle Mfrs.
Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 33, 35 (1983).
The public did not like ignition interlocks. Therefore in 1974
Congress enacted 15 U.S.C. § 1410b, which outlawed the
“ignition interlock” standard and mandated that manufacturers
should have restraint system options, specifically including a
manual belt option. Congress also mandated that DOT could
grant manufacturers the option to install different types of
automatic restraint systems instead of manual seat belts,
whatever the “technology may come up with.” 120 Cong. Rec.
27822 (1974) (Rep. Wyman, author of amendment that became
§ 1410b); H.R. Rep. No. 1452, 93d Cong., 2d Sess., reprinted in
1974 U.S.C.C.A.N. 6084, 6108.

15

3. NHTSA’s Approval Of The System In The
Precis.

“[T]he safety benefits of wearing seat belts are not in
doubt... .” State Farm, 463 U.S. at 52. But many people
did not use their belts, and accordingly, beginning in the
- 1970s, NHTSA sought to encourage passive restraints.

FMVSS 208’s Option 2 authorizes passive restraints
that, together with manual belts, meet the performance
requirements of FMVSS 208, S5.1. FMVSS 208, S5.1 sets
forth injury criteria for vehicles hitting a fixed collision
barrier at 30 m.p.h., at an angle up to 30 degrees. In 1973,
Volkswagen developed a passive shoulder belt system
which, with knee bolsters and without any lap belt, met
those criteria. It was a real breakthrough. The system
outperformed traditional manual lap and shoulder belts;
for example, the shoulder belt was not subject to “subma-
rining, in the form of movement of the lap belt [there was
none] over the . . . iliac crest into the soft abdominal
tissue,” a significant advantage. VW Petition for
Rulemaking, 208-PRM-14, pp. 7-9 (1973).

In 1974, NHTSA ruled that $4.5.3 specifically permit-
ted the use of the two-point VW system to meet the
performance requirements of option two. 39 Fed. Reg.
3834 (1974). As for the lack of a manual lap belt, NHTSA
affirmed that $4.5.3 expressly permitted the two-point
VW automatic belt system “to replace the required [man-
ual] seat belt assemblies.” Id. In fact, NHTSA concluded,
“option two exists . . . to accommodate the introduction
of passive restraint systems like Volkswagen’s.” Id. As
NHTSA’s Chief Counsel explained “the ‘passive belt sub-
stitution’ provision of $4.5.3 is available to a passive belt
system without a lap belt in place of the lap belt specified by
$4.1.3.” (Hyundai A. 24) (emphasis added).1!

11 That view was stated in a letter, in the public record, that
was before the court below, along with others affirming the
same thing. (Hyundai A. 15-22) An interpretation of a

16

Over the years, NHTSA revised FMVSS 208 to
require passive restraints, and to eliminate the three-
point manual belt option. NHTSA deferred the beginning
of the mandatory passive restraint phase-in from time to
time, but always preserved the manufacturer’s option as
to which passive restraint to install. In particular, Secre-
tary after Secretary reaffirmed, protected and praised the
option to install the two-point VW system. Secretary
Coleman noted that, to date, only “two passive restraint
systems” appeared workable, airbags and the VW “shoul-
der belt and knee bolster system.” 41 Fed. Reg. 24070,
24070 n.2, 24072 (1976). Secretary Adams noted that
65,000 VWs were equipped with that system, and lauded
it as “a proven means of meeting a passive restraint
requirement.” 42 Fed. Reg. 34295 (1977).

Therefore, FMVSS 208 expressly authorizes a two-
point automatic shoulder belt system with knee bolsters
that meets FMVSS 208’s performance requirements, and
expressly grants a manufacturer the option to use that
system “in place of” a standard Option 2 system with lap
belts. Indeed, before Secretary Dole mandated a phase-in
of passive restraints beginning in 1987, the “vast majority
of manufacturers” exercised the option to install manual
belt systems, not passive restraints in any form. 41 Fed.
Reg. at 24070. The two-point passive belt system was a
rare, welcome ~ and clearly the leading — exception. Id. at
24074.

4. Secretary Dole’s Final Rule.

In 1984, Secretary Dole undertook a comprehensive
review of all restraint systems, 49 Fed. Reg. 28962-63,
28984-86, 28991, 28996 (1984), and reached the final rule
that applied to the Precis here. The rule mandated a

regulation by the agency that adopted it and is charged with
implementing it is due “substantial deference.” Martin v.
Occupational Safety & Health Comm'n, 499 U.S. 144, 150 (1991).

17

phase-in of passive restraints from 1987-90. Secretary
Dole determined not to mandate any particular form of
passive restraint at any time. She reasoned that each
passive restraint system had different virtues, and con-
cluded that mandating a single type of passive restraint
would risk “killing or seriously retarding development”
of restraint systems. 49 Fed. Reg. at 29001.

Accordingly, Secretary Dole determined to provide
“latitude” to industry as to what passive restraints to
install. “Flexibility” was the benchmark. Id. at 28997,
29000. Thus, manufacturers were to continue to have the
same options to comply with FMVSS 208’s passive
restraint requirements they always had, id. at 28997, spec-
ifically including the option to choose the two-point VW
system. The Secretary noted that, by then, that system
had been installed in over 390,000 VW Rabbits (id. at
28965); that its usage rate was 50-90% (id. at 28984); and,
it was available “immediately,” of particular importance
during the phase-in (id. at 28999).

In sum, flexibility and options are the heart of
FMVSS 208, and have been for over 25 years. From the
beginning FMVSS 208 gave manufacturers the choice of
what passive restraint to install in cars with passive
restraints, and the final rule granted that same option,
specifically including the option to install the two-point
system, proven and lauded as it was.’

12 In 1991, Congress amended the Safety Act to
prospectively require airbags in all passenger cars. Congress
ordered the Secretary to promulgate an amendment to FMVSS
208 requiring airbags in 95% of all cars built in the 1997 model
year, and 100% of cars built in the 1998 model year. See Pub. L.
No. 102-240, § 2508; 58 Fed. Reg. 46551-02. In amending the
Safety Act, however, Congress made clear that its judgment that
airbags should be required in the regulations of the future was
not to change the preemption case law as to the regulations of
the past. Pub. L. No. 102-240, § 2508(d) (amendment “shall [not]
be construed by any . . . court as indicating an intention by

18

Hyundai exercised that federally-granted option and
installed the two-point system (actually, an improved
version of) it in the Precis. (Hyundai A. 59) Petitioners
seek this Court’s leave to make that option unlawful, and
punish its exercise, after the fact.15

B. There Is No Significant Conflict Or Urgency On
The Question Whether FMVSS 208 Preempts
“No Lap Belt” Claims.

Petitioners’ lead argument (Pet. 7) proposes that
there is a “growing conflict among the federal courts of
appeal[s] and the state courts of last resort over” the
question presented in this case: whether the Safety Act
expressly preempts “no lap belt” claims. In fact, Peti-
tioners cite only six other cases that have ever considered
the issue here —- whether “no lap belt” claims are pre-
empted by the Safety Act and FMVSS 208.14

Congress to affect, change, or modify in any way the liability, if
any, of a motor vehicle manufacturer under applicable law
relative to vehicles with or without inflatable restraints”).

13 Actually, Petitioners insisted below that “this is not a no
lap belt case.” P. Memo in Opp. to Summary Judgment at 1; see
also Brief of Appellants at 21-24, Reply Brief at 2. Here, in
contrast, Petitioners say they claim that the vehicle was
defective “because it lacked a driver’s-side lap belt.” (Pet. 4)

14 Petitioners cite (Pet. 15-16): Hernandez-Gomez v. Leonardo,
917 P.2d 238 (Ariz. 1996) (“no lap belt” claim; no preemption in
roll-over accident); Ketchum v. Hyundai Motor Co., 49 Cal. App.
4th 1672 (1996) (“no lap belt” claim not preempted); Alvarado v.
Hyundai Motor Co., 908 S.W.2d 243 (Tex. App. 1995), app. pending,
No. 95-0969 (Tex.) (“no lap belt” claim not preempted; appeal to
Texas Supreme Court pending); Dykema v. Volkswagenwerk AG,
525 N.W.2d 754 (Wis. App. 1994), cert. denied, 116 S. Ct. 60
(1995), reh’g denied, 116 S.Ct. 549 (1995) (“no lap belt” claim
preempted); Miranda v. Fridman, 647 A.2d 167 (N.J. App.), certif.
denied, 649 A.2d 1291 (N.J. 1994) (“no lap belt” claim
preempted).

19

Instead, Petitioners tally up cases that address differ-
ent issues. By likening unlike cases, Petitioners suggest a
conflict that is more imagined than real.

The Early Cases. Petitioners cite the early case law
interpreting the Safety Act, and urge it is in conflict with
the Court of Appeals’ decision below. (Pet. 8-10) But that
case law is not on point, and in fact is entirely irrelevant
to the question whether “no lap belt” claims are pre-
empted by FMVSS 208. Most of the cases do not address
preemption, or mention it, but concern whether compli-
ance with federal standards is, as a matter of state law, an
absolute defense to a state law claim on the merits.15
Indeed, many of the cited cases involved allegations of
defects in vehicles designed and manufactured before any
pertinent federal safety standards had been promulgated.

Where preemption was at issue, it was a different
question entirely - whether the Safety Act occupied the
entire field of motor vehicle safety. For example, Larsen v.
General Motors Corp. concerned steering columns, as to
which there was no on-point standard, and addressed
only whether Congress had “acquire[d] exclusive juris-
diction in this field.” 391 F.2d 495, 506 (1968). Thus, the
cases hold, at most, that the Safety Act does not occupy
the field, and so permits claims based on common-law
standards that do not conflict with an FMVSS; none

1S Knippen v. Ford Motor Co., 546 F.2d 993 (D.C. Cir. 1976);
Fox v. Ford Motor Co., 575 F.2d 774, 775 (10th Cir. 1978);
Stonehocker v. General Motors Corp., 587 F.2d 151, 156-57 (4th Cir.
1978); Schwartz v. American Honda Motor Co., 710 F.2d 378, 383
(7th Cir. 1983); Shipp v. General Motors Corp. 750 F.2d 418, 421
(5th Cir. 1985); General Motors Corp. v. Edwards, 482 So. 2d 1176,
1198 (Ala. 1985); Lollie v. General Motors Corp., 407 So. 2d 613, 617
(Fla. App. 1981), rev. denied, 413 So. 2d 876 (Fla. 1982);
Volkswagen of America, Inc. v. Young, 321 A.2d 737, 746 (Md.
1974); H.P. Hood & Sons, Inc. v. Ford Motor Co., 345 N.E.2d 683,
688 (Mass. 1976).

20 |

involved claims based on standards that directly conflict
with an on-point FMVSS.16

Certainly none of the cases cited involved passive
restraints, or the options and purposes behind FMVSS
208, or the direct conflict between those federal options
and purposes and state claims that would take the
options away. When the FMVSS 208 preemption issue
does come up, the same courts have no problem distin-
guishing the cases, and finding preemption. Compare, e.g.,
Pokorny v. Ford Motor Co., 902 F.2d 1116 (3d Cir.), cert.
denied, 498 U.S. 853 (1990) (“no airbag” claim preempted),
with Dawson v. Chrysler Corp., 630 F.2d 950 (3d Cir. 1980),
cert. denied, 450 U.S. 959 (1981) (compliance with FMVSS
not complete defense to claim that vehicle was defective
because of noncontinuous body frame); and Montag v.
Honda Motor Co., 75 F.3d 1414 (10th Cir.), cert. denied, 117
S. Ct. 61 (1996) (“no airbag” claim preempted), with Fox v.
Ford Motor Co., 575 F.2d 774 (10th Cir. 1978) (compliance
with federal safety standards not complete defense to
claim that rear-seat lap safety belt was defectively
designed).

16 See also Dawson v. Chrysler Corp., 630 F.2d 950, 957-58 (3d
Cir. 1980), cert. denied, 450 U.S. 959 (1981) (no federal standard
governed frame strength and rigidity); Dorsey v. Honda Motor
Co., 655 F.2d 650, 654, 656 (Sth Cir. 1981), cert. denied, 459 U.S.
880 (1982) (vehicle met “certain federal” standards, but the
standards were “unrelated to several of the design deficiencies”
challenged); Sours v. General Motors Corp., 717 F.2d 1511, 1516
(6th Cir. 1983) (no federal roof standard established at time car
was designed); Buccery v. General Motors Corp., 60 Cal. App. 3d
533, 541 (1976) (federal standard required head restraints for
passenger cars, not trucks; plaintiff was injured in a truck; court
held Congress had not occupied the field); McMuilen v.
Volkswagen of America, 545 P.2d 117, 120 (Ore. 1976) (no specific
standard in issue); Turner v. General Motors Corp., 514 S.W.2d 497
(Tex. App. 1974) (federal standard as to roof strength
promulgated after car manufactured).

21

Thus, none of the early cases addresses passive
restraints; or FMVSS 208; or an equipment requirement
advanced by plaintiff that NHTSA specifically rejected; or
the imposition of liability for exercising an option
NHTSA specifically granted; or the direct conflict with
federal law if such liability could lie. The cases are not on
point, much less grounds for finding a conflict and the
need for review.

The “No Airbag” Cases. To suggest mass confusion
in the lower courts over the question presented here -
and to raise the specter of “thousands of automobile
design defect lawsuits pending throughout the nation”
(Pet. 15) — Petitioners combine the decisions on the ques-
tion whether “no airbag” claims are preempted by
FMVSS 208 with the “no lap belt” cases. But Petitioners
argued below that the “no airbag” cases are off point. The
“cases and the[ir] analysis do not apply here,” Petitioners
urged. Brief of Appellants at 22. In fact, Petitioners
derided as “erroneous” the “equation of this case with
claims based on the absence of air bags.” Id. at 18.

This Court has denied certiorari in recent years in
every one of the eleven FMVSS 208 preemption cases in
which review was sought.!7 In fact, in the most recent

17 See Zimmerman v. Volkswagen of America, Inc., 920 P.2d 67
(Idaho 1996), cert. denied, 117 S. Ct. 1245 (March 17, 1997);
Montag v. Honda Motor Co., 75 F.2d 1414 (10th Cir.), cert. denied,
117 S. Ct. 61 (1996); Tebbetts v. Ford Motor Co., 665 A.2d 345 (N.H.
1995), cert. denied, 116 S. Ct. 773 (1996), reh’g denied, 116 S. Ct.
1036 (1996); Hyundai Motor Co. v. Phillip, 639 So.24 1064 (Fla.
App. 1994); cert. denied, 513 U.S. 1111 (1995); Dykema v.
Volkswagenwerk AG, 525 N.W. 2d 754 (Wis. App. 1994), cert.
denied, 116 S. Ct. 60 (1995); Pokorny v. Ford Motor Co., 902 F.2d
1116 (3d Cir.), cert. denied, 498 U.S. 853 (1990); Nissan Motor Corp.
v. Superior Court (Meier), 212 Cal. App. 3d 980 (1989), cert. denied,
494 U.S. 1066 (1990); Taylor v. General Motors Corp., 875 F.2d 816
(11th Cir. 1989), cert. denied, 494 U.S. 1065 (1990); Kitts v. General
Motors Corp., 875 F.2d 787 (10th Cir. 1989), cert. denied, 494 U.S.

22

case — Zimmerman — the petition was the template for the
petition here; the arguments here are lifted, verbatim,
from that petition. Compare Petition for Writ of Certiorari,
Zimmerman v. Volkswagen of America, No. 96-904 (filed
Dec. 1996). Petitioners offer no reason to distinguish this
case from Zimmerman and the ten other cases in which
review was denied. Indeed, this case is far less “certwor-
thy” than Zimmerman, because (1) it was decided by an
intermediate appellate court (not the highest state court);
(2) the judgment rests on an alternative state law ground;
and (3) additional cases finding preemption make the
decisions, if anything, more uniform than they were last
spring.

In sum, review of this case would be an inappropri-
ate use of this Court’s limited resources.

C. The Court Correctly Resolved The Preemption
Issue.

In finding that the Safety Act and FMVSS 208 pre-
empt claims (like “no lap belt” claims) that would punish
the exercise of one of FMVSS 208’s options, the Minnesota
Court of Appeals joined every federal court to address
the question, and a host of state appellate courts. That
was plainly correct.

1. Express Preemption.

a. The Meaning Of The Preemption
Clause.

This Court’s decision in Cipollone v. Liggett Group,
Inc., 505 U.S. 504 (1992), eliminates any doubt about

1065 (1990); Wood v. General Motors Corp., 865 F.2d 395 (ist Cir.
1988), cert. denied, 494 U.S. 1065 (1989); Wickstrom v. Maplewood
Toyota, Inc., 416 N.W.2d 838 (Minn. App. 1987), cert. denied, 487
U.S. 1236 (1990).

23

whether the safety “standards” referred to in the preemp-
tion provision of the Safety Act, 15 U.S.C. § 1392(d),
include common-law standards. The Court in Cipollone
held that a preemption clause forbidding “’require-
ment(s] or prohibition[s] . . . imposed under State law’”
included common law duties. 505 U.S. at 519-24 (plu-
rality) (citation omitted); id. at 548-49 (Scalia, J, joined by
Thomas, J., concurring in part and dissenting in part.).
The Court stated that it made no difference that the
preemption clause did not include a specific reference to
common-law claims. Id. at 521; see also CSX Transp., Inc. v.
Easterwood, 507 U.S. 658, 661-76 (1993).

The Court’s holding in Cipollone was premised on its
long-held view that “[state] regulation can be as effec-
tively exerted through an award of damages as through
some form of preventive relief.” 505 U.S. at 521 (quoting
San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 247
(1959)); see also Chicago & N.W. Transp. Co. v. Kalo Brick &
Tile Co., 450 U.S. 311, 326 (1981) (“A system under which
each State could, through its courts, impose . . . its own-
. » . requirements could hardly be more at odds with the
uniformity contemplated by Congress”). And that hold-
ing was reaffirmed in 1996 in Medtronic, Inc. v. Lohr,
where a majority of the Court explicitly endorsed Cip-
ollone’s holding that the word “requirements” encom-
passes state law tort claims for purposes of federal
preemption. 116 S. Ct. 2240, 2260 (1996) (Breyer, J., con-
curring); id. at 2263 (O’Connor, J., Rehnquist, C.J., and
Scalia and Thomas, JJ., concurring in part and dissenting
in part).

Here, the plain language of the Safety Act’s preemp-
tion clause sweeps at least as broadly as the preempting
language in Cipollone, and so also encompasses common-
law claims like Petitioners’. Section 1392(d) permits state
standards “only if” they are “identical” to an FMVSS - or,
in the pre-recodification language, the clause takes away
“any authority” of a state to enforce a non-“identical”
standard. “Any authority” of the state means any state

24

authority, legislative, executive or judicial; the Act does
not say that the legislative and executive branches cannot
establish non-identical standards, but the judicial branch
can. Common law standards are “standards,” as this
Court has repeatedly held.1* Hence a common law action
is based upon a “state standard,” and must be; otherwise
the action would be baseless, literally.

In sum, the state “standards” preempted by § 1392(d)
include common-law standards. Petitioners’ contrary
contention does not merit review by this Court.

18 CSX Transp., 507 U.S. at 664 (“Legal duties imposed
... by the common law” fell “within the scope” of a preemption
clause that barred any state “law, rule, regulation, order or
standard”) (emphasis added); Asahi Metal Indus. Co. v. Superior
Court, 480 U.S. 102, 114-15 (1987) (referring to “safety
standards” set by California product liability law); International
Paper Co. v. Ouellette, 479 U.S. 481, 496 (1987) (recognizing the
“possibility that [defendant] would have to meet a number of
different standards” if sued, under different states’ common
law); United Gas Improvement Co. v. Continental Oil Co., 381 U.S.
392, 400 (1965) (referring to “common law standards”); Shenker
v. Baltimore & Ohio R.R., 374 U.S. 1, 11 (1963) (referring to
“negligence standards of the common law”); Kermarec v.
Compagnie Generale Transatlantique, 358 U.S. 625, 630-31 (1959)
(referring to “standard of care” imposed by common law).

Indeed, “standard” in the Safety Act is necessarily at least
as encompassing as “requirements” (the Cipollone language),
because the reference to “requirement” in the third sentence of
§ 1392(d) would be meaningless otherwise. The third sentence
allows states to impose a “requirement” as to vehicles
purchased for their use, and so preserves the authority to
impose such “requirements”; the first sentence’s proscription of
“standards” would otherwise have taken away that authority to
impose “requirements.” Moreover, in Medtronic, Justice Breyer
uses “requirement” and “standard” synonymously. 116 S. Ct. at
2259.

25
b. The Meaning Of The Savings Clause.

Petitioners point to the Safety Act’s so-called “sav-
ings” clause, 15 U.S.C. § 1397(k), and maintain that it
shelters all common-law claims - even those that conflict
with a federal standard and undermine the purposes
behind it - from preemption. That ignores the structure
and language of the savings clause, and this Court’s
teachings on the effect of savings clauses.

As to structure and language, the clause does not
mention preemption. Indeed, the so-called savings clause
is not denominated a preemption clause and structurally
is not part of the preemption clause. On its face, the
clause says nothing about preemption, much less pur-
ports to preclude preemption of claims based on a non-
identical common-law standard that directly conflicts
with a federal standard. Instead, it (and some of the
legislative history) speaks to “compliance” as a defense.'9
That “compliance” language suggests that the so-called
savings clause is not a statement on preemption at all. For
as the First Circuit explained, whether compliance is a
defense on the merits under state law is “entirely differ-
ent” from preemption. Wood, 865 F.2d at 417. In fact,

19 Both the House and Conference Reports contain sections
entitled “Preemption,” but neither section discusses § 1397(k).
See H.R. Conf. Rep. No. 1919, 89th Cong., 2d Sess. 16 (1966),
reprinted in 1966 U.S.C.A.A.N. 2731, 2731-33; H.R. Rep. No. 1776,
89th Cong., 2d Sess. 17 (1966). The House Report mentions
§ 1397(k) under the heading “Prohibited Acts and Exemption,”
and the Conference Report does not deal with it at all. Again, if
Congress had intended § 1397(k) to be a sweeping exception to
the preemption provision, it surely would have described it as
such in these reports. See Chisom v. Roemer, 501 U.S. 380, 396
(1991). Rather, as its language indicates, § 1397(k) was added
merely to clarify that the Safety Act did not create an affirmative
defense of compliance with government standards or, as we
next show, that the Safety Act was not intended to occupy the
entire field of motor vehicle safety.

iN

26

Petitioners’ own cases — and their argument on the state
court issue — treat the savings clause as a negation of a
compliance defense. Pp. 8-9, above. Moreover, even treat-
ing § 1397(k) as a savings clause, on its face the clause
“does not express an unambiguous intent to preserve a
state suit that conflicts with a federal safety standard.”
Wood, 865 F.2d at 414; accord Pokorny, 902 F.2d at 1125;
Taylor, 875 F.2d at 825 n.18; see also Schick, 675 F. Supp. at
1185.

As to this Court’s teachings, the Court has never
interpreted a savings clause — even one that specifically
mentions preemption — to permit state law claims that
directly conflict with federal law. For savings clauses are
meant “not to nullify other parts of the Act, or to defeat
rights or remedies given by preceding sections — but to
preserve all existing rights which were not inconsistent
with those created by the statute.” Pennsylvania R.R. v.
Puritan Coal Mining Co., 237 U.S. 121, 129 (1915). A gen-
eral savings clause serves to make clear Congress’ intent
not to “occupy the field.” Chicago & N.W. Transp. Co., 450
U.S. at 328 (savings clause included because without it,
“it might have been claimed that, Congress having
entered the field, the whole subject . . . had been with-
drawn from the jurisdiction of the state courts”) (quoting
Pennsylvania R.R., 237 U.S. at 130).

That is not to say, however, that § 1397(k) is a nullity,
or that § 1392(d) preempts every claim “whenever a
Federal safety standard is in place.” (Pet. 21). Rather,
while § 1392(d) expressly preempts conflicting common-
law claims, § 1397(k) makes clear that there is no occupa-
tion of the field, and expressly preserves all non-conflict-
ing common-law claims, including claims based on
manufacturing defects, notwithstanding compliance with
federal standards; claims based on state standards, with
respect to aspects of performance not covered by federal
standards, notwithstanding compliance with federal stan-
dards; and claims based on state standards with respect
to aspects of performance that are covered by federal

Oo

27

standards, but do not conflict with federal standards,
again notwithstanding compliance with those standards.
See, e.g., Buzzard v. Roadrunner Trucking, Inc., 966 F.2d 777,
783 (3d Cir. 1992) (federal standard covered lighting on
trucks; § 1397(k) saved claims based on common-law
standard calling for additional lighting if it did not inter-
fere with light called for by federal standard). In fact, a
conflict between a common-law claim and a federal stan-
dard is a “rare event indeed.” Wood, 865 F.2d at 402 n.9.

But when it occurs, a general savings clause cannot
be read to save the conflicting state law. Thus in Texas &
Pacific Ry. v. Abilene Cotton Oil Co., 204 U.S. 426 (1907), a
federal act contained a broad savings clause that pur-
ported to save “the remedies now existing at common
law or by statute.” Id. at 446. This Court held preempted
an existing but conflicting common-law claim in the face
of that savings clause, because a savings clause “cannot
in reason be construed as continuing . . . a common law
right, the continued existence of which would be abso-
lutely inconsistent with the provisions of the act.” Id.
That has been the law throughout this century, even
when an act has no preemption clause at all. See Ouellette,
479 U.S. at 485, 493-94, 505 (savings clause provided
“[njothing in this section shall restrict any right which
any person .. . may have under any statute or common
law;” Senate Report said “compliance with . .. Act would
not be a defense to a common law action for-
... damages”; conflicting common law claims preempted;
Congress could not have “intended to undermine . . . [the
Act] through a general savings clause”); accord Chicago &
N.W. Transp. Co., 450 U.S. at 328-31; Morales v. Trans World
Airlines, Inc., 504 U.S. 374 (1992); Offshore Logistics, Inc. v.
Tallentire, 477 U.S. 207, 210-11 (1986); Arrow Transp. Co. v.
Southern Ry., 372 U.S. 658, 671 n.22 (1963); T.I.M.E. Inc. v.
United States, 359 U.S. 464, 473-74 (1959); Pennsylvania v.
Nelson, 350 U.S. 497, 501 n.10, reh’g denied, 351 U.S. 934
(1956); Ventura County v. Gulf Oil Corp., 601 F.2d 1080,
1086 (9th Cir. 1979), aff'd mem., 445 U.S. 947 (1980); see also

28

John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank,
510 U.S. 86, 99 (1993) (savings clause means that saved
state law “generally is not displaced, but ‘where [lit]
stands as an obstacle to the accomplishment of the full
purposes and objectives of Congress,’ federal preemption
occurs”) (quoting Silkwood v. Kerr-McGee, 464 U.S. 238,
248 (1984)).

Thus, under settled law, § 1397(k) was added to the
Safety Act not to defeat the statutory goal of creating a
set of nationally uniform motor vehicle safety standards,
but rather to indicate Congress’ intent not to preempt the
remainder of the field of motor vehicle safety not covered
by and not inconsistent with those federal standards.?°

2. Implied Preemption.

Even apart from the preemption clause, and its
injunction against non-“identical” state “standards,” “no
lap belt” claims are impliedly preempted because they
conflict with FMVSS 208 and the Safety Act.

20 This case is a good example: FMVSS 208 expressly
grants, for safety reasons (see pp. 13-17, above), a choice among
different types of safety restraint designs for automobiles,
including the system Hyundai chose here. Section 1397(k)
would preserve a common-law claim that a chosen restraint
system was negligently manufactured or installed, because
those subjects are not addressed by — and do not conflict with -
FMVSS or its options. But § 1397(k) would not preserve a
common-law claim, like the claim here, seeking to impose
liability on a manufacturer for exercising the federally-granted
option to install a passive restraint system design approved by
NHTSA. That common-law claim conflicts with FMVSS 208
because it extinguishes a choice granted, as a matter of safety
policy, by the federal government. See, e.g., Perry v. Mercedes
Benz, 957 F.2d 1257, 1265 (5th Cir. 1992) (distinguishing failure-
to-install-airbag claim from claim that particular airbag system
was not properly designed, and holding latter claim not
preempted).

29

Petitioners spend much of the Petition (Pet. 17-22)
arguing that this Court’s decision in Cipollone radically
changed federal preemption law and precludes resort to
implied preemption analysis in the face of an express
preemption clause. But this Court unanimously rejected
that proposition as “without merit” in Freightliner Corp. v.
Myrick, 115 S. Ct. 1483, 1487 (1995); see also Medtronic, 116
S. Ct. at 2259 (rejecting express preemption argument but
stating that tort claim might “be pre-empted under con-
flict pre-emption analysis”). The Court went on, in
Myrick, to consider whether there was implied preemp-
tion in that case. 115 S. Ct. at 1488. The Minnesota Court
of Appeals here could do - and did - no less.

At the time the 1988 Precis in this case was manufac-
tured, FMVSS 208 gave Hyundai the option to install
fully passive, automatic two-point safety belts with no
manually-activated lap belts. That was not happenstance.
FMVSS 208 permitted that flexibility and granted those
options because Congress and the DOT judged that “flex-
ibility in the development of technologies [would]
improve automotive safety.” Baird, 654 F. Supp. at 32;
Minton, 1996 WL 402070, at *6. Indeed, FMVSS 208 “was
specifically designed to give automobile manufacturers a
choice among several options when providing restraint
systems.” Pokorny, 902 F.2d at 1123.

Hyundai exercised the option that federal law
granted, and installed the federally-sanctioned fully pas-
sive two-point belt system in the Precis. Plaintiff’s “no
lap belt” claim, if allowed, would permit a jury to impose
damages on Hyundai because it chose that option, and
not a different passive restraint option. That state com-
mon-law standard imposing damages on Hyundai for
choosing the federally-granted two-point belt option in
effect would take away that option and, with it, the
manufacturer’s flexibility. It also would punish Hyundai,
after the fact, for doing what FMVSS 208 authorized.

A state common law rule cannot take away the flex-
ibility provided by a federal regulation, cannot prohibit

30

the exercise of a federally granted option, and cannot
impose damages for doing what a federal act or regula-
tion “authorized [one] to do.” Taylor, 875 F.2d at 827;
accord Pokorny, 902 F.2d at 1125; Martinez, 1997 WL
341786, slip op. at 3-4; Minton, 1996 WL 402070, at *6-7;
Cooper, 1996 WL 272362, at *5-6; Cellucci, 676 A.2d at
260-61; see also Fidelity Fed. Sav. & Loan Ass’n v. de la
Cuesta, 458 U.S. 141, 155 (1982). In sum, “a state common
law rule that would, in effect, remove the element of
choice authorized in [FMVSS] 208 would frustrate the
federal regulatory scheme,” and so is “impliedly pre-
empted.” Taylor, 875 F.2d at 827.

Thus, allowing the common-law claim Petitioners
propose would “stand as an obstacle to the accomplish-
ment and execution of the full purposes and objectives of
Congress.” Ouellette, 479 U.S. at 491-92. That is what the
Minnesota intermediate appellate court found, as over
100 courts have found before it. There is no error, and
nothing to review, in that.

CONCLUSION

The Petition for a writ of certiorari should be denied.
DATED: July 28, 1997.
Respectfully submitted,

BOWMAN AND BROOKE McCutTcHEn, Doy.e, BROWN
Davip W. Graves, Jr. & Enersen, LLP

Rosert M. Lewis Davip M. HEtLBrRon

150 South Fifth Street Lesure G. LANDAU*

Suite 2600 Han N. Tran

Minneapolis, MN 55402 Three Embarcadero Center
Telephone: (612) 339-8682 San Francisco, California
94111
Telephone: (415) 393-2000

*Counsel of Record
Attorneys for Respondents
Hyundai Motor Company,

Hyundai Motor America, Inc.
and Mitsubishi Motor Sales of America, Inc.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0954%3A2. Public record. Not legal advice.