Amicus Curiae Brief — Williamson v. Mazda Motor of America, Inc. (No. 08-1314)

No. 08-1314

2a NT

In the Supreme Court of the Biuted States

DELBERT WILLIAMSON, ETAL., PETITIONERS

t

MaA?2DA Movrok OF AMERICA, INC., ETAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF CALIFORNIA,

FOURTH APPELLATE DISTRICT, DIVISION THREE

BRIEF FOR THE UNITED STATES AS AMICUS CURLAE

RowrurS Rivkin

Genera! Counsel

Pau. M. Geer

Assistant General Counsel

for Latigation

Peter J. Prockt

~—— Assistant General!

‘ounsel for Litigation

Department of Transportation

Washington, DC 20590

O. Ktvin VINCENT

Chief Counsel

LiorvpsS Guerci

Assistant Chief Counsel

Timoriy H GoooMan

Senior Trial Attorney

National Highway Traffic

Safely Admmustration

Washington, DC 20590

PLeNA KAGAN

Solicitor General

Counsel of Record

Tony West

Assistant Alluracy Gene ral

FowinS Kxreoire

Deputy Solicitor General

WILLiaMM Jay

Assistant to the Solwuor

General

Doucias No Lerrer

HeLen L. GitneRr

Attorneys

Depariment of Justice

Washington, DC 20530-0001

SupremeCtRriefs@usdo) ger

(202) S1§ 2217

QUESTIONS PRESENPED

1 Whether the National Traffic and Motor Vehicle

Safety Act of 1966 (Safety Act), 49U SC SOLOL et seq,

or Federal Motor Vehicle Safety Standard (FMVSS)

208, 49 CF R571 208, preempts a state common Low

tort claun that an automobile manufactured in 1995

was defectively designed because it lacked a ‘Type 2 (apy

shoulder) seatbelt in one of its seating positions

2 Whether the Safety Act or FMVSS 208 preempts

astale common-law tort claim that an automobile manu-

facturer should have warned consumers of the known

dangers of a Type 1 Clap only) seatbelt mstatied in ene

of the seating positions on one of ity vehicles

TABLE OF CONTENTS

Page

Statement + 1

Phiseussion , ; 8

A The decision below misreads Geier and misinter

prets the preemptive effect of FMVSS 208 |. 4

BK ‘The decison below perpetuates lower courts’

misreading of Geter and warrants plenary review 17

C This Court lacks jyurisdiction to review

peudonen: Galure to warn chom 2

Conclusion . : 2

TABLE OF AUTILORITIBS

Cases

Rates s Dow Agrosees LLC, 544 US 441 (2005) lb

Curdenv General Motors Corp , 509 F 3d 227

(hth Cur 2007), cert demed, 1285. Ct 2911

(2008), ; 7,17, 18,19

Coleman vy Thompson, HOLUS 722 (191) 2

Doomesv. Beat Transit Corp , SW0N YS 2d S26

(App. Dov 2009) ZI

Freightliner Corp v Myrick 514 US 2800999) — 16

Geverv Amertcan Honda Motor Co 5290S sol

(2000) passom

Griffith General Motors Corp , 308 F Sd 1276

(1th Cor, 2002), cert denied, 548 US L028 (2005) 1k

Hemncher vy Volve Car Corp , 804 N B24 1094

(Mass App CU), review demed, 81S NB 2d 1085

(Mass 2004) Is

Hurley v Motor Coach ladus, lie 222 FA STT

(7th Cir 2000), cert demed, £41 US 1148 (2001) Is

pH

Cases —Continued

Lakev Memphis Landsmen, LLC, No.

W2009 00576- COA RS CV, 2010 WE, 8o1S67

(Tenn Ct App Mar 15,2010) ..

MCI Sales & Serv, lnc v. Hinton, 272 8 W 3d 17

(Tex CU App 2008), review granted, No 09 0048

(lex argued Mar 24, 2010) .

Michigan vy Long, 463 US 1052 (1954) .

Alorygany Ford Motor Co , 6808 F 2d 77 (W Va

L009)

O Hara vy General Motors Corp , 508 F 3d 754

(th Cur 2007) (esbdadscenens os °

Rolund v General Motors Corp , 881N Fd 722

(iad Ct App ), transfer denied, 898 NB 2d 1218

(ind 2008)

Sochoryv Flonda, 44 US $27 (1992) .

Spretsmae Mereary Murine, 537 US SI (2002)

Wood v General Motors Corp , 494 US. 1065 (1990)

Wyeth vo Lemme, 29S Cc LE87 (2009).

Statutes and regulations

Anton's Law 65,49 USC. 30127 note

“National Traffic and Motor Vehicle Safety Act of

1445, HUES CO SOL0L ef sey

4ssUsc soni)

GUSC SOM UY

USC 30104001)

USC 2010%6) .

USC Sola)

7,

Page

20, 21

181%

Keyulations —Cantinued

49C RK

Section 1 hia)

Seetion S71 30h) (Lh).

Section S71 205.

Section 571 208

Section 571 208.51)

Section 671 20854 2.4 1b)

Section 57) 20804 14 20))

Section 671 208(54 15 3)

Seetion S71 208 54155)

Section 571 208054 2.7.1)

Section S71 2053)

Miscelaneous

Ped Reg (1907)

pp 2408 2421 .

I Pals ps

49 Fed Reg (1984)

p 241

pp 1S,24b-15 242

pp 28.402 29.010

p 2x

pp 29,001 29,000

Si ked Reg (oss)

p 47,982

pp 47,982.47 493

p 47,98

p 47,984

Page

34

20

Pussiye

Miscellaneous—Continued

p Az OR .

pp 47,985 47,989 .

hd Fed Key (1989)

p 25,276 ;

pp 25275-25279

PP 46257-46258 ..

pp 46257-46268

p W208

In the Dupreme Court of the Cluted States

| No OS 13M |

DELKERT WILLIAMSON, ETAL, PETITIONERS

vv

MAzbA Mook oF AMBKICA, INC, bY AL

ON PETITION FUR A WRIT OF CERTIORARI

TOTINE COURT OF APPEAL OF CALIFORNIA,

FOURTH APPELLATE DISTRICT. DIVISION THEE?

t

BKIEP FOR THE UNTTED STATES AS AMICUS CURIAR

This bref is submitted in response to the order of

this Court inviting the Sohewtor General to express the

views of the United States In the view of the United

States, the petition for a writ of eertioran should be

granted, limited to the first question presented

STATEMENT

Petitioners are the estate and survivors of ‘Phanh

Wilhamson They filed this action against respondents

Mazda Motor Corporation and Mazda Motor of America,

Ine, the manufacturers of their minivan, alleging Ghat

respondents are lable under California common law tort

principles for Ms Wilhamson’s death from injuries sus

tained in a car accident. ‘The state trial court granted

respondents’ demurrer on the ground that petitioners’

state common-law tort suit is preempted by a federal

regulation, Federal Motor Vehicle Safety Standard

(i)

”»

-

(FMVSS) 208) ‘The Court of Appeal of California af

firmed, Pet. App. 1-27, and the Supreme Court of Cali

forma demed discretionary review, 1d at 3l

1 ‘The National Traffic and Motor Vehicle Safety

Act of 1966 (Safety Act), now codified at 49 US © 30101

et seg, requires the Secretary of Transportation to

“preseribe motor vehicle safety standards,” which ave

“intna standard(s| for motor veliele or motor velo

cle equipment: performance.” 49 USC B0102a)),

SOLLIGa), see 49 USC. SOLOLCL) The *erretary has

delegated the authority to promulgate safety standards

to the National Highway Traffic Safety Adoine tration

(NH PSA), an operating administration im the Depart

ment of Transportation (DOT) See 49C FR 1504)

The Safety Act includes a savings clause, providing

that “[cjomphance with a motor vehicle safety standard

preseribed under this chapter does not exempt a person

from hatility at common law” 49 US © SOLS Qe) Al

though the Safety Act also includes an express preemp

tion provision, which precludes state and local govera

ments from “preserib[ing | or continual ing }in effect" (heir

own standards af those standards differ from an applica

blo FMVSS, 49 US © S0103(b)(1), this Court has held

thatthe savings clause removes common-law tort actions

from the scope of the express preemption clause. Geer

v American Honda Motor Co , 529 US BG1, 808 (2000)

This case concerns FMVSS 208, 49 C FUR 571-208,

which e entitled “Occupant crash protection” and which

“specifies performance requirements for (he protection

of vehiele occupants in crashes © 49C FR 57) 208051)

NHTSA tssued the onginal version of FMVSS 208 in

1907, a part of the mitial motor vehicle safely standards

called for by the Safety Act. 32 Fed Keg 2408 2421

(1967) Since its inception, FMVSS 208 has included a

3

3

requirement to install seatbelts in passenger cars See

ud at 24S

IMVSS 208 refers to two different types of seatbelts

A Type | seatbelt ts a lap-only seatbelt, “for pelvic re

strat.” 49 CFR. 571.209083)) A Type 2 seatbelt is a

lap and shoulder belt, “a combination of pelvic and upper

torso restraints.” /brd The first version of FMVSS 208

required that Type 2 seatbelts be imstalled for the

driver's and right front passenger's seats, and that e:

ther Type | or Type 2 seatbelts be imstalled for all other

seats. See 32 Fed. Reg. at 2415

NUTSA has amended FMVSS 205 several times

simee 1967. At issue in this case ts a requirement added

mn 1989 to specify the types of seatbelts required for rear

seats. The 1989 amendments required manufacturers to

mestall Type 2 Clap/shoulder) seatbelts un all “forward

facing rear outboard designated seating positions,” but

continued to allow manufacturers bo ustall either Type |

(lap-only) seatbelts or Type 2 Gap/shoulder) seatbelts in

all non outboard positions. 53 Fed. Reg 47,982 47,993

(1988) (notice of proposed rulemaking) (NPRM), 54 Fed

Key 25,275 25,279 (1989) (final rule applicable to poo

senger cars), cd at 46,257-46,208 (1989) (final rule appl

cable to other vehicles, including the multipurpose pas

senger vehicle at sue here)

An “(ojutboard designated seating position” was de

fined as a seat less than 12 inches from the side iuterior

wallofthe vehicle 49C FR S71 30h) (1990) A “Lejear

outboard designated seating position,” im turn, was de

fined as any such position “that as rearward of the front

seat(s),” unless itis “adjacent to a walkway located be

tween the seat and the side of the vehicle, which walk

way is-desyned to allow access to more rearward seat

ing positions ” 49C FR 57) 2080542 4 1¢b)) (standard

4

“

for light trucks and multapurpose passenger velucles),

accord 49 CFR. 571.208(54.1.4 2(c)) (same, for passen

perears) Thus, under FMVSS 208 as amended in 1989,

Type 2 seatbelts were not required in rear seats adja

cent lo a walkway or in rear center seats. This case in-

volves a rear seat adjacent to a walkway.'

2 On August 14, 2002, the Williamson family, eon

sisting of father Delbert, mother Thanh, and daughter

Alexa, was traveling in a 1993 Mazda MPV minivan,

which FMVSS 208 treats as a multipurpose passenger

vehicle” Pet App 3, see 490 FR 571 3(b) (1990). The

Mazda MPV has three rows of seats. the front row, with

physically separate seats for the driver and a front pas-

senger, the middle row bench, with two seats and an

aple on the right hand side that allows access to the last

row, and the last row bench, with three seats. Delbert

was driving and wearing a Type 2 (lap/shoulder) seat-

belt Alexa was sitting directly behind him im the

niddle row left outboard seat of the vehicle, also wear

ing a Type 2 seatbelt. Thanh was sitting in the middle

row to Alexa’s right) Because that seat was adjacent to

the aisle, it was a “non outboard rear seating position”

vider FMVSS 208) Thanh wore the Type | (lap-only)

seatbelt installed by Mavda in that seating position, as

PMVSS 208 peroutted atthe ime Pet App 3

‘The Withamsens’ vehicle colhded with another veh.

cle, and Thanh sustamed fatal inwarws Pet App 3

The standard at sue in this case ys nv longer in effect for new cars

Inresponse to a congressional directive, see Anton's Law §6.49U5C

SOL2T7T note, NEETPSA revised ite rule bo require all passenger care and

mullipurpose passenger velocles with & gross vehicle weight rating of

10.000 pounds or bless, if manufactured on or after September 1, 2007,

to include Ty pe 2 seatbelts at all rear designated seating positions that

face forward 49 C BK 671 20854 165) and (54275)

5

Petitioners allege that “the forees generated by thle]

collision caused (Thanh's) body to ‘jackknife’ around her

defective lap] Jbelt, causing severe abdominal injuries

and internal bleeding” Jbécd (fest and Gard brackets in

original).

3. Petitioners sued respondents in California slate

court, asserting stale common-law tort claims. As rele-

vant here, they alleged that the 1996 Mazda MPV was

defective because respondents should have installed a

‘Type 2 seatbelt in ‘Thanh’'s seating position They also

alleged that respondents had failed to provide adequate

warnings of the known hazards, msks, and dangers

of the Type | seatbelt installed in Thanh’s seating post

tion Pet. App. 4 Kespondents filed a demurrer on the

pround that federal law preempted those tort clauns

Id at

The trial court sustained the demurrer. The court

held that federal law precluded a state law tort action

“to the extent (the) Gheory of hability [was] the lap|-|

only seat belt.” Pet App. 4 (brackets in original), The

court noted that its ruling did not preclude petitioners

from stating a cause of action for “negligen|ce] in how

you hooked [the seatbelt) up or neghgen|ce] in how you

desyn the seat that was going to accommodate it, or any

other tort theory.” Jd at 5 (first and third brackets in

original), Petitioners stated to the trial court, however,

that they were “left with nothing” if federal Law preemp-

ted their challenge to the type of seatbelt respondents

installed in Thanh’s seating position /d atG The par

ties then stipulated to dismiss petitioners’ cemaminy

clams with preyudiwe /hid

4 ‘The Court of Appeal of California affirmed Vet

App L227

a With respect to petitioners’ design-defect claim,

the state appellate court's anatysis of the preemption

issue focused on this Court's decision in Geer, supra

This Court held in Gerer that an earher version of

FMVSS 208 preempted commontaw tort claims that

manufacturers should have equipped vehicles woth

driver's side airbags. At tssue was the 1984 amend

ment to FMVSS 208, see 49 Fed) Reg. 28,962-29,010

(1984), which required manufacturers Lo equip some

vehicles with passive restraints. Passive restraints are

devices —such as airbags or automatic seatbelts —the

efiectiveness of which does not depend on any action

by the vehicle occupants. The 1984 regulation provided

that, after a phase in period, manufacturers could

choose either to install airbags or lo mstall other forms

of passive restrauits

This Court held that FMVSS 208 conflicted with a

suit alleging that a common law duty of care required

mistallation of airbags and, therefore, preempted the suit

under ordinary principles of conflict preemption. 429

US at 874 886% The Court eaplamed that DOT, in pro

mulgating FMVSS 208, “dehberately sought variety —a

mix of several different passive restraint systems" Jad

al S78 For local tort law bo provide that a manufac

turer's choice to install passive restraints other than air

bays amounted te negligence, the Court reasoned,

“would have presented an obstacle to the variety and

mix of devices that the federal regulation sought.” Jd

at SSI

In this case, the state appellate court acknowledged

that Gerer was “distinguishable because nt dealt with

* The Court rejected the contention that the savings clause forbids

the appheation of ordinary conflict preemption principles 529 US at

i) 874

7

passive restramts, not seatbelts.” Pet. App. 15, accord

id at 24 But the court found “persuasive” the reason-

ing of several) lower-court decisions applying Gerer's

reasoning to cases involving Type lL seatbelts. /d at 24

Those decisions concluded that FMVSS 208 reflected

“NIETSA’s decision to allow car manufacturers the op

tion to install either lap-only or lap/shoulder seat belts”

at the relevant seating positions —ze, “the same policy

concerns . . . identified in Geer” Jd at 16, 18 (quot

ing Carden v. General Motors Corp , 509 F 3d 227, 241

(Sth Cur, 2007), cert. denied, 1228S. Ct. 2911 (2008), and

Roland v. General Motors Corp., 881 NF 2d 722, 727

(Ind Ct App), transfer denied, 898 Nb 2d 1218 (ind

2008) (Table)) Following the reasoning of those deci

stons, the court of appeal held that accepting petitioners’

claim “would bar motor vehicle manufacturers from em

ploying one of the passenger restraint options autho

rized by FMVSS 208,” and that petitioners’ claim there

fore ts preempted as “an obstacle to the implementation

of the comprehensive safety scheme promulated im

[FE MVSS] 208." /d at 23 (citation omitted, brackets in

oral).

b. The court of appeal also affirmed the dismissal of

petitioners’ other clams, inclading theur failure-to warn

claun Pet App 25 27 The court held that petitioners

had “waned these claims” through both their stipulation

and their concessions in the trial court that they could

not pursue any of their clams related to Thanh William,

son's death without the ability to challenge respondents’

decision to mstall a ‘Type | seatbelt in Thanh’s seating

position Jd at? The court further noted that those

other claims were “also barred by federal preemption ”

Id at 2o

8

§ The Supreme Court of Cahfornia denied petition

ers’ petition for review Pet. App 31.

DISCUSSION

The decision below is at odds with the regulatory

history of FMVSS 208 and the government's longstand-

ing position on the preemption of state common law tort

suits by Federal Motor Vehicle Safety Standards that

setonly minimum standards. In reaching its conelus on,

the decision below gave too broad a reading to this

Court's decision in Geier v. American Honda Motor Co ,

£29 US Bel (2000) Several other lower courts, both

federal and state, have similarly misinterpreted Gever,

and that recurring error has led to conflicts regarding

the preemptive effect of other aspects of the FMVSS

(although there is nol yet a square disagreement over

the precise factual scenario presented here, te, a deci

sion not to install a Type 2 seatbelt), The lower courts’

methodological error is important: it effectwely de-

prives the Safety Act's savings clause of tts proper ef-

fect; wt transforms the FMVSS from a minimum stan

dard into a defustive standard of care; and it does so

contrary to the consistent position of the agency that

promulgated the standards, as repeatedly expressed in

the government's briefs to this Court beginning in 1990

In the government's view, therefore, the first question

presented ts sufficientiy umportant and recurring lo war

rant this Court's review

The state appellate court's disposition of the second

question presented rests on the adequate and independ

ent state-law ground of waiver. This Court therefore

should grant the petition only as to the first question

presented

u

A The Decision Below Misreads Geier And Misinterprets

The Vreemptive Effect Of FMVSS 208

The state appellate court characterized FMVSS 20s

as giving manufacturers the “option” of installing either

Type | or Type 2 seatbelts at any position for which a

Type 2 seatbe't was not expressly required Pet App

16 (citation omitted) As a result, the court held that

state tort law is preempted under Geier when the state

law imposes habihty for choosmyg the less protective

option. ‘The state court's reading of Gever is incorrect

A Federal Motor Vehicle Safety Standard ts a “minimum

standard” 49TE SC 30102449) Accordingly, a state

common-law duty of care that effectively sets a higher

mintnum does not create a conflict with federal law, in

the absence of specifie features of a parucular FMVSS

that go beyond establishing a minimum standard Geter

held the local neghgence-law duty of care preempted

because the FMVSS at issue there did more than set a

ouornum standard Rather, that FMVSS affirmatively

encouraged the adoption of diverse forms of passive re

straints, and state tort law could not be permitted to

counter that encouragement by requiring that all manu

facturers select the same form of passive restraint

(airbags) Where, as m this ease, a FMVSS manifests no

affiemative antent to foster multiple options, there is no

conflict of the sort that was present nm Gerer—and hence

ho preemption.

1 As this Court stated in Geter, “DOT's own con

temporancous explanation of FMVSS 208 makes clear

that the 1984 version of FMVSS 208 reflected the follow

ing significant considerations”. (1) “buckled up seat

belts are a vital ingredient of automobile safety”, (2)

“despite the enormous and unnecessary risks that a pas-

senger runs by not buckling up manual lap and shoulder

10

belts, more than 80% of front seat passengers would

leave Chem manual seatbelts untbuekled”, (3) “airbags

could make up for the dangers caused by unbuckled

manual belts, but Chey could not make up for them en

tirely”, (4) “passive restraint systems had their own dis-

advantages, for example, the dangers associated with,

intrusiveness of, and corresponding public dislike for,

nondetachable automatic belts”, (5) “airbags brought

with them their own special risks to safety, such as the

risk of danger to out-of-position occupants (usually chal-

dren) in small ears"; (6) “airbags were expected to be

significantly more expensive than other passive re.

straint devices, raising the average cost of a velucle

price $320 for full frontal airbags over the cost of a car

with manual lap and shoulder seatbelts (and potentially

much more if production volumes were low),” and “the

agency worried Lhat the high replacement cost (of air-

bays | estimated to be $800 —could lead car owners to

refuse to replace them after deployment”, and (7) “the

public, for reasons of cost, fear, or physical intrusive

ness, might resist installation or use of any of the then-

available passive restraint devices.” Geter, 529 US. at

877 878

Kecause of the confluence of these factors, mn the

1944 amendment to FMVSS 208, NHTSA phased tn the

passive-restramt requirement and deliberately allowed

manufacturers lo choose among several types of passive

restraints, so that a variety of passive restraints would

be available on the market. NHTSA specifically had

rejected a proposed “all airbag” standard because of

safety concerns, arising partly from the potential for a

public backlash to an airbag mandate Gerer, 529 US at

879 As this Court explamned, NHTSA coneluded that

allowing manufacturers to choose among pussive re

straints “would help develop data on comparative effec

tiveness, would allow the industry time to overcome the

safety problems and the high production costs associ

ated with airbags, and would facilitate the development

of allernative, cheaper, and safer passive restraint sys

tems. And it would thereby build pubhe confidence”

bid (citing 49 Fed. Reg. at 28,990, 29,001 -29,002)

2 he history of the 1989 amendments to FMVSS

208 at issue in this case reflects a manifestly different

set of agency calculations

The orginal 1967 version of FMVSS 208 required

manufacturers to mstall either Type 1 or Type 2 seat-

belts for all rear passenger sealing positions. See 32

Fed. Keg. at 2415. In 1984, NHTSA denied a petition

for rulemaking to require Type 2 seatbelts for all pas-

senger cars’ rear outboard seating positions. 49 Fed

Keg. at 15,24]-15,242; see also 53 Fed. Keg. at 47,982

The petition fer rulemaking had sought such a rule pre

marily to facilitate the use of a type of booster seat for

children that was held in place by Type 2 seatbelts

(rather than by tethers, which at the time were more

widely used to secure child restraints), although the pe

tition also noted that adult passengers could benefit

from ‘Type 2 seatbelts in rear ovtboard seating positions

49 Fed. Reg. at 15,241. Kejeeting the proposal, NHTSA

stated that “child restraint systems and child booster

seats equipped with tethers offer greater protection for

children when those tethers are attached than when

those seats and systems are held in place by Type 2

belts.” /btd Further, although NHTSA agreed with the

view that “Type 2 belts in rear seats might give some

added degree of protection to adults,” the agency con

cluded that “the benefits, 1f any, to be gained by replac-

”

ing the Type | belts with Type 2 belts for Adults would

not justify the additional cost.” /d. at 15,241-15,242

In 1988, NIITSA issued an NPRM revisiting its ear

lier decision concerning Type 2 seatbelts in rear seating

positions. 53 Fed) Reg. at 47,982 47,993 The agency

proposed what would become the 1989 amendments to

FMVSS 204, requiring Type 2 seatbelts in all rear out-

board scating positions in (anter afi) passenger Cars

and multipurpose passenger vehicles. /d. at 47,982) In

the 1988 NPRM and the subsequent final rules, NITTSA

explained the main reasons for its change in position

since 1984. First, more people had begun to use rear

seatbelts, primarily because of new state seatbelt laws

id at 47,983. Second, rear-seat Type 2 seatbelts were

“even more effective” in reducing the risk of death than

Type 1 seatbelts, and NHTSA expected that greater

effectiveness to result in “progressively preater safety

benefits” as more rear-seat occupants used their seat

belts. 54 Fed. Reg. at 25,276 (final rule appheable to

passenger cars); 14 at 46,257-46,258 (final rule apphea

ble to other vehicles). Third, many manufacturers had

voluntarily installed ‘l'ype 2 seatbelts in rear outboard

seats, and as a result, the cost of requiring all manufac-

turers to do so had diminished substantially. /d at

46,258. Fourth, child restraint systems had shifted away

from those requiring a tether anchor, NHTSA deter-

mined that T'ype 2 seatbelts would “offer benefits for

children riding in some types of booster seats, would

have no positive or negative effects on children riding mm

most desipns of ear seats and children that are too smal]

to use Shoulder belts, and would offer older children the

same incremental safely protection” as adults. 53 bed

Keg. at 47,988-47, 989, see ad. at 47,983; 54 Fed Keg. at

26,276

13

‘The 1988 NPRM also explained why NHTSA had

decided not to propose requiring manufacturers to in

stall Type 2 seatbelts for rear inboard seating positions

‘The agency stated that there would be “more technical

difficulties” associated with installing Type 2 seatbelts

in rear inboard sealing positions than in rear outboard

Seating positions, 53 Fed. Reg. at 47,984. Additionally,

reyardless of the technical difficulties, such a require

ment would yield “small safety benefits and substan-

tially greater costs.” /bid) The agency acknowledged

that “some aisle seating positions,” such as the one at

issue in this case, “may not be covered by (the} proposed

requirement” to install Type 2 seatbelts, as “the seating

positions next Go the aisle on the right hand side of many

passenger vans * * * may not be outboard seating po

sitions, because they may be more than 12 inches from

the inside of Ghe velucle.” /d at 47,985

In adopting its final rule amending FMVSS 208 for

multipurpose passenger vehicles, NHTSA reemphasized

its rationale for not requiring ‘Type 2 seatbelts m rear

inboard seats. 64 Fed. Reg. at 46,257-46.208. The agen

cy stated that no commenters had “presented any new

data that would cause the agency to change its tentative

conclusion,” enunciated in the L988 NPRM, that requir-

ing Type 2 seatbelts in rear inboard positions would be

“technical{ly) difficalt{}" and “would yield small safety

benefits and substantially greater costs, given the lower

center seat occupancy rate and the more difficult engi

neering task.” /d at 46,258

NHTSA also stated in its fina) rule release that it

had decided not to require ‘Type 2 seatbelts for rear

seating positions adjacent to an aisle, regardless wheth

er those seats were techmeally “outboard” seats-—ze ,

less than 12 inehes from the side wall of the vehicle.

14

54 Fed Keg. at 46,258. The agency “did not mean to

suggest” that the FMVSS would require manufactur

ers Lo install shoulder belts “al seating positions where

they would obstruct an aisle designed to give access to

rear seating positions.” Jbid Significantly, however,

NILTSA also stated that, “Loff course, in those cases

where manufacturers are able to design and install lap/

shoulder belts at seating positions adjacent lo aisleways

without interfering with the atsleway's purpose of allow

inp access to more rearward seating positions, NITTSA

encourages the manufacturers to du so." Jbid.

Thus, im its final rule, NHTSA was not seeking to

promote safety by encouraging variety in seatbelt de-

syn or fostering a mix of ‘ype 1 and ‘Type 2 seatbelts

To the contrary, NHTSA showed a clear preference for

Type 2 seatbelts and even encouraged manufacturers to

install Chem for inboard sealing positions adjacent to an

aisle (the type of seat at Issue im this case). The reasons

why NHTSA did not mandate Type 2 seatbelts at those

positions perlaimed to its assessment at the time of the

technological difficulties, costs, and benefits of such a

requirement

That reasoning stands in sharp contrast lo the agen-

cy's reasoning with respect to airbags and other passive

restraints, discussed in Geier. There, the agency affir-

matively wished to provide for and encourage severa)

options for passive restraints, to help achieve the ult.

mate purpose of the regulation—the reduction of high

way deaths and injuries through the installation of pas-

sive restraints. That purpose of promoting safety by

fostering a variety of passive restraint devices would

have been frustrated by a state common-law duty to in-

stall airbags in all vehicles” Here, by contrast, NHTSA

stoply set a minimum standard of Type |} seatbelts for

1h

rear tnboard and aisle seats, based on tts assessment at

the tune of technical feasibility and cost-benefit analyses

(which are common to virtually all NHUPSA rulemaking

setting an FMVSS), while still encouraging manufactur.

ers to install Type 2 seatbelts in Chose seats. ‘Thus, the

existence of the purported “option” was simply the by

product of NH TSA's setting of a minimum standard

Manufacturers always have the “option” of exceeding

a minimum safety standard when NIITSA has decided

not Lo mandate a more stringent alternative because of

considerations of cost or feasibility —as NHTSA did in

this case and, indeed, often does in considering regula

tory alternatives. Butif such an “option” alone were

enough to trigger federal preemption under Geter, the

Safety Act’s savings clause would be greatly under

mined. Gerer does not mandate that result, because it

determined that under the Safety Act, common-law tort

actions may proceed unless they conflict with a FMVSS,

and here, Chere is no conflict

% The government has consistently maintamed that

aminimum safety standard provided ina FMVSS, with

out more, does not conflict with a stricter state require

ment As this Court explamed in Gever, because DOT

has a “thorough understanding of its own regulation and

its objectives” and a “am@quel] perspective on whether

state requirements conflict with federal standards, “the

agency's own views should make a difference” m the

conflict-preemption analysis. 529 US. at 883 (eitation

omitted), accord, eg, Wyeth v. Levine, 29S. Ct. 1187,

1201 (2009) (noting that agencies “have a unique under

standing of the statutes they administer and an atten

dant ability to make informed determinations about how

state requirements may pose an ‘obstacle’ ”), Sprietama

v. Mercury Marine, 537 US 51, 67-68 (2002), sce also

lb

Bates vo Liow Agroseis LLC, 544 US 431, 455 (2005)

(Breyer, J, concurring) The reasonmy of the decision

below conflicts with the consistent position of the United

States, expressed in three amicus briefs filed in this

Court beginning mm 19900 ‘Those briefs maintained that

a PMVSS permitting a manufacturer to choose among

different options consistent with a minimum standard

does not alone preempt state common-law tort claims

seeking Lo impose lability for selecting one option in-

stead of another.

In its brief in Wood v. General Motors Corp, 494

US 1065 (1990), submitted at this Court's tnvitation,

the United States stated that “the mere fact that man-

ufacturers may comply with federal law by installing

one of several types of occupant restramt systems does

not mean, standing alone, that a state law Cort achion

secking to impose lability for failing bo install airbags is

preempted" ULS. Amicus Br. at 15, Wood, supra (No

Su 46) ‘The United States reiterated that position in its

amicus bref in Freightliner Corp v. Myrick, 514 US

280 (1995), which stated that the government did “not

agree” with the “broader theory of implied preemption”

that some lower courts had advanced—": e , that the

existence of ‘options’ to comply with [FMVSS] 208 in

itself precludes state court judgments based on the fail-

ure to instal] one particular option.” US Amicus Br. at

20 0.16, Frecghtliner Corp, supra (No. 94-286). And the

United States’ amicus brief in Gerer itself echoed that

position “We therefore agree with petitioners Chat

their claims are not preempted merely because the Sec

retary made airbags one of several design options that

manufacturers could choose.” U.S. Amicus Br. at 21

nis, Gerer, supra (No G8 1811) See also Geer, 529

LES at S84 (“DOT has explamed FMVSS 208's objec-

17

tives, and the mterference that ‘no airbag’ suits pose

thereto, consistently over time”)

Ko OThe Decision Below Perpetuates Lower Courts’ Mes

reading Of Geier And Warrants Plenary Review

At present there is not a square conflict among fed

eral courts of appeals or state courts of last resort on

the question whether FMVSS 208 preempts claims chal

lenging a manufacturer's decision not to mistall a ‘Ty pe

2 seatbelt. The appellate courts that have addressed

that question have adopted the same erroneous reading

of Gerer discussed above” tu the government's view,

however, this Court's review ts warranted, for two rea-

sons. First, the question presented ts synificant and

recurring. ‘The lower courts repeatedly have over read

a decision of Chis Court to hold that a federal regulation

preempts state law, even though the federal agency that

promulgated and administers that regulation disagrees

And the dispute between the courts and the federal de

partment that promulgated FMVSS 208 concerns a na

tionally important issue: the standards of care that gov-

ern the design and manufacture of motor vehicles See

ond, the lower courts are currently in conflict on how to

apply the reasoning of Gerer to claims of FMVSS pre

emption generally. This Court need not and should not

postpone addressing this broad methodological issue

until a square conflict develops over the preemptive ef

fect of a particular provision of a paruicular FMVSS ap

pheable to a particular class of vehicles

1 ‘The decision belew follows decisions of two fed

eral courts of appeals and several intermediate st

courts in finding that the 1989 amendments lo FMVSS

208 preempt state common-law tort Gons concerning

the installation of Type lL seatbelts See Carden v Gen

Is

eral Motora Corp, 509 F.8d 227, 241 (Sth Cur, 2007),

cert. dented, 1255 Ce 2911 (2008), Grifth v. General

Motors Corp , 303 F.3d 1276, L28t-l2s2 (11th Cir. 2002),

cert. denied, 538 US. 1028 (2003); Roland v. General

Motors Corp , 83) N_E 2d 722, 729 (Ind. Ct. App.), brans

fer demed, 898 N -E.2d 1218 (ind. 2008) (Table);

Hemmncher v. Volvo Car Corp , 809 N F.2d 1094, 1098

(Mass App. Ct), review denied, 8315 NE 2d 1085 (Mass

2004) (Pable), see atso Murley v. Motor Coach Indus,

tne, 222 F.8d 377, 382 (7th Cir. 2000) (Type 1 seatbelt

installed in driver's seat of bus), cert denied, 531 US

1148 (2001). Those decisions interpreted the history of

FMVSS 208 as showing that NHTSA “decided to leave

manufacturers the option to select between lap-only and

lap shoulder belts” in rear inboard seating positions

Carden, 509 Fad at 231, accord Griffith, 303 F.3d at

1ZsZ (suit over ‘l'ype 1] seatbelt preempted because +

“would foreclose an option specifically permitted by

FMVSS 208"), Roland, 881 Nob 2d at 729 ("The present

case * * * involves a choice made available as part of

the comprehensive regulatory action expressed m

FMVSS 208"), /leanricher, 809 N_B& 2d at 1098 ("| The

preemptive effect of Standard 208 * * * encompasses

the two alternative manual restraint systems at issue

here * © * bederal law plainly provided Volvo Car

Corporation with the option of installing erther a two-

point lap belt or a Uhree-poimt lap shoulder harness in

the rear center seat of its vehicles.”).

As discussed above, however, NHTSA disagrees with

those courts’ characterization of its rulemaking The

government's briefs to this Court have consistently ex-

pluned that NIEPSA’s decision to allow options, stand

ing alone, does not compel a finding of preemption. See

pp 15-17, aupra Kather, mm eases like this one, the

19

FMVSS contemplates several ways of meeting the fed

eral minimum standard But without more (such as Che

emphasis on diversity of solutions discussed im Gerer),

the States are not foreclosed from concludimy, (hrough

a duty of care apphed in common law tort actions, that

one option is superior to the others. Given the “techn

cal” and “complex” nature of this repulatory framework,

Geier, 529 US. at S84, there is a significant risk that the

lower courts’ mistaken understanding of the regulatory

purpose will be self-perpetuating. See, eg , Roland, 851

Nb 2d at 727 (relying on Carden, Heimricher, and Grif

Sith); Carden, 509 F.3d at 231 (relying on Griffith).

Moreover, the issue remains sigmificant. NITTSA

estimates that im 2008, approxunately 1,040,438 vehicles

inthe United States were equipped with som Type I

seatbelts, any one of which could potentially become the

subject of a tort suit like this one. ‘Thus, although all

motor vehicles manufactured today with a gross vehicle

weight rating of 10,000 pounds or less are required to

have ‘Type Z seatbelts at seating positions like the one at

issue in this ease, see note 1, supra, the preemptive et-

fect of FMVSS 208 on claims involving older vehicles

remains sufficiently important to warrant this Court's

review Analogously, this Court granted review in Geer

although by that tine the question presented no longer

affected new cars: NHTSA had already required pas

senger cars to melude front-seat airbags, beginning with

the 1998 model year, See 49 CF RK 571 208(S4 1.5.3)"

* Although this case tavolves the use of a Type 1 seatbelt in an ante

aeat rather Chana true center seat, respondents do not contend im their

brief in opposition that this fact makes any pertinent difference lo the

preemplonanalyss See,eg , Bre in Opp 1, 22-25 (descriling the beue

in this case as pertaining to the “rear center seat’)

20

2 ‘The analytical question presented by this case —

how to apply Gerer’s reasoning to FMVSS provisions

that do not affirmatively seek to foster a diversity of

options—has already produced conflicts in the lower

courts, even though not m the precise circumstances

presented here. Thus, for mstance, lower courts have

reached conflicting conclusions on how to apply Gever wo

FMVSS 205, 49 CLFLR. 571.205, which allows manufac

turers to use either tempered or laminated glass in vel:

cle side windows. Some courts have held that FMVSS

205 does not conflict with a state common-law duty of

care requiring installation of laminated glass. See, eg,

O'Hara v. General Motors Corp , 508 F 3d 753, 762-70

(Sth Cir. 2007); MCI Sales & Serv, Inc v. Hinton,

272 5 W 3d 17, 29 Chex. Ct. App. 2008), review granted,

No 09 0048 (Tex. argued Mar, 24, 2010)) Other courts

have concluded that FMVSS 205 gives manufacturers

the “option” to install either tempered or laminated

ylass, and that state common law may not penalize

choosing either one. See, eg, Morgan v. Ford Motor

Co, 680 S.E. 2d 77, 94-95 (W. Va. 2009); Lake vo Mem

plis Landsmen, LLC, No. W2009-00526-COA-K3 CY,

2010 WL SO1867, at %6-°9 (Tenn. Ct App. Mar. 15,

2010) Similarly, lower courts have reached conflicting

conclusions on whether the absence in FMVSS 208 of

any requirement of passenger seatbelts im buses pre

empts common-law requirements to imstall such

seatbelts. Compare MCT Sales & Sere , 272 5.W 3d at

24-28 (common-law claim not preempted), with Lake,

* The Fifth Circuit decided O' Haru only weeks before a different

panel decided Canden, which concluded that FMVSS 208 did have pre

empte effect on facts like those here. Carden did not cite O Hanus

interpretation of Geter or its discussion of the preemptive effect of Uhe

availability of opbons unde a FMVSS

A |

—

2010 WL. 891867, at 99-9 DD (common-law claim unpliedly

preempted), and Doomes vo Best Transit Corp, 890

N_Y.S 2d 826, 527 (App. Div. 2009) (same).

Even those courts that have read Geter to require

preemption under such circumstances have noted the

need for further guidance from this Court. See, eg,

Morgan, 680 S F.2d at 94 (“We discern that we are

stuck between a rock and a jumsprudential hard place

* * © Geter is flawed because it requires courts to

* * * divine an agency’s interpretation from extrane

ous materials to determine the preemptive effect of a

regulation. * * * [But) Gever is, until altered or expli

cated by (this) Court, the guiding law of the Land "); ac

cord Lake, 2010 WL 891867, at °7.

Keview by this Court is therefore warranted even in

the absence of a conflict among decisions of federal

courts of appeals and state high courts concerning the

preemptive effect of the particular feature of FMVSS

208 at issue here. The acknowledged confusion and, in

the government's view, widespread error in the lower

courts over the decade since Gerer are of sufficient im

portance lo warrant plenary review of the first question

presented. Moreover, given the opposing views of the

responsible agency and a number of lower courts, fur-

ther percolation is not necessary for this Court to have

the full benefit of the opposing perspectives on the pre

emptive effect of FMVSS 208

©. This Court Lacks Jurisdiction To Keview Petitioners’

P ailure-To- Warn Claim

This Court lacks jurisdiction to consider “a question

of federal law decided by a state court if the decision of

that court rests on a state law ground that is independ

ent of the federal question and adequate to support the

ony

judgment.” Coleman vo Thompson, 501 U.S. 722, 729

(LY9L) ‘Phe state appellate court held that petitioners

waived their failure to-warn clam See Pet. App 25

That holding was based on state procedural require

ments, and petitioners have not offered any reason tu

conclude that those requirements are not both independ-

ent and adequate to support the dismissal’ Therefore,

this Court lacks jurisdiction to review the second ques-

tion presented

* Although the state court bnefly addressed the merits of the pre

emplion question in the alternative, see Pet App 26, Uhat discussion

does not detract from the adequacy of the state-law ground See,eg,

Sochor v. Florida, 504 US. 527, 535 (1992) (citing Michigan v. Long,

464 US. 1032, 1041 (1983))

23

CONCLUSION

The petition for a writ of certioran should be granted,

lunited te the first question presented

Respectfully subsmtted

Fitna KAGAN

RowexrS. Riven Soheutor General

General Counsel Tony Wrst

PautM Grete Assistant Allorncy General

Assistant General Counsel FoWINS KNEFFEDIFR

for Litigation Deputy Solerutor General

Prrek J PoocKws Wil ttamM Jay

Deputy Assistant General Assistant to the Solicitor

‘ounsel for Litigatumn General

D r ,

Department of Transportation Boue.es tt. Levere

O Kevin Vincent Herenl Gitberr

Chief Counsel Attorneys

LuoyoS Gurnee

Assistant Chref Counsel!

Timoriy H Goaouman

Senior Trial Atornecy

Natrona! Highway Trafpe

Safety Administration

Arvin 2010