Ard v. Jensen, WD

• Decision Date: 04 May 1999
• Docket Number: No. WD,WD
• Citation: 996 S.W.2d 594
• Parties: Robert Leroy ARD, Appellant, v. James Donald JENSEN, Defendant, and The Brunswick Corporation, and Glastron, Inc., Respondents. 56041.
• Court: Missouri Court of Appeals

Page 594

996 S.W.2d 594

Robert Leroy ARD, Appellant, v. James Donald JENSEN, Defendant, and The Brunswick Corporation, and Glastron, Inc., Respondents.

No. WD 56041.

Missouri Court of Appeals,

Western District.

May 4, 1999.

As Modified June 24, 1999.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 29, 1999.

Application for Transfer Denied

Aug. 24, 1999.

Alan Kimbrell, St. Louis, for Appellant.

Peter Daniel, James Seigfriend, Jr., Kansas City, for Respondent.

SPINDEN, Presiding Judge.

Robert Leroy Ard appeals the circuit court's granting summary judgment in favor of The Brunswick Corporation and Glastron, Inc., on the ground that federal law preempted Ard's lawsuit regarding propeller guards. Ard suffered injuries on May 29, 1988, when a motorboat, driven by James Donald Jensen, ¹ backed over him while he was in the water preparing to ski. Ard sued Brunswick and Glastron, alleging that a Brunswick motor and a Glastron boat were defectively designed and unreasonably dangerous because Brunswick and Glastron did not install a propeller guard on the boat's motor. ² The circuit court concluded that the Federal Boat Safety Act (FBSA) preempted Ard's claim. We reverse the circuit court's judgment and remand for further proceedings.

Brunswick's and Glastron's motion for summary judgment alleged that Ard's claim was preempted by federal law and, therefore, violated the supremacy clause in Article VI of the United States Constitution. ³ Ard argues, however, that Congress did not intend to preempt, expressly or impliedly, his claim against Brunswick and Glastron under the FBSA. We agree.

In 1971, Congress enacted the FBSA to "improve boating safety by requiring manufacturers to provide safer boats and boating equipment to the public through compliance with safety standards to be promulgated by the Secretary of the Department in which the Coast Guard is operating--presently the Secretary of Transportation." S. REP. NO . 92-248, 92nd Cong., 1st Sess. (1971), reprinted in 1971 U.S.C.C.A.N. 1333. Pursuant to 46 U.S.C. § 4302, Congress authorized the Secretary of Transportation to promulgate regulations establishing minimum safety standards for recreational boats. Congress also authorized the Secretary of Transportation to delegate to a person, agency or organization "any work, business, or function related to the testing, inspection, and examination necessary for compliance enforcement and for the development of data to enable the Secretary to prescribe regulations under section 4302[.]" 46 U.S.C § 4303. The Secretary acted on that authority and delegated to the Coast Guard's commandant the duty of "[c]arry[ing] out the functions vested in the Secretary by the ... Federal Boat Safety Act of 1971[.]" 49 C.F.R. § 1.46(n)(1).

In 1988, the Coast Guard directed the National Boating Safety Advisory Council to consider whether the Coast Guard should implement federal requirements mandating the use of propeller guards. After hearings and research, the council recommended that "[t]he U.S. Coast Guard should take no regulatory action to require propeller guards." National Boating Safety Advisory Council, Report of the Propeller Guard Subcommittee 24 (1989). The Coast Guard, through a letter written by Rear Admiral Robert T. Nelson, chief of the Office of Navigation, Safety and Waterway Services, to A. Newell Garden, chairman of the National Boating Safety Advisory Council, adopted the council's recommendations concerning propeller guards. The letter said:

The regulatory process is very structured and stringent regarding justification. Available propeller guard accident data do not support imposition of a regulation requiring propeller guards on motorboats. Regulatory action is also limited by the many questions about whether a universally acceptable propeller guard is available or technically feasible in all modes of boat operation. Additionally, the question of retrofitting millions of boats would certainly be a major economic consideration. The Coast Guard will continue to collect and analyze data for changes and trends.... The Coast Guard will also review and retain any information made available regarding development and testing of new propeller guard devices or other information on the state of the art.

Brunswick and Glastron contend that Nelson's letter triggered federal preemption of the issue of propeller guards.

The FBSA has two provisions which pertain to preemption: 46 U.S.C. §§ 4306 and 4311(g). Section 4306 says:

Unless permitted by the Secretary under section 4305 of this title, a State or political subdivision of a State may not establish, continue in effect, or enforce a law or regulation establishing a recreational vessel or associated equipment performance or other safety standard or imposing a requirement for associated equipment (except insofar as the State or political subdivision may, in the absence of the Secretary's disapproval, regulate the carrying or use of marine safety articles to meet uniquely hazardous conditions or circumstances within the State) that is not identical to a regulation prescribed under section 4302 of this title.

Section 4311 (g) says, "Compliance with this chapter or standards, regulations, or orders prescribed under this chapter does not relieve a person from liability at common law or under State law."

The issue in this case is whether Congress intended to preempt Ard's common law claim. ⁴ We conclude that it did not.

The supremacy clause accords Congress the power to preempt state law so long as Congress is legislating according to power enumerated to it by Article I. When analyzing the supremacy clause, however, courts should begin " 'with the assumption that the historic police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress.' " Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (quoting Rice v. Santa Fe Elevator Corporation, 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)) (emphasis added). Thus, in considering areas which states have traditionally governed through their police powers, we certainly presume that a narrow interpretation of a preemption clause is the proper one. Medtronic, Inc. v. Lohr, 518 U.S. 470, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996). The overarching principle, of course, is that " ' "[t]he purpose of Congress is the ultimate touchstone" ' " in every preemption case. Cipollone, 505 U.S. at 516, 112 S.Ct. 2608 (citations omitted).

Congress' intention is either " 'explicitly stated in the statute's language or implicitly contained in its structure and purpose.' " Id. (quoting Jones v. Rath Packing Company, 430 U.S. 519, 525, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977)). Implied preemption arises if Congress expresses an intention to regulate a field of conduct exclusively or if a state law conflicts with a federal law. Cipollone, 505 U.S. at 516, 112 S.Ct. 2608. If, however, Congress has considered the preemption issue and has included an express preemption clause in the federal statute and that clause "provides a 'reliable indicium of congressional intent with respect to state authority,' " " 'there is no need to infer congressional intent to pre-empt state laws from the substantive provisions' of the legislation." Id. at 517, 112 S.Ct. 2608 (citations omitted). ⁵

Congress expressed its intention to preempt state laws and regulations governing boat safety by including a preemption clause in the FBSA. FBSA's § 4306 says that "a State may not establish, continue in effect, or enforce a law or regulation establishing a recreational vessel or associated equipment ... safety standard or imposing a requirement for associated equipment ... that is not identical to a regulation prescribed under section 4302 of this title." This means that the only laws or regulations which state regulatory bodies may establish concerning boat safety are those which are identical to the regulations prescribed by the Secretary. Congress, however, made an exception. In § 4311(g), it clearly articulated its intent that the FBSA not exempt common law claims. Both of these clauses are preemption clauses in the material sense of the term because both explicitly deal with the subject of what is and is not preempted. See Loulos v. Dick Smith Ford, Inc., 882 S.W.2d 149, 151 (Mo.App.1994).

We must decide, therefore, whether § 4311(g) is a reliable indicium of Congress' intention regarding preemption. Aiding our consideration is a presumption that what Congress intended to accomplish is articulated in the ordinary meaning of its statutes' language. Mills Music, Inc. v. Snyder, 469 U.S. 153, 164, 105 S.Ct. 638, 83 L.Ed.2d 556 (1985).

Congress could not have been any more clear in § 4311(g) that it did not want the FBSA to be a shield from common law liability. The statute says this explicitly, and the legislative history emphasizes it:

This section is a Committee amendment and is intended to clarify that compliance with the Act or standards, regulations, or orders promulgated thereunder, does not relieve any person from liability at common law or under State law. The purpose of the section is to assure that in a product liability suit mere compliance by a manufacturer with the minimum standards promulgated under the Act will not be a complete defense to liability.

S. Rep. No. 92-248, 92nd Cong., 1st Sess. (1971), reprinted in 1971 U.S.Code Cong. & Admin.News pp. 1333, 1352.

We conclude that Congress wanted to spare boat manufacturers from state laws which differed from the regulations which the Secretary of Transportation imposed. ⁶ Congress, however, aware of the common law as it existed when it enacted the FBSA and the duties it imposed on boat manufacturers, did not want the FBSA to obviate those duties. Sparing boat manufacturers from being "stretched" in opposite directions by state and federal regulators seemed proper to Congress,...