Frastaci v. Vapor Corp.

• Decision Date: 21 December 2007
• Docket Number: No. A113752.,A113752.
• Citation: 70 Cal.Rptr.3d 402,158 Cal.App.4th 1389
• Parties: Iola FRASTACI, Individually and as Successor in Interest, etc., et al., Plaintiffs and Appellants, v. VAPOR CORPORATION, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

70 Cal.Rptr.3d 402

158 Cal.App.4th 1389

Iola FRASTACI, Individually and as Successor in Interest, etc., et al., Plaintiffs and Appellants, v. VAPOR CORPORATION, Defendant and Respondent.

No. A113752.

Court of Appeal, First District, Division 4.

December 21, 2007.

Steven Marc Harowitz, Harowitz & Tigerman, San Francisco, CA, Ted W. Pelletier, Law Office of Ted W. Pelletier, San Anselmo, CA, for Plaintiffs and Appellants.

Keith Reyen, Oium Reyen & Pryor, San Francisco. CA, for Defendant and Respondent.

REARDON, J.

I. INTRODUCTION

In this appeal, the survivors of a railroad worker seek to overturn a judgment dismissing their state tort claims against locomotive manufacturer Vapor Corporation (Vapor) for asbestos-related injuries. The dismissal followed the trial court's sustaining Vapor's demurrer without leave to amend, on the grounds of federal preemption under the Locomotive Boiler Inspection Act (49 U.S.C. § 20701 et seq.; hereafter BIA), as discussed in Scheiding v. General Motors Corp. (2000) 22 Cal.4th 471. 93 Cal.Rptr.2d 342, 993 P.2d 996, cert. den. (2000) 531 U.S. 958, 121 S.Ct. 383, 148 L.Ed.2d 295 (Scheiding).

In Scheiding, supra, 22 Cal.4th at pages 473-474, 477, 93 Cal.Rptr.2d 342, 993 P.2d 996, the California Supreme Court, relying on the seminal case of Napier v. Atlantic Coast Line (1926) 272 U.S. 605, 611, 47 S.Ct. 207, 71 L.Ed. 432 (Napier), held the BIA preempts railroad employees' state law actions against manufacturers of locomotives containing asbestos materials, because Congress intended the federal government to occupy the field of locomotive safety, including the "`design, the construction, and the material of every part of the locomotive and tender and of all appurtenances.' (Napier[, supra,] 272 U.S. [at p.] 611....)" (Scheiding, supra, 22 Cal.4th at p. 474, 93 Cal.Rptr.2d 342, 993 P.2d 996.) Plaintiffs maintain that Scheiding is not dispositive authority in the instant case because it did not address the preemptive scope of the BIA with respect to asbestos exposure occurring during repairs, when the trains are not "in use."

We conclude Scheiding forecloses state tort claims against locomotive manufacturers for defective design of their product, regardless of whether a locomotive is "in use" or off line in roundhouses or repair shops. Accordingly, we affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

Decedent Enio Frastaci worked as a locomotive repairman for the Wheeling and Lake Erie Railroad from 1946 through 1948. His father worked as a boilerman and a lineman for the Nickel Plate Railroad, the predecessor of the Wheeling and Lake Erie Railroad, from approximately 1915 to 1960. At some point, decedent was diagnosed with mesothelioma, an asbestoscaused cancer of the outer lung lining. He died of the disease on September 29, 2004. On March 28, 2005, decedent's wife and children brought a wrongful death and survival action against numerous defendants, seeking compensation for his asbestos injuries and his wife's loss of consortium, as well as punitive damages. The plaintiffs allege that decedent sustained both direct and secondary exposure to asbestos.

The complaint categorizes the defendants in two classes: (1) "manufacturing/distributing defendants," which made or distributed the asbestos-containing products; and (2) "premises defendants," which include various railroad companies that controlled the property where decedent and/or his father was exposed to asbestos-containing products. The complaint alleges various causes of action against Vapor, including negligence, strict liability, and false representation. Additionally, the complaint alleges causes of action against the railroad companies for violations of the Federal Employers Liability Act (45 U.S.C. § 51 et seq.; hereafter FELA) and the BIA.

Vapor filed a demurrer to the complaint on the grounds that the BIA preempted the state tort claims and that the complaint failed to identify any product attributable to Vapor. After several rounds of supplemental briefing and multiple hearings, the trial court sustained the demurrer without leave to amend, on preemption grounds. The trial court denied plaintiffs' motion for a new trial and this appeal followed.

III. DISCUSSION

A. Preemption Principles

One of the primary goals of preemption is uniformity. The supremacy clause (U.S. Const., art. VI, § 2) empowers Congress to create uniform national rules by supplanting state regulation. The doctrine of federal preemption is designed to prevent states from impinging on federal law and policy. (Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407; Law v. General Motors Corp. (9th Cir.1997) 114 F.3d 908, 909 (Law).)

Federal preemption "fundamentally is a question of congressional intent." (English v. General Electric Co. (1990) 496 U.S. 72, 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65.) "Congress' intent may be `explicitly stated in the statute's language or implicitly contained in its structure and purpose.' [Citation.] In the absence of an express congressional command, state law is preempted if that law actually conflicts with federal law, [citation], or if federal law so thoroughly occupies a legislative field ` "as to make reasonable the inference that Congress left no room for the States to supplement it."' [Citations.]" (Cipollone v. Liggett Group, Inc., supra, 505 U.S. at p. 516, 112 S.Ct. 2608.) Federal statutes that occupy a field serve to preempt both state statutory enactments and state common law torts remedies, as a damages award can act as a "potent method of governing conduct and controlling policy." (San Diego Unions v. Garmon (1959) 359 U.S. 236, 247, 79 S.Ct. 773, 3 L.Ed.2d 775.)

"Given the importance of federalism in our constitutional structure, however, we entertain a strong presumption that federal statutes do not preempt state laws; particularly those laws directed at subjects—like health and safety—'traditionally governed' by the states. CSX Transp., Inc. v. Easterwood [(1993) ] 507 U.S. 658, 664[, 113 S.Ct. 1732, 123 L.Ed.2d 387].. . . 'Thus, pre-emption will not lie unless it is "the clear and manifest purpose of Congress."' Id. (quoting Rice v. Santa Fe Elevator Corp. [ (1947) ] 331 U.S. 218, 230[, 67 S.Ct. 1146, 91 L.Ed. 1447] ...)." (Law, supra, 114 F.3d at pp. 909-910.)

"It has long been settled that Congress intended federal law to occupy the field of locomotive equipment and safety, particularly as it relates to injuries suffered by railroad workers in the course of their employment." (Law, supra, 114 F.3d at p. 910.)

B. The BIA and FELA

The FELA holds railroad employers liable for the injury or death of railroad employees that results, in whole or in part, from the railroad's negligence or that of its agents. (45 U.S.C. § 51; Crane v. Cedar Rapids & I.C.R. Co. (1969) 395 U.S. 164, 166, 89 S.Ct. 1706, 23 L.Ed.2d 176.) Enacted in 1911, the BIA, together with the related Safety Appliance Acts (49 U.S.C. § 20301 et seq.; hereafter SAA),¹ are regarded as amendments to the FELA (Urie v. Thompson (1949) 337 U.S. 163, 189, 69 S.Ct. 1018, 93 L.Ed. 1282; Fontaine v. National R.R. Passenger Corp. (1997) 54 Cal.App.4th 1519, 1525, 63 Cal.Rptr.2d 644 (Fontaine)). "`The BIA supplements the FELA to provide additional public protection and facilitate employee recovery. [Citations.] The BIA is to be considered together with other federal railroad safety laws, and is to be construed liberally to carry out their remedial and humanitarian purposes. [Citation.] [HI The FELA and the BIA further their humanitarian goals by imposing different types of liability. Liability under the FELA is premised on the railroad's negligence, however small. [Citations.]'" (Fontaine, supra, 54 Cal.App.4th at p. 1525, 63 Cal.Rptr.2d 644, quoting King v. Southern Pacific Transp. Co. (10th Cir. 1988) 855 F.2d 1485, 1488, fn. 1.) In contrast, the BIA imposes an "absolute duty" on railroad carriers to ensure their locomotives are properly maintained and safe to operate. (Fontaine, supra, 54 Cal.App.4th at p. 1525, 63 Cal. Rptr.2d 644; see Matson v. Burlington Northern Santa Fe R.R. (10th Cir.2001) 240 F.3d 1233, 1235.)

"`The FELA allows recovery in a broad range of situations, while liability under the BIA only occurs under narrow circumstances ....' [Citation.]" (Fontaine, supra, 54 Cal.App.4th at p. 1525, 63 Cal. Rptr.2d 644.) Specifically, the BIA states: "A railroad carrier may use or allow to be used a locomotive or tender on its railroad line only when the locomotive or tender and its parts and appurtenances—[¶] (1) are in proper condition and safe to operate without unnecessary danger of personal injury; [¶] (2) have been inspected as required under this chapter and regulations prescribed by the Secretary of Transportation under this chapter; and [¶] (3) can withstand every test prescribed by the Secretary under this chapter." (49 U.S.C. § 20701, italics added.)² A rail carrier can therefore be held liable under the BIA by either: (1) failing to keep its locomotives and appurtenances in proper condition and safe to operate without unnecessary peril to life and limb; or (2) violating a Federal Railroad Administration (FRA) regulation. (See McGinn v. Burlington Northern R. Co. (7th Cir.1996) 102 F.3d 295, 297, 299.) However, claims, that cannot be maintained under the BIA are often actionable under the FELA. (Fontaine, supra, 54 Cal.App.4th at p. 1525, 63 Cal. Rptr.2d 644.)

C. The BIA Preempts Plaintiffs' State Tort Claims

Over 80 years ago, the United States Supreme Court, in Napier, supra, 272 U.S. 605, 47 S.Ct. 207, specifically addressed the scope and effect of the BIA, concluding it occupies the field of locomotive equipment, preempting all state claims within that field (id. at pp. 606-607, 612-613, 47 S.Ct. 207). Napier involved challenges to two state statutes that required all trains operating in the state to have an automatic fire door and a locomotive cab curtain. (Id. at...