Hodges v. Delta Airlines, Inc.

• Decision Date: 15 February 1995
• Docket Number: No. 91-6037,91-6037
• Citation: 44 F.3d 334
• Parties: Frances S. HODGES, Plaintiff-Appellant, v. DELTA AIRLINES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 334

44 F.3d 334

63 USLW 2529

Frances S. HODGES, Plaintiff-Appellant, v.DELTA AIRLINES, INC., Defendant-Appellee.

No. 91-6037.

United States Court of Appeals Fifth Circuit.

Feb. 15, 1995.

David W. Showalter, Bellaire, TX, Stuart J. Starry, Fleming, Hovenhamp & Grayson, Houston, TX, for appellant.

Jeffrey Robert White, Washington, DC, David R. Weiner, Dallas, TX, for amici curiae in favor of appellant.

Jennifer Bruch Hogan, William J. Boyce, Fulbright & Jaworski, Houston, TX, for appellee.

David T. Moran, Jackson & Walker, Dallas, TX, amicus curiae in favor of appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, and PARKER, Circuit Judges.

EDITH H. JONES, Circuit Judge:

During a flight from the Caribbean to Miami, Frances Hodges was injured when a fellow passenger opened an overhead compartment and dislodged a case containing several bottles of rum.The box fell and cut her arm and wrist.In her lawsuit against Delta Airlines, Hodges alleged that the airline's negligence caused her injury and medical expenses.The question before this court en banc is whether her state law tort claim for physical injury based on alleged negligent operation of the aircraft is preempted by Sec. 1305(a)(1) of the Airline Deregulation Act of 1978(ADA), 49 U.S.C.App. Secs. 1301 et seq. 92Stat. 1705(codified at various sections of Title 49 U.S.C.App.).We hold that it is not and therefore overrule Baugh v. Trans World Airlines, Inc., 915 F.2d 693(5th Cir.1990), an originally unpublished opinion that, as circuit precedent, compelled the opposite result in the panel opinion herein.

DISCUSSION

The summary judgment awarded by the district court is reviewed de novo on appeal.Hanson v. Continental Ins. Co., 940 F.2d 971, 975(5th Cir.1991).

Section 1305(a)(1) provides in pertinent part:

[N]o state ... shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes or services of any air carrier having authority under Title IV of this Act to provide air transportation.

49 U.S.C.App. Sec. 1305(a)(1).

This provision originated in the ADA, an economic deregulation statute.The Federal Aviation Act of 1958 (FAA), 72 Stat. 731, 49 U.S.C.App. Sec. 1301 et seq.(as amended), conferred on the Civil Aeronautics Board economic regulatory authority over interstate air transportation.The FAA did not expressly preempt state regulation of intrastate air transportation.In 1978, Congress amended the FAA after determining that efficiency, innovation, low prices, variety, and quality would be promoted by reliance on competitive market forces rather than pervasive federal regulation.Congress enacted the ADA to dismantle federal economic regulation.To prevent the states from frustrating the goals of deregulation by establishing or maintaining economic regulations of their own, Congress enacted Sec. 1305(a)(1), which preempts the states from enforcing any law "relating to rates, routes or services" of any carrier.Morales v. Trans World Airlines, Inc., --- U.S. ----, 112 S.Ct. 2031, 119 L.Ed.2d 157(1992).

The question in this case is the breadth of that express preemption of state law.¹ Interpretation of the statutory language is the key to construing its preemptive force.Morales, --- U.S. at ----, 112 S.Ct. at 2037.

The Supreme Court has twice broached the subject of Sec. 1305(a)(1) preemption in a way that informs but does not squarely resolve this case.In the first decision the question was whether Sec. 1305(a)(1), in providing that no state may enforce any law "relating to rates", overcame the attempts of several state attorneys general to apply state deceptive advertising laws against the airlines.Morales held that it did.Morales drew upon the broad construction of the phrase "relating to" in the ERISAcases.² Thus, the phrase "relating to" means "to stand in some relation; to have bearing or concern; to pertain; refer; to bring to association with or connection with."Morales, --- U.S. at ----, 112 S.Ct. at 2037(quoting Black's Law Dictionary 1158 (5th Ed.1979)).Consequently, "[s]tate enforcement actions having a connection with or reference to airline 'rates, routes or services' are preempted" under Sec. 1305(a)(1).Id.

As a necessary consequence of its broad interpretation, the Court rejected the argument that Sec. 1305(a)(1) preempts the states only from actually prescribing rates, routes, or services.--- U.S. at ----, 112 S.Ct. at 2037-38.The Court also rejected the notions that "only state laws specifically addressed to the airline industry are preempted" and that "preemption is inappropriate when state and federal law are consistent."Morales, --- U.S. at ----, 112 S.Ct. at 2038.Laws of general applicability, even those consistent with federal law, are preempted if they have the "forbidden significant effect" on rates, routes or services.--- U.S. at ----, 112 S.Ct. at 2039.

The Court acknowledged, however, that "[s]ome state actions may affect [airline services] in too tenuous, remote or peripheral a manner" to be preempted.Morales, --- U.S. at ----, 112 S.Ct. at 2040(quotingShaw v. Delta Airlines, Inc., 463 U.S. 85, 100 n. 21, 103 S.Ct. 2890, 2901 n. 21, 77 L.Ed.2d 490(1983)).Refusing to state exactly where the line would be drawn in a close case, the Court observed that the facts before it presented no close question of the connection between the attempted regulation and air fares.

Morales commands that whatever state laws "relate to rates, routes or services" are broadly preempted, but it does not define "services."The panel opinion in this case concluded that:

"Services" generally represent a bargained-for or anticipated provision of labor from one party to another.If the element of bargain or agreement is incorporated in our understanding of services, it leads to a concern with the contractual arrangement between the airline and the user of the service.Elements of the air carrier service bargain include items such as ticketing, boarding procedures, provision of food and drink, and baggage handling, in addition to the transportation itself.These matters are all appurtenant and necessarily included with the contract of carriage between the passenger or shipper and the airline.It is these [contractual] features of air transportation that we believe Congress intended to de-regulate as "services" and broadly to protect from state regulation.

Hodges v. Delta Airlines, Inc., 4 F.3d 350, 354(5th Cir.1993).The court adheres to this definition of services en banc, a definition inferentially reinforced by the Court's decision in American Airlines, Inc. v. Wolens, --- U.S. ----, ----, 115 S.Ct. 817, 823, 130 L.Ed.2d 715(1995)(describing claims concerning American Airlines' frequent flyer program as related to rates and "services," i.e., access to flights and class-of-service upgrades ...").Thus, federal preemption of state laws, even certain common law actions "related to services" of an air carrier, does not displace state tort actions for personal physical injuries or property damage caused by the operation and maintenance of aircraft.This definition harmonizes Sec. 1305(a)(1) with other sections of airline regulatory law, with Congressional intent underlying the ADA, with the regulatory agencies' understanding of the statute, and with general principles of federal preemption.

Under the regulatory framework established by the FAA, the term "service" or "services" had an established definition, consistent with dictionary usage.³ A vestige of that definition remains in what is left of the federal airline regulatory statutes:

"All-cargo air service" means the carriage by aircraft in interstate or overseas air transportation of only property or mail, or both.

49 U.S.C.App. Sec. 1301(11)("Definitions"section)."Air service" referred at the time of passage of the ADA to the point-to-point transportation of passengers, cargo or mail, and it encompassed the business of transportation as well as the schedules and type of contract (common carriage or charter).This court interpreted "service" to embody the airlines' quality of service in such a fashion as to authorize federal regulation of smoking on commercial flights.Diefenthal v. C.A.B., 681 F.2d 1039(5th Cir.1982), cert. denied, 459 U.S. 1107, 103 S.Ct. 732, 74 L.Ed.2d 956(1983).⁴

Following deregulation, the CAB's statements implementing the ADA strongly support the view that the ADA was concerned solely with economic deregulation, not with displacing state tort law.The Board concluded that:

preemption extends to all of the economic factors that go into the provision of the quid pro quo for passenger's [sic] fare, including flight frequency and timing, liability limits, reservation and boarding practices, insurance, smoking rules, meal service, entertainment, [and] bonding and corporate financing.⁵

The Federal Aviation Agency, to which some of the Civil Aeronautics Board's powers were transferred by the ADA, see49 U.S.C.App. Sec. 1551(b), continues to identify "service" or "services" in its regulations to incorporate the accoutrements of the passenger- or shipper- and carrier contract.⁶

A facile analogy to Morales and the ERISA pre-emption cases could suggest that "services" includes all aspects of the air carrier's "utility" to its customers, hence, any state tort claim may "relate to" services as a result of its indirect regulatory impact on the airline's practices.Taken to its logical extreme, this argument would suggest that a lawsuit following a fatal airplane crash could relate to "services".

That Congress did not, however, intend Sec. 1305(a)(1) to preempt all state claims for personal injury is evident from at least one other provision of the remaining...