In re West Virginia Asbestos Litigation, No. 31237.

• Court: Supreme Court of West Virginia
• Writing for the Court: McGRAW, Justice
• Citation: 592 S.E.2d 818,215 W.Va. 39
• Parties: In re: WEST VIRGINIA ASBESTOS LITIGATION
• Docket Number: No. 31237.
• Decision Date: 04 December 2003

592 S.E.2d 818
215 W.Va. 39

In re: WEST VIRGINIA ASBESTOS LITIGATION

No. 31237.

Supreme Court of Appeals of West Virginia.

Submitted October 28, 2003.

Decided December 4, 2003.

592 S.E.2d 819

Robert F. Daley, Esq., Mark T. Coulter, Esq., D. Aaron Rihn, Esq., Pierce, Raimond & Coulter, PC, Pittsburgh, Pennsylvania, James F. Humphreys, Esq., J. David Cecil, Esq., James F. Humphreys & Associates, LC, Charleston, West Virginia, Leslie Crosco, Esq., John R. Rowen, Esq., Edward Beachler, Esq., Hartley, O'Brien, Parsons, Thompson & Hill, Wheeling, West Virginia, Jon B. Orndorff, Esq., Roy D. Baker, Jr., Esq., Baker, Lancianese & Conaty, Huntington, West Virginia, Attorneys for Old Orchard Industrial Corp

Bruce E. Mattock, Esq., Theodore Goldberg, Esq., Brian Alan Prim, Esq., David B. Rhodes, Esq., Goldberg, Persky, Jennings & White, Huntington, West Virginia, Stuart Calwell, Esq., John H. Skaggs, Esq., The Calwell Practice, PLLC, Scott S. Segal, Esq., The Segal Law Firm, William K. Schwartz, Esq., Harvit & Shwartz, Charleston, West Virginia, Attorneys for Plaintiffs Below, Appellees.

Benjamin L. Bailey, Esq., Jonathan D. Boggs, Esq., Bailey & Glasser, LLP, Charleston, West Virginia, W. Thomas McGough, Sr., Esq., Dona M. Doblick, Esq., Reed, Smith, Shaw & McClay, Pittsburgh, Pennsylvania, Attorneys for Railroad Friction Products Co.

Robert H. Sweeney, Jr., Esq., Michael A. Frye, Esq., Jenkins Fenstermaker, PLLC, James K. Toohey, Esq., Ross & Hardies, Chicago, Illinois, Attorneys for American Standard, Inc.

Stephen M. Schwartz, Esq., R. Scott Long, Esq., Hendrickson & Long, Charleston, West Virginia Daniel Markewich, Esq., Ellen Margolis, Esq., Mound, Cotton, Wollan & Greengrass, New York, New York, Attorneys for Viad Corp.

Leo G. Daly, Esq., Bethann R. Lloyd, Esq., Grogan, Graffam, McGinley & Lucchino, Pittsburgh, Pennsylvania, Attorneys for Amicus Curiae Budd Co.

John Hedges, Esq., Teresa Lyons, Esq., Byrne & Hedges, Morgantown, West Virginia, Attorney for Amicus Curiae AFL-CIO.

J. Weldon Granger, Esq., Houston, Texas, John D. Roven, Esq., Roven, Kaplan &

592 S.E.2d 820

Wells, Houston, Texas, James O'Brien, Esq., Leslie Crosco, Esq., Hartley, O'Brien, Thompson & Hill, Wheeling, West Virginia, Willard J. Moody, Esq., Moody, Strople, Kloeppel, Basilone & Higginbotham, Inc., Portsmouth, Virginia, Richard J. Sherpe, Esq., Glasser & Glasser, P.L.C., Norfolk, Virginia, Attorneys for Amici Curiae International Association of Machinists & Aerospace Workers and National Association of Retired and Veteran Railway Employees, Inc

McGRAW, Justice:

I.

FACTS

These certified questions come to the Court from a mass litigation proceeding from Kanawha County in which several thousand current and former railroad employees allege that they have been injured by exposure to asbestos-containing products. The employees sued both the railroads and the manufacturers of various products used by the railroads. The defendant manufacturers moved for summary judgment and asserted that federal law preempted the plaintiffs' claims against them. The lower court denied the motions for summary judgment and certified the following questions to this Court:

1. Are state tort law claims against manufacturers of parts or components of trains, locomotives, railcars, and similar vehicles used on any railroad, which is engaged in interstate or foreign commerce, preempted by federal law under the Safety Appliance Act, 49 U.S.C. § 20301 et seq.?

2. Are state tort law claims against manufacturers of parts or components of trains, locomotives, railcars, and similar vehicles used on any railroad, which is engaged in interstate or foreign commerce, preempted by federal law under the Federal Railroad Safety Act, 49 U.S.C. § 20101 et seq.?

3. Are state tort law claims against manufacturers of parts or components of railroad locomotives preempted by federal law under the Locomotive Boiler Inspection Act, 49 U.S.C. § 20701 et seq.?

The lower court answered all of these questions in the negative, finding that federal law does not preempt the claims against the manufacturers. For the reasons set forth below, we disagree with the lower court and answer the third certified question in the affirmative. Because this finding makes consideration of the first two questions unnecessary, we decline to answer them.

II.

STANDARD OF REVIEW

Because we are asked to answer a certified question, our review of the matter is plenary. "The appellate standard of review of questions of law answered and certified by a circuit court is de novo." Syl. pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996); syl. pt. 2, Keplinger v. Virginia Electric & Power Co., 208 W.Va. 11, 537 S.E.2d 632 (2000); syl. pt. 2, Charter Communications v. Community Antenna Serv., Inc., 211 W.Va. 71, 561 S.E.2d 793 (2002); syl. pt. 1, Board of Educ. of County of Taylor v. Board of Educ. of County of Marion, 213 W.Va. 182, 578 S.E.2d 376 (2003).

III.

DISCUSSION

As defendants¹ point out repeatedly, railroads have been "subject to comprehensive federal regulation for [over] a century." Carrillo v. ACF Ind., Inc., 20 Cal.4th 1158, 1163, 86 Cal.Rptr.2d 832, 835, 980 P.2d 386, 389 (1999), quoting United Transp. Union v. Long Island R. Co., 455 U.S. 678, 687, 102 S.Ct. 1349, 1355, 71 L.Ed.2d 547, 555 (1982) (as modified) (quotation omitted). Railroad law is unique in the breadth, degree, and comprehensiveness of federal oversight and involvement. The growth of the railroads in the 19th Century forced the progress of our law in workplace safety, property rights, and interstate commerce just as it drove the commercial development of much of the nation.

592 S.E.2d 821

Boiler explosions or derailments killed many workers and passengers; crossing accidents killed many more. The loss of life forced Congress to act

In 1893, Congress passed the first of what we now call the Safety Appliance Acts, followed in 1911 by the Boiler Inspection Act (also called the Locomotive Boiler Inspection Act or the Locomotive Inspection Act, abbreviated either LIA or BIA). The Boiler Inspection Act can now be found at 49 U.S.C. § 20701, et seq., and the Safety Appliance Act at 49 U.S.C. § 20301 et seq. Together these Acts standardized the safety requirements for many aspects of railroad operation, including brakes, lights, grab bars, coupling devices, pressure relief devices, and other such items.

In 1970, Congress passed the Federal Railroad Safety Act, also known as the FRSA, which gives broad powers to the Secretary of Transportation to create rules governing all aspects of railroad safety. The Federal Railroad Safety Act did not overrule or invalidate the other two statutes, but did allow federal oversight of a greater variety of railroad practices.

Defendants argue that the plaintiffs' claims against them are preempted by the foregoing federal statutes. As this Court has explained previously, the Supremacy Clause of the United States Constitution provides the basis for any preemption claim:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

U.S. Const. art. VI, cl. 2. This Court is, of course, obligated to honor the clause. "The Supremacy Clause of the United States Constitution, Article VI, Clause 2, invalidates state laws that interfere with or are contrary to federal law." Syl. pt. 1, Cutright v. Metropolitan Life Ins. Co., 201 W.Va. 50, 491 S.E.2d 308 (1997).

However, it is clear that state courts, including our own, have the authority to decide whether a state provision is indeed preempted by federal law. As the U.S. Supreme Court explained: "[W]hen a state proceeding presents a federal issue, even a pre-emption issue, the proper course is to seek resolution of that issue by the state court." Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 149-50, 108 S.Ct. 1684, 1691, 100 L.Ed.2d 127, 138 (1988). Accordingly, our Court recently held that: "West Virginia state courts have subject matter jurisdiction over federal preemption defenses." Syl. pt. 3, State ex rel. Orlofske v. City of Wheeling, 212 W.Va. 538, 575 S.E.2d 148 (2002).

Moreover, both this Court and the U.S. Supreme Court have explained that federal preemption of state court authority is generally the exception, and not the rule. As our Court has stated: "Despite the existence of this doctrine, however, preemption is disfavored in the absence of convincing evidence warranting its application [.]" Hartley Marine Corp. v. Mierke, 196 W.Va. 669, 673, 474 S.E.2d 599, 603...