Lady v. Neal Glaser Marine Inc., 99-60382

• Decision Date: 26 September 2000
• Docket Number: No. 99-60382,99-60382
• Parties: (5th Cir. 2000) STEVEN G. LADY, Plaintiff-Appellant, v. NEAL GLASER MARINE, INC; ET AL, Defendants, OUTBOARD MARINE CORPORATION, Doing Business As OMC, INC., doing business as OMCCC, doing business as CHRIS CRAFT, Defendant-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

Page 598

228 F.3d 598 (5th Cir. 2000)

STEVEN G. LADY, Plaintiff-Appellant, v. NEAL GLASER MARINE, INC; ET AL, Defendants, OUTBOARD MARINE CORPORATION, Doing Business As OMC, INC., doing business as OMCCC, doing business as CHRIS CRAFT, Defendant-Appellee.

No. 99-60382

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

September 26, 2000

Appeal from the United States District Court for the Southern District of Mississippi

Before KING, Chief Judge, GARWOOD and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Steven G. Lady (Lady) filed this suit in Mississippi state court against defendant-appellee Outboard Marine Corporation (OMC), seeking recovery for losses he sustained in a boating accident. OMC removed the case to federal court on the basis of diversity jurisdiction. Following removal, OMC filed a motion for summary judgment, arguing that the Federal Boat Safety Act, 46 U.S.C. §§ 4301-4311 (FBSA), and Coast Guard regulatory action preempted Lady's state-law tort claims. By the consent of both parties, the action was referred to a Magistrate Judge for disposition. The Magistrate Judge granted OMC's motion for summary judgment. Lady v. Outboard Marine Corp., 66 F. Supp.2d 818 (S.D. Miss. 1999). Lady now appeals. We affirm.

Facts and Proceedings Below

On May 7, 1995, Lady was riding a personal water craft, commonly known as a "jet ski," in Bayou La Croix, in Hancock County, Mississippi. Richard Rychetsky (Rychetsky), one of Lady's friends, was operating a motor boat to the rear portside of Lady's vessel. The two vessels were traveling at approximately thirty to thirty-five miles per hour within twenty feet of one another when Rychetsky blew his boat's horn. Lady reacted to the horn by making a hard left turn, placing his jet ski directly into the path of Rychetsky's boat. The vessels collided, causing Lady to be thrown off of his jet ski and under Rychetsky's boat. While in the water, Lady came into contact with the boat's moving propeller, resulting in severe injuries to Lady including lacerations to his head, the loss of one leg, and injury to the other.

On February 18, 1998, Lady filed this action in Mississippi state court against OMC, the manufacturer of Rychetsky's boat, and Neal Glaser Marine, Inc., the distributor of the boat, seeking recovery under Mississippi tort law for the injuries and losses he sustained as a result of the May 7, 1995 boating accident on Bayou La Croix.¹ Lady alleged that OMC and Neal Glaser Marine were liable under Mississippi law for negligence, breach of warranty, gross negligence, and design defect for failing to equip Rychetsky's boat with a propeller guard.² On April 7, 1998, OMC removed the action to federal court on the basis of diversity jurisdiction. Lady later voluntarily dismissed his claims against Neal Glaser Marine.

Following removal, the case was placed on inactive status, pending the outcome of Lewis v. Brunswick Corp., 107 F.3d 1494 (11th Cir. 1997), cert. granted, 118 S.Ct. 439 (1998), in which the Supreme Court granted certiorari to consider the preemptive effect of the FBSA and Coast Guard regulations on an action similar to Lady's. After the Supreme Court heard oral argument in Lewis but before the Court issued a decision, the parties in Lewis settled and the Court dismissed the petition for certiorari. See Lewis v. Brunswick Corp., 523 U.S. 1113, 118 S.Ct. 1793, 140 L.Ed.2d 933 (1998). Following the Supreme Court's dismissal, Lady's action was removed from inactive status. On September 9, 1998, OMC moved for summary judgment, arguing that federal law preempted Lady's claims against OMC-the same issue before the Court in Lewis. One month later, Lady and OMC consented to a Magistrate Judge's conducting all proceedings in the action, including the entry of final judgment. After a hearing on OMC's motion for summary judgment, the Magistrate Judge granted the motion, concluding that the FBSA and Coast Guard regulatory decisions preempted Lady's claims. Lady timely appealed.

Discussion

We review a judgment rendered by a Magistrate Judge³ just as we would a judgment rendered by a district court. See Madison v. Parker, 104 F.3d 765, 767 (5th Cir. 1997). We review a grant of summary judgment applying the same standard as the court below was required to apply. See Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 725 (5th Cir. 1995). Summary judgment must be affirmed when the non-moving party, in this case, Lady, has failed to demonstrate that a material issue of fact is present. See Madison, 104 F.3d at 767. Summary judgment evidence is viewed in the light most favorable to the nonmovant, and questions of law are reviewed de novo. See id. The Magistrate Judge's ruling that federal law preempts Lady's claims is a legal determination that this Court reviews de novo. See Baker v. Farmers Elec. Coop., Inc., 34 F.3d 274, 278 (5th Cir. 1994). We may affirm the summary judgment on any basis raised below and supported by the record. See Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998); Davis v.Liberty Mut. Ins. Co., 525 F.2d 1204, 1207 (5th Cir. 1976); see also 10A Charles Alan Wright et al., Federal Practice and Procedure § 2716, at 290 (3d ed. 1998).

Preemption by the FBSA and Coast Guard Regulation

Federal law generally preempts state law under the Supremacy Clause whenever (1) Congress has expressly preempted state action, (2) Congress has installed a sufficiently comprehensive regulatory scheme in the area, thus removing the entire field from state realm, or (3) state action would directly conflict with the force or purpose of federal law. See Cipollone v. Liggett Group, 112 S.Ct. 2608, 2617 (1992); English v. General Elec. Co., 110 S.Ct. 2270, 2275 (1990); Hodges v. Delta Airlines, Inc., 44 F.3d 334, 335 n.1 (5th Cir. 1995) (en banc). As neither party suggests that the second type of preemption-field preemption-applies, we need only address express and implied conflict preemption.

Whether federal law preempts Lady's state common-law tort claims is an issue of first impression in this Court. Several other courts, both state and federal, have considered the issue. However, they have not reached a uniform conclusion. See generally Amy P. Chiang, Note, The Federal Boat Safety Act of 1971 and Propeller Strike Injuries: An Unexpected Exercise in Federal Preemption, 68 Fordham L. Rev. 487 (1999). Nine courts have held that express preemption applies. See Carstensen v. Brunswick Corp., 49 F.3d 430, 431-32 (8th Cir. 1995); Moss v. Outboard Marine Corp., 915 F. Supp. 183, 186 (E.D. Cal. 1996); Davis v. Brunswick Corp., 854 F. Supp. 1574, 1580 (N.D. Ga. 1994); Shield v. Bayliner Marine Corp., 822 F. Supp. 81, 83 (D. Conn. 1993); Shields v. Outboard Marine Corp., 776 F. Supp. 1579, 1581 (M.D. Ga. 1991); Mowrey v. Mercury Marine, Div. of Brunswick Corp., 773 F. Supp. 1012, 1016-17 (N.D. Ohio 1991); Ryan v. Brunswick Corp., 557 N.W.2d 541, 548-49 (Mich. 1997); Sprietsma v. Mercury Marine, 729 N.E.2d 45, 52-53 (Ill. App. Ct. 2000); Farner v. Brunswick Corp., 607 N.E.2d 562, 567-68 (Ill. App. Ct. 1993). Three courts have found implied preemption. See Lewis, 107 F.3d at 1505-06; Davis, 854 F. Supp. at 1581-82; Shields, 776 F. Supp. at 1582. Two courts have concluded that federal law does not preempt state law in this context. See Moore v. Brunswick Bowling & Billiards Corp., 889 S.W.2d 246, 250-51 (Tex.), cert. denied sub. nom., 115 S.Ct. 664 (1994); Ard v. Jensen, 996 S.W.2d 594, 599-600 (Mo. Ct. App. 1999).

Lady argues that the Magistrate Judge erred in ruling that federal law preempts his Mississippi common-law tort claims against OMC. He contends that, despite the FBSA's express preemption clause, contained in 46 U.S.C. § 4306, and the Coast Guard's regulatory decisions, his action against OMC is not precluded because preemption under section 4306 does not extend to his common-law tort claims and because the FBSA's savings clause, 46 U.S.C. § 4311(g), preserves his action. OMC responds that section 4306 and the Coast Guard's regulatory decisions both expressly and impliedly preempt Lady's common-law tort claims, because subjecting OMC to a damage award would result in varying state requirements for recreational vessels, in direct contravention to Congress's intent to establish uniform requirements for recreational vessels. We now weigh in on this close and difficult issue and conclude that, although the FBSA and the Coast Guard's regulatory decisions do not expressly preempt Lady's tort claims, implied conflict preemption does preclude his action against OMC, because a state rule requiring propeller guards on recreational vessels would frustrate the Coast Guard's decision that recreational boats should not be required to be equipped with propeller guards.

A The FBSA and Coast Guard Regulatory Decisions

Congress enacted the FBSA in 1971, in part, "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 (1971), reprinted in 1971 U.S.C.C.A.N. 1333, 1333. A significant increase in the number of recreational boaters in the United States and in the number of boating "accidents, deaths and injuries," id. at 1334, required "a coordinated national boating safety program." Id. at 1335. To implement this goal, the FBSA authorizes the Secretary of Transportation (the Secretary) to prescribe regulations establishing minimum safety standards for recreational boats. See 46 U.S.C. § 4302⁴. The Secretary has the option to delegate regulatory functions to a designated agency that then operates under the Secretary's supervision. See 46 U.S.C. § 4303(a)⁵. The Secretary exercised that option and delegated to the Commandant of the United States Coast Guard the duty of "[c]arry[ing] out the functions vested...