Moore v. Brunswick Bowling & Billiards Corp.

Citation889 S.W.2d 246
Decision Date12 December 1994
Docket NumberNo. D-3997,D-3997
Parties, Prod.Liab.Rep. (CCH) P 13,856 Shannon MOORE, Individually and By Next Friend, Donal R. Moore, Petitioners, v. BRUNSWICK BOWLING & BILLIARDS CORPORATION, Mercury Division, Individually and dba Mercury Outboard Motors and/or Mercruiser; and Vivian Industrial Plastics, Inc., Individually and dba V.I.P. Boats, Respondents.
CourtSupreme Court of Texas

Neal H. Paster, Houston, for petitioners.

James B. Lewis, H. Lee Lewis, Jr., Houston, for respondents.

CORNYN, Justice, delivered the opinion of the Court, in which GONZALEZ, DOGGETT, GAMMAGE, SPECTOR and ENOCH, Justices, join.

This case presents the question of whether the Federal Boat Safety Act, 46 U.S.C. §§ 4301-4311, preempts a state law tort claim that a boat was defective because it lacked a propeller guard. We hold that such claims are neither expressly nor impliedly preempted by the Act. Therefore, we reverse the judgment of the court of appeals and remand to the trial court for further proceedings.

On May 4, 1986, Petitioner Shannon Moore was swimming in the San Bernard River in Brazoria County when she was struck by the propeller of a motorboat. The boat was manufactured by Respondent Vivian Industrial Plastics, Inc., (V.I.P.), and contained a motor and drive unit manufactured by Respondent Brunswick Bowling & Billiards Corp., Mercury Division (Mercury). Shannon suffered injuries to her right arm from the propeller, which was not equipped with a guard. Donal Moore, as Shannon's next friend, 1 sued Mercury and V.I.P. in state district court under theories of negligence and strict liability. 2 Moore contended that the motor was defectively designed because it did not include a propeller guard. Mercury moved for summary judgment on the grounds that Moore's products liability suit was preempted by the Federal Boat Safety Act. The trial court granted Mercury's motion, stating in its order that Moore's claims were preempted by federal law. To serve judicial economy, the parties agreed that summary judgment should also be rendered on Moore's identical claims against V.I.P., without the necessity of V.I.P. filing a separate motion. The trial court then granted Mercury and V.I.P.'s motion for severance, whereupon the summary judgment became final for the purposes of appeal. The court of appeals affirmed, agreeing that Moore's claims were preempted. 853 S.W.2d 842.

The doctrine of federal preemption is rooted in the supremacy clause of Article VI of the United States Constitution, which states that the laws of the United States "shall be the supreme Law of the Land; ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. CONST. art. VI, cl. 2. Thus a state law that conflicts with federal law is "without effect." Cipollone v. Liggett Group, Inc., 505 U.S. 504, ----, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407 (1992). The "ultimate touchstone" of preemption analysis is congressional intent. Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1189, 55 L.Ed.2d 443 (1978) (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 223, 11 L.Ed.2d 179 (1963)).

Federal law may supersede state law in different ways. Congress may explicitly state its intent to preempt in the language of a federal statute. See Hillsborough County v. Automated Medical Labs., Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714 (1985). Preemption may be presumed when federal legislation is "so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it," or touches a "field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Finally, state law is preempted to the extent it actually conflicts with federal law. State law conflicts with federal law when it is impossible to comply with the law of both, see Hillsborough, 471 U.S. at 713, 105 S.Ct. at 2375, or when state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." International Paper Co. v. Ouellette, 479 U.S. 481, 492, 107 S.Ct. 805, 811, 93 L.Ed.2d 883 (1987). The term "federal law" in this context includes regulations as well as statutes. See Hillsborough, 471 U.S. at 713, 105 S.Ct. at 2375.

To determine whether state law is preempted in this case, we must first examine the history, purpose, and language of the Federal Boat Safety Act. The Act was originally promulgated "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." 3 S.REP. NO. 248, 92d Cong., 1st Sess. (1971), reprinted in 1971 U.S.C.C.A.N. 1333, 1333. Before prescribing regulations establishing safety standards under the Act, the Secretary must consult with the National Boating Safety Advisory Council concerning the need for the regulation and the extent to which it will enhance recreational vessel safety. 46 U.S.C. § 4302(c)(4). To pass a regulation compelling substantial future alteration of a vessel or piece of associated equipment, the Secretary must first determine, with the help of the Advisory Council, that the regulation is necessary to avoid a substantial risk of personal injury to the public. 46 U.S.C. § 4302(c)(3).

The legislative history indicates Congress' belief that uniformity was necessary to achieve the goals of the Act: "The need for uniformity in standards if interstate commerce is not to be unduly impeded supports the establishment of uniform construction and equipment standards at the Federal level." 1971 U.S.C.C.A.N. at 1335. 4 The language of the Act also reflects this desire for some degree of uniformity. Section 4306, entitled "Federal Preemption," provides:

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.

The Act also contains a "savings clause" in § 4311(g), which provides:

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.

Mercury 5 contends that Moore's claims are expressly preempted by the combination of § 4306 and the Coast Guard's decision not to mandate propeller guards through regulation, as evidenced by a Coast Guard report. In 1988, the Secretary of the Coast Guard instructed the Advisory Council to investigate the feasibility of requiring guards to prevent underwater propeller accidents, and the Council subsequently appointed a "Propeller Guard Subcommittee." The Subcommittee recommended that "the U.S. Coast Guard should take no regulatory action to require propeller guards," concluding that (1) current propeller guards can be "counter-productive and can create new hazards of equal or greater consequence," (2) no universal design is presently available, making the cost of retrofitting the millions of boats in this country prohibitive, and (3) "the boating public must not be misled into thinking there is a 'safe' device which would eliminate or significantly reduce such injuries or fatalities." See Report of the Propeller Guard Subcommittee, at 20-24 (November 7, 1989). The Advisory Council approved the report, and the Coast Guard accepted all of the Subcommittee's recommendations. See Letter from Robert T. Nelson, Rear Admiral U.S. Coast Guard, Chief, Office of Navigation and Waterway Services to Mr. A. Newell Garden, Chairman, 1 (February 1, 1990). The Coast Guard's stated position was that "available propeller guard accident data do not support imposition of a regulation requiring propeller guards on motorboats," noting that a guard fitting all types of boats was not then feasible and that the cost of retrofitting millions of boats was a major economic consideration. The Coast Guard agreed to continue to monitor propeller guard accident data and any improvements in propeller guard technology. Id.

The crux of Mercury's argument is that the term "law or regulation" in the § 4306 preemption clause encompasses common-law tort claims because jury awards of damages have a regulatory effect by requiring defendant companies to install propeller guards upon threat of liability. 6 Mercury posits that such awards would not only not be "identical" to the Coast Guard's policy decision not to mandate guards or regulations concerning guards, but also would create a direct conflict with that decision. Moore argues that her claims are expressly preserved under the plain language of the savings clause in § 4311(g).

When determining whether such an express preemption clause indeed preempts state law, we "start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Cipollone, 505 U.S. at ----, 112 S.Ct. at 2617 (quoting Rice, 331 U.S. at 230, 67 S.Ct. at 1152). The purpose of such a presumption is to provide "assurance that the 'federal-state balance' ... will not...

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