Moore v. Brunswick Bowling & Billiards Corp., Mercury Div., 01-91-00427-CV
| Decision Date | 13 May 1993 |
| Docket Number | No. 01-91-00427-CV,01-91-00427-CV |
| Parties | Prod.Liab.Rep. (CCH) P 13,635 Shannon MOORE, Individually and By Next Friend, Donal R. Moore, Appellants, v. BRUNSWICK BOWLING & BILLIARDS CORPORATION, MERCURY DIVISION, Individually and d/b/a Mercury Outboard Motors and/or Mercruiser, and Vivian Industrial Plastics, Inc., Individually and d/b/a V.I.P. Boats, Appellees. (1st Dist.) |
| Court | Texas Court of Appeals |
Neal H. Paster, Neal H. Paster & Associates, Houston, for appellants.
James B. Lewis, Kathleen Walsh Beirne, Houston, for appellee Brunswick Bowling & Billiards Corp.
H. Lee Lewis, Jr., Houston, for appellee Vivian Industrial Plastics, Inc.
Before DUGGAN, DUNN and O'CONNOR, JJ.
Shannon Moore and her next friend, Donal R. Moore (the plaintiffs or the appellants), appeal from summary judgment granted in favor of Brunswick Bowling & Billiards Corporation, Mercury Division, Individually and d/b/a Mercury Outboard Motors and/or Mercruiser, and Vivian Industrial Plastics, Inc., Individually and d/b/a V.I.P. Boats (the defendants or the appellees). The sole point of error raised by the appellants is that the trial court erred in granting summary judgment based on the doctrine of federal preemption pursuant to the Federal Boat Safety Act. We affirm.
While swimming in a river, Shannon Moore was injured when she was struck by the propeller of a motorboat. The motorboat was manufactured by V.I.P. and included a Mercury motor and drive unit. The motor unit did not have a propeller guard of any kind. The appellants filed suit against the boat's owners and the operator, and later joined Mercury as a products liability defendant under both negligence and strict liability theories. V.I.P. was sued under strict liability theories. The foundation of the appellants' claims against the appellees is that during the manufacture of the motor, Mercury failed to incorporate a propeller guard on its motor unit.
The appellee, Mercury, moved for summary judgment on the grounds that the Federal Boating Safety Act of 1971, 46 U.S.C.A. §§ 4301-4311 (West 1984) (FBSA), preempted any right to the appellants' common-law products liability or negligence causes of action for defective design, manufacture, or marketing. The trial court granted Mercury's motion, and also concluded that the preemption issue was dispositive of the claims against V.I.P. as well. The trial court granted the appellees' motion for severance, whereupon the summary judgment became final for the purposes of appeal.
Summary judgment is proper for a defendant if it conclusively establishes all elements of its affirmative defense as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). The movant must show there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986). The issue of federal preemption is a question of law for the court that can serve as a proper basis for summary judgment. See Cathey v. Metropolitan Life Ins. Co., 764 S.W.2d 286, 293 (Tex.App.--Houston [1st Dist.] 1988), aff'd, 805 S.W.2d 387, 388 (Tex.), cert. denied, 501 U.S. 1232, 111 S.Ct. 2855, 115 L.Ed.2d 1023 (1991) (). If a defendant establishes its right to summary judgment by conclusively proving federal law preempts the plaintiff's claim, the plaintiff can defeat summary judgment only by showing that federal preemption does not apply. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989).
The doctrine of preemption has been discussed recently by the Supreme Court in the context of a common-law claim against certain cigarette manufacturers. See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). In Cipollone, the Court emphasized that, pursuant to the supremacy clause of the Constitution, any state law conflicting with federal law is without effect. Id. at ----, 112 S.Ct. at 2617. Nevertheless, the threshold assumption in our analysis is that the historic police powers of the state are not to be superseded by federal law unless that is the clear and manifest purpose of Congress. Id. at ----, 112 S.Ct. at 2617. Thus, to determine whether a claim is preempted, a court must examine congressional intent. Id. at ----, 112 S.Ct. at 2617-18.
A federal statute may preempt state law (1) explicitly, (2) impliedly, where federal legislation occupies the entire field of regulation and leaves no room for state law, or (3) where there is an actual conflict between state law and a federal statute such that the state law acts as an obstacle to the objectives of Congress. Int'l Paper Co. v. Oullette, 479 U.S. 481, 491-92, 107 S.Ct. 805, 811-12, 93 L.Ed.2d 883 (1987); see English v. General Elec. Co., 496 U.S. 72, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). Federal regulations can preempt state law just as completely as federal statutes. Hillsborough County v. Automated Medical Lab., Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 2374, 85 L.Ed.2d 714 (1985). Additionally, when Congress has included in the legislation a provision explicitly addressing preemption, and that provision provides a reliable indication of congressional intent with respect to state authority, there is no need to infer congressional intent to preempt state law from the substantive provisions of the legislation. Cipollone, 505 U.S. at ----, 112 S.Ct. at 2618.
Two provisions of the FBSA are relevant to our analysis. The first addresses federal preemption and states:
Unless permitted by the Secretary under section 4305 of this title [46 U.S.C.S. § 4305], a State or political subdivision 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 [46 U.S.C.S. § 4302].
46 U.S.C.A. § 4306 (West 1984). Section 4311(g), the "savings clause," provides:
Compliance with this chapter [46 U.S.C.S. §§ 4301 et seq.] or standards, regulations, or orders prescribed under this chapter [46 U.S.C.S. §§ 4301 et seq.] does not relieve a person from liability at common law or under State law.
46 U.S.C.A. § 4311(g) (West 1984).
The United States Coast Guard has been delegated the exclusive authority to establish safety regulations. Elliott v Brunswick Corp., 903 F.2d 1505, 1508 (11th Cir.1990), cert. denied, 498 U.S. 1048, 111 S.Ct. 756, 112 L.Ed.2d 776 (1991). Pursuant to that authority, the Coast Guard decided that propeller guards should not be required on recreational watercraft. 1 This action by the Coast Guard was a decision not to regulate and has the same legal consequence as if the Coast Guard had issued a safety standard declaring that the states are prohibited from adopting a regulation requiring propeller guards on recreational boats. Mowery v. Mercury Marine, Division of Brunswick Corp., 773 F.Supp. 1012, 1016 (N.D.Ohio 1991). A federal decision to forego regulation in a given area may imply an authoritative federal determination that the area is best left unregulated, and in that event would have as much preemptive force as a decision to regulate. Id. (quoting Arkansas Elec. Coop. Corp. v. Arkansas Public Serv. Comm'n, 461 U.S. 375, 385, 103 S.Ct. 1905, 1913, 76 L.Ed.2d 1 (1983)); see also Shields v. Outboard Marine Corp., 776 F.Supp. 1579, 1581 (M.D.Ga.1991).
The purpose of section 4306 is to standardize regulations applicable to the manufacture of boats by precluding states from adopting requirements that are not identical or that conflict with federal standards. See Farner v. Brunswick Corp., 239 Ill.App.3d 885, 180 Ill.Dec. 493, 497, 607 N.E.2d 562, 566 (1992); Shields, 776 F.Supp. at 1581; Mowery, 773 F.Supp. at 1014. A state jury award of damages based on a defendant's alleged failure to equip its product with such a guard would be tantamount to recognition of a state requirement that they be installed. Farner, 180 Ill.Dec. at 498, 607 N.E.2d at 567; Mowery, 773 F.Supp. at 1016; see also MacMillan v. Redman Homes Inc., 818 S.W.2d 87, 95 (Tex.App.--San Antonio 1991, writ denied). Furthermore, we also conclude that the use of the word "law" in section 4306 further evidences Congress' intent that no common-law tort action be maintained based on the lack of a propeller guard. See Farner, 180 Ill.Dec. at 498, 607 N.E.2d at 567. We find that Congress intended to preempt a common-law tort action and the action in this case is thus barred under section 4306.
The appellants also argue that the FBSA's "savings clause," 46 U.S.C.A. § 4311(a), allows them to assert their claim under state common law. We reject the appellants' contention. The purpose of the savings clause is to assure that, by merely complying with the standards promulgated under the FBSA, a manufacturer will not have a per se defense to liability in a products liability action. Farner, 180 Ill.Dec. at 498, 607 N.E.2d at 567.
The appellants rely on Mulhern v. Outboard Marine Corp., 146 Wis.2d 604, 432 N.W.2d 130 (App.), review denied, 147 Wis.2d 890, 436 N.W.2d 31 (1988), and Rubin v. Brutus Corp., 487 So.2d 360 (Fla.Dist.Ct.App.), review denied, 500 So.2d 543 (Fla.1986), in support of their position. However, these cases are readily distinguishable from this case. In Mulhern, the court affirmed a decision to hold a manufacturer liable under state law for injuries caused when a throttle installed by it on an outboard motor caused the boat to lunge forward, thus throwing the plaintiff overboard into the motor's propeller. 432 N.W.2d at...
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Moore v. Brunswick Bowling & Billiards Corp.
....... Moore, Petitioners, . v. . BRUNSWICK BOWLING & BILLIARDS CORPORATION, Mercury Division, . Individually and dba Mercury Outboard Motors and/or . Mercruiser; and Vivian ......