Paredes v. Air–serv Corp.. Inc.

• Decision Date: 09 December 2010
• Docket Number: No. 09CA1729.,09CA1729.
• Citation: 251 P.3d 1239
• Parties: Emilio PAREDES, Plaintiff–Appellant,v.AIR–SERV CORPORATION, INC. and United Air Lines, Inc., Defendants–Appellees.
• Court: Colorado Court of Appeals

251 P.3d 1239

Emilio PAREDES, Plaintiff–Appellant,

v.AIR–SERV CORPORATION, INC. and United Air Lines, Inc., Defendants–Appellees.

No. 09CA1729.

Colorado Court of Appeals, Div. VII.

Dec. 9, 2010.

Harding & Associates, P.C., Phil Harding, Nevin A. Seeger, Mike Lazar, Denver, Colorado, for Plaintiff–Appellant.Harris, Karstaedt, Jamison & Powers, P.C., Mark Sares, Englewood, Colorado, for Defendants–Appellees.Opinion by Judge RICHMAN.

Plaintiff, Emilio Paredes, appeals the district court's judgment dismissing his complaint alleging negligence against defendants, Air Serv Corporation, Inc. and United Airlines, Inc. Because we conclude his state law negligence claim is not preempted by the Federal Aviation Authority Authorization Act, 49 U.S.C. § 41713(b)(1) (1994), we reverse and remand with directions to reinstate the complaint.

I. Background

Plaintiff's complaint alleged, in a single negligence claim, that while he was traveling by air on United-operated flights from Florida to his home in Alaska, he was in a weakened condition and required wheelchair assistance. During a layover at Denver International Airport, defendants' agents met plaintiff on the aircraft and placed him in an aisle wheelchair to transfer him to his next flight. He alleged that as defendants' employees took him off of the plane they wheeled him very quickly through the aircraft toward the jet way. Upon reaching the junction of the jet way and the aircraft, the wheelchair caught the edge of the jet way, causing plaintiff, who was still strapped into the wheelchair, to fall violently onto the ground and suffer immediate and excruciating pain and injury.

The complaint further alleged that after the incident on the jet way, defendants' agents left plaintiff alone in the airport terminal for more than thirty minutes in a filthy wheelchair. As plaintiff tried to raise himself out of the wheelchair, it gave way beneath him, resulting in a sudden and awkward application of force on his knees. He alleged his knees were severely injured and he experienced further, excruciating pain. Plaintiff alleged that he suffered economic and noneconomic injuries from defendants' negligent conduct.

Air Serv moved to dismiss pursuant to C.R.C.P. 12(b)(5), arguing that plaintiff's common law negligence claim for personal injuries was preempted by the Federal Aviation Authority Authorization Act (FAAAA), 49 U.S.C. § 41713(b)(1) (1994) (formerly the Airline Deregulation Act (ADA), 49 U.S.C.App. § 1305(a)(1) (repealed 1994)) (the preemption provision). The preemption provision provides that a state “may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier.” ¹ When the trial court indicated it would grant Air Serv's motion to dismiss, United joined in the motion.

The trial court dismissed plaintiff's complaint with respect to both defendants, concluding that the Colorado Supreme Court's discussion of the preemption provision in Arapahoe County Public Airport Authority v. Centennial Express Airlines, Inc., 956 P.2d 587 (Colo.1998), mandated that result.

In Centennial, the supreme court held that the ADA preemption provision did not preempt the Airport Authority's ban on scheduled passenger services. Id. at 593. The Centennial court relied upon the Supreme Court's discussion of the preemption provision in Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992), and the Court's conclusion that it “preempted all state laws relating to the rates, routes, or services of an interstate air carrier.” Centennial, 956 P.2d at 593 (citing Morales, 504 U.S. at 378, 112 S.Ct. 2031). The Centennial court described airline “services,” as used in the provision, to include “typical service-oriented tasks such as ticketing, boarding procedures, providing meals and drinks to passengers, and baggage handling.” Centennial, 956 P.2d at 594–95.

In deciding defendants' motions to dismiss, the trial court reasoned that because the court in Centennial had mentioned “boarding procedures” in its reference to preempted “services”; defendants' de-boarding procedures in this case would also “fall within the broad meaning of ‘relating to’ services as described in Morales, and thus plaintiff's claim was preempted.” This appeal followed.

II. Standard of Review

We review de novo a trial court's decision to grant a motion to dismiss. Wagner v. Grange Ins. Ass'n, 166 P.3d 304, 307 (Colo.App.2007). “[I]n evaluating a C.R.C.P. 12(b)(5) motion, we may consider only those matters stated in the complaint and must accept all allegations of material fact as true, viewing the allegations in the light most favorable to the plaintiff.” Lambert v. Ritter Inaugural Committee, Inc., 218 P.3d 1115, 1119 (Colo.App.2009). Motions to dismiss should only be granted when “the plaintiff's factual allegations cannot support a claim as a matter of law.” BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 71 (Colo.2004).

III. Preemption Under 49 U.S.C. § 41713(b)(1)

The single issue before us is whether the trial court erred in concluding that the FAAAA preemption provision, 49 U.S.C. § 41713(b)(1), preempts plaintiff's common law negligence claim.

Congress has the power to preempt state law. U.S. Const. art. VI, cl. 2; Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981). A cardinal rule of preemption analysis is the “starting presumption that Congress d[ id.] not intend to supplant state law.” New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995). This “presumption against preemption” takes on added significance “where federal law is said to bar state action in fields of traditional state regulation.” Id. at 655, 115 S.Ct. 1671. Accordingly, “the historic police powers of the States [a]re not to be superseded by [a] Federal Act unless that was the clear and manifest purpose of Congress.” Id. (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)).

Congress enacted the ADA in 1978 to foster “an air transportation system which relies on competitive market forces to determine the quality, variety and price of air services.” Pub.L. No. 95–504, 92 Stat. 1705 (1978). Congress expressly preempted any state regulation “relating to rates, routes, or services of any air carrier,” cf. 49 U.S.C. § 41713(b)(4)(A) (“related to a price, route, or service of an air carrier”), “[t]o ensure that States would not undo federal deregulation with regulation of their own.” Morales, 504 U.S. at 378, 112 S.Ct. 2031.

Congress, however, left in place the “savings clause” contained in the ADA's predecessor legislation, the Civil Aeronautics Act, § 1106, 52 Stat. 1027 (1938). The FAAAA savings clause provides that “[a] remedy under this part is in addition to any other remedies provided by law.” 49 U.S.C. § 40120(c) (1998).

Although the Supreme Court has interpreted the reach of the ADA's preemption provision in three cases, it has not expressly ruled on whether state tort actions are within the provision's preemptive scope. Thus, the provision “has been a source of considerable dispute since its enactment.” Charas v. Trans World Airlines, Inc., 160 F.3d 1259, 1263 (9th Cir.1998), amended, 169 F.3d 594 (9th Cir.1999).

A. Supreme Court Precedent

1. Morales

The Court first construed the preemption provision in Morales v. Trans World Airlines, Inc., 504 U.S. 374, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992), a case in which several states sought to enforce airline fare advertising guidelines adopted by the National Association of Attorneys General (NAAG) through their existing general consumer protection laws. Id. at 380–81, 112 S.Ct. 2031. Recognizing that the ADA's preemption provision and the preemption clause in the Employee Retirement Security Act of 1974 (ERISA) contained the “identical” preemptive phrase “relate to,” the Court drew upon its ERISA decisions to hold that “[s]tate enforcement actions having a connection with or reference to airline ‘rates, routes, or services' ” were preempted by the ADA. Id. at 384, 112 S.Ct. 2031 (citing Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)).

Applying this expansive interpretation of the phrase “relate to,” the Court then found that because the “obligations imposed by the [NAAG] guidelines would have a significant impact upon the airlines' ability to market their product, and hence a significant impact upon the fares they charge,” they had a “forbidden significant effect” on airline “rates, routes, or services” and were therefore preempted. Id. at 388, 390, 112 S.Ct. 2031.

However, the Court acknowledged that “ ‘[s]ome state actions may affect [airline fares] in too tenuous, remote, or peripheral a manner’ to have pre [ ]emptive effect.” Id. at 390, 112 S.Ct. 2031 (citing Shaw, 463 U.S. at 100 n. 21, 103 S.Ct. 2890).

2. Wolens

The Court recognized more specific limits on the ADA's preemptive reach when it revisited the preemption provision in American Airlines, Inc. v. Wolens, 513 U.S. 219, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995). Wolens involved state law claims arising from an airline's retroactive changes to its frequent flyer program. 513 U.S. at 224–25, 115 S.Ct. 817. Participants in the program sued the airline, alleging violations of a state consumer fraud statute and breach of contract. Id. The Court again looked to the plain language of the preemption provision, this time focusing on the words “enact” and “enforce.” Id. at 227, 115 S.Ct. 817. It held that the consumer fraud claims were preempted because, similar to the NAAG guidelines at issue in Morales, the state statute “serve[d] as a means to guide and police the marketing practices of the airlines,” thereby imposing state substantive standards with respect to “rates, routes, or services.” Id. at 228, 115 S.Ct. 817.

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