Ryan v. Brunswick Corp., Docket No. 163473

• Decision Date: 03 April 1995
• Docket Number: Docket No. 163473
• Citation: 531 N.W.2d 793,209 Mich.App. 519
• Parties: , Prod.Liab.Rep. (CCH) P 14,197 Mary RYAN, Independent Personal Representative of the Estate of Stephen Ryan, Deceased, Plaintiff-Appellant, v. BRUNSWICK CORPORATION, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 793

531 N.W.2d 793

209 Mich.App. 519, Prod.Liab.Rep. (CCH) P 14,197

Mary RYAN, Independent Personal Representative of the Estate of Stephen Ryan, Deceased, Plaintiff-Appellant, v. BRUNSWICK CORPORATION, Defendants-Appellees.

Docket No. 163473.

Court of Appeals of Michigan.

Submitted Nov. 16, 1994, at Grand Rapids.

Decided April 3, 1995, at 9:15 a.m.

Released for Publication May 24, 1995.

Conybeare Law Office, P.C. by John C. Johnson, St. Joseph, for plaintiff.

Plunkett & Cooney, P.C. by Mark H. Verwys, Grand Rapids, for defendants.

Before NEFF, P.J., and MacKENZIE and CHYLINSKI, ^* JJ.

MacKENZIE, Judge.

Plaintiff appeals as of right from an order granting partial summary disposition in favor of defendants Mercury Marine, a division of Brunswick Corporation; Bayliner Marine Corporation; and Blue Fin Marina pursuant to MCR 2.116(C)(4) and (8). We affirm.

Plaintiff's decedent died from injuries sustained when he was struck by the propeller of a powerboat that ran over him while he was swimming. In this wrongful death action, plaintiff alleged in relevant part that Bayliner, Mercury, and Brunswick, as manufacturers of the boat and its inboard motor and propeller, and Blue Fin Marina, as installer of the propeller, were negligent in failing to design, manufacture, and equip the boat and motor with a propeller guard and in failing to warn of the dangers of an unguarded propeller. The trial court granted summary disposition in favor of defendants on these claims; the parties stipulated the dismissal with prejudice of plaintiff's additional claims, including breach of express and implied warranties.

In granting partial summary disposition in favor of defendants, the trial court concluded that it lacked subject-matter jurisdiction over plaintiff's propeller guard claims because they were preempted by the Federal Boat Safety Act (FBSA), 46 U.S.C. § 4301 et seq. Plaintiff contends that the trial court erred in reaching this conclusion. While the question is one of first impression in Michigan, the majority of other jurisdictions that have considered the issue have held that state tort claims based on injuries resulting from unguarded boat propellers are preempted by the FBSA. We agree with that conclusion.

The Supremacy Clause of the United States Constitution provides that the laws of the United States "shall be the supreme Law of the Land" and grants Congress the power to preempt state law. U.S. Const., art. VI, cl. 2; Mowery v. Mercury Marine, Division of Brunswick Corp., 773 F.Supp. 1012, 1013 (N.D.Ohio, 1991). Consideration of any issue arising under the Supremacy Clause begins with the assumption 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. Cipollone v. Liggett Group, Inc., 505 U.S. ----, ----, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407, 422 (1992). Accordingly, central to any preemption analysis is a determination of congressional intent. Id.

Congress' intent to preempt state law may be explicitly stated in the statute's language or implicitly contained in its structure and purpose. Id. at ----, 112 S.Ct. at 2617, 120 L.Ed.2d at 422-423. When Congress has considered the issue of preemption and has included in the enacted legislation a provision that explicitly addresses that issue and provides a reliable indicium of congressional intent with respect to state authority, there is no need to infer congressional intent to preempt state laws. Id. at ----, 112 S.Ct. at 2617, 120 L.Ed.2d at 423. The preemption doctrine applies not only to state laws and regulations, but to the imposition of damages under state tort law as well, because an award of damages also acts as a form of regulation and can frustrate congressional objectives. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 247, 79 S.Ct. 773, 780, 3 L.Ed.2d 775, 784 (1959); Cipollone, supra, --- U.S. at ----, 112 S.Ct. at 2619, 120 L.Ed.2d at 426; Shields v. Outboard Marine Corp., 776 F.Supp. 1579 (M.D.Ga., 1991). But see Moore v. Brunswick Bowling & Billiards Corp., 889 S.W.2d 246 (Tex., 1994).

The FBSA contains an express preemption clause, codified at 46 U.S.C. § 4306, that provides in relevant part:

Unless permitted by the Secretary [of Transportation] 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 ... that is not identical to a regulation prescribed under section 4302 of this title.

Section 4302 authorizes the Secretary of Transportation to prescribe regulations requiring the installation of certain equipment on recreational vessels and prohibiting the installation of equipment that does not conform with federal safety standards.

The express language of 46 U.S.C. § 4306 makes it clear that Congress intended to forbid state boat equipment regulations that are not identical to the federal rules. Mowery, supra at 1014; Shields, supra at 1581; Farner v. Brunswick Corp., 239 Ill.App.3d 885, 180 Ill.Dec. 493, 498, 607 N.E.2d 562, 567 (1992). Further, the statute's legislative history also indicates Congress' intent to preempt state boat equipment regulations except where they are parallel to federal regulations. Mowery, supra at 1014, citing S.Rep. No. 248, 92nd Cong., 1st Sess., reprinted in 1971 U.S.Code Cong. & Admin.News 1333, 1341; Davis v. Brunswick Corp., 854 F.Supp. 1574, 1580 (N.D.Ga., 1993), citing H.R.Rep. No. 338, 98th Cong., at 160, reprinted in 1983 U.S.Code Cong. & Admin.News 924, 972. An award of damages to plaintiff for the failure to install a propeller guard would be the equivalent of a state regulation requiring propeller guards on motors of recreational boats. Mowery, supra at 1016-1017; Davis, supra at 1580; Farner supra, 180 Ill.Dec. at 497-498, 607 N.E.2d at 566-567. Thus, the question becomes whether a propeller guard requirement is identical to the federal requirements for equipment on recreational boats. See Shields, supra at 1581. If it is not, then plaintiff's claims are preempted under 46 U.S.C. § 4306. See Shield v. Bayliner Marine Corp., 822 F.Supp. 81, 84 (D.Conn., 1993) ("State laws that prescribe different safety measures are preempted by the FBSA.").

The Secretary of Transportation's regulatory authority under the FBSA has been legislatively delegated to the United States Coast Guard. Mowery, supra at 1015; Shields, supra at 1581. On the basis of recommendations of the National Boating Safety Advisory Council and its Propeller Guard Subcommittee, the Coast Guard has adopted the official position that "[a]vailable data do not support imposition of a regulation requiring propeller guards on motorboats." Mowery, supra at 1015- 1016. See also Shields, supra at 1581; Farner, supra at 180 Ill.Dec. at 487, 607 N.E.2d at 566.

The Coast Guard's decision not to regulate the installation and use of propeller guards is the functional equivalent of a rule prohibiting states from requiring them:

[The decision of the Coast Guard not to regulate the use of propeller guards] 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. See Arkansas Electric Cooperative Corp. v. Arkansas Public Service Comm, 461 US 375, 384; 103 SCt 1905, 1912; 76 LEd2d 1 (1983) ("[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 pre-emptive force as a decision to regulate").

Congress has determined, through its statutory delegation of its regulatory authority to the Secretary of Transportation (and then delegated by the Secretary to the Coast Guard), that there shall be no federal propeller guard requirement. Therefore, in the absence of a federal requirement, manufacturers are given the choice whether to install them. Any state requirement compelling them to do so would be preempted under the FBSA. [Mowery, supra at 1016; emphasis added.]

Accord Shields, supra at 1581; Farner, supra at 180 Ill.Dec. at 487, 607 N.E.2d at 566.

In this case, any award of damages to plaintiff would be based on a determination that Michigan law requires the installation and use of propeller guards on recreational boats. Such a requirement is not identical to the Coast Guard's regulations, however. Plaintiff's claims regarding defendants' failure to install a propeller guard are therefore preempted under the FBSA. Mowery, supra at 1016; Farner, supra, 180 Ill.Dec. at 488, 607 N.E.2d at 567; Shields, supra at 1581; Shield, supra at 84; Davis, supra at 1580. But see Moore, supra. The same analysis applies to plaintiff's failure to warn claims: if an award of damages were allowed for defendants' failure to warn of the dangers of an unguarded propeller, it would be tantamount to a state requirement that explicit warnings be given. Davis, supra at 1583-1584. Such an explicit warning would be beyond the requirements specified by the federal government. Id. at 1584. Plaintiff's failure to warn claims are therefore also preempted. Id. ¹

Federal preemption deprives a state court of subject-matter jurisdiction. Cuffe v. General Motors Corp., 166 Mich.App. 766, 771, 420 N.W.2d 874 (1988). Accordingly, we find no error in the trial court's order granting defendants partial summary disposition of plaintiff's propeller guard and failure to warn claims pursuant to MCR 2.116(C)(4). ²

In the alternative, plaintiff contends that summary disposition was improper under MCR 2.116(C)(8) because defendants had a duty to design a motor with a propeller guard and a duty to warn of the dangers of an unguarded propeller. This argument also is without...