Scheiding v. General Motors Corp.

• Decision Date: 03 August 1998
• Docket Number: A076333,A076730,A076352,A076341,Nos. A076324,s. A076324
• Citation: 65 Cal.App.4th 1310,77 Cal.Rptr.2d 339
• Parties: Previously published at 65 Cal.App.4th 1310 65 Cal.App.4th 1310, 98 Cal. Daily Op. Serv. 6118, 98 Daily Journal D.A.R. 8451 Robert SCHEIDING et al., Plaintiffs and Appellants, v. GENERAL MOTORS CORPORATION, Defendant and Respondent. *
• Court: California Court of Appeals Court of Appeals

Page 339

77 Cal.Rptr.2d 339

Previously published at 65 Cal.App.4th 1310

65 Cal.App.4th 1310, 98 Cal. Daily Op. Serv. 6118,

98 Daily Journal D.A.R. 8451

Robert SCHEIDING et al., Plaintiffs and Appellants, v. GENERAL MOTORS CORPORATION, Defendant and Respondent.

[And four other cases.] ^*

Nos. A076324, A076333, A076341, A076352, A076730.

Court of Appeal, First District, Division 2, California.

Aug. 3, 1998.

Review Granted Oct. 28, 1998.

[65 Cal.App.4th 1312] James L. Oberman, Hercules, Brayton, Harley Curtis, Novato, for Plaintiffs and Appellants.

Grace, Genson, Cosgrove & Schirm, Philip R. Cosgrove, Thomas H. Hutchinson, Los Angeles, Kimberly A. Smith, Marina Del Rey, for Defendant and Respondent.

KLINE, Presiding Justice.

INTRODUCTION

In five related appeals, former railroad workers, their spouses and survivors seek to overturn judgments dismissing their various tort actions against [65 Cal.App.4th 1313] locomotive manufacturer General Motors Corp. (hereinafter GMC) for asbestos-related injuries. These dismissals followed the superior court's grant of judgment on the pleadings in four of the actions and grant of summary judgment in favor of GMC on the fifth, all on the grounds of federal preemption of the state court causes of action by the Locomotive Boiler Inspection Act (hereinafter referred to as the BIA, formerly 45 U.S.C. §§ 22-34, now recodified in the Transportation Code, 49 U.S.C. § 20701 et seq.).

The question here is whether the federal BIA preempts state tort actions against the designer and manufacturer of locomotives for injuries suffered by railroad employees resulting from exposure to asbestos containing materials in those locomotives. More than 70 years ago, the United States Supreme Court in Napier v. Atlantic Coast Line. (1926) 272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432, addressed the question of the preemptive scope of the BIA. Nevertheless, the question is closer than may at first appear. Our analysis is assisted by the presence of two thoughtful and well reasoned recent cases: Law v. General Motors Corp. (9th Cir.1997) 114 F.3d 908 and Viad Corp. v. Superior Court (1997) 55 Cal.App.4th 330, 64 Cal.Rptr.2d 136. Both cases address the scope of BIA preemption of state law claims including, among others, strict product liability, negligence, and breach of warranty. The two cases reach diametrically opposing conclusions.

We are convinced that Napier v. Atlantic Coast Line., supra, 272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432, which specifically addressed the scope and effect of the BIA, continues to control. Consequently, we conclude that the BIA occupies the field of locomotive equipment design, manufacture and materials, preempting all state law claims within that field. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

GMC, through its Electro-Motive Division, is a manufacturer of diesel electric locomotives. These are powered in part by diesel engines which burn diesel fuel. These engines contain some asbestos materials. ¹

Harry Goodyear, Victor Hellquist, Robert Scheiding, Gaylord Blackburn and Billy Umphriss worked in or around locomotives at some time between [65 Cal.App.4th 1314] the 1940's and the 1980's. Plaintiffs in each of these five actions alleged below that GMC's locomotives and related equipment were defective because they released asbestos fibers into the atmosphere where these railroad employees worked and onto their clothing. Goodyear and Hellquist are wrongful death and survival lawsuits brought by the spouses of workers who died as a result of asbestos illnesses. Scheiding, Blackburn and Umphriss were filed by the injured employees themselves. ² The complaints in each case allege against GMC causes of action for negligence, strict liability, and false representation, as well as wrongful death and survival in Goodyear and Hellquist and negligent infliction of emotional distress and loss of consortium in Scheiding, Blackburn and Umphriss. ³

GMC moved for summary judgment in each of the five cases on the grounds that the BIA preempted the strict product liability and other state common law claims. The San Francisco Superior Court treated four of these motions as motions for judgment on the pleadings, granting them without [65 Cal.App.4th 1315] leave to amend. In Umphriss the court granted summary judgment in favor of GMC on preemption grounds.

On August 30, 1996, judgment was entered in favor of GMC in Goodyear, Hellquist, Scheiding, and Blackburn. On November 4, 1996 judgment was entered in favor of GMC in the Umphriss action. Timely appeals followed.

DISCUSSION

A. Preemption.

The Supremacy Clause (U.S. Const., art. VI, § 2) allows Congress to supplant

state regulation with uniform national rules. The doctrine of federal preemption, derived from the Supremacy Clause, is designed to prevent states from impinging on federal law and policy. (Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407; Law v. General Motors Corp., supra, 114 F.3d 908, 909 [hereafter Law ]; Viad v. Superior Court, supra, 55 Cal.App.4th 330, 333, 64 Cal.Rptr.2d 136 [hereafter Viad ].)

Because of the importance of federalism in our constitutional structure, all preemption cases begin with the strong presumption that federal statutes do not supersede the historic police powers of the state in areas like health and safety. As recognized repeatedly by our United States Supreme Court: "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.' [Citations.]" (Medtronic, Inc. v. Lohr (1996) 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700, quoting Rice v. Santa Fe Elevator Corp. (1947) 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447.) Accordingly, "[p]reemption fundamentally is a question of congressional intent." (English v. General Electric Co. (1990) 496 U.S. 72, 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65; accord Viad, supra, at p. 333, 64 Cal.Rptr.2d 136.) Further, this presumption applies not only to the question whether Congress intended any preemption at all, but also to the scope of its intended invalidation of state law. (Medtronic, Inc. v. Lohr, supra, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700, citing Cipollone, supra, at pp. 518, 523, 112 S.Ct. 2608.) "It is the burden of the party claiming preemption to prove Congress's intent. (De Canas v. Bica (1976) 424 U.S. 351, 357, 96 S.Ct. 933, 47 L.Ed.2d 43....)" (Viad, supra, at p. 333, 64 Cal.Rptr.2d 136.)

"Congress' intent may be 'explicitly stated in the statute's language or implicitly contained in its structure and purpose.' [Citation.] In the absence of an express congressional command, state law is pre-empted if that law [65 Cal.App.4th 1316] actually conflicts with federal law, [citation] or if federal law so thoroughly occupies a legislative field ' "as to make reasonable the inference that Congress left no room for the States to supplement it." ' [Citations.]" (Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407.) Stated otherwise, state law is preempted in three circumstances: (1) where Congress explicitly defines the extent to which its enactments preempt state law (express preemption); (2) where Congress' intent to preempt state law may be inferred from a pervasive scheme of federal regulation or where the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject (field preemption); and (3) where federal law actually conflicts with state law and it is not possible for a private party to comply with both requirements (conflict preemption). (English v. General Electric Co., supra, 496 U.S. 72, 78-79, 110 S.Ct. 2270, 110 L.Ed.2d 65.)

B. The BIA.

In its present form, section 20701 provides:

"A railroad carrier may use or allow to be used a locomotive or tender on its railroad line only when the locomotive or tender and its parts and appurtenances--

(1) are in proper condition and safe to operate without unnecessary danger of personal injury;

(2) have been inspected as required under this chapter and regulations prescribed by the Secretary of Transportation under this chapter; and

(3) can withstand every test prescribed by the Secretary under this chapter." (49 U.S.C.A. § 20701; added Pub.L. 103-272, § 1(e) July 5, 1994, 108 Stat. 885.)

In 1988 and 1992, the civil penalty provision of the BIA for violations of the Act, rules or regulations made under its provisions or the lawful orders of any inspector was amended to include manufacturers, among others. ⁴

"The BIA was enacted in 1911, as an amendment to the Federal Employers' Liability Act (FELA, 45 U.S.C. § 51 et seq.). (Urie v. Thompson (1949) [65 Cal.App.4th 1317] 337 U.S. 163, 189 [69 S.Ct. 1018, 1034, 93 L.Ed. 1282, 11 A.L.R.2d 252].)" (Viad, supra, at p. 334, 64 Cal.Rptr.2d 136.) "The purpose in enacting the BIA was to protect train service employees and the traveling public from defective locomotive boilers and equipment. (Urie v. Thompson, supra, 337 U.S. at pp. 190-191 [69 S.Ct. at pp. 1034-1035].) '[I]t has been held consistently that the [BIA] supplements the [FELA] by imposing on interstate railroads "an absolute and continuing duty" to provide safe equipment. [Citations.]' (Id. at p. 188 [69 S.Ct. at p. 1034].) In addition to the civil penalty, a person harmed by violation of the BIA is given recourse to sue under FELA, which applies only to railroad employees injured while engaged in interstate commerce. (Id. at p. 189 [69 S.Ct. at p. 1034]; see Crane v. Cedar Rapids & I.C.R. Co. (1969) 395 U.S. 164, 166 [89 S.Ct. 1706, 1708, 23 L.Ed.2d 176].) FELA provides the exclusive remedy for recovery of damages against a railroad by its employees. (Lilly v. Grand Trunk R. Co. (1943) 317 U.S. 481, 485 [63 S.Ct. 347, 350-351, 87 L.Ed. 411].) FELA liability is expressly limited to common...