Schwartz v. Volvo North America Corp.

Decision Date28 July 1989
Citation554 So.2d 927
Parties, Prod.Liab.Rep. (CCH) P 12,350 Joyce SCHWARTZ and Michael Schwartz v. VOLVO NORTH AMERICA CORPORATION and Aktiebolaget Volvo. 87-1272.
CourtAlabama Supreme Court

James R. Pratt III and R. Ben Hogan III of Hogan, Smith, Alspaugh, Samples & Pratt, Birmingham, for appellants.

De Martenson and D. Alan Thomas of Huie, Fernambucq & Stewart, Birmingham, and Harry Cole of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellees Volvo North America Corp., Aktiebolaget Volvo and Volvo Car Corp.

Arthur H. Bryant, Washington, D.C., for amicus curiae Trial Lawyers for Public Justice, and D. Leon Ashford of Hare, Wynn, Newell & Newton, Birmingham, for amicus curiae Alabama Trial Lawyers Ass'n, in support of appellants.

William H. Crabtree and Edward P. Good, Detroit, Mich., and Charles H. Lockwood II and John T. Whatley, Arlington, Va., and Paul M. Bator, Stephen M. Shapiro, Kenneth S. Geller and Kathryn A. Oberly of Mayer, Brown & Platt, Chicago, Ill., for amici curiae The Product Liability Advisory Council, Inc., The Auto. Importers of America, Inc., and the Motor Vehicle Manufacturers Ass'n of the U.S., Inc.


Plaintiffs, Joyce Schwartz and Michael Schwartz, appeal from the summary judgment entered in favor of Volvo North America Corporation and Aktiebolaget Volvo ("Volvo") on their claim, under the Alabama Extended Manufacturer's Liability Doctrine, that their Volvo automobile was not crashworthy due to Volvo's failure to incorporate into its design a reasonable passive restraint system--specifically, an air bag.

In December 1986, the Schwartzes sued Eugene Shelton Lowery and Steve Pulliam, alleging that Lowery had negligently operated a vehicle that was involved in an accident with a Volvo automobile owned and, at that time, occupied by the Schwartzes, and alleging that Pulliam had negligently entrusted his automobile to Lowery. The Schwartzes later added Volvo as a defendant, alleging that the automobile's seat belt system was defective; that Volvo was negligent in failing to warn and/or that the automobile was defective because of the absence of reasonable warnings that the seat belt system would not prevent "secondary impacts" 1 due to slackness or looseness of the system; that the automobile was defective and/or that Volvo was negligent because of its failure to incorporate into its design a reasonable passive restraint system to prevent secondary impacts; and that the vehicle was defective and unreasonably dangerous because of a lack of crashworthiness in the hood.

On March 10, 1988, the trial judge entered a partial summary judgment in favor of Volvo, finding that federal law preempts any claim based upon the lack of air bags and prevents the Schwartzes from offering evidence that air bags could have been or should have been incorporated into the design of their automobile.

After a motion was filed to set aside the summary judgment, additional evidence was submitted both in opposition to and in support of the summary judgment. On June 17, 1988, the trial court reaffirmed its summary judgment and made that judgment final pursuant to Rule 54(b), A.R.Civ.P. The June 1988 final judgment appealed from reads:

"Order of March 10, 1988, is reinstated granting defendants, Volvo North America Corporation, a corporation; Aktiebolaget Volvo (AB Volvo), partial summary judgment, as to any claims of plaintiffs based on lack of air bags, and said defendants are dismissed as parties to this action. It is determined by the court that there is no just reason for delay and it is directed that this judgment be entered as a final judgment under the provisions of Rule 54(b), A.R.Civ.P. Any costs incident thereto taxed to plaintiffs." (Emphasis supplied.)

As noted earlier, the trial court's original entry of partial summary judgment was expressly based on the limited ground of Volvo's defense of federal preemption. 2 Our reading of both entries of judgment (March 10 and June 17), however, convinces us that the trial court upheld the plaintiffs' air bag count as a cognizable state claim and then rejected the plaintiffs' right to prosecute that claim because of federal preemption. Indeed, unless the plaintiffs' allegation of liability against Volvo for its failure to install an air bag is a cognizable state claim, the preemption issue is not ripe for consideration. Stated otherwise, for preemption to be a viable issue, the trial court necessarily either decided or assumed that the plaintiffs' statements of their "air bag" claim were based on a recognized state claim.

Because we hold that the plaintiffs' claim based on Volvo's failure to install an air bag in their automobile is not a cognizable state claim, we affirm the partial summary judgment in favor of Volvo insofar as it relates to the "air bag" claim; thus, we pretermit any consideration of the preemption issue. Because our affirmance is limited to the "air bag" claim, to the extent the judgment may relate to any other claim against Volvo, we reverse the judgment and remand the cause. 3

Our affirmance is compelled by this Court's holding in Dentson v. Eddins & Lee Bus Sales, Inc., 491 So.2d 942 (Ala.1986). After careful consideration, we reaffirm our holding in Dentson. Even if we were to overrule Dentson (which we do not do here), it would require more than an overruling of that holding (affirming a Rule 12(b)(6), A.R.Civ.P., dismissal of a claim for failure to install seat belts on a school bus) for this Court to recognize a claim for injuries based on an automobile manufacturer's failure to install air bags absent a legislative mandate directing such installation.



STEAGALL and MADDOX, JJ., concur in the result.

HORNSBY, C.J., and ADAMS, J., concur in part and dissent in part.

KENNEDY, J., dissents.

STEAGALL, Justice (concurring in the result).

The majority refuses to reach the question of whether the Schwartzes' air bag claim is preempted by federal law, the only issue briefed and orally argued before this Court, finding instead that the plaintiffs do not state a cognizable claim under Alabama law. While I do not necessarily disagree with the result reached by the majority, I believe that such a claim is preempted by federal law.

The National Traffic and Motor Vehicle Safety Act ("Safety Act"), enacted by Congress in 1966, provides, in pertinent part:

"(a) The Secretary shall establish by order appropriate Federal motor vehicle safety standards. Each such Federal motor vehicle safety standard shall be practicable, shall meet the need for motor vehicle safety, and shall be stated in objective terms.


"(d) Whenever a Federal motor vehicle safety standard established under this subchapter is in effect, no State or political subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard. Nothing in this section shall be construed to prevent the Federal Government or the government of any State or political subdivision thereof from establishing a safety requirement applicable to motor vehicles or motor vehicle equipment procured for its own use if such requirement imposes a higher standard of performance than that required to comply with the otherwise applicable Federal standard.


"(f) In prescribing standards under this section, the Secretary shall--

"(1) consider relevant available motor vehicle safety data, including the results of research, development, testing and evaluation activities conducted pursuant to this chapter;

"(2) consult with the Vehicle Equipment Safety Commission, and such other State or interstate agencies (including legislative committees) as he deems appropriate;

"(3) consider whether any such proposed standard is reasonable, practicable and appropriate for the particular type of motor vehicle or item of motor vehicle equipment for which it is prescribed; and

"(4) consider the extent to which such standards will contribute to carrying out the purposes of this chapter."

14 U.S.C.A. § 1392 (1982). The Safety Act also provides:

"Compliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under common law."

15 U.S.C.A. § 1397(c) (1982) (hereinafter referred to as the "saving clause").

The Safety Act authorized "federal motor vehicle safety standards," more commonly referred to as "FMVSS." 15 U.S.C.A. §§ 1391(2), 1392(a) (1982). FMVSS 208 gives automobile manufacturers three options for the protection of front-seat passengers in crashes. The use of any one option would satisfy the requirements of FMVSS 208. These options are:

(1) Passive protection from frontal and angular collisions (air bags only);

(2) Passive protection from head-on collisions, supplemented by seat belts and a belt warning system (air bags and seat belts); or

(3) Lap and shoulder belts, plus a belt warning system (seat belts only).

49 C.F.R. § 572.208 (1982).

On appeal, the Schwartzes argue that, in light of this Court's decision in General Motors Corp. v. Edwards, 482 So.2d 1176 (Ala.1985), and the saving clause, the trial court erred in precluding air bag/passive restraint claims because Congress neither expressly nor impliedly preempted such claims.

In determining whether the Schwartzes' claim is preempted by federal law, we are required to look at the intent of Congress. A cause of action is expressly preempted when Congress states that state law is preempted, when the action of Congress shows an intent to occupy a given field, or if state law actually conflicts with the federal law. See Michigan Canners & Freezers...

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