Viad Corp. v. Superior Court

• Decision Date: 28 May 1997
• Docket Number: No. B108343,B108343
• Citation: 64 Cal.Rptr.2d 136,55 Cal.App.4th 330
• Court: California Court of Appeals
• Parties: , Prod.Liab.Rep. (CCH) P 14,969, 97 Cal. Daily Op. Serv. 4048, 97 Daily Journal D.A.R. 6732 VIAD CORP., Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Jake ALLISON et al., Real Parties in Interest.

Page 136

64 Cal.Rptr.2d 136

55 Cal.App.4th 330, Prod.Liab.Rep. (CCH) P 14,969,

97 Cal. Daily Op. Serv. 4048,

97 Daily Journal D.A.R. 6732

VIAD CORP., Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent Jake ALLISON et al., Real Parties in Interest.

No. B108343.

Court of Appeal, Second District, Division 4, California.

May 28, 1997.

Rehearing Denied June 16, 1997.

Review Denied Sept. 3, 1997.

Hardy, Erich, Brown & Wilson and Whitney A. Davis, Sacramento, for Petitioner.

No appearance for Respondent.

Geffner & Bush, Robert Kropp, Jr.; John Roven for Real Parties in Interest.

HASTINGS, Associate Justice.

Real parties Jake Allison and 109 other individuals (hereinafter referred to as real parties) filed a personal injury and wrongful death lawsuit against petitioner Viad Corp. (hereinafter referred to as petitioner) for damages resulting from their exposure to asbestos insulation contained on locomotives. Petitioner moved for summary judgment on the grounds, inter alia, that real parties' state law tort claims were preempted by federal law, specifically 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.). ¹ The superior court denied the motion and petitioner filed its petition for writ of mandate in December 1996. We issued an order to show cause and a temporary stay order on February 6, 1997. After review of the petition and supporting papers, the return filed by real parties, and the reply memorandum of petitioner, we find the superior court's denial of the motion to be proper and deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner, formerly known as the Dial Corporation, is the alleged successor in interest to a now defunct steam and diesel locomotive manufacturer, Baldwin-Lima-Hamilton (BLH). Real parties are employees and relatives of employees of the Santa Fe and Southern Pacific railroads. In October 1995, real parties sued petitioner and others for negligence, strict product liability, express and implied warranty, personal injuries and wrongful death based upon their alleged exposure to asbestos contained in locomotive boiler pipe insulation. ²

In December 1996, petitioner moved for summary judgment. After taking the matter under submission, the superior court ruled, in pertinent part, as follows:

"PREEMPTION BY THE BOILER INSPECTION ACT:

"When originally enacted in 1911, legislative intent, as well as the specific language in the Act limited its application to common carriers with the goal of protecting employees from employers. Its provisions were not, therefore, so pervasive as to preempt the entire field.

"The Act was amended in 1988 to include 'any person,' but [petitioner's] predecessor went out of business in 1956, excluding it from the provisions of the 1988 amendment.

"[Petitioner's] motion as to this issue is therefore denied." ³

Petitioner contends the superior court erred in finding that Congress did not intend to preempt the field of locomotive parts and equipment regulation. Petitioner does not contest the lower court's findings on the statute of limitations issue.

INTRODUCTION

We begin with a discussion of preemption and the BIA.

1. Preemption principles

The doctrine of federal preemption is derived from the Supremacy Clause of the United States Constitution (Art. VI) and is designed to prevent the states from impinging on federal law and policy. (Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 516, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407.) Preemption can occur in three instances: (1) where Congress expressly specifies that its enactment preempts state law (express preemption); (2) where there is a scheme of federal regulation so pervasive that there is a reasonable inference that Congress intended to dominate the field and state laws on the same subject are precluded (field preemption); and (3) where federal law actually conflicts with state law and it is impossible for a private party to comply with both requirements (conflict preemption). (English v. General Electric Co. (1990) 496 U.S. 72, 78-79 [110 S.Ct. 2270, 2274-2275, 110 L.Ed.2d 65].) "Preemption fundamentally is a question of congressional intent." (Id. at pp. 78-79, 110 S.Ct. at p. 2275.) All preemption cases begin with the presumption that federal statutes do not supersede the historic police powers of the state unless Congress manifests a clear intent to do so. (Cipollone v. Liggett Group, Inc., supra, 505 U.S. at p. 516, 112 S.Ct. at p. 2617; Ketchum v. Hyundai Motor Co. (1996) 49 Cal.App.4th 1672, 1678, 57 Cal.Rptr.2d 595, citing Medtronic, Inc. v. Lohr (1996) 518 U.S. 470, 116 S.Ct. 2240, 135 L.Ed.2d 700.) It is the burden of the party claiming preemption to prove Congress' intent. (De Canas v. Bica (1976) 424 U.S. 351, 357, 96 S.Ct. 933, 47 L.Ed.2d 43.)

2. The BIA

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) 337 U.S. 163, 189, 69 S.Ct. 1018, 1034, 93 L.Ed. 1282.) In its original codification, the BIA provided, inter alia: (1) that it applied to any common carrier or carriers (defined as a railroad), their officers, agents, and employees, engaged in the transportation of passengers or property by railroad; (2) that it was unlawful for any common carrier to use any locomotive engine propelled by steam unless its boiler and appurtenances were in proper condition and safe to operate, and that all boilers shall be inspected from time to time and be able to withstand such test or tests as prescribed in the rules and regulations therein; (3) that a Chief Inspector and two assistant inspectors shall be appointed to ascertain that common carriers observe the requirements of the act; (4) there would be fifty inspectors assigned to the different states, each having certain job qualifications; (5) that each common carrier was required to file its rules and instructions for inspection with the Chief Inspector; (6) that each inspector had certain specified duties; (7) that the Chief Inspector must report to the Interstate Commerce Commission on an annual basis; and (8) that a statement of all accidents must be filed with the Chief Inspector. (Pub.L. No. 383 (1911) §§ 1-8, 36 Stat. 913-916.)

In addition, it contained a provision "That any common carrier violating this Act or any rule or regulation made under its provisions or any lawful order of any inspector shall be liable to a penalty of one hundred dollars for each and every such violation, to be recovered in a suit or suits to be brought by the United States attorney...." (Pub.L. No. 383 (1911) § 9, 36 Stat. 916.)

In 1915 and 1924, the BIA was amended to include the entire locomotive and all its parts. The statute was also amended several times between 1940 and 1980 in portions not pertinent to our discussion.

In 1988 and 1992, however, the civil penalty provision of the BIA was amended to read as follows: "Any person (including but not limited to a railroad; any manager, supervisor, official, or other employee or agent of a railroad; any owner, manufacturer, lessor, or lessee of railroad equipment, track, or facilities; any independent contractor providing goods or services to a railroad; and any employee of such owner, manufacturer, lessor, lessee, or independent contractor) violating sections 22 to 29 and 31 to 34 of this title, or any rule or regulation made under its provisions or any lawful order of any inspector, shall be liable to a penalty...." (Former 45 U.S.C. § 34; P.L. 100-342, § 14(7), 102 Stat. 633; P.L. 102-365, § 9(a)(8), 106 Stat. 978.)

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 & Iowa City Railway 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 Western 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 carriers. (45 U.S.C., § 51.)

SUMMARY OF CONTENTIONS

1. Petitioner's argument

Petitioner's argument is based principally on the 1926 case, Napier v. Atlantic Coast Line, 272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432, which specifically addressed the scope and effect of the BIA. Napier involved challenges to two state statutes which prescribed specifications for devices to be installed on locomotives. The United States Supreme Court held that states were precluded from imposing additional requirements for locomotive equipment based on the federal preemption by the BIA. The Court noted that the BIA gives the Interstate Commerce Commission the power to regulate the design, construction and material of every part of the locomotive, and thus, the states may not impinge upon that authority. It determined that the BIA is intended to occupy "the field of regulating locomotive equipment used on a highway of interstate commerce," even with respect to locomotives that are operated wholly within one state and those not engaged in hauling interstate freight or passengers. (Id. at pp. 607, 613, 47 S.Ct. at pp. 207, 210.)

2. Real parties' argument

Real parties rely primarily on the reasoning employed by two recent Supreme Court decisions filed more...