Wright v. General Elec. Co., 2006-CA-000080-MR.

• Decision Date: 30 November 2007
• Docket Number: No. 2006-CA-000080-MR.,2006-CA-000080-MR.
• Citation: 242 S.W.3d 674
• Parties: Ballard WRIGHT; Faye Wright, Appellants v. GENERAL ELECTRIC COMPANY, Appellee.
• Court: Kentucky Court of Appeals

242 S.W.3d 674

Ballard WRIGHT; Faye Wright, Appellants v. GENERAL ELECTRIC COMPANY, Appellee.

No. 2006-CA-000080-MR.

Court of Appeals of Kentucky.

November 30, 2007.

Robert H. Miller, II, Charleston, WV, for appellant.

Scott T. Dickens, Gregory Scott Gowen, Louisville, KY, for appellee.

Before ACREE and THOMPSON, Judges; ROSENBLUM,¹ Senior Judge.

OPINION

ROSENBLUM, Senior Judge.

Ballard and Faye Wright appeal from an order of Greenup Circuit Court granting summary judgment to General Electric Corporation upon their common law tort claims for injuries allegedly sustained by Ballard from exposure to asbestos during his employment as a railroad worker for CSX Transportation, Inc., and its predecessor, Chesapeake & Ohio Railroad Company (C & O). The appellee, General Electric, designed and manufactured locomotives and provided component parts incorporated into the locomotives and railroad cars used by the railroad carriers. The Wrights allege that these locomotives and component parts contained asbestos to which Ballard was exposed, resulting in his contracting lung cancer.

The circuit court granted summary judgment to General Electric based upon its conclusion that common law tort claims against railroad component parts manufacturers, such as the appellee, are preempted by the Locomotive Boiler Inspection Act (LBIA). We agree that the claims are preempted and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Ballard worked for CSX and its predecessor, C & O, in Shelby, Kentucky, from 1947 to 1982. During his first four years of employment, he worked as a Helper on C & O's steam engines. His duties during this period included servicing the coal tenders on the engines, including removing and installing gaskets from the journal boxes, and removing and installing pipe insulation on the steam pipes.

Ballard believes the insulation on the steam pipes and the gaskets contained asbestos. He contends that removing and installing the pipe insulation created a significant amount of asbestos-containing dust, which he breathed. Ballard worked with and around pipe insulation on the steam engines on a daily basis from approximately 1947 to 1951. As a Helper, he also assisted with Oil changes, handled oil pan gaskets, and worked on manifolds and gear boxes, which the Wrights also claim exposed him to asbestos.

From approximately 1951 to 1982, Ballard worked as a Freight. Car Inspector. In that capacity, one of his primary jobs was testing air brakes. General Electric was one of the manufacturers of the air brakes used on the cars. During his years as an inspector Ballard, on a daily basis, observed from close proximity while other employees serviced diesel locomotive engines, including while they worked on the engines' intercoolers, crankcases, manifolds and bearings. Similarly, he observed from close proximity while oil changes were performed on the diesel locomotives. According to Ballard, his proximity and exposure to these tasks subjected him to asbestos.

As an inspector Ballard also observed from close proximity as asbestos-containing products such as pipe insulation, gaskets, brake shoes and packing were being installed on and removed from the locomotives. According to Ballard, these tasks created visible dust which he and his co-workers breathed. Ballard states that during his employment with CSX, he was never given any kind of protective breathing equipment.

According to Ballard, the General Electric steam locomotives-which were designed, manufactured, and sold by the appellee-were heavily insulated with asbestos. The diesel locomotives used by C & O and CSX from the late 1950s through Ballard's retirement were likewise manufactured by General Electric. Ballard alleges that these locomotives, too, contained asbestos-containing products, such as oil pan gaskets.

In January 2001, Wright was diagnosed with asbestos-related lung cancer. He at tributes the disease to his exposure to asbestos during his employment by C & O/CSX, including his exposure to the steam and diesel locomotives designed and manufactured by General Electric.

On January 16, 2002, Ballard and Faye filed a Complaint in Greenup Circuit Court seeking damages for his lung cancer. The Complaint named 18 defendants, including CSX, General Electric, PneumoAbex Corporation² and Garlock Sealing Technologies, Inc.³

Among other things, the Complaint alleged that General Electric was negligent in that even though it knew of the dangers of exposure to asbestos, it failed to warn Ballard of the dangers and/or inform him of the precautions which should be taken to avoid injury. The Complaint also alleged that General Electric was subject to strict liability on the basis that the appellee placed into the stream of commerce an asbestos-containing product (a) exposure to which caused lung cancer, and (b) with no or inadequate warning to users or persons exposed to the product.

In due course General Electric moved for summary judgment. On December 6, 2005, the circuit court entered an order granting the motion. The order concluded that the appellee was, entitled to summary judgment on the basis that its common law tort claims sounding in negligence and strict liability were barred in that they were preempted by the federal Locomotive Boiler Inspection Act, 49 U.S.C.A. § 20701, et. seq. This appeal followed.

STANDARD OF REVIEW

The standard of review on appeal when a trial court grants a motion for summary judgment is "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App.1996); Kentucky Rules of Civil Procedure (CR) 56.03. "Because summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo." Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky.App.2001).

DISCUSSION

The Wrights contend that the circuit court erred in its determination that their state common law tort claims are preempted by the LBIA. However, the overwhelming weight of authority is that such claims are precluded, and, agreeing with the majority view, we affirm the circuit court's award of summary judgment to the appellee.

The provision of the LBIA under consideration, 49 U.S.C.A. § 20701, provides as follows:

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.

The issue presented is whether this federal statute preempts state common law tort claims sounding in negligence and strict products liability against a manufacturer of locomotives or locomotive component parts.

ELEMENTS OF PREEMPTION

The doctrine of federal preemption is derived from the supremacy clause of the United States Constitution, Article VI. M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819), determined that a state law that conflicts with federal law is without effect. However, the historic police powers of the state are not preempted in the absence of "the clear and manifest purpose of Congress" to do so. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). The United States Supreme Court has stated that it is reluctant to interpret a federal statute in such a way as to find preemption of subjects traditionally governed by state law. CSX Transportation v. Easterwood, 507 U.S. 658, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). Determination of whether a federal statute preempts a state cause of action depends on the purpose of Congress in enacting the federal statute. Malone v. White Motor Corp., 435 U.S. 497, 98 S.Ct. 1185, 55 L.Ed.2d 443 (1978); Niehoff v. Surgidev Corp., 950 S.W.2d 816, 820 (Ky.1997). "Congressional intent is the touchstone of all preemption analysis." Keck v. Com. ex rel. Golden, 998 S.W.2d 13, 15 fn. 4 (Ky.App.1999).

The congressional purpose to preempt a state remedy may be determined in either of two ways. The first is whether the preemption is found in the express language of the statute. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). The second is to find preemption implied from the structure and purpose of the statute. Implied preemption occurs when the state law actually conflicts with federal law or where the federal law so thoroughly occupies the legislative field that it may be reasonably inferred that Congress left no room for the state to supplement it. Niehoff at 820.

PREEMPTION-LOCOMOTIVE BOILER INSPECTION ACT

The LBIA was first enacted in 1911. Being nearly a century old, the courts have had many occasions to consider the issue of its, preemptive effect. The seminal case in the area is Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 47 S.Ct. 207, 71 L.Ed. 432 (1926). By its own terminology the case considered whether "the [LBIA] has occupied the field of regulating locomotive equipment used on a highway of interstate commerce, so as to preclude state legislation." Id. at 607, 47 S.Ct. 207. Writing for the Court, Justice Louis Brandeis answered the question as follows:

[T]he power delegated to the [Interstate Commerce] Commission by the Boiler Inspection Act as amended is a general one. It extends to the design, the construction, and the material of every part of the locomotive and tender and of all appurtenances.

...

The duty of the Commission is not merely to inspect. It is also to prescribe the rules and regulations by which fitness for service shall be determined. Unless these rules and...