PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ------------------------------------------- No. 97-8021 -------------------------------------------- D. C. Docket No. 1:94-CV-2964-HTW

JULIETTE IRVING, as Guardian of the Persons and Property of BRYANA BASHIR, and as Administratrix of the Estate of BONITA L.

IRVING, Deceased, Plaintiff-Appellant, versus MAZDA MOTOR CORP. a.k.a. Mazda Motors Corp. f.k.a. Toyo Kogyo, Ltd., MAZDA (NORTH AMERICA), INC., et al., Defendants-Appellees,

---------------------------------------------------------------- Appeal from the United States District Court for the Northern District of Georgia ---------------------------------------------------------------- (March 5, 1998) Before HATCHETT, Chief Judge, EDMONDSON and COX, Circuit Judges.

EDMONDSON, Circuit Judge: Plaintiff appeals the district court’s

grant of summary judgment for

Defendants. The district court decided that

Plaintiff’s state law claims were

preempted by federal law. We conclude that

Federal Motor Vehicle Safety Standard

(“FMVSS”) 208, 49 C.F.R. § 571.208, (enacted

under the authority of the National

Traffic and Motor Vehicle Safety Act of

1966, 15 U.S.C. §§ 1381 et seq.) does preempt

Plaintiff’s state law claims. And, we

affirm the grant of summary judgment.

Background

Plaintiff Juliette Irving filed suit

against Defendant Mazda Motor

Corporation on behalf of her daughter,

Bonita Irving. Bonita was killed in a

single-car accident while driving a 1990

Mazda MX-6. After her daughter’s death,

Plaintiff filed this suit claiming that the

seat belts in the MX-6 were defectively

designed and that Mazda failed to warn

consumers adequately of the risks of not

utilizing all portions -- particularly the

manual lap belt portion -- of the safety

belt system.

The safety belt system used in the

Mazda MX-6 included a two-point passive

shoulder restraint (automatic shoulder belt)

with a manual lap belt. This kind of

restraint system was one of three

options provided to car manufacturers by

FMVSS 208. Plaintiff contends the design

represented by this option was defective.

Defendants filed a motion for

summary judgment claiming that FMVSS

208 both expressly and impliedly preempts

state law (including common-law) claims

and that no recovery can be had on a

claim based on the use of a design

permitted by the federal standards. The

district court granted this motion and --

concluding that Plaintiff’s failure-to-warn

claim was dependent upon the design-defect

claim -- also dismissed Plaintiff’s failure-to-

warn claim.

Discussion

Whether Plaintiff’s state law claims are

preempted under the federal law is

reviewed by this Court de novo. Lewis v.

Brunswick Corp., 107 F.3d 1494, 1498 (11th Cir.),

cert. granted, 118 S.Ct. 439 (1997).

I. Preemption: Defective-Design Claim

The Supremacy Clause of the United

States’ Constitution provides that the laws

of the United States “shall be the supreme

Law of the Land; . . . any Thing in the

Constitution or Laws of any State to the

Contrary notwithstanding.” U.S. Const.

art. VI. Thus, state law that conflicts with

federal law is “without effect.” Cipollone v.

Liggett Group, Inc., 112 S.Ct. 2608, 2617

(1992) (citing Maryland v. Louisiana, 101 S.Ct. 2114, 2128 (1981)). And, “common law

liability may create a conflict with federal

law, just as other types of state law can.”

Pokorny v. Ford Motor Co., 902 F.2d 1116, 1122

(3d Cir. 1990); see also CSX Transp., Inc. v.

Easterwood, 113 S.Ct. 1732, 1737 (1993).

Whether federal statutes or regulations

preempt state law is “a question of

congressional intent.” Perry v. Mercedes

Benz of North America, Inc., 957 F.2d 1257, 1261 (5th Cir. 1992); see also

Medtronic, Inc. v. Lohr, 116 S.Ct. 2240, 2250 (1996) (“The purpose of Congress is the

ultimate touchstone in every preemption

case.”) (internal quotations and citation

omitted). Congress -- through federal laws

and regulations -- may effectively

preempt state law in three ways: (1)

express preemption; (2) field preemption

(regulating the field so extensively that

Congress clearly intends the subject area

to be controlled only by federal law); and (3)

implied (or conflict) preemption.

Defendants claim that the National

Traffic and Motor Vehicle Safety Act of

1966 (“the Act”) both expressly and impliedly

preempts Plaintiff’s state law claims.

A. Express Preemption

“[A] strong presumption exists against

finding express preemption when the

subject matter, such as the provision of

tort remedies to compensate for personal

injuries, is one that has traditionally been

regarded as properly within the scope of

the states’ rights.” Taylor v. General

Motors Corp., 875 F.2d 816, 823 (11th cir. 1989) (citation omitted). Thus, express

Our pronouncements in Taylor were

partially abrogated by Myrick v. Freuhauf Corp., 13 F.3d 1516, 1521-22 (11th Cir. 1994), where we wrote that the Supreme Court’s decision in Cipollone v. Liggett Group Corp., 112 S.Ct. 2608 (1992), would not permit an preemption clauses must be construed

narrowly. Taylor, 875 F.2d at 823-24.

Defendants first contend that

Plaintiff’s design-defect claim is expressly

preempted by the preemption clause of the

Act. That clause makes this statement:

analysis of implied preemption where an express preemption clause existed in the relevant federal law. But, the Supreme Court reviewed Myrick on appeal and, although affirming the outcome, stressed that implied preemption is possible despite the presence of an express preemption clause. Freightliner Corp. v. Myrick, 115 S.Ct. 1483, 1487 (1995). Thus, Taylor is correct and can be used for evaluating preemption of state law.

When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter. . . .

49 U.S.C. § 30103(b)(1) (formerly 15 U.S.C. §

1392(d)). But, the Act also contains a

savings clause which provides that

“[c]ompliance with a motor vehicle safety

standard prescribed under this chapter does

not exempt a person from liability at

common law.” 49 U.S.C. § 30103(e) (formerly

15 U.S.C. § 1397(k)). Thus, “[t]he question of

express pre-emption is properly analyzed

only after considering both § 1392(d) and §

1397(k).” Pokorny, 902 F.2d at 1120 (citing

American Textile Mfrs. Inst., Inc. v.

Donovan, 101 S.Ct. 2478, 2492 (1981)).

In Taylor, after reading these two

sections together, we determined that the

conflict between them made the

preemption of common-law claims

ambiguous. Thus, the presumption against

preemption controlled; and no express

preemption could be found. Taylor, 975 F.2d

at 825.

We also considered express preemption

for the Federal Boat Safety Act (“FBSA”), in

Lewis v. Brunswick Corp., 107 F.3d 1494. The

FBSA contains language similar to that of

the National Traffic and Motor Vehicle

Safety Act, containing both a preemption clause and a savings clause.

The pertinent portions of the FBSA read

this way: Again we (as in Taylor) read the

preemption clause narrowly and said that

the FBSA’s preemption clause did not cover

[A] State or a 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 . . . this title. 46 U.S.C. § 4306. The FBSA further provides that “[c]ompliance with this chapter or standards, regulations, or orders prescribed under this chapter does not relieve a person from liability at common law or under State law.” 46 U.S.C. § 4311(g). common-law claims. Lewis, 107 F.3d at 1501.

Taylor and Lewis point to the same conclusion for this case. So, Plaintiff’s

defective-design claim is not expressly

preempted by the Act.

B. Implied Preemption

This conclusion is the same as that reached by other circuits. See, e.g., Perry, 957 F.2d at 1264; Pokorny, 902 F.2d at 1121; Kitts v. General Motors Corp., 875 F.2d 787, 789 (10th Cir. 1989) (adopting Wood v. General Motors Corp.); Wood v. General Motors Corp., 865 F.2d 395, 402 (1st Cir. 1988).

Conflict preemption exists where state

law actually conflicts with federal law,

making it impossible to comply with both,

or where the state law “stands as an

obstacle to the accomplishment and

execution of the full purposes and

objectives of Congress.” Lewis, 107 F.3d at 1500 (internal quotations and citation

omitted).

The existence of an express

preemption clause does not necessarily

preclude the presence of implied

preemption. Freightliner Corp. v. Myrick,

115 S.Ct. 1483, 1487-88 (1995). Thus, if

Plaintiff’s state law claim conflicts with

FMVSS 208 or if her claim would hinder

Congress’s objectives in passing the Act,

the state law will be preempted.

FMVSS 208 directly addresses the kinds

of restraint systems permitted to be used

by car manufacturers. It allows

manufacturers to choose from three

options: (1) a complete passive restraint

system (automatic seat belts with or

without air bags); (2) passive protection

for frontal crashes (for example,

automatic shoulder belts or air bags) plus

manual lap belts for lateral crashes and

rollovers with a seat belt warning system;

or (3) manual lap and shoulder belts with a

seat belt warning system. FMVSS 208;

Perry, 957 F.2d at 1260.

Defendants chose the second option --

installing two-point passive shoulder

restraints with manual lap belts. That

Congress specifically intended the standard

to give manufacturers a choice should

preempt common-law claims that two-

point passive shoulder belts, paired with

manual lap belts, constitute inherently a

design defect. See Pokorny, 902 F.2d at 1123

(actual conflict exists with the Act and

FMVSS 208 to the extent a claim would

stand for a manufacturer’s choice of an

option provided by the standards).

i. An argument made for the first

time on appeal.

As we understand the record, Plaintiff’s

claim in district court was not that a

differently designed two-point system with

a manual lap belt would have been without defect. On the contrary, Plaintiff based

If a claim was asserted that two-point

systems (such as that installed in the Mazda MX-6) were not defective in general, but that the specific design selected by Mazda for its two-point system was unreasonably dangerous, preemption would be less clear. her claim on the allegation that the option

provided in the standards represented

inherently a defective design. “Plaintiff

allege[d] that the option selected by Mazda

is defective.” Plaintiff’s Brief in

Opposition to Defendants’ Motion for

Summary Judgment at 12.

Plaintiff, however, seems to argue for

the first time in this appeal that

different, nondefective designs could have

been selected by Defendants under the

same regulatory option: automatic

shoulder belt with manual lap belt. Thus,

Plaintiff now argues that she is not

challenging Defendants’ choice of a

regulatory option. This argument differs

from Plaintiff’s argument in the district court. Too often our colleagues on the

The option selected by Defendants permitted passive protection for frontal crashes -- either air bags or passive shoulder harnesses -- plus lap belts for lateral crashes. The only alternative designs put forward by Plaintiff in the district court were three-point seat belts, fully automatic belts, and restraint systems with more elaborate warning systems. These alternatives do not fall within the regulatory option exercised by Defendants. A three-point seat belt system would have to be either fully passive (for example, the seat belt is attached to the car door and is positioned upon closing the door) or fully manual (requiring passenger action to position the restraint), which would place that system in either of the two options not selected by Defendants. The option exercised by Defendants allowed for a partially passive, partially manual restraint system. For the same reason, a fully automatic belt system also would not fall under the same option selected by Defendants. Finally, the warning systems proposed by Plaintiff would have been different from the warning system specifications set out for the option selected by Defendants, with which specifications Defendants undisputably complied.

In the district court, Plaintiff stated that she was “not suggesting that the options be taken away; rather, Plaintiff alleges that the option selected by Mazda is district courts complain that the appellate

cases about which they read were not the

cases argued before them. We cannot allow

Plaintiff to argue a different case from

the case she presented to the district court.

Because Plaintiff failed to make this

argument in the district court, we decline

defective.” Plaintiff’s Brief in Opposition to Defendants’ Motion for Summary Judgment at 12 (emphasis added). To sharpen this point more, Plaintiff went so far as to challenge the appropriateness of FMVSS 208. See id. at 2 (“[A]lthough the restraint system may comply with the minimum standards, the standards are inadequate and should not impede the progress towards improved designs.”). to consider it here. See Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir. 1994).

ii. The argument made in district

court.

When considering implied preemption,

no presumpt io n exis t s ag ainst

preemption. “Under the Supremacy Clause

of the Federal Constitution, ‘[t]he relative

importance to the State of its own law is

not material when there is a conflict with

a valid federal law,’ for ‘any state law,

however clearly within a State’s

acknowledged power, which interferes with

or is contrary to federal law, must yield.’”

Lewis, 107 F.3d at 1502 (citation omitted).

Because Plaintiff sued Defendants for

exercising an option explicitly permitted

by Congress, a conflict exists between

state and federal law if Plaintiff goes

forward with this state law claim of

defective design. Taylor, 875 F.2d at 827

(“[A] state cannot impose common law

damages on individuals for doing what a

federal act or regulation ‘authorized them

to do.’”) (quoting Chicago & N.W. Transp. Co. v.

Kalo Brick & Tile Co., 101 S.Ct. 1124, 1131 (1981)).

Therefore, Plaintiff’s suit against

Defendants for their exercise of an

option provided to Defendants by FMVSS

208 conflicts with federal law and, thus, is

preempted.

II. Failure-to-Warn Claim

In addition to granting Defendants’

motion for summary judgment on

Plaintiff’s claim of defective design, the

district court also dismissed Plaintiff’s

failure-to-warn claim. The district court

said that “[s]ince plaintiff’s defective

design claims are preempted, the court will

not address plaintiff’s failure to warn

claim, as it is premised on a defective

design.” District

Court Order at 8 n.8 (emphasis added).

Plaintiff argues on appeal that a

failure-to-warn claim is separate from

and not dependent upon a defective-design

claim. As a general statement of law,

Plaintiff’s proposition is often correct.

See, e.g., Michael v. Norfolk Southern Ry. Co.,

74 F.3d 271 (11th Cir. 1996) (applying Georgia

law); see also Sheckells v. AGV-USA Corp., 987 F.2d 1532, 1533 (11th Cir. 1993) (applying

Georgia law); Stapleton v. Kawasaki Heavy

Indus., Ltd., 608 F.2d 571, 572-73 (5th Cir.

1979) (applying Georgia law). But, in this

case Plaintiff (not the district court or

Defendants) tied the claims of defective

design and failure to warn together. In

Plaintiff’s opposition to Defendants’

motion for summary judgment, she argued

that she would ask the jury to find that “the

1990 Mazda MX-6 equipped with the two-

point motorized shoulder belt and manual

lap belt option is defective without plaintiff’s desired warning.” Plaintiff’s

Plaintiff presented several warning

systems as safer alternatives to the system present in the 1990 Mazda. The Mazda warning system included a buzzer, Brief in Opposition to Defendants’

Motion for Summary Judgment at 23.

Because Plaintiff’s defective-design

claim is preempted by FMVSS 208, there

was no defect about which to warn.

Plaintiff’s failure-to-warn claim -- which is,

in this case, dependent on the preempted

a light indicating a failure to secure the lap belt, and a written warning on the sun visors on both the driver and passenger sides of the car. Plaintiff alleges these warnings were inadequate. But, Plaintiff does not dispute that the warnings provided in the 1990 Mazda fully complied with the federal standards. See FMVSS 208 at S7.3; 49 C.F.R. § 571.208, S.5. defective-design claim -- was properly

dismissed.

AFFIRMED.