FOURTH DIVISION
Plaintiff-Appellant, v. MERCURY MARINE, a division of BRUNSWICK
CORPORATION, a corporation, Defendant-Appellee. The Honorable Joseph N. Casciato, Judge,
Presiding. JUSTICE BARTH delivered the opinion of the
court: The plaintiff, Rex Sprietsma, as administrator
of the estate of his deceased wife, Jeanne, filed this wrongful death action
against, inter alia, Mercury Marine, a division of Brunswick
Corporation (Mercury), for the benefit of himself, the surviving spouse, and his
son, Ross. Jeanne died after falling from a motor boat and being struck by the
propeller blades of the boat's outboard engine. That engine was not equipped
with a propeller guard. Mercury moved to dismiss pursuant to section
2-619 (735 ILCS 5/2-619 (West 1998)), on the ground that the common law tort
claims on which Sprietsma's wrongful death action is based are preempted by
provisions of the Federal Boat Safety Act (FBSA or Act) (46 U.S.C. § 4301 et
seq. (1971)). The trial court granted the motion, this appeal followed, and
we now affirm. Background A. Facts of this case In July of 1995, plaintiff's decedent, Jeanne
Sprietsma, was a passenger on board a motor boat. While the driver was in the
process of making a right turn, Jeanne fell from the boat. Once in the water,
she was repeatedly struck by the propeller blades of the boat's outboard engine.
This caused her to suffer serious injury and resulted in her death shortly
thereafter. The engine, designed by Mercury, was not equipped with a propeller
guard. Sprietsma filed a wrongful death action against,
inter alia, Mercury to recover damages for the personal injuries of
Jeanne, and for the loss of consortium suffered by both himself and his son
Ross. Sprietsma's complaint alleged that Mercury's engine was defectively
designed in that it was not equipped with propeller guards. Mercury moved for
dismissal pursuant to section 2-619 (735 ILCS 5/2-619 (West 1998)) on the ground
that Sprietsma's claims were preempted by the FBSA. Finding that Sprietsma's cause of action was
impliedly preempted by the FBSA, the trial court granted Mercury's motion to
dismiss on November 20, 1998. The court included language in its order that it
was final and appealable pursuant to Illinois Supreme Court Rule
304(a). On appeal, Sprietsma contends that the trial
court erred in granting dismissal, since the FBSA does not expressly or
impliedly preempt state law tort claims based on the absence of a propeller
guard. In support of his contention, Sprietsma asserts: (1) if Congress had
intended to preempt common law claims, it would have explicitly done so in the
FBSA's preemption clause; (2) even if the Act's preemption language ordinarily
includes common law claims, the Act's savings clause alters this conclusion; (3)
this court is required to apply a presumption against finding preemption; and
(4) claims relating to propeller guards cannot be in conflict with federal law
where there is no federal law on the subject. B. The Federal Boat Safety Act At issue is the construction of sections 4306
and 4311(g) of the FBSA, otherwise known as the preemption and savings clauses
respectively. Section 4306 provides: And section 4311(g)
provides: The FBSA was
enacted in 1971 in part to "improve boating safety by requiring manufacturers to
provide safer boats and boating equipment to the public through compliance with
safety standards to be promulgated by the Secretary of Transportation." See P.L.
92-75, Federal Boat Safety Act of 1971, S. Rep. No. 92-248, reprinted in
1971 U.S.C.A.N. 1333. To implement that goal, the Act grants the Secretary
the exclusive authority to prescribe regulations establishing minimum safety
standards for recreational boats. See 46 U.S.C. § 4302. To facilitate this duty,
the Secretary has the option to delegate regulatory functions to a designated
agency that operates under [his or her] supervision. See 46 U.S.C. § 4303(a).
The United States Coast Guard has been designated as that agency. See 49 C.F.R.
§ 1.46(n)(1) (1996). Pursuant to the Act, the Coast Guard must
consult with the National Boating Safety Advisory Council (NBSAC) concerning the
need for regulation in a given area and the extent to which proposed regulations
will contribute to recreational boating safety. See 46 U.S.C. § 13110.
C. Regulating the use of propeller
guards In 1988, the Coast Guard directed the NBSAC to
examine the feasibility and potential safety advantages and disadvantages of
propeller guards. The NBSAC appointed a Propeller Guard Subcommittee for the
purpose of reviewing and analyzing data relating to recreational boating
accidents in which persons in the water were struck by boat propellers. See
National Boating Safety Advisory Council, Report of the Propeller Guard
Subcommittee (1989). The NBSAC also asked the Subcommittee to consider whether
"the Coast Guard [should] move towards a federal requirement for some form of
propeller guard." See Report of the Propeller Guard Subcommittee, at Appendix A.
After a year-long study and three different
public hearings on the matter, the Subcommittee reached the unanimous conclusion
that the "U.S. Coast Guard should take no regulatory action to require propeller
guards." See Report of the Propeller Guard Subcommittee, Nov. 7, 1989, at 24.
The Subcommittee determined that "[t]he development and use of devices such as
'propeller guards' can *** be counterproductive and can create new hazards of
equal or greater consequence." See Report of the Propeller Guard Subcommittee,
Nov. 7, 1989, at 23. Among other negative effects, propeller guards were found
to have the potential to decrease an operator's ability to maintain control over
the boat at "normal" speeds, increase the probability of striking a body in the
water, and create a possibility of causing greater injury to those struck. See
Report of the Propeller Guard Subcommittee, Nov. 7, 1989, at 23-24. The Subcommittee's recommendation that no
regulatory action be taken was accepted by both the NBSAC and the Coast Guard.
See Letter from Robert T. Nelson, Rear Admiral, U.S.Coast Guard, Chief, Office
of Navigation, Safety and Waterway Services to A. Newell Garden, Chairman,
National Boating Safety Advisory Council (Feb. 1, 1990). Analysis We review de novo the grant of a motion
brought pursuant to 2-619. Kedzie & 103rd Currency Exchange, Inc. v.
Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732 (1993). The Supremacy clause of
the 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, cl. 2. Pursuant to the
Supremacy Clause, Congress has the authority to preempt state law. Louisiana
Public Service Comm'n v. FCC, 476 U.S. 355, 90 L. Ed. 2d 369, 381, 106 S.
Ct. 1890, 1898 (1986). "In determining whether Congress has preempted state law,
our task is to discern congressional intent." Morales v. Trans World
Airlines, Inc., 504 U.S. 374, 381-82, 119 L. Ed. 2d 157, 167, 112 S. Ct.
2031, 2036 (1992). A court interpreting a federal statute pertaining to a
subject traditionally governed by state law (such as safety) will be reluctant
to find preemption. CSX Transp. Inc. v. Easterwood, 507 U.S. 658,
663-64, 123 L. Ed. 2d 387, 396, 113 S. Ct. 1732, 1737 (1993); Weiland v.
Teletronics Pacing Systems, Inc., 188 Ill. 2d 415, 416, 721 N.E.2d 1149
(1999). In fact, preemption will be found only in those situations where it is
"the clear and manifest purpose of Congress." CSX, 507 U.S. at 664,
citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 91 L. Ed.
1447, 1459, 67 S. Ct. 1146, 1152 (1947). Federal preemption of state law can
occur in three circumstances: (1) express preemption, where Congress explicitly
preempts state law; (2) implied preemption, where Congress has occupied the
entire field (field preemption); and (3) implied preemption, where there has
been an actual conflict between federal and state law (conflict preemption).
English v. General Elec. Co., 496 U.S. 72, 78-79, 110 L. Ed. 2d 65,
74-75, 110 S. Ct. 2270, 2275 (1990). Preliminarily, we note that the second district
of this court has considered the precise issue with which we are now presented
in Farner v. Brunswick Corp., 239 Ill. App. 3d 885, 607 N.E.2d 562
(1992). As in the case sub judice, the plaintiff in Farner
filed suit after being injured by a propeller on a boat motor designed and
manufactured by the defendant. Farner, 239 Ill. App. 3d at 887. The
trial court granted summary judgment in favor of the defendant manufacturer,
finding that the FBSA preempted "plaintiff's claims insofar as they [were] based
on a failure to provide a propeller guard." Farner, 239 Ill. App. 3d at
887. The second district affirmed, finding that the language of the Act
expressly prohibited a common law damage action for failure to provide a
propeller guard where the United States Coast Guard has made the decision not to
require them. Farner, 239 Ill. App. 3d at 892-93. Next, we acknowledge the well-settled
proposition in Illinois that decisions of the federal courts interpreting a
federal act, such as the FBSA, are controlling upon our state courts, "in order
that the act be given uniform application." See Wilson v. Norfolk &
Western Ry. Co., 187 Ill. 2d 369, 383, 718 N.E.2d 172 (1999); Busch v.
Graphic Color Corp., 169 Ill. 2d 325, 335, 662 N.E.2d 397 (1996); Boyer
v. Atchison, Topeka & Santa Fe Ry. Co., 38 Ill. 2d 31, 34, 230 N.E.2d
173 (1967). But see Weiland, 188 Ill. 2d at 423 (Illinois Supreme Court
not bound by Seventh Circuit's interpretation of federal statute where the U.S.
Supreme Court has not ruled on the question presented, there is a split of
authority among the federal circuit courts of appeals, and court believes the
case from the Seventh Circuit was wrongly decided). I. Federal cases interpreting the FBSA
In Carstensen v. Brunswick Corp., 49
F.3d 430 (8th Cir. 1995), the Eighth Circuit Court of Appeals considered the
preemptive scope of the FBSA on facts similar to those before this court. There,
the plaintiff was a boat passenger who sustained injury when she fell from the
boat and was struck by the engine's propeller. Carstensen, 49 F.3d at
430. She filed suit, alleging that the boat's manufacturer was negligent for
having failed to install a propeller guard. Carstensen, 49 F.3d at 430.
The Eighth Circuit held that the plaintiff's claims were expressly preempted by
the language of the FBSA's preemption clause, section 4306. Carstensen,
49 F.3d at 431. That clause provides, in relevant part: Like Sprietsma, the
plaintiff in Carstensen contended that the language of the FBSA's
preemption clause fails to make explicit mention of common law actions, and thus
Congress must not have intended to preempt them. The court responded by stating
that while the language of the Act's preemption clause does not specifically
refer to common law actions, it is very broad. Carstensen, 49 F.3d at
431-32. Such broad language, the court explained, "does not admit of [a]
distinction between positive enactments and common law." Carstensen, 49
F.3d at 432 (quoting Cipollone v. Liggett Group, Inc., 505 U.S. 504,
522, 120 L. Ed. 2d 407, 426, 112 S. Ct. 2608, 2620 (1992)). Accordingly, the
court concluded, the language used by Congress expressly indicates an intent to
preempt all state laws or regulations that are not identical to a regulation
promulgated under the Act. Carstensen, 49 F.3d at 431. The Act does not
contain a propeller guard regulation or requirement, and thus, by the explicit
language of the preemption clause, states are forbidden from establishing one.
This must mean, the court concluded, that common law damage actions are likewise
forbidden since "[a]llowing a jury to assess damages for failure to install a
propeller guard would create, in effect, a state requirement that guards be
installed." Carstensen, 49 F.3d at 432. See generally Cipollone,
505 U.S. at 621 ("[state] regulation can be as effectively exerted through
an award of damages as through some form of preventive relief"); and
Medtronic Inc. v. Lohr, 518 U.S. 470, 509, 135 L. Ed. 2d 700, 730, 116
S. Ct. 2240, 2262 (1996) ("state common law damages actions do impose
requirements and are therefore preempted where such requirements would differ
from those imposed by [statute]") (O'Connor, J., concurring in part and
dissenting in part). As does Sprietsma here, the plaintiff in
Carstensen pointed to the Act's savings clause, section 4311(g),
arguing that its language alters the above analysis. The Act's savings clause
provides: Considering this
argument, the court first looked to the legislative history of the savings
clause and noted that its stated purpose "is to assure that in a product
liability suit, mere compliance by a manufacturer with the Act will not be a
complete defense to liability." Carstensen, 49 F.3d at 432 (quoting
S.Rep. No. 248 92nd Cong. 1st Sess., reprinted in 1971 U.S.C.C.A.N.
1333, 1352). The stated purpose of 4311(g), the court explained, offers guidance
as to how to harmonize or balance the language of the preemption clause, which
forbids states from imposing requirements not identical to those in the Act,
with that of the savings clause, which appears to preserve at least some common
law claims, but cannot be read to preserve those that would conflict with other
sections of the Act. Carstensen, 49 F.3d at 432. The balance the court
struck was to interpret the savings clause as preserving common law claims for
defectively designed products that are actually installed. Carstensen,
49 F.3d at 432. Thus, for example, since the Act does not
require that propeller guards be installed at all, there can be no cause of
action against a manufacturer for failing to install them. However, since the
Act does not prohibit manufacturers from installing propeller guards, those
manufacturers who choose to install them would not be permitted to use
compliance with the Act as a per se defense to claims that those guards
are defective. Carstensen, 49 F.3d at 432. We note that several other
courts which have interpreted the FBSA have reached an identical conclusion. See
e.g., Moss v. Outboard Marine Corp., 915 F.Supp. 183, 187 (E.D.Cal.
1996) (FBSA savings clause has no application where manufacturer chooses not to
install a propeller guard); Shields v. Outboard Marine Corp., 76
F.Supp. 1579, 1581-82 (M.D.Ga. 1991) (same); Mowery v. Mercury Marine,
773 F.Supp. 1012, 1017 (N.D.Ohio 1991) (boat manufacturer not liable for
failure to install device it had a choice not to install, but analysis would
look different if manufacturer chose to install defective product); Farner
v. Brunswick Corp., 239 Ill. App. 3d 885, 892 (2nd Dist. 1992) (same). See
also Mulhern v. Outboard Marine Corp., 146 Wis.2d 604, 617 (Ct.App.
1988) (claims based on defective seat not preempted by FBSA) and Rubin v.
Brutus Corp., 487 So.2d 360, 365 (Fla.Dist.Ct.App. 1986) (claims based on
defective throttle not preempted). Two years after the decision in Carstensen,
the Eleventh Circuit Court of Appeals considered FBSA preemption of common
law claims in Lewis v. Brunswick Corp., 107 F.3d 1494 (1997). In
Lewis, the parents of a woman who died after she was thrown from a boat
and struck by its propeller brought suit against the manufacturer of the engine.
Lewis, 107 F.3d at 1494. As in the instant case, the plaintiffs in
Lewis alleged that the boat's engine was defective due to its lack of
propeller guards. Lewis, 107 F.2d at 1494. The district court granted
the defendant manufacturer's motion for summary judgment, finding that the
plaintiff's claims were preempted by the FBSA, and the Eleventh Circuit
affirmed. Lewis, 107 F.3d at 1494. The Lewis court achieved the same
result as Carstensen, i.e. dismissal of the common law claim, but its
analysis differed. While Carstensen holds that common law claims are
expressly preempted, the Eleventh Circuit based its finding of preemption on an
implied rather than express preemption theory. Lewis, 107 F.3d at 1503.
The court characterized its implied preemption analysis as a determination
whether plaintiffs' claims "stand as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress," and concluded that
they did. Lewis, 107 F.3d at 1501 (citing Freightliner Corp. v.
Myrick, 514 U.S. 280, 287, 131 L. Ed. 2d 385, 392, 115 S. Ct. 1483, 1487
(1995)). We find the discussion in the Lewis
opinion regarding the nature of FBSA preemption to be well-reasoned, but we
nevertheless accept as determinative the Eighth Circuit's analysis in
Carstensen, and therefore hold that the FBSA expressly preempts common
law claims for failure to install propeller guards. We note that a decided
majority of the courts to have considered our issue have found express
preemption. See e.g., Farner v. Brunswick Corp., 239 Ill. App. 3d 885,
892 (2nd Dist. 1992) (section 4306 interpreted as a "specific expression of
congressional intent to preempt a common law tort action); Ryan v. Brunswick
Corporation, 557 N.W.2d 241, 551 (Mich. 1997) ("we join a long line of
cases that have similarly held that common law *** actions alleging liability
for failing to incorporate a propeller guard *** are expressly preempted under
the FBSA"). Accord, Moss v. Outboard Marine Corp., 915 F.Supp. 613, 615
(E.D.Cal. 1996); Shields v. Outboard Marine Corp., 776 F.Supp. 1579,
1581 (M.D.Ga. 1991); Shield v. Bayliner Marine Corp., 822 F.Supp. 81,
84 (D.Conn. 1993); Mowery v. Mercury Marine, 773 F.Supp. 1012, 1017
(N.D.Ohio 1991). II. FBSA preemption in light of U.S. Supreme
Court decisions Because we hold that the FBSA expressly and
explicitly preempts Sprietsma's claims, we do not consider whether implied
preemption exists.(1) See
Cipollone, 505 U.S. at 518 (when Congress has considered the issue of
preemption and has included in the enacted legislation a provision explicitly
addressing that issue there is no need to infer congressional intent to preempt
state laws from the substantive provisions of the legislation). Although two federal circuits have construed the
FBSA, the U.S. Supreme Court has not yet had occasion to do so.(2)
However, Sprietsma directs this court's attention to Freightliner Corp. v.
Myrick, 514 U.S. 280, 131 L. Ed. 2d 385, 115 S. Ct. 1483 (1995), in which
the Court construed the Vehicle Safety Act, 15 U.S.C.A. § 1381 et seq.,
a similar, through by no means analogous statute. Sprietsma urges that the
holding in Myrick prevents this court from finding preemption in the
absence of a promulgated regulation with respect to propeller guards.
Furthermore, according to Sprietsma, Myrick establishes a "stricter"
preemption analysis, under which this court must find that his claims are not
preempted. See Moore v. Brunswick Bowling & Billiards, 889 S.W.2d
246, 252 (Tex 1994) (finding early decisions construing the FBSA unpersuasive in
light of the decision in Myrick). Having carefully considered Myrick, we
find that the facts and reasoning in that case do not preclude a finding of
preemption in this case, and in fact, support the determination that Sprietsma's
state common law claims are preempted. See Gracia v. Volvo Europa Truck,
N.V., 112 F.3d 291, 296 (7th Cir. 1997) (holding plaintiff's product
liability claims against windshield retention system manufacturer were preempted
by the Vehicle Safety Act, and finding that Myrick supported this
conclusion). In Myrick, the Supreme Court considered
whether common law claims based on the failure to install antilock brakes were
expressly or impliedly preempted by the Vehicle Safety Act. Myrick, 514
U.S. at 282. The preemption clause in that act provided: The plaintiffs in
Myrick sued two different motor vehicle manufacturers, alleging that
the absence of an antilock braking system in their tractor trailers constituted
a negligent design defect. Myrick, 514 U.S. at 282. The defendant
manufacturers responded that failure to install claims were preempted because
the relevant agency had indicated its intent to regulate braking systems by
promulgating a regulation on that subject. Myrick, 514 U.S. at 286.
Although that regulation was subsequently struck down by the Ninth Circuit, the
defendants argued it still had preemptive effect, since it demonstrated the
agency's intent to forbid state regulation with regard to braking systems.
Myrick, 514 U.S. at 286. The Supreme Court rejected the defendants'
argument. The Court pointed out that there was no evidence
that the Vehicle Safety Act gave the relevant federal agency exclusive authority
to issue safety standards. Myrick, 514 U.S. at 286. In fact, the Court
explained that the preemption clause in that act clearly implied that states
could impose safety standards on auto manufacturers until the federal government
came forward with a different standard. Therefore, under the Vehicle Safety Act
regulatory scheme, the absence of regulation failed to have preemptive effect
since, if there was no federal regulation on point, state law remained intact.
Myrick, 514 U.S. at 286. Moreover, the Court pointed out, this was not
a situation in which the relevant agency had reached an authoritative decision
not to regulate. Myrick, 514 U.S. at 286-87. Rather, the agency
determined that a regulation was appropriate and even promulgated one, which was
simply not in effect at the time of the lawsuit. Myrick, 514 U.S. at
287. In contrast to section 1392(d) of the Vehicle
Safety Act, section 4306 of the FBSA does not grant states the authority to
regulate where the federal government does not. In fact, the language of the
FBSA explicitly provides that states are forbidden from regulating at
all unless there is an identical federal regulation. See 43 U.S.C. § 4306
(emphasis added). In this case, the agency granted rulemaking authority, the
Coast Guard, investigated the possibility of promulgating a propeller guard
regulation, and concluded that no such regulation was warranted. Accordingly, no
such regulation was promulgated. The Supreme Court has held that "a federal
decision to forgo regulation in a given area may imply an authoritative federal
determination that the area is best left unregulated, and in that event would
have as much preemptive force as a decision to regulate. Bonito Boats, Inc.
v. Thunder Craft Boats, Inc., 489 U.S. 141, 151-52, 103 L. Ed. 2d 118, 135,
109 S. Ct. 971, 977-78 (1989). See also Myrick, 514 U.S. at 286-88
(acknowledging that this is especially true where congress intended to
centralize all authority over the regulated area in one decisionmaker: the
federal government). Finally, we note that out of the thirteen courts
that have considered FBSA preemption of common law claims based on lack of a
propeller guard, only two have ruled that the Act does not preempt such claims.
See Moore v. Brunswick Bowling & Billiards, 889 S.W.2d 246 (Tex.
1994) and Ard v. Jensen, 996 S.W.2d 594 (Mo.Ct.App. 1999). We do not
find those two state court pronouncements persuasive, particularly in light of
the U.S. Supreme Court's holding in Myrick. Furthermore, we see in
those opinions no basis for a departure from the decisions of every federal
court to have considered the issue, or from this court's holding in
Farner. We are mindful of the presumption against a
finding of federal preemption where the matter is one traditionally governed by
state law, such as safety. However, in this case, we determine that the
presumption has been overcome by the uniformity of the federal court decisions
construing the FBSA. There is as yet no definitive ruling on the scope of
preemption of state common law claims under the FBSA by the Supreme Court. That
being the case, we believe our holding is buttressed by the inferences to be
drawn from the Court's recent preemption analyses in Myrick and
Medtronic as discussed above. Conclusion For the reasons stated herein, the trial court's
order which dismissed Sprietsma's complaint as to Mercury is
affirmed. Affirmed. HOFFMAN, P.J., and SOUTH, J., concur. 1. 00000Although the trial court found implied
preemption, we are not bound by that conclusion, and may sustain the judgment on
any ground warranted by the record. People ex rel. Waller v. 1990 Ford
Bronco, 158 Ill. 2d 460, 463 (1994).
2. 00000A petition for certiorari was granted in
Lewis (522 U.S. 978, 139 L. Ed. 2d 337, 118 S. Ct. 439 (1997)) but we
were informed by counsel at oral argument that the appeal was dismissed by
agreement of the parties (523 U.S. 1113, 140 L. Ed. 2d 933, 118 S. Ct. 1793
(1998)).
REX R. SPRIETSMA, Administrator
of the Estate of JEANNE SPRIETSMA, Deceased,
Appeal from the Circuit Court
of Cook County.
"Unless permitted by the Secretary under section 4305 of this
title, 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 (except insofar as the State
or political subdivision may, in the absence of the Secretary's disapproval,
regulate the carrying or use of marine safety articles to meet uniquely
hazardous conditions or circumstances within the State) that is not identical
to a regulation prescribed under section 4302 of this title." 46 U.S.C. §
4306.
"[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).
"[a] State may not establish, continue in effect, or enforce a law
or regulation establishing a recreational vessel or associated equipment
safety standard or imposing a requirement for such equipment *** that is not
identical to a regulation prescribed Under section 4302 of this title." 46
U.S.C. § 4306.
"[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).
"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." 15
U.S.C.A. § 1392(d) (1982).