BALLARD WRIGHT; FAYE WRIGHT v. GARLOCK SEALING TECHNOLOGIES
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RENDERED: NOVEMBER 30, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-000206-MR
BALLARD WRIGHT;
FAYE WRIGHT
v.
APPELLANTS
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
ACTION NO. 02-CI-00032
GARLOCK SEALING TECHNOLOGIES
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE AND THOMPSON, JUDGES; ROSENBLUM, SENIOR JUDGE.1
ROSENBLUM, SENIOR JUDGE: Ballard and Faye Wright appeal from an order of
Greenup Circuit Court granting summary judgment to Garlock Sealing Technologies
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,
1
Senior Judge Paul W. Rosenblum, sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
Garlock, designed, manufactured, and sold gaskets and similar materials incorporated
into the locomotives and railroad cars used by the railroad carriers. The Wrights allege
that the gaskets and similar materials contained asbestos to which Ballard was exposed,
contributing to his contracting lung cancer.
The circuit court granted summary judgment to Garlock 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.
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From approximately 1951 to 1982, Ballard worked as a Freight Car
Inspector. Garlock was one of the manufacturers of the gaskets and similar materials
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. Garlock gaskets and similar materials were used in these
maintenance tasks.
As an inspector Ballard also observed from close proximity as asbestoscontaining 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.
In January 2001, Wright was diagnosed with asbestos-related lung cancer.
He attributes the disease to his exposure to asbestos during his employment by
C&O/CSX, including his exposure to the gaskets and similar materials manufactured by
Garlock.
-3-
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, Garlock, General Electric Company,2 and Pneumo Abex Corporation.3
Among other things, the Complaint alleged that Garlock 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 Garlock 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 Garlock moved for summary judgment. On December 29,
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. Garlock
subsequently filed a post-judgment motion pursuant to Kentucky Rules of Civil
Procedure 59.05, which was denied by order entered June 5, 2006. This appeal
challenges the award of summary judgment to Garlock.
2
See Case No. 2006-CA-000080-MR. Summary Judgment was granted to General Electric
upon the same grounds as in the present case. The decision in Case No. 2006-CA-000080-MR
was rendered the same day as the decision in the present case.
3
See Case No. 2006-CA-000081-MR. Summary Judgment was granted to Pneumo Abex upon
the same grounds as in the present case. The decision in Case No. 2006-CA-000081-MR was
rendered the same day as the decision in the present case.
-4-
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;
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(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. McCulloch 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).
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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. 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
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regulations are complied with, the engine is not ‘in proper
condition’ for operation. Thus the Commission sets the
standard. By setting the standard it imposes requirements.
....
We hold that state legislation is precluded, because the Boiler
Inspection Act, as we construe it, was intended to occupy the
field. The broad scope of the authority conferred upon the
Commission leads to that conclusion. Because the standard
set by the Commission must prevail, requirements by the
states are precluded, however commendable or however
different their purpose.
Id. at 611-613.
In summary, Napier, 81 years ago, substantially answered the question we
are now considering. Pursuant to Napier, the LBIA was “intended to occupy the field” in
its area of coverage, with the field occupied encompassing “the design, the construction,
and the material of every part of the locomotive and tender and of all appurtenances.”
Citing us to Medtronic, Inc. v. Lohr, 518 U.S. 470, 116 S.Ct. 2240, 135
L.Ed.2d 700 (1996) and Silkwood v. Kerr-McGee Corp. 464 U.S. 238, 104 S.Ct. 615, 78
L.Ed.2d 443 (1984), the Wrights contend that more modern preemption jurisprudence has
undermined the continuing viability of Napier. However, even if preemption
jurisprudence has evolved, nevertheless, “[i]f a precedent of this Court has direct
application in a case, yet appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals [and state courts applying federal law] should follow the
case which directly controls, leaving to this Court the prerogative of overruling its own
decisions.” Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484,
109 S.Ct. 1917, 104 L.Ed.2d 526 (1989); Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct.
-8-
1997, 2017, 138 L.Ed.2d 391 (1997); Scheiding v. General Motors Corp., 22 Cal.4th
471, 478, 993 P.2d 996, 1000, 93 Cal.Rptr.2d 342, 347 (Cal. 2000) (discussing the
argument of whether modern preemption jurisprudence has weakened Napier). Thus we
believe Napier remains the controlling Supreme Court case in the area of LBIA
preemption.
Furthermore, decisions subsequent to Napier, including recent decisions
addressing the issue of asbestos-containing component parts, have concluded that Napier
remains the controlling case upon the question of LBIA preemption. See, eg., Scheiding
v. General Motors Corp., 22 Cal.4th 471, 993 P.2d 996, 93 Cal.Rptr.2d 342 (2000)
(Boiler Inspection Act preempts employees' product liability actions against a
manufacturer of locomotives containing asbestos materials); Seaman v. A.P. Green
Indus., Inc., 184 Misc.2d 603, 707 N.Y.S.2d 299 (Sup.Ct. 2000) (Boiler Inspection Act
preempts claims made by employees against manufacturers of train components
containing asbestos); Key v. Norfolk Southern Ry. Co., 228 Ga.App. 305, 491 S.E.2d 511
(1997) (Boiler Inspection Act preempts common law claims against railroad by employee
injured in fall from locomotive steps); Springston v. Consolidated Rail Corp., 130 F.3d
241 (6th Cir. 1997) (Boiler Inspection Act preempts state law negligence claims for
inadequate warning devices on locomotive in action brought by motorist struck by train);
First Security Bank v. Union Pacific R. Co., 152 F.3d 877 (8th Cir. 1998) (Boiler
Inspection Act preempts claim for inadequate warning horn); Oglesby v. Delaware &
Hudson Ry., 180 F.3d 458 (2d Cir. 1999) (Boiler Inspection Act preempts employee
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common law claims against locomotive seat manufacturer); Forrester v. American
Dieselelectric, Inc., 255 F.3d 1205 (9th Cir. 2001) (Boiler Inspection Act preempts
nonemployee product liability actions against a manufacturer of locomotive cranes); In
re: Amtrak “Sunset Limited” Train Crash in Bayou Canot, Alabama, on September 22,
1993, 188 F.Supp.2d 1341 (S.D.Ala. 1999) (Boiler Inspection Act preempts passenger
and employee common law negligence and design-defect claims against Amtrak); Roth
v. I & M Rail Link, L.L.C., 179 F.Supp.2d 1054 (S.D.Iowa 2001) (Boiler Inspection Act
preempts state common law tort claims against manufacturer of locomotive cab in action
brought by widow of employee crushed in collision); Bell v. Illinois Central R.R., 236
F.Supp.2d 882 (N.D.Ill. 2001) (Boiler Inspection Act preempts passengers' state law
claims against locomotive manufacturer); and In re West Virginia Asbestos Litigation,
215 W.Va. 39, 592 S.E.2d 818 (W.Va. 2003) (State tort law claims against
manufacturers of parts or components of railroad locomotives are preempted by federal
law under the Locomotive Boiler Inspection Act).
Cf. Engvall v. Soo Line Railroad Co., 632 N.W.2d 560 (Minn. 2001)
(Boiler Inspection Act does not preempt state common law actions based upon a violation
of the Act, thus a railroad may bring a state law contribution claim against a manufacturer
of a railroad locomotive); Lorincie v. Southeastern Pennsylvania Transp., 34 F.Supp.2d
929 (E.D.Pa. 1998) (Boiler Inspection Act does not preempt state common law claims
against railroad manufacturers that are not also carriers).
- 10 -
Ultimately, we agree with Napier and the decisions which have continued
to follow its holding in lawsuits such as the one at bar (which overwhelmingly represent
the majority rule), and conclude that the LBIA bars state common law tort claims against
carriers, locomotive manufacturers, and locomotive component part manufacturers.
PREEMPTION AS APPLIED TO MANUFACTURERS
Despite the majority view upon the issue, the Wrights nevertheless argue
that their state common law tort claims may be brought. First, in overlapping arguments,
the Wrights maintain that their claims are valid because “Congress expressly excluded
manufacturers from regulation under the [LBIA's] predecessor, the Boiler Inspection
Act;” and because “Garlock has never been regulated by the [LBIA].”
Another important case in the area of LBIA preemption, Law v. General
Motors Corp., 114 F.3d 908 (9thCirc. 1997), addressed whether the Act's preemptive
reach, as defined by Napier, extends to common law tort claims (including the claims at
bar) against manufacturers of locomotive component parts. Law addressed the issue as
follows:
Appellants' common-law claims fall squarely within this
preempted field. Apart from compensating victims of
accidents for their injuries, the purpose of tort liability is to
induce defendants to conform their conduct to a standard of
care established by the state. See San Diego Bldg. Trades
Council v. Garmon, 359 U.S. 236, 247, 79 S.Ct. 773, 780-81,
3 L.Ed.2d 775 (1959) (“The obligation to pay compensation
can be, indeed is designed to be, a potent method of
governing conduct and controlling policy.”). A railroad
equipment manufacturer found to have negligently designed a
braking system, for example, is expected to modify that
system to reduce the risk of injury. If the manufacturer fails
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to mend its ways, its negligence may be adjudged willful in
the next case, prompting a substantial punitive damages
award. If each state were to adopt different liabilitytriggering standards, manufacturers would have to sell
locomotives and cars whose equipment could be changed as
they crossed state lines, or adhere to the standard set by the
most stringent state. Either way, Congress's goal of uniform,
federal railroad regulation would be undermined. See id.
(“Even the States' salutary effort to redress private wrongs or
grant compensation for past harm cannot be exerted to
regulate activities that are potentially subject to the exclusive
federal regulatory scheme.”).
....
This distinction - founded on the fact that the BIA speaks
only to “railroad carrier[s]” and not manufacturers, see 49
U.S.C. § 20701- is without significance. The BIA preempts
any state action that would affect “the design, the
construction, and the material” of locomotives. Napier, 272
U.S. at 611. Imposing tort liability on railroad equipment
manufacturers would do just that, by forcing them to conform
to design and construction standards imposed by the states.
This would transfer the regulatory locus from the Secretary of
Transportation to the state courts - a result the BIA was
clearly intended to foreclose. [footnote omitted] See Taylor
AG Indus. v. Pure-Gro, 54 F.3d 555, 561 n. 3 (9th Cir. 1995)
(preemption analysis “focuses not on whom the legal duty is
imposed, but on whether the legal duty constitutes a state law
requirement” already covered by federal law).
Id. at 910-912.
We agree with the discussion of the issue as stated in Law. In summary, we
are not persuaded that the LBIA's preemptive reach does not extend to locomotive
manufacturers and locomotive component part manufacturers.
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APPLICATION OF LBIA DURING BALLARD'S EMPLOYMENT HISTORY
The appellants argue, in the alternative, that even if the LBIA now
preempts state common law tort claims, it did not do so during the period Ballard worked
for C&O/CSX. They base this argument upon the contention that the penalty provisions
of the Act were were not extended to “owners, manufacturers and lessors” until 1988. As
previously noted, Ballard's employment as a railroad worker extended from 1947 through
1982.
For the reasons already discussed, we disagree. The same preemption
principals as stated in Napier and Law, as set forth above, likewise applied during
Ballard's work years. As established in Napier, the LBIA was from its inception intended
to occupy the field. Further, it is a fundamental principal of preemption that a state may
not circumvent preemption by accomplishing through jury verdicts what it cannot
accomplish through direct legislation. And as explained in Law, to accomplish the
preemptive purpose of the LBIA, it is necessary for its reach to extend to manufacturers.
As such, we disagree with the premise of this argument. To the contrary, the preemption
aspect of the LBIA applies to Garlock vis-a-vis Ballard's tenure as a railroad worker.
APPLICATION OF FELA STANDARD TO MANUFACTURERS
The Wrights allege that preemption should not be applied to manufacturers
but, instead, they should be subjected to the liability standards imposed upon railroad
carriers by the Federal Employees Liability Act (FELA).4 For the reasons already set
forth, this argument is without merit.
4
The Wrights have filed a FELA claim against CSX as a part of the present lawsuit.
- 13 -
The Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., allows
railroad workers to recover against their employers for occupational injuries. Law at 114
F.3d 912. FELA authorizes recovery of compensatory damages - including pain and
suffering - when the employer's “negligence played any part, even the slightest, in
producing the injury.” Id. (citing Rogers v. Missouri Pac. R.R., 352 U.S. 500, 506, 77
S.Ct. 443, 448, 1 L.Ed.2d 493 (1957)). Thus, subjecting locomotive manufacturers to the
FELA standard would be the antithesis of preemption.
If anything, the availability of a remedy under FELA supports the view that
lawsuits against locomotive manufacturers are preempted by the LBIA. The low
standard for recovery by an injured railroad employee against his employer-carrier
illustrates that “the federal government has established a comprehensive mechanism for
vindicating the rights of railroad workers - a mechanism that doesn't undermine the
[LBIA's] goal of uniformity.” Law at 114 F.3d 912. In summary, we are not persuaded
that locomotive manufacturers should be subject to lawsuit for state common law tort
claims under the FELA standard.
CLAIMS BASED UPON VIOLATIONS OF LBIA
The Wrights further contend that their claims are not barred because claims
based upon violations of the LBIA are not preempted by the Act. More specifically, the
Wrights argue that “[a]ppellants are not alleging that Garlock defectively designed
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locomotives (sic). The Appellants' claims are based on the manufacturing defect of using
products containing asbestos on the locomotives (sic).”5 Appellants' brief pg. 22.
The Wrights have failed to cite us to their preservation of this issue in the
circuit court record as required by CR 76.12(4)(c)(v). Moreover, we do not construe their
pleadings as alleging a manufacturing defect. Accordingly, we are persuaded that this
issue is not properly preserved for our review.
In any event, a manufacturing defect is defined as a deviation from the
product's design that creates an unreasonable risk of harm. See Edwards v. Hop Sin,
Inc., 140 S.W.3d 13, 15 (Ky.App. 2003). The only evidence of record is that the
component parts at issue were designed to include the use of asbestos. As such, the
component parts were manufactured as designed and, by definition, any defect was a
design defect, not a manufacturing defect. The Wrights cite us to no evidence contained
in the record which would establish that there is a genuine issue of material fact upon this
issue. It follows that, even if the issue were preserved, summary judgment upon the issue
of any alleged manufacturing defect was proper. See Steelvest, Inc. v. Scansteel Service
Center, Inc., 807 S.W.2d 476 (Ky. 1991).
CONCLUSION
For the foregoing reasons the judgment of the Greenup Circuit Court is
affirmed.
ALL CONCUR.
5
We construe the Wrights' reference to “locomotives” as intending to mean “gaskets and similar
materials.”
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert H. Miller, II
Charleston, West Virginia
John K. Gordinier
Louisville, Kentucky
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