                                 United States Court of Appeals,

                                         Eleventh Circuit.

                                           No. 97-8021.

     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,

                                                 v.

 MAZDA MOTOR CORP. a.k.a. Mazda Motors Corp. f.k.a. Toyo Kogyo, Ltd., Mazda (North
America), Inc., et al., Defendants-Appellees.

                                          March 5, 1998.

Appeal from the United States District Court for the Northern District of Georgia. (No. 1:94-CV-
2964-HTW), Horace T. A. Ward, Judge.

Before HATCHETT, Chief Judge, and 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, --- U.S.

----, 118 S.Ct. 439, 139 L.Ed.2d 337 (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., 505 U.S. 504, 516, 112 S.Ct. 2608,

2617, 120 L.Ed.2d 407 (1992) (citing Maryland v. Louisiana, 451 U.S. 725, 744-46, 101 S.Ct. 2114,

2128, 68 L.Ed.2d 576 (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, 507 U.S. 658, 662-64, 113 S.Ct. 1732, 1737,

123 L.Ed.2d 387 (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, 518 U.S. 470, ---- - ----, 116 S.Ct. 2240, 2250, 135 L.Ed.2d 700 (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)1 (citation omitted). Thus, express 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:

          When a motor vehicle safety standard is in effect under this chapter, a State or a political


   1
    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, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992), would
not permit an 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, 514 U.S. 280, 286-87, 115 S.Ct. 1483,
1487, 131 L.Ed.2d 385 (1995). Thus, Taylor is correct and can be used for evaluating
preemption of state law.
       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, 452 U.S. 490, 512-13, 101 S.Ct. 2478, 2492, 69 L.Ed.2d 185 (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, 875 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.2

       Again we (as in Taylor ) read the preemption clause narrowly and said that the FBSA's

preemption clause did not cover common-law claims. Lewis, 107 F.3d at 1501. Taylor and Lewis




   2
    The pertinent portions of the FBSA read this way:

               [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).
point to the same conclusion for this case.3 So, Plaintiff's defective-design claim is not expressly

preempted by the Act.

B. Implied Preemption

        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, 514 U.S. 280, 286-90, 115 S.Ct. 1483, 1487-

88, 131 L.Ed.2d 385 (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



   3
    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).
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.4 On the contrary,

Plaintiff based 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.5 Too often our colleagues on the district courts complain that the appellate cases about


   4
    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.
   5
    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.
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 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 presumption exists against 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., 450 U.S. 311, 318-20, 101 S.Ct. 1124, 1131, 67

L.Ed.2d 258 (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


               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 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.").
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."6 Plaintiff's 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 defective-design claim—was properly dismissed.

        AFFIRMED.



   6
    Plaintiff presented several warning systems as safer alternatives to the system present in the
1990 Mazda. The Mazda warning system included a buzzer, 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.
