                                                                 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




                        2
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,




                        3
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




                           4
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




                        5
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.




                      6
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.




                       7
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).




                       8
   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




                             9
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




                      10
      “[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.

          1
1989)          (citation    omitted).        Thus,    express



      Our pronouncements in Taylor were
      1


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

                                   11
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.

                      12
       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




                            13
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




                            14
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

                               2
clause and a savings clause.



 The pertinent portions of the FBSA read
 2


this way:

                     15
    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).

                              16
common-law claims. Lewis, 107 F.3d at 1501.


Taylor    and   Lewis   point     to    the   same

                              3
conclusion for this case.         So, Plaintiff’s


defective-design   claim     is   not   expressly


preempted by the Act.




   B.    Implied Preemption




    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).

                        17
     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




                             18
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




                              19
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




                    20
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).




                    21
      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

           4
defect.        On the contrary, Plaintiff based




  If a claim was asserted that two-point
  4


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.

                            22
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




                            23
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

         5
court.         Too often our colleagues on the



        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

                               24
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

                           25
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.”).

                         26
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




                       27
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




                             28
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




                        29
   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).




                           30
   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




                          31
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

                                          6
plaintiff’s desired warning.”                  Plaintiff’s



      Plaintiff presented several warning
      6


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

                              32
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.

                         33
defective-design   claim   --   was   properly


dismissed.


   AFFIRMED.




                     34
