                                             This opinion was flied for record

                                        at     a~oQrm, on~lan 21e ~wn
                                         ~~      SUSAN L. CARLSON
                                               SUPREME COURT CLERK




          IN THE SUPREME COURT OF THE STATE OF WASHINGTON

ESTATE OF VIRGIL VICTOR BECKER,     )
JR., by its Personal Representative,)
Jennifer L. White,                  )
                                    )
              Petitioner,           )                   No. 92972-6
                                    )
      v.                            )                     En Bane
                                    )
AVCO CORPORATION;.PRECISION         )            JA_N_2_6_"'_20_U'_ __
                                         Filed _ _
AIRMOTIVE LLC; VOLARE               )
CARBURETORS LLC; MARVEL-            )
SCHEBLER CARBURETORS LLC;           )
TEMPEST PLUS MARKETING GROUP        )
LLC; AERO ACCESSORIES, INC.;        )
SYNERGY SYSTEMS, INC.; CASHMERE )
MOLDING, INC.; CREST AIRPARI(, INC.;)
PREMIER AIRCRAFT ENGINES, INC;      )
AUBURN FLIGHT SERVICE, INC; and     )
ESTATE OF BRENDA L. HOUSTON, by its )
Personal Representative PAUL THOMAS )
CREWS,                              )
                                    )
              Defendants,           )
                                    )
      and                           )
                                    )
FORWARD TECHNOLOGY                  )
INDUSTRIES, INC.,                   )
                                    )
              Respondent.           )
____________________________)
Estate ofBecker v. A VCO Corp., eta!.
No. 92972-6


       OWENS, J.- Virgil Victor Becker, a retired doctor, was killed in a plane crash.

His estate (Estate) claimed that a faulty carburetor caused the crash. Forward

Technology Industries Inc. (FTI) built a component for that carburetor. The Estate

brought numerous claims against FTI, including a state product liability claim

implicating a faulty carburetor component. FTI moved for summary judgment, arguing

that the Federal Aviation Administration Authorization Act of 1994 (Federal Aviation

Act), Pub. L. No. 103-305, 108 Stat. 1569, preempted state law.

       In certain circumstances, federal law and state law will interact in such a way that

the federal law will take priority and preempt state law. The Federal Aviation Act does

not include an express preemption clause. However, federal law can preempt state law

if it pervasively occupies a particular field of law. The Third Circuit recently found that

federal aviation regulations do not preempt the state product liability of an aviation

systems manufacturer because they are not so pervasive as to indicate congressional

intent to preempt state law. We follow the Third Circuit and find that the Federal

Aviation Act does not preempt state law. Accordingly, we reverse the Court of Appeals

and remand to the trial court for further proceedings.

                                          FACTS

       In 2008, a single-propeller airplane crashed near McMurray, Washington. The

pilot and two passengers were killed in the crash. One of those passengers was

Becker, a retired doctor. Though the parties dispute the ultimate cause of the crash,



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Estate of Becker v. AVCO Corp., et al.
No. 92972-6


the Estate claims that the engine stalled due to a poorly manufactured carburetor and

that this engine failure led to the crash and the death of Becker.

       The plane's fuel system was designed and produced by Precision Airmotive

LLC (Precision). Though Precision assembled the final product, it contracted with

several other companies to produce various components for the fuel system, including

the carburetor. FTI was one of those companies.

       FTI normally manufactures machines designed to weld plastic parts. Sometime

before 1997, it sold Precision a machine designed to heat and hermetically seal two

plastic components together. Though Precision bought the machine and three tools

capable of sealing three different types of carburetor components, it subsequently

contracted FTI to use two of those tools to weld carburetor floats for Precision.

       Precision would procure two plastic components from a plastics manufacturer

and ship those components to FTI. Using Precision's tools, FTI would weld the

plastic components into a completed, sealed carburetor float. After a batch of these

floats was completed, FTI would test them and send them to Precision.

       FTI produced floats for Precision from at least 1997 until2005. During that

time, it produced over 30,000 floats. FTI understood that it was responsible for

generating carburetor floats that would eventually be placed in airplane engines. It

also knew that the weld on the float needed to be perfect for the float to function




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Estate of Becker v. AVCO Corp., eta!.
No. 92972-6


properly. Around 2001, a carburetor containing one of these floats was installed in

the plane that crashed and killed Becker.

         During its investigation into the crash, the National Transportation Safety

Board examined the carburetor of the downed airplane. The investigation revealed

that one chamber of the float was completely filled with aviation fuel. A float filled

with fuel can force the engine's fuel feed to remain open, causing the engine to flood

and stall out. The investigator did not explain what caused the float to leak and fill

with fuel. However, the Estate asserts that the float leaked because of an imperfect

weld applied by FTI.

         In 2010, the Estate and another plaintiff filed suit against FTI and 11 other

defendants. The Estate claimed numerous tort violations, alleging FTI and the other

defendants had caused an unreasonably dangerous condition in the carburetor float

and that this condition caused the airplane's engine to stall, resulting in the crash that

caused Becker's death.

         FTI moved for summary judgment. It argued that because of pervasive Federal

Aviation Administration (FAA) regulations, federal law occupied the field of aviation

safety and that all of the Estate's state law claims were preempted. In the alternative,

FTI argued that the Estate could bring a product liability action only under the

Washington tort reform and product liability act (WPLA), chapter 7.72 RCW. 1


1
    Because neither of the lower courts addressed the WPLA issue, we decline to do so here.


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Estate of Becker v. AVCO Corp., eta!.
No. 92972-6


       King County Superior Court granted the motion for summary judgment on

federal preemption grounds, declining to address the WPLA issue. The Estate

subsequently filed a motion for reconsideration and a motion for leave to file a third

amended complaint. The trial court denied both motions.

       The Estate and the other plaintiff settled the remaining claims, deconsolidated

their cases, and voluntarily dismissed the remaining defendants. The court then

entered a final judgment.

       The Estate appealed the summary judgment order, as well as the order denying

leave to amend, to the Court of Appeals. Estate ofBecker v. AVCO Corp., 192 Wn.

App. 65, 365 P.3d 1273 (2015). The court found that "federal regulations pervasively

regulate an airplane engine's fuel system," and that this constitutes "implied field

preemption [that] precludes applying a state law standard of care to [the Estate's]

claims." Id. at 79. It reasoned that preemption applies when '"pervasive regulations'

govern a specific area of aviation safety." I d. at 76. The court held that federal law

preempted state law because the specific legal area at issue was the "engine's fuel

system," and the "many federal regulations focused on performance and safety

standards" for airplane engines pervasively regulate this area. Id. The court also

concluded that the trial court had not abused its discretion in denying leave to amend,

reasoning that the Estate's delay in filing the motion was a reasonable basis for denial.

Id. at 83. It also declined to address the WPLA issue.



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Estate ofBecker v. AVCO Corp., et al.
No. 92972-6


       The Estate sought review by this court, which was granted. Estate ofBecker v.

AVCO Corp., 185 Wn.2d 1040, 377 P.3d 763 (2016).

                                         ISSUES

       1.     Are the regulations promulgated under the Federal Aviation Act so

pervasive as to constitute field preemption of state product liability law?

       2.     Did the trial court err when it declined to provide the Estate the

opportunity to file a third amended complaint?

                                STANDARD OF REVIEW

       Summary judgment is proper if there is no genuine issue of any material fact, if

the moving party is entitled to judgment as a matter oflaw, and if reasonable minds

could reach only one conclusion from the evidence presented. Bostain v. Food

Express, Inc., 159 Wn.2d 700, 708, 153 P.3d 846 (2007). We review grants of

summary judgment de novo. Michak v. Transnation Title Ins. Co., 148 Wn.2d 788,

794-95, 64 P.3d 22 (2003).

                                        ANALYSIS

       In this case, we hold that the Federal Aviation Act does not preempt

Washington law. Congress intended the act to allow for the creation of minimum

standards. It is not so pervasive or comprehensive enough to preempt state remedies

that exceed that minimum. Two circuit courts have recently made similar

conclusions. Sikkelee v. Precision Airmotive Corp., 822 F.3d 680 (3d Cir.), cert.



                                             6
Estate ofBecker v. AVCO Corp., et al.
No. 92972-6


denied, 196 L. Ed. 2d 433 (2016); Montalvo v. Spirit Airlines, 508 F.3d 464 (9th Cir.

2007). In addition, the history of the act itself indicates that Congress intended to

avoid federal preemption rather than aim for it. Because we rule that federal law does

not preempt state law in this case, we decline to address whether the trial court abused

its discretion in denying a third amendment. Because the Court of Appeals erred

when it concluded that state law was preempted by federal law, we reverse the Court

of Appeals and remand for further proceedings.

    1. The Regulations Promulgated under the Federal Aviation Act Are Not So
       Pervasive as To Preempt State Product Liability Law

       The Estate contends that the Federal Aviation Act and the regulations

promulgated under it are not pervasive enough to indicate intent by Congress to

preempt state product liability law. We agree. Though we have never ruled on this

issue, several federal courts have. First, the Third Circuit recently ruled in a case

almost identical to this one that the Federal Aviation Act was not pervasive enough to

preempt state product liability law, and that there was no evidence to suggest that it

was ever intended to do so. In addition, the Ninth Circuit has held that a regulation

must not only be pervasive, but also must comprehensively regulate an area of law to

have preemptive effect. Finally, Congress' actions after passing the Federal Aviation

Act indicate that, rather than attempting to preempt state law, it was trying to avoid

preemption. Because of this, state law is not preempted.




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Estate ofBecker v. AVCO Corp., et al.
No. 92972-6


       There are three methods Congress may use to preempt state law: express

preemption, conflict preemption, and field preemption. Progressive Animal Welfare

Soc 'y v. Univ. of Wash., 125 Wn.2d 243, 265, 884 P.2d 592 (1994) (plurality opinion).

To effectuate field preemption, Congress must "occup[y] an entire field of regulation

to the exclusion of any state laws." Resident Action Council v. Seattle Hous. Auth.,

177 Wn.2d 417, 444, 327 P.3d 600 (2013). However, state laws "'are not superseded

by federal law unless that is the clear and manifest purpose of Congress.'"

Progressive Animal Welfare, 125 Wn.2d at 265 (quoting Wash. State Physicians Ins.

Exch. & Ass 'n v. Fisons Corp., 122 Wn.2d 299, 327, 858 P.2d 1054 (1993) (plurality

opinion)). Further, there is a strong general presumption against finding that federal

law has preempted state law. Resident Action Council, 177 Wn.2d at 444-45 (citing

State v. Kalakosky, 121 Wn.2d 525, 546, 852 P.2d 1064 (1993)). If federal law does

not preempt state law, state law applies and our analysis ends. Gilstrap v. United Air

Lines, Inc., 709 F.3d 995, 1006 (9th Cir. 2013).

       A. The Third and Ninth Circuits Have Both Ruled That the Federal Aviation
          Act Is Not Pervasive Enough To Preempt State Aviation Law

       This court has not yet ruled on whether the Federal Aviation Act preempts state

product liability claims relating to aviation safety. However, a number of federal

circuit courts have, and we give '"great weight"' to those decisions. State v.

McCormack, 117 Wn.2d 141, 144, 812 P.2d 483 (1991) (quoting Home Ins. Co. of

NY. v. N Pac. Ry. Co., 18 Wn.2d 798, 808, 140 P.2d 507 (1943)).


                                            8
Estate of Becker v. AVCO Corp., eta!.
No. 92972~6


       A recent Third Circuit decision, not published when the trial court and the

Court of Appeals made their rulings, deals directly with the issue in this case. In

Sikkelee, 822 F .3d at 680, a single-propeller aircraft crashed and killed David

Sild<elee. !d. at 685. His estate brought suit against the engine manufacturer, alleging

that a carburetor identical to the one in this case had malfunctioned and caused the

engine to stall. !d. The only difference is that the claim in Sikkelee was against the

federally certified manufacturer of an entire engine, not the producer of an engine

component (like FTI). !d. Nevertheless, the court held that although the Federal

Aviation Act preempts the field of aviation safety, "neither the Act nor the issuance of

a [federal manufacturing] certificate per se preempts all aircraft design and

manufacturing claims." !d. at 683. It further held that even the extensive regulations

governing certificate holders "do not purport to govern the manufacture and design of

aircraft per se or to establish a general standard of care." !d. at 694. The court

concluded that neither the Federal Aviation Act nor the regulations promulgated under

it "'were [ever] intended to create federal standards of care' for manufacturing and

design defect claims." !d. at 695 (alteration in original) (noting the holding in

Abdullah v. American Airlines, Inc., 181 F.3d 363 (3d Cir. 1999) (quoting Sikkelee v.

Precision Airmotive Corp., 45 F. Supp. 3d 431, 437 n.4 (2014), vacated, 822 F.3d

680)). Because of this, the regulations did not "indicate a clear and manifest

congressional intent to preempt state law products liability claims." !d. at 696.



                                            9
Estate of Becker v. AVCO Corp., eta!.
No. 92972-6


       Here, we similarly find that federal law does not preempt state product liability

law. The Court of Appeals held that state law was preempted because federal

regulations pervasively regulated the area of the "engine's fuel system." Becker, 192

Wn. App. at 76. It cited 12 federal regulations, noting that they all focus on

"performance and safety standards" for aircraft engines. Id. at 76-79. However, they

do not attempt to regulate aircraft manufacture or design in and of itself. As noted in

Sikkelee, these regulations were not designed to supplant state standards of care. 822

F .3d at 695. Rather, the Federal Aviation Act directs the FAA to create '"minimum

standards"' surrounding aviation safety. See id. at 692-93 (quoting 49 U.S.C.

§ 44 701 (a)( 1)). This indicates that federal regulations are a floor for engine design

standards, not a ceiling limiting state tort remedies.

       The Ninth Circuit has also addressed when the Federal Aviation Act preempts

state product liability law. In Montalvo v. Spirit Airlines, 508 F.3d 464, 469 (9th Cir.

2007), a group of plaintiffs sued a group of airlines under state tort law, claiming the

airlines had a duty to warn passengers about the increased risk of contracting deep

vein thrombosis from sitting for prolonged periods in cramped airplane seats. There,

the court held that the plaintiffs' state law claims were preempted because a

comprehensive and pervasive set of federal regulations "clearly indicated [Congress']

intent to be the sole regulator of aviation safety." Id. at 473-74 (noting, as Sikkelee

did, the holding in Abdullah, 181 F.3d 363). However, the court narrowed this



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Estate of Becker v. AVCO Corp., et al.
No. 92972-6


holding in Martin v. Midwest Express Holdings, Inc., 555 F.3d 806 (9th Cir. 2009). In

that case, a woman fell down a flight of airstairs and sued the airline under a theory of

state strict product liability. !d. The court held the product liability claim was not

preempted, stating that the FAA had not "comprehensively regulated" the allegedly

defective stairs and so had not intended to preempt state law. !d. at 812. It

distinguished Montalvo, noting that in that case, the court had based its ruling on the

pervasive regulations of"warnings to passengers." !d. at 809-10. It further noted that

the agency in Montalvo "intended its list of warnings to be comprehensive,"

demonstrating an intent to preempt state law. !d. at 810.

       Here, as in Martin, the regulations are not comprehensive or pervasive enough

to show Congress' intent to preempt state law. The Federal Aviation Act under which

these regulations were promulgated gave the FAA power to generate "minimum

standards" for aviation safety. 49 U.S.C. § 44701(a)(1). It was not designed to take

the place of state tort remedies, but rather to create a federal minimum. As in Martin,

these regulations are not so pervasive as to preempt state law. 555 F.3d at 812. Also

like Martin, FTI does not cite a comprehensive set of requirements akin to the list of

warnings found in Montalvo. !d. at 810. Rather, it identifies a set of baseline

requirements for certified manufacturers. 14 C.P.R.§§ 23.1, 25.1, 33.1. Because of

this, there is no clear indication that Congress intended to preempt state product

liability. Without this intent, we cannot find that federal law preempts state law.



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Estate of Becker v. AVCO Corp., et al.
No. 92972-6


             B. The History of the Federal Aviation Act Also Demonstrates That
                Congress Never Intended the Act To Preempt State Law

         Finally, the history of the Federal Aviation Act strongly supports the

conclusion that Congress did not intend the act to preempt state product liability law. 2

In 1989, Congress rejected the General Aviation Accident Liability Standards Act of

1989. See SENATE COMM. ON COMMERCE, SCI. & TRANSP., S.B. REP. ON S. 640,

101 st Cong. (1989) (COMMERCE REPORT); SENATE COMM. ON JUDICIARY, S.B. REP.

ON S. 640, 101st Cong. (1990) (JUDICIARY REPORT). This act would have preempted

all state tort liability for general aviation accidents. COMMERCE REPORT, supra, at 13,

20. Members of the Committee on the Judiciary were concerned that passing the bill

would have "take[ n] from individual States the right to determine their own standard

of liability .... " JUDICIARY REPORT, supra, at 27. Congress considered and again

rejected an identical bill in 1993. S. 67, 103rd Cong. (1993).

         Congress also adopted an amendment to the Federal Aviation Act in 1994

stating that remedies provided for under the statute were "in addition to any other

remedies provided by law." Act of July 5, 1994, Pub. L. No. 103-272, 108 Stat. 1118,

§ 40120(c) (codified as 49 U.S.C. § 40120(c)). This statute retains existing state tort

law, adding federal remedies only as a supplement to state remedies. It indicates that

Congress intended to create a federal alternative, not limit state options.




2
    The Third Circuit also found this congressional history persuasive. Sikkelee, 822 F.3d at 696.


                                                  12
Estate of Becker v. AVCO Corp., et al.
No. 92972-6


       Also in 1994, Congress passed the General Aviation Revitalization Act of

1994. Pub. L. No. 103-298, 108 Stat. 1552. That law amended the Federal Aviation

Act to create a statute of repose explicitly limiting aircraft manufacturers' state tort

liability. Id. Again, the Committee on the Judiciary noted that it "voted to permit, in

this exceptional instance, a very limited Federal preemption of State law." HOUSE

COMM. ON JUDICIARY, H.B. REP. No. 103-525, pt. 2, at 4, 103rd Cong. (1994)

(emphasis added).

       Congress' actions represent two opportunities to preempt state law that it chose

not to take: one successful attempt to protect state law, and finally an extremely

targeted and explicit preemption of state law. Congress, far from expressing an intent

to preempt state law, has avoided federal preemption in all but the most limited

circumstances.

           C. Congress Did Not Intend To Preempt State Law

       This court finds federal preemption if federal regulations are so pervasive as to

indicate that Congress intended to preempt that area of law. However, there is a

general presumption against finding implied federal preemption. Here, the Third

Circuit ruled on this precise issue and found that federal regulations do not preempt

state law. The Ninth Circuit has found that regulations must be both pervasive and

comprehensive to have preclusive effect. Congress itself has chosen not to preempt

state law except in the most limited circumstances. The regulations here are not so



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Estate of Becker v. AVCO Corp., et al.
No. 92972-6


pervasive as to rebut the presumption against preemption. Because of this, we follow

the federal circuit decisions and find the regulations promulgated under the Federal

Aviation Act do not preempt state product liability under these circumstances.

   2. We Do Not Reach the Issue of Whether the Trial Court Erred When It Did Not
      Grant the Estate's Motion for Leave To File a Third Amended Complaint

       The Estate contends that the trial court erred when it denied the Estate's motion

for leave to file a third amended complaint. We do not reach this issue because we

have already ruled on the preemption issue here. The proposed amendment was

designed to address the additional federal violations at the trial court level. Because

we have held that federal law does not preempt state law in this case, whether the

Estate was allowed to include federal violations in addition to state violations at the

trial level is moot.

                                         CONCLUSION

       We hold that regulations promulgated under the Federal Aviation Act do not

preempt state product liability law. As noted by the Third Circuit, Congress designed

these regulations to establish federal minimum standards, not to comprehensively

regulate the entire aviation industry. They do not show congressional intent to

preempt state product liability law. Because we have ruled that federal law does not

preempt state law in this case, we need not address whether the trial court erred in

denying the Estate leave to amend its complaint. Therefore, we reverse the Court of




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Estate of Becker v. A VCO Corp., eta!.
No. 92972-6


Appeals and remand to the trial court for further proceedings consistent with this

decision.




                                           15
Estate of Becker v. AVCO Corp., et al.
No. 92972-6




WE CONCUR:




                                              -~I!·




                                         16
