                     United States Court of Appeals,

                             Eleventh Circuit.

                               No. 94-8519.

         Victoria DOYLE, Duffey Doyle, Plaintiffs-Appellants,

                                     v.

VOLKSWAGENWERK AKTIENGEL- ELLSCHAFT, Volkswagen of America, Inc.,
Defendants-Appellees.

                              April 24, 1996.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:91-CV-1926-JEC), Julie E. Carnes,
Judge.

Before TJOFLAT, Chief Judge, BARKETT, Circuit Judge, and CLARK,
Senior Circuit Judge.

     CLARK, Senior Circuit Judge:

     CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT TO THE SUPREME COURT OF GEORGIA PURSUANT TO

O.C.G.A. § 15-2-9.

     TO THE SUPREME COURT OF GEORGIA AND ITS HONORABLE JUSTICES:

     It appears to the United States Court of Appeals for the

Eleventh Circuit that this case involves an unanswered question of

Georgia law that is determinative of this appeal.               Therefore, we

certify the following question of law, based on the facts recited

below, to the Supreme Court of Georgia for instructions.

                     THE FACTS AND PRIOR PROCEEDINGS

     This     is     a   defective        products    case      brought     by

plaintiffs-appellants Victoria and Duffey Doyle in the United

States    District   Court   for   the    Northern   District    of   Georgia.

Victoria Doyle alleged that she purchased a new 1989 Volkswagen

Jetta, which was manufactured by defendant-appellee Volkswagen
Aktiengelellschaft           and     imported   into   the    United     States   by

defendant-appellee Volkswagen of America, Inc.                       The Jetta was

equipped with an automatic shoulder belt that required no action by

the vehicle occupants.             By design, the Jetta did not have a lap

belt at the driver's or front seat passenger's position;                     instead,

it used knee bolsters to prevent a person from sliding under the

belt during a collision.

        On August 18, 1989, while driving her new Jetta, Victoria

Doyle was struck in the rear by another vehicle.                     As a result of

the collision, Ms. Doyle sustained severe injuries to her right

breast.           Ms. Doyle's experts are prepared to testify that these

injuries were caused by the shoulder belt and were exacerbated by

the absence of a lap belt:             without a lap belt to absorb a portion

of the force of the impact, a majority of the force of the impact

was focused on Ms. Doyle's right breast.

        Plaintiffs' complaint set out three theories of liability:

negligence, strict liability, and breach of the implied warranty of

fitness.          Plaintiffs filed a motion for partial summary judgment

with        the   district   court    and   provided   the   court    with   various

literature outlining the alleged known dangers of the shoulder belt

only system.          Defendants also filed a motion for partial summary

judgment.          They alleged that the Jetta seat belt system complied

with the Federal motor vehicle safety standards promulgated under

the authority of the National Traffic and Motor Vehicle Safety

Act;1        defendants argued that they were entitled to judgment as a


        1
      Pub.L. No. 89-563, 80 Stat. 718 (1966) (codified at 15
U.S.C. §§ 1381-1431).
matter of law because either (1) they had no duty under Georgia law

to exceed these federal standards, or (2) plaintiffs' common law

claims were preempted by the federal standards.

     The district court granted defendants' motion for partial

summary      judgment       and   denied   plaintiffs'      motion.        The    court

concluded      that    the    Jetta    seat   belt    system   complied     with   the

applicable federal standards, notwithstanding the absence of a lap

belt.       We concur in that conclusion.             The district court further

concluded that Georgia law as delineated in Honda Motor Co. v.

Kimbrel2      does    not    hold   automobile       manufacturers    to    a    higher

standard than federal requirements;                   thus, a plaintiff cannot

recover under Georgia law for negligently creating a defective

condition when the manufacturer is in compliance with federal

standards.       Because the Jetta seat belt system at issue was in

compliance      with    federal       standards,     the   court   concluded       that

defendants could not be liable to plaintiffs as a result of the

absence of a lap belt.            Finding plaintiffs' claims precluded under

Georgia law, the district court found it unnecessary to reach the

preemption issue.

        At the end of its decision, the district court noted that

defendants had not delineated on which counts they sought partial

summary judgment.           Thus, the court directed the parties "to file a

joint statement within twenty days outlining the issues remaining

to be determined."           The parties filed a joint statement agreeing

that the district court's ruling effectively precluded all of


        2
      189 Ga.App. 414, 376 S.E.2d 379 (1988), cert. denied (Feb.
15, 1989).
plaintiffs' claims.           The district court then entered judgment for

defendants, and plaintiffs appealed.

       Since     the   district     court's    decision,    this    circuit   has

expressly      held    that    standards   promulgated     under   the    National

Traffic and Motor Vehicle Safety Act do not preempt common law

claims.      Myrick v. Freuhauf Corp., 13 F.3d 1516 (11th Cir.), cert.

granted, --- U.S. ----, 115 S.Ct. 306, 130 L.Ed.2d 218 (1994).                The

Supreme       Court    recently     affirmed     this    circuit's       decision.

Freightliner Corp. v. Myrick, --- U.S. ----, 115 S.Ct. 1483, 131

L.Ed.2d 385 (1995).

                                    DISCUSSION

       Although we agree defendants are correct that the Jetta seat

belt system complies with applicable federal standards, we must

determine whether the district court correctly interpreted Georgia

law.       In concluding that Georgia law precludes automobile product

liability claims when the manufacturer has complied with applicable

federal standards, the district court relied on Honda Motor Co. v.

Kimbrel.      In Kimbrel, the plaintiff was injured in a collision that

occurred while she was driving a Honda Accord.                     The plaintiff

alleged that Honda Motor Company had created a defective condition

by failing to equip the car with airbags, which were not required

under the applicable federal regulations.                  The court began by

saying:

       The parties have argued       exhaustively regarding preemption by
       federal law, but we must      first determine if there is any right
       to recover under Georgia      law, because preemption results where
       state law conflicts with      or is more stringent than federal law
       and regulations.3

       3
        376 S.E.2d at 382 (footnote omitted).
The court then went on to conclude that the plaintiff was without

any right to recover under Georgia law because Honda Motor Company

had complied with applicable federal standards:

          Because the Georgia standard of duty does not exceed the
     federal, Georgia would mandate only that federal standards be
     met. See Federal Motor Vehicle Safety Standard 208, 49 C.F.R.
     § 571.208 (1981). When the case law and statutory pattern are
     combined the result is that recovery for negligent product
     design could not be had against the manufacturer of a vehicle
     in compliance with federal regulations as to safety
     restraints. In these circumstances there would be no basis
     for requiring a manufacturer to furnish passive restraints or
     airbags in lieu of safety belts and a jury would not be
     authorized to find any breach of duty in the failure to supply
     them to a consumer.4

Thus, on the facts before it, the Georgia Court of Appeals held

that Georgia law precludes automobile product liability claims when

the manufacturer has complied with applicable federal standards.

     We agree that the Georgia Court of Appeals correctly decided

Kimbrel.    In that case it was shown the manufacturer had complied

with the National Safety Standards Act by installing the required

seat belts.     Plaintiff's only complaint was that the manufacturer

should have installed air bags.      Our court in      Taylor v. General

Motors Corp.5 had the identical factual setting in a diversity case

arising    in   Florida.   In   Taylor   we   first   discussed   two   key

provisions in the Safety Act:

          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


     4
      Id. at 383.
     5
      875 F.2d 816 (11th Cir.1989).
     the Federal standard.6

                       *     *    *   *   *   *

          Compliance with any Federal motor vehicle safety standard
     issued under this subchapter does not exempt any person from
     any liability under common law.7

Our court made reference to the fact that the Safety Act "grants

automobile manufacturers the option of complying with federal

standards for occupant crash protection by installing manual seat

belts instead of airbags."       After discussing the cases governing

express and implied preemption, the panel in Taylor concluded:

     de la Cuesta [458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664
     (1982) ] governs this case. It holds that a state common law
     rule cannot take away the flexibility provided by a federal
     regulation, and cannot prohibit the exercise of a federally
     granted option. See id. In accordance with de la Cuesta, we
     conclude that a state common law rule that would, in effect,
     remove the element of choice authorized in Safety Standard 208
     would frustrate the federal regulatory scheme. We therefore
     hold that appellants' theory of recovery is impliedly
     preempted by Safety Standard 208 and the Safety Act.8

     While Taylor endorses the Georgia Court's ruling in Kimbrel,

it makes clear that preemption exists only when there is a conflict

between federal and state law, as there would have been had Kimbrel

been decided otherwise. In the present case, plaintiff alleged two

common law actions:    Count Two in negligence and Count Three in

breach of implied warranty of fitness.     We view the district court

as not allowing plaintiff to seek relief in her common law actions.

That court did rely upon this statement in Kimbrel:      "Because the

Georgia standard of duty does not exceed the federal, Georgia would


     6
      15 U.S.C. § 1392(d) (1982).
     7
      Id. § 1397(c).
     8
      875 F.2d at 827 (emphasis added) (footnote omitted).
mandate only the federal standards be met."9

          The purpose of this certification to the Georgia Supreme

Court is to determine whether the quoted statement is correct. The

United States Supreme Court has said:           "Where an intermediate

appellate state court rests its considered judgment upon the rule

of law which it announces, that is a datum for ascertaining state

law which is not to be disregarded by a federal court unless it is

convinced by other persuasive data that the highest court of the

state would decide otherwise."10       Thus, this court must follow

Kimbrel unless there is "persuasive data" that the Supreme Court of

Georgia might render a decision contrary to Kimbrel.

     We find in Banks v. ICI Americas, Inc., "persuasive data" that

the Supreme Court of Georgia might render a decision contrary to

Kimbrel.11     In   Banks, the parents of a child who died after

ingesting a pesticide brought suit alleging that the pesticide was

defectively designed.     The Supreme Court of Georgia used the Banks

opinion to articulate a new "risk-utility analysis" to be applied

in design defect cases: "[W]e conclude that the better approach is

to evaluate design defectiveness under a test balancing the risks

inherent in a product design against the utility of the product so

designed."12 The court then set out in a footnote a "non-exhaustive
list of general factors" to be considered in applying this new


     9
      376 S.E.2d at 383.
     10
      West v. American Telephone & Telegraph Co., 311 U.S. 223,
237, 61 S.Ct. 179, 183, 85 L.E. 139 (1940).
     11
          264 Ga. 732, 450 S.E.2d 671 (1994).
     12
          Id. at 674.
analysis;     at the end of the list is this statement:

     We note that a manufacturer's proof of compliance with
     industry-wide practices, state of the art, or federal
     regulations does not eliminate conclusively its liability for
     its design of allegedly defective products.13

We find in this language "persuasive data" that the Supreme Court

of Georgia may not conclude that Georgia law precludes product

liability claims when the manufacturer has complied with federal

standards.

     Accordingly, we certify the following question to the Supreme

Court of Georgia:

     WHEN AN AUTOMOBILE MANUFACTURER SELLS AN AUTOMOBILE TO A
     GEORGIA CITIZEN AND THE AUTOMOBILE IS IN COMPLIANCE WITH THE
     NATIONAL AUTOMOBILE SAFETY ACT, DOES GEORGIA LAW PRECLUDE A
     PERSONAL INJURY PRODUCT LIABILITY CLAIM?

The entire record in this case and the briefs of the parties shall

be transmitted to the Supreme Court of Georgia for assistance in

answering this question.

     QUESTION CERTIFIED.




     13
          Id. at 675 n. 6.
