The President's Men propose stripping rollover victims of all their rights
The Administration in Washington is at it again. Currently, 10,000 people die and 24,000 people are injured every year in rollover accidents. But the Administration clearly does not care about those broken lives.
Under the Transportation Equity Act of 2005 (Public Law No. 109-59), Congress directed the National Highway Traffic Safety Administration (NHTSA) to establish rules to reduce deaths and injuries caused by vehicle rollover accidents and to specifically propose a new standard for how strong a vehicle's roof must be.
Instead of acting to significantly reduce injuries as Congress directed, NHTSA proposed a weak "roof crush standard" that leaves safety at the status quo—70% of vehicles on the road currently meet the new proposed standard.
Still worse, the proposed rule marks an unprecedented power grab by a federal agency, preempting all state requirements and state tort law. The result: as long as a car manufacturer meets the proposed standard, no individual may bring a claim in any court if they are injured or killed because of a badly made roof.
This is a fundamental change in auto safety that all Americans should be concerned about. Historically, federal regulations have been interpreted to set a minimum standard of safety. If a manufacturer met the minimum standard but still put a defective product out there that killed people, they could be held accountable. But that is not how the Administration wants it.
The automakers know they can make safer vehicles, they know how to make safer vehicles, but they don't want to spend the money. Instead this rule says to the industry, if you knowingly put a roof design on the market that happens to meet a bare minimum standard but is defective and a child is paralyzed in a rollover accident, the family can never hold the manufacturer accountable in court.
The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks).
Unfortunately, it's not the first time the Bush Administration has included state preemption clauses in federal highway regulations.
Most recently, Section 30106 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act (commonly called the Transportation Bill & which includes funding for the infamous "bridge to nowhere" in Alaska), Public Law 109-59, amends 49 U.S.C. 301 such that rental car companies can't be sued for harm to people or property caused by someone driving one of their cars absent a showing of negligence or criminal wrongdoing.
A link to that Act (HTML format) is available at this link:
http://www.fhwa.dot.gov/safetealu/
This would have its deepest impact in Florida, which imposes strict vicarious liability on the owner of a motor vehicle who voluntarily entrusts it to another who negligently operates it. See Burch v. Sun State Ford, Inc., 864 So.2d 466 (Fla. 5th DCA 2004) (dangerous instrumentality doctrine applies against car rental company even when an operator is involved in intentional misconduct, unless the operator makes weapon-like use of the vehicle with the intent to cause physical harm).
The NHTSA's recent proposal to change fuel-economy standards also includes language that prohibits states from setting fuel-economy rules. California issued standards limiting greenhouse gases from vehicles, saying the state has authority to set air-pollution standards. The auto industry has sued, claiming the state is interfering with federal fuel-economy rules.
An article on that topic is available at this link:
http://www.aiada.org/article.asp?id=29350
Then there's the "Volvo Documents".
A legal battle between Ford Motor Co., plaintiff attorneys and consumer groups is escalating, with hearings scheduled in at least three states about whether the public should be allowed to see a set of Volvo documents used as evidence in rollover trials. Ford says the documents contain vital trade secrets and has sought to keep them under seal in courts in Florida, Texas and Colorado.
The reports show that Volvo engineers were dismayed at the results of tests of early prototypes in which the SUV was rolled and its roof crushed in, inflicting potentially fatal injuries on a test dummy. In response, Volvo engineers went to work strengthening the roof and improving seat belts to hold passengers in their seats.
Documents show how Volvo made its XC90 model roofs stronger than the norm by designing a "steel cage" to protect occupants in rollovers. They surfaced in a trial in Jacksonville, FL, last spring in which a jury awarded $10.2 million to the plaintiffs.
A link to a rather thorough analysis of that story is available at this link:
http://www.detnews.com/2005/autosinsider/0503/29/A01-132711.htm
The jury found the roof in a Ford Explorer to be defective & Ford is appealing.
The documents were then placed in the NHTSA rulemaking docket on roof strength. But the agency removed them after Volvo said they were under a protective court order. In mid-December, Public Citizen petitioned the FL court to make the papers public, claiming they are directly relevant to the current rulemaking. Ford, in a statement, said the documents should be kept from the public because they contain trade secrets.
That argument is doomed for failure, at least in Florida.
In December of last year, Goodyear lost a case dealing with this exact issue. The defendants tried to keep a seal on documents which were produced during litigation over an exploding tire. The appellate court addressed at length Florida's Sunshine in Litigation Act, which prohibits a court from entering an order that conceals a public hazard. Goodyear v. Jones, 2005 WL 3409619 (Dec. 14, 2005). Most notably:
"In order to protect the public from hazardous products, the Act not only prohibits a court from concealing a public hazard, but also from concealing any information concerning a public hazard. Prohibiting the concealment of information concerning a public hazard is rationally related to the goal of protecting the public from the hazard. Although a judgment represents a finding that a particular product or design constitutes a public hazard, and may reveal some information regarding the hazard, when a blanket confidentiality order is entered protecting a quantity of documents related to the hazard, such as the one entered in this case, information which could protect the public from the hazard would still remain concealed from the public the Act seeks to protect. Thus, the goal of protecting the public from hazards can only be accomplished by disallowing confidentiality orders which protect information related to the hazard after a verdict and judgment have been entered against the manufacturer of a hazardous product."
But I digress.
Senators Arlen Spector & Patrick Leahy are warning the NHTSA that its state preemption policy may not be legal, since it was not the intent of Congress to provide for this authority.
A copy of their letter to the NHTSA on this matter is available at this link: http://www.autosafety.org/uploads/php1fYEME_SpecterLeahy.pdf
Preemption by regulations enacted by a federal agency does not occur if that agency is acting beyond the scope of its delegated powers. As the Supreme Court explained in Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S. 355 (1986):
"A federal agency may preempt state law only when and if it is acting within the scope of its congressionally delegated authority. An agency literally has no power to act, let alone pre-empt the validly enacted legislation of a sovereign State, unless and until Congress confers power upon it.
"An agency may not confer power upon itself. To permit an agency to expand its power in the face of a congressional limitation on its jurisdiction would be to grant to the agency power to override Congress. This we are both unwilling and unable to do."
Id. at 374-75; see also United States v. Shimer, 367 U.S. 374, 381-82, (1961) (administrative agency cannot preempt state law if "it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned").
