Justice GUZMAN delivered the opinion of the Court, in which Justice HECHT, Justice WAINWRIGHT, Justice MEDINA, Justice JOHNSON, Justice WILLETT, and Justice LEHRMANN joined, and in which Chief Justice JEFFERSON joined as to Parts I and II.
This appeal arises from a jury's verdict in a suit brought against the manufacturer, importer, and distributor of a motorcoach. In 1995, when the motorcoach at issue here was manufactured, federal safety regulations governing the performance of these motorcoaches neither required nor forbade passenger seatbelts. These same regulations allowed manufacturers to choose between several types of glazing materials for use in the motorcoaches' windows, and a manufacturer complied by using one of the required types. We must decide whether that regulatory silence and that choice evidence a congressional intent to preempt a McLennan County jury's finding that the manufacturer of a motorcoach should have installed passenger seatbelts and should have used another permitted type of glazing material. Because we conclude that the jury's verdict which is grounded in this state's common law does not present any obstacle to the accomplishment of the federal regulatory scheme's purpose, we hold that the federal safety standards at issue do not preempt state law.
We also apply Chapter 33 of the Texas Civil Practice and Remedies Code to a plan adopted by a bankruptcy court to apportion a debtor's insurance proceeds among a group of creditors who filed claims against the bankruptcy estate. The unique plan allowed the claimants to either accept a mediated percentage of the proceeds or to litigate their claims before a
On February 14, 2003, a group of friends chartered a bus
The bus owner and operator, Central Texas Trails, Inc., Central Texas Bus Lines, Inc., and Kincannon Enterprises, Inc. (collectively Central Texas), filed for Chapter 11 bankruptcy protection shortly after the accident. The bus crash victims filed creditor claims against Central Texas in the bankruptcy court. Central Texas maintained a $5 million liability insurance policy, and the carrier paid the policy limits into the bankruptcy court's registry, creating a liability fund. The bus crash claimants participated in non-binding mediation, the goal of which was to formulate a plan for apportioning the fund. The mediator assigned a percentage of the fund to each claimant, and these percentages were incorporated into a plan submitted to the bankruptcy court for approval, which was given on October 21, 2003. Under the "Apportionment Plan," a claimant could accept the mediator's percentage and immediately receive that portion of the liability fund. If the claimant chose not to accept the mediator's allocation, the claimant participated in a "Litigation Plan." Under this plan, the claimants tried their claims to a special judge agreed to by the participants, and their recovery under this plan was capped at 110% of the mediator's allocation. Further, the parties could agree at any time to approve a full or partial distribution to any or all participants. Central Texas's tort liability in excess of the liability fund was discharged upon approval of its reorganization plan the following year.
On June 26, 2003, a group of the injured bus occupants (or their estates) and their relatives (the Plaintiffs)
After the jury's verdict but before entry of judgment, the Plaintiffs, all of whom opted for resolution of their claims against Central Texas via the Litigation Plan, appeared before the special judge. The judge found that the bus driver's negligence proximately caused the accident that produced the Plaintiffs' injuries and that he was acting within the scope of his employment with Central Texas. Further, the judge determined that the jury's damage awards in this case, with one exception, significantly exceeded the 110% maximum recovery under the Litigation Plan. Limiting the one participant's recovery to what the jury awarded, the judge capped the remaining damage awards at the 110% maximum. Because of the limited funds, however, the awards were prorated so that each participant received a relative percentage of the actual award. In the end, each Litigation Plan participant (again, with the one exception) received a sum that is within two percent of the amount allocated by the mediator.
MCI appealed, and the court of appeals reversed and remanded. 272 S.W.3d 17, 20. As relevant here, the court rejected MCI's preemption arguments but agreed that the trial court abused its discretion by not submitting a question to the jury regarding Central Texas and the bus driver's proportionate liability as settling persons. MCI then petitioned this Court for review of the preemption issues, and the Plaintiffs cross-petitioned for review of the proportionate responsibility issue. We granted both petitions and consider the issues in order, beginning with federal preemption.
The Supremacy Clause dictates that the "Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... 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, cl. 2. Thus, a law passed by Congress—acting within its enumerated powers—and signed by the President preempts any state law to the contrary, rendering it without effect. Maryland v.
Congress may expressly preempt state law by means of statutory language, see, e.g., Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992); Great Dane Trailers, Inc. v. Estate of Wells, 52 S.W.3d 737, 743 (Tex.2001), or it may do so impliedly in one of two ways, by "so thoroughly occup[ying] a legislative field `as to make reasonable the inference that Congress left no room for the States to supplement it,'" Cipollone, 505 U.S. at 516, 112 S.Ct. 2608 (quoting Fidelity Fed. Sav. & Loan Ass'n v. De la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982) (quotation marks omitted)), or by enacting a law that actually conflicts with state law, see id. (citing Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 204, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983)). A state law actually conflicts with a federal law when compliance with both is impossible or when the state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941); accord Great Dane Trailers, 52 S.W.3d at 743. The latter kind of conflict preemption, sometimes called obstacle preemption, is the only theory of preemption advanced by MCI in this case. See Geier v. Am. Honda Motor Co., 529 U.S. 861, 868, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000) (holding that the National Traffic and Motor Vehicle Safety Act's express preemption clause does not apply to common-law tort actions).
As the Supreme Court has observed, "the purpose of Congress is the ultimate touchstone in every pre-emption case." Wyeth, 129 S.Ct. at 1194 (quotation marks omitted). When Congress has explicitly stated that its legislation preempts state law, that intent is plain. See, e.g., Geier, 529 U.S. at 867-68, 120 S.Ct. 1913 (concluding that the Safety Act's express preemption clause preempts nonidentical standards contained in state legislation and regulations). At other times, Congress does not expressly state its preemptive purpose, but such intent is discoverable through the statutory language and structure, as when Congress occupies a field of regulation and leaves no room for states to operate. See, e.g., City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624, 633, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973) ("It is the pervasive nature of the scheme of federal regulation of aircraft noise that leads us to conclude that there is pre-emption."). But when preemption is premised on the obstacle a state law erects to accomplishing a federal purpose, divining that intent can be more challenging.
With this framework in mind, we turn to the relevant federal law that MCI asserts preempts the jury's verdict.
Congress passed the National Traffic and Motor Vehicle Safety Act of 1966 (Safety Act or Act), to reduce traffic accidents and their resulting injuries. Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 33, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (citing 15 U.S.C. § 1381 (1976) (current version at 49 U.S.C. § 30101)). Congress gave the Secretary of Transportation the authority to "prescribe motor vehicle safety standards. Each standard shall be practicable, meet the need for motor vehicle safety, and be stated in objective terms." 49 U.S.C. § 30111(a). A motor vehicle safety standard is "a minimum standard for motor vehicle or motor vehicle equipment performance." Id. § 30102(a)(9). The Secretary of Transportation in turn delegated authority to create the safety standards to the Administrator of the National Highway Traffic Safety Administration (NHTSA). 49 C.F.R. § 1.50. Over the years, NHTSA has promulgated and modified the Federal Motor Vehicle Safety Standards (FMVSS), of which FMVSS 205 and 208 are at issue here. See id. §§ 571.205, .208.
In 1971, NHTSA issued FMVSS 208, which governed occupant crash protection and mandated seatbelts in motorcoaches for the driver only. See id. § 571.208, S4.4.1.
The following year, however, NHTSA withdrew the proposed standard for motorcoaches, determining that seating requirements for intercity and transit buses were not justified from a cost/benefit standpoint, and that seatbelt-usage surveys in intercity buses indicated few passengers would utilize seatbelts if provided. See School Bus Passenger Crash Protection, 39 Fed.Reg. 27,585 (July 30, 1974). The NHTSA did indicate that it would "propose standards in the future in this area if they are found desirable." Id.
MCI draws our attention to several other events of note.
In 2000, five years after the motorcoach here was built, NHTSA's acting administrator wrote a letter to the chairman of the National Transportation Safety Board (NTSB), which had repeatedly asked NHTSA to study the desirability of seatbelt standards for motorcoaches, noting that motorcoach crashes killed about five people per year. Letter from Rosalyn G. Millman, Acting Adm'r, NHTSA, to Jim Hall, Chairman, NTSB (Mar. 3, 2000). Even so, NHTSA said it would explore ways to study the crashworthiness of motorcoaches, including the feasibility and safety of seatbelts, in association with their manufacturers. Two years later, NHTSA announced a joint public meeting with its Canadian counterpart, Transport Canada, regarding the safety of motorcoaches. See Notice of Public Meeting on Motorcoach Safety Improvements, 67 Fed.Reg. 14,903 (Mar. 28, 2002). NHTSA invited comment on several proposed safety improvements, including limiting the size of glazing materials, introducing roof crush safety standards, requiring side curtain airbags, and requiring seatbelts. Id. at 14,904-05. Finally, in 2007, NHTSA issued a report recommending passenger seatbelts in motorcoaches following research designed to determine the best performance standards for the seatbelt assembly and seat anchorages. See NHTSA, Docket 2007-28793, NHTSA's APPROACH TO MOTORCOACH SAFETY 12-14. Based on this report, the Department of Transportation issued an action plan for motorcoach safety, in which it proposed to begin rulemaking to require seatbelts in motorcoaches. See U.S. DEP'T OF TRANSP., MOTORCOACH SAFETY ACTION PLAN 5 (2009). In August 2010, NHTSA followed up by publishing a Notice of Proposed Rulemaking (NPRM) that calls for three-point seatbelts for passenger seats in new motorcoaches. See Federal Motor Vehicle Safety Standards; Motorcoach Definition; Occupant Crash Protection, 75 Fed.Reg. 50,958 (Aug. 18, 2010) (to be codified at 49 C.F.R. pt. 571).
FMVSS 205 "specifies requirements for glazing materials for use in motor vehicles." 49 C.F.R. § 571.205, S1. It is intended to "reduce injuries resulting from impact to glazing surfaces, to ensure a necessary degree of transparency in motor vehicle windows for driver visibility, and to
In 1988, NHTSA proposed advanced glazing requirements for passenger vehicles and received numerous comments questioning, among other things, "whether this material would actually increase injuries to belted occupants due to head injury, neck loading, and lacerations." Withdrawal of Advance Notices of Proposed Rulemaking, 67 Fed.Reg. 41,365, 41,366 (June 18, 2002). In 1991, Congress mandated that NHTSA initiate rulemaking on rollover protection. Id. As part of this study, NHTSA focused on advanced glazing research as a possible method to reduce passenger ejections. Id. In 2001, Congress directed NHTSA to complete its study of glazing materials, and NHTSA issued a final report on the use of glazing materials to mitigate ejections. Id. at 41,367. Based on this report, NHTSA decided to terminate rulemaking on the issue of advance glazing, citing safety and cost concerns. Id. Noting the advent of other ejection mitigation systems (such as side air curtains) and the possibility that advanced side glazing increased the risk of neck injuries in some cases, NHTSA determined that its time and resources were better spent on other projects that focused on developing "more comprehensive, performance-based test procedures." Id. In the 2007 report on motorcoaches, NHTSA emphasized the importance of roof strength because deformations following a crash compromise the window's ability to
Before discussing whether preemption applies here, we must first address MCI's argument that the court of appeals improperly applied a presumption against preemption. MCI contends that Geier rejected any "special burden" beyond the application of ordinary preemption principles. The Plaintiffs counter that the presumption is rooted in federalism, not in Geier's analysis of the interplay between the Safety Act's preemption and saving clauses. We agree in principal with the Plaintiffs while recognizing that the exact contours of the presumption are far from clear. See Robert N. Weiner, The Height of Presumption: Preemption and the Role of Courts, 32 HAMLINE L.REV. 727, 727 (2009) ("Few aspects of Supreme Court jurisprudence are as contradictory and convoluted as the so-called `presumption against preemption.'").
The United State Supreme Court noted a presumption against preemption in Rice v. Santa Fe Elevator Corp., grounding it in the states' police power to regulate for the good of their citizens: "[W]e start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947); see also Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) ("[B]ecause the States are independent sovereigns in our federal system, we have long presumed that Congress does not cavalierly pre-empt state-law causes of action."). The presumption is particularly strong when Congress legislates "in [a] field which the States have traditionally occupied." Rice, 331 U.S. at 230, 67 S.Ct. 1146; see also Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449, 125 S.Ct. 1788, 161 L.Ed.2d 687 (2005) ("In areas of traditional state regulation, we assume that a federal statute has not supplanted state law unless Congress has made such an intention clear and manifest." (quotation marks omitted)). Citizens' health and safety are "`primarily and historically, ... matter[s] of local concern,'" and thus states have "`great latitude'" to protect "`the lives, limbs, health, comfort, and quiet of all persons.'" Lohr, 518 U.S. at 475, 116 S.Ct. 2240 (quoting Hillsborough County v. Automated Med. Labs., Inc., 471 U.S. 707, 719, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985) and Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 756, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985)) (alterations in original).
Against this backdrop, the Supreme Court in Geier analyzed whether the Safety Act and FMVSS 208 preempted a common-law tort action in which the plaintiff claimed the automobile manufacturer was liable for failing to install airbags in a 1987 vehicle. 529 U.S. at 865, 120 S.Ct. 1913. The Court first addressed the Safety Act's express preemption clause
We do not read Geier's special-burden discussion to undermine the presumption against preemption. The former is rooted in two statutory provisions of the Safety Act, the latter in principles of federalism. Merely because the Safety Act's saving clause does not create a special burden disfavoring preemption does not eliminate the respective spheres of state and federal sovereignty, and the presumption simply affords deference to the states' long-standing rights to protect their citizens absent a clear directive from Congress. In the end, what the majority said in Geier does not negate the presumption against preemption.
What the majority did not say is another matter. MCI correctly notes the Geier majority's silence regarding the presumption. The Geier dissent noticed as well and decried the majority's refusal to apply what the dissent considered to be an "`ordinary experience-proved principle[] of conflict pre-emption.'" Id. at 906-07, 120 S.Ct. 1913 (Stevens, J., dissenting) (quoting id. at 874, 120 S.Ct. 1913); see also Altria Group, Inc. v. Good, 555 U.S. 70, 129 S.Ct. 538, 558, 172 L.Ed.2d 398 (2008) (Thomas, J., dissenting) (noting in a discussion of Riegel v. Medtronic, Inc., 552 U.S. 312, 128 S.Ct. 999, 169 L.Ed.2d 892 (2008), which involved express preemption, the effect of the majority's refusal to invoke the presumption: "Given the dissent's clear call for the use of the presumption against pre-emption, the Court's decision not to invoke it was necessarily a rejection of any role for the presumption in construing the statute."). Commentators likewise concluded that the Geier majority upended the normal presumption against preemption.
In Wyeth v. Levine, the Court considered whether federal law preempted, under the actual conflict theory, a Vermont jury's finding that the manufacturer of the drug Phenergan failed to adequately warn of the risks associated with directly injecting the drug into a patient's vein. 129 S.Ct. at 1190-91. The Court, relying on Lohr, stated the classic formulation of the presumption against preemption and rejected the dissent's contention that the presumption should not apply to claims of implied conflict preemption. Id. at 1194-95 & n. 3 (citing Lohr, 518 U.S. at 485, 116 S.Ct. 2240 and Rice, 331 U.S. at 230, 67 S.Ct. 1146). According to the dissent, the Court had never—prior to Wyeth—definitively applied the presumption in the actual-conflict context. Id. at 1228-29 & n. 14 (Alito, J., dissenting). From the majority's language in Wyeth, we fail to see how the presumption does not apply to all preemption cases, including implied conflict cases. Id. at 1194-95 & n. 3 ("For its part, the dissent argues that the presumption against pre-emption should not apply to claims of implied conflict pre-emption at all, but this Court has long held to the contrary." (citation omitted)); see also Altria Group, 129 S.Ct. at 543 ("When addressing questions of express or implied pre-emption, we begin our analysis with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." (quotation marks omitted; alteration in original)). That Geier addressed the Safety Act and Wyeth a different statute is, contrary to MCI's position, irrelevant.
Given that no federal safety standard even discusses passenger seatbelts in motorcoaches, MCI's preemption claim is predicated on regulatory silence. That is, MCI argues that NHTSA's failure to regulate was deliberate and has the same preemptive force as a regulation forbidding passenger seatbelts. While we agree that regulatory silence can preempt state law in rare occasions, we do not agree that NHTSA's decision not to require seatbelts in motorcoaches is such an occasion.
The Supreme Court has stated that "a federal decision to forgo regulation in a given area may imply an authoritative federal determination that the area is best left unregulated, and in that event would have as much pre-emptive force as a decision to regulate." Sprietsma v. Mercury Marine, 537 U.S. 51, 66, 123 S.Ct. 518, 154 L.Ed.2d 466 (2002) (quoting Ark. Elec. Coop. Corp. v. Ark. Pub. Serv. Comm'n, 461 U.S. 375, 384, 103 S.Ct. 1905, 76 L.Ed.2d 1 (1983) (quotation marks omitted)).
In Sprietsma, the Supreme Court considered whether a claim that a motor boat should have been equipped with a propeller guard was preempted by the Federal Boat Safety Act of 1971, 46 U.S.C. §§ 4301-4311 (Boating Act). Like the Safety Act, the Boating Act contains both an express preemption clause and a saving clause, which the Court interpreted the same way—the preemption clause only affected state legislation and regulations, and the saving clause preserved common-law tort actions. 537 U.S. at 63, 123 S.Ct. 518. Finding no express preemption, the Court unanimously rejected the claim that the tort action conflicted with the federal regulatory scheme. Id. at 65, 123 S.Ct. 518. Addressing the boat manufacturer's argument that the "Coast Guard's decision not to adopt a regulation requiring propeller guards on motorboats" had preemptive force, the Court responded: "It is quite wrong to view that decision as the functional equivalent of a regulation prohibiting all States and their political subdivisions from adopting such a regulation." Id. Rather, that decision "is fully consistent with an intent to preserve state regulatory authority pending the adoption of specific federal standards." Id. The Coast Guard decided not require propeller guards because doing so was not technically feasible, the cost of retrofitting boats was substantial, and accident data did not support such regulation; as such, the high standard for justifying regulations was not met. Id. at 66, 123 S.Ct. 518. Given this explanation, the Court found nothing in the Coast Guard's statement "inconsistent with a tort verdict premised on a jury's finding that some type of propeller guard should have been installed." Id. at 67, 123 S.Ct. 518.
Similarly, in Freightliner Corp. v. Myrick, the Supreme Court refused to give preemptive force to regulatory silence: "We hold that the absence of a federal standard cannot implicitly extinguish state common law." 514 U.S. 280, 282, 115 S.Ct. 1483, 131 L.Ed.2d 385 (1995). The plaintiffs claimed the tractor-trailers that crashed into their vehicles should have been equipped with antilock braking systems (ABS). The Safety Act and NHTSA regulations did not require such braking systems,
From these cases, it follows that an agency's mere decision to leave an area unregulated is not enough to preempt state law. Instead, the agency must, consistent with the authority delegated to it by Congress, affirmatively indicate that no regulation is appropriate. That is, the agency must state that not only will it leave the area unregulated, it will not allow any regulation in that area as a matter of policy. Unless the agency takes this "further step" to disallow state regulation, its decision not to regulate has no preemptive force. Sprietsma, 537 U.S. at 67, 123 S.Ct. 518.
When looking at NHTSA's comments regarding passenger seatbelts in motorcoaches, we do not find any expression of intent to forbid state regulation. NHTSA proposed a requirement for passenger seatbelts in 1973 along with modified seating standards designed to contain passengers during a crash. See 38 Fed.Reg. 4776 (Feb. 22, 1973). The following year NHTSA continued to advance such seating standards in school buses, but decided to withdraw the proposed standards for motorcoaches and transit buses: "The NHTSA has in fact determined that seating requirements for intercity and transit buses are not justified, based on benefit/cost studies of present seating performance in these buses.... Seat belt usage surveys in intercity buses also indicate that a very low percentage of passengers would utilize seat belts if they were provided.... The NHTSA will, of course, propose standards in the future in this area if they are found desirable." School Bus Passenger Crash Protection, 39 Fed.Reg. 27,585 (July 30, 1974). This explanation indicates that NHTSA simply determined that the cost of installing seatbelts was not justified given the low usage rates.
All of NHTSA's later statements, from letters to notices of public meetings to reports and action plans, demonstrate the agency's increased willingness to reconsider its 1974 decision to leave motorcoaches essentially unregulated. These events culminated in the initiation of rulemaking for the installation of passenger seatbelts on motorcoaches. The jury anticipated NHTSA's future actions, and we find no conflict between its verdict and the federal safety standards.
MCI argues that the history of NHTSA's motorcoach regulation points in a very different direction. It contends that NHTSA chose an alternate method of passenger protection, compartmentalization, see supra note 6, and required seatbelts only for the driver. Further, MCI asserts that three different cases are more relevant than Sprietsma or Myrick: Geier,
We disagree with MCI's interpretation of NHTSA's actions. In particular, there is nothing in the regulatory history of motorcoaches to suggest that NHTSA intended to rely on seating design rather than seatbelts and promulgated standards to that effect. As discussed above, the 1973 notice proposed changing seat design to better protect passengers and also to incorporate seatbelts as an alternative restraint system. In 1974, NHTSA withdrew both proposals, finding that the cost of the methods did not justify their benefits. NHTSA did issue seating standards for school buses, see 49 C.F.R. § 571.222, but not for motorcoaches. Thus, it is inaccurate to suggest that NHTSA chose an alternate method to protect passengers; instead, NHTSA chose not to regulate seating design or seatbelts in motorcoaches, a decision that does not have preemptive force for the reasons explained above.
Nor do we find Geier, Carden, or BIC Pen more analogous to the present situation. In Geier, the Supreme Court considered whether FMVSS 208 preempted a claim that a 1987 vehicle should have had airbags. 529 U.S. at 865, 120 S.Ct. 1913. FMVSS 208, as in effect at the time, "deliberately sought variety—a mix of several different passive restraint systems." Id. at 878, 120 S.Ct. 1913. NHTSA also chose to gradually phase in the requirements for passive restraints and made them conditional; because seatbelts provided the same or greater benefit at a lower cost, the passive-restraint standard would be rescinded if two-thirds of the states mandated seatbelt use within a certain period of time. Id. at 879-80, 120 S.Ct. 1913. The reasons for this mix of restraints and gradual phase-in over time reflected NHTSA's experience and considerations of cost and public acceptance. Even though seatbelts provided the best protection in the event of a crash, most of the public did not wear them at the time. Id. at 877, 120 S.Ct. 1913. While passive restraints such as airbags could provide some of that lost protection, they created problems of their own (e.g., harm to children), cost more than seatbelts, and were viewed with suspicion by the public. Id. at 877-78, 120 S.Ct. 1913. Thus, rather than simply mandate airbags—a tactic that had failed when NHTSA required seatbelt buzzers and ignition interlocks
In Carden, the Fifth Circuit considered whether FMVSS 208 preempted the plaintiffs' claim that a car manufacturer should have installed a lap/shoulder seatbelt rather than a lap belt alone in the rear center seat of a 1999 Pontiac Grand Am. 509 F.3d at 229. Finding Geier directly on point, the court reviewed the history of FMVSS 208 and concluded that NHTSA deliberately gave manufacturers the choice of which kind of seatbelt to install based on specific policy reasons. Id. at 230-31. These reasons included the technical difficulties associated with installing a shoulder belt in the rear center position, and the greater cost of doing so even when the expected safety benefit was minimal given the low occupancy rate in that seat. Id. at 231. The Fifth Circuit then distinguished Sprietsma and its analysis of non-regulation by noting the presence of explicit regulation and the choice given therein. Id. at 232.
Finally, in BIC Pen, this Court considered whether federal law preempted a design defect claim regarding a BIC lighter. 251 S.W.3d at 503. We reviewed the certification process lighters must undergo at the direction of the Consumer Product Safety Commission, the regulatory agency charged with developing safety standards for consumer products. Id. The Commission adopted regulations that require lighters to successfully resist operation by eighty-five percent of a child-test panel. Id. This number was chosen based on numerous factors, "including child resistence, overall safety, the realities of manufacturing, the variability and randomness of child testing, the product's utility, and the importance of customer acceptance." Id. at 507 (citing 16 C.F.R. § 1210.5(c)). The Commission was particularly concerned that lighters not be too difficult to operate or adults would forgo their use and resort to non-child-resistant lighters or matches, which posed even greater dangers to children. Id. Because the Commission weighed these factors and struck a delicate balance between them, we concluded that "imposing a common law rule that would impose liability above the federal standard is contrary to the Commission's plan and conflicts with federal law." Id. Accordingly, we held that the design defect claim was preempted. Id. at 509.
MCI argues these cases illustrate the preemptive effect of an agency's regulatory action following a careful analysis of various, and often competing, considerations of safety and cost. But MCI misses a telling distinction between these cases and the present one. In Geier, Carden, and BIC Pen, the agencies actually issued regulations. These regulations balanced competing considerations, as MCI notes, but in each case the courts considered the preemptive effect of a regulation. When an agency issues regulations, a federal law exists with which a state law can conflict. But when the agency chooses not to regulate, there is no preemptive federal law absent a clear and manifest indication of the agency's intent to forbid all regulation. NHTSA has not taken that further step regarding passenger seatbelts in motorcoaches. In this respect, the present case is more akin to Sprietsma and Myrick, in which the Supreme Court found no preemptive intent in the agencies' non-action.
Regulatory silence will not preempt a state law absent a clear and manifest statement of intent to forbid all regulation in that area. Applying this standard to NHTSA's decision not to require passenger seatbelts in motorcoaches, we find nothing in the regulatory history or agency statements indicative of such intent. In
We next consider the effect of FMVSS 205 on the Plaintiffs' claim that the motorcoach should have had laminated-glass windows. Unlike the seatbelt claim, here NHTSA issued an actual federal safety standard giving manufacturers a choice of glazing materials, including laminated and tempered glass. The jury determined that MCI should have used laminated glass rather than tempered glass and that this defect caused some of the Plaintiffs' injuries. The parties agree that FMVSS 205 gives a choice but disagree on its significance. Thus, we must decide if an agency's deliberate decision to give manufacturers a choice between several different materials, none of which is superior to the others in all circumstances, preempts a jury's conclusion that another of the required types should have been used. We conclude that it does not.
The Safety Act defines the federal motor vehicle safety standards as "minimum standard[s]." 49 U.S.C. § 30102(a)(9). And state regulation of vehicle safety through common-law tort actions is expressly allowed: "[The Safety Act's saving clause] preserves those actions that seek to establish greater safety than the minimum safety achieved by a federal regulation intended to provide a floor." Geier, 529 U.S. at 870, 120 S.Ct. 1913; see also 49 U.S.C. § 30103(e). Of course, a tort action that seeks to impose a requirement forbidden by a federal standard, or that forbids what the standard requires, is preempted due to the actual conflict. Likewise, a tort action that presents an obstacle to the federal purpose is preempted—Geier is clear that ordinary preemption principles apply. 529 U.S. at 874, 120 S.Ct. 1913. But we must be mindful that Congress generally intended the federal safety standards to set a minimum standard for performance and allowed juries to determine in particular cases if the vehicle manufacturer should have done more.
The text of FMVSS 205 states its three-fold purpose—to reduce injuries resulting from impact to glazing surfaces, to provide driver visibility, and to minimize ejections—and incorporates by reference the standards of ANSI/SAE Z26.1-1996. 49 C.F.R. § 571.205, S2, S3.2(a). The ANSI standard delineates the testing requirements for the various glazing materials and allows the use of either laminated glass or tempered glass in vehicle windows other than the windshield, which must have laminated glass. See ANSI/SAE Z26.1-1996, T.1 (Items 1 & 2). Nothing in the text of FMVSS 205 indicates that it is anything other than a minimum materials standard. In the absence of the standard, manufacturers could use any material allowed by state law; the standard simply limits the range of available choices.
MCI argues that the choice of glazing materials is enough to preempt a jury's finding that a different material should
Lower courts have, in fact, interpreted Geier in this fashion,
Given our interpretation of Geier, we turn to MCI's argument that FMVSS 205 represents NHTSA's deliberate decision to give manufacturers a choice of safety options. That is, MCI seems to contend that NHTSA made a Geier-like policy decision to encourage a range of glazing choices. We do not agree. As noted, FMVSS 205 then and now gives manufacturers a choice of materials and recognizes that no one type is superior in all circumstances. See 49 C.F.R. § 571.205, S3.2(a); ANSI/SAE Z26.1-1996 § 2.2. In the final rule adopting the new ANSI/SAE standards, NHTSA did not state a positive desire to preserve the use of tempered glass in windows by forbidding contrary state regulation. See 68 Fed.Reg. 43,964. Rather, NHTSA declined to continue rulemaking regarding advanced glazing materials after completing a ten-year study of the subject because other safety measures, such as side air curtains, also helped to mitigate ejections and NHTSA needed to devote its resources to developing standards for them. See 67 Fed.Reg. at 41,366. NHTSA also cited the costs associated with redesigning vehicles to accept advanced glazing materials and noted that use of these materials may increase the risk of neck injuries. Id.
In short, NHTSA extensively studied the issue and did not change the safety standard, which still allows manufacturers to choose among several types of glazing materials. FMVSS 205 is unlike FMVSS 208 and its carefully constructed timetable and mix of safety options. Compare 49 Fed.Reg. 6732, and 68 Fed.Reg. 43,964, with Occupant Crash Protection Final Rule, 49 Fed.Reg. 28,962 (July 17, 1984) (to be codified at 49 C.F.R. pt. 571). Neither set of standards is, as MCI argues, a "choice among the best available alternatives." Rather, the former merely narrows the range of manufacturers' choice of glazing materials from potentially unlimited to a short list. The latter emphasizes the choice among options as an important and integral part of the overall safety
We are not the first court to examine the preemptive effect of FMVSS 205. In O'Hara v. General Motors Corp., the Fifth Circuit addressed the same issue in the context of a sport utility vehicle. 508 F.3d 753, 755 (5th Cir.2007). The plaintiffs claimed that General Motors should have used advanced glazing materials in the side windows of a 2004 Chevrolet Tahoe instead of tempered glass. Id. The Fifth Circuit considered the text and history of FMVSS 205 as well as NHTSA interpretations of the standard and general comments on the subject matter of advanced glazing materials. See id. at 759-63. It concluded that FMVSS 205 differs from FMVSS 208 both in text and purpose—specifically that the relevant "factors" of the latter, "detailed implementation timelines, full vehicle testing procedures and `options' language," that supported preemption—were "conspicuously absent from FMVSS 205." Id. at 760. The court found that NHTSA commentary on FMVSS 205 supported "the conclusion that it is a minimum safety standard." Id. at 761. Interestingly, the court also considered NHTSA's decision to terminate rulemaking on advanced glazing materials and analogized that choice to the Coast Guard's non-action in Sprietsma:
Id. at 762-63.
The Supreme Court of West Virginia also considered whether FMVSS 205 preempted a claim that a vehicle manufacturer should have used advanced glazing materials rather than tempered glass in the side window of a sport utility vehicle. Morgan v. Ford Motor Co., 224 W.Va. 62, 680 S.E.2d 77, 81 (2009). The court examined Geier, O'Hara, and Wyeth at some length, see id. at 88-93, and specifically rejected the interpretation of Geier that we adopt, instead holding that a regulation
As our analysis makes plain, we agree with O'Hara. The Morgan court errs by concluding that merely because NHTSA chose not to require something for policy reasons, states may not do so as well. As discussed above, the rule in Sprietsma regarding the preemptive force of regulatory non-action is not so broad, particularly when NHTSA still permits manufacturers to choose what it would not require. There is no evidence that NHTSA intended to disallow states from requiring the use of advanced glazing materials in side windows. Nor do we agree with the Morgan court's broad interpretation of Geier, that preemption is mandated whenever an agency makes a considered decision to preserve the status quo and its range of choices. As the Solicitor General has said: "Manufacturers always have the `option' of exceeding a minimum safety standard when NHTSA has decided not to mandate a more stringent alternative because of considerations of cost or feasibility—as NHTSA did in this case and, indeed, often does in considering regulatory alternatives. But if such an `option' alone were enough to trigger federal preemption under Geier, the Safety Act's savings clause would be greatly undermined." Brief for the United States as Amicus Curiae at 15, Williamson v. Mazda Motor of Am., Inc., No. 08-1314. We agree. Attributing preemptive intent to every deliberate agency decision runs afoul of Congress's choice to define the safety standards as minimum standards and its clear decision to allow juries a place in developing common-law rules that exceed the federally defined floor.
We hold that FMVSS 205 is a minimum standard that merely limits the possible glazing materials a manufacturer may choose for incorporation in its vehicles. As such, the jury's finding that MCI should have used a different glazing material in the motorcoach here presents no obstacle to the accomplishment and execution of a federal policy. Thus, we hold that the jury's verdict in favor of the Plaintiffs is not preempted by federal law.
We finally consider whether Central Texas and the bus driver
Relevant to our determination of this issue is the definition of a "settling person." While "settle" and "settlement" were not defined in Chapter 33, see C & H Nationwide, Inc. v. Thompson, 903 S.W.2d 315, 319 (Tex.1994), "settling person" was. A "settling person" was "a person who at the time of submission has paid or promised to pay money or anything of monetary value to a claimant at any time in consideration of potential liability ... with respect to the personal injury, property damage, death, or other harm for which recovery of damages is sought." TEX. CIV. PRAC. & REM.CODE § 33.011(5).
Our analysis of whether Central Texas is a settling person under Chapter 33 turns on a question of statutory construction. A question of statutory construction is a legal one which we review de novo, "ascertaining and giving effect to the Legislature's intent as expressed by the plain and common meaning of the statute's words." Duenez, 237 S.W.3d at 683 (citing Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004)); see also Leland v. Brandal, 257 S.W.3d 204, 206 (Tex.2008) (citing Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000)) (observing the necessity of a court determining and giving effect to the Legislature's intent in construing a statute).
As noted, the applicable version of Chapter 33 defined "settling person" as a person who, at the time of submission, has paid or promised to pay anything of value to a claimant in consideration of liability. C & H Nationwide, 903 S.W.2d at 320. We apply the plain meaning of these words to the facts before us. Here, Central Texas had filed for bankruptcy, but its insurer deposited, on the bankruptcy court's order, the limits of its policy into the court's registry for payment to the Plaintiffs. Central Texas also agreed to pay the claimants $7,000 a year for five years. There is no question that the claimants who chose to obtain funds from the Apportionment Plan "settled" with Central Texas—they received money in exchange for a release of Central Texas's liability. But the Plaintiffs chose to participate in the Litigation Plan, which they claim could not constitute a settlement due to its uncertain and adversarial nature at the time of submission in the trial court.
As the court of appeals observed, all the parties in the bankruptcy court engaged in extensive negotiations over the division of the funds among the litigants, and Central Texas and its insurer did not oppose tendering the funds into the court's registry or participating in mediation. Thus, Central Texas definitely paid something of monetary value to the claimants, including the Plaintiffs—$5 million in insurance proceeds, plus $7,000 annually—in respect to its potential liability, and the Plaintiffs negotiated for, and were the ultimate recipients of, some of these proceeds. Central Texas was further discharged from tort liability in the bankruptcy court on approval of its reorganization plan, which the Plaintiffs approved. Although the Litigation Plan was arguably not styled a settlement by the claimants or bankruptcy court, it had all semblances of a settlement. See Ratcliff v. Fibreboard Corp., 819 F.Supp. 584, 588-89 (W.D.Tex.1992) (concluding that agreement was a final settlement under Chapter 33, despite language in the agreement to the contrary). We hold, under these facts, that Central Texas is a settling person, and the trial court should have submitted a question to the jury concerning Central Texas's proportionate responsibility as such.
The Plaintiffs advance several arguments supporting their position that Central Texas cannot be considered a settling person under the applicable version of Chapter 33. We address each in turn. First, the Plaintiffs contend that the uncertain and adversarial nature of the Litigation Plan renders the Plan a form of litigation. One group of claimants—those who elected to participate in the Apportionment Plan—did immediately collect their proportion of the insurance funds, while those who elected to participate in the Litigation Plan deferred their receipt of the funds. Our inquiry, then, is whether electing to defer the collection of funds permits the Plaintiffs to deny Central Texas's status as a settling person. We conclude
Further, even though the Plaintiffs chose not to approve distribution from the Litigation Fund before the hearing in front of the special judge, the hearing was not adversarial in nature and the end result of the hearing was certain before it began. Central Texas was not present at the hearing and, of course, had no reason to be present since it had irrevocably paid money into the court's registry in exchange for a release from liability. Thus, the hearing lacked the adversarial nature the Plaintiffs contend existed. The Plaintiffs argue that the amount each claimant might have received following the hearing was uncertain. But the Litigation Plan capped the amount of each claimant's recovery at 110% of that determined by the mediator, and each participant in the Litigation Plan received within two percent of the amount determined by the mediator, with one exception. Even if the exact amount each claimant might have received was uncertain, there was little uncertainty that each Plaintiff was going to receive some amount. The statute does not require certainty in the actual amount of the money or thing of monetary value—just the promise that the person will receive something of value. TEX. CIV. PRAC. & REM.CODE § 33.011(5);
Second, the Plaintiffs contend that Central Texas's release from liability in the bankruptcy court was involuntary under federal bankruptcy law, and thus cannot constitute a settlement. See In re Arrowmill Dev. Corp., 211 B.R. 497, 503 (Bankr.D.N.J.1997). But to hold that the definition of "settling person" requires a voluntary release of claims would compel us to insert language into the statute that is not there. See Fortis Benefits v. Cantu, 234 S.W.3d 642, 649 n. 41 (Tex.2007) (noting that courts "should not by judicial fiat insert non-existent language into statutes"). In any event, it is inaccurate to describe Central Texas's release from liability as involuntary. Central Texas and its insurer engaged in negotiations concerning not only the money to be placed in the bankruptcy court's registry and the manner in which funds were to be allocated, but also whether or not Central Texas was to be released from liability. When the Plaintiffs voted in favor of approving Central Texas's reorganization plan, they
Third, the Plaintiffs contend that there was uncertainty "at the time of submission." TEX. CIV. PRAC. & REM.CODE § 33.011(5) (requiring the payment or promise to pay something of monetary value to have occurred "at the time of submission" in order for a person to be considered a "settling person") (emphasis added).
Fourth, the Plaintiffs argue that the proper vehicle for proportioning some share of Central Texas's potential liability would have been through its joinder as a responsible third party. Under the applicable version of Chapter 33, a responsible third party was defined as a person (1) over whom the court can exercise jurisdiction, (2) who was not sued by the claimant, and (3) who is or may be liable for all or part of the damages claimed against the named defendant. TEX. CIV. PRAC. & REM. CODE § 33.011(6).
Fifth, the Plaintiffs contend that to find Central Texas a settling person will confuse settlement jurisprudence and overbroadly designate a person as settling any time the person deposits funds in a court's registry. We disagree with this assertion. We do not hold that a deposit of funds in a court's registry is always akin to a settlement. Rather, it is so when, as here, the negotiations and terms of an agreement in every way resemble a settlement. When this is the case, we must define it as what it is—a settlement. As discussed before, Central Texas and its insurer did not simply deposit funds in the bankruptcy court's registry. They negotiated the terms of the deposits with the claimants and entered into a mediated agreement where the claimants could either accept the funds immediately or defer acceptance to a later date, and Central Texas was released from liability. Our holding will also have no adverse effect on parties in bankruptcy proceedings or in settlement negotiations. To the contrary, parties in bankruptcy and related litigation will know that if they enter into an agreement that in all respects resembles a settlement, they will be deemed settling persons in related state litigation for purposes of Chapter 33.
Finally, the Plaintiffs point to statements made both in documents in the bankruptcy court
CHIEF JUSTICE JEFFERSON asserts that we improperly construe the circumstances under which the Plaintiffs pursued their claims in the bankruptcy court. We respectfully disagree. As discussed above, the portion of the Apportionment Plan concerning the Litigation Plan specifically provided that the Litigation Plan participants could agree at any time to distribution of Litigation Funds to any or all participants, provided that it was done in
Chapter 33 expresses the Legislature's intent to hold defendants responsible for only their own conduct. Its purpose is to hold each person "responsible for [the person's] own conduct causing injury." Duenez, 237 S.W.3d at 690. "This is consistent with a fundamental tenet of tort law that an entity's liability arises from its own injury-causing conduct." Id. We therefore hold that the trial court erred in refusing to submit a question to the jury concerning Central Texas's proportionate responsibility as a settling person.
For the foregoing reasons, we affirm the court of appeals' judgment and remand the case to the trial court for further proceedings consistent with this opinion.
Chief Justice JEFFERSON filed an opinion, dissenting in part.
Justice GREEN did not participate in the decision.
Chief Justice JEFFERSON, dissenting in part.
At the time this case was submitted to the jury, James Hinton
Former section 33.011—the statutory provision applicable here—defined "settling person" as:
Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, § 2.07, 1987 Tex. Gen. Laws 37, 41 (amended in 1995 and 2003) (current version at TEX. CIV. PRAC. & REM.CODE § 33.011) (emphasis added). Because the statute stipulated that a settling person was one who, "at the time of submission" of the jury question, had paid or promised to pay, reviewing courts cannot consider a post-submission monetary exchange when determining whether a party was a settling person. See Knowlton v. U.S. Brass Corp., 864 S.W.2d 585, 598 (Tex.App.-Houston [1st Dist.] 1993) ("[A] party who settles after objections are made to the charge, after the charge is read to the jury, and after closing arguments, although before the jury begins deliberating, is not a settling person because the settlement had not been effected at the time of submission."), aff'd in part and rev'd in part on other grounds, sub nom. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644 (Tex. 1996); Gilcrease v. Garlock, Inc., 211 S.W.3d 448, 454-55 (Tex.App.-El Paso 2006, no pet.) (holding that settlement agreements cannot be contingent on any other outcome, at the time of submission, in order to satisfy chapter 33).
At the time the proportionate responsibility question was submitted to the jury, and throughout the course of the trial, Hinton had not settled any claims with Central Texas, and the funds that Central Texas placed in an interest-bearing account were never promised to any particular claimant. The bankruptcy court rejected the notion that the funds had a guaranteed trajectory, pointing to various contingencies, including the possibility that "some [of the claims] could be adjusted to zero." As a historical fact, of course, "each participant in the Litigation Plan received within two percent of the amount determined by the mediator, with one exception," 329 S.W.3d at 502, and "the Plaintiffs negotiated for and were the ultimate recipients of some of these proceeds," id. at 501. But those facts chronicle Hinton's status after submission, which is irrelevant under the statute. The trial court appropriately viewed Hinton's status at the time of submission, as no one could have known at that point whether Hinton would recover any of the remaining funds.
The Apportionment and Litigation Plans do, in some ways, bear the marks of a
Central Texas' insurers deposited the $5 million policy limits into the bankruptcy court's registry to set aside costs for the multiple bus crash claimants. Central Texas pledged to pay an additional $7,000 per year for five years, making the total amount available to such claimants around $5,035,000. Claimants were given two options regarding disbursement: (1) they could join the "Apportionment Plan," in which a mediator would delegate a percentage of liability to each defendant, after which participating claimants could either immediately collect funds, or receive an apportionment in future litigation; or (2) claimants could join the "Litigation Plan," in which participants chose a special judge, decided on the form of a proceeding, and ultimately reasserted their claims. As the bankruptcy judge noted, recovery under the Litigation Plan was contingent on proof that the defendants' negligence "was a proximate cause of [the claimants'] injuries and/or damages. And then they had to prove, if they met that burden, the extent of the damages." Based on the evidence presented, the special judge would make new liability determinations, assign amounts owed, and, if enough funds remained, allot those funds accordingly. Hinton chose the Litigation Plan.
The bankruptcy judge summarized the plans as follows:
(Emphasis added.)
To further complicate matters, the bankruptcy judge recognized that other potential parties later appeared to be "entitled to recover some of the [remaining] two and half million," and that it may "turn[] out, for a number of reasons, that the litigation plan claimants are not entitled to it." As to this potential outcome, the judge noted that Litigation Plan claimants could be left in the cold:
Consequently, Hinton, as a "litigation fund claimant," could not count on recovering any of the money set aside by Central Texas.
At the time the jury question was submitted, however, no party had attempted to enter into any such agreement, and even if any of them had, there was no guarantee that every other participant in the Litigation Plan would have agreed to such a distribution in writing. The parties rejected this option by refusing to enter into the Apportionment Plan in the first instance.
In fact, the above provision more likely referred to those parties who had not yet decided whether to join the Litigation Plan, and therefore had an option to join the Apportionment Plan before re-litigating their claims under the Litigation Plan. The preceding provision in the order approving the Apportionment Plan supports this interpretation, since it mandates that
(Emphasis added.) The Apportionment Plan gave parties an opportunity to collect full or partial distribution of the funds. By rejecting this option, Hinton and others explicitly chose to re-litigate their claims. As the Court concedes, "the Litigation Plan did not set a floor on each claimant's possible individual recovery." 329 S.W.3d at 505.
While the Court correctly notes that "[t]he statute does not require certainty in the actual amount of the money or thing of monetary value," 329 S.W.3d at 502 (emphasis added), the statute does require certainty as to the eventual receipt of money or thing of monetary value. See TEX. CIV. PRAC. & REM.CODE § 33.003; Hall v. White, Getgey, Meyer & Co., LPA, 347 F.3d 576, 582-83 (5th Cir.2003) (applying Texas law), rev'd in part on other grounds, 465 F.3d 587 (5th Cir.2006); Gilcrease, 211 S.W.3d at 454-55.
The Court cites Gilcrease v. Garlock for the proposition that unconditional promises to pay are valid settlements for purposes of chapter 33. See Gilcrease, 211 S.W.3d at 455. Gilcrease holds that unconditional promises to pay are valid settlements, however, only so long as the promises are not contingent on any outside factors, such as related litigation proceedings. In Gilcrease, settling defendants had yet to pay the full amount they had promised claimants, but they had made unconditional promises to pay. Id. Payment was not contingent on bankruptcy proceedings, or on any other future arrangements between the parties. Id. The Gilcrease court distinguished the case before it from two other cases that themselves more closely bore a resemblance to
In McNair, the Fifth Circuit held that notes promising payment did not constitute a settlement if their ultimate payment depended on the outcome of insurance litigation. McNair, 890 F.2d at 755-56. In that case, asbestos plaintiffs received notes from two defendants who were in the process of litigating claims with their insurers. Id. Despite the fact that the notes constituted promises to pay, the court held that because payment was contingent on some future litigation—no matter how likely it was to end in their favor—the promise of payment could not be considered a settlement within the terms of the statute. Id.
The Gilcrease court next looked to a federal district court case, Cimino v. Raymark Industries, Inc., 751 F.Supp. at 656. In that case, plaintiffs reached a non-cash settlement agreement with an insolvent defendant who promised to pay a specified sum of money over a period of years. Id. The court held that, due to the defendant's insolvency, the settlement agreement was more like a promissory note, since "[p]ayment [was] contingent on the outcome of the unstable ... bankruptcy proceedings and on the continued financial viability of the [defendant]." Id.
Like the defendant in Cimino, Central Texas (and its insurer) agreed to deposit money in the bankruptcy court. Hinton's receipt of these funds, however, remained contingent on the outcome of the Litigation Plan proceedings, and on the existence of additional claims from outside parties. Despite Central Texas' deposit of insurance funds, and its promise to pay a specified amount over a period of years, Hinton remained at risk of not recovering, and therefore, the agreement was at best akin to the "promissory note" in Cimino.
Bankruptcy courts often provide a "settle or litigate" option like the one used here. See Georgene Vairo, Mass Torts Bankruptcies: The Who, The Why and The How, 78 AM. BANKR.L.J. 93, 102 (2004) ("If a settlement was not reached, the claimant could elect mediation, binding arbitration, or traditional tort litigation."). Courts can distinguish between parties who choose to settle (like those under the Apportionment Plan), and those who choose to litigate (like those under the Litigation Plan). This ready distinction is evidenced by the terms of the bankruptcy court's order approving and describing the two plans:
(Emphasis added.)
I would hold that the court of appeals erred in reversing the trial court's refusal to submit Central Texas as a "settling person." Because the Court's holding regarding Chapter 33 neither complies with the statute ("at the time of submission"), nor properly construes the circumstances under which Hinton pursued his claims within the bankruptcy proceedings, I respectfully dissent from that part of the Court's judgment.
While the report meets the requirements for judicial notice, see TEX.R. EVID. 201; Office of Pub. Util. Counsel v. Pub. Util. Comm'n, 878 S.W.2d 598, 600 (Tex.1994) (per curiam) ("To be the proper subject of judicial notice, a fact must be capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Judicial notice is mandatory if requested by a party and [the court is] supplied with the necessary information." (quotation marks and citation omitted; alteration in original)), and we therefore take judicial notice of it, we fail to see the relevance of the report to NHTSA's regulatory function. NHTSA did not commission the report, and it did not change any federal safety standard in response to the report. Because only federal law can preempt contrary state law—which, in that context, is the domain of NHTSA through its rule-making process—this report does not affect our analysis of the preemption issues. See Fellner v. Tri-Union Seafoods, L.L.C., 539 F.3d 237, 243 (3d Cir.2008) ("[W]e must reiterate, lest the analysis become unmoored, that it is federal law which preempts contrary state law; nothing short of federal law can have that effect."). Even if NHTSA was aware of the report, NHTSA's non-action in response cannot reasonably be interpreted as more than preserving the status quo, which at that time meant no seatbelt requirement in motorcoaches like the one at issue here. NHTSA's inaction regarding this report cannot be interpreted as expressing a policy forbidding seatbelts, or even as a deliberate decision not to require seatbelts.
Former 15 U.S.C. § 1392(d) (1988) (current version at 49 U.S.C. § 30103(b)).
