Johnson

Ketchum

AUSTIN, Texas -– West Virginia's Supreme Court of Appeals erred in a decision on auto safety last year, according to the Supreme Court of Texas.

Justices in Austin on Dec. 17 agreed that Justices in Charleston improperly dismissed an accident victim's suit against Ford Motor Company in Kanawha County.

The West Virginia court found that federal regulations allowing tempered glass windows preempted a claim that Ford should have provided laminated glass.

The Texas court, on the other hand, affirmed jurors who found a bus manufacturer should have installed laminated windows.

The Texans found no evidence that federal regulators intended to disallow states from requiring advanced glazing materials in side windows.

They found the West Virginia court erred by concluding that merely because regulators chose not to require something for policy reasons, states may not do so.

Texas Justice Phil Johnson wrote, "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."

State supreme courts rarely criticize decisions of other supreme courts so directly, but the Texans apparently aimed for a preemptive strike of their own.

From now on, any lawyer outside of West Virginia who cites the West Virginia opinion can count on an adversary to cite the Texas opinion.

Vehicles in both cases crashed on interstate highways, with little else in common.

The West Virginia crash happened in 2001, as Francis Morgan drove his 1999 Ford Expedition on Interstate 79 in Braxton County.

The vehicle rolled, his window broke, his arm flew out, and the door panel pinned his arm to the ground.

Wife Josephine Morgan suffered injuries, too, so she sued Ford and her husband.

He filed a cross claim against Ford.

Ford moved for summary judgment on federal preemption, and Circuit Judge Jennifer Bailey-Walker granted it in 2007.

The Supreme Court of Appeals affirmed her, finding the claim would foreclose one of the glazing options that federal regulations allowed.

Justice Menis Ketchum wrote that juries, one by one, could eliminate all options.

In the West Virginia case, the Justices ruled for Ford. Ketchum wrote that federal regulations prevented Ford from being sued for using tempered glass in a car side window.

And it was noted in the Texas opinion that the South Carolina and Tennessee supreme courts adopted the West Virginia decision.

The Texas crash happened in 2003, on I-35 near Waco, as a chartered bus took friends to a concert.

In fog, the driver tried to avoid one collision and then another. The bus crossed the median, hit a sport utility vehicle, spun, tipped over and slid.

Windows broke and passengers poured out in all directions. Five died.

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