2011-144, Robert Pelkey v. Dan's City Used Cars, Inc. d/b/a Dan's City Auto Body

The plaintiff, Robert Pelkey, appeals the decision of the

and orally), for the defendant. Downs Rachlin Martin PLLC on the brief

C. Shaughnessy on the brief and orally), for the plaintiff.

to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as violated: (1) the Consumer Protection Act, see p. 2 The plaintiff brought this lawsuit in 2009, alleging that the defendant

Waterfield v. Meredith Corp. deregulating the trucking industry, preempted the plaintiff’s claims. See

a third party, but the plaintiff received no remuneration for his loss. drawn from them, in the light most favorable to the non-moving party. the car had been sold at public auction. The defendant later traded the car to Aviation Administration Authorization Act of 1994 (FAAAA), a federal law we consider the affidavits and other evidence, and all inferences properly arrange for the return of his vehicle, the defendant falsely told the attorney that 491:8-a, III (2010). In reviewing the trial court’s grant of summary judgment,

motion for summary judgment on the grounds that a provision of the Federal days later. After the attorney informed the defendant that his client wished to possession of a bailor’s property. The trial court granted the defendant’s and that the moving party is entitled to judgment as a matter of law.” RSA trial court’s application of the law to the facts de and (3) the common law duty of a bailee to exercise reasonable care while in that there is a genuine issue for trial. RSA 491:8-a, IV (2010). We review the answers to interrogatories, or admissions, must set forth specific facts showing

709.

make inquiries into its location. His attorney learned that the defendant had requirements for collection of those charges by selling the vehicle at auction; returning home and learning that his car was missing, he had his attorney in his pleadings, but his response, by affidavits or by reference to depositions, judgment. Id. The adverse party may not rest upon mere allegations or denials II. Federal Preemption – General Principles entitled to judgment as a matter of law, we will affirm the grant of summary evidence discloses no genuine issue of material fact, and if the moving party is

depositions, answers to interrogatories, and admissions on file, together with for reasonable charges incident to towing and storage and prescribing the A moving party is entitled to summary judgment “if the pleadings, to amputate his left foot, during which he suffered a heart attack. After

U.S.C. § 14501(c)(1) (2006). This appeal followed.

chapter 262, a statute permitting a towing company to place a lien on a vehicle been towed. Soon thereafter, he was admitted to the hospital for a procedure RSA 358-A:2 (2009); (2) RSA to bed due to a serious medical condition and did not realize that his car had to move their cars during snowstorms. At the time, the plaintiff was confined

Honda Civic pursuant to a parking policy at Colonial Village requiring tenants defendant. In his writ, the plaintiff alleged that the defendant towed his 2004 emption cases, and particularly in those in which Congress has legislated . . .

p. 3 variety and quality.” Rowe v. New Hampshire Motor Transp. Ass’n

Congress does not cavalierly pre-empt state-law causes of action. In all pre-

forces, thereby stimulating efficiency, innovation, and low prices, as well as

independent sovereigns in our federal system, we have long presumed that preemption provisions like § 14501(c)(1). “First, because the States are Two general principles guide courts in the interpretation of express

routes, and services that reflect maximum reliance on competitive market burdensome state and municipal regulations. See 3 the airline and shipping industries was to help “assure transportation rates, Congress’s goal in enacting § 14501(c)(1) and similar provisions affecting

§ 13102(14) (2006), are motor carriers under the terms of the act. Columbus v. entities that provide “motor vehicle transportation for compensation,” 49 U.S.C. transportation of property.” 49 U.S.C. § 14501(c)(1). Towing companies, as free motor carriers operating in interstate commerce from unreasonably

trucking industry in 1980, see

601(a)(1), 108 Stat. 1605). 440 (citing H.R. Conf. Rep. No. 103-677, at 87 (1994) and Pub. L. 103-305 §

provision for combined motor-air carriers). In doing so, Congress intended to Act of 1995, 109 Stat. 899; see also 49 U.S.C. § 41713(b)(4)(A) (2006) (similar without the prior consent of the vehicle’s owner. Administration Authorization Act of 1994, 108 Stat. 1605-06; ICC Termination laws relating to the price of towing services if such services are performed Congress precluded states from regulating the industry. See Federal Aviation that preemption does not apply to the authority of a state to enact or enforce Motor Carrier Act of 1980, 94 Stat. 793 (1980), economic goal. In 1994, over a decade after Congress had deregulated the Beauchemin 364, 371 (2008) (quotations omitted). Its history reflects this free market

states and their subdivisions from enacting or enforcing any law “related to a (1994), and the ICC Termination Act of 1995, 109 Stat. 899 (1995), preempt The Interstate Commerce Act, as amended by the FAAAA, 108 Stat. 1606

exceptions to the general preemption clause is § 14501(c)(2)(C), which provides Ours Garage & Wrecker Service, Inc., 536 U.S. 424, 430 (2002). Among the possible, construe that language according to its plain and ordinary meaning.

Assoc. v. Governor, 161 N.H. 378, 385 (2011). but in the context of the entire statutory scheme. New Hampshire Health Care

, 161 N.H. at 658. We do not read words or phrases in isolation,

interpreting a statute, we first look to the language of the statute itself, and, if and precedent. Cf. State v. Buchanan, 155 N.H. 505, 506 (2007). When is a question of federal law, we interpret it in accordance with federal policy Beauchemin, 161 N.H. 65 p. 4 4, 658 (2011). Because the meaning of § 14501(c)(1) We also review the trial court’s statutory interpretation de novo. State v. not unlimited. As the Supreme Court in Morales

to” airline rates, routes, or services. Id Despite the expansive language of § 1 p. 4 4501(c)(1), its preemptive reach is state actions would be preempted if they had “a connection with, or reference

procedures created a direct “connection with” motor carrier services – i.e. to employ only delivery companies that follow particular delivery service

enacted the preemption provision. See Morales that Congress sought to displace when it deregulated the airline industry and at 367-68. enforcing any law “related to a price, route, or service of an air carrier.” See also Rowe, 552 U.S. 1 That provision, now codified at p. 4 49 U.S.C. § 41713(b) (2006), prohibits states from enacting or

industry, other courts confronting disputes in this field have reasoned that phrase “related to” was “deliberately expansive” and adopted a standard that retained the power to prohibit unfair pricing and advertising in the airline present in Morales because the United States Department of Transportation likely did not intend such a result. See id. at 390-91. While that fear was not delivery of tobacco within the state; Maine’s attempt to require tobacco retailers motor carrier “carte blanche to lie and to deceive consumers” because Congress preemption may not apply where an interpretation of § 1 p. 4 4501(c)(1) would give a , 504 U.S. at 390 (citing gambling and prostitution laws). Moreover, too tenuous, remote, or peripheral a manner to have pre-emptive effect.” protection laws upon airline rates constituted precisely the kind of regulation ADA, some state actions may affect motor carrier rates, routes, and services “in § 14501(c)(1) is construed broadly. Cf made clear regarding the

transportation and delivery of goods). Congress is the ultimate touchstone in every pre-emption case.” Id would satisfy state consumer protection laws. The Court reasoned that the, the

that § 1 p. 4 4501(c)(1) preempts two provisions of a Maine law regulating the similar to § 14501(c)(1), also Rowe, 552 U.S. at 371-73 (holding

states’ attempts to impose substantive interpretations of their consumer Federal precedent makes clear that the “relating to” language in. at 38 p. 4 4. Under that standard, the

emption is guided by [the] oft-repeated comment . . . that the purpose of developed, and sought to enforce against airlines, advertising guidelines that consumer protection statutes.” Id. at 378. Several state attorneys general had deceptive airline fare advertisements through enforcement of their general of Congress.” Medtronic, Inc. v. Lohr superseded by the Federal Act unless that was the clear and manifest purpose 1 “pre-empts the States from prohibiting allegedly held that the Airline Deregulation Act (ADA), a law with a preemption provision 50 p. 4 4 U.S. 374, 383-84 (1992). In Morales, the United States Supreme Court

(quotations omitted).

and citations omitted). Second, “analysis of the scope of the statute’s pre-

assumption that the historic police powers of the States were not to be in a field which the States have traditionally occupied, we start with the purpose of Congress.” Wyeth v. Levine p. 5 not to be superseded by the Federal Act unless that was the clear and manifest start with the presumption that “the historic police powers of the States [are]

custody to collect towing and storage charges secured by a lien. As noted, we

pertaining to the manner in which a towing company disposes of vehicles in its We are convinced that § 14501(c)(1) does not preempt state laws

with, the towing services provided by Dan’s City.”

all of the plaintiff’s claims because they “all have a reference to, or a connection carrier.” The defendant, on the other hand, argues that § 14501(c)(1) preempts owed, and do not relate to transportation rates, routes, and services of a motor

enforcement of a statutory lien involving the sale of the vehicle to collect money

III. Application of § 14501(c)(1) to Plaintiff’s Claims

laws have a “significant impact” related to Congress’s deregulatory objectives. Supreme Court in Morales noted that preemption occurs at least where state

related to price – because it was raised for first time on appeal), Weatherspoon

Compare precedents from other jurisdictions reveals mixed authority on that question.

Against this backdrop, the plaintiff contends that § 14501(c)(1) does not sale, and failure to comply with state laws governing the notice and sale of

preempted). address argument under § 14501(c)(2)(C) – the nonconsensual towing exception App. 2005) (state statute regarding lien-sale-preparation fees held not Agency Corp. v. Sevel’s 24 Hour Towing Serv., 34 Cal. Rptr. 3d 120 (Cal. Ct. Feb. 28, 1997) (regulation of storage rates held not preempted), and CPF Public Towing Ass’n v. State, No. 96-454ML, 1997 WL 135571, at *8 (D.R.I. dispose of a vehicle to collect a debt secured by a lien. Our review of the company’s allegedly improper towing were preempted), with Rhode Island S.W.3d 444, 449 (Tex. Ct. App. 2005) (holding claims based on towing

its object and policy.” Kelly v. Robinson claims such as failure to investigate the identity of a vehicle’s owner, improper v. Tillery Body Shop, Inc., 44 So. 3d 447, 458 (Ala. 2010) (holding preempted

856 (6th Cir. 2008) (holding conversion claims preempted, but declining to

Ware v. Tow Pro Custom Towing and Hauling, 289 Fed. App’x 852,

displaces state laws governing the manner in which a towing company may The Supreme Court has had no occasion to decide whether § 14501(c)(1)

intended; they must, therefore, “look to the provisions of the whole law, and to care not to construe preemption provisions more broadly than Congress World Airlines, Inc., 160 F.3d 1259, 1266 (9th Cir. 1998). Courts must take the tortious conduct of motor carriers and airlines. See, e.g., Charas v. Trans Congress did not intend to leave private parties without any recourse against routes, or services. See p. 6 motor carriers as movers of property for special treatment as to their prices, independent sovereigns in our system, but to prevent state laws from targeting

to invalidate the entire chapter so far as it applies to towing companies. Cf individual provisions of that chapter should be preempted, we are not inclined benefit of moderately developed arguments containing specific reasons why

to operate as motor carriers from the traditional oversight of states as

(e.g. activities that are normally carried out in the course of transporting property of things in commerce without also preempting state laws respecting other

which provisions of RSA chapter 262 it believes are preempted. Without the

objectives; the goal was not to indiscriminately remove businesses that happen a motor carrier in any capacity transportation of property” follows naturally from Congress’s deregulatory The inclusion in the preemption provision of the clause “with respect to the 2003) (“Absent argument, we decline to pick through the many detailed Independent Towers, WA v. State, Washington, 350 F.3d 925, 930 (9th Cir. would hardly make sense to preempt only state laws respecting the movement.

id

§ 14501(c)(1). We note that the defendant has not identified with any clarity conclude that the plaintiff’s claims survive under the plain terms of Applying the statutory text to the facts and legal claims at issue, we

does not apply simply because state laws relate to the price, route, or service of, storage and handling). packing, unpacking, and interchange of . . . property.” 49 U.S.C. § 13102(23). As an initial matter, the text of § 14501(c)(1) makes clear that preemption

The activities listed in the statute are incidental to the movement of property; it dispose of them to collect towing and storage debts. Ours Garage, 536 U.S. at 449 (Scalia, J., dissenting). causes of action challenging the manner in which custodians of towed vehicles carrier . . . with respect to the transportation of property”) (ellipses in original);

related to th[e] movement [of property], including . . . storage, handling, of preemption”). The statute defines “transportation” to include “services respect to the transportation of property” serves to “massively limit[] the scope . at 449 (Scalia, J., dissenting) (observing that the modifying clause “with

that, in enacting § 14501(c)(1), Congress did not intend to displace state law preempts state regulation “related to a price, route, or service of any motor of property. See Ours Garage, 536 U.S. at 429 (noting that the FAAAA of the free market. See the price, route, or service of a motor carrier with respect to the transportation industry, thereby creating a patchwork of laws and undermining the operation; rather, it applies only when state laws relate to

the FAAAA’s purpose and text, several considerations in this case convince us

states from imposing their own regulatory impediments on the trucking Morales, 504 U.S. at 390. The purpose of enacting the FAAAA was to prevent the movement

p. 7 charges, see

§ 14501(c)(1), nor a “clear and manifest purpose” in the FAAAA to displace

towing and storing a vehicle, the manner in which it does so is not incidental to

towing company to place a lien on the vehicle for reasonable towing and storage

the notice at least once in a newspaper of general circulation in the area.” efforts to dispose of unclaimed vehicles promotes the deregulatory objective of

debts. When a towing company seeks to recover the costs incurred from transportation of property”; they are state laws with respect to the collection of presumed not to use words that are superfluous or redundant.”); Appeal of The provisions of RSA chapter 262 are not state laws “with respect to the towed. transportation of property” meaningless. Cf time of removal. RSA 262:36-a, I. The plaintiff’s car was less than five years old when it was unduly strain its plain terms and render the language “with respect to the 2 Notice by publication is not required, however, if the vehicle is more than five years old at the

driven. The next provision, RSA 262:33 (2004 & Supp. 2011), permits the i.e. including when vehicles have been stolen, abandoned, or appear unsafe to be days before the sale and, if the value of the vehicle exceeds $100, by publishing authorizes removal and storage of vehicles under delineated circumstances preempting state-based claims against towing companies arising out of their its language meaningless). Furthermore, we can discern no reason why Barry, 142 N.H. 284, 287 (1997) (we will not interpret a statute so as to render

(2005) (“All words of a statute are to be given effect, and the legislature is

deceptive conduct or acting negligently. Reading § 14501(c)(1) differently would , by providing notice and holding a public auction, and not engaging in of the custodians of that property to accommodate the vehicle owners’ rights – rights of property owners to recover their property, and the parallel obligations more public places in the town or city where the property is stored, at least 14 recover vehicle towing and storage costs. RSA 262:32 (2004 & Supp. 2011) of property by a motor carrier. Rather, it is incidental to the however, RSA 262:38 (2004) requires the custodian to provide notice in “2 or to RSA 262:36-a, :37 (2004 & Supp. 2011). In order to conduct an auction,

(2004). incidental to the sale, must be distributed to the vehicle’s owner. RSA 262:39 proceeds of the sale, after accounting for the amount of the liens and expenses

RSA chapter 262 prescribes the process by which a towing company may

removal, the storage company may sell the vehicle at a public auction pursuant to the provisions cited in the parties’ briefs. p. 7 charges, see RSA 262:33, II. If a vehicle is not claimed within thirty days after entitled to recover the vehicle and a release of the lien upon payment of those

RSA 262:33, I, and provides that the owner of the vehicle is

with a preemption theory not articulated to us.”). We thus confine our analysis sections and subsections in an effort to match the statutes and regulations carriers. Cf

p. 8 have nothing to do with the transportation all. See

and equalizing the competitive playing field between motor carriers and air

in the conduct of any trade or commerce.” RSA 358-A:2 (2009). Those claims negligence establish baseline rules of acceptable conduct common to to the plaintiff, the defendant committed an “unfair or deceptive act or practice requirements of RSA chapter 262, common law negligence, and the Consumer vehicle by trading it instead of taking adequate measures to ensure its return

regulatory subject far removed from Congress’s aim of promoting free markets

different standards relating to price, route, or service. Common-law torts like which the plaintiff relies in his writ – including the notice and auction deregulatory objectives or impose upon the trucking industry a patchwork of the plaintiff’s vehicle in response to his counsel’s inquiry and disposing of the proceed against the defendant does not “significantly impact” Congress’s dispose of the vehicle to collect on a debt created by operation of state law – a governs the manner in which a company in possession of a towed vehicle may significantly affect Congress’s goals under the facts of this case because it

competitive advantages enjoyed by air carriers . . . .”); see

conclusion that § 14501(c)(1) does not preempt them. The state laws upon bailor. Similarly, the CPA claim alleges that, by misrepresenting the status of the transportation of property,” another statutory ground supports the with the plaintiff’s claims under RSA chapter 262, allowing these two claims to take reasonable care of the property in its custody and ensure its return to the Even assuming the plaintiff’s claims rest on state laws “with respect to negligence claim contends that the defendant violated its duty as a bailee to

103-677, at 85, 87 (1994), reprinted in 1994 U.S.C.C.A.N. 1715, 1757, 1759.

economic regulation in order to provide motor carriers . . . the same (“Congress intended to divorce the motor carrier industry from state and local

. Cole v. City of Dallas, 314 F.3d 730, 734 (5th Cir. 2002)

the creditor has sold it in accordance with the terms of RSA chapter 262. As the defendant’s conduct in disposing of the plaintiff’s vehicle. The plaintiff’s

ordinary care is a general background rule against which all individuals order (Stevens, J., concurring in part and dissenting in part) (“[T]he standard of American Airlines, Inc. v. Wolens, 513 U.S. 219, 236-37 (1995)

after paying the appropriate costs or the remainder of the vehicle’s value once and the owner of a towed vehicle, who is entitled to recover either the vehicle negligence and Consumer Protection Act claims because they, too, arise out of of rights between a lien creditor, who is entitled to recover the value of the debt, This reasoning applies with equal force to the plaintiff’s common law

the transportation of property. private remedies against tow truck companies for conduct wholly unrelated to such claims to proceed in Charas

p. 9 carrier’s “service.” The Ninth Circuit Court of Appeals, for example, allowed

notwithstanding that tort claims may relate in some peripheral way to a motor under § 14501(c)(1) or its mirror provision applying to air carriers many courts have concluded that personal injury tort claims are not preempted

does not belong. Cf

bailee, relates to the towing company’s service. As the defendant recognizes,

nonconsensual towing, the company removes a vehicle from a place where it

state authority. Cf Congress does not intend to displace laws operating in a field of traditional

common law negligence claim, based upon the towing company’s duty as a vehicle in its possession, see Similarly unavailing is the defendant’s argument that the plaintiff’s

consensual towing, the company moves a vehicle from one place to another; for service. The “service” of a towing company is the moving of vehicles. For and auction-related provisions – are too remotely related to a motor carrier’s nexus to the business of towing of vehicles to overcome the presumption that does.”); Hodges v. Delta Airlines, Inc.

the defendant has sought the benefit of state law allowing it to claim a lien on a of towing vehicles. This conclusion has additional force in this case because have some effect on rates, routes, or services, at least at the margin.”). debt collection – an area of the company’s affairs falling well outside its service

efforts to secure its return to the owner, and comply with the statute’s notice constraints on debt collection, those constraints do not bear the requisite effectively would result in the preemption of virtually everything an airline

part and dissenting in part) (“Indeed, every judgment against an airline will auction another person’s property to collect on a debt relates to post-service. Wolens, 513 U.S. at 237 n.2 (Stevens, J., concurring in

companies to attempt to identify the owner of a towed vehicle, make reasonable To begin with, the provisions of RSA chapter 262 – requiring towing towing company’s general “service” indirectly by imposing time and notice required by state law. Notwithstanding that RSA chapter 262 may affect the interpret ‘service’ more broadly is to ignore the context of its use; and, it inconvenience of providing adequate notice and conducting an auction as

against airline not preempted). The manner in which a towing company may (defining service more broadly than in Charas but also holding negligence claim

encompass all possible private civil claims against any motor carrier. selection of markets to or from which transportation is provided. . . . To such things as the frequency and scheduling of transportation, and to the under § 14501(c)(1). Cf. Charas, 160 F.3d at 1265-66 (“‘[S]ervice’ . . . refers to costs, not sufficiently related to a towing company’s “service” to be preempted

meaning of the phrase “relating to” is a broad one, it is not so broad as to

actions in disposing of the plaintiff’s vehicle to recover its storage and towing Protection Act – are, at least as they apply to the defendant’s allegedly wrongful the errant beverage cart in Charas p. 10 rather than his person, we find little material difference between the two. Had

another person’s property after the towing has been completed. The state’s

To the extent that the plaintiff in this case has alleged an injury to his property claim, see

disposing the defendant’s “service,” but they also arise out of the defendant’s act of do the plaintiff’s negligence claims themselves bear only a remote connection to route, or service relating to that role), but upon its role as a custodian of company based not upon its role as an entity that tows vehicles (or the price, upon airline advertising, here the CPA claims are asserted against a towing

principles remains only tangentially related to a motor or air carrier’s services. deprivation of the use of one’s property, as long as the application of those tort The same reasoning applies to the plaintiff’s Consumer Protection Act claims not preempted applies with equal force to tort claims arising from the

greater relation to the airline’s service than the claims asserted here. Not only

Supreme Court decided that the state law guidelines could not be imposed need, or like functions.” Charas a vehicle under the care of a towing company. Unlike in Morales, where the obligation to not act unfairly or deceptively in disposing of – not transporting –

RSA 358-A:2 (2009), because, as alleged here, it arises out of the

The reasoning of those cases holding personal injury and other tort of the vehicle – not towing it.

motor carrier involving delivery process before instead of dislocating his shoulder, his ensuing negligence claim would bear no and therefore not preempted); Kuehne v. United Parcel Service ripped a hole in the passenger’s luggage

blocks, the safe handling and storage of luggage, assistance to passengers in

a negligence claim based on negligent delivery does not relate to service). carrier. See a parcel reaches its destination, 870, 876 (Ind. Ct. App. 2007) (reasoning that, unlike negligence claims against

(reasoning that negligence claims relate to airline service but are policy-neutral cf. Continental Airlines Inc. v. Kiefer, 920 S.W.2d 274, 282-83 (Tex. 1996) refer to “the pushing of beverage carts, keeping the aisles clear of stumbling 1994); Paredes v. Air-Serv Corp., Inc., 251 P.3d 1239, 1248 (Colo. App. 2010); concluded that it did not, reasoning that the “service” of an airline does not Mass. 1999); Sedigh v. Delta Airlines, Inc., 850 F. Supp. 197, 200 (E.D.N.Y. the dislocation of a passenger’s shoulder, and other similar claims. The court 194 (3d Cir. 1998); Somes v. United Airlines, Inc., 33 F. Supp. 2d 78, 83 (D. airline’s services); Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186, emotional distress not preempted because they are too tenuously related to claim against airline for false imprisonment and intentional infliction of

, e.g., Smith v. Comair, 134 F.3d 254 (4th Cir. 1998) (state law

because they are too tangentially related to the service of an air or motor similarly held certain personal injury and other tort claims not preempted

an airline resulting from an accident involving a beverage cart which caused whether the Airline Deregulation Act preempted personal injury claims against disposition of towed vehicles does not require

of their common law rights to recover for death or personal injuries sustained

Weatherspoon

otherwise unlawful conduct by towing companies in the management and statute’s express preemption provision. See brief to assert. Cf company might do in the course of its business, as we read the defendant’s

causes of action, see does not prohibition of protected conduct” but holding that National Labor Relations Act

F.3d at 194 (“It is highly unlikely that Congress intended to deprive passengers “immunity from liability for their tortious conduct”); see also Taj Mahal, 164 We part ways with the Alabama Supreme Court’s decision in (expressing concern that a finding of preemption would effectively grant union this context. See Constr. Workers v. Laburnum Constr. Corp., 347 U.S. 656, 663-64 (1954) inference that Congress did not intend to displace the operation of state laws in Silkwood, 464 U.S. at 251; United and storage costs. Although the lack of a parallel federal remedy for tortious or of a remedy is relevant to understanding the intended scope of a federal person whose vehicle has been towed to retrieve it upon payment of the towing 584 (1981), the United States Supreme Court has made clear that the absence reading § 14501(c)(1) so expansively as to encompass everything a towing read, the theories upon which the plaintiff’s claims rest advance the right of a, e.g., Arkansas Louisiana Gas Co. v. Hall, 453 U.S. 571, manifested a clear intention to immunize certain activities from state law the absence of a remedy alone is no bar to preemption if Congress has [the plaintiff’s] claims are not preempted.” Id significant risk of misinterpretation of federal law and the consequent. at 457 n.4. While it is true that provide an alternative remedy upon preemption is [no] basis for finding that conduct”); Kuehne

, 44 So. 3d 447, which reasoned that “the failure of Congress to

. Charas, 160 F.3d at 1266. injuries of the kind allegedly suffered by the plaintiff also supports the

and intentional infliction of emotional distress), it does militate strongly against operation of a towing company in its capacity as a mover of property. Fairly preempt state enforcement of laws prohibiting violence, defamation,

allow the exercise of state jurisdiction in certain contexts might create a comment, remove all means of judicial recourse for those injured by illegal Cnty. Dist. Council of Carpenters, 436 U.S. 180, 203 (1978) (noting that “[t]o not intend preemption in this context, cf. Sears, Roebuck & Co. v. San Diego

We note, finally, that the absence of any federal remedy for private

where they are not permitted to be. plaintiff has sought to enforce state laws and regulations affecting the everyday F. Supp. 318, 324-25 (E.D. Mich. 1993). This is not a situation in which a

(observing that “[i]t is difficult to believe that Congress would, without

Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 251 (1984)

role has little to do with a towing company’s service of removing vehicles from substantive requirement to refrain from unfair or deceptive practices in that p. 12 12

Reversed and remanded

traditional state police power absent a “clear and manifest” intention to do so.

U.S.C. § 14501(c)(1). wrongful disposition of his vehicle under state law is not preempted under 49 For the reasons stated above, we conclude that the plaintiff’s action for

states’ economic authority over motor carriers of property, not to supersede the DALIANIS, C.J., and HICKS and CONBOY, JJ., concurred.

of traditional state authority. As the Supreme Court stated in Ours Garage. presumption that Congress does not “cavalierly” displace state laws in an area

536 U.S. at 432, 439, Congress’s purpose behind § 14501(c)(1) was to preempt

Congress did not intend such a broad scope of preemption in light of the in air crashes.”). The lack of a remedy is particularly strong evidence that