THE STATE OF SOUTH CAROLINA In The Court of Appeals

Cortland James Eggleston and Rebecca McCutcheon, Appellants,

v.

United Parcel Service, Inc., Rick Fogle, and John Doe, Defendants,

of which United Parcel Ser vice Inc. is the Respondent.

Appellate Case No. 2016-000984

Appeal From Orangeburg County Maite Murphy, Circuit Court Judge

Opinion No. 5686 Heard November 5, 2018 – Filed October 2, 2019

AFFIRMED

Shane Morris Burroughs, of Lanier & Burroughs, LLC, of Orangeburg; Kathleen Che wning Barnes, of Barnes Law Firm, LLC, of Hampton; and Justin Tyler Bamberg, of Bamberg Legal, LLC, o f Bamberg, for Appellants.

George Troy Thames, of Wills on Jones Carter & Baxley, P.A., of Mt. Pleasant; a nd Ryan R. Corkery, of Philadelphia, Pennsylvania, for Respondent.

HUFF, J.: Cortland James Eggleston appeals the trial court's dismissal of his action against United Parcel Service (UPS) for personal injuries he suffered afterUPS failed to timely deliver thy roid medication. His wife, Rebecca McCutcheon, appeals the trial court's dismi ssal of her loss of consortium a ction. Eggleston and McCutcheon (collectively, Appella nts) assert the trial court er red in holding their claims were preempted by federal law. We affirm.

FACTS/PROCEDURAL HISTORY

As a veteran, Eggleston received treatment for his thyroid cond ition from the Veterans Administration (VA) hospital in Charleston. On numero us occasions in the past, UPS delivered shipments of medications from the VA ho spital to Eggleston at his rural Eutawv ille address. On April 11, 2013, Eggleston was expecting a delivery of thyroid medication from the VA Hospital by UPS, but the medication failed to arrive. The VA Hospital communicated with UPS between April 11, 2013, and April 15, 2013 , in an attempt to rectify th e situation. After confirming Eggleston's address , a pharmacist with the VA access ed UPS's records and discovered the package was being held because a correct str eet name was needed. The pharmacist called UPS and spoke with a representat ive who contacted the local driver, Rick Fogle, a nd instructed him to contact Egg leston and make the delivery that date. The pharmac ist also sent a partial refill of the medication by overnight delivery as Appellants had declined to acquire a part ial supply from a local pharmacy due to transpor tation and financial issues.

Appellants also contacted UPS, which informed them Eggleston's address did not exist or could not be located, des pite UPS's previous delivery of medications to the address. Eggleston's condition wo rsened into a thyroid storm, causing seizures, congestive heart failure, extreme ly elevated bloo d pressure, ho spitalization, and surgical intervention. UPS finally delivered the medication th irteen days after it had been shipped.

Eggleston brought an action agains t UPS and Fogle for negligenc e and negligent entrustment. McCutcheon brought a similar action for loss of consortium. UPS

moved to dismiss both actions asse rting the state law claims we re preempted by the

the Federal Aviation Administra tion Authorization Act of 1994 ( FAAAA), 49

U.S.C.A. § 14501(c)(1) (West 2016 ). The trial court granted th e motions to dismiss in separate orders. Appe llants filed motions to alter or amend, which the trial court denied. This appeal, which consolidated Appellants ' actions, followed.

STANDARD OF REVIEWThe issue of whether a federal statute preempts state law is a question of law.

Weston v. Kim's Dollar Store , 385 S.C. 520, 526, 684 S.E.2d 769, 772 (Ct. App. 2009). The appellate court "may make its own ruling on a quest ion of law without deferring to the circuit court." Henderson v. Summerville Ford-Mercury Inc. , 405

S.C. 440, 446, 748 S. E.2d 221, 224 (2013); see also Mims Amusement Co. v. S.C. Law Enf't Div. , 366 S.C. 141, 145, 621 S.E.2d 344, 346 (2005) (stating the appellate court may d ecide a novel questio n of law "based on it s assessment of which answer and reasoning best comport with the law and public policies of this state and the [c]ourt's sense of law, justice, and right.").

LAW/ANALYSIS

I. Application of the FAAAA

Appellants argue the trial court erred in finding their claims were preempted by the FAAAA. We disagree.

"The preemption doctrine is rooted in the Supremacy Clause of t he United States Constitution and provides that a ny state law that conflicts with federal law is

'without effect.'" 1 Priester v. Cromer , 401 S.C. 38, 43, 736 S.E.2d 249, 252 (2012) (quoting Cipollone v. Liggett Group, Inc. , 505 U.S. 504, 516 (1992)). "'[T]he purpose of Congress is the ultima te touchstone' of pre-emption analysis." Id. (quoting Cipollone , 505 U.S. at 516). "To discern C ongress'[s] intent we examine the explicit statutory language a nd the structure and purpose o f the statute." Id. (quoting Ingersoll-Rand Co. v. McClendon , 498 U.S. 133, 138 (1990)).

In an attempt to improve the air line industry through "maximum reliance on competitive market forces," Congr ess enacted the Airline Deregu lation Act (ADA), which included a preemption provi sion to "ensure that the State s would not undo federal deregulation with r egulation of their own." 2 Rowe v. N.H. Motor Transp.

1 The Supremacy Clause provides federal law "shall be the supre me law of the land; and the judges in every sta te shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstandi ng." U.S. Const. art.

VI.

2 This provision states, "[A] Stat e . . . may not enact or enfor ce a law, regulation, or other provision having the force and effect of law related to a price, route, or

service of an air carrier that ma y provide air transportation u nder this subpart." 49 U.S.C.A. § 41713(b) (West 2016).Ass'n , 552 U.S. 364, 36-38 (2008) (quoting Morales v. Trans World Airlines, Inc.

, 504 U.S. 374, 378 (1992)).

Following similar deregulation of the trucking industry, Congre ss sought to preempt state trucking regulatio n with the FAAAA, which prohibi ts states from "enact[ing] or enforce[ing] a l aw, regulation, or other provisi on having the force

and effect of law related to a price, route, or service of any motor carrier . . . with respect to the transportation of property." 49 U.S.C.A. § 1450 1(c)(1). As the preemption provision of the FAAA A tracks that of the ADA, the c ourts' interpretations of the scope of ADA preemption also apply to FA AAA preemption

cases. Rowe , 552 U.S. at 370.

The Supreme Court found the stat utory term "related to" "express[ed] a broad pre

emptive purpose." Morales , 504 U.S. at 383. Accordingly , "'state enforcement

actions having a connection with or reference to ' carrier 'rates, routes, or services' are pre-empted." Rowe , 552 U.S. at 370 (quoting Morales , 504 U.S. at 384). "[S]uch pre-emption may occur ev en if a state law's effect on r ates, routes, or services 'is only indirect.'" Id. (quoting Morales , 504 U.S. at 386). However, the FAAAA "does not pre-empt state laws that affect rates, routes, or services in 'too tenuous, remote, or peri pheral a manner.'" Id. at 375 (quoting Morales , 504 U.S. at 390). The Supreme Court cautioned , "[T]he breadth of the words 'related to' does not mean the sky is the limit." Dan's City Used Cars, Inc. v. Pelkey , 569 U.S. 251, 260 (2013).

Furthermore, the Supreme Court he ld the inclusion of the phrase "with respect to the transportation of property" in the FAAAA's preemption provision, which is not in the ADA's similar provision, " massively limits the scope of preemption" ordered by the FAAAA. Id. at 261 (quoting City of Columbus v. Ours Garage & Wrecker
Serv., Inc. , 536 U.S. 424, 449 (2002) (Scalia , J., dissenting). "[F]or pu rposes of FAAAA preemption, it is not suffi cient that a state law relates to the 'price, route,

or service' of a motor carrier i n any capacity; the law must al so concern a motor carrier's 'transportation of property.'" Id. The term transportati on includes services related to the movement of pr operty, which involves "arranging for, receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, packing, [and] unpacking" of property. 49 U.S.C.A. § 13102(23) (West 2016).

State common law rules fa ll within FAAAA preemption. Nw., Inc. v. Ginsberg

, 572 U.S. 273, 281 (2014). "The regul atory bite of tort law is powerful and direct. '[R]egulation can be as effectivel y exerted through an award of damages as throughsome form of preventive relief. T he obligation to pay compensa tion can be, indeed is designed to be, a potent method of governing conduct and con trolling policy.'" Tobin v. Fed. Express. Corp. , 775 F.3d 448, 456 (1st C ir. 2014) (alteration in original) (quoting San Diego Bldg. Trades Council v. Garmon , 359 U.S. 236, 247 (1959)). "[A] state law tort action against a carrier, where t he subject matter of the

action is related to the carrier 's prices, routes, or services, is a state enforcement action having a connection with o r reference to a price, route, or service of any . . . carrier . . . , for purposes of the FAAAA." Deerskin Trading Post, Inc. v. United Parcel Serv. of Am., Inc. , 972 F. Supp. 665, 672 (N.D. Ga. 1997). "To determine

whether a claim has a connecti on with, or reference to [a carri er's] prices, routes, or services, we must look at the facts underlying the specific cla im

. " Smith v.
Comair, Inc. , 134 F.3d 254, 259 (4th Cir. 1998).

"[When] a plaintiff invokes trad itional elements of tort law an d the issue of preemption arises, 'the courts a lmost uniformly have resolved a gainst federal preemption.'" Jimenez-Ruiz v. Spirit Airlines, Inc. , 794 F. Supp. 2d 344, 348 (D.P.R. 2011) (quoting Dudley v. Bus. Exp., Inc. , 882 F. Supp. 199, 206 (D.N.H. 1994)). The United States Court of Appeals for the Ninth Circu it explained, "Congress did not intend to preem pt passengers' run-of-the-mill personal injury

claims." Charas v. Trans World Airlines, Inc. , 160 F.3d 1259, 1261 (9th Cir. 1998), opinion amended on denial of reh'g , 169 F.3d 594 (9th Cir. 1999). 3 "[T]he proper inquiry is whether a comm on law tort remedy frustrates d eregulation by interfering with competition thr ough public utility-style regul ation." Taj Mahal
Travel, Inc. v. Delta Airlines, Inc. , 164 F.3d 186, 194 (3d Cir. 1998). "When state

law does not have a r egulatory effect, it is 'too tenuous, remo te, or peripheral' to be preempted." Id. (citing Morales , 504 U.S. at 390); see Kuehne v. United Parcel
Serv., Inc. , 868 N.E.2d 870, 872, 877-78 (Ind . Ct. App. 2007) (concluding homeowner's tort claim arising fro m fall over package left on f ront step was not preempted by the FAAAA); Huertas v. United Parcel Serv., Inc. , 974 N.Y.S.2d 758, 762 (N.Y. Sup. Ct. 2013) (holdi ng the claim of a plaintiff who tripped over packages was not preempted bec ause "the manner in which a delivery person stacked packages . . . is not r elated to a 'service' governed by the ADA or the FAAAA.").

3 In Charas , the Ninth Circuit considered f our consolidated cases that inv olved: (1) A passenger hit by a flight atte ndant pushing a beverage cart; (2) A passenger hit by luggage falling out of the overh ead bin after the plane land ed; (3) A passenger who tripped over a piece of lugga ge allegedly left in the aisle by a flight attendant; and (4) A passenger who did not receive the assistance she requested and fell down a stairway while exiting the plane. Id. at 1261-62.While some tort actions do not " give rise to the type of patchw ork state regulations that the ADA [and FAAAA were] intended to dissolve," Bower v. Egyptair

Airlines Co. , 731 F.3d 85, 96 (1st Cir. 2013), o thers may be "sufficiently connected to[a] carrier's service with respect to the transportation of property to warrant preemption." Dan's City Used Cars , 569 U.S. at 255. In Bower , the United States Court of Appeals for the First Ci rcuit held a father's negligen ce claims against an airline for allowing a mother to take their minor children to C airo in violation of a court order was preempted. 731 F.3d at 88. It explained,

[S]tandard common law dutie s of care have little effect on an airline['s] day-to-day operations. Accordingly, the

ADA offers little reason to tr eat a passenger who slips and falls while deplaning diffe rently than one who slips and falls in a restaurant. Were we to hold that EgyptAir violated its common law tort duty in this case, however, we would be imposing a f undamentally new set of obligations on airlines under th e rubric of "duty of care." These would include heightened and qualitatively different procedures for the booking and boarding of certain passengers on certain flights. To defeat Congressional intent to preemp t, a mere reference to a duty of care will not suffice. It is the nature and extent of that duty which alters the analysis.

Bower , 731 F.3d at 96 (citations and footnote omitted); see Smith , 134 F.3d at 259 (holding intentional tort claims were preempted to the extent t he claims were premised on the airline's refusa l to permit the plaintiff to bo ard his flight because "boarding procedures are a service rendered by an airline").

In Tobin , the plaintiff sued Federal Expr ess Corporation (Fed-Ex) for invasion of privacy, intentional and negligen t infliction of emotional dist ress, and negligence alleging she and her daughter suffered from various symptoms ca used by fear and anxiety arising from Fed-Ex misl abeling and misdelivering a pac kage, which contained marijuana, to the plaintiff's address. 4 775 F.3d at 449-50. Observing

4 The plaintiff and her daughter contacted law enforcement and a n officer warned

them he was worried the intende d recipient would come looking f or the package.

Tobin , 775 F.3d at 450. Later, "a man came to the plaintiff's door asking whether the plaintiff had received a p ackage. The visitor's car was pa rked in the plaintiff'splaintiff's claims involved FedE x's package handling, address v erification, and delivery procedures, which were "necessary appurtenances of the contract of carriage," the United States Cour t of Appeals for the First Cir cuit found the claims implicated a service. Id. at 454.

It rejected the plaintiff's cont ention tortious conduct could n ever be a service, explaining: "While tortiously u ndertaken conduct may not itself be a service that would be bargained for or antici pated by a consumer, the releva nt inquiry is whether enforcement of the pla intiff's claims would impose some obligation on an airline-defendant with respect t o conduct that, when properly u ndertaken, is a

service." Id. The court explained enforcemen t of plaintiff's claims would contravene Congress's intent to a void "a patchwork of state ser vice-determining laws, rules, and regulations." Id. at 455 (quoting Rowe , 552 U.S. at 373). It

elaborated:

For the plaintiff to prevail on her common-law claims, she would have to prove either that FedEx's procedures were inadequate or that those procedures, though adequate, were carried out carelessly by FedEx's employees. In the former cir cumstance, a finding that FedEx's procedures were i nadequate would have the significant effect of requi ring new and enhanced procedures for labeling, ver ification, and delivery of packages (FedEx's main busin ess). That effect would not be tenuous, remote, or peripheral.

Id. at 455 (citations omitted).

Thus it found, "By using state co mmon law as a blunt instrument to prescribe protocols for package labeling, verification, and delivery, the claims presented here would regulate how FedEx ope rates its core business." Id. at 456. Affirming the dismissal of the plaintiff's cl aims, the court ruled, "[When] t he duty of care alleged drills into the core of a[] ca rrier's services and liability fo r a breach of that duty could [affect] fundamental changes in the carrier's current or future service offerings, the plaintiff's claims are preempted . . . . Id.

driveway with two men seated in side. Terrified, the plaintiff s lammed the door shut and again contacted the police." Id.We find the First Circuit's reasoning in Tobin persuasive. Appellants' claims are not "run of the mill" personal in jury claims. Their allegation s include UPS was negligent in failing to properly deliver the medication, in fai ling to properly and accurately locate Appellants, i n failing to maintain proper pol icies and procedures for delivering parcels, and in f ailing to properly hire, train, supervise and oversee personnel. These allegations clear ly go to the heart of the de livery service UPS offers. As the First Circuit found, "A damages award could res ult in fundamental changes to [UPS's] services—much more so than a damages award f or a driving mishap or a slip-and-fall." Id. at 456. Such an award c ould result in "requiring new and enhanced procedures f or . . . delivery of packages," wh ich, like FedEx, is

UPS's main business. Id. at 455. This effect would not be "tenuous, remote, or peripheral." Rowe , 552 U.S. at 375. Accordingly, we hold the trial court did no t err in finding Appellants' claims were preempted by the FAAAA.

II. Household Goods Exemption

Appellants argue their claims fall within t he "household goods" exemption to preemption. We disagree.

The FAAAA provides the act "does not apply to the intrastate tr ansportation of household goods . . . ." 49 U.S.C. A. § 14501(c)(2)(B) (West 20 16). The definition of household goods provides as follows:

The term "household goods[,]"[] as used in connection with transportation, means per sonal effects and property

used or to be used in a dw elling, when a part of the equipment or supply of suc h dwelling, and similar property if the transportation of such effects or property

is—

(A) arranged and paid for by the householder, except

such term does not include property moving from a factory or store, other than property that the householder has purchased with the intent to use in his or her dwelling and is transported at the reque st of, and the transportation charges are paid to the carri er by, the householder; or

(B) arranged and paid f or by another party.

49 U.S.C.A. § 13102(1) (West 2016).Although this definition seems br oad, Congress clarified a narr ower meaning applied to the term as follows : "The provisions of title 49, Un ited States Code, and this subtitle (including any am endments made by this subtitle), that relate to the transportation of household goods a pply only to a household goods motor carrier (as defined in secti on 13102 of title 49, Un ited States Code)." Pub. L. No. 109-59 § 4202(c), 119 Stat. 1752 (2005) 5 (emphasis added). A household goods motor

carrier is defined as follows:

(A) In general.—The term "household goods motor

carrier" means a motor carrier t hat, in the ordinary course of its business of providing transportation of household goods, offers some or all of the following additional

services:

(i) Binding and nonbinding estimates.

(ii) Inventorying.

(iii) Protective packing and unpacking of individual items at personal residences.

(iv) Loading and unloading at personal residences.

(B) Inclusion.—The term in cludes any person that is

considered to be a househol d goods motor carrier under regulations, determinations, and decisions of the Federal Motor Carrier Safety Administ ration that are in effect on

the date of enactment of t he Household Goods Mover Oversight Enforcement and Reform Act of 2005.

5 Although this amendment is not c odified, the provision is fully binding law. See

Patten v. United States , 116 F.3d 1029, 1033 n.3 (4th Cir. 1997) ("A piece of legislation becomes la w when it is passed by Congress and signe d by the President. Therefore, even though the [piece of legislation] was not codif ied, it was enacted, and it has the force of law.").(C) Limited service excl usion.—The term does not include a motor carrier when the motor carrier provides transportation of household good s in containers or trailers that are entirely loaded a nd unloaded by an individual (other than an employee or a gent of the motor carrier).

49 U.S.C.A. § 13102 (12) (West 2016).

Upholding the United States Distr ict Court for the District of Puerto Rico's reliance

on the Interstate Commerce Commi ssion's prior interpretations o f the phrase, the First Circuit concluded, "[T]he transportation of household goo ds generally refers to the services of moving companies." United Parcel Serv., In c. v. Flores-Galarza

, 385 F.3d 9, 14 (1st Cir. 2004). The court rejected the argumen t this definition was too narrow, explaining "the enjoi ned scheme impermissibly affec ted UPS's prices, routes, and services in part because it required UPS to identify the contents of the packages (a deviation from sta ndard procedures used for deliver ies elsewhere in the United States) . . . ." Id. It agreed with the district c ourt that "[f]orcing carriers to give special handling to all packages containing goods used in a home . . . would resurrect the unwieldy patchwork of state laws that Congress in tended to eliminate through the [FAAAA]." Id. (omission in original) (quoting United Parcel Serv.,

Inc. v. Flores-Galarza , 275 F. Supp. 2d 155, 161 (D.P .R. 2003)). Thus, it noted an exception granting states regulatory authority over any package s containing household goods "would swallow t he rule of preemption." Id.

We find UPS is not a househol d goods motor carrier. Thus, its delivery of medication did not constitute the transportation of household g oods according to the statutory definition. Accord ingly, the Appellants' claims did not fall within the household goods exemption to FAAAA preemption.

CONCLUSION

We hold the trial court did not err in ruling the FAAAA preempt ed Appellants' claims. Accordingly, the order s dismissing their claims are

AFFIRMED.

SHORT and WILLIAMS, JJ., concur.