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 Service 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 Chewning Barnes, of Barnes 

Law Firm, LLC, of Hampton; and Justin Tyler Bamberg, 

of Bamberg Legal, LLC, of Bamberg, for Appellants. 

George Troy Thames, of Willson Jones Carter & Baxley, 

P.A., of Mt. Pleasant; and 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 after 
UPS failed to timely deliver thyroid medication. His wife, Rebecca McCutcheon, 

appeals the trial court's dismissal of her loss of consortium action. Eggleston and 

McCutcheon (collectively, Appellants) assert the trial court erred in holding their 

claims were preempted by federal law. We affirm. 

FACTS/PROCEDURAL HISTORY 

As a veteran, Eggleston received treatment for his thyroid condition from the 

Veterans Administration (VA) hospital in Charleston. On numerous occasions in 

the past, UPS delivered shipments of medications from the VA hospital to 

Eggleston at his rural Eutawville 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 the situation. After 

confirming Eggleston's address, a pharmacist with the VA accessed UPS's records 

and discovered the package was being held because a correct street name was 

needed. The pharmacist called UPS and spoke with a representative who contacted 

the local driver, Rick Fogle, and instructed him to contact Eggleston and make the 

delivery that date. The pharmacist also sent a partial refill of the medication by 

overnight delivery as Appellants had declined to acquire a partial supply from a 

local pharmacy due to transportation and financial issues. 

Appellants also contacted UPS, which informed them Eggleston's address did not 

exist or could not be located, despite UPS's previous delivery of medications to the 

address. Eggleston's condition worsened into a thyroid storm, causing seizures, 

congestive heart failure, extremely elevated blood pressure, hospitalization, and 

surgical intervention. UPS finally delivered the medication thirteen days after it 

had been shipped. 

Eggleston brought an action against UPS and Fogle for negligence and negligent 

entrustment. McCutcheon brought a similar action for loss of consortium. UPS 

moved to dismiss both actions asserting the state law claims were preempted by the 

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

U.S.C.A. § 14501(c)(1) (West 2016). The trial court granted the motions to 

dismiss in separate orders. Appellants filed motions to alter or amend, which the 

trial court denied. This appeal, which consolidated Appellants' actions, followed. 

STANDARD OF REVIEW
 

 

 

 

The 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 question 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 decide a novel question of law "based on its 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 the United States 

Constitution and provides that any 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 ultimate touchstone' of pre-emption analysis." Id. 

(quoting Cipollone, 505 U.S. at 516). "To discern Congress'[s] intent we examine

the explicit statutory language and the structure and purpose of the statute." Id. 

(quoting Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138 (1990)). 

In an attempt to improve the airline industry through "maximum reliance on 

competitive market forces," Congress enacted the Airline Deregulation Act (ADA), 

which included a preemption provision to "ensure that the States would not undo 

federal deregulation with regulation of their own."2 Rowe v. N.H. Motor Transp. 

1

 The Supremacy Clause provides federal law "shall be the supreme law of the 

land; and the judges in every state shall be bound thereby, anything in the 

Constitution or laws of any state to the contrary notwithstanding." U.S. Const. art. 

VI. 

2

 This provision states, "[A] State . . . may not enact or enforce 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 may provide air transportation under 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, Congress sought to 

preempt state trucking regulation with the FAAAA, which prohibits states from

"enact[ing] or enforce[ing] a law, regulation, or other provision 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. § 14501(c)(1). As the 

preemption provision of the FAAAA tracks that of the ADA, the courts' 

interpretations of the scope of ADA preemption also apply to FAAAA preemption 

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

The Supreme Court found the statutory term "related to" "express[ed] a broad preemptive 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 even if a state law's effect on rates, 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 peripheral 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 held 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 purposes of 

FAAAA preemption, it is not sufficient that a state law relates to the 'price, route, 

or service' of a motor carrier in any capacity; the law must also concern a motor 

carrier's 'transportation of property.'" Id. The term transportation includes services

related to the movement of property, 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 fall within FAAAA preemption. Nw., Inc. v. Ginsberg, 

572 U.S. 273, 281 (2014). "The regulatory bite of tort law is powerful and direct. 

'[R]egulation can be as effectively exerted through an award of damages as through 
 

 

 

some form of preventive relief. The obligation to pay compensation can be, indeed 

is designed to be, a potent method of governing conduct and controlling policy.'"

Tobin v. Fed. Express. Corp., 775 F.3d 448, 456 (1st Cir. 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 the subject matter of the 

action is related to the carrier's prices, routes, or services, is a state enforcement 

action having a connection with or 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 connection with, or reference to [a carrier's] prices, routes, or 

services, we must look at the facts underlying the specific claim." Smith v. 

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

"[When] a plaintiff invokes traditional elements of tort law and the issue of 

preemption arises, 'the courts almost uniformly have resolved against 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 Circuit explained, 

"Congress did not intend to preempt 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 common law tort remedy frustrates deregulation by 

interfering with competition through public utility-style regulation." Taj Mahal 

Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186, 194 (3d Cir. 1998). "When state 

law does not have a regulatory effect, it is 'too tenuous, remote, 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 from fall over package left on front 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) (holding the claim of a plaintiff who tripped over 

packages was not preempted because "the manner in which a delivery person 

stacked packages . . . is not related to a 'service' governed by the ADA or the 

FAAAA."). 

3

 In Charas, the Ninth Circuit considered four consolidated cases that involved: (1) 

A passenger hit by a flight attendant pushing a beverage cart; (2) A passenger hit 

by luggage falling out of the overhead bin after the plane landed; (3) A passenger 

who tripped over a piece of luggage 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 patchwork state regulations 

that the ADA [and FAAAA were] intended to dissolve," Bower v. Egyptair 

Airlines Co., 731 F.3d 85, 96 (1st Cir. 2013), others 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 Circuit held a father's negligence claims against an 

airline for allowing a mother to take their minor children to Cairo in violation of a 

court order was preempted. 731 F.3d at 88. It explained, 

[S]tandard common law duties of care have little effect 

on an airline['s] day-to-day operations. Accordingly, the 

ADA offers little reason to treat a passenger who slips 

and falls while deplaning differently 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 fundamentally new set of 

obligations on airlines under the 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 preempt, 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 the claims were 

premised on the airline's refusal to permit the plaintiff to board his flight because 

"boarding procedures are a service rendered by an airline"). 

In Tobin, the plaintiff sued Federal Express Corporation (Fed-Ex) for invasion of 

privacy, intentional and negligent infliction of emotional distress, and negligence 

alleging she and her daughter suffered from various symptoms caused by fear and 

anxiety arising from Fed-Ex mislabeling and misdelivering a package, 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 an officer warned 

them he was worried the intended recipient would come looking for the package. 

Tobin, 775 F.3d at 450. Later, "a man came to the plaintiff's door asking whether 

the plaintiff had received a package. The visitor's car was parked in the plaintiff's 
 

 

 

plaintiff's claims involved FedEx's package handling, address verification, and 

delivery procedures, which were "necessary appurtenances of the contract of 

carriage," the United States Court of Appeals for the First Circuit found the claims

implicated a service. Id. at 454. 

It rejected the plaintiff's contention tortious conduct could never be a service, 

explaining: "While tortiously undertaken conduct may not itself be a service that 

would be bargained for or anticipated by a consumer, the relevant inquiry is 

whether enforcement of the plaintiff's claims would impose some obligation on an 

airline-defendant with respect to conduct that, when properly undertaken, is a 

service." Id. The court explained enforcement of plaintiff's claims would 

contravene Congress's intent to avoid "a patchwork of state service-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 circumstance, a finding that 

FedEx's procedures were inadequate would have the 

significant effect of requiring new and enhanced 

procedures for labeling, verification, and delivery of 

packages (FedEx's main business). That effect would not 

be tenuous, remote, or peripheral. 

Id. at 455 (citations omitted). 

Thus it found, "By using state common law as a blunt instrument to prescribe 

protocols for package labeling, verification, and delivery, the claims presented here 

would regulate how FedEx operates its core business." Id. at 456. Affirming the 

dismissal of the plaintiff's claims, the court ruled, "[When] the duty of care alleged 

drills into the core of a[] carrier's services and liability for 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 inside. Terrified, the plaintiff slammed 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 injury claims. Their allegations include UPS was 

negligent in failing to properly deliver the medication, in failing to properly and 

accurately locate Appellants, in failing to maintain proper policies and procedures 

for delivering parcels, and in failing to properly hire, train, supervise and oversee 

personnel. These allegations clearly go to the heart of the delivery service UPS 

offers. As the First Circuit found, "A damages award could result in fundamental 

changes to [UPS's] services—much more so than a damages award for a driving 

mishap or a slip-and-fall." Id. at 456. Such an award could result in "requiring 

new and enhanced procedures for . . . delivery of packages," which, 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 not 

err in finding Appellants' claims were preempted by the FAAAA. 

II. Household Goods Exemption 

Appellants argue their claims fall within the "household goods" exemption to 

preemption. We disagree. 

The FAAAA provides the act "does not apply to the intrastate transportation of 

household goods . . . ." 49 U.S.C.A. § 14501(c)(2)(B) (West 2016). The definition 

of household goods provides as follows:

The term "household goods[,]"[] as used in connection 

with transportation, means personal effects and property 

used or to be used in a dwelling, when a part of the 

equipment or supply of such 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 request of, and the transportation 

charges are paid to the carrier by, the householder; or 

(B) arranged and paid for by another party. 

49 U.S.C.A. § 13102(1) (West 2016).
 

Although this definition seems broad, Congress clarified a narrower meaning 

applied to the term as follows: "The provisions of title 49, United States Code, and 

this subtitle (including any amendments made by this subtitle), that relate to the 

transportation of household goods apply only to a household goods motor carrier 

(as defined in section 13102 of title 49, United 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 that, 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 includes any person that is 

considered to be a household goods motor carrier under 

regulations, determinations, and decisions of the Federal 

Motor Carrier Safety Administration that are in effect on 

the date of enactment of the Household Goods Mover 

Oversight Enforcement and Reform Act of 2005.

5 Although this amendment is not codified, 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 law when it is passed by Congress and signed by the President. 

Therefore, even though the [piece of legislation] was not codified, it was enacted, 

and it has the force of law."). 
 

(C) Limited service exclusion.—The term does not 

include a motor carrier when the motor carrier provides 

transportation of household goods in containers or trailers 

that are entirely loaded and unloaded by an individual 

(other than an employee or agent of the motor carrier). 

49 U.S.C.A. § 13102 (12) (West 2016).

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

on the Interstate Commerce Commission's prior interpretations of the phrase, the 

First Circuit concluded, "[T]he transportation of household goods generally refers 

to the services of moving companies." United Parcel Serv., Inc. v. Flores-Galarza, 

385 F.3d 9, 14 (1st Cir. 2004). The court rejected the argument this definition was 

too narrow, explaining "the enjoined scheme impermissibly affected UPS's prices, 

routes, and services in part because it required UPS to identify the contents of the 

packages (a deviation from standard procedures used for deliveries elsewhere in 

the United States) . . . ." Id. It agreed with the district court 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 intended 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 packages containing 

household goods "would swallow the rule of preemption." Id. 

We find UPS is not a household goods motor carrier. Thus, its delivery of 

medication did not constitute the transportation of household goods according to 

the statutory definition. Accordingly, 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 preempted Appellants'

claims. Accordingly, the orders dismissing their claims are 

AFFIRMED. 

SHORT and WILLIAMS, JJ., concur.