Interpretation ID: nht95-2.58
TYPE: INTERPRETATION-NHTSA
DATE: April 27, 1995
FROM: Musa K. Farmand -- Gonzalez And Farmand, P.A.
TO: Mary Versailles -- NHTSA
TITLE: NONE
ATTACHMT: ATTACHED TO 5/9/95 LETTER FROM JOHN WOMACK TO MARY VERSAILLES (A43; STD. 208)
TEXT: Dear Ms. Versailles:
Thank you for speaking with me this morning regarding 49 CFR Section 571.208, 4.1.5.2 (c) 2. As you may recall, I am an attorney practicing law in Orange Park, Florida. I represent two plaintiffs who were seriously injured in an automobile wreck in Apr il 1993. Florida has a mandatory seat belt statute which allows evidence of a person's failure to wear the seat belt only in those instances where failure to wear the seat belt caused or contributed to the accident. Florida does not allow a mitigation of damages defense with respect to an alleged failure to wear a seat belt. In our case, we were successful in getting the seat belt defense stricken since there were no facts which would indicate that any alleged failure on the part of the plaintiff to wear a seat belt caused the incident in the first place.
Nonetheless, defense counsel in our case has moved to amend his answer to include as an affirmative defense the argument that 49 CFR 571.208, 4.1.5.2 (c) 2 conflicts with Florida law in that the federal regulation requires that each state allow for a mit igation of damages defense in its seat belt statute. A copy of the defendant's motion and amended affirmative defense is attached for your review.
We contacted the Legal Research Center, a legal research group located in Minnesota, to help research this issue. They contacted your office on April 24, 1995. They spoke with you and Mr. Clark Harper, of the Frontal Crash Protection Division, Office o f Vehicle Safety Standards. According to a letter we received from Legal Research ("LRC") and our telephone discussions with them regarding this issue, they have indicated the following based on their discussions with you and Mr. Harper:
1. The provision that was cited by the defendant does not exist anymore. It has been replaced by air bags standards in 1993 specifically 38 FR 46551 (September 2, 1993). Indeed, our research has revealed that, effective October 1, 1994, Section [Illeg ible Words] (2) no longer existed.
According to LRC, the Section was only a tool that was taken into consideration by the Secretary of Transportation when he was considering the recission of the auto restraint systems, which he never did.
2. Therefore, the whole section is a moot point.
3. Even when the section did exist, it was not intended to be pre-empted.
4. Even if the section did exist, it would not apply to our situation since it has nothing to do with any state "seat belt defenses".
In essence, based on the foregoing, it would appear that the defendant's motion is without merit. Of course, it would be helpful to have a letter or an interpretation from the Office of the General Counsel regarding this particular provision.
As we've discussed, the purpose of this letter is to request an interpretation and/or opinion letter regarding the applicability of 49 CFR 571.208, 4.1.5.2 (c) 2 to this situation. We already appreciate your cooperation in speaking with us and LRC in re gards to this matter. I look forward to hearing from you.