Mercury Marine / Brunswick Corporation Loses
U.S. Supreme Court Propeller Case on 3 Dec. 2002

Sprietsma v. Mercury Marine, a propeller guard case – full coverage of the U.S. Supreme court decision.
Sprietsma is pronounced “SPREETS-ma” – Spreetsma.

History and Background Behind the Case

We began covering the Sprietsma propeller case on April 2002. This historical / background section was written prior to the U.S. Supreme Court hearing the case.

The U.S. Supreme Court recently agreed to hear Sprietsma v. Mercury Marine. The issue before the court is does the Federal Boating Safety Act of 1971 preempt common state law causes of action (injury suits) based on the manufacturer’s failure to install propeller guards.

The case stems from a July 1995 accident in Tennessee in which Mr. Rex Sprietsma’s wife, Jeanne Sprietsma fell from a boat powered by a 1988 115 horsepower outboard motor built by Mercury Marine.

The case began in Cook County Illinois 312 ILL. App. 3d 1040. Mercury Marine won.

It went to Illinois 1st District Court of Appeals. Mercury won again. Findings of that court are posted as:
Sprietsma v. Mercury Marine No. 1-99.0012. 6 April 2000.

A Petition for a Writ of Certiorari (request to be reviewed by the Illinois Supreme Court was filed.

The Illinois Supreme Court case reference is 197 Ill. 2d 112 (Ill. Sup. Ct. 2001) or 757 N.E. 2d 75 (2001)
Illinois Supreme Court Docket Number 89492 presents the Supreme Court of Illinois Opinion filed August 16, 2001. They affirmed (upheld) the Cook Country court’s decision the federal government’s refusal to issue a regulation, in effect constitutes federal preemption.

This case was widely reported, including in:

• Defense Counsel Journal. Oct. 2001.
• Williams Montgomery & Johnson Ltd.’s Illinois Litigation Update. (see pages 2 and 6).
• Propeller Guard Suit is ‘Quarrel’ over Settled Law, Says Motor Maker.Andrews Product Liability LiMaker.Andrews Product Liability Litigation Reporter. Vol.12 Issue 11. Jan 24, 2002.
• Federal Preemption in Particular, the Federal Boat Safety Act of 1971. Michael Best & Friedrich Attorneys at Law.

A Writ of Certiorari (request to review) the case was filed with the U.S. Supreme Court.

On January 22, 2002, the U.S. Supreme Court granted Certiorari (agreed to review) the case. Boating Today Online News filed a report on the U.S. Supreme Court taking up the case. Most other boating publications have been pretty quiet on it.

In 1997 the U.S. Supreme Court agreed to hear the same issue in Lewis v. Brunswick. That case involved the death of a child from injuries sustained in a propeller accident. Brunswick settled, (1998 WL 423665 and Lewis v. Brunswick Corp., 118 S.Ct. 1793 (1998)), before the court delivered its decision. Per, Weighing in on the Supreme Court, published by the American University Washington College of Law, Brunswick settled in the face of an “assuredly adverse judgement”. If the court had ruled against them, every circuit, including those that had not yet decided the issue would be bound by the decision. They would rather “play the odds” in each state than risk a judgement binding in every state.

Brunswick’s most recent 10K filed with the Security and Exchange Commission (SEC) acknowledges the case and states:

Nine federal courts and many state courts, including Illinois Supreme Court in Sprietsma, have previously found such claims to be preempted by the United States’ Coast Guard’s 1990 decision, pursuant to the Federal Boating Safety Act, not to require propeller guards. This company does not believe that the resolution of this matter will have a material adverse effect on the Company’s consolidated financial position or results of operations.

In the first round (Cook County Court), Mercury Marine successfully moved to strike the first five pages of a Sprietsma reply brief arguing the preemption defense was unavailable because the boat motor was manufactured in 1988 (before the Coast Guard 1990 decision). The striking of this text was never addressed or ruled upon by the circuit or appellate courts.

Previous Status of the Case and Our Comments

Note: status of the case in the U.S. Supreme Court could then be followed from the case docket on their site.

Oral arguments are expected to be scheduled for October 2002.

The Maritime Law Association of America filed a brief with the U.S. Supreme Court on May 20, 2002.

Seventeen states filed a joint brief in support of Mr. Sprietsma’s position.

The Product Liability Advisory Council, Inc. filed an extensive brief in support of Mercury Marine.

The U.S. Solicitor General has filed a brief in support of Mr. Sprietsma’s position.

Soundings Trade Only July 2002 had a feature article by Jim Flannery titled “Second prop guard suit heads to Supreme Court.” It reports Joe Pomeroy, general counsel for Mercury Marine, says he does not think the devices will work, there is no evidence they will prevent injuries and he thinks several potential dangers are associated with guards. The article reports the prosecution suggests that as long as manufacturers are immune from prop guard claims the technology will not move forward. There is no incentive for manufacturers to even try.

National Public Radio did an excellent background piece on the situation from the family’s perspective in October 2002. Profile: Family of boating accident victim. National Public Radio. Morning Edition with Bob Edwards. October 15, 2002.

Will be interesting to see if the case is settled before a decision as was done in the prior Lewis v. Brunswick U.S. Supreme Court case. Settlement will in part depend on Mr. Sprietsma’s feelings about “its the principle of the thing” vs. weighing the potential results of an all or nothing financial outcome. Brunswick might offer a settlement in excess of a potential award to prevent an adverse decision at this level from impacting future cases all over the nation. A coalition of boat and drive manufacturers (Genmar, Bombardier, Yamaha, Volvo, Honda, etc.) could possibly come to Brunswick’s aid and help fund the settlement offer to reduce future suits against them as well?

But this route has a problem. Mr. Sprietsma is being represented by Trial Lawyers for Public Justice. TLPJ takes on precedent setting, socially significant legislation. Most of their work is done pro bono (without charge). It is reasonable to suspect an agreement was reached with Mr. Sprietsma at the outset stating they would not settle, but force a decision by the courts. Mr. Sprietsma might have little chance of coming this far without their bankroll.

It is our understanding, that if he wins, the case will be passed back down and he will receive the right to sue for recovery. TLPJ will have provided others with similar accidents access to a possible venue for recovery. If the case goes back down and is eventually won by Mr. Sprietsma, TLJP would received their costs, a percentage of the award.

When the case begins to precede in the U.S. Supreme Court, lawyers will begin to estimate the court’s position. The case begins to work into a matrix of possible estimations. Brunswick makes offers when they anticipate medium or high risk of losing. Mr. Sprietsma’s group would only accept those offers if they felt the case was going the other way (felt strong risk of them losing). A huge “Pot of Gold” might be tempting in the other boxes, but TLPJ has been in those boxes before, probably even for this case in earlier venues. They can defeat the temptation to “take the money and run”.

The actual estimation of how the case is going is much more complex than in non-jury trials. Here they must estimate how the trial is generally going plus how each judge feels based on body language and their past voting records. Wonder how many of them have been power boaters? Because the case has already been tried several times, there should be few surprises in the references used, but lawyers always worry about that one.

Whatever the eventual outcome of the case, many difficult decisions remain to be made by all parties, including the Supreme Court Justices. We hope this trial will raise the awareness level within the industry of the seriousness of this problem and result in some significant efforts to develop methods (whatever they may be) to reduce the frequency and severity of propeller injuries.

One interesting side note: On March 12, 2002 Brunswick was issued U.S. Patent # 6,354,892 for an infrared device that senses people in the water near a marine drive (Virtual Propeller Guard).

U.S. Supreme Court Rules Finds Against Mercury Marine / Brunswick in Sprietsma Propeller Guard Case

On Dec. 3rd 2002, the U.S. Supreme court unanimously reversed the decision of the lower courts. Mercury Marine / Brunswick Corporation relied upon the 1971 Federal Boating Safety Act (FBSA) which did not require propeller guards and repeated U.S. Coast Guard findings that no propeller guard existed that could provide protection for all boats as its defense. The Supreme Court ruled that when the Coast Guard found no single type of propeller guard could uniformly prevent injuries on all types boats, those findings did not mean that a propeller guard of some type might not have prevented injury on this specific type of boat and motor. The specific language used in the opinion was:

“nothing in its official explanation (explanation of Coast Guard’s findings) would be inconsistent with a tort verdict premised on a jury’s finding that some type of propeller guard should have been installed on this particular kind of boat equipped with respondent’s particular type of motor.”

The Sprietsma v. Mercury Marine case been sent back down to the lower courts for trial.

Joe Pomeroy, General Counsel for Mercury Marine says they expect to win the case in the lower courts because manufacturers have won all those cases to date. Mr. Sprietsma’s lawyer, Leslie Brueckner, points out those cases were all tried over a decade ago.

Coverage of the Decision

The decision was widely covered in the media, especially due to its broader implications on Federal Preemption.

• Supreme Court Holds That Injury Victims May Sue Boat Engine Manufacturers for Failure to Install Propeller Guards. Trial Lawyers for Public Justice (TLPJ). Dec. 3, 2002. TLPJ represented Mr. Sprietsma.
• All Things Considered: Supreme Court – Boat Lawsuit National Public Radio audio clip. Dec. 3, 2002. By Nina Totenberg.
• U.S. top court allows motorboat propeller guard suits. Forbes web site. Dec. 3, 2002 Reuters news report.
• Prop ruling delights lawyer, worries NMMA. Soundings Trade Only Online. 4 Dec. 2002. Soundings quotes Monita W. Fontaine (VP of government relations for the NMMA) as saying they thought pre-emption was a good idea and now they fear a “patchwork of inconsistent regulations in multiple jurisdictions …”
• Prop Guard Case Ruling Opens Door to a Patchwork of Boat Manufacturing Regulations Around the Country. NMMA Press Release. 3 Dec. 2002.
• Full Text of the Oral Argument before the U.S. Supreme Court.
• Federal Boat Preemption Decision Overturned By Supreme Court. Mealey’s Litigation Reports. Lexis Nexis. Dec. 3, 2002.
• Court opens door to more lawsuits over boating accidents. By Jan Crawford Greenburg. Chicago Tribune. Viewed from KansasCity.Com web site.
• Silence is Golden, but it Doesn’t Preempt State Tort Actions. The Federalism Project. Dec. 4, 2002. Their comments note the decision may have wider application and raises a federalism question: “does a federal decision not to regulate have the same preemptive effect as a decision to regulate?”
• Supreme Court refuses to shield manufacturers from lawsuits over boating accidents. Associated Press. 3 Dec, 2002. Was viewed from the Boston.Com web site.
• The Federalist Outlook suggests they government may sent the case back down in their efforts of “pacifying noisy constituencies“, to limit their battles to what they see as more important issues (getting anti-terrorism programs passed, etc). Search the page for Sprietsma to find their comments.
• One blogger, The Appellate Blog, provides several paragraphs of coverage of the decision. This blog by Howard J. Bashman covers appellate legislation. See the entries under Dec. 3rd 2002, or search the December 2002 page for “Sprietsma”.
• High Court Rules Federal Law Doesn’t Pre-Empt State Lawsuit. Robert S. Greenberger. Wall Street Journal Online. 3 Dec. 2002. This article quotes Robert Conrad of the U.S. Chamber of Commerce as saying they are disappointed, but the decision “may not have a lot of legs, because of its specificity.”
• US High Ct: Brunswick Corp. Can Be Sued In Boating Death. Dow Jones Newswires. By Mark H. Anderson. 3 Dec. 2002.
• High court OKs DuPage man’s suit Plaintiff blames boatmaker for death of wife. Chicago Tribune. Dec 4, 2002. 12/04/2002.
• High Court Rules Against Boating Industry in Propeller Case. Los Angeles Times. Dec. 4, 2002.
• Boatmakers Liable Under State Law, Justices Rule. The Washington Post. Dec. 4, 2002.
• U.S. Boat Law Doesn’t Pre-empt State Suits United Press International. UPI Legal Affairs Correspondent. 3 Dec. 2002.
• Court Allows Suits Over Boat-Propeller Deaths. FresnoBee. Bee News Services. Dec. 4, 2002.
• Court Ruling Backs Propeller Guards for Boats. StatesmanJournal.Com (Salem Oregon). Dec. 9, 2002.
• Sprietsma v. Mercury Marine. Cornell University summary of the case. This is a very readable version of the decision.
• Prop guard case ruling may mean new regs. Marina & Boatyard Today. 9 Dec. 2002. This reference focuses on the possible fractured regulations that may come about per the NMMA’s comments.
• The interstices of common-law torts and the Federal Boat Safety Act. DREPT A Journal About the Law and Right. Dec. 3, 2002 entry. Posted by Alina. This blogger provides very detailed and insightful comments about the legal thoughts behind the decision.
• No. 01-706 Sprietsma v. Mercury Marine Supreme Court Blog. Monday, Oct. 7, 2002 entry by Ted. Note – this pre-decision entry called it right. Its blogger says they do not think the court will be very sympathetic to the argument that the express intent of Congress (Federal Boating Safety Act includes language
  seemingly reserving all common law claims) is overuled by the negative regulatory decision of the Coast Guard.
• Sprietsma, Rex v. Mercury Marine. A Case Summary by Northwestern University, Binh Ha Hong. Excellent comments on the decison.
• Lawyer sees no avalanche of prop guard lawsuits. Jim Flannery. Soundings Trade Only. Jan. 2003. Pgs. 12-13. In this article Joe Pomeroy, lead counsel for Mercury Marine, says, “Barring some kind of breakthrough in prop guard technology, planitiffs face an uphill fight.”

U.S. Supreme Court notifies Supreme Court of Illinois of its decision

Immediately after making their decision, the U.S. Supreme Court prepared and sent the certiorari (letter explaining its findings) to the Supreme Court of Illinois which will then take up the case, or send it further back down to the lower courts.

Their letter explains why the FBSA does not pre-empt (take precedence over) state law in this case and provides several examples.

The letter is followed by an opinion on the case written by Justice Stevens. The opinion further explains the reasoning employed by the court. Since the decision was unanimous, there is no dissenting opinion.

PGIC Thoughts on the Sprietsma decision:

Ruling out the FBSA defense will have MAJOR impact on the way the industry approaches prop injury cases in the future. To date, the industry has been slow in developing effective means of reducing the frequency and severity of these injuries. This may partially be due to fear that any successful efforts would have to installed on all craft (both new and old). The U.S. Supreme Court seemed to open the window to a variety of guard designs being installed on a variety (and NOT all) types of vessels. Lawyers representing the injured would obviously try to push for coverage of all types of vessels, but much remains to be decided in this area. Even if the Sprietsma Case is decided in Mercury Marine’s / Brunswick’s favor in the lower courts based on its merits (specific circumstances surrounding the accident), other cases will be rapidly following it. Plus those previously dropped or settled may come back under this ruling?

For those not familiar with the pre-history surrounding this case (the settlement of the Lewis suit in 1998), we suggest the reference:

Unusual Settlement Removes Third Case
Washington Post
Joan Biskupic
May 26, 1998; Page A02

The Washington Post article on the Lewis propeller case above discusses how Brunswick settled a somewhat similar previous suit before the U.S. Supreme Court at the last moment in 1998 to avoid the possibility of losing the Federal Boating Safety Act / Coast Guard pre-emption, which has now been lost.

If the Sprietsma Case is tried on its merits (actual boat and motor, situation, conditions, local laws and common sense) some reports are saying Mrs. Sprietsma may have substantially contributed to the accident by her position in the boat.

On the marketing side, with the economy sagging and boat sales sliding downward, when the general public hears any sort of news about propeller injuries (this case is being reported by about every major media outlet) it certainly does not stimulate them to run out and buy a boat. Hopefully the industry will now put some serious resources into reducing the frequency and severity of propeller injuries.