OPINION
WILSON, Justice.
Norma L. Kiefer and her husband Robert C. Kiefer (the Kiefers) appeal from a summary judgment rendered in favor of Continental Airlines, Inc. (Continental) on the basis of federal preemption. The Kiefers raise four points of error. We reverse and remand for trial on the merits.
A defendant moving for summary judgment has the burden to show that, as a matter of law, there is no genuine issue of material fact as to one or more of the essential elements of the plaintiffs’ cause of action. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986); Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Goldberg v. United States Shoe Corp., 775 S.W.2d 751, 752 (Tex.App.—Houston [1st Dist.] 1989, writ denied). Every reasonable inference will be indulged in favor of the non-movants, and any reasonable doubt will be resolved in their favor. Continental Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499, 501 (Tex.1988); Goldberg, 775 S.W.2d at 752.
In the light most favorable to the Kiefers, the non-movants, the summary judgment evidence shows that Mrs. Kiefer was a passenger on a Continental flight from Pittsburgh, Pennsylvania, to Houston, during which a Continental flight attendant dropped a bag from an overhead storage bin onto Mrs. Kiefer’s head, injuring her.
Mrs. Kiefer and her husband sued Continental for personal injuries and loss of society, respectively; they each asserted a state common-law negligence cause of action. Continental moved for summary judgment, based on its contention that the Kiefers’ claims were preempted by section 4(a) of the Airline Deregulation Act of 1978, as amended (the 1978 Act),1 codified at 49 U.S.CA.App. § 1305 (West Pamph.1994). The trial court ruled that, “Continental Airlines, Inc. is entitled to summary judgment as follows. Ordered that the cause of action is dismissed as being preempted by section 1305 of Federal Aviation Act.”2 Within 30 days after the trial court signed the order granting summary judgment for Continental, the Kiefers filed their “motion for new trial or to alter or amend judgment,” asserting that the court dismissed their suit without adequate consideration of their amended petition, filed five days before the summary judgment hearing, which had added two new claims: an implied federal cause of action under section 404 of the Federal Aviation Act of 1958, as amended (the 1958 Act),3 codified at 49 U.S.C.A.App. § 1374 (West 1976 & Pamph.1994);4 and a federal common-law negligence and gross negligence cause of action. In that motion, the Kiefers prayed that the trial court set aside the summary judgment in full, or, in the alternative, that it amend the judgment to reflect that only their state-law cause of action was dismissed. The trial court denied the Kiefers’ motion, and this appeal followed.
Federal preemption is an affirmative defense. See Gorman v. Life Ins. Co. of North America, 811 S.W.2d 542, 546 (Tex.), cert. denied, — U.S. -, 112 S.Ct. 88, 116 L.Ed.2d 60 (1991) (preemption under Employee Retirement Income Security Act (ERISA)); see also City of Houston v. First City, 827 S.W.2d 462, 467-68 (Tex.App.—Houston [1st Dist.] 1992, writ denied) (preemption under federal banking laws pleaded [498]*498as affirmative defense); Dueringer v. General American Life Ins. Co., 842 F.2d 127, 129-30 (5th Cir.1988) (ERISA preemption). When a defendant moves for summary judgment based on an affirmative defense, the defendant has the burden to prove conclusively all the elements of the affirmative defense as a matter of law. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). Unless the movant conclusively establishes the affirmative defense, the non-movant plaintiffs have no burden in response to a defendant’s motion for summary judgment filed on the basis of an affirmative defense. Torres v. Western Casualty & Sur. Co., 457 S.W.2d 50, 52 (Tex.1970).
A summary judgment for the defendant, disposing of the entire case, is proper only if, as a matter of law, the plaintiff could not succeed upon any of the theories pleaded. Havens v. Tomball Community Hosp., 793 S.W.2d 690, 691 (Tex.App.—Houston [1st Dist.] 1990, writ denied); Dodson v. Kung, 717 S.W.2d 385, 390 (Tex.App.—Houston [14th Dist.] 1986, no writ). Once the defendant produces sufficient evidence to establish the right to a summary judgment, the plaintiffs must set forth sufficient evidence to give rise to a fact issue to avoid an adverse summary judgment. “Moore” Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 936-37 (Tex.1972).
When a trial court’s order granting summary judgment specifies the grounds relied on for its ruling, the summary judgment will be affirmed on appeal if the specified grounds are meritorious. State Farm Fire & Casualty Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993); River Consulting, Inc. v. Sullivan, 848 S.W.2d 165, 168-69 (Tex.App.—Houston [1st Dist.] 1992, writ denied).
In their first point of error, the Kiefers assert that the summary judgment was erroneous because section 1305 does not preempt them state common-law negligence cause of action. Section 1305 provides, in pertinent part:
(a) Preemption
(1) [N]o State ... shall enact or enforce any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any air carrier having authority ... to provide [interstate] air transportation.
49 U.S.C.A.App. § 1305 (West Pamph.1994).
The express terms of section 1305 plainly indicate that Congress intended to preclude state lawmaking with respect to some body of subject matter. Within constitutional limits, Congress may, of course, preempt state lawmaking by so stating in express terms. Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed,2d 604 (1977). The question here is not whether state laws have been preempted, as it is in the case of implied preemption, but rather, the extent of that preemption.
The Kiefers contend that the 1978 Act was intended to address economic issues only, and was not intended to preempt state-law remedies for injuries that passengers might incur during the course of receiving “services” from an interstate air carrier. Continental contends that the 1978 Act was also addressed to “safety concerns,” and that, in that aspect, the 1978 Act expressly preempts the Kiefers’ state common-law negligence cause of action, because, Continental reasons, that cause of action “relat[es] to ... services of [an] air carrier having authority ... to provide [interstate] air transportation.”
To support its view, Continental relies primarily upon a pair of Fifth Circuit cases, O’Carroll v. American Airlines, 863 F.2d 11 (5th Cir.1989), cert. denied, 490 U.S. 1106, 109 S.Ct. 3158, 104 L.Ed.2d 1021 (1989), and Baugh v. Trans World Airlines, No. 90-2074, slip op. (5th Cir.1990) (unpublished).5
In O’Carroll, the plaintiff held a valid ticket for a Chaparral Airlines flight between Portland, Maine and Alexandria, Louisiana. When he and his companion, Rollins, boarded [499]*499for the last leg of that trip, they were loud, boisterous, and intoxicated. At one point, Rollins proclaimed his willingness to “help fly the plane.” During the ensuing chain of events, an “irregularity” in O’Carroll’s ticket was discovered; he was asked to disembark; and, uttering obscenities, he refused to move. Ultimately, police officers were called, and removed both O’Carroll and Rollins from the aircraft. O’Carroll sued because of what he alleged to be his wrongful exclusion from that flight, asserting what the Fifth Circuit described only as “various state law claims.” 863 F.2d at 12.
The Fifth Circuit found that O’Carroll’s claims were preempted by section 1305. In so holding, however, the Fifth Circuit relied at least in part on the “broad, expansive discretion,” accorded to air earners about whether to provide services at all, and quoted the following statutory language:
Subject to reasonable rules and regulations prescribed by the Secretary of Transportation, any [interstate air] carrier may ... refuse transportation of a passenger or property when, in the opinion of the carrier, such transportation would or might be inimical to safety of flight.
49 U.S.C.A.App. § 1511(a) (West Pamph. 1994). The Fifth Circuit construed section 1511 to permit carriers to refuse to carry even the holders of valid tickets, but observed also that an implied cause of action against an air earner existed under section 1374 for abuse of the discretion accorded to the carrier under section 1511. 863 F.2d at 12-13.
O’Carroll concerned wrongful exclusion from a flight, an entirely different variety of injury than at issue here. There is no assertion, and no summary judgment evidence, that any of the safety considerations germane under section 1511 were implicated in the transaction between Mrs. Kiefer and Continental.
In Baugh, the facts were similar to those before us here. Baugh was a passenger on a flight from Houston to New York, New York, during which a flight attendant stepped on Baugh’s foot, causing her injury. Slip. op. at 1-2. Like Mrs. Kiefer, Baugh sued the air carrier in Texas state court for personal injuries, asserting a state common-law negligence cause of action. Slip. op. at 2. The carrier removed Baugh’s suit to federal district court based on diversity jurisdiction. Id. The federal district court then found that Baugh’s claim was preempted by section 1305.6 and dismissed her suit under Fed. R.Civ.P. 12(b)(6) for failure to state a claim on which relief may be granted. Slip op. at 1-2. The Fifth Circuit affirmed the dismissal, holding that O’Carroll was controlling and that section 1305 preempted Baugh’s claim because, given that Baugh’s claim “ha[d] a connection with or reference to” services of an ah’ carrier, the prosecution of that claim would constitute the enforcement of a “law ... relating to ... services of [an] air carrier.” Slip op. at 2-3, 6. The court went on to conclude that any state-law claim based on an injury caused during a flight by an airline employee acting in the course of his employment arises out of the services of an air carrier, and is therefore barred under section 1305.7
We begin by noting that in three of the older cases in this line, without any mention of preemption, the federal courts addressed [500]*500and disposed of claims for personal injuries incurred when items fell from overhead storage bins. See Plagianos v. American Airlines, Inc., 912 F.2d 57 (2nd Cir.1990) (unsecured compartment popped open during takeoff); Smith v. Piedmont Airlines, Inc., 728 F.Supp. 914 (S.D.N.Y.1989) (compartment popped open on landing); Duchesne v. American Airlines, Inc., 758 F.2d 27 (1st Cir.1985) (flight attendant opened overhead bin and caused metal luggage carrier to fall onto Duchesne’s head). Standing alone, that silence in those cases would not, of course, warrant the conclusion that personal injury claims were not preempted by section 1305; however, the federal district court in Stewart v. American Airlines, Inc.8 — one of the latest cases in this line, which we discuss below— looked to that same silence in a post-Baugh Fifth Circuit precedent9 as part of the analysis by which it ultimately reached that very conclusion. See 776 F.Supp. at 1199-1200. Accordingly, we take note of the silence in those three older cases, in the interest of a complete analysis; but that is merely the beginning, not the end, of the analysis.
[499]*499Continental asserts that O’Carroll and Baugh clearly indicate that the Kiefers’ state-law claims are preempted, and apparently argues that those decisions control the disposition of this case. We disagree. As noted above, O’Carroll is distinguishable from the case before us. Moreover, at the threshold, Continental’s analysis fails to take adequate account of relevant decisions of the other federal courts of appeals and federal district courts.
[500]*500In West v. Northwest Airlines, Inc., 923 F.2d 657 (9th Cir.1990), vacated, — U.S. - and -, 112 S.Ct. 2932 and 2986, 119 L.Ed.2d 558 and 120 L.Ed.2d 864 (1992),10 West, a ticket holder who was denied a seat on an overbooked flight, sued the airline for, inter alia, breach of the covenant of good faith and fair dealing under Montana law. 923 F.2d at 658-59. The district court granted summary judgment for Northwest on that claim, holding that West’s state-law claim was preempted by section 1305(a)(1). The Ninth Circuit reversed, saying
we disagree with Northwest and the district court that “law[s] ... relating to airline services” encompass all state laws that affect airline services, however tangentially. This interpretation of § 1305(a)(1) would unduly expand preemption and ignore our presumption against federal preemption in this traditional state law area. Instead, we find that Section 1305(a)(1) preempts claims only when the underlying statute or regulation itself relates to airline services, regardless of whether the claim arises from a factual setting involving airline services. Thus, state laws that merely have an effect on airline services are not preempted.... [I]n the instant case state law simply imposes a duty on all persons entering into contracts to act with good faith and fair dealing. The fact that this duty is applicable to airlines as well as the general public does not invoke federal preemption. We find, therefore, that West’s state law claims are not expressly preempted by the [Federal Aviation Act of 1958].
923 F.2d at 660.
In Salley v. Trans World Airlines, Inc., 723 F.Supp. 1164 (E.D.La.1989), the Salleys brought both state-law claims and a federal claim under section 1374, based on the airline’s refusal, for reasons unrelated to flight safety, to carry them. 723 F.Supp. at 1165, 1166. Based on O’Carroll, the district court initially granted partial summary judgment for the airline, and dismissed the Salleys’ state-law claims as preempted by the 1958 Act. 723 F.Supp. at 1165. Trans World then moved for summary judgment to dismiss the Salleys’ section 1374 claim, asserting that that section had ceased to be effective before the events giving rise to their claims occurred. Id. Upon the Salleys’ motion for reconsideration of the dismissal of their state-law claims, the district court reinstated the Salleys’ state-law claims, at least in part because it concluded that the dismissal of the federal claim would otherwise have left the Salleys without any cause of action. The coui’t explained its decision, saying:
Initially, this Court read the O’Carroll decision as broadly holding that no state laio claims may be brought in suits complaining of airline services. This was the interpretation urged by TWA, which noted that under O’Carroll, the Salleys would still have a federal cause of action under [49 U.S.C.A.App.] § 1374. On reconsidéra[501]*501tion, and in view of the fact that § 1374 ceased to be effective [on January 1, 1985, after the events giving rise to the Salleys’ cause of action], the O’Carroll decision should be read more narrowly[.]
723 F.Supp. at 1165 (emphasis added).11
In Stewart v. American Airlines, Inc., 776 F.Supp. 1194 (S.D.Tex.1991), Stewart was a passenger aboard an American commuter flight, and suffered neck injuries when the aircraft landed with a deflated nose gear tire. 776 F.Supp. at 1195. He brought state-law tort claims in state district court, alleging that American was negligent in, inter alia, failing properly to maintain the aircraft. 776 F.Supp. at 1195, 1196-97. American removed the case to federal district court, based on its assertion that Stewart’s claims were preempted, and then, on that same basis, moved to dismiss the suit.12 776 F.Supp. at 1195. The Stewart court distinguished Trans World Airlines, Inc. v. Mattox, 897 F.2d 773 (5th Cir.1990), cert. denied, 498 U.S. 926, 111 S.Ct. 307, 112 L.Ed.2d 261 (1990), and cert. denied, — U.S. -, 112 S.Ct. 2956, 119 L.Ed.2d 578 (1992); O’Carroll; and other cases also holding state-law claims preempted by section 1305,13 and instead relied upon Salley and several other decisions;14 it held that Stewart’s claims were not related to “services” within the meaning of section 1305; did not, in any event, conflict with the express provisions of the 1958 Act, as amended; and were not preempted. 776 F.Supp. at 1198, 1199. Accordingly, the court remanded the action to the 281st District Court of Harris County. 776 F.Supp. at 1200.
The Fifth Circuit’s interpretation, in O’Carroll and Baugh, of the extent of federal [502]*502preemption of state law by section 1305, found little favor among the other federal courts, including the federal district courts of the circuit. The Salley and Stewart courts, which were bound to follow any Fifth Circuit precedent on point, distinguished O’Carroll and Baugh; moreover, the Stewart court did so in the context of a passenger’s claim for personal injuries.
Finally, in Margolis v. United Airlines, Inc., 811 F.Supp. 318 (E.D.Mich.1993), one more district court weighed in against Baugh. Margolis sued for injuries allegedly sustained when an item fell on her from an overhead bin. United moved to dismiss the complaint based on federal preemption. The court, with full cognizance and consideration of Morales, held that Margolis’s claims were not preempted, and denied United’s motion to dismiss. 811 F.Supp. at 319.
After Margolis, the Fifth Circuit has distanced itself from its own decision in Baugh. In Hodges v. Delta Airlines, Inc., 4 F.3d 350 (5th Cir.1993), the court said that Hodges’ claim for injuries caused by an object falling from an overhead bin was not preempted, but nevertheless affirmed the district court’s summary judgment in Delta’s favor, with the observation that Baugh compelled that result. 4 F.3d at 356. The panel then suggested, in its opinion, en banc review.15 The same day, the same panel also issued Smith v. America West Airlines, Inc., 4 F.3d 356 (5th Cir.1993), concerning state law negligence claims arising from an airliner hijacking, which the district court dismissed as preempted by section 1305. Again, the court was compelled, by its Baugh decision, to affirm. “Until this court overturns or modifies its opinions in Baugh and O’Carroll,” it said, “further speculation on the preemptive scope of section 1305 is moot.” 4 F.3d at 358.
On January 12, 1994, the Fifth Circuit ordered Hodges reheard en banc. See 12 F.3d 426.
Unlike the Salley and Stewart courts, and the Fifth Circuit itself, this Court is not bound to follow the decisions of the Fifth Circuit or the other lower federal courts. Carlisle v. Philip Morris, Inc., 805 S.W.2d 498, 505 (Tex.App.—Austin 1991); Barstow v. State, 742 S.W.2d 495, 501 n. 2 (Tex.App.—Austin 1987, writ denied); Woodard v. Texas Dept. of Human Resources, 573 S.W.2d 596, 598 (Tex.Civ.App.—Amarillo 1978, writ ref'd n.r.e.). We are free to interpret federal law independently, though in the first instance we typically seek guidance from among the decisions of the lower federal courts. See ASARCO v. Radish, 490 U.S. 605, 617, 109 S.Ct. 2037, 2045, 104 L.Ed.2d 696 (1989) (state courts possess authority, absent provision for exclusive federal jurisdiction, to render binding judicial decisions that rest on their own interpretations of federal law).16 When we do seek that guidance, we may choose to depart from the course the Fifth Circuit has taken, and instead follow decisions of other circuits or even those of federal district courts, if we find those decisions to be better-reasoned.17 That is the case here.
Were we to follow O’Carroll and Baugh, then, absent an extension of the implied cause of action under section 1374 [503]*503found in O’Carroll to the redress of personal injuries incurred while receiving airline services, the Kiefers and others similarly situated would have no legal remedy. In the absence of a clear Congressional expression of both an intention to effect that very result and a legitimate governmental purpose for it, we find such a result unlikely, and we are unwilling to believe that it is in keeping with Congress’ intent. In statutory construction, our interpretation must be fair, rational, and reasonable, Wilkomirski v. Texas Criminal Information Center, 845 S.W.2d 424, 426 (Tex.App.—Houston [1st Dist.] 1992, no writ), and contrary conclusions or deductions are to be avoided, Texas Employers’ Ins. Ass’n v. Holmes, 145 Tex. 158, 196 S.W.2d 390, 409 (1946) (dissenting opinion).18 We find ourselves in the same position that once confronted the U.S. Supreme Court, when considering a similar contention that a state common-law tort action was preempted by federal law:
Here Congress has neither provided nor suggested any substitute for the traditional state court procedure for collecting damages for injuries caused by tortious conduct. For us to cut off the injured [parties] from this right of recovery will ... in effect, grant [the alleged tortfeasor] immunity from liability for [its allegedly] tor-tious conduct. We see no substantial reason for reaching such a result.
United Constr. Workers v. Laburnum Constr. Corp., 347 U.S. 656, 663-64, 74 S.Ct. 833, 837, 98 L.Ed. 1025 (1954). Likewise, in the absence of a clear Congressional expression of an intention to preempt state common-law negligence claims for personal injuries arising out of the services of an air carrier, we see no substantial reason to hold that the Kiefers’ claims are preempted by section 1305, only to likely hold, in turn, that an implied cause of action under section 1374 to redress those same injuries necessarily exists.
The decision we reach here finds further support in the United States Supreme Court’s decision in Morales v. Trans World Airlines, Inc., — U.S. -, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). There, the Court considered whether the 1978 Act “preempts the States from prohibiting allegedly deceptive airline fare advertisements through enforcement of their general consumer protection statutes.” — U.S. at -, 112 S.Ct. at 2034. The Court answered that question in the affirmative, holding that the particular fare advertising provisions before it, embodied in the Air Travel Industry Enforcement Guidelines promulgated by the National Association of Attorneys General, were expressly preempted by section 1305. — U.S. at -, 112 S.Ct. at 2041.
As noted above,19 the Court vacated the West decision for reconsideration in light of Morales. - U.S. at -, -, 112 S.Ct. at 2932, 2986. In doing so, however, the Court, on our reading, neither disagreed with the Ninth Circuit’s conclusion in West that state laws that merely have some tangential effect on airline services are not preempted, nor adopted the contrary reasoning Northwest had successfully urged upon the district court in West. The five-member Morales majority acknowledged that some state actions may affect rates, routes or services in “too tenuous, remote, or peripheral a manner” to be preempted by even the expansive “relates to” preemptive language of section 1305, but then held, simply, that the facts before the Court did not present a borderline question, and declined to express any view about “where it would be appropriate to draw the line.” — U.S. at -, 112 S.Ct. at 2040. Moreover, the three dissenters in Morales reasoned much as had the West court, saying “the presumption against preemption of traditional state regulation counsels that we not interpret [section 1305(a) ] to pre-empt every traditional state regulation that might have some indirect connection [504]*504with or relationship to airline rates, routes, or services unless there is some indication that Congress intended that result.” — U.S. at -, 112 S.Ct. at 2056. Looking beyond the language of section 1305 itself to divine the underlying Congressional intent, the dissent first noted (as had the majority) that when Congress enacted the 1978 Act, it retained the savings clause of the 1958 Act, codified at 49 U.S.C.A.App. § 1506 (West 1976), that had preserved common-law and statutory remedies.20 The dissent next observed that “the state prohibitions against deceptive practices that had coexisted with federal regulation in the airline industry for 40 years [between 1938 and 1978] ... were not mentioned in either the [1978 Act] or its legislative history”; then analyzed the House, Senate, and Conference Reports on the 1978 Act,21 and found “no indication that House and Conferees thought ... [the House’s] ‘relating to rates, routes, or services’ [language] pre-empted substantially more than state laws ‘regulating rates, routes, or services’ and, ultimately, concluded that Congress had not intended, in the 1978 Act, to “pre-empt every state and local law and regulation that ... increases the airlines’ costs of doing business and, consequently, has a ... ‘significant impact’ upon their rates[, routes, or services].” — U.S. at -, -, -, 112 S.Ct. at 2057, 2058, 2059.
Here, like the Morales dissenters, we have also reviewed the 1978 Act and the associated House, Senate, and Conference Reports, and we find no express reference to suits for personal injuries arising out of the services of an air carrier. However, section 20(d)(1) of the 1978 Act, codified at 49 U.S.C.A.App. § 1371(q) (West Pamph.1994), imposes a requirement that an air carrier maintain insurance, as ordered by the Civil Aeronautics Board,22 for paying “amounts for which ... such air carrier may become liable for bodily injuries to or the death of any person, or for loss of or damage to property of others, resulting from the operation or maintenance of aircraft[.]” Section 33(a) of the 1978 Act, codified in pertinent part at 49 U.S.C.A.App. § 1389(h) (West Pamph.1994), repeats, without material difference, that same requirement, imposing it as a prerequisite to any air carrier receiving government compensation for providing essential air service to small communities; and section 32, codified in pertinent part at 49 U.S.C.A.App. § 1386(b)(4) (West Pamph.1994), imposes upon so-called commuter air carriers a similar requirement that they “eonform[ ] to such liability insurance requirements ... as the Board shall from time to time adopt in the public interest.” Plainly, these insurance requirements contemplate that suits in which the plaintiffs seek compensation for personal injuries or property loss resulting from the operation or maintenance of aircraft will or may be brought against air carriers. Equally plainly, Congress did not, in the 1978 Act, intend to preclude such suits; if such suits were precluded, the insurance requirements of the Act would be nonsensical, given that they would unnecessarily financially burden air carriers while providing no substantial benefit to the public in return.
Neither the 1978 Act nor any of the three Congressional reports elaborates upon or further explains these insurance requirements, or their relation to the suits they contemplate. Moreover, neither the Act nor the reports mentions the forum or fora in which Congress contemplated such suits would or might be brought, or the source or sources — i.e. state law or federal law — of the causes of action that might be pleaded in any such suit. In the absence of any such men[505]*505tion, we conclude that Congress did not intend to alter existing law on either matter.
As did the Morales majority, we express no opinion about precisely where the delineation between those state laws which are preempted by section 1305, and those which are not, properly should he. Likewise, we also believe that the facts before us do not present a borderline case. The Morales court decided that the state laws at issue there, regulating airline fare advertisements, lay well on one side of that yet-to-be-delineated border. Personal injury suits, traditionally within the separate sphere of governmental authority reserved to the states under our federalist system, likewise lie well on the other side of that border.
Even though they generally have the potential to increase the air carrier’s cost of doing business, claims for personal injuries are not preempted by section 1305 merely because they arise from a factual setting involving airline services. We hold that the Kiefers’ respective state common-law negligence claims for personal injuries and loss of society were not expressly preempted by section 1305.
In addition to express preemption, federal law may also preempt state law either by implication from pervasiveness of a federal regulatory scheme which indicates a Congressional intent to occupy the field, or, to the extent of the conflict, by conflict with state law. O’Carroll, 863 F.2d at 12; Osburn v. Anchor Laboratories, 825 F.2d 908, 911 (5th Cir.1987), cert. denied, 485 U.S. 1009, 108 S.Ct. 1476, 99 L.Ed.2d 705 (1988). However, we read the trial court’s order as having granted summary judgment exclusively on the basis of express preemption. Accordingly, neither implied preemption nor preemption by conflict may be considered here as grounds for affirming the summary judgment.
At the time it ruled, the trial court lacked the guidance of Stewart and Morales in particular, and the court erred when it granted summary judgment for Continental on the Kiefers’ state common-law negligence claims.
Point of error one is sustained.
In their remaining points of error, the Kiefers complain of the denial of the motion for new trial or to alter or amend the summary judgment, and assert that the summary judgment was erroneous because they have an implied cause of action under section 404 of the 1958 Act (point two); because they have a cause of action under federal common law (point three); and because if section 1305 is applied so that they have no legal remedy for the injuries they suffered here, then the Act as a whole and/or section 1305 violates the equal protection of the laws guaranteed to them under the' fourteenth amendment (point four). In their prayer for relief, the Kiefers plainly state that they seek a holding that section 1305 does not preempt their state common-law cause of action, and a consequent reversal and remand to the trial court for trial on the merits. Their prayer shows that they present points two through four only in the alternative. Accordingly, having sustained the Kiefers’ first point of error, we do not reach them remaining points. We express no opinion on the trial court’s denial of the Kiefers’ motion for new trial or to alter or amend the summary judgment.
The summary judgment for Continental on the Kiefers’ state common-law negligence claims is reversed and remanded for trial on the merits.
HUTSON-DUNN, J, dissenting.