Arbaugh v. Procter & Gamble Mfg. Co.

• Decision Date: 27 April 1978
• Citation: 80 Cal.App.3d 500,145 Cal.Rptr. 608
• Court: California Court of Appeals Court of Appeals
• Parties: Glen O. ARBAUGH, Plaintiff and Respondent, v. PROCTER & GAMBLE MANUFACTURING CO., Defendant and Appellant, Transport Indemnity Company, Intervenor and Respondent. Civ. 51133.

Page 608

145 Cal.Rptr. 608

80 Cal.App.3d 500

Glen O. ARBAUGH, Plaintiff and Respondent, v. PROCTER & GAMBLE MANUFACTURING CO., Defendant and Appellant Transport Indemnity Company, Intervenor and Respondent.

Civ. 51133.

Court of Appeal, Second District, Division 3, California.

April 27, 1978.

Hearing Denied June 22, 1978.

Fernandes & Le Berthon and James Fernandes, Los Angeles, for defendant and appellant.

Lowen H. Stanley and Lascher & Wilner, Los Angeles, for plaintiff and respondent.

Gerald G. Reppetto and Lascher & Wilner, Los Angeles, for intervenor and respondent.

GOERTZEN, ^* Associate Justice.

Defendant Procter & Gamble Manufacturing Co. (hereinafter "defendant") appeals from a judgment entered in favor of plaintiff Glen O. Arbaugh ("plaintiff") and plaintiff-in-intervention Transport Indemnity Co. ("intervenor").

Plaintiff brought this action against defendant to recover damages for personal injuries he sustained at a warehouse owned by defendant while in the course of his employment for Signal Trucking Co. ("Signal"). The intervenor herein was Signal's workers' compensation insurance carrier at the time of the accident. Also named in plaintiff's action was Thompson Brothers, Inc., another trucking company which operated within defendant's warehouse; plaintiff and intervenor both eventually settled with Thompson Brothers, however, and the action was dismissed as to that defendant.

FACTS ¹

On November 5, 1971, plaintiff was working at defendant's Long Beach warehouse and soap loading dock while employed by Signal as a "spotter." Plaintiff's duties consisted of backing empty truck trailers up to the loading dock in their proper position ("spotting") and then towing them away after they had been loaded.

After a trailer had been backed against the loading dock, the tractor would be disengaged so that it could be used to move other trailers. When this was done, a device known as a "nose cone" would be placed beneath the front end of the trailer to prevent it from tipping during the loading process. This device, which stood approximately 38 or 39 inches in height, consisted of a metal pipe rising vertically from the center of a horizontal truck wheel rim.

While the handling of nose cones was primarily the responsibility of Signal employees, defendant's employees also occasionally moved them. Employees were instructed to place nose cones which were not in use against the loading dock wall because of the safety hazard they represented. Despite this policy, nose cones were frequently left standing on the cement apron which led up to the loading dock in order to allow easy access to them.

On the day in question, plaintiff was seriously injured when his right foot landed on a misplaced nose cone as he was descending from a tractor-trailer which he had spotted at defendant's loading dock.

Plaintiff's action against defendant was based on theories of negligence, negligent maintenance of property, and breach of duty by a "statutory employer." ² A bifurcated jury trial resulted in a special verdict wherein the jury determined that defendant and plaintiff's employer, Signal, had both been negligent, apportioning the negligence 50% To each; the jury found that plaintiff had not been negligent in caring for his own safety. The jury then awarded damages to plaintiff in the sum of $340,000 which included $44,836.17 in workers' compensation benefits which had previously been paid to plaintiff by intervenor.

The court subsequently entered judgment against defendant and in favor of plaintiff in the sum of $294,163.83, and in favor of intervenor in the sum of $21,918.08, the details of which are set forth infra.

CONTENTIONS

Defendant makes the following contentions:

1. The court erred in its apportionment of the damages between defendant and plaintiff's employer (as represented herein by intervenor);

2. The evidence was insufficient to support the verdict that plaintiff had not been negligent;

3. The court erred in instructing the jury;

4. Plaintiff's and intervenor's counsel engaged in prejudicial misconduct in their arguments to the jury.

DISCUSSION

We find that defendant's last three contentions lack substantial merit and therefore affirm the judgment insofar as it adjudges defendant liable to plaintiff for his injuries. We conclude, however, that the court erred in allowing the intervenor any recovery on its claim for reimbursement of workers' compensation benefits paid since the amount of total damages which could be attributed to the negligence of plaintiff's employer was greater than the sum of those payments.

1. Apportionment of Damages

The judgment entered by the court was determined as follows: The $340,000 damage figure arrived at by the jury was reduced by $44,836.17, the amount of workers' compensation benefits paid by the intervenor; this sum was further reduced by $1,000, representing the amount received by plaintiff in settlement with Thompson Brothers, resulting in a judgment for plaintiff in the sum of $294,163.83. The court then entered judgment for intervenor in the sum of $21,918.08, representing 50% (the percentage of negligence attributable to plaintiff's employer) of its lien claim for $44,836.17, minus $500 previously received by intervenor from Thompson Brothers. ³

Defendant contends that the court's apportionment of damages was in error insofar as it (1) failed to limit defendant's liability to 50% Of plaintiff's damages, the proportionate share of defendant's fault; and (2) permitted intervenor a reimbursement on its lien for compensation benefits paid when that lien represented less than 50% Of plaintiff's total damages.

Defendant's contention is based primarily on the holding in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, which abrogated the doctrine of contributory negligence previously followed in this state in favor of a system of pure comparative negligence, whereby "liability for damage will be borne by those whose negligence caused it in direct proportion to their respective fault." (Id. at p. 813, 119 Cal.Rptr. at p. 864, 532 P.2d at p. 1232, fn. omitted.)

Defendant's argument that it should have been held liable for no more than 50% Of plaintiff's damages is untenable, however, in light of the recent decision in American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 143 Cal.Rptr. 692, 574 P.2d 763, wherein our Supreme Court held that the adoption of comparative negligence by this state did not compel the abandonment of the well-established doctrine of joint and several liability. As stated by the court: ". . . our adoption of comparative negligence to ameliorate the inequitable consequences of the contributory negligence rule does not warrant the abolition or contraction of the established 'joint and several liability' doctrine; each tortfeasor whose negligence is a proximate cause of an indivisible injury remains individually liable for all compensable damages attributable to that injury." (Id. at p. 583, 143 Cal.Rptr. at p. 694, 574 P.2d at p. 765.)

We note that it had been suggested previous to the decision in American Motorcycle that even if the courts chose to retain joint and several liability after Li, actions in which an employee injured in the course of his employment sues a responsible third party (the so-called "third party suit") could be distinguished and treated differently. (Note, Third Party and Employer Liability After Nga Li v. Yellow Cab Company for Injuries to Employees Covered by Workers' Compensation (1977) 50 So.Cal.L.Rev. 1029, 1039.)

The reason for distinguishing such cases is not difficult to discern. In most third party suits, the employee has also made a claim for workers' compensation benefits from his employer, which benefits figure prominently in the determination of how damages should be allocated among the respective parties. Workers' compensation benefits are the product of a statutory system of employer liability not dependent upon proof of fault. (Cal.Const., art. 14, § 4.) With certain exceptions not here relevant, an injured employee's only remedy against his employer is a claim for workers' compensation; thus, the employer is generally immune from tort liability. (Lab.Code, § 3601, subd. (a).) Furthermore, unless there is a written agreement to the contrary, an employer is not obligated to indemnify a third party who has been found liable to an employee who was injured as the result of the joint negligence of the employer and the third party. (Lab.Code, § 3864.) The adoption of comparative negligence in Li did not alter this last rule. (E. B. Wills Co. v. Superior Court (1976) 56 Cal.App.3d 650, 128 Cal.Rptr. 541.)

As a result of the above, the retention of joint and several liability in third party suits can produce the type of inequitable apportionment of damages apparent in the case at bench. Here, both defendant and Signal were found to be 50% Negligent in causing plaintiff $340,000 in damages. In absolute terms, each party's liability should have been $170,000. Yet, because Signal's liability was limited to workers' compensation benefits, which in this case totaled $44,836.17, the application of the rule of joint and several liability leaves defendant with a disproportionate share of damages to pay if plaintiff is to be fully compensated for his injuries.

We note that the court in American Motorcycle sought to avoid some of the inequities resulting from the retention of joint and several liability after Li by modifying the all-or-nothing rule of equitable indemnity previously followed in this state so as "to permit a concurrent tortfeasor to obtain partial indemnity from other concurrent tortfeasors on a comparative fault basis." (American Motorcycle Assn. v. Superior Court, supra, 20 Cal.3d 578, 599, 143 Cal.Rptr. 692, 705, 574 P.2d 763, 776.) As stated in the opinion, " '(t)here is obvious lack of sense and justice in a rule which permits the entire burden...