Busboom v. Superior Court

• Decision Date: 18 December 1980
• Citation: 113 Cal.App.3d 550,169 Cal.Rptr. 886
• Court: California Court of Appeals Court of Appeals
• Parties: Richard BUSBOOM, Petitioner, v. SUPERIOR COURT, etc., County of San Diego, Respondent; Thomas E. KELLER, Real Party in Interest. Civ. 24096.

Page 886

169 Cal.Rptr. 886

113 Cal.App.3d 550

Richard BUSBOOM, Petitioner, v. SUPERIOR COURT, etc., County of San Diego, Respondent Thomas E. KELLER, Real Party in Interest.

Civ. 24096.

Court of Appeal, Fourth District, Division 1, California.

Dec. 18, 1980.

Glen R. Roberts and Andrew F. Lloyd, San Diego, for petitioner.

No appearance for respondent.

Higgs, Fletcher & Mack and Dennis P. Hickman, San Diego, for real party in interest.

GERALD BROWN, Presiding Justice.

The issue is whether Taylor v. Superior Court, 24 Cal.3d 890, 157 Cal.Rptr. 693, 598 P.2d 854, permitting recovery of punitive damages in an appropriate drunk driving case, shall apply retroactively to accidents occurring before August 1979. One appellate court has addressed the issue and declined to apply Taylor retroactively (Mau v. Superior Court, 101 Cal.App.3d 875, 161 Cal.Rptr. 895). Feeling bound by that decision, the superior court here granted partial summary judgment to defendant/real party Thomas Keller, eliminating from petitioner Busboom's complaint the allegations and damages claim concerning punitives.

Petitioner Richard Busboom and his brother Dean were riding motorcycles when Dean was run down by Keller, driving a car in the wrong lane while drunk. Richard was seriously injured when he fell from his motorcycle while trying to avoid Keller's car. He also witnessed Dean's death. He brought this lawsuit along with the parents of both boys, who however have since settled. Although the original complaint, filed October 24, 1978 (based on an accident of Aug. 31, 1978) alleged in general terms Keller's willful, reckless and wanton misconduct, those allegations were not sufficient to recover punitive damages. (See G.D. Searle & Co. v. Superior Court, 49 Cal.App.3d 22, 122 Cal.Rptr. 218, requiring specific allegation of conscious disregard of safety.) However, after Taylor came down in August 1979, Richard sought leave to amend his complaint with appropriate allegations, and the superior court granted such leave on March 6, 1980, soon after Mau, supra, was decided. The amendment is sufficient under both Taylor, supra, and G.D. Searle, supra, in that Richard specifically alleges Keller voluntarily consumed alcohol, knowing he would then operate a motor vehicle, and drove while drunk, knowing the safety hazard he created and aware of the probable dangerous consequences of his conduct, which he willfully and deliberately failed to avoid. It is alleged that conduct shows conscious and deliberate disregard for the safety and interest of others.

The Mau decision gives two reasons for nonretroactivity: first, the rationale for punitives is deterrence, but retrospective deterrence makes no sense; and second, insurance companies have relied on the earlier law in figuring rates, and it would be unfair to penalize them by retroactive application of Taylor. Neither reason is particularly realistic. It is unlikely drunk drivers are deterred by the threat of punitives over and above already existing risks of drunk driving (e. g., loss of license, jail sentence, death or injury, cancellation of insurance, loss of status in some communities). As for insurance companies, they fix their rates with reference to many factors and their policies do not cover punitive damages.

Overruling decisions, especially in the tort field, are normally applied retroactively unless there has been great public reliance on the earlier rule, the new rule was nowhere foreshadowed, and it would be unfair to apply the rule retrospectively. (E.g., County of Los Angeles v. Faus, 48 Cal.2d 672, 680, 312 P.2d 680; Forster Shipbldg. Co. v. County of L.A., 54 Cal.2d 450, 459, 6 Cal.Rptr. 24, 353 P.2d 736; Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal.3d 176, 193, 98 Cal.Rptr. 837, 491 P.2d 421; In re Marriage of Brown, 15 Cal.3d 838, 850, 126 Cal.Rptr. 633, 544 P.2d 561.)

The seminal decision precluding recovery of punitives in a drunk driving case is Gombos v. Ashe, 158 Cal.App.2d 517, 322 P.2d 933, decided in 1958. At that time the standards for recovery of punitives were unclear, especially in the area of unintentional torts. As pointed out in Taylor, since that time, tort law has been evolving toward a principle of recovery based on a finding of conscious disregard of safety. (Taylor v. Superior Court, supra, 24 Cal.3d 890, 896, 157 Cal.Rptr. 693, 598 P.2d 854.) That trend crystallized in G.D. Searle, supra, decided in 1975, articulating the standard in the context of liability for defective drugs. Other cases associating liability with some form of reckless disregard for safety include, most importantly, Silberg v. California Life Ins. Co., 11 Cal.3d 452, 464, 113 Cal.Rptr. 711, 521 P.2d 1103 (punitives for insurance company's breach of good faith covenant premised on showing of conscious disregard of plaintiff's rights). (See also Neal v. Farmers Ins. Exchange, 21 Cal.3d 910, 922, 148 Cal.Rptr. 389, 582 P.2d 980.) Not only did this development foreshadow Taylor, but it also resulted in a majority of other courts in this country permitting punitives in a proper drunk driving case (65 A.L.Rev.3d (1975) 656, 661-666), and caused Dean Prosser in 1971 to express his view that malice might encompass conscious or deliberate disregard of others' interests. (Prosser, Law of Torts (4th ed. 1971) § 2, pp. 9-10.) The decision in Taylor was hardly unexpected, and was in fact not foreseeable only by those who chose not to look.

Commercial reliance has not been a traditional basis for prospective application. (See, e. g., Wellenkamp v. Bank of America, 21 Cal.3d 943, 953-954, 148 Cal.Rptr. 379, 582 P.2d 970 (due on sale clauses).) Tort cases, although inevitably affecting insurance rates to the same extent as here, are normally applied retroactively. (...