Canavin v. Pacific Southwest Airlines

• Decision Date: 28 October 1983
• Citation: 196 Cal.Rptr. 82,148 Cal.App.3d 512
• Parties: Madonna CANAVIN, et al., Plaintiffs and Appellants, v. PACIFIC SOUTHWEST AIRLINES, Defendant and Respondent. Civ. 24595.
• Court: California Court of Appeals Court of Appeals

Page 82

196 Cal.Rptr. 82

148 Cal.App.3d 512

Madonna CANAVIN, et al., Plaintiffs and Appellants, v. PACIFIC SOUTHWEST AIRLINES, Defendant and Respondent.

Civ. 24595.

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

Oct. 28, 1983.

Hearing Denied Jan. 5, 1984.

Good & Novack and Ned Good, Pasadena, for plaintiffs and appellants.

Kern, Wooley & Maloney and Ralph S. LaMontagne, Jr., Los Angeles, for defendant and respondent.

WORK, Associate Justice.

Madonna Canavin, individually and as guardian ad litem for her three children, appeals the $750,000 lump-sum jury judgment in a wrongful death action against Pacific Southwest Airlines (PSA) after a plane crash killed Joseph Reed Canavin, her husband and their father. She contends the trial court erred in: (1) not instructing the jury to award damages for grief and sorrow; (2) improperly considering decedent's income taxes in determining future pecuniary losses; (3) excluding relevant evidence so as to deprive them of a fair trial; (4) improperly denying prejudgment interest; (5) failing to acquire individual jury verdicts for each heir; and (6) engaging in other misconduct.

The doctrine of stare decisis and the state of the pleadings in this case force us to conclude the trial court properly refused to instruct on grief and sorrow. We redetermine a portion of our decision in Fox v. Southwest Airlines, 133 Cal.App.3d 565, 184 Cal.Rptr. 87, and hold the Canavins are entitled to prejudgment interest on that portion of the award representing their economic loss before the date of judgment. We hold the jury returning a single, unallocated lump-sum verdict representing the total of the awards for each beneficiary as directed by statute does not deny the individual claimants their rights to jury trial. However, we recommend trial courts require juries to answer special interrogatories stating the amounts they include to compensate each individual claimant, to assist in final apportionment of the award. Reversal is mandated because the trial court allowed the jury to consider evidence of both decedent's gross and net future earnings and to consider present-value discount rates derived from both taxable and nontaxable investments, without providing instructional guidelines. This permitted the jury to use after-tax earnings in computing total lost future support, and reduce that total to present value by the higher discount rate established through use of taxable investments, without any corresponding increase in the award to offset the taxes to be incurred on the investment income.

Factual and Procedural Background

Dr. Joseph Canavin, age 33, died in a PSA aircrash September 25, 1978, in San Diego. He was a brilliant dynamics engineer with a national reputation in the research field of dynamics and control of large flexible space satellites and a member of the Advanced Systems Department at Draper Laboratories in Massachusetts, working on classified matters of national significance. He is survived by his wife and three young children.

The Canavins were married in 1969, and maintained a strong familial unit. Decedent was a loving, caring and devoted husband and a proud, considerate, conscientious and active father who, at age 32, was recognized for his contributions in structural dynamics and was the leading authority in his specialty. After graduating from Case Institute of Technology in 1967, he received his masters and Ph.D. from U.C.L.A. From mid-1976 his research included control of the vibration of large space craft, such as satellite shuttles and missiles, and he assisted the government in evaluating contractors' proposals and monitoring their progress. His salary at death was approximately $32,000 a year, plus fringe benefits.

PSA conceded liability and the matter was tried solely on damages, the jury returning an unapportioned verdict for all heirs in the sum of $750,000. A motion for additur was denied.

I. THE TRIAL COURT PROPERLY REFUSED TO INSTRUCT THE JURY TO AWARD DAMAGES FOR GRIEF AND SORROW

In contending the trial court erred by not instructing the jury grief and sorrow is a proper element of damages in a wrongful death action, the Canavins ask us to reverse a " 'judicially created' misinterpretation of a statute that is medieval, unjust, and out-of-touch with 20th century reality." However, as an intermediate appellate court, the doctrine of stare decisis compels us to deny the request. (Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) In Krouse v. Graham, 19 Cal.3d 59, 72, 137 Cal.Rptr. 863, 562 P.2d 1022, our Supreme Court stated: "California cases have uniformly held that damages for mental and emotional distress, including grief and sorrow, are not recoverable in a wrongful death action." Relying on Parsons v. Easton, 184 Cal. 764, 770, 195 P. 419, Bond v. United Railroads, 159 Cal. 270, 285-286, 113 P. 366, Dickinson v. Southern Pacific Co., 172 Cal. 727, 731, 158 P. 183, and Munro v. Dredging etc. Co., 84 Cal. 515, 525, 24 P. 303 (Krouse v. Graham, supra, 19 Cal.3d at pp. 69, 72-73, 137 Cal.Rptr. 863, 562 P.2d 1022), the court in Krouse expressly found reversible error where inconsistent and confusing instructions regarding wrongful death damages were given and a sizable plaintiff's verdict was rendered which "may very well have included a substantial award for their grief and suffering ...." (Id., at pp. 72-73, 137 Cal.Rptr. 863, 562 P.2d 1022.)

The Canavins' ask us to ignore this case precedent under the rationale of Molien v. Kaiser Foundation Hospitals, 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813, recognizing rapid developments in the tort of negligent infliction of emotional distress governed by the basic principles of foreseeability and no longer shackled by the requirement of physical injury, and holding damages for emotional injuries are now independent and non-parasitic in character. Preliminarily, Molien and its progeny (e.g., Sesma v. Cueto, 129 Cal.App.3d 108, 181 Cal.Rptr. 12) are inapposite, because the Canavins neither pleaded an independent cause of action for personal injury based upon emotional distress arising from PSA's negligent killing of decedent, nor alleged they had suffered any damage as a result of grief and sorrow. Neither did they offer to amend their pleadings to state an action for emotional distress. ¹

More basically, Molien is inapposite because emotional injuries to the heirs are not relevant to a cause of action for wrongful death. "Rather, the measure of damages [in a wrongful death action] is the value of the benefits the heirs could reasonably expect to receive from the deceased if [he or] she had lived [citation]." (Allen v. Toledo, 109 Cal.App.3d 415, 423, 167 Cal.Rptr. 270; Morales v. Superior Court, 99 Cal.App.3d 283, 287-288, 160 Cal.Rtpr. 194; Mize v. Atchison Y. & S.F. Ry. Co., 46 Cal.App.3d 436, 453, 120 Cal.Rptr. 787; Syah v. Johnson, 247 Cal.App.2d 534, 546, 55 Cal.Rptr. 741; Cervantes v. Maco Gas Co., 177 Cal.App.2d 246, 251, 2 Cal.Rptr. 75.) In other words, "[i]t is the probable value of the decedent's life to those for whom the action is brought ...." (66 Cal.Jur.3d, Wrongful Death, § 29, p. 57.) It does not include the value of the independent, non-derivative effects of the loss of the decedent upon the heirs. This is evident from reviewing those elements of damages recoverable in a wrongful death action, such as the value of the loss of household services, earning capacity, society, comfort, care, protection, solace and consortium. (Krouse v. Graham, supra, 19 Cal.3d 59, 67-70, 137 Cal.Rptr. 863, 562 P.2d 1022.) Our Supreme Court has "repeatedly declared in [its] decisions, the loss of comfort and society are to be considered only 'with reference to the value of the life of the deceased and the pecuniary loss to the plaintiff caused by the death.' " (Dickinson v. Southern Pacific Co., supra, 172 Cal. 727, 731, 158 P. 183.)

II. ALTHOUGH THE TRIAL COURT DID NOT PREJUDICIALLY ERR IN ADMITTING EVIDENCE OF DECEDENT'S AFTER-TAX EARNINGS, IT DID SO IN REFUSING TO INSTRUCT THE JURY ON APPLICABLE DISCOUNT RATES

Where, as here, decedent was a husband and father, a significant element of damages is the loss of financial benefits he was contributing to his family by way of support at the time of his death and that support reasonably expected in the future. (Benwell v. Dean, 249 Cal.App.2d 345, 349, 57 Cal.Rptr. 394; Code Civ.Proc., § 377.) The total future lost support must be reduced by appropriate formula to a present lump sum which, when invested to yield the highest rate of return consistent with reasonable security, will pay the equivalent of lost future benefits at the times, in the amounts and for the period such future benefits would have been received. (BAJI No. 14.70.) Since the present award is to compensate for support which would only have been received in the future had decedent survived, discounting to present value recognizes the economic advantage of receiving a present lump sum which may be used or invested as speculatively or conservatively as the recipient chooses. Since the purpose is to attempt to provide the amounts of future support which the beneficiaries would have received in the future had decedent lived, and to provide them as nearly as possible within the time frames they would have been received, California courts have established the general rule expressed in BAJI. Exact actuarial computation should result in a lump-sum, present-value award which if prudently invested will provide the beneficiaries with an investment return allowing them to regularly withdraw matching support money so that, by reinvesting the surplus earnings during the earlier years of the expected support period, they may maintain the anticipated future support level throughout the period and, upon the last withdrawal, have depleted both principal and interest. (Speiser, Recovery for Wrongful Death, Economic Handbook (2d ed. 1979) C...