Cavallaro v. Michelin Tire Corp.

• Court: California Court of Appeals
• Writing for the Court: KAUFMAN; TAMURA, Acting P. J., and McDANIEL
• Citation: 96 Cal.App.3d 95,157 Cal.Rptr. 602
• Parties: Frank CAVALLARO and Eric Cavallaro, Plaintiffs, Respondents and Cross-Appellants, v. MICHELIN TIRE CORPORATION, Defendant, Appellant and Cross-Respondent. Civ. 17586.
• Decision Date: 17 August 1979

Page 602

157 Cal.Rptr. 602 96 Cal.App.3d 95 Frank CAVALLARO and Eric Cavallaro, Plaintiffs, Respondents and Cross-Appellants,
v.
MICHELIN TIRE CORPORATION, Defendant, Appellant and Cross-Respondent. Civ. 17586. Court of Appeal, Fourth District, Division 2, California. Aug. 17, 1979.
Hearing Denied Nov. 8, 1979.

Page 604

[96 Cal.App.3d 97] Ball, Hunt, Hart, Brown & Baerwitz, Joseph A. Ball, Clyde C. Beery, and Joseph D. Mullender, Jr., Long Beach, for defendant, appellant and cross-respondent.

Tucker & Coddington, Clinton C. Coddington, William G. Tucker, Michael J. Rand, Los Angeles, Dickerson, Miles & Pico, and James F. Pico, Las Vegas, Nev., for plaintiffs, respondents and cross-appellants.

OPINION

KAUFMAN, Associate Justice.

Frank and Virginia Cavallaro, husband and wife, and their two children, Lisa, 11 years old, and Eric, 8 years old, were [96 Cal.App.3d 98] residents of Las Vegas, Nevada. On the weekend of September 19, 1970, Mrs. Cavallaro decided to visit her parents in Irvine, California, while her husband, a physician, was on call at the hospital. On September 21, at about 4 a. m. as Mrs. Cavallaro and the children were returning to Las Vegas in the family's Chrysler stationwagon at a probable speed of about 90 miles per hour, the left rear tire of the car disintegrated and the car skidded off the road, rolled over and came to rest some 600 feet distant from the point it began to skid. Mrs. Cavallaro and Lisa were killed, and Eric sustained personal injuries.

The tires on the Chrysler at the time of the accident were four Michelin Radial X steelbelted tires manufactured by a French corporation, La Manufacture Francaise Des Pneumatiques Michelin, in 1968. Mr. Cavallaro had purchased the tires in the summer of 1969 from Radial Tire Company of Sacramento (Radial), a retailer. Radial had purchased the tires from Michelin Tire Corporation (Michelin) the wholesale distributor. When Mr. Cavallaro purchased the tires he received Michelin's standard express 40,000 mile warranty against manufacturing defects. Radial gave no express warranty. At the time of the accident the tires had been driven approximately 23,500 miles.

Frank and Eric Cavallaro commenced this action for damages for the wrongful deaths of Virginia and Lisa Cavallaro, damages for Eric's personal injuries and recovery of the medical expenses incurred for treatment of Eric's injuries. Named as defendants were Chrysler Corporation, which manufactured the automobile, Michelin and Radial. The manufacturer of the tire was not sued. Plaintiffs' theory against Chrysler Corporation was that there was a defect in the doorpost of the driver's side of the automobile which, although it did not cause the accident, gave way and caused the death of Mrs. Cavallaro. Although plaintiffs originally asserted a cause of action against Michelin and Radial for negligence, they abandoned that theory at an early stage of trial and proceeded against defendants Michelin and Radial on theories of strict liability in tort, express warranty and implied

Page 605

warranty, on the premise that the disintegration of the tire, which was built to hold up at speeds up to 115 miles per hour, was caused by a manufacturing defect a lack of proper bonding. It was Michelin's theory that a hard metal object had penetrated the tire a minimum of 15 minutes before the accident, causing it to run underinflated and eventually disintegrate.

On verdict forms hereafter more fully discussed, the jury returned verdicts against Michelin in the following amounts: $3,550 for Eric's [96 Cal.App.3d 99] medical expenses; $20,000 for Eric's personal injuries; $100,000 for the death of Lisa Cavallaro and $522,000 for the death of Virginia Cavallaro. Under instructions on comparative fault given over the objection of plaintiffs, the jury made a special finding that Mrs. Cavallaro was contributorily negligent and assessed 27 percent of the fault to her negligence and 73 percent of the fault to Michelin. The court reduced the gross figure of $522,000 assessed as damages for the wrongful death of Mrs. Cavallaro to $381,060.

The effect of the jury verdicts with respect to Radial is a disputed issue on appeal. Suffice it to say at this point that no verdict was returned determining that Radial had any liability. Although the verdicts appear to be in the same form as to Chrysler as they were with respect to Radial, the parties are agreed that the verdicts exonerated Chrysler, and Chrysler is not involved in this appeal.

Its motion for new trial having been denied, Michelin appeals from the judgment contending: (1) that the jury's verdicts constitute a verdict in favor of Radial which is fatally inconsistent with the verdict against Michelin inasmuch as the liability of these two defendants must be identical since both were suppliers of the automobile tires; (2) that there was no substantial evidence of a manufacturing defect in the tire; (3) that Michelin was prejudiced by misconduct on the part of plaintiff's trial attorney; (4) that the court erred in excluding evidence of Frank Cavallaro's remarriage; and (5) that Mrs. Cavallaro's 27 percent contributory fault should have reduced not only the recovery for her wrongful death but also the recoveries for the wrongful death of Lisa, Eric's personal injuries and Eric's medical expenses.

Plaintiffs cross-appeal from the judgment contending that the principle of comparative fault should not have been employed by the court to reduce the liability of Michelin based not on negligence, but on strict liability or breach of warranty and that, in any event, plaintiffs' cause of action for the wrongful death of Mrs. Cavallaro was an "independent" claim not subject to reduction because of the contributory fault of the decedent.

We have concluded that the jury verdicts were fatally inconsistent as to Michelin and Radial and that the judgment must therefore be reversed. The other questions raised both on the appeal and the cross-appeal are thereby rendered moot and need not be resolved except for two: (1) the admissibility of evidence of Frank Cavallaro's remarriage; (2) whether [96 Cal.App.3d 100] damages, if any, for the wrongful death of Virginia Cavallaro are subject to reduction on account of contributory negligence on her part. These questions will in all probability recur on retrial, and we are therefore required to address them. (Code Civ.Proc., § 43.)

Inconsistent Verdicts

Michelin renews on appeal its contentions presented to the trial court as one basis for its motion for new trial that the verdicts of the jury exonerating Radial and the verdicts imposing liability on Michelin constitute inconsistent verdicts; that inconsistent verdicts are "against law"; that, therefore, the trial court was required to grant the motion for new trial (Code Civ.Proc., § 657, subd. 6); and that its failure to do so constituted reversible error. (E. g., Morris v. McCauley's Quality Transmission Service, 60 Cal.App.3d 964, 970-971, 132 Cal.Rptr. 37; Campbell v. Zokelt, 272 Cal.App.2d 315, 318-320, 77 Cal.Rptr. 561; Remy v. Exley Produce Express, Inc., 148 Cal.App.2d 550, 554, 307 P.2d 65; Winkler v. So. Cal. etc.

Page 606

Medical Group, 141 Cal.App.2d 738, 746-748, 297 P.2d 728; Tolley v. Engert, 71 Cal.App. 439, 440-441, 235 P. 651; see 4 Witkin, Cal. Procedure (2d ed. 1971) Trial, § 274, p. 3081.)

Michelin's argument is that the bases of liability of a wholesale distributor and retail seller of a defectively manufactured product are identical and are based upon the same two facts: (1) a manufacturing defect in the product which (2) was a proximate cause of the plaintiffs' injury (Barth v. B. F. Goodrich Tire Co., 265 Cal.App.2d 228, 252-253, 71 Cal.Rptr. 306; see Hauter v. Zogarts, 14 Cal.3d 104, 120-121, 120 Cal.Rptr. 681, 534 P.2d 377; Vandermark v. Ford Motor Co., 61 Cal.2d 256, 262-263, 37 Cal.Rptr. 896, 391 P.2d 168); that the jury's verdicts exonerating Radial were necessarily based upon a determination that the tire in question was not defectively manufactured, whereas the verdicts against Michelin were necessarily based upon a determination that the tire was defectively manufactured; and that these directly contrary determinations based on the same evidence as to two defendants whose bases of liability are the same are fatally inconsistent. We have reviewed the numerous arguments advanced by plaintiffs attempting to demonstrate that Michelin's position is unsound or that Michelin may not properly raise this issue and have concluded that none of them is meritorious.

Plaintiffs contend that the inconsistent verdict rule applies only to situations in which two verdicts that are inconsistent are returned with respect to the same defendant, for example, where based on the same act [96 Cal.App.3d 101] a defendant is held liable to one injured plaintiff and not liable as to another. It is true that that was the situation in a number of the cases relied on by Michelin. (E. g., Morris v. McCauley's Quality Transmission Service, supra, 60 Cal.App.3d 964, 132 Cal.Rptr. 37; Campbell v. Zokelt, supra, 272 Cal.App.2d 315, 77 Cal.Rptr. 561; see Remy v. Exley Produce Express, Inc., supra, 148 Cal.App.2d 550, 307 P.2d 65.) However, there is nothing in the cases to indicate that the rule is so limited. On the contrary, in numerous cases, verdicts against one defendant have been held to be inconsistent with verdicts in favor of another defendant with respect to the same plaintiff where liability of both defendants depended upon the same facts. (E. g., Winkler v. So. Cal. etc. Medical Group, supra, 141 Cal.App.2d at pp. 746-747, 297 P.2d 728; Tolley v. Engert, supra, 71 Cal.App. at pp. 440-441, 235 P. 651; cf. Southern Pacific Co. v. City of Los Angeles, 5 Cal.2d 545, 547-548, 55 P.2d 847; also cf. Ferroni v. Pacific Finance Corp., 21 Cal.2d 773, 780, 135 P.2d 569.)

The inconsistent verdict rule is based upon the fundamental proposition that a factfinder may not...