Decision Date11 August 2010
Docket NumberNo. A124268.,A124268.
Citation185 Cal.App.4th 260,110 Cal.Rptr.3d 241
CourtCalifornia Court of Appeals Court of Appeals
PartiesCloristeen COLLINS, et al., Plaintiffs and Respondents, v. PLANT INSULATION COMPANY, Defendant and Appellant.




Horvitz & Levy, Lisa Perrochet, Robert H. Wright, Encino; Burnham Brown, Eric R. Haas, Richard J. Finn, Ulla M. Pajala, Kevin M. Larson, Oakland; McKenna, Long & Aldrige, Christopher W. Wood, San Francisco, and Catherine Liu, Los Angeles, for Defendant and Appellant.

Shook, Hardy & Bacon and Patrick J. Gregory, San Francisco, for Coalition for Litigation Justice, Inc. as Amicus Curiae on behalf of Defendant and Appellant.

Kazan, McClain, Lyons, Greenwood & Harley, James L. Oberman, Michael T. Stewart, Oakland, and Phillip Allan Harley for Plaintiffs and Respondents.


I. Introduction

Defendant Plant Insulation Company appeals from the judgment against it in this asbestos case, claiming the trial court erred in excluding the United States Navy from the list of entities as to which the jury could apportion “fault” pursuant to Proposition 51. We agree, and reverse and remand for a retrial on apportionment.

II. factual And procedural background

We set forth only those facts pertinent to the appeal. Plaintiffs and respondents Cloristeen Collins and Patricia Collins (plaintiffs) are, respectively, the wife and daughter of Ulysses Collins (Collins). Collins died on May 8, 2005, of mesothelioma contracted as a result of workplace exposure to asbestos. Collins worked as a welder at the Hunters Point Naval Shipyard from 1960 to 1973, and as a boilermaker welder at the Standard Oil Refinery in Richmond from 1973 through 1976. His last job was at the Mare Island Naval Shipyard, where he worked as a structural welder and pipe welder from 1976 through 1994. Throughout his career, Collins worked extensively with asbestos and asbestos-containing products, including those distributed and installed by defendant Plant Insulation Company (Plant).

At the close of evidence, plaintiffs moved for a directed verdict regarding the Navy, arguing fault could not be allocated to the service pursuant to Proposition 51 (Civ.Code, § 1431 et seq.). 1 Citing Munoz v. City of Union City (2007) 148 Cal.App.4th 173, 55 Cal.Rptr.3d 393 ( Munoz ), they claimed federal sovereign immunity precluded the Navy from being a “tortfeasor” for purposes of Proposition 51. They further asserted there was no evidence of an exception to that immunity and thus no evidence the Navy breached any duty of care owed to Collins. Plant opposed the motion, arguing allocation was proper under Taylor v. John Crane, Inc. (2003) 113 Cal.App.4th 1063, 6 Cal.Rptr.3d 695 ( Taylor ), and there was sufficient evidence to include the Navy among the entities to which the jury could allocate fault. The trial court ruled Munoz was controlling, and granted the plaintiffs' motion.

The special verdict form listed 17 entities, including Plant, among which the jury could allocate responsibility for Collins' injuries. During deliberations, the jury sent a note to the court asking why the Navy was “omitted from [the] list of responsibility allocation.” The court responded [a]s a matter of law you may not apportion to the U.S. Navy. Do not speculate as to why.” The jury found Plant was negligent and liable under strict products liability, and allocated fault as follows: 20 percent to Plant, 15 percent to Fibreboard, 5 percent to Chevron/Standard Oil, 30 percent to Owens-Corning Fiberglas/FENCO/Kaylo, and 30 percent to Johns-Manville/Western Asbestos/Western MacArthur.

On November 7, 2008, the court issued judgment against Plant for $1,038,000 in economic damages, $400,000 for pain and suffering, $400,000 for loss of consortium, and $1,000,000 in wrongful death damages ($600,000 to his wife and $400,000 to his daughter). The judgment stated it “shall be amended nunc pro tunc to the date of its filing, today, November 7, 2009, [ sic ] when the Court makes its determinations as to costs and the amount by which the economic damages award shall be reduced to reflect plaintiffs' preverdict settlements with other defendants.” 2 (Italics omitted.) On November 26, 2008, the court ordered the “judgment filed on November 7, 2008 ... modified so that the economic damages awarded against Plant Insulation Company ... shall be reduced by 10.349% of $9,139,490.46 or $945,845.87, for a net reduction of $93,104.13.” This timely appeal by Plant followed.

III. Discussion

Plant challenges the trial court's ruling that excluded the Navy from the list of entities to which fault could be allocated pursuant to Proposition 51. There is no dispute the Navy is immune from liability for plaintiffs' asbestos claims. Whether the Navy's immunity precludes an allocation of fault under Proposition 51 turns on the nature and character of the immunity, and is a question of law we review de novo. (See People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432, 101 Cal.Rptr.2d 200, 11 P.3d 956.)

A. Proposition 51 and Fault Allocation to Immune Entities

We first examine the purpose and scope of Proposition 51, and its application to individuals and entities immune from suit.

By 1986, when Proposition 51 was placed on the ballot, “the courts had eliminated certain inequities of the former tort recovery system, but so-called ‘deep pocket’ defendants whose fault was slight could still be saddled with large damage awards mainly attributable to the greater fault of others who were able to escape their full proportionate contribution. [Citation.] Proposition 51 sought to modify this system of recovery.” ( DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 599, 7 Cal.Rptr.2d 238, 828 P.2d 140 ( DaFonte ).)

Proposition 51 first codified its purpose by adding section 1431.1 to the Civil Code. This statute decries the unfairness and cost of the ‘deep pocket’ rule to both ‘governmental and private defendants' [citation] and cites the exploitation of relatively blameless defendants who ‘are perceived to have substantial financial resources or insurance coverage....’ [Citation.] ( DaFonte, supra, 2 Cal.4th at p. 599, 7 Cal.Rptr.2d 238, 828 P.2d 140.) To “remedy these inequities,” the statute declares defendants in tort actions shall be held financially liable in closer proportion to their degree of fault. To treat them differently is unfair and inequitable.” (§ 1431.1, subd. (c).) The statute further declares “reforms in the liability laws in tort actions are necessary and proper to avoid catastrophic economic consequences for state and local governmental bodies as well as private individuals and businesses.” ( Ibid.)

“To carry this intent into effect, Proposition 51 amended section 1431 and added section 1431.2. Amended section 1431 establishes a presumption that [a]n obligation imposed upon several persons ... is presumed to be joint, and not several, except as provided in Section 1431.2....’ (Italics added.) New section 1431.2 declares that in actions for wrongful death, personal injury, or property damage based on comparative fault, ‘the liability of each defendant for non-economic damages shall be several only and shall not be joint.’ The statute further specifies that [e]ach defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against that defendant for that amount.’ ( DaFonte, supra, 2 Cal.4th at pp. 599-600, 7 Cal.Rptr.2d 238, 828 P.2d 140, quoting § 1431.2, subd. (a).)

Proposition 51 thus retains the joint liability of all tortfeasors, regardless of their respective shares of fault, with respect to all objectively provable expenses and monetary losses. On the other hand, the more intangible and subjective categories of damage were limited by Proposition 51 to a rule of strict proportionate liability. With respect to these noneconomic damages, the plaintiff alone now assumes the risk that a proportionate contribution cannot be obtained from each person responsible for the injury.” ( DaFonte, supra, 2 Cal.4th at p. 600, 7 Cal.Rptr.2d 238, 828 P.2d 140.)

Proposition 51 thus contemplates a defendant's fault will be “compared to all other ‘fault’ responsible for the injury.” ( Richards v. Owens-Illinois, Inc. (1997) 14 Cal.4th 985, 998, 60 Cal.Rptr.2d 103, 928 P.2d 1181 ( Richards ).) 3 This follows from the express purpose of Proposition 51-“to eliminate the perceived unfairness of imposing ‘all the damage’ on defendants who were ‘found to share [only] a fraction of the fault.’ ( § 1431.1, subd. (b).) In this context, the only reasonable construction of section 1431.2 is that a defendant['s] liability for noneconomic damages cannot exceed his or her proportionate share of fault as compared with all fault responsible for the plaintiff's injuries, not merely that of ‘defendant[s] present in the lawsuit.” ( DaFonte, supra, 2 Cal.4th at p. 603, 7 Cal.Rptr.2d 238, 828 P.2d 140.) Proposition 51 “ quite clearly is simply intended to limit the potential liability of an individual defendant for noneconomic damages to a proportion commensurate with that defendant's fault.” ( DaFonte, at p. 603, 7 Cal.Rptr.2d 238, 828 P.2d 140.) The finder of fact must therefore consider all others whose conduct contributed to the plaintiff's injury, whether or not they are named as defendants and regardless of their economic circumstances. ( Id. at pp. 600, 603, 7 Cal.Rptr.2d 238, 828 P.2d 140.)

The statute “neither states nor implies an exception for damages attributable to the fault of persons who are immune from liability....” ( DaFonte, supra, 2 Cal.4th at p. 601, 7 Cal.Rptr.2d 238, 828 P.2d 140.) As DaFonte and Richards illustrate, whether apportionment is proper with respect to an...

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