Ehret v. Congoleum Corp.

Decision Date04 August 1999
Docket NumberNo. B116070,B116070
Citation87 Cal.Rptr.2d 363,73 Cal.App.4th 1308
CourtCalifornia Court of Appeals Court of Appeals
Parties, 99 Cal. Daily Op. Serv. 6269, 1999 Daily Journal D.A.R. 8019 Kathleen Anne EHRET et al., Plaintiffs and Respondents, v. CONGOLEUM CORPORATION et al., Defendants and Appellants.

Horvitz & Levy, David M. Axelrad, Lisa Perrochet, Los Angeles, Stephanie Rae Williams, McHale & Conner, Michael J. McHale and Bruce Janger, Los Angeles, for Defendants and Appellants.

Davis & Thomas, Joseph Daniel Davis, Thomas D. Thomas, Los Angeles, and Charlotte E. Costan, Los Angeles, for Plaintiffs and Respondents.

KUHL, J. **

Congoleum Corporation (Congoleum) appeals from a judgment entered in favor of the heirs of Robert Ehret (Ehret) in this wrongful death asbestos litigation. Two issues are presented. The first is whether the trial court erred in granting a judgment notwithstanding the verdict (JNOV), eliminating the jury's apportionment of liability to manufacturers of asbestos flooring in addition to Congoleum. In the unpublished portion of this opinion, we find that the jury's verdict was supported by substantial evidence and reverse the trial court's grant of a JNOV. The second issue concerns the proper setoff of settlements entered into by other defendants allegedly at a time when Ehret was still alive and damages for pain and suffering were potentially available. We consider this issue in the published portion of our opinion. We hold that an apportionment of the settlements between economic and noneconomic damages is required. Because Ehret's heirs did not meet their burden of offering evidence to support their proposed good faith allocation of the settlements, we hold that the settlements should be apportioned between economic and noneconomic damages according to the formula set forth in Espinoza v. Machonga (1992) 9 Cal.App.4th 268, 11 Cal.Rptr.2d 498.


In 1996 Robert Ehret (Ehret), a journeyman floor covering contractor, was diagnosed with terminal pericardial mesothelioma. He filed suit against several flooring manufacturers and distributors, including Congoleum Corporation (Congoleum). He alleged that asbestos in various flooring products he had installed 20 to 30 years earlier caused his illness.

All manufacturers other than Congoleum settled. The settlements totaled $2,565,000. One distributor, L.D. Brinkman & Co. (Brinkman), also remained in the case through trial. Brinkman was successor in interest to A.L. Greenbaum, a distributor who allegedly handled the products of flooring manufacturers Congoleum, Amtico, and Flintkote.

During trial, Ehret died. The trial continued as a wrongful death action with Ehret's widow and three other heirs as plaintiffs.

Ehret's deposition testimony was admitted at trial. He testified that he had installed, removed, and sanded asbestos floor covering materials manufactured by Congoleum, Armstrong, Amtico, Azrock, Mannington, Flintkote, and Kentile. He did not use the products of any one manufacturer more than the products of any other manufacturer. He testified that he installed hundreds of thousands of asbestos floor tiles and sheet goods over 20 years of his career. He knew when floor covering and sheet goods that he installed contained asbestos because the packaging was marked as containing asbestos and because he could see the fibers when he cut the material. He recalled that all of the manufacturers started discontinuing use of asbestos at about the same time.

A defense witness and employee of Congoleum, Michael Sapienza, testified that when he started with Congoleum in 1983 he analyzed all competitors' products and they all contained asbestos. Previously, as an employee of Kentile, Sapienza also had analyzed competitors' products and had found them to contain asbestos. In about 1983, Congoleum was in the process of taking asbestos out of its flooring products; other manufacturers were doing the same. Flooring manufacturers did not compete based on the composition of their flooring or how the products were made. Those qualities were similar among the various manufacturers' products. The manufacturers competed based on color and design.

One of Congoleum's defenses was that the asbestos in its flooring was encapsulated in a plastic binder and thus could not have harmed Ehret. However, plaintiffs' expert, Dr. William Longo, testified that broken or sanded floor tiles produced uncoated chrysotile asbestos fibers. Plaintiffs' other expert, Dr. Samuel Hammar, testified that the amount of asbestos to which Ehret was exposed by use of Congoleum's floor tile alone was sufficient to cause mesothelioma, the disease from which Ehret died. For purposes of his opinion, Dr. Hammar assumed that one-fifth or one-sixth of the floor tile to which Ehret was exposed was Congoleum product.

Plaintiffs also offered evidence that Congoleum had supplied products containing asbestos to other flooring manufacturers. There was testimony that Congoleum sold an asbestos felt backing for flooring to Amtico and Mannington. In addition, plaintiffs presented evidence that Congoleum had failed to warn users of potential risks of working with asbestos flooring and that such risks were known or knowable at the time of manufacture.

The jury returned a special verdict, finding in favor of Ehret's heirs and against Congoleum and Brinkman. The jury found that the flooring manufactured by Congoleum was defective, that Congoleum had failed to warn of a known or knowable potential risk, and that Congoleum's acts were a cause of Ehret's fatal illness. In response to a question which asked the jury to apportion fault for Ehret's fatal illness, the jury assigned 25 percent fault to Congoleum and 12.5 percent each to Armstrong, Amtico, Azrock, Mannington, Flintkote, and Kentile. The jury also found that A.L. Greenbaum Company (the predecessor of defendant Brinkman) distributed the asbestos-flooring products of Congoleum, Flintkote, and Amtico. The jury award totaled $3,322,551, consisting of $622,551 for medical and burial expenses and loss of past and future earnings, $2,550,000 for loss of care, comfort and society to Ehret's widow, and $50,000 for loss of care, comfort and society to each of Ehret's three other heirs.

Immediately after the jury's verdict, the court and counsel discussed the need to determine an appropriate offset from the verdict against Congoleum in light of settlements that had been entered into by other defendants. It was agreed that the offset issue would be briefed in a motion filed by Congoleum. Counsel for Congoleum asked the court to require the plaintiffs to produce the settlement documents because "I would need that information for off-sets." Counsel for Ehret's heirs stated that the settlements were confidential, and the court indicated that it could review the settlements in camera. During the colloquy, one of the counsel for Ehret's heirs stated: "By the way, I don't think there's been a single settlement fully effectuated yet, has there?" However another counsel for plaintiffs stated that "all settlements were effected during the time of [Ehret's] life."

Judgment was entered in accordance with the jury's special verdict and notice of entry of judgment was served on June 27, 1997. Thereafter Congoleum and Brinkman filed several posttrial motions.

Congoleum filed a motion to vacate or modify judgment pursuant to Code of Civil Procedure section 663. Congoleum argued that its liability for noneconomic damages should be limited to its percentage of fault pursuant to Civil Code section 1431.2 (commonly known as Proposition 51). Congoleum asked the trial court to reduce the jury's award of economic damages by a portion of the settlements entered into by other defendants before trial, according to the formula set forth in Espinoza v. Machonga (1992) 9 Cal.App.4th 268, 11 Cal.Rptr.2d 498 (Espinoza ). In Espinoza the Court determined the portion of a settlement to be set off from the economic damages portion of a judgment by applying the percentage of the economic damages award in relationship to the total award of damages. (Id. at pp. 276-277, 11 Cal.Rptr.2d 498.)

In opposition to Congoleum's argument concerning settlement setoffs, Ehret's heirs argued that the court should weigh the various factors that existed at the time of the settlements and make an allocation of the settlement amounts between the wrongful death and personal injury actions. Plaintiffs argued that such an allocation was required because the settlements were entered into while Ehret was alive and had a viable claim for damages for pain and suffering, but the jury's verdict in the wrongful death action could not include damages for pain and suffering. Plaintiffs suggested that 80 percent of the settlement amounts should be credited to Ehret's personal injury action. Plaintiffs did not present the settlement documents to the court, offer any evidence of the settlement terms, or provide any evidentiary support for their assertion that the settlements were entered into while Ehret was still alive. Plaintiffs offered no evidence in support of their requested allocation of damages (other than a description of Ehret's suffering included in their brief).

On July 9, 1997, Congoleum also filed a motion for new trial, arguing that the damages awarded by the jury were excessive and again seeking offsets for settlements.

Brinkman filed a motion to vacate judgment on July 7, 1997, and a motion for judgment notwithstanding the verdict on July 14, 1997. One ground for Brinkman's motions was that the jury's apportionment of 12.5 percent liability to Flintkote and Amtico was not supported by substantial evidence. Brinkman had an interest in eliminating any apportionment of liability to Flintkote and Amtico because Brinkman was held vicariously liable as a distributor of their products. 1 Brinkman joined Congoleum in arguing...

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