Fagerquist v. Western Sun Aviation, Inc.

• Decision Date: 29 April 1987
• Citation: 191 Cal.App.3d 709,236 Cal.Rptr. 633
• Court: California Court of Appeals Court of Appeals
• Parties: Kristina FAGERQUIST, a Minor, Etc., Plaintiff and Respondent, v. WESTERN SUN AVIATION, INC., Defendant and Appellant. D002309.

Page 633

236 Cal.Rptr. 633

191 Cal.App.3d 709

Kristina FAGERQUIST, a Minor, Etc., Plaintiff and Respondent, v. WESTERN SUN AVIATION, INC., Defendant and Appellant.

D002309.

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

April 29, 1987.

Review Denied July 23, 1987.

Luce, Forward, Hamilton & Scripps, Donald L. Salem, San Diego, and Law Offices of Ned Good, Ned Good, Pasadena, and Michael D. Michaels, Santa Ana, for plaintiff and respondent

Law Offices of Kern & Wooley, Ralph S. LaMontagne, Jr., Los Angeles, for defendant and appellant.

WORK, Associate Justice.

Western Sun Aviation, Inc. (Western Sun) appeals from the $1,500,000 ¹ judgment entered against it in the wrongful death action brought by Kristina Fagerquist (Kristina). Western Sun contends the damage award is excessive as a matter of law and the special verdict finding it negligent must be set aside because of evidentiary and instructional error. The finding as to negligence is vacated; the remainder of the judgment is affirmed.

FACTUAL BACKGROUND

In October 1979, Western Sun sold David Prizio and other investors a 42X Piper aircraft. Western Sun both retails and maintains the aircraft it sells. The engines of the plane purchased by Prizio were manufactured by Avco Lycoming, Inc. (Lycoming). Prizio leased the aircraft to Air Bahia which flew commercially between California, Arizona and Mexico. Kristina's father, Thomas Fagerquist (Fagerquist), was an Air Bahia pilot and killed when the plane crashed due to engine malfunction.

Western Sun performed a scheduled maintenance on the 42X Piper, a 100-hour inspection and a compression check, replacing the No. 6 left engine cylinder with a new cylinder manufactured by Lycoming. Three days later, Fagerquist, piloting a different aircraft, flew from San Diego to Long Beach. Upon his return to San Diego, Air Bahia had Fagerquist change aircraft. Fagerquist completed the remaining legs of his flight plan in the 42X Piper. Fagerquist performed a "run up" on the aircraft and determined it was running rough. Western Sun sent a mechanic to check the plane. The mechanic did some trouble-shooting and cleaned and replaced Fagerquist then flew the plane without incident from San Diego to Tijuana and then to Guaymas. However, from Guaymas to Tucson, Arizona, the left engine ceased functioning and the plane crashed. Experts determined the left engine failed because of a hole in the No. 6 cylinder caused by defective casting in the manufacturing process.

some parts in the engine before the plane was tested. On that test, the engine checked out satisfactorily.

PROCEDURAL BACKGROUND

Kristina sued Western Sun on two theories: Strict products liability for selling a defective aircraft and engine parts, and negligently maintaining the airplane. Although Kristina's Second Amended Complaint identified the defective parts sold as the cylinder and piston assembly manufactured by Lycoming, she did not sue Lycoming. Western Sun cross-complained against Lycoming for total indemnification; however, this cross-complaint was deemed barred when Lycoming's $20,000 payment to Kristina and $20,000 to Prizio was found to be a good faith settlement. (Code Civ.Proc., § 877.6.) ²

The jury returned special verdicts finding the Lycoming cylinder which failed had been defectively manufactured, the Lycoming engine had been defectively designed, and both defects proximately caused the fatal accident. A separate finding declared Western Sun's negligence also proximately caused the accident. Thus, Western Sun's liability was based on both strict products liability, because it retailed Lycoming's defective products, and its own negligence.

I

On appeal, Western Sun seeks reversal of the damages portion of the judgment only, conceding the liability aspect of the judgment is proper because it is strictly liable for retailing the engine cylinder and a defective engine. Although conceding the judgment should be sustained upon a strict liability theory, Western vigorously urges us to consider and pass upon asserted reversible errors connected with the negligence aspect of the judgment. The nature of Western Sun's request is unusual.

"Ordinarily, when an appellate court concludes that affirmance of the judgment is proper on certain grounds it will rest its decision on those grounds and not consider alternative grounds which may be available. [Citations.]" (Filipino Accountants' Assn. v. State Bd. of Accountancy (1984) 155 Cal.App.3d 1023, 1029-1030, 204 Cal.Rptr. 913.)

Generally, a ruling, decision or judgment if right upon any theory of the law applicable to the case must be sustained regardless of the considerations which may have contributed to the challenged ruling, decision or judgment. (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329, 48 P. 117.) Appellate courts sometimes depart from this rule when the nonessential matter is of great importance to the parties and may serve to avoid future litigation, or where the issue presented is of continuing public interest and is likely to recur. (Filipino Accountants' Assn. v. State Bd. of Accountancy, supra, 155 Cal.App.3d at p. 1030, 204 Cal.Rptr. 913.) We find this is such a case.

Western Sun has filed a third-party cross-complaint for total indemnification against Lycoming in federal court and, unless the negligence finding is vacated, the res judicata effect of this finding will defeat the claim for indemnification. Kristina, on the other hand, argues the issues raised in connection with the negligence aspect of the judgment need not be addressed because the action for total indemnification will be barred even though the judgment is based solely on strict liability, making the negligence finding moot. (Standard Pacific of San Diego v. A.A. Baxter Corp. (1986) 176 Cal.App.3d 577, 222 Cal.Rptr. 106.) As to Kristina, this position is sound; however, the issue remains of substantial importance to the federal court proceeding between Western Sun and Lycoming.

The holding of Standard Pacific is that when a settlement has been confirmed as being made in good faith, Code of Civil Procedure section 877.6, subdivision (c) bars the remaining nonsettling tortfeasors from maintaining an action for total indemnity, regardless whether their liability is vicarious or otherwise imposed as a matter of policy. (Id. at p. 592, 222 Cal.Rptr. 106.) The decision recognizes existing appellate authority is split and the Supreme Court has not resolved the issue. Although Standard Pacific declined to follow the holdings in Angelus Associated Corp. v. Neonex Leisure Products, Inc. (1985) 167 Cal.App.3d 532, 213 Cal.Rptr. 403, and Huizar v. Abex Corp. (1984) 156 Cal.App.3d 534, 203 Cal.Rptr. 47, declaring the bar of Code of Civil Procedure section 877.6, subdivision (c) applies to actions for partial indemnification only and not to actions for total indemnification, the intermediate appellate decisions to the contrary have not been overruled by California's highest tribunal.

Kristina argues the federal court will be obligated to follow Standard Pacific and determine Western Sun's action for total indemnification barred. However, federal courts are not bound by a particular state court holding when there is a split among the intermediate state courts which has not been resolved by the state Supreme Court. (See Aydin Corp. v. Loral Corp. (9th Cir.1983) 718 F.2d 897, 904; Erie R. Co. v. Tompkins (1938) 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188; and West v. American Telephone & Telegraph Co. (1940) 311 U.S. 223, 61 S.Ct. 179, 85 L.Ed. 139.) Thus, the strict liability finding supporting the judgment entered against Western Sun does not bar its action for total indemnification as a matter of law. On the other hand, Western Sun's negligence cannot be relitigated in the federal actions under the principle of res judicata.

Because a finding of negligence absolutely determines the total indemnification action in federal court, and a judgment based solely on strict liability based on manufacturing and design defects of which Western Sun, as a retailer, could not have been aware may not be barred, we address the issues raised relative to the negligence finding.

II

Western Sun contends the court erred in ruling it could not present evidence that conduct of non-parties (e.g., Lycoming) caused the plane crash. Western Sun argues it should be allowed to "point the finger" at others who were at fault to show Western Sun was "zero percent at fault." The court held such evidence irrelevant and advised "you can defend yourself by either [plaintiff's] failure to prove that your client was negligent to any degree or your overcoming any evidence that they may present that your client was not negligent at all, but I don't think it is necessary that you prove anybody else's negligence." In sum, Western Sun contends evidence of non-party conduct should be admitted to prove it did not negligently maintain the ill-fated aircraft and to prove also that if the products were defective, Western Sun could not have discovered the defects with reasonable inspection.

Western Sun relies on Newing v. Cheatham (1975) 15 Cal.3d 351, 124 Cal.Rptr. 193, 540 P.2d 33, Irwin v. Pacific Southwest Airlines (1982) 133 Cal.App.3d 709, 184 Cal.Rptr. 228, and Sanchez v. Bay General Hospital (1981) 116 Cal.App.3d 776, 172 Cal.Rptr. 342. These inapposite cases do not support Western Sun's position. They discuss the evidentiary rule permitting defendants to produce evidence they were not negligent or that their negligence was not the proximate cause of the accident (Evid. Code, § 646.) when the facts give rise to application of the doctrine of res ipsa loquitur from which a strong probability of negligence may be inferred.

Here, Western Sun was not precluded from defending against Kristina's proof it was negligent. This is not a res ipsa loquitur case, and the burden of establishing Western Sun's personal negligence was Kristina's.

In...