Garofalo v. Princess Cruises, Inc., B127126.

CourtCalifornia Court of Appeals
Citation102 Cal.Rptr.2d 754,85 Cal.App.4th 1060
Docket NumberNo. B127126.,B127126.
PartiesFrank GAROFALO, Plaintiff, v. PRINCESS CRUISES, INC., Defendant and Respondent; Southern California Permanente Medical Group, Intervener and Appellant.
Decision Date29 December 2000
102 Cal.Rptr.2d 754
85 Cal.App.4th 1060
Frank GAROFALO, Plaintiff,
PRINCESS CRUISES, INC., Defendant and Respondent;
Southern California Permanente Medical Group, Intervener and Appellant.
No. B127126.
Court of Appeal, Second District, Division 3.
December 29, 2000.

[102 Cal.Rptr.2d 756]

[85 Cal.App.4th 1065]

Grancell, Lebovitz, Stander, Marx and Barnes and David W. Allor, Los Angeles, for Intervener and Appellant.

Kaye, Rose & Partners, Lawrence W. Kaye, San Diego, and Elsa M. Ward, Los Angeles, for Defendant and Respondent.


This case presents a novel issue arising from the intersection of the Death on the High Seas Act ("DOHSA"), 46 United States Code appendix section 761 et seq., and the California workers' compensation law. The question is whether DOHSA preempts an employer's state law claim in a subrogation action to recover from a third party tortfeasor sums the employer was obligated to pay for an employee's injury. We hold that it does. We also hold that California courts have concurrent jurisdiction over DOHSA claims.



Appellant and plaintiff in intervention Southern California Permanente Medical Group (Kaiser) employed Jackie Garofalo. In the course of her employment with Kaiser, Ms. Garofalo suffered injuries that aggravated her preexisting respiratory ailments. As a result, a workers' compensation proceeding rated Ms. Garofalo 100 percent disabled. A workers' compensation award required Kaiser to provide lifetime medical care for Ms. Garofalo.

In September 1992, Ms. Garofalo and her husband Frank Garofalo went on a cruise on the ship Sky Princess, operated by respondent and defendant Princess Cruises (Princess). During the cruise, while the ship was on the high seas, a fire broke out in the ship's cinema. Ms. Garofalo claimed to have sustained injuries when she inhaled smoke from the fire.

In September 1993, Ms. Garofalo and her husband filed a complaint in Superior Court against Princess, alleging state law claims for personal injuries, medical negligence, and loss of consortium, allegedly resulting from the

85 Cal.App.4th 1066

shipboard fire. On or about November 18, 1993, Kaiser intervened as a plaintiff under Labor Code sections 3852 and 3853. It sought from Princess the costs of additional medical care it had provided to Ms. Garofalo allegedly as a result of the aggravation of her

102 Cal.Rptr.2d 757

injuries due to the fire. Kaiser's complaint alleged, in relevant part:

"4. Intervenor refers to and incorporates herein by reference each and every charging allegation contained in plaintiffs Complaint for damages on file herein.

"5. As a proximate result of said injuries to plaintiff and the carelessness and negligence or other conduct or misconduct of the defendants-in-intervention, and each of them, intervenor has been required to furnish, has furnished and will in the future be required to furnish compensation benefits under the provisions of the Workers' Compensation Laws of the State of California to and on behalf of plaintiff in an undetermined amount."

In March 1994, approximately 18 months after the cruise, Ms. Garofalo died as a result of medical conditions allegedly aggravated by the shipboard fire. In December 1994, Frank and his daughter Karen Garofalo filed a second lawsuit in superior court against Princess, alleging state law claims for wrongful death, medical negligence, and negligent infliction of emotional distress. In that complaint, Frank and Karen contended that, "as a direct and proximate result" of Princess' negligence, Ms. Garofalo "was injured in her health, strength and activity . . . all of which injuries subsequently caused death on March 28, 1994." Kaiser did not intervene in the wrongful death action. In April 1997, Frank dismissed the personal injury complaint with prejudice against all defendants. Kaiser remained the sole plaintiff in the personal injury action against Princess.

Princess moved for summary judgment in the Garofalos' wrongful death action, claiming DOHSA, 46 United States Code appendix section 761, preempted the wrongful death claim, and that California courts lacked subject matter jurisdiction over DOHSA claims. In March 1996, the trial court granted the summary judgment motion on the grounds that the Garofalos had failed to oppose it. Thus, the only remaining litigation was Kaiser's subrogation claim in the first personal injury action, seeking costs of medical care provided to Ms. Garofalo.

In March 1998, Princess moved for summary judgment against Kaiser. It argued, inter alia, that DOHSA preempted Kaiser's state court claim for negligence as a matter of law, and that Kaiser's negligence complaint against

85 Cal.App.4th 1067

Princess failed for lack of evidence of causation. Kaiser opposed the motion. It argued that Princess had not established that DOHSA preempted the suit, and that triable issues of fact existed regarding causation.

On May 7, 1998, the trial court issued a minute order denying Princess' motion for summary judgment. The order stated: "The Court concludes that there exist triable issues of fact concerning whether any exposure to smoke by Ms. Garofalo aggravated her medical condition, and that defendant has not shown that it is entitled to judgment as a matter of law."

Princess subsequently filed a petition for writ of mandate. This Court issued an alternative writ of mandate and ordered the trial court to vacate its order denying summary judgment "insofar as the order is based on any finding that the action is not preempted by the federal Death on the High Seas Act (DOHSA) (46 U.S.C. Appen. § 761); or [¶] . . . in the alternative [¶] SHOW CAUSE . . . why a peremptory writ of mandate should not issue directing you to enter an order based on the determination the action is preempted by DOSA."

On July 21, 1998, the trial court determined that DOHSA preempted the present action and vacated the May 7, 1998 order. The trial court issued a new minute order, granting Princess' motion for summary judgment. That order concluded that under Dooley v. Korean Air Lines Co. (1998) 524 U.S. 116, 118 S.Ct. 1890, 141 L.Ed.2d 102, DOHSA preempted the action and that the court lacked subject matter jurisdiction. The court entered judgment and Kaiser filed a timely notice of appeal.

102 Cal.Rptr.2d 758

Kaiser contends that DOHSA does not govern its claims, because (1) DOHSA should not be applied for the benefit of a wrongdoer; (2) DOHSA only preempts wrongful death actions, not the personal injury action in which Kaiser intervened; (3) Kaiser has an independent property right, not derived from Ms. Garofalo's wrongful death claim; and (4) DOHSA does not apply because Kaiser does not contend the shipboard fire caused Ms. Garofalo's death.

Princess asserts that (1) DOHSA provides the exclusive remedy for wrongful death and survival actions caused by an injury occurring on the high seas; (2) Kaiser's claim is derivative of Ms. Garofalo's and because DOHSA preempts her claim, DOHSA also preempts Kaiser's claim; (3) Kaiser has asserted the shipboard fire was a cause of Ms. Garofalo's death, and there is no material issue of fact on this point; and (4) DOHSA applies

85 Cal.App.4th 1068

regardless of whether the high seas injury was the sole cause or a contributing cause of Ms. Garofalo's death.


1. Standard of review.

The standards applicable to our review of a summary judgment motion are well settled. Summary judgment is properly granted if there is no triable issue of material fact and the issues raised by the pleadings may be decided as a matter of law. (Code Civ. Proa, § 437c, subd. (c); Spray, Gould & Bowers v. Associated Internal Ins. Co. (1999) 71 Cal.App.4th 1260, 1266, 84 Cal.Rptr.2d 552.) "A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action." (Code Civ. Proa, § 437c, subd. (o)(2).) Because our review of the grant or denial of summary judgment involves pure questions of law, we review the record independently. (Wilkins v. National Broadcasting Co. (1999) 71 Cal.App.4th 1066, 1074, 84 Cal.Rptr.2d 329.)

"As a summary judgment motion raises only questions of law regarding the construction and effect of supporting and opposing papers, this court independently applies the same three-step analysis required of the trial court. We identify issues framed by the pleadings; determine whether the moving party's showing established facts that negate the opponent's claim and justify a judgment in the moving party's favor; and if it does, we finally determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citations.]" (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342, 67 Cal. Rptr.2d 726.)

A challenge to the subject matter jurisdiction of a court may properly be brought on summary judgment. (Greener v. Workers' Comp. Appeals Bd. (1993) 6 Cal.4th 1028, 1036, 25 Cal.Rptr.2d 539, 863 P.2d 784.) Likewise, interpretation of a statute, including its preemptive effect, is a question of law which may be considered on summary judgment. (Cf. San Diego Gas & Electric Co. v. City of Carlsbad (1998) 64 Cal.App.4th 785, 792, 75 Cal. Rptr.2d 534.)

2. An employer's subrogation, rights under California workers' compensation laws.

When an employee is injured in the course of his or her employment, California's workers' compensation laws generally provide the employee's

85 Cal.App.4th 1069

exclusive remedy against the employer. (Employers Mutual Liability Ins. Co. v. Tutor-Saliba Corp. (1998) 17 Cal.4th 632, 637, 71 Cal. Rptr.2d 851, 951 P.2d 420; Finney v. Manpower, Inc. (1981) 123 Cal.App.3d 1066, 1069, 177 Cal.Rptr. 74.) However, the workers' compensation laws do not preclude the employee from...

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1 cases
  • Garofalo v. Princess Cruises
    • United States
    • California Court of Appeals
    • December 29, 2000

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