Melendrez v. Ameron Int'l Corp.

• Decision Date: 17 September 2015
• Docket Number: B256928, B259423
• Citation: 193 Cal.Rptr.3d 23,240 Cal.App.4th 632
• Court: California Court of Appeals
• Parties: Mary MELENDREZ et al., Plaintiffs and Appellants, v. AMERON INTERNATIONAL CORPORATION, Defendant and Respondent.

240 Cal.App.4th 632

193 Cal.Rptr.3d 23

Mary MELENDREZ et al., Plaintiffs and Appellants

v.AMERON INTERNATIONAL CORPORATION, Defendant and Respondent.

B256928, B259423

Court of Appeal, Second District, Division 4, California.

Filed September 17, 2015

Rehearing Denied October 7, 2015

Review Denied December 16, 2015

Simon Greenstone Panatier Bartlett and Brian P. Barrow, for Plaintiffs and Appellants.

Foley & Mansfield, J. Scott Wood, Suzanna L. Minasian, Anna K. Milunas, M. Amadea Groseclose, Los Angeles, and Duncan Lemmon, Oakland, for Defendant and Respondent.

OPINION

WILLHITE, J.

For approximately 24 years, Lario Melendrez worked for defendant and respondent Ameron International Corporation, where he was exposed to asbestos in the manufacture of Ameron's Bondstrand pipe products. In 2011, he died of asbestos-related mesothelioma. His survivors, plaintiffs and appellants Mary Melendrez, individually and as personal representative of Melendrez's estate, Mario Melendrez, Phillip Melendrez, David Melendrez, and Veronica Pueyo (collectively plaintiffs), filed a complaint for wrongful death against Ameron, alleging that in addition to his workplace exposure to asbestos, Melendrez was also permitted to take waste or scrap pipe home, where he was exposed to asbestos in using the pipe for home projects. Ameron moved for summary judgment on the ground that plaintiffs' sole and exclusive remedy against Ameron lies in the California Workers' Compensation Act. (Lab.Code, § 3600 et seq. ) The trial court agreed, and granted summary judgment.

In these consolidated appeals, plaintiffs first challenge the grant of summary judgment, asserting that workers' compensation does not cover Melendrez's injury to the extent his exposure to asbestos was from working with Bondstrand pipe on his own time at home (case No. B256928). Second, plaintiffs challenge the trial court's award of expert fees pursuant to Code of Civil Procedure section 998 (Case No. B259423).¹ We conclude that the workers' compensation exclusive remedy rule applies and therefore affirm the grant of summary judgment. We further conclude that the trial court did not abuse its discretion in awarding Ameron expert witness fees. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Melendrez worked for Ameron and its predecessors from approximately 1961 to 1985, performing various tasks in the manufacture of Ameron's Bondstrand pipe. The pipe, which was designed to transport extremely corrosive materials, contained asbestos, and Melendrez was exposed to asbestos from the manufacturing process in the course of his employment with Ameron.

The plant where Melendrez worked allowed employees to take home reject Bondstrand pipe if they received a permission slip signed by a supervisor. In the 1970's, Melendrez began taking pipe home. According to Melendrez, he took pipe home “every day that [he] could,” using it to make flowerpots and part of a patio.

Melendrez's employment with Ameron ended in 1985 when the plant moved to Texas. In December 2010, he was diagnosed with malignant mesothelioma caused by exposure to asbestos. He died in 2011, survived by plaintiffs—his wife and four adult children.

Plaintiffs sued Ameron for wrongful death.² Ameron moved for summary judgment on the basis of its affirmative defense that plaintiffs' tort claims were barred by the workers' compensation exclusive remedy rule. (Lab.Code, § 3602.) The trial court granted summary judgment, reasoning that workers' compensation exclusivity barred plaintiffs claim because Melendrez received the pipe only because of his employment with Ameron. Plaintiffs appeal from the resultant judgment. The court subsequently awarded Ameron $80,719 in expert witness fees. Plaintiffs also appeal from that order.

DISCUSSION

I. Appeal No. B256928, Workers' Compensation Exclusivity Rule

Plaintiffs contend that the trial court erred in relying on workers' compensation exclusivity to grant summary judgment. According to plaintiffs, to establish an affirmative defense of workers' compensation exclusivity, Ameron was required to show that Melendrez's separate exposure to asbestos while working with Ameron's scrap pipe at home met the conditions of workers' compensation coverage: i.e., that the exposure arose out of and in the course of Melendrez's employment. Plaintiffs argue that Ameron failed to meet this burden, because in using the pipe at home Melendrez was not performing any service growing out of or incidental to his employment. Thus, the contribution to his mesothelioma caused by his home exposure to asbestos is not covered by workers' compensation.

While we agree that a triable issue of fact exists whether Melendrez's exposure to asbestos at home arose out of and in the course of his employment with Ameron, that issue is not material to the viability of Ameron's defense of workers' compensation exclusivity. It is undisputed that Melendrez's exposure to asbestos in his employment with Ameron substantially contributed to his mesothelioma. Therefore, under the contributing cause standard applicable in workers' compensation law, his mesothelioma is covered by workers' compensation, and his separate exposure at home does not create a separate injury outside workers' compensation coverage.

Thus, plaintiffs' lawsuit is barred by workers' compensation exclusivity.

Summary Judgment Principles

“A defendant moving for summary judgment must show either (1) that one or more elements of the plaintiff's cause of action cannot be established, or (2) ‘that there is a complete defense to that cause of action.’ [Citation.] The burden on a defendant moving for summary judgment based upon the assertion of an affirmative defense is heavier than the burden to show one or more elements of the plaintiff's cause of action cannot be established. Instead of merely submitting evidence to negate a single element of the plaintiff's cause of action, or offering evidence such as vague or insufficient discovery responses that the plaintiff does not have evidence to create an issue of fact as to one or more elements of his or her case [citation], ‘the defendant has the initial burden to show that undisputed facts support each element of the affirmative defense’ [citations]. The defendant must demonstrate that under no hypothesis is there a material factual issue requiring trial. [Citation.] If the defendant does not meet this burden, the motion must be denied. Only if the defendant meets this burden does ‘the burden shift[ ] to plaintiff to show an issue of fact concerning at least one element of the defense.’ [Citation.]” (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289–290, 85 Cal.Rptr.2d 331.)

“We review the trial court's summary judgment rulings de novo. [Citation.] ‘ “In performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally, construing [his] evidentiary submission while strictly scrutinizing [the defendant's] own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor.” [Citation.]’ [Citation.]” (Ganoe v. Metalclad Insulation Corp. (2014) 227 Cal.App.4th 1577, 1582, 174 Cal.Rptr.3d 787.)

Workers' Compensation Principles

“California's Workers' Compensation Act (Lab.Code, § 3600 et seq. ) provides an employee's exclusive remedy against his or her employer for injuries arising out of and in the course of employment.” (Wright v. State of California (2015) 233 Cal.App.4th 1218, 1229, 183 Cal.Rptr.3d 135.) The exclusive remedy provision of the act provides, in part, that “ ‘[w]here the conditions of compensation set forth in Section 3600 concur, the right to recover compensation is ... the sole and exclusive remedy of the employee or his or her dependents against the employer’ (Lab.Code, § 3602, subd. (a) ), and that ‘[i]n all cases where the conditions of compensation set forth in Section 3600 do not concur, the liability of the employer shall be the same as if this division had not been enacted’ (Lab.Code, § 3602, subd. (c) ). The legal theory supporting this exclusive remedy provision ‘is a presumed “compensation bargain,” pursuant to which the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.’ [Citation.]” (Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 141–142, 184 Cal.Rptr.3d 26.)

“ ‘ “The requirement of [Labor Code] section 3600 is twofold. On the one hand, the injury must occur ‘in the course of the employment.’ This concept ‘ordinarily refers to the time, place, and circumstances under which the injury occurs.’ [Citation.] Thus ‘ “[a]n employee is in the ‘course of his employment’ when he does those reasonable things which his contract with his employment expressly or impliedly permits him to do.” ' [Citation.] And, ipso facto, an employee acts within the course of his employment when ‘ “performing a duty imposed upon him by his employer and one necessary to perform before the terms of the contract [are] mutually satisfied.” ’ ” [Citation.]' [Citation.] [¶] ‘ “On the other hand, the statute requires that an injury ‘arise out of’ the employment.... It has long been settled that for an injury to ‘arise out of the employment’ it must ‘occur by reason of a condition or incident of [the] employment....’ [Citation.] That is, the employment and the injury must be linked in some causal fashion.” [Citation.]' [Citation.]”³ (Mason v. Lake Dolores Group (2004) 117 Cal.App.4th 822, 833, 11 Cal.Rptr.3d 914 (Mason ).)

“Whether an employee's injury arose out of and in the course of [his] employment is generally a question of fact to be determined in light of the circumstances of...