Miss. Valley Silica Co. v. Barnett

• Decision Date: 23 August 2016
• Docket Number: NO. 2013-CA-01296-COA.,2013-CA-01296-COA.
• Parties: MISSISSIPPI VALLEY SILICA COMPANY, INC., Appellant v. Dorothy BARNETT, Individually and as Wrongful Death Beneficiary of Howard Barnett, Deceased, and on Behalf of All Wrongful Death Beneficiaries of Howard Barnett, Deceased, Appellee
• Court: Mississippi Court of Appeals

227 So.3d 1102

MISSISSIPPI VALLEY SILICA COMPANY, INC., Appellant

v.Dorothy BARNETT, Individually and as Wrongful Death Beneficiary of Howard Barnett, Deceased, and on Behalf of All Wrongful Death Beneficiaries of Howard Barnett, Deceased, Appellee

NO. 2013-CA-01296-COA.

Court of Appeals of Mississippi.

August 23, 2016

Rehearing Denied February 21, 2017

Certiorari Denied September 28, 2017

JOHN D. COSMICH, MICHAEL D. SIMMONS, LAKEYSHA GREER ISAAC, FOR APPELLANT

PATRICK MALOUF, ROBERT ALLEN SMITH JR., TIMOTHY W. PORTER, JOHN TIMOTHY GIVENS, DAVID NEIL MCCARTY, FOR APPELLEE

EN BANC.

WILSON, J., FOR THE COURT:

¶1. From about 1960 to 1970, Howard Barnett worked for Mississippi Steel and Iron Company (MSIC) approximately forty to sixty-five feet away from sandblasting operations. Howard and a coworker both testified that silica sand supplied by Mississippi Valley Silica Company (Valley) was one of two brands of sand used in the sandblasting. They also testified that their work conditions were extremely dusty due to the nearby sandblasting operations. Howard was eventually diagnosed with silicosis

, and he filed suit against Valley and other defendants, alleging that his disease was caused by his exposure to silica at MSIC. Howard alleged that Valley's sand was defective because it failed to provide adequate warnings and instructions regarding the dangers of silica. Howard passed away after he filed suit, and his wife, Dorothy Barnett, was substituted as the plaintiff in her individual capacity and on behalf of all of Howard's wrongful death heirs.

¶2. The case eventually proceeded to trial against Valley only, and the jury returned a verdict in favor of Dorothy. The jury found that Dorothy had proven both economic and noneconomic damages and assigned Valley thirty-five percent fault for Howard's injuries. The trial court then submitted the issue of punitive damages to the jury, and the jury returned a verdict for punitive damages in the amount of $500,000. After judgment was entered on the verdict, the trial court also awarded Dorothy attorneys' fees. The trial court denied Valley's post-trial motions for judgment notwithstanding the verdict (JNOV) or a new trial and to alter or amend the judgment, and Valley appealed.

¶3. On appeal, Valley raises a number of issues, which may be restated as follows: (1) whether the judgment must be reversed and rendered because Dorothy never opened an estate and lacks "standing" to recover "survival damages" in her individual capacity or as a wrongful death heir; (2) whether Howard's/Dorothy's claim was barred by the applicable statute of limitations; (3) whether the trial court erred by instructing the jury that Valley had a duty to provide warnings to persons who might "reasonably be expected to be in the vicinity of the product's probable use and to be endangered by it if defective"; (4) whether Valley is entitled to JNOV or a new trial because Dorothy failed to prove that Howard was exposed to Valley sand or harmful levels of silica or that Valley breached its duty to warn; (5) whether the trial court erred by submitting the issue of punitive damages to the jury; (6) whether the statutory cap on punitive damages required the trial court to remit punitive damages to $0; (7) whether the trial court misapplied the apportionment statute and the statutory cap on noneconomic damages; and (8) whether the trial court's award of attorneys' fees was an abuse of discretion. We find no reversible error with respect to the first seven issues and therefore affirm the circuit court's judgment in favor of Dorothy for actual and punitive damages. However, we conclude that the trial court abused its discretion by awarding Dorothy $212,312.50 in attorneys' fees without any supporting findings of fact or conclusions of law. We therefore vacate and remand the award of attorneys' fees for redetermination based on appropriate findings and conclusions.

FACTS AND PROCEDURAL HISTORY

¶4. Howard Barnett worked for MSIC for thirty years. From about 1960 to 1970, Howard worked in a covered area of MSIC's facility on High Street in Jackson as a saw operator and crane operator. During that time, he worked approximately forty to sixty-five feet away from sandblasting operations. Howard and one of his former coworkers, Lee Burch, testified that on a daily basis, their workspace was extremely dusty because dust from the sandblasting operations carried easily through the air. Howard testified that he "ate a lot of sand" while working at MSIC during this decade and that the "sand was rough up there" even when he operated a crane. The sandblasting created enough dust that MSIC's neighbor complained about it. Howard and Burch both testified that they observed bags of silica sand manufactured by Valley and Southern Silica being used in MSIC's sandblasting operations.

¶5. After Howard retired, he developed significant pulmonary issues and other health problems. His family practitioner, Dr. Charles Pruitt, initially diagnosed Howard as suffering from chronic obstructive pulmonary disease

(COPD) and treated him accordingly. However, as Howard's pulmonary health worsened, Dr. Pruitt eventually referred him to Dr. Julian Rose, a pulmonologist. Dr. Rose treated Howard for several years and eventually diagnosed him with silicosis. Howard passed away in February 2011.

¶6. Prior to his death, Howard filed the instant lawsuit against Valley and other defendants. Howard's complaint alleged that his lung injuries were caused by exposure to silica and that Valley's sand was defective because it failed to contain adequate warnings of the dangers of silica. See Miss. Code Ann. § 11–1–63(a) (Rev. 2014). Certain defendants subsequently filed motions for summary judgment, which Valley joined, arguing that Howard's injuries were discoverable in 2005, so the three-year statute of limitations had run before he filed his lawsuit in 2010. However, the trial court denied these motions.

¶7. After Howard's death in February 2011, his attorneys filed a suggestion of death and motion to file an amended complaint to substitute his wife, Dorothy Barnett, as the plaintiff. The trial court granted the motion, and Dorothy filed an amended complaint, individually and on behalf of all of Howard's wrongful death beneficiaries. After other defendants were dismissed, the case eventually proceeded to an October 2012 jury trial against Valley only. Dorothy's only claim at trial was that Valley failed to provide adequate warnings of the dangers of silica. It was undisputed that Valley's sand was manufactured, marketed, and sold for use in sandblasting operations. It was also undisputed that there were no warning labels or safety instructions on Valley's sand during the relevant period.

¶8. The jury found in favor of Dorothy and apportioned fault thirty-five percent to Valley, thirty-five percent to Southern Silica, and thirty percent to MSIC. The jury also found economic damages of $165,615.73; noneconomic damages of $1,034,384.27; and damages for loss of consortium of $500,000. The trial court then submitted the issue of punitive damages to the jury, and the jury awarded $500,000 in punitive damages. The trial court entered judgment in favor of Dorothy for $1,095,000¹ plus costs and post-judgment interest.

¶9. After judgment was entered, Dorothy filed a motion for costs and attorneys' fees, and Valley filed a motion for JNOV or a new trial and a motion to alter or amend the judgment. In the latter motion, Valley argued that the judgment should be reduced pursuant to the statutory cap on noneconomic damages, Miss. Code Ann. § 11–1–60(2)(b) (Rev. 2014), and that the statutory cap on punitive damages, Miss. Code Ann. § 11–1–65(3)(a) (Rev. 2014), precluded any award of punitive damages. The trial court denied Valley's motions and later awarded Dorothy attorneys' fees in the amount of $212,312.50.

¶10. Valley filed a timely notice of appeal from the final judgment of the circuit court. Additional facts and procedural history are discussed below in connection with the various issues raised by Valley on appeal.

DISCUSSION

¶11. The issues raised by Valley on appeal are set out above in paragraph 3. We address these issues in turn below.

I. The absence of an estate does not require reversal.

¶12. "The wrongful death statute allows the statutory heirs to recover damages for the defendant's wrongful, lethalconduct." In re Estate of England, 846 So.2d 1060, 1068 (¶ 23) (Miss.Ct.App.2003) (citing Miss. Code Ann. § 11–7–13 (Supp. 2002) ). Therefore, "[t]o be entitled to recovery, the wrongful death plaintiff must prove that the wrongful conduct proximately caused the death." Id. If the wrongful death plaintiff meets this burden, then "any damages for personal injuries suffered by the decedent during [his] lifetime are [also] recoverable in the wrongful death suit." Id.at (¶ 25). However, if it is notproven that the defendant's wrongful conduct proximately caused the decedent's death, "there [can] be no recovery for the heirs under the wrongful death statute." Id.at (¶ 26). In that case, any right to recover damages for personal injuries that the decedent suffered during his lifetime would belong to the decedent's estate under the "survival statute." Id. ; see Miss. Code Ann. § 91–7–233 (Rev. 2013).

¶13. Valley argues that the foregoing principles require us to reverse and render judgment in its favor. Valley argues that the jury found that it "was not responsible for Howard's death," and therefore Dorothy lacked "standing" to recover any damages related to Howard's exposure to silica. We disagree for three reasons, which we summarize briefly here and explain in more detail below. First, a cursory reading of the jury's verdict shows that the jury actually found that Valley's "failure to warn ... wasa proximate cause of Howard Barnett's lung condition and death" (emphasis added), which directly contradicts the basic premise of Valley's argument. This finding was inconsistent with another...