Pesce v. Summa Corp.

• Decision Date: 29 December 1975
• Citation: 126 Cal.Rptr. 451,54 Cal.App.3d 86
• Court: California Court of Appeals Court of Appeals
• Parties: , 1976 A.M.C. 1097 Louis PESCE, Jr. and Willa Mae Pesce, Plaintiffs and Appellants, v. SUMMA CORPORATION, a corporation, et al., Defendants and Respondents. Civ. 46317.

Page 451

126 Cal.Rptr. 451

54 Cal.App.3d 86, 1976 A.M.C. 1097

Louis PESCE, Jr. and Willa Mae Pesce, Plaintiffs and Appellants, v. SUMMA CORPORATION, a corporation, et al., Defendants and Respondents.

Civ. 46317.

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

Dec. 29, 1975.

Olney, Levy, Kaplan & Tenner, Mitchell Levy and Jack Tenner, Los Angeles, for plaintiffs and appellants.

Lillick McHose & Charles, Gordon K. Wright, Thomas F. Melchior and Thomas F. Freear, Los Angeles, for defendants and respondents.

HANSON, Associate Justice.

Plaintiff Willa Mae Pesce (hereinafter WIFE) appeals from the order of the trial court dismissing her action for loss of consortium against defendants-respondents Global Marine, Inc., Summa Corporation, and Lockheed Missile and Space Company, Inc. after general demurrers were sustained without leave to amend.

THE CASE

The complaint of Louis Pesce, Jr. (hereinafter HUSBAND) alleges that on or about December 1, 1973, he was engaged as a harbor worker, working on the vessel HUGHES GLOMAR EXPLORER, berthed in Long Beach Harbor, California, on navigable waters of the United States, when he was struck by a piece of falling wood and seriously injured. His action for damages for personal injuries is based on the alleged negligence of defendants-respondents.

In November 1974, WIFE joined as a party plaintiff by leave of the court and thereafter HUSBAND and WIFE filed a Demurrers to the second cause of action were filed by defendants-respondents on the ground the case is controlled by general maritime law and by long settled authority, no action for loss of consortium may be maintained thereunder. These demurrers were sustained by the trial court with prejudice and without leave to amend.

first amended complaint. In the second cause of action in that amended complaint WIFE alleged that she had suffered damages for loss of consortium which occurred as the result of HUSBAND'S injury.

ISSUE

On appeal, plaintiff WIFE contends that recent federal and state decisions support a cause of action for loss of consortium under general maritime law for the wife of an injured longshoreman.

DISCUSSION

Can the wife of an injured longshoreman recover for loss of consortium caused by negligence of the shipowner or unseaworthiness of the ship under general maritime law?

The parties to the instant litigation concede, and rightly so, that state courts are required to apply federal maritime law under this factual situation.

In 1963 the issue was presented for the first time in a federal court of appeals in the case of Igneri v. Cie. de Transports Oceaniques, 323 F.2d 257 (2d Cir. 1963). The court held that the scheme of remedies, statutory and judicial, for injury to such maritime workers limits recovery to the person directly injured and that the wife cannot recover for loss of consortium.

In deference to State decisis, we are bound by Igneri unless it has been overruled by subsequent federal decisions.

In 1974 the United States Supreme Court in Sea-Land Services, Inc. v. Gaudet (1974), 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9, held that the widow of a longshoreman may maintain an action for the wrongful death of her husband--alleged to have resulted from injuries suffered by him while aboard a vessel in navigable waters--after the decedent recovered damages in his lifetime for his injuries. We quote at length what the Court said at pages 584--590, 94 S.Ct. at pages 814--817:

'Our review of those authorities, and the policies of maritime law, persuade us that, under the maritime wrongful-death remedy, the decedent's dependents may recover damages for their loss of support, services, and society, as well as funeral expenses.

'Recovery for loss of support has been universally recognized, and includes all the financial contributions that the decedent would have made to his dependents had he lived. Similarly, the overwhelming majority of state wrongful-death acts and courts interpreting the Death on the High Seas Act have permitted recovery for the monetary value of services the decedent provided and would have continued to provide but for his wrongful death. Such services include, for example, the nurture, training, education, and guidance that a child would have received had not the parent been wrongfully killed. Services the decedent performed at home or for his spouse are also compensable.

'Compensation for loss of society, however, presents a closer question. The term 'society' embraces a broad range of mutual benefits each family member receives from the other's continued existence, including love, affection, care, attention, companionship, comfort, and protection. Unquestionably, the deprivation of these benefits by wrongful death is a grave loss to the decedent's dependents. . . .

'A clear majority of States, on the other hand, have rejected such a narrow view of damages, and, either by express statutory provision or by judicial construction, permit recovery for loss of society. This expansion of damages recoverable 'Objection to permitting recovery for loss of society often centers upon the fear that such damages are somewhat speculative and that factfinders will return excessive verdicts. We were not unaware of this objection in Moragne, where we said:

under wrongful-death statutes to include loss of society has led one commentator to observe that '(w)hether such damages are classified as 'pecuniary,' or recognized and allowed as nonpecuniary, the recent trend is unmistakably in favor of permitting such recovery.' Speiser Wrongful Death 218. Thus, our decision to permit recovery for loss of society aligns the maritime wrongful-death remedy with a majority of state wrongful-death statutes. But in any event, our decision is compelled if we are to shape the remedy to comport with the humanitarian policy of the maritime law to show 'special solicitude' for those who are injured within its jurisdiction.

"(O)ther courts have recognized that calculation of the loss sustained by dependents or by the estate of the deceased, which is required under most present wrongful-death statutes . . . does not present difficulties more insurmountable than assessment of damages for many nonfatal personal injuries.' (Moragne v. States Marine Lines, Inc.) 398 U.S. (355), at 385, 90 S.Ct. (1772), at 1779, (26 L.Ed.2d 339).

'For example, juries are often called upon to measure damages for pain and suffering, mental anguish in disfigurement cases, or intentional infliction of emotional harm. In fact, since the 17th century, juries have assessed damages for loss of consortium--which encompasses loss of society--in civil actions brought by husbands whose wives have been negligently injured. More recently, juries have been asked to measure loss of consortium suffered by wives whose husbands have been negligently harmed. Relying on this history, the Florida Supreme Court recognized as early as 1899 that the damages for loss of society recovered by a wife for the wrongful death of her husband were 'no more fanciful or speculative than the frugality, industry, usefulness, attention, and tender solicitude of a wife (all of which a husband might recover at common law in an action for consortium), and the one can be compensated (as easily) by that simple standard of...