Saavedra v. Korean Air Lines Co., Ltd., s. 94-55018

• Decision Date: 02 August 1996
• Docket Number: Nos. 94-55018,94-55161,94-55060,94-55495 and 94-55496,s. 94-55018
• Citation: 93 F.3d 547
• Parties: , 96 Cal. Daily Op. Serv. 5743, 96 Daily Journal D.A.R. 9389 Kimberly S. SAAVEDRA; The Estate of Masakazu Yamaguchi; Makiko Yamaguchi; Chisato Yamaguchi, et al., Plaintiffs-Appellees-Cross-Appellants, v. KOREAN AIR LINES COMPANY, LTD. Defendant-Appellant-Cross-Appellee. Kimberly S. SAAVEDRA, as Special Administratrix of the Estate of Makoto Okai, deceased, and as Personal Representative of Toru Okai and Hitoko Okai, Plaintiff-Appellant-Cross-Appellee, v. KOREAN AIR LINES COMPANY, LTD., Defendant-Appellee-Cross-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 547

93 F.3d 547

1996 A.M.C. 2113, 96 Cal. Daily Op. Serv. 5743,

96 Daily Journal D.A.R. 9389

Kimberly S. SAAVEDRA; The Estate of Masakazu Yamaguchi;

Makiko Yamaguchi; Chisato Yamaguchi, et al., Plaintiffs-Appellees-Cross-Appellants, v. KOREAN AIR LINES COMPANY, LTD. Defendant-Appellant-Cross-Appellee.

Kimberly S. SAAVEDRA, as Special Administratrix of the

Estate of Makoto Okai, deceased, and as Personal

Representative of Toru Okai and Hitoko

Okai, Plaintiff-Appellant-Cross-Appellee, v. KOREAN AIR LINES COMPANY, LTD., Defendant-Appellee-Cross-Appellant.

Nos. 94-55018, 94-55060, 94-55161, 94-55495 and 94-55496.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 8, 1996.

Decided Aug. 2, 1996.

Juanita M. Madole, Speiser, Krause, Madole & Cook, Irvine, California, for plaintiffs-appellees-cross-appellants.

Andrew J. Harakas, Tompkins, Harakas, Elsasser & Tompkins, White Plains, New York, for defendant-appellant-cross-appellee.

Appeals from the United States District Court for the Central District of California, Irving Hill, District Judge, Presiding. D.C. No. CV-84-09324-IH(JRx).

Appeals from the United States District Court for the Central District of California, A. Wallace Tashima, District Judge, Presiding. D.C. No. CV-84-09329-AWT.

Before SCHROEDER and LEAVY, Circuit Judges, and TRIMBLE, ^* District Judge.

SCHROEDER, Circuit Judge:

These two sets of appeals and cross-appeals arise out of the Korean Air Lines ("KAL") disaster of September 1, 1983, when missiles fired from Soviet military aircraft shot down KAL Flight KE007 over the Sea of Japan. The plaintiff, Kimberly Saavedra, is the personal representative for the estates of three crash victims: Makoto and Yoko Okai, who were husband and wife, and Masakazu Yamaguchi. Saavedra filed these actions against KAL in the District Court for the Central District of California, claiming a wide array of damages.

When Saavedra filed suit, KAL's liability to all of the passengers on flight KE007 had already been established in a single trial, conducted in the District Court for the District of Columbia. See In re Korean Air Lines Disaster of Sept. 1, 1983, 575 F.Supp. 342, 343 (J.P.M.L.1983)(per curiam). That trial followed from an order of the Judicial Panel on Multidistrict Litigation, which transferred all of the federal cases relating to the KEOO7 disaster to D.C. for resolution of the common issues. The jury in the consolidated trial found that KAL's "willful misconduct" had caused the death of the passengers, and awarded punitive damages. The Court of Appeals for the District of Columbia then vacated the award of punitive damages, but affirmed the finding of willful misconduct. See In re Korean Air Lines Disaster of Sept. 1, 1983, 932 F.2d 1475 (D.C.Cir.), cert. denied, 502 U.S. 994, 112 S.Ct. 616, 116 L.Ed.2d 638 (1991). Once the common liability issues were resolved, victims and their surviving relatives pursued actions for compensatory damages in various jurisdictions.

The cases before us were originally assigned to Judge Irving Hill of the Central District of California, who issued pretrial rulings and who went on to preside over the jury trial of the Yamaguchi action. Judge A. Wallace Tashima presided over the jury trial of the Okai actions. In all of the cases, Saavedra proceeded under the Convention for the Unification of Certain Rules Relating to International Transportation by Air, done at Warsaw, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876, reprinted in 49 U.S.C.App. § 1502 note ("Warsaw Convention") and the Death on the High Seas Act, §§ 1 et seq., 46 App.U.S.C.A. §§ 761 et seq. ("DOHSA"). Because the D.C. Circuit had upheld the jury's finding of willful misconduct, the $75,000 cap on damages, contained in Article 25 of the Warsaw Convention, was lifted.

In a pretrial ruling that governed all of Saavedra's actions, Judge Hill specified the types of damages that were recoverable under DOHSA and the Warsaw Convention. Under Judge Hill's order, damages for loss of society were disallowed. Judge Tashima did submit instructions to the jury on the issue of loss of society, but in deference to Judge Hill's earlier ruling, did not enter judgment on the jury's finding of $300,000 loss of society damages. The Okai and Yamaguchi juries awarded the following verdicts on the other, permissible damages:

                Kind of Damages                                 Okai        Yamaguchi
                ----------------------------------------------------------------------
                Loss of Support                                 $200,000    $1,813,391
                Loss of Past and Future Services & Inheritance  $0          $115,140
                Mental Anguish & Grief of Survivors             $150,000    $526,000
                Funeral & Memorial                              $0          $16,500
                Expenses
                Pre-death Pain & Suffering of Passenger(s)      $1,500,000  $100,000
                 * Loss of Society                           $300,000    ----
                ----------------------------------------------------------------------
                

Both judges awarded prejudgment interest to Saavedra at the rate of the 52-week Treasury Bill ("T-Bill") as of the last T-Bill auction prior to the judgment.

In both the Okai and Yamaguchi actions, the parties have filed appeals and cross-appeals. Saavedra seeks loss of society damages and a higher award of prejudgment interest, while KAL challenges the amount of damages awarded. Many of the issues raised before this court were resolved for the first time in a recent, related Supreme Court case, Zicherman v. Korean Air Lines Co., Ltd., --- U.S. ----, 116 S.Ct. 629, 133 L.Ed.2d 596 (1996), an action for damages brought in the Southern District of New York on behalf of another KE007 crash victim. The Supreme Court in Zicherman invalidated an award for loss of society, holding that the DOHSA does not authorize nonpecuniary damages. Id. at ----, 116 S.Ct. at 637. In light of Zicherman, we asked for supplemental briefing.

The parties now agree that the district courts' judgments correctly denied Saavedra any recovery for loss of society, and Saavedra's appeals in the Okai cases and cross-appeals in the Yamaguchi case are abandoned to the extent they sought such damages.

KAL further contends that the other district court awards of nonpecuniary damages, which include damages for survivor's grief and the pre-death pain and suffering of the decedents, are invalid in light of Zicherman. In the alternative, KAL challenges the sufficiency of the evidence supporting the award of pre-death pain and suffering, as well as the amount of those damages in the Okai cases. Saavedra defends these damages, arguing that they are supported by Korean law and thus are redressable under DOHSA § 4, 46 U.S.C. § 764 ("rights of actions given by laws of foreign countries"), even if nonpecuniary damages are not otherwise available under DOHSA after Zicherman. Saavedra also argues that pre-death pain and suffering damages are available as part of a general maritime survival action. Accordingly, we must first determine the effect of the Zicherman decision on the district courts' awards of nonpecuniary damages in these cases.

We also must consider the other damage issues. The first is KAL's sufficiency of the evidence challenge to the loss of support damages in the Okai cases. The other is Saavedra's contention that the district court abused its discretion in awarding prejudgment interest at the 52-week T-Bill rate in effect as of the last T-Bill auction prior to judgment, rather than at the higher rate in effect at the last T-Bill auction prior to the KE007 disaster.

We hold that the Supreme Court's reasoning in Zicherman, although directly dealing only with a claim for loss of society, effectively forecloses any claims under American law for nonpecuniary damages, including compensation for the grief of the survivors, and the pre-death pain and suffering of the victims. We do not reach the question of whether claims for damages might also be made under foreign law pursuant to § 4 of DOHSA, 46 U.S.C. § 764, because Saavedra elected to proceed directly under the Warsaw Convention on the theory that the Convention authorizes claims broader than those allowed under DOHSA. Saavedra neither proffered evidence of Korean law at trial nor sought to have the jury instructed on Korean law.

We hold that Saavedra adduced sufficient evidence to support the award of loss of support in the Okai case. Finally, we hold that, given the alternatives presented to the district court, it did not abuse its discretion in awarding prejudgment interest at the 52-week T-Bill rate as of the last T-Bill auction prior to judgment.

THE ZICHERMAN LITIGATION

The parties agree that the Supreme Court's decision in Zicherman forecloses Saavedra's claims for loss of society damages in both cases. Saavedra, like the plaintiffs in Zicherman, claimed loss of society damages directly under the Warsaw Convention. The parties disagree, however, on whether Zicherman forecloses other claims. To help resolve the disagreement over the proper interpretation of the Supreme Court's opinion, we look to the history of the Zicherman litigation.

The district court in Zicherman, 807 F.Supp. 1073, 1086-89 (S.D.N.Y.1992), permitted the jury to award loss of society damages, on the ground that such damages were recoverable directly under Article 17 of the Convention, which makes the carrier, here Korean Air Lines, liable for "damage sustained in the event of death or wound of a passenger ..." 49 Stat. 3018. In the district court's view, "damage sustained" referred to "actual harm experienced," 807 F.Supp. at 1087 (quoting In re Korean Air Lines Disaster, 932 F.2d at 1485), so that when a passenger died, actual harm experienced would include "monetary or other loss to the survivors," such as loss of society damages. Id. The district court rejected the notion that DOHSA limits the recovery available directly under the Convention, concluding that to the extent a conflict exists, the...