Stevens v. Owens-Corning Fiberglas Corp.

Citation49 Cal.App.4th 1645,57 Cal.Rptr.2d 525
Decision Date11 October 1996
Docket NumberNo. A065995,OWENS-CORNING,A065995
CourtCalifornia Court of Appeals
Parties, Prod.Liab.Rep. (CCH) P 14,753, 96 Cal. Daily Op. Serv. 7619, 96 Daily Journal D.A.R. 12,527 Raymond STEVENS, as Executor, etc., Plaintiff and Respondent, v.FIBERGLAS CORPORATION, Defendant and Appellant.

Gibson, Dunn & Crutcher, Thomas G. Hungar, Mark Snyderman, Washington, DC, for Appellant.

Harry F. Wartnick, Madelyn J. Chaber, San Francisco, Daniel U. Smith, Kentfield, for Respondent.

PARRILLI, Associate Justice.

In this case appellant objects to an award of punitive damages, claiming punitive damages awarded in other cases have already fulfilled the objectives of punishment and deterrence. We hold that before such a claim may be raised on appeal, the appellant must first present evidence of the other awards to the trier of fact.

Owens-Corning Fiberglas Corporation (OCF) appeals from a judgment awarding the estate of James Duffy $25,660.17 in economic damages and $2 million in punitive damages. The jury found James Duffy's lung cancer was caused by asbestos in insulation made by OCF. OCF contends Code of Civil Procedure section 377.34 1 prohibited the jury from awarding lost pension benefits as economic damages. Regarding punitive damages, OCF argues (1) the trial court did not adequately review the amount of the award; (2) the award is excessive as a matter of law; and (3) due process and California law preclude this and any further punitive damage awards in asbestos personal injury cases.

We affirm the judgment. Any error in the award of lost pension benefits was invited by OCF. OCF's challenges to the punitive damage award are not supported by the law or the record.


James Duffy sued a number of defendants alleging they manufactured, distributed, or marketed asbestos products that caused his asbestosis and cancer. OCF was the only defendant at trial; all others settled with Duffy or were dismissed. OCF moved in limine to strike Duffy's demand for punitive damages. It contended prior punitive and compensatory damages awarded against it had fulfilled the purposes of punitive damages and precluded any further awards as a matter of law. The trial court denied the motion.

During jury selection, Duffy died and his estate was substituted as plaintiff. (See § 377.31.) The jury was impaneled on December 9, 1993. OCF's liability for economic damages was tried first. On January 3, 1994, OCF submitted proposed jury instructions, including instructions on Duffy's probable life expectancy (BAJI No. 14.69) and the present cash value of his future economic losses (BAJI No. 14.70). On January 7, the parties stipulated to a jury instruction on damages for lost pension payments. This instruction told the jury that if it found exposure to OCF's asbestos product caused Duffy's lung cancer, it must assess damages for lost pension funds according to what it determined Duffy's life expectancy would have been but for the cancer. The instruction informed the jury the parties had stipulated that the present cash value of Duffy's future pension benefits was as shown in an exhibit placed in evidence by the estate. The jury was given the stipulated instruction as well as BAJI Nos. 14.69 (life expectancy) and 14.70 (present cash value, modified to reflect the parties' stipulation on the present cash value of Duffy's future pension benefits).

On January 12, the jury returned a special verdict finding OCF liable for $12,473 in medical damages and $66,612 in lost pension benefits. The jury found no comparative negligence on Duffy's part. OCF's liability for punitive damages was tried next. On January 26, the jury returned a special verdict finding OCF guilty of malice, fraud, or oppression in its manufacture and distribution of asbestos products. The amount of punitive damages, if any, was tried last. OCF did not present evidence of the punitive damages awarded against it in other cases, which it had cited to the trial court on its motion in limine. The jury assessed punitive damages of $2 million on January 28. The trial court reduced the compensatory damage award to $25,660.17 to account for settlements with other defendants, and entered judgment.

OCF moved for a new trial, or for a reduction in the punitive damage award. Alternatively, it moved for judgment notwithstanding the verdict. It contended the award of lost pension benefits was precluded by section 377.34, which restricts damages in survival actions to "the loss or damage that the decedent sustained or incurred before death." OCF also claimed the punitive damage award was excessive, insisting it had been punished enough in asbestos litigation and further awards were unwarranted. OCF referred the trial court to the other punitive damage awards it had raised on its motion in limine. The estate argued the punitive damage award was not excessive, and the recovery of lost pension benefits was not barred

by section 377.34. It maintained the statute precludes recovery for lost future earnings, which did not include Duffy's vested and matured entitlement to pension benefits. The trial court denied the motions.

1. OCF Invited Any Error in the Award of Lost Pension Benefits

OCF argues section 377.34 prohibits recovery of Duffy's lost pension benefits. However, OCF submitted jury instructions on Duffy's life expectancy and the present cash value of his future economic loss, and stipulated to an instruction requiring the jury to assess damages for lost pension benefits if it found OCF liable for causing Duffy's lung cancer. Therefore, it is in no position to complain that such damages are precluded by section 377.34.

The doctrine of invited error bars an appellant from attacking a verdict that resulted from a jury instruction given at the appellant's request. (Nevis v. Pacific Gas & Electric Co. (1954) 43 Cal.2d 626, 630, 275 P.2d 761 [finding of negligence induced by erroneous instruction on minimum clearance for defendant's power lines]; Jentick v. Pacific Gas & Elec. Co. (1941) 18 Cal.2d 117, 121, 114 P.2d 343 [verdict resulting from erroneous instruction on employer's liability for employee's negligence]; Cucamonga County Water Dist. v. Southwest Water Co. (1971) 22 Cal.App.3d 245, 261, 99 Cal.Rptr. 557 [item of damages specified in instruction tendered by appellant]; see also Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 960, fn. 8, 17 Cal.Rptr.2d 242 [erroneous special verdict form]; Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1685-1687, 12 Cal.Rptr.2d 279 [jointly drafted special verdict form inviting inconsistent verdict]. On application of the doctrine to bar claims of instructional error, see Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, 255, 259 Cal.Rptr. 311 [BAJI instructions]; Stone v. Foster (1980) 106 Cal.App.3d 334, 350, 164 Cal.Rptr. 901 [instruction on future medical expenses as element of damages]; Gherman v. Colburn (1977) 72 Cal.App.3d 544, 567, 140 Cal.Rptr. 330 [jointly requested instruction].)

The invited error doctrine applies "with particular force in the area of jury instructions. Whereas in criminal cases a court has strong sua sponte duties to instruct the jury on a wide variety of subjects, a court in a civil case has no parallel responsibilities. A civil litigant must propose complete instructions in accordance with his or her theory of the litigation and a trial court is not 'obligated to seek out theories [a party] might have advanced, or to articulate for him that which he has left unspoken.' [Citations.]" (Mesecher v. County of San Diego, supra, 9 Cal.App.4th at p. 1686, 12 Cal.Rptr.2d 279.)

OCF contends it has not waived the right to challenge the award because it raised the issue in its motions for a new trial or judgment notwithstanding the verdict. It claims legal challenges may be presented for the first time by way of posttrial motion and will be treated as if raised before the verdict, citing Hoffman-Haag v. Transamerica Ins. Co. (1991) 1 Cal.App.4th 10, 15, 1 Cal.Rptr.2d 805. Nothing in Hoffman-Haag supports the statement that legal arguments first asserted after trial are treated as if raised before the verdict; the court held only that posttrial challenges in the trial court based on legal error in the judgment are not limited to those raised before the verdict or judgment. Nor did Hoffman-Haag involve invited instructional error. There, after a court trial, the defendant moved for a new trial and to vacate the judgment, relying for the first time on a statute effectively overruling case law upon which the trial court had based its decision. The Court of Appeal held it was permissible for the defendant to rely on the statute in its posttrial motion, and affirmed the trial court's order granting the motion. A theory presenting a question of law on undisputed facts may be raised for the first time on appeal, and a trial court has no less power to consider new legal theories on a motion for new trial when it re-examines its initial determination for legal error. (Id. at pp. 15-16, 1 Cal.Rptr.2d 805.)

OCF suggests we may consider the effect of section 377.34 as a purely legal issue involving no disputed facts. We have broad We decline to exercise our discretion to consider whether section 377.34 bars the estate's recovery of lost pension benefits. Although OCF's argument is consistent with the plain language of section 377.34, the statute's impact on recovery of future pension benefits appears to be an issue of first impression. 2 However, we perceive no pressing public interest or policy in favor of reaching the issue, as existed in the Resolution Trust Corp. and Moschetta cases. Judicial policy disfavors reaching the issue; the invited error doctrine prevents OCF from challenging the verdict the jury reached by following instructions OCF submitted. This would be...

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