Taylor v. John Crane Inc.

• Decision Date: 26 November 2003
• Docket Number: No. A098587,No. A098044.,A098044.,A098587
• Citation: 6 Cal.Rptr.3d 695,113 Cal. App. 4th 1063
• Court: California Court of Appeals
• Parties: DAVID TAYLOR et al., Plaintiffs and Appellants, v. JOHN CRANE INC., Defendant and Appellant.

6 Cal.Rptr.3d 695

113 Cal.App.4th 1063

DAVID TAYLOR et al., Plaintiffs and Appellants, v.JOHN CRANE INC., Defendant and Appellant.

No. A098044.

No. A098587

Court of Appeal, First District, Division Four

November 26, 2003

Certified for Partial Publication.^*

Philip S. Ward, San Francisco, Robert L. Nelder, Helene E. Swanson, Hassard Bonnington LLP, San Francisco, for Defendant and AppellantJohn Crane Inc.

Harry F. Wartnick, Stephen M. Tigerman, The Wartnick Firm, San Francisco, Daniel U. Smith, Law Offices of Daniel U. Smith, Los Angeles, for Plaintiffs and AppellantsDavid Taylor and Susan Taylor.

RIVERA, J.

DefendantJohn Crane Inc., appeals a jury verdict in favor of plaintiffsDavid Taylor(Taylor) and his wife Susan Taylor, based on Taylor's exposure to asbestos-containing products manufactured by defendant.Plaintiffs cross-appeal, contending the jury should not have allocated fault to the United States Navy in calculating defendant's proportionate share of fault.Finding no error, we affirm the judgment.

I.FACTUAL AND PROCEDURAL HISTORY

Taylor served in the Navy as a machinist mate from 1962 to 1971 and again from 1973 to 1976.He worked for the Union Pacific Railroad for approximately six months in the period between his Navy enlistments.He was in the naval reserve from 1976 through 1986.He stopped working in February 2001 because of ill health.He was diagnosed with mesothelioma and the same month was told his life expectancy was a matter of weeks or months.

A. Taylor's Work in the Navy

Taylor testified at trial that, among his other duties as a machinist mate on Navy submarines and surface ships, he performed maintenance on valves (which regulate the flow of steam and fluids through pipes) and flanges (the joints between pipe sections).His work on valves included removing and installing the asbestos-containing packing that was used as a sealant to prevent steam from leaking out of the valve.In doing this work, at times he had to brush debris from the packing gland and blow into the valve to remove the debris; some of the dust that was generated would blow back into his face.His work on flanges included installing and removing the spiral-wound and sheet gaskets that seal the pipe joints.During the course of this work, he had to remove debris from the flange, sometimes with a wire brush.Some of the valves and flanges were above his head as he worked, and debris fell on him.He cleaned up the debris by sweeping it up with a broom and dustpan.He did not wear protective gear during this work.

B.Defendant's Products

Defendant manufactures sealing devices, including valve packing.Some of its packing products contain asbestos.During the period 1963 to 1984, defendant sold both asbestos-containing and nonasbestos-containing packing to the Navy.During the same time period, defendant also sold asbestos-containing gasket material, which had been manufactured elsewhere but contained defendant's logo.

During Taylor's time in the Navy, he worked with defendant's products.The evidence at trial indicated that Taylor also worked with parts made by other manufacturers.

C.The Present Action

Taylor and his wife brought this action in San Francisco County Superior Court on April 5, 2001, naming John Crane Inc.(defendant), and multiple other defendants.Trial proceeded against defendant, and on December 14, 2001, the jury returned a special verdict in favor of plaintiffs.The jury found Taylor's economic damages to be $1,010,849, his noneconomic damages to be $1,790,000, and Susan Taylor's noneconomic damages to be $229,000.Defendant was found to be 31 percent responsible for plaintiffs' injuries; the Navy, which was not a party to the action, was found to be 16 percent responsible.The remainder of the responsibility was allocated to other entities that also were not parties to the trial.

Judgment was entered on December 20, 2001, and amended on December 24, 2001.Defendant moved for a new trial.The motion was denied on March 1, 2002.On March 4, 2002, defendant appealed the December 20, 2001, judgment and the December 24, 2001, amended judgment (appeal No. A098044).On March 26, plaintiffs cross-appealed to the extent the judgments reduced their damages by the fault allocated to the United States Navy.A second amended judgment on the special verdict was filed on April 11, 2002.Defendant appealed from the order denying a new trial and from the second amended judgment on April 17, 2002(appeal No. A098587).The appeals were consolidated on July 3, 2002.

II.DISCUSSION

A.-D.^**

E. Cross-appeal

Plaintiffs argue on cross-appeal that the trial court erred in allowing the jury to allocate fault to the Navy.The verdict form asked, "Assuming the combined negligence and fault of the defendant and of all other persons, companies and entities whose negligence and fault contributed to the plaintiff's injury to be 100%, what percentage of such combined negligence and fault is attributable to the defendant and to such other persons, companies or entities whose negligence and fault was a cause of the plaintiff's injury."One of the lines on the form allowed the jury to attribute fault to the Navy.The jury allocated 31 percent fault to defendant, 16 percent to the Navy, and the remaining amount to other entities.⁶Based on this allocation, the second amended judgment awarded plaintiffs 31 percent of their total noneconomic damages.

Plaintiffs contend the Navy was immune from liability and, as a result, it was error to allocate fault to the Navy for purposes of calculating defendant's proportionate share of their noneconomic damages.They ask us to modify the judgment to eliminate the fault or negligence allocated to the Navy and to increase that allocated to defendant.

1.Immunity of Navy

Plaintiffs rely on two theories of immunity.First, plaintiffs cite the discretionary function immunity, an exception to the Federal Tort Claims Act, that bars claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused."(28 U.S.C. § 2680(a).)This exception has been held to bar actions based on the Veteran's Administration's negligent failure to inspect a house for asbestos before sale (Kane v. U.S.(8th Cir.1994)15 F.3d 87, 88-89); the government's negligence in failing to warn of the risk of asbestos on ships (Sea-Land Service, Inc. v. U.S.A.(3d Cir.1990)919 F.2d 888, 892-893); the government's alleged negligence in constructing, operating, and maintaining asbestos-containing ships (Gordon v. Lykes Bros. S.S. Co., Inc.(5th Cir.1988)835 F.2d 96, 99-100(Gordon)); and the government's lack of due care in promulgating a policy for asbestos safety in shipyards or in having no policy or program at all on the issue (Shuman v. United States(1st Cir.1985)765 F.2d 283, 290).

Plaintiffs also contend the doctrine announced in Feres v. United States(1950)340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152(Feres)andStencel Aero Engineering Corp. v. U.S.(1977)431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665(Stencel) confers immunity on the Navy.In Feres, supra,340 U.S. at page 146, 71 S.Ct. 153, the United States Supreme Court declared: "[T]he Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service."The Supreme Court extended the reach of the Feres doctrine in Stencel to conclude that a third party indemnity cross-claim against the government for injuries the plaintiff had suffered during military service was barred.(Stencel, supra,431 U.S. at pp. 667, 673, 97 S.Ct. 2054.)In doing so, the court explained the factors that underlie the Feres doctrine: the need for a uniform system of compensation for members of the armed services; the fact that the Veterans' Benefit Act establishes, "as a substitute for tort liability, a statutory `no fault' compensation scheme which provides generous pensions to injured servicemen, without regard to any negligence attributable to the Government"; and the disciplinary problems that would result if soldiers could sue their superiors for negligent orders or negligent acts committed in the course of military duty.(Stencel,at pp. 671-672, 97 S.Ct. 2054, citingFeres, supra,340 U.S. at p. 143, 71 S.Ct. 153andUnited States v. Brown(1954)348 U.S. 110, 112, 75 S.Ct. 141, 99 L.Ed. 139.)⁷

Defendants dispute plaintiffs' claim that the Navy was immune under either the discretionary immunity exception or the Feres/Stencel rule.We do not decide the issue because we conclude that, even assuming the Navy was immune, the trial court properly allowed the fault of the Navy to be taken into account in allocating responsibility for plaintiffs' injuries.

2.Allocation of Fault Under Proposition 51

Several cases have considered the allocation of responsibility for noneconomic damages to an absent party in light of Proposition 51(Civ.Code,⁸ § 1431.2 and amended § 1431).Section 1431.2, subdivision (a) provides that, in actions for wrongful death, personal injury, or property damage based on comparative fault, "the liability of each defendant for non-economic damages shall be several only and shall not be joint.Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against that defendant for that amount."(SeeDaFonte v. Up-Right, Inc.(1992)2 Cal.4th 593, 600, 7 Cal.Rptr.2d 238, 828 P.2d 140(DaFonte).)Our Supreme Court has explained the purpose of this rule: "`[T]he measure quite clearly is simply intended to limit the potential liability of an individual defendant for noneconomic damages to a proportion commensurate with that defendant's personal share...