Torres v. Xomox Corp., A067409

• Court: California Court of Appeals
• Citation: 49 Cal.App.4th 1,56 Cal.Rptr.2d 455
• Decision Date: 30 August 1996
• Docket Number: No. A067409,A067409
• Parties: , 61 Cal. Comp. Cases 795, Prod.Liab.Rep. (CCH) P 14,740, 96 Cal. Daily Op. Serv. 6582, 96 Daily Journal D.A.R. 10,718 Mildred TORRES et al., Plaintiffs and Appellants, v. XOMOX CORPORATION, Defendant and Appellant. Richard SORNBORGER, Plaintiff, v. XOMOX CORPORATION, Defendant.

Page 455

56 Cal.Rptr.2d 455

49 Cal.App.4th 1, 61 Cal. Comp. Cases 795,

Prod.Liab.Rep. (CCH) P 14,740,

96 Cal. Daily Op. Serv. 6582,

96 Daily Journal D.A.R. 10,718

Mildred TORRES et al., Plaintiffs and Appellants, v. XOMOX CORPORATION, Defendant and Appellant.

Richard SORNBORGER, Plaintiff, v. XOMOX CORPORATION, Defendant.

No. A067409.

Court of Appeal, First District, Division 4, California.

Aug. 30, 1996.

Certified for Publication. ^*

Review Denied Dec. 18, 1996.

Merrill G. Emerick, Anderlini, Guheen, Finkelstein, Emerick & McSweeney, San Mateo, for Plaintiff and Appellant.

Richard A. Derevan, Snell & Wilmer, Irvine, for Defendant and Appellant.

HANLON, Associate Justice.

Maintenance worker Luis Torres died from burns he received at the Rhone-Poulenc chemical plant in Martinez on June 22, 1992, when he was doused with sulfuric acid sludge which escaped from a valve manufactured by Xomox Corporation. His family filed a wrongful death and survival action against Xomox and Charles Lowe Company, the Xomox distributor which had sold the valve to Rhone-Poulenc. The Torres action was consolidated with the suit filed against Xomox and Charles Lowe by Richard Sornborger, another employee of Rhone-Poulenc who was injured in the accident.

A jury awarded damages to Sornborger and the Torres plaintiffs, and allocated comparative fault for the accident as follows: Rhone-Poulenc 75%; Charles Lowe 10%; Sornborger 5%; Torres 5%; and Xomox 5%. After the verdict was rendered, Sornborger and the Torres plaintiffs settled with Charles Lowe, and Sornborger settled with Xomox. Judgment was entered for the Torres plaintiffs against Xomox, from which Xomox has appealed.

Xomox contends in the alternative that: (1) judgment must be entered in its favor because no reasonable trier of fact could conclude that its actions were a legal cause of the Torres plaintiffs' harm; (2) a new trial is required because evidence it sought to introduce was erroneously excluded; or (3) the judgment must be reduced because it was given insufficient credit for workers' compensation benefits and settlement proceeds the Torres plaintiffs received.

In the published portion of the opinion, we first conclude that the issue of causation was properly treated as a question of fact for the jury, and thus that Xomox was not entitled to judgment as a matter of law. In the unpublished portion of the opinion, we conclude that Xomox's evidentiary arguments lack merit and thus that Xomox is not entitled to a new trial. In the balance of the published opinion, we address two issues of apparent first impression under Proposition 51 (Civ.Code, §§ 1431.1-1431.5): the allocation of workers' compensation benefits, and the allocation of settlements reached after damages have been determined by the trier of fact ("post-verdict" settlements), between "economic" and "non-economic" damages as defined by Proposition 51.

We conclude that the proper method of allocating workers' compensation benefits under Proposition 51 is the same one that has been adopted for pre-verdict settlements in a line of cases beginning with Espinoza v. Machonga (1992) 9 Cal.App.4th 268, 11 Cal.Rptr.2d 498. Under this "Espinoza " approach, workers' compensation benefits are to be allocated between economic and non-economic damages in the same proportions as those damages are awarded by the trier of fact. Therefore, in this case, where 55.3 percent of the jury's award to the Torres plaintiffs was for economic damages, 55.3 percent of the workers' compensation benefits they received were correctly credited against the judgment for economic damages.

We conclude that the Espinoza approach is an inappropriate method of allocating post-verdict settlements under Proposition 51, and that a different method, what we will call a "ceiling" approach, should be used. Under this ceiling approach, the amount of a post-verdict settlement is to be allocated first to non-economic damages, but only up to the amount of the settling defendant's liability for such damages under the verdict. The balance of the settlement, if any, is then to be credited against the judgment for economic damages. Application of the ceiling approach in this case reduces the judgment for the Torres plaintiffs by a portion of the settlement proceeds.

I. THE ACCIDENT

The valve in question is a Xomox six inch 067 plug valve which was installed at the Martinez plant in 1969, when the plant was owned by Rhone-Poulenc's predecessor, Stauffer Chemical. The valve has a device, variously described as a gear, operator or actuator, which, when turned with a crank, opens or closes the flow of material through a pipeline. The valve has a "cover-mounted" design, where the gear is attached to the valve with a bracket which is mounted with a set of bolts onto the cover or "bonnet" of the valve. The valve also has a "single-bolt" or "single-nut" design, where a single set of bolts, with one nut each, holds both the bracket and the cover on the valve. With this single-bolt cover-mounted design, a worker who removes the bolts to take the bracket off the valve will also loosen the cover of the valve.

The Xomox valve was part of a pipeline that lay in a three-foot deep "pit" leading out of Tank 301. Tank 301 contained sulfuric acid sludge which the Rhone-Poulenc plant recycles for nearby oil refineries. The valve was located two or three feet from the tank, attached on one side to a pipe leading out of the tank, and on the other side to an expansion joint further downstream. These parts were linked to the valve through flanges built into the sides of the valve. Flanges are donut-shaped rings with holes around the circumference, which are attached to flanges on adjacent objects with bolts through the flange holes. Downstream from the expansion joint were a reducer and a tee spool.

The project on which the accident occurred involved repairing leaks in the pipeline out of Tank 301. Maintenance worker Michael Thomas and his partner Edward Gallman replaced the tee spool, further leaks were found, and it was decided to replace the expansion joint and reducer. At that point, a week or two into the project, Gallman went on vacation and Sornborger and Torres took over the job from Thomas and Gallman. Sornborger had worked in the maintenance department for more than ten years, and he and Torres were the most experienced maintenance workers in the plant.

Breaking into a pipeline to fix leaks, in this instance by replacing the expansion joint and reducer, was a procedure known in the plant as a "line entry." Line entries were a common occurrence, and Sornborger had performed at least 300 of them prior to the accident. Sornborger said that there were three phases to line entries in nonemergency situations: preparation; briefing; and performance.

In the preparation phase, the workers close the valves upstream from the site of the entry, and place tags with a danger symbol on these valves to insure that they will not be opened until the entry is completed. The site of the entry is roped off with tape, and production personnel are notified of the entry. In the briefing phase, the workers consult with the maintenance foreman, Al Sammons. Sammons goes to the site, inspects the preparation, and issues a line entry permit which he and the workers sign. The permit verifies that the preparation has been completed and lists the protective gear to be worn during the entry. The workers then put on safety clothes, including rubber pants, coat, gloves and boots, hard hat, face shield and a respirator, before performing the entry in which the seal of the line is broken.

A line entry to replace the expansion joint and reducer downstream from the Xomox valve was scheduled for June 22, 1992. Sornborger said that when he arrived at work that day, Sammons told him to " 'go up and help Mike [Thomas],' " who was working in the pit next to Tank 301. Sornborger interpreted this as an instruction to go to the site and begin the preparation phase of the entry. He and Torres first went to the maintenance shop, where they bolted the new expansion joint and reducer together, and then to the control room, where Sornborger noted that a gauge for Tank 301 showed it to be half full. Sornborger knew that Tank 301 contained sludge acid, and that the Xomox valve was the only seal in the line between the acid in the tank and the parts they would be replacing.

Sornborger said that part of the preparation phase was to assess any obstacles in the way of the entry, and that a common obstacle they encountered was corrosion in the bolts securing the flanges to be opened during the entry. Since corrosion would make it difficult to work with the bolts, and workers wanted to minimize their time in the hot and cumbersome protective clothing, they sometimes substituted new flange bolts--one at a time, to maintain the integrity of the line--for existing ones during the preparation phase. When Sornborger and Torres arrived at the pit beside Tank 301, they found that flange bolts in the parts to be replaced were in "very bad shape." They also found that the bracket on top of the Xomox valve blocked their access to two of the flange bolts that held the valve to the expansion joint.

The bracket on the valve was not the original Xomox bracket that had come with the valve when it was first installed in the plant. The original bracket was in an "L" shape, with the bottom of the "L" resting on the cover of the valve, and the side of the "L" standing on the upstream side of the valve, where the valve was attached to the pipe coming out of the tank. Thus, while the original "L" shaped bracket might have blocked access to the flange bolts on the upstream side of the valve, it would not have impeded access to the downstream flange bolts Sornborger and Torres wanted to reach on the day of the accident. The replacement bracket they encountered did not have the same "L" shape as the original one. It was shaped like...