Vander Lind v. Superior Court

CourtCalifornia Court of Appeals
Writing for the CourtTROTTER
Citation146 Cal.App.3d 358,194 Cal.Rptr. 209
PartiesMerwyn R. VANDER LIND and Marty S. Vander Lind, Petitioners, v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent. The ATCHISON, TOPEKA AND SANTA FE RAILWAY SYSTEM, National Railroad Passenger Corporation, Real Parties in Interest. Civ. 30269.
Decision Date22 August 1983

Page 209

194 Cal.Rptr. 209
146 Cal.App.3d 358
Merwyn R. VANDER LIND and Marty S. Vander Lind, Petitioners,
v.
The SUPERIOR COURT OF ORANGE COUNTY, Respondent.
The ATCHISON, TOPEKA AND SANTA FE RAILWAY SYSTEM, National Railroad Passenger Corporation, Real Parties in Interest.
Civ. 30269.
Court of Appeal, Fourth District, Division 3, California.
Aug. 22, 1983.
Hearing Denied Dec. 1, 1983.

Page 210

[146 Cal.App.3d 360] Thomas I. McKnew, Jr. and Howard P. Brody, Los Angeles, for real parties in interest.

Lillick McHose & Charles, Daniel C. Minteer and Lawrence W. Kaye, San Diego, for petitioners.

No appearance on behalf of respondent Court.

OPINION

TROTTER, Presiding Justice.

In this original proceeding petitioners ask us to conclude Public Utilities Code section 2106 authorizes an award of exemplary damages to parents whose minor daughter was struck and killed by real parties' speeding train. We decline.

FACTS

Fifteen year old Marcia Vander Lind was crossing the railroad tracks in the North Beach area of the City of San Clemente on December 11, 1980, when she was struck by defendants' Amtrak train. Death was instantaneous.

Petitioners filed their original action on July 13, 1981, seeking traditional wrongful death damages. When defendants' discovery responses admitted the train was speeding in excess of the 40 mile per hour limit established by the Public Utilities Commission plaintiffs amended their complaint to add two new causes of action. The first alleges a violation of the Public Utilities Commission order and seeks funeral expenses and damages for the loss of comfort, society, support and services decedent would have provided had she lived. The second incorporates the first, alleges the violation of the order was willful and seeks exemplary damages. Both new causes of action are grounded exclusively on Public Utilities Code section 2106.

Defendants motion to strike the second cause of action was granted January 10, 1983, on the ground exemplary damages are not recoverable in [146 Cal.App.3d 361] California wrongful death actions. Because the language of Public Utilities Code section 2106 is similar to the corresponding Illinois statute, because neither state's wrongful death statute authorizes exemplary damages, and because Illinois has countenanced the recovery of exemplary damages under their public utilities statute on similar facts we issued the alternative writ. (See In re Butler's Estate (1947) 29 Cal.2d 644, 651, 177 P.2d 16; 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 672, pp. 4585-4586.)

DISCUSSION

Public Utilities Code section 2106 provides as follows:

"Any public utility which does, causes to be done, or permits any act, matter, or thing prohibited or declared unlawful, or which omits to do any act, matter, or thing required to be done, either by the Constitution, any law of this State, or any order or decision of the commission, shall be liable to the persons or corporations affected thereby for all loss, damages,

Page 211

or injury caused thereby or resulting therefrom. If the court finds that the act or omission was wilful, it may, in addition to the actual damages, award exemplary damages. An action to recover for such loss, damage, or injury may be brought in any court of competent jurisdiction by any corporation or person.

"No recovery as provided in this section shall in any manner affect a recovery by the State of the penalties provided in this part or the exercise by the commission of its power to punish for contempt."

Petitioners' argument proceeds in this fashion: (1) California decisions have recognized Public Utilities Code section 2106 creates a separate and distinct cause of action in anyone who has suffered "loss, damages, or injury" as a consequence of a utility's wrongful conduct (California Adjustment Co. v. Atchison, T. & S.F. Ry. Co. (1918) 179 Cal. 140, 145, 175 P. 682; Masonite Corporation v. Pacific Gas & Electric Co. (1976) 65 Cal.App.3d 1, 7-8, 135 Cal.Rptr. 170); (2) Petitioners' legal obligation to pay funeral expenses constitutes "loss, damages, or injury" within the meaning of the statute; (3) Public Utilities Code section 2106 does not distinguish between violations which result in personal injury and those which result in death (Langazo v. San Joaquin Light and Power Corporation (1939) 32 Cal.App.2d 678, 90 P.2d 825); (4) California has traditionally allowed aggrieved parties to "supplement" wrongful death (Code Civ.Proc., § 377) causes of action with other statutory (Prob.Code § 573) and common law (Follansbee v. Benzenberg (1954) 122 Cal.App.2d 466, 265 P.2d 183) causes of action; (5) Exemplary damages are commonly awarded where willful misconduct results in death (Prob.Code § 573); (6) An award of exemplary damages on the second cause of action would not [146 Cal.App.3d 362] contravene Code of Civil Procedure section 377 since that cause of action does not seek section 377 damages (i.e., pecuniary compensation for the child's loss); instead, its twofold function is to compensate petitioners for "loss, damages, or injury" (funeral expenses) they personally incurred and paid as a consequence of real parties' willful and flagrant misconduct and to punish real parties for causing petitioners to suffer that economic loss; (7) This court should follow Illinois' lead and conclude Public Utilities Code section 2106 authorizes an exemplary damage award where a utility's willful malfeasance, resulting in a child's death, causes economic injury to her parents. Although well conceived and facially compelling, petitioners' arguments fail.

The Illinois Supreme Court in 1978 held section 73 of their Public Utilities Act (Ill.Rev.Stats.1969, ch. 111 2/3, para. 77) authorized an award of compensatory and exemplary damages to a widow whose husband was instantly killed when defendant's train struck the automobile in which he was a passenger. (Churchill v. Norfolk & W. Ry. Co. (1978) 73 Ill.2d 127, 23 Ill.Dec. 58, 383 N.E.2d 929.) 1 The widow's $45,000 wrongful

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death recovery was augmented[146 Cal.App.3d 363] by Utilities Act awards of $1600 (funeral expenses) and $600,000 (exemplary damages).

[146 Cal.App.3d 364] Prior to 1960 Illinois allowed only a wrongful death action to compensate a survivor for losses arising from the tortious

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death of a decedent, even where the decedent survived for a period of time before succumbing to his injuries. Only where death was the result of other causes, or injuries other than those tortiously inflicted, would a "survival" action lie. (See Holton v. Daly (1882) 106 Ill. 131; Murphy v. Martin Oil Co (1974) 56 Ill.2d 423, 308 N.E.2d 583 and authorities cited therein.) Further, the only compensible loss items the Illinois death statute has ever recognized are personal services (Eggimann v. Wise (1964) 56 Ill.App.2d 385, 206 N.E.2d 472), support/earnings (Willmann v. Jargon (1962) 37 Ill.App.2d 380, 185 N.E.2d 702) and instruction and moral and intellectual training (Slone v. Morton (1963) 39 Ill.App.2d 495, 188 N.E.2d 493). It was not until 1974, when the Murphy court overruled Holton, that a decedent's personal injury damages could be recovered in an independent action against the tortfeasor whose conduct caused death. Against this backdrop the 1960 Saunders' decision (see fn. 1, supra) is as understandable as it was necessary in the Illinois wrongful death scheme; and once Saunders had established "... the general proposition that actions independent of the Wrongful Death Act may be brought against a defendant whose conduct resulted in another's death ...." (Churchill, supra, 23 Ill.Dec. at 63, 383 N.E.2d at 934), the Churchill court's recognition of the Public Utilities Act as an additional independent basis for awarding medical and funeral expenses (and exemplary damages) might even have been "expected."

In contrast, Code of Civil Procedure section 377 has long allowed the recovery of funeral expenses in California wrongful death actions. Similarly, medical expenses incurred for treatment prior to death are compensable in survival actions. (Prob.Code, § 573.) Consequently, there is no need to recognize the existence of a statutory action independent of the wrongful death act to secure for petitioners a compensatory recovery that would otherwise remain beyond their reach.

Second, and of greater significance, is the historical reluctance of this state's Legislature and its courts to grant any relief in wrongful death cases not specifically authorized by Code of Civil Procedure section 377. Our courts have consistently held Code of Civil Procedure section 377 and the remedies contained therein completely occupy the field of wrongful death to the exclusion of any other action or remedy. (See Kramer v. Market Street Railroad Company (1864) 25 Cal. 434, 435-436; Bond v. United Railroads (1911) 159 Cal. 270, 113 P. 366; Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334; Justus v. Atchison (1977) 19 Cal.3d 564, 573, fn. 9, 575, 139 Cal.Rptr. 97, 565 P.2d 122. See also Norman v. Murphy (1954) 124 Cal.App.2d 95, 268 P.2d 178; Doak v. Superior Court (1968) [146 Cal.App.3d 365] 257 Cal.App.2d 825, 835-836, 65 Cal.Rptr. 193; Alvarez v. Wiley (1977) 71 Cal.App.3d 599, 604, 139 Cal.Rptr. 550; Knowlton v. Pacific Southwest Airlines (1981) 113 Cal.App.3d 152, 154, 169 Cal.Rptr. 668.) Equal protection challenges to Code of Civil Procedure section 377 classifications have been repeatedly rejected. (See Justus v. Atchison, supra, 19 Cal.3d at pp. 580-581, 139 Cal.Rptr. 97, 565 P.2d 122 (no...

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2 practice notes
  • Matuz v. Gerardin Corp.
    • United States
    • California Court of Appeals
    • July 23, 1986
    ...the field of wrongful death to the exclusion of any other action or remedy. [Citations.]" (Vander Lind v. Superior Court (1983) 146 Cal.App.3d 358, 364, 194 Cal.Rptr. 209.) Thus, for any loss sustained as a result of the death of a spouse, the surviving spouse must recover, if at all, ......
  • Andersen v. Pacific Bell, Nos. H002925
    • United States
    • California Court of Appeals
    • August 30, 1988
    ...lack standing to sue because they were not the direct victims of its marketing practices. (See Vander Lind v. Superior Court (1983) 146 Cal.App.3d 358, 367, 194 Cal.Rptr. C. Pacific Bell's Appeal From the Trial Court's Order Denying Costs After the trial court granted the motion for summary......
2 cases
  • Matuz v. Gerardin Corp.
    • United States
    • California Court of Appeals
    • July 23, 1986
    ...occupy the field of wrongful death to the exclusion of any other action or remedy. [Citations.]" (Vander Lind v. Superior Court (1983) 146 Cal.App.3d 358, 364, 194 Cal.Rptr. 209.) Thus, for any loss sustained as a result of the death of a spouse, the surviving spouse must recover, if at all......
  • Andersen v. Pacific Bell, Nos. H002925
    • United States
    • California Court of Appeals
    • August 30, 1988
    ...lack standing to sue because they were not the direct victims of its marketing practices. (See Vander Lind v. Superior Court (1983) 146 Cal.App.3d 358, 367, 194 Cal.Rptr. C. Pacific Bell's Appeal From the Trial Court's Order Denying Costs After the trial court granted the motion for summary......

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