Villaman v. Schee

• Decision Date: 10 January 1994
• Docket Number: Nos. 92-15490,92-15562,s. 92-15490
• Citation: 15 F.3d 1095,1994 WL 6661
• Parties: NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Demetrio Bejarano VILLAMAN, Surviving parent of the deceased Santana Atienzo Bejarano; Teresa Atienzo Perez, Surviving parent of the deceased, Santana Atienzo Bejarano, Plaintiffs-Appellees, v. Presley SCHEE, Defendant-Appellant. Demetrio Bejarano VILLAMAN, Surviving parent of the deceased Santana Atienzo Bejarano; Teresa Atienzo Perez, Surviving parent of the deceased, Santana Atienzo Bejarano, Plaintiffs-Appellees, v. Presley SCHEE, Defendant, and Sad Inc., a Louisiana corporation dba Sad Trucking Inc.; Shelton A. Daniel, Jr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1095

15 F.3d 1095

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Demetrio Bejarano VILLAMAN, Surviving parent of the deceased

Santana Atienzo Bejarano; Teresa Atienzo Perez, Surviving parent of the deceased, Santana Atienzo Bejarano, Plaintiffs-Appellees, v. Presley SCHEE, Defendant-Appellant.

Demetrio Bejarano VILLAMAN, Surviving parent of the deceased

Santana Atienzo Bejarano; Teresa Atienzo Perez, Surviving parent of the deceased, Santana Atienzo Bejarano, Plaintiffs-Appellees, v. Presley SCHEE, Defendant, and Sad Inc., a Louisiana corporation dba Sad Trucking Inc.;

Shelton A. Daniel, Jr., Defendants-Appellants.

Nos. 92-15490, 92-15562.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 12, 1993.

Decided Jan. 10, 1994.

Before: WALLACE, Chief Judge; D.W. NELSON and O'SCANNLAIN, Circuit Judges.

Memorandum ^*

In late August 1987, Presley Schee, a truck driver for SAD, Inc., was driving a tractor/trailer loaded with lumber and weighing between 70,000 and 80,000 pounds on an Arizona highway. He fell asleep at the wheel and drove into a pickup truck that had parked alongside the road after developing engine troubles. Five people were killed, and others were injured.

I

At the time the accident occurred, Schee had been driving well over the maximum number of hours allowed by law. Schee had been encouraged to do so by his boss, Shelton Daniel, the owner of SAD.

Among those killed at the accident site was Santana Atienzo Bejarano, a Mexican citizen. Bejarano was a thirty-three year old agricultural worker who permanently resided with his wife, children, and parents on a farm in Sinaloa, Mexico. Bejarano provided substantial support to his parents, Villaman and Perez.

Bejarano's widow, Flora Nolasco de Bejarano, filed a wrongful death action in Arizona state court against Schee and SAD on her own behalf and on behalf of her young children. A settlement was reached in July 1989, and final judgment was entered in November 1989. In August 1989, Bejarano's parents, filed this suit, a separate wrongful death action against Schee, SAD, and Daniel, in Arizona state court. The complaint was not served until December 1989, after judgment was entered in Flora Bejarano's suit. This action was removed to federal court. Subsequently, Villaman, Bejarano's father, died, and Perez became the sole plaintiff.

Summary judgment was granted in favor of Perez on the issue of SAD's and Schee's liability. A trial was held to determine Daniel's liability and damages against all defendants. The jury found that Daniel had been negligent and awarded Perez $350,000 in compensatory damages, assessing Schee's fault at 20% and Daniel's at 80%. The jury also awarded Perez $50,000 in punitive damages against Schee and $500,000 each against Daniel and SAD. Schee, Daniel, and SAD appeal.

II

A

In Arizona, a cause of action for wrongful death is purely statutory in origin. Bowslaugh v. Bowslaugh, 617 P.2d 25, 27 (Ariz.1979). Thus, determining who may bring a wrongful death action and under what circumstances the action may be brought requires interpretation of Arizona's wrongful death statute, section 12-612 of the Arizona Revised Statutes.

The appellants argue that Perez is not a proper plaintiff under section 12-612. This argument is without merit. The plain language of section 12-612(B) gives parents the right to bring suit. "There is no question but that [Perez] is a proper party plaintiff under [section] 12-612(B)." Brumbaugh v. Pet, Inc., 628 P.2d 49, 51 (Ariz.App.1981).

The appellants next argue that Perez's action is barred by the "one action rule." Consistent with the law in many other states, section 12-612(A) requires all of the heirs of a decedent to join their claims for wrongful death against a single defendant in one action. Nunez v. Nunez, 545 P.2d 69, 73 (Ariz.App.1976). Such actions are joint, single and indivisible. Reed v. Frey, 458 P.2d 386, 390 (Ariz.Ct.App.1969) (citing Cross v. Pacific Gas & Elec. Co., 388 P.2d 353 (Cal.1964)).

In stating that an action for wrongful death is joint, it is meant that all heirs should join or be joined in the action and that a single verdict should be rendered for all recoverable damages; when it is said that the action is single, it is meant that only one action for wrongful death may be brought whether, in fact, it is instituted by all or only one of the heirs, or by the personal representative of the decedent as statutory trustee for the heirs; and when it is said that the action is indivisible, it is meant that there cannot be a series of suits by heirs against the tortfeasor for their individual damages.

Cross, 388 P.2d at 355.

Although no Arizona court has had occasion to decide whether a beneficiary who was omitted from the original suit may bring a subsequent action against the defendant after final judgment has been entered in the original suit, courts in states with analogous statutes have concluded that subsequent actions are generally barred after final judgment has been entered in the original suit. See, e.g., Canavin v. Pacific Southwest Airlines, 148 Cal.App.3d 512, 529-30 (1983); Mayerhoff v. Kaiser Foundation Health Plan, Inc., 71 Cal.App.3d 803, 805 (1977). Arizona courts have often followed California law in interpreting Arizona's wrongful death statute, see, e.g., Nunez, 545 P.2d at 72-73; there is no reason to believe that the Arizona Supreme Court would depart from California law here.

In certain circumstances, courts have recognized exceptions, allowing an omitted heir to bring a subsequent action. We are unpersuaded, however, that the Arizona Supreme Court would recognize an exception in the circumstances of this case. This is not a case in which the first action was brought by a party who was not a rightful heir under the statute, cf. In re Milliman, 415 P.2d 877, 887 (Ariz.1966); Davis v. Robinson, 123 P.2d 894, 895 (Cal.App.1942); nor is it a case in which the defendants knew that other beneficiaries existed but made no effort to have them joined in the suit, cf., e.g., Hogan v. Hermann, 623 P.2d 900, 904 (Idaho 1980); Valdez v. Smith, 212 Cal.Rptr. 638, 643 (Cal.App.1985); Arizmendi (Juarez) v. Systems Leasing Corp., 93 Cal.Rptr. 411, 416 (Cal.App.1971); see also Estate of Kuebler v. Superior Court, 146 Cal.Rptr. 481, 484 (Cal.App.1978). Here, Schee and SAD did not have actual notice of the existence of Perez until after Flora Bejarano's claim was settled and judgment was entered in her suit. By contrast, it can be inferred that Perez had notice of the pending case before the settlement became final. Perez was, and is, represented by the same attorney representing Bejarano and the other parties in the original action. A settlement was reached in the original case in July 1989. On August 29, 1989, Perez filed the complaint in this action, but the complaint was not served until after the court entered judgment dismissing Bejarano's suit with prejudice in light of the settlement. Under these circumstances, we cannot conclude that Schee and SAD implicitly waived the right to invoke the one action rule by dealing with Bejarano in her individual capacity. Perez could have intervened in the earlier suit, or, at the very least, could have given Schee and SAD notice of her claim before judgment became final.

Perez argues that to interpret the one action rule as barring her wrongful death claim would violate the equal protection clause of the Arizona Constitution by impermissibly interfering with her fundamental right to bring a wrongful death action under the Arizona Constitution. We are unpersuaded. Perez attempts to analogize to Anson v. American Motors Corp., 747 P.2d 581 (Ariz.App.1987). Here, unlike in Anson, any perceived burden on a wrongful death claimant actually arises out of the differences between a claimant in a wrongful death action and one in other types of personal injury suits. Perez has made no attempt to show that claimants in other types of tort suits are similarly situated.

B

In contrast to the rule requiring all claimants to be joined in a single action against a single defendant, states that have considered the question have concluded that "there is ... no requirement that plaintiffs must join ... all potential defendants in one action." Helling v. Lew, 104 Cal.Rptr. 789, 792 (Cal.App.1972) (citing cases). The California Court of Appeal reasoned that

[the] object [of the wrongful death statute] was to protect a defendant from being vexed by several suits instituted by or in behalf of different equitable plaintiffs for the same injury, when all the parties could with perfect convenience be joined in one proceeding. It never contemplated depriving a plaintiff of the right to sue separately different joint tort-feasors....

Id. (quotation omitted). There is no reason to believe that the Arizona Supreme Court would follow a different analysis.

Here, Daniel was not a party to the original suit. Perez had separate causes of action against Schee and Daniel; the claim against Daniel was based on his independent negligence. Further, there is no concern here of overcompensating the injured parties for the wrongful death. The court in Helling emphasized that "there can be but one satisfaction, no matter how many judgments may be recovered." 104 Cal.Rptr. at 792. In the previous settlement, Bejarano's widow and children received $180,000. In this case, we conclude that the jury award of $280,000 in compensatory damages against Schee is not an exorbitant estimation of the injury Perez has suffered. See infra. If Perez alone has suffered $280,000 in losses, then logically the $180,000 settlement was not a complete satisfaction of both Mrs. Bejarano's and Perez's injuries. Thus, Perez's action against Daniel was not...