Wilgenbusch v. Metalclad Insulation LLC
| Decision Date | 10 January 2023 |
| Docket Number | A161916 |
| Parties | RONALD WILGENBUSCH et al., Plaintiffs and Respondents, v. METALCLAD INSULATION LLC., Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG19029791
Metalclad Insulation LLC appeals from a judgment awarding damages to Ronald and Judith Wilgenbusch for personal injury resulting from Ronald's exposure to asbestos during his military career.[1] The judgment holds Metalclad negligent and strictly liable for Ronald's injury, and includes an award of noneconomic damages totaling $542,500, which represents the percentage of responsibility for Ronald's injury that the jury attributed to Metalclad (7 percent) plus the percentage of responsibility assigned to two other entities that manufactured Metalclad's asbestos products (12 percent each).
On appeal, Metalclad contends the judgment must be vacated and remanded with directions to reduce the noneconomic damages award to Metalclad's proportionate share of fault (i.e 7 percent) pursuant to Proposition 51. (Civ. Code, § 1431.1-1431.5; statutory references are to this code, unless another statute is cited.) The trial court found otherwise applying the rule that Metalclad is strictly liable for noneconomic damages caused by manufacturers of the defective products in Metalclad's chain of distribution. (Arena v. Owens-Corning Fiberglas Corp. (1998) 63 Cal.App.4th 1178, 1198 (Arena).) We affirm.
In 1986, California voters passed Proposition 51 in order to ameliorate inequities that can arise by applying the common law joint and several liability doctrine to hold a defendant liable for damages attributable to a more culpable joint tortfeasor. (See Schreiber v. Lee (2020) 47 Cal.App.5th 745, 751-757 (Schreiber).) Section 1431.2, enacted by Proposition 51, provides: (§ 1431.2, subd. (a).)
"Thus in an action subject to Proposition 51, each tortfeasor remains jointly and severally liable to the plaintiff for economic damages, but is liable to the plaintiff for only its proportionate share of noneconomic damages." (Garcia v. Duro Dyne Corp. (2007) 156 Cal.App.4th 92, 102.)" 'With respect to these noneconomic damages, the plaintiff alone now assumes the risk that a proportionate contribution cannot be obtained from each person responsible for the injury.'" (Henry v. Superior Court (2008) 160 Cal.App.4th 440, 450.) "However, even in cases seeking recovery for personal injury, property damage, or wrongful death, there are some contexts in which Proposition 51 does not limit a defendant's liability for noneconomic damages" because the defendant's liability is not based on fault but some other policy or legal principle. (Schreiber, supra, 47 Cal.App.5th at p. 753.)
In strict liability actions, for example, courts do not always apply Proposition 51. Wholly aside from Proposition 51, our Supreme Court has held that comparative fault principles apply when apportioning liability between a strictly liable party and a negligent party. (See e.g., Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 736-737; Safeway Stores, Inc. v. Nest-Kart (1978) 21 Cal.3d 322, 330.) But when a plaintiff's injury is attributable to a single defective product, courts have declined to apply Proposition 51 to apportion liability based on fault among tortfeasors in the product's chain of distribution. (Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618 (Wimberly); Bostick v. Flex Equipment Co., Inc. (2007) 147 Cal.App.4th 80, 88-89.)
Metalclad intimates that Wimberly and Bostick create a conflict in the law by holding that Proposition 51 does not apply in strict liability cases, notwithstanding our Supreme Court's directive that comparative fault principles do apply in strict liability cases. However, as Division One of this court has explained, these two lines of authority are not inconsistent. (Arena, supra, 63.App.4th at p. 1193.) Arena, a strict liability case involving asbestos-related personal injuries, holds that Proposition 51 requires "apportionment (when supported by the evidence), of noneconomic damages between separate products which have caused a plaintiff's injuries," but "defendants who are within the same chain of distribution of a single product remain jointly and severally liable to the plaintiff for the harm caused by that product." (Ibid.)
In the present appeal, both parties rely on Arena, but they disagree about how it should be applied. We agree that Arena is the controlling precedent and are persuaded by its reasoning, which effectuates a "compromise between the inherently contradictory policies of strict products liability, which protects the plaintiff at the expense of a deep-pockets defendant, and Proposition 51, which protects the defendant from paying more than its share of noneconomic damages." (Arena, supra, 63 Cal.App.4th at p. 1193.; see id. at pp. 1195-1197 [harmonizing Wimberly, supra, 56 Cal.App.4th 618]; see also Wilson v. John Crane, Inc. (2000) 81 Cal.App.4th 847, 852-853 (Wilson) [following Arena].) As we will explain, applying Arena leads us to affirm the judgment.
In August 2019, the Wilgenbuschs filed this action for personal injury and loss of consortium, alleging that Ronald developed mesothelioma caused by exposure to asbestos. Ronald's alleged exposure occurred during his service in the U.S. Navy from 1956 through 1978, while working on ships that underwent repairs at shipyards in San Diego, Long Beach, Seattle, and Pearl Harbor. Metalclad and multiple other entities were named as" 'Product Defendants,'" based on allegations that they were engaged in the business of placing asbestos-containing products into the stream of commerce during the period of Ronald's exposure. The Wilgenbuschs' claims included causes of action for negligence and strict products liability.
In July 2020, this case was called for trial. By the time the jury was empaneled, Metalclad was the only remaining defendant. The Wilgenbuschs pursued four theories of liability: (1) strict liability for a product defect; (2) strict liability for failure to warn; (3) negligence based on a failure to warn; and (4) negligence for failure to recall or retrofit a defective product.
At trial, Ronald testified that while serving on ships during his Naval career, he observed repair work that involved the removal and installation of insulation. Ronald did not know the brand name or manufacturer of these insulation products, but he recalled seeing the name "Metalclad" stenciled in red on boxes that contained new insulation.
Other trial evidence showed that Metalclad sold asbestos insulation from at least 1946 until the end of 1973. Prior to 1967, Metalclad sold "Kaylo" brand asbestos insulation manufactured by Owens Corning Fiberglas (Owens Corning). After 1967, Metalclad switched to asbestos insulation manufactured by Fiberboard under the brand name Pabco (Pabco).
On September 16, 2020, after the close of evidence, the court held a hearing to discuss jury instructions. The Wilgenbuschs requested that the court instruct the jury Metalclad could not allocate fault for harm caused by asbestos-containing products it sold to the manufacturers of those products. Metalclad objected, arguing that this "single product rule," which prevents shifting of fault within the chain of distribution, applies only to strict liability; it does not apply to negligence, so Metalclad had a right under Proposition 51 to "shift fault based on negligence to others in the chain of distribution of the products that it distributed." Accordingly, Metalclad proposed a special verdict form that would require the jury to allocate responsibility for Ronald's injury among several entities, including Owens Corning and Pabco.
After extensive argument, the court ruled that because the Wilgenbuschs were alleging negligence as well as strict liability, Metalclad had a right to claim comparative negligence. Therefore, Owens Corning and Pabco would be included on a list of entities among which the jury would be asked to allocate responsibility for Ronald's injury, and the court would give a revised version of the special instruction proposed by the Wilgenbuschs, which would state that Metalclad cannot allocate strict liability fault to the manufacturers of products its sold.
On September 17, the trial court instructed the jury.[2] After instructing regarding general principles of law, the court turned to "the specific claims in this case and the standards that apply to those claims." The court defined the basic standard of care under negligence law and instructed the jury regarding the rule that a defendant cannot avoid responsibility for its own negligence just because some other factor was a substantial cause of harm. Then it gave separate instructions addressing each of the plaintiffs' theories of liability.
After the jury was instructed regarding the elements of plaintiffs' two strict liability theories, the court addressed Metalclad's defenses. Metalclad claimed first that Ronald's own negligence contributed to his harm. The court instructed that if Metalclad proved this defense Ronald's damages would be reduced by the jury's ...
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