Yslava v. Hughes Aircraft Co.

• Decision Date: 30 April 1997
• Docket Number: No. CV-96-0345-CQ,CV-96-0345-CQ
• Citation: 188 Ariz. 380,936 P.2d 1274
• Parties: , 45 ERC 1315, 242 Ariz. Adv. Rep. 46 Mary H. YSLAVA, as Special Administrator of the Estate of Benita G. Yslava, deceased, Plaintiff, v. HUGHES AIRCRAFT COMPANY, a Delaware corporation, Defendant. HUGHES AIRCRAFT COMPANY, Third-Party Plaintiff, v. CITY OF TUCSON, Tucson Airport Authority, McDonnell Douglas Corporation, and General Dynamics Corporation, Third-Party Defendants. Jo Ann LANIER, a single woman, and Diego Edwardo Lozano, a single man, on behalf of themselves and all others similarly situated, Plaintiffs, v. HUGHES AIRCRAFT COMPANY, Defendant. HUGHES AIRCRAFT COMPANY, Third-Party Plaintiff, v. CITY OF TUCSON, et al., Third-Party Defendants.
• Court: Arizona Supreme Court

Page 1274

936 P.2d 1274

188 Ariz. 380, 45 ERC 1315, 242 Ariz. Adv. Rep. 46

Mary H. YSLAVA, as Special Administrator of the Estate of Benita G. Yslava, deceased, Plaintiff, v. HUGHES AIRCRAFT COMPANY, a Delaware corporation, Defendant.

HUGHES AIRCRAFT COMPANY, Third-Party Plaintiff, v. CITY OF TUCSON, Tucson Airport Authority, McDonnell Douglas Corporation, and General Dynamics Corporation, Third-Party Defendants.

Jo Ann LANIER, a single woman, and Diego Edwardo Lozano, a single man, on behalf of themselves and all others similarly situated, Plaintiffs, v. HUGHES AIRCRAFT COMPANY, Defendant.

HUGHES AIRCRAFT COMPANY, Third-Party Plaintiff, v. CITY OF TUCSON, et al., Third-Party Defendants.

No. CV-96-0345-CQ.

Supreme Court of Arizona In Banc.

April 30, 1997.

[188 Ariz. 381] Law Office of Sheldon Lazarow by Sheldon Lazarow, Tucson, Robert A. Bonn, Attorney-At-Law by Robert A. Bonn, Tucson, and Cohen Milstein Hausfeld & Toll, P.L.L.C. by Herbert E. Milstein, Anthony Z. Roisman, Richard S. Lewis, Washington, DC, for Plaintiffs.

Kirkland & Ellis by Jeffrey S. Davidson, Andrew B. Clubok, Washington, DC, Butler & Stein by A. Bates Butler, III, Tucson, Featherstone & Shea by Bruce A. Featherstone, John DeSisto, Denver, CO, Petrie, Bauer & Vriesman, LLP by Todd L. Vriesman, Denver, CO, for Defendant Hughes Aircraft Company.

Teilborg, Sanders & Parks, P.C. by James A. Teilborg, Mark G. Worischeck, Keith R. Bevan, James D. Smith, Phoenix, for City of Tucson.

Adler, Murphy & McQuillen by James F. Murphy, John H. Mullan, Chicago, IL, Doyle & Appel, P.C. by Walter Grochowski, Phoenix, and Anderson, Kill & Olick by David A. Paige, Tucson, for Tucson Airport Authority.

DeConcini, McDonald, Brammer, Yetwin & Lacy by David C. Anson, Tucson, and McKenna & Cuneo, L.L.P. by Herbert Fenster, Tami Lyn Azorsky, Washington, DC, for General Dynamics Corporation.

Jones, Skelton & Hochuli by Kevin D. Neal, James J. Osborne, Phoenix, and McDonnell Douglas Corporation by Dan Summers, Assistant General Counsel, St. Louis, MO, for McDonnell Douglas Corporation.

O'Connor Cavanagh Anderson Killingsworth & Beshears P.A. by Christopher Robbins, Phoenix, for Amicus Curiae Arizona Association of Defense Counsel.

City of Phoenix by Roderick G. McDougall, Phoenix City Attorney, Craig J. Reece, Assistant City Attorney, Phoenix, for Amicus Curiae City of Phoenix.

Gallagher & Kennedy by David P. Kimball, III, Phoenix, for Amicus Curiae Arizona Chamber of Commerce.

Osborn Maledon P.A. by David G. Campbell, Diane M. Johnsen, Clark M. Porter, Joan S. Burke, Phoenix, and Dalton Gotto Samson & Kilgard by Shane R. Swindle, Phoenix, for Amicus Curiae Components Incorporated

[188 Ariz. 382] /Corning Incorporated/Alliedsignal

Treon Strick Lucia & Aguirre by Richard T. Treon, Anthony R. Lucia, Sharon G. Slifko, Cindy H. Strickland, Phoenix, Goldberg Persky Jennings & White, P.C. by Robert J. Jennings, Jr., Craig Vandergrift, David B. Rodes, Pittsburgh, PA, Thomas W. Henderson by Thomas W. Henderson, Pittsburgh, PA, Robbins & Green P.A. by Philip A. Robbins, Sarah N. McGiffert, Alfred W. Ricciardi, Phoenix, and Law Offices of David Dannacher by David P. Dannacher, Phoenix, for Amicus Curiae plaintiffs in Baker v. Motorola and Lofgren v. Motorola.

David F. Zoll, Vice President and General Counsel, Chemical Manufacturers Association, Arlington, VA, for Amicus Curiae Chemical Manufacturers Association.

Allen & Price, P.L.C. by Robert E.B. Allen, Charles S. Price, Phoenix, for Amicus Curiae plaintiffs in McIntire v. Motorola.

OPINION

JONES, Vice Chief Justice.

We are asked by the United States District Court for the District of Arizona to decide a question of Arizona law under certification procedures pursuant to Rule 27, Arizona Rules of the Supreme Court. This court has jurisdiction under Arizona Constitution article VI, section 5(6), Arizona Revised Statutes section 12-1861, and Rule 27.

The certified question was stated as follows:

In 1987, the Arizona Legislature enacted A.R.S. § 12-2506, which abolished joint and several liability in actions for personal injury, property damage or wrongful death. The statute contains two exceptions in Section D of A.R.S. § 12-2506. The exception at issue here is A.R.S. § 12-2506(D)(2), which states: "Nothing in this section prohibits the imposition of joint and several liability in a cause of action relating to hazardous wastes or substances or solid waste disposal sites." A.R.S. § 12-2506(D)(2).

Does this exception preserve joint and several liability in tort actions for personal injury, wrongful death and requests for medical monitoring arising from the contamination of drinking water with hazardous wastes or substances? Or, does the exception merely allow the Legislature to impose joint and several liability through other statutes relating solely to environmental cleanup costs?

After consideration, we respond that A.R.S. § 12-2506(D)(2) leaves undisturbed the common law remedy of joint and several liability in tort actions for injury or wrongful death and requests for medical monitoring that arise from the contamination of drinking water by hazardous wastes or substances or solid waste disposal sites.

FACTS AND PROCEDURAL HISTORY

In 1981, groundwater wells located near Tucson International Airport were closed when testing revealed impermissibly high levels of benzene, trichloroethylene (TCE), and other hazardous substances. The United States Environmental Protection Agency found that a government-owned facility operated by Hughes Aircraft Company (Hughes) was a primary source of the contamination. In 1991, Hughes settled claims of approximately 2400 Tucson residents for injuries allegedly caused by the groundwater contamination. After the settlement, the two lawsuits involved in this certified question were filed. Yslava v. Hughes Aircraft Co., CIV-91-525-TUC-ROS, consolidates approximately 500 personal injury and wrongful death claims, while Lanier v. Hughes Aircraft Co., CIV-92-564-TUC-ROS, is a class action comprised of Tucson residents requesting medical monitoring.

Hughes has filed claims for third-party contribution against the City of Tucson, the Tucson Airport Authority, General Dynamics Corporation, and McDonnell Douglas Corporation (defendants). ¹ The City of Tucson owns the property on which the Tucson International Airport is located. The Tucson Airport Authority has leased the property from the City since 1948, while General Dynamics and McDonnell Douglas or their predecessors conducted operations on the property for limited periods during the 1940s and 1950s. Defendants have urged the federal district court to find that joint and several liability among multiple defendants was abolished in Arizona by the enactment of A.R.S. § 12-2506(A) and that the exception in A.R.S. § 12-2506(D)(2) does not preserve such liability in the instant case. Accordingly, the district court certified the question.

DISCUSSION

At common law, prior to the adoption of A.R.S. § 12-2506, liability was said to be joint and several when the claimant could bring suit to enforce his entire claim against one or more joint tortfeasors separately, or against all of them together. Thus, two or more defendants found responsible for tortious conduct causing indivisible injury were subject to both joint and several liability. Holtz v. Holder, 101 Ariz. 247, 251, 418 P.2d 584, 588 (1966).

In 1984, the Arizona Legislature adopted a version of the Uniform Contribution Among Tortfeasors Act (UCATA). A.R.S. §§ 12-2501 to -2509. One purpose of UCATA is to ensure that a joint tortfeasor paying more than its proportional share of the "common liability for the same injury" will have a right of contribution from other joint tortfeasors. Cella Barr Assocs., Inc. v. Cohen, 177 Ariz. 480, 483, 868 P.2d 1063, 1066 (App.1994) (environmental auditor that settled purchasers' suit for professional malpractice precluded from maintaining action against purchaser's counsel for contribution and indemnification as not relating to hazardous wastes); see also Dietz v. General Elec. Co., 169 Ariz. 505, 510, 821 P.2d 166, 171 (1991) (nonemployer defendants allegedly contributing to plaintiff's work-related injuries permitted to name plaintiff's employer as nonparty at fault in personal injury action).

In 1987, the legislature enacted A.R.S. § 12-2506 to abolish common law joint liability, subject to certain exceptions, and to preserve several liability in claims brought against multiple tortfeasors.

Section 12-2506(A) (section (A)) states in part:

In an action for personal injury, property damage or wrongful death, the liability of each defendant for damages is several only and is not joint, except as otherwise provided in this section.

(Emphasis supplied.) We accord the phrase "except as otherwise provided in this section" its plain meaning and conclude that the phrase is of critical importance in answering the district court's question because of its placement in the same sentence that abolishes joint liability. The language sends a clear message that the legislature did not intend to create a blanket abolition of all forms of joint liability in tort actions and did intend to define exceptions to the rule. The legislature indeed crafted two exceptions, placing both in section (D) of the statute. The exception relevant to the present case is set forth in section 12-2506(D)(2) (section (D)(2)):

D. The liability of each defendant is several only and is not joint, except that:

....

2. Nothing in this section prohibits the imposition of joint and several liability in a cause of action relating to hazardous wastes or substances or solid waste disposal sites.

(Emphasis added.)

This language is equally plain. It acknowledges the clause in section (A) as precluding application of the statute to excepted causes, and then describes with particularity the very actions that are excepted. Plaintiffs thus argue that the alleged contamination of...