Today, Cal Biz Lit presents a guest post from Adams | Nye partner Barbara Adams. Barbara discusses a new case allowing apportionment of fault to the U.S. Navy, even in situations where the Navy can't be sued.
In California, since the passage of Proposition 51 (Civil Code §§ 1431 and following) in 1986, defendants in personal injury cases have been liable for non-economic damages only according to their share of “fault” as found by the jury at trial. It is, of course, to the advantage of the defense to have as many entities as possible on the verdict form to whom the jury can attribute “fault” for the plaintiff’s injuries. In 1992, the California Supreme court held that even if employers could not be used, they were entities to whom a share of “fault” could be attributed (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593.) In 2003, a California Appellate Court held that, even if the plaintiff cannot recover damages from the Navy, the Navy is an entity to whom the jury can allocate “fault” (Taylor v. John Crane, Inc. (2003) 113 Cal.App.4th 1063.)
In 2008, in a trial in Alameda County Superior Court, plaintiffs’ counsel managed to convince the trial judge that Taylor no longer applied, and after the defendant had offered lots of evidence of Navy fault, the Navy could not be on the verdict form at all.The plaintiffs in the most recent case were the wife and daughter of Ulysses Collins, who died of mesothelioma in 2005. He had worked as a welder at the Hunters Point Naval Shipyard from 1960 to 1973, and at Mare Island Naval Shipyard from 1976 to 1994 (from 1973 to 1976, he worked at an oil refinery.) At the close of evidence, plaintiffs’ counsel moved for a directed verdict as to the Navy, arguing that, pursuant to Munoz v. City of Union City (2007) 148 Cal.App.4th 173, the Navy enjoyed sovereign immunity, without exception, and thus could not be listed on the verdict form. The trial Judge agreed. During deliberations, the jury asked why the Navy did not appear on the verdict form as an entity to whom they could allocate fault, and they were instructed that they could not apportion to the Navy as a matter of law. The jury found Plant Insulation 20% at fault, in a verdict that included $1.8 million in non-economic damages (that’s $360,000 in liability, with no ability for set off), and $1,038,000 in economic damages (I would tell you what the set-off was, but the wording of the decision makes no sense whatsoever.)
Appeal followed, resulting in last week's decision in Collins v. Plant Insulation Co. (June 3, 2010) ___Cal.App.4th___ Case (California Court of Appeal No. A124268), overturning the trial court’s decision. As the Collins Court explained, the difference between the holding in Munoz and Taylor is that the former case held that there was an absence of duty, and thus a true absence of fault, where in the latter instance, there was only a decision that the Navy cannot be sued in civilian court, not an abrogation of fault.
The clearest case on this issue, cited by the Collins court, is Richards v. Owens Illinois (1997) 14 Cal.4th 985. There, a defendant in an asbestos case attempted to have non-party tobacco companies on the verdict form for fault allocation. The California Supreme Court held that fault could not be allocated to tobacco companies. At that time, California barred suits against tobacco companies (a ban that has since been lifted). The Supreme Court reasoned that the legislature had not just granted the tobacco companies immunity from suit; it had declared that the tobacco companies did not owe, and therefore could not breach, a duty to smokers. Thus, there was no “fault” to allocate.
The Court also distinguished Munoz. In that police unreasonable use of force case, the jury allocated fault both to the police officer for unreasonable use of force, and to the City of Union City for vicarious liability. But the Court of Appeal held that, based provisions of the California Government Code designed to shield public entities from liability, the City owed no duty to the decedent, and therefore could not have any share of “fault.”
Plaintiff’s counsel in Collins attempted to construct a "sovereign immunity" parallel between Munoz and their case, arguing that since sovereign immunity means, “the king can do no wrong”, then the Navy, like tobacco companies and the City of Union City, had no potential duty, and thus no “fault.” But the Court held that the Navy can act "wrongfully" and still be immune. And that . British concepts of sovereign immunity don't, and never have, applied in the U.S..
In conclusion, if you hope to add an unusual party to the verdict form in your trial, an entity that cannot otherwise be sued for this injury, be ready to examine the basis of that immunity. Is it just immunity from suit, or complete lack of duty, and thus fault?