Melendrez v. Ameron International Corp.
193 Cal. Rptr. 3d 23
Cal. Ct. App.2015Background
- Lario Melendrez worked at Ameron from c.1961–1985 manufacturing Bondstrand asbestos-containing pipe and was exposed to asbestos at work; he took scrap pipe home with supervisor permission and used it on home projects.
- In 2010 he was diagnosed with mesothelioma and died in 2011; his survivors sued Ameron for wrongful death alleging additional home exposure from the scrap pipe.
- Ameron moved for summary judgment asserting the Workers’ Compensation Act exclusivity (Lab. Code §3600 et seq.) barred the tort suit; the trial court granted summary judgment.
- Ameron incurred substantial costs (surveying, testing, abatement planning) and designated experts; it made a Code of Civil Procedure §998 offer (mutual waiver of costs) before trial; after prevailing, Ameron sought expert-fee costs and the court awarded $80,719.
- Plaintiffs appealed both the summary judgment (arguing home exposure fell outside workers’ compensation) and the expert-fee award (arguing the §998 offer was unreasonable and costs were abatement, not recoverable expert fees).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether workers’ compensation exclusivity bars the wrongful-death suit | Melendrez’s home use of scrap pipe was not in course of employment, so that portion falls outside workers’ compensation and permits tort recovery | Even if home exposure occurred, the workplace exposure substantially contributed to the same mesothelioma so the injury is covered by workers’ compensation and exclusivity applies | Court: exclusivity applies; industrial exposure was a substantial contributing cause, so the single injury is within workers’ compensation coverage and bars the suit |
| Whether plaintiffs raised a triable issue that home exposure arose out of and in course of employment | Home activities were personal, not services growing out of employment, creating factual dispute | Not material: even if a factual dispute exists about home exposure, the contributing-cause rule brings the disease within workers’ compensation | Court: triable factual issue exists but is immaterial because workplace exposure substantially contributed to the disease |
| Whether Ameron’s §998 zero-cost-waiver offer was reasonable and made in good faith | Offer was premature/unreasonable given ongoing discovery, large potential mesothelioma verdicts, and plaintiffs’ lack of knowledge of defendant’s expert costs | Offer was reasonable given defendant’s strong defense (exclusivity) and significant discovery; judgment was more favorable than the offer, creating a presumption of reasonableness | Court: no abuse of discretion; offer was reasonable and plaintiffs failed to show lack of good faith |
| Whether Ameron’s claimed costs (survey/testing/abatement planning) were recoverable under §998 as expert witness fees | Costs were abatement-related and not ordered by court, therefore not recoverable as expert fees under §1033.5(b)(1) or as §998 expert costs | Forensic work to locate/test pipe was actually incurred and reasonably necessary to prepare the defense; §998 allows recovery of expert costs incurred before or after the offer | Court: award was within discretion; reduced abatement portion by estimate but upheld $80,719 as reasonable expert-fee costs under §998 |
Key Cases Cited
- McAllister v. Workers' Comp. App. Bd., 69 Cal.2d 408 (Cal. 1968) (industrial exposure that substantially contributes to disease need only be shown to be a reasonably probable cause)
- South Coast Framing, Inc. v. Workers' Comp. Appeals Bd., 61 Cal.4th 291 (Cal. 2015) (explains broad contributing-cause standard in workers’ compensation)
- LeFiell Mfg. Co. v. Superior Court, 55 Cal.4th 275 (Cal. 2012) (workers’ compensation inquiry same for exclusivity and benefit eligibility)
- Vacanti v. State Comp. Ins. Fund, 24 Cal.4th 800 (Cal. 2001) (exclusivity bars claims collateral or derivative of compensable workplace injury)
- Ralphs Grocery Co. v. Workers' Comp. Appeals Bd., 58 Cal.App.4th 647 (Cal. Ct. App. 1997) (off-duty events may fall outside course of employment)
- Mason v. Lake Dolores Group, 117 Cal.App.4th 822 (Cal. Ct. App. 2004) (employee conduct expressly prohibited by employer can fall outside course of employment)
- Najah v. Scottsdale Ins. Co., 230 Cal.App.4th 125 (Cal. Ct. App. 2014) (§998 expert-fee recovery and reasonableness review)
- Adams v. Ford Motor Co., 199 Cal.App.4th 1475 (Cal. Ct. App. 2011) (evaluate §998 offer against likelihood of prevailing, not only claimed damages)