27 Cal. App. 5th 225
Cal. Ct. App. 5th2018Background
- Decedent J.D. Williams (d. 2010 of mesothelioma) regularly performed brake work at home using asbestos-containing brake parts he purchased from Pep Boys and others; seven adult children (appellants) sued in 2011 asserting wrongful death and survival claims (negligence, strict liability, failure to warn, etc.).
- Plaintiffs’ original complaint (Jan 2011) named Does; Pep Boys was added in a first amended complaint (Dec 2012). Interrogatory responses (served 2011–2013) and trial testimony show plaintiffs knew by May 2011 that asbestos exposure caused decedent’s disease and that some products came from Pep Boys.
- On the fourth day of trial Pep Boys was allowed to amend its answer to assert specifically the wrongful-death statute of limitations (Code Civ. Proc. § 340.2(c)); plaintiffs argued waiver and moved for judgment on the pleadings (deferred).
- At the close of plaintiffs’ case Pep Boys moved under CCP § 631.8; the trial court granted that motion as to wrongful death and punitive damages (statute of limitations and insufficiency of punitive-proof), but held Pep Boys liable on survival claims and awarded $213,052 in economic damages.
- The trial court offset that award by $721,500 in pretrial lump-sum settlements (no allocation between wrongful death and survival claims) and entered judgment that plaintiffs take nothing; it also awarded Pep Boys $16,724.10 in expert fees under CCP § 998 based on a joint $60,000 offer by Pep Boys.
- On appeal the court affirmed liability on survival claims but: (1) held plaintiffs were entitled to recover reasonable value of home-health/household services provided to decedent before death; (2) held lost-years damages (post-death losses a decedent would have incurred had he lived) are not recoverable in a survival action under § 377.34; and (3) held the joint/unallocated § 998 offer was invalid, so expert fees award under § 998 must be reversed.
Issues
| Issue | Plaintiffs' Argument | Pep Boys' Argument | Held |
|---|---|---|---|
| Whether plaintiffs waived or were prejudiced by Pep Boys’ belated amendment to assert the specific wrongful-death statute of limitations | Amendment was technical; plaintiffs claimed waiver based on prior discovery denials | Amendment cured a technical defect and caused no prejudice | Trial court did not abuse discretion in allowing amendment (no prejudice) |
| Whether wrongful-death claims were time-barred | Plaintiffs argued they lacked sufficient knowledge by original filing date to make liability against Pep Boys probable | Pep Boys argued plaintiffs knew by May 2011 that asbestos caused disease and Pep Boys was a probable source; wrongful-death claims (one-year statute) thus barred | Court granted CCP § 631.8 motion as to wrongful death: plaintiffs’ wrongful-death claims were time-barred |
| Recoverability of home-health and household services damages (including services plaintiffs provided gratuitously and replacement care for spouse) | Plaintiffs sought reasonable value of services provided to decedent before death and services provided to decedent's wife (both replacement care predeath and care during the ‘lost years’) | Pep Boys conceded predeath household care is recoverable but argued lost-years (postdeath) damages are not recoverable in a survival action | Predeath home-health/household services are recoverable; replacement care (services decedent would have provided to wife prior to his death) recoverable; lost-years/postdeath services (damages not sustained or incurred before death) are not recoverable under § 377.34 |
| Validity of a joint/unallocated CCP § 998 offer and entitlement to expert fees | Plaintiffs argued the § 998 offer was a single joint unallocated offer conditioned on acceptance by all plaintiffs and thus invalid to shift costs/expert fees | Pep Boys argued wrongful-death claims create unity of interest; McDaniel permits a joint offer in wrongful-death cases | Because plaintiffs asserted both wrongful-death and survival claims (distinct recoveries), the offer was not apportioned and thus invalid under § 998; award of expert fees reversed |
Key Cases Cited
- County of Los Angeles v. Superior Court, 21 Cal.4th 292 (1999) (survival action may recover deceased’s pecuniary losses sustained before death)
- Howell v. Hamilton Meats & Provisions, Inc., 52 Cal.4th 541 (2011) (medical expenses as economic damages and principles for their recovery)
- Hanif v. Housing Authority, 200 Cal.App.3d 635 (1988) (reasonable value of gratuitous family-provided nursing services recoverable)
- Overly v. Ingalls Shipbuilding, Inc., 74 Cal.App.4th 164 (1999) (discussion of lost-years damages in personal-injury context)
- Stevens v. Owens-Corning Fiberglas Corp., 49 Cal.App.4th 1645 (1996) (interpretation of § 377.34 consistent with limiting recovery to predeath losses)
- Meissner v. Paulson, 212 Cal.App.3d 785 (1989) (general rule: § 998 offers to multiple plaintiffs must be apportioned and not conditioned on unanimous acceptance)
- McDaniel v. Asuncion, 214 Cal.App.4th 1201 (2013) (unity-of-interest exception: wrongful-death plaintiffs may qualify for a joint § 998 offer where only a single indivisible recovery exists)
- Peterson v. John Crane, Inc., 154 Cal.App.4th 498 (2007) (reaffirming apportionment requirement for multiple offerees and describing unity-of-interest exception)
- Gonzalez v. Lew, 20 Cal.App.5th 155 (2018) (section 998 application reviewed de novo; allocation rules for offers to multiple plaintiffs)