Opinion
A121627
2-27-2009
TERRY BAKKIE, Plaintiff and Respondent, v. UNION CARBIDE CORPORATION, Defendant and Appellant.
Not to be Published in Official Reports
This is the second appeal in this case. In the first, we considered and rejected various objections to a jury verdict awarding dying mesothelioma plaintiff David Bakkie $3,223,450 for medical and economic damages, and $1,200,000 in non-economic damages for the one-year period between Bakkies diagnosis and the verdict. The only claim of error that we upheld was the contention of defendant Union Carbide that the $14,100,000 of future non-economic damages for the period of Bakkies remaining life expectancy was excessive and the consequence of improper argument by Bakkies trial counsel. We ordered a new trial solely on this item of damages unless Bakkie accepted a reduction to $3,100,000.
Plaintiff David Bakkie died during the pendency of the first appeal. His son Terry, also a plaintiff to this litigation, took his place as his fathers successor-in-interest, and is the sole respondent to this appeal. For purposes of simplicity, we will use the family name.
Bakkie accepted the reduction and submitted a proposed judgment for a net total of $4,451,814.75. Over repeated objection by Union Carbide that this amount was inflated by approximately $650,000 because it was based upon an incorrect calculation of settlements received by Bakkie from other defendants, the trial court filed Bakkies proposed judgment. Union Carbide appeals. We conclude that Union Carbides objection is well taken. We further conclude that the matter can be resolved here, without need for a remand to the trial court. We therefore modify the judgment by reducing the amount of net economic damages from $2,779,601.22 to $2,130,652.06, and affirm.
BACKGROUND
As we stated in our opinion in the first appeal: "In September 2005, when Bakkie was 49 years old, he was diagnosed with mesothelioma, a form of lung cancer typically caused by exposure to asbestos. Mesothelioma is an incurable cancer. [¶] Also in September 2005, Bakkie filed a lawsuit against Union Carbide and others for negligence, product liability for failure to warn, and product liability based on design defect. As to Union Carbide, he alleged that he was exposed to Union Carbides `Calidria, a type of asbestos, when he was employed at American Poly-Therm in 1974 and 1975. [¶] Bakkies action proceeded to a jury trial. Before the end of the trial, Bakkie settled with all of the defendants except Union Carbide."
It is undisputed that the aggregate amount of the settlements was $3,400,750.
"The jury found that Union Carbides asbestos was defectively designed because it failed to meet the safety expectations of the ordinary consumer. It also found Union Carbide strictly liable for its failure to warn. Finally, the jury also found that Union Carbides negligence injured Bakkie. [¶] The jury awarded medical and economic damages in the stipulated amount of $3,223,450. For the one-year period between Bakkies diagnosis and the verdict, the jury awarded noneconomic damages in the amount of $1,200,000. For the period of Bakkies remaining life expectancy after the trial, the jury awarded noneconomic damages of $14,100,000. The jury attributed to Union Carbide 20 percent of the responsibility for causing the harm to Bakkie." (Bakkie v. Union Carbide Corporation (Nov. 29, 2007, A116231 & A116462 [nonpub. opn.], slip. opn. pp. 2, 7-8 (Bakkie I).)
After making the reductions required by Civil Code section 1431.2, the court entered a judgment "in favor of plaintiff David Bakkie and against defendant Union Carbide Corporation in the amount of $3,060,000 in Net Non-economic Damages; $2,779,601.22 in Net Economic Damages; $122,640.93 in Ordinary and Expert Costs; and $218,887.78 in Prejudgment Interest pursuant to C.C.P. Sec. 998; for a Total Net Judgment of $6,181,129.93."
Union Carbide appealed from the judgment and from the order denying its motion for judgment notwithstanding the verdict. We rejected all but one of Union Carbides claims of error. The one contention we did sustain was the claim that the $14,100,000 awarded for non-economic damages to compensate Bakkie for post-verdict pain and suffering was excessive and the result of passion caused by improper argument by his trial counsel. After surveying awards in comparable cases, we concluded that $3,100,000 was an appropriate amount for just the one year that the expert and uncontradicted trial testimony expected Bakkie to have. Because the precise language we used figures on this appeal, we quote our "Conclusion and Disposition" in full:
"As the Supreme Court has held, ` "[w]hen the award as a matter of law appears excessive or where the recovery is so grossly disproportionate as to raise a presumption that it is the result of passion or prejudice, the duty is then imposed upon the reviewing court to act." (Cunningham v. Simpson [(1969)] 1 Cal.3d at pp. 308-309.) This, we conclude, is one of those very rare awards. Accordingly, the judgment is reversed and the cause remanded for a new trial solely on the issue of future noneconomic damages unless, within 30 days from the filing of our remittitur in the trial court, plaintiff shall remit from the judgment all future noneconomic damages except the sum of $3,100,000. In all other respects the judgment is affirmed. If plaintiff elects to accept such remission, the judgment shall stand affirmed in full. The order denying Union Carbides motion for judgment notwithstanding the verdict is also affirmed. The parties will bear their respective costs on appeal." (Bakkie I, slip opn., pp. 43-44.)
Bakkie elected to forego a new trial, accepted the reduction, and submitted a new judgment for the courts signature. In the proposed judgment, Bakkie recalculated the amounts of noneconomic damages (dropping from $3,060,000 to $ 620,000), interest (increasing from $218,887.78 to $689,572.60), and the total amount of the judgment (reduced from $6,181,129.93 to $4,451,814.75). However, Bakkie made no change in the "net economic damages," retaining the figure of $2,779,601.22 from the original judgment.
Union Carbide filed a very short objection to Bakkies proposed form of judgment on the ground that "the total judgment amount is predicated upon improper calculations. Under the proper calculations, . . . the proper judgment amount is $3,661,442.61." Union Carbide did not explain how it reached this figure. It merely asked, "Should the parties be unable to come to an agreement about the proper total judgment amount, Union Carbide hereby requests that the Court refrain from ruling until the parties have had an opportunity to submit briefing on the matter."
The same day that Union Carbide filed its opposition, the trial court signed and filed the "Judgment After Plaintiff[s] Acceptance Of Court Of Appeal Remittitur" submitted by Bakkie, which specified that the previous judgment "hereby is amended and entered . . . against Union Carbide Corporation in the amount of $2,779,601.22 in net economic damages, $240,000 in net past non-economic damages, $620,000 in net future non-economic damages and $122,640.93 in ordinary and expert costs for a total judgment of $3,762,242.15." Including interest of $689,572.60, "produces a total judgment amount due of $4,451, 814.75."
Union Carbide reiterated its position when it moved to amend the judgment. This time it provided details for its opposition to the judgment amount calculated by Bakkie and already accepted by the trial court. Based on Greathouse v. Amcord, Inc. (1995) 35 Cal.App.4th 831, Union Carbide argued that the revised judgment "fails to account for the increased settlement credits to which Union Carbide is entitled," specifically: "Pursuant to the Court of Appeals remittitur, Plaintiff has accepted a reduction of $11 million in improperly-awarded non-economic damages from the Judgment. This reduction of non-economic damages increases the ratio of economic to non-economic damages in the Judgment, and thus increases the percentage of existing settlement amounts that may be credited to against Union Carbides joint and several liability for economic damages. Nevertheless, in the recently-entered Judgment, Plaintiff failed to credit Union Carbide for this increase in settlement credits, to which it is entitled. Accordingly, the Judgment must be amended to account for these increased settlement credits." Union Carbide calculated its share of the economic damages to which Bakkie was entitled was $2,130,652.06 ($3,223,450.00 "Total Economic Damages" less $1,092,797.94 for "Credit for prior settlements").
Union Carbides motion also attacked the amounts of interest and costs claimed by Bakkie. These items do not figure on this appeal and thus merit no further mention.
Bakkie filed opposition to the motion and argued against it at a hearing in the trial court. After the trial court denied its motion, Union Carbide perfected this timely appeal.
Out of understandable abundance of caution, Union Carbide appealed from the second judgment and from the order denying its motion to amend the judgment. Nevertheless, because the appeal from the order raises the identical issues as the appeal from the judgment, the purported appeal from the order must be dismissed. (E.g., Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651; Hilliker v. Board of Trustees (1928) 91 Cal.App. 521, 525-526; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, §§ 183, 191, pp. 260, 268-269.)
DISCUSSION
The sole point urged on appeal by Union Carbide is that the trial court erred in accepting Bakkies recalculation of the amount of economic damages at $2,779,601.22 because this amount does not comply with the requirements of Civil Code section 1431.2. However, before we can address this point, we must address two reasons advanced by Bakkie why the merits of Union Carbides claim are not properly before us.
Bakkies Arguments That Union Carbide Is Precluded by Bakkie I from Challenging the New Judgment Are Without Merit
Bakkie prefaces his arguments by stating he "does not contend that the award of economic damages was not erroneous; it indisputably was." However, he maintains, Union Carbide waived the error "when it failed either to appeal from the judgment nunc pro tunc or to raise the issue in its appeal from the initial judgment." The matter of the two judgments requires some explanation.
Following receipt of the jurys verdict, the trial court filed a judgment on September 11, 2006. Union Carbide filed a notice of appeal from this judgment on November 13, 2006.
Bakkie then filed a "Motion Re: Allocation of Pre-Trial Settlements and Request for Entry of Judgment Nunc Pro Tunc." Bakkie explained: "It is now well settled by the Courts of Appeal that the appropriate settlement credit available to a tortfeasor after verdict is calculated based on the ratio between economic damages and the total damages as assessed by the jury. See Greathouse v. Amcord, Inc., supra, 35 Cal.App.4th 831. [¶] The total damages awarded to David Bakkie were $18,523,450, of which $3,223,450 were found by the jury to be economic damages. The Greathouse ratio is therefore 17.4% ($3,223,450 [divided by] $18,523,450)." Using this formula, Bakkie computed that Union Carbide was entitled to a "settlement credit" of $443,849, thereby reducing the amount of economic damages from $3,223,450 to $2,779,601.22.
Union Carbide responded "The `Greathouse ratio set forth in Plaintiffs motion is the legally correct method for calculating the allocation of pretrial settlements . . . and 17.4% is the correct ratio in this case"; thus, Union Carbide "generally concurs with the Plaintiffs proposed allocation of pre-trial settlements to the judgment." However, this concurrence was conditional: "[A]s set forth in its Motion for New Trial, Union Carbide disputes the award of non-economic damages as excessive, and requests that this Court either order a new trial or reduce the non-economic damages award. If the court reduces the award of non-economic damages, the Greathouse ratio, and therefore the offset for pre-trial settlements, will need to be adjusted accordingly."
A further qualification of Union Carbides concurrence was its disagreement with Bakkies computation of prejudgment interest and costs. Neither of these points is pertinent to this appeal.
On December 29, 2006, the trial court filed its "Amended Judgment Nunc Pro Tunc to September 11, 2006." On December 8, 2006, Union Carbide filed a second notice of appeal, this one from the order denying its motion for entry of judgment notwithstanding the verdict.
As Witkin puts it: "A nunc pro tunc order or judgment is one entered as of a time prior to the actual entry, so that it is treated as effective at the earlier date." (7 Witkin, Cal. Procedure, supra, Judgment, § 60, p. 595.) Thus, the nunc pro tunc amendment, which expressly recited that it applied to the September 11 judgment as of that date, merely altered the terms of the judgment from which Union Carbide had already filed a notice of appeal. Accordingly, Union Carbides notice of appeal from the initial judgment was effective in perfecting a valid appeal from the judgment as subsequently amended.
A more elemental reason against Bakkies waiver argument is pointed out by Union Carbide, which takes issue with Bakkies assessment that error infected the first judgment. According to Union Carbide, "there was no error in the trial courts Greathouse calculation . . . [a]ssuming the validity of the then-existing economic and non-economic damages figures." That assumption would hold good until it was proven that those numbers were wrong. "That error did not occur until remand." Absolutely true.
Bakkies second waiver argument is, if anything, even thinner. He posits that, upon remand, the trial court was nothing more than a ministerial scrivener, duty-bound to touch nothing but the future noneconomic damages, lacking the power to alter any other aspect of the judgment because it had been affirmed "in all other respects" by this court on Bakkie I.
This reasoning almost outstrips credulity. The idea that all aspects of the judgment but for future noneconomic damages were fixed in stone defies common sense. It is patently obvious that the ultimate ratio—which is only a quotient expressing the relationship between two or more mathematical values —could not be determined until there was a final determination of what were the final figures for economic damages and total damages. At an earlier point in the litigation, Bakkie admitted as much, telling the trial court at one point, "the appropriate settlement credit . . . is calculated based on the ratio between economic damages and the total damages as assessed by the jury." This court has seen how the numbers can change following an appeal. (See Munoz v. City of Union City (2007) 148 Cal.App.4th 173 [defendants liability increased on remand from 50% to 91%].) Nothing we stated in Bakkie I was intended to preclude such reevaluation.
Munoz is also notable because in it we rejected virtually the same argument advanced by Bakkie here, namely, that the appellant to a second appeal waived a "reallocation" made on remand after a first appeal because no argument anticipating such a result was argued on the first appeal. (See Munoz v. City of Union City, supra, 148 Cal.App.4th 173, 178-179.)
Bakkies Acceptance of the Reduction in Future Non-economic Damages Necessarily Requires Recalculation of the Greathouse Ratio Between Economic and Non-economic Damages
Civil Code section 1431.2 was enacted to provide that the "defendants liability for noneconomic damages is several only, and it is liable only for the portion of plaintiffs noneconomic damages that correspond to its percentage of fault." (Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990, 1006; see Civ. Code, § 1431.2, subd. (a).) Union Carbide is jointly liable for Bakkies economic damages, and thus is "entitled under [Code of Civil Procedure] section 877 to a credit for amounts previously recovered from other parties for these damages." (Jones v. John Crane, Inc., supra, at p. 1006.) "Settlement payments attributable to noneconomic damages are not subject to the setoff." (Greathouse v. Amcord, Inc., supra, 35 Cal.App.4th 831, 838.)
In Greathouse, Division One of this District held that in a tort action with economic and non-economic damages, "the trial court [is] justified in inquiring only if there was a reasonable basis for the jurys allocation of total damages between economic and noneconomic damages. [Citation.] If the allocation was supported by substantial evidence, it should . . . allocate[] the settlement proceeds between economic and noneconomic damages according to the proportion reflected in the jurys verdict. Any other allocation would necessarily infringe on the factfinding power of the jury. [Citation.]" (Greathouse v. Amcord, Inc., supra, 35 Cal.App.4th 831, 841.)
There is no danger of infringing on the jurys verdict here. On the first appeal we upheld the jurys apportionment against Union Carbides claim that it lacked the support of substantial evidence. (Bakkie I, supra, slip opn., p. 14.) In addition, although we concluded that the award for future non-economic damages was excessive, Bakkie accepted its reduction.
The merits of Union Carbides sole contention are easily grasped. Once Bakkie accepted the reduction of future non-economic damages from $14,100,000 to $3,100,100, the Greathouse computation accepted by the parties when the nunc pro tunc judgment was entered immediately became outdated. The reduction in non-economic damages increases the ratio of economic damages to non-economic damages, and thus increases the percentage of what may be credited against Union Carbides joint and several liability for economic damages.
The jury awarded economic damages of $3,223,450. Applying the Greathouse formula, the ratio of economic damages to total damages—the original total of $18,523,450—was 17 percent. Although there was $3,400,750 of pretrial settlements, the settlement agreements allocated 75 percent—$2,550,562.50—to Bakkies personal injuries, and this is the amount of the total settlements available for offset. Seventeen percent of $2,550,562 was computed by the trial court at $443,848.78, and when this amount was deducted from the $3,223,450, it produced a figure for Bakkies economic damages of $2,779,801.22, the amount used in the nunc pro tunc judgment.
But the $11 million reduction in non-economic damages makes a significant difference, lowering the total judgment to $7,523,450. When considered with the static economic damages figure of $3,223,450, this produces a new Greathouse formula ratio of 43 percent. According to Union Carbide, 43 percent of $2,550,562 is $1,092,797.94, which when subtracted from the total economic damages amount of $3,223,450 produces a net of $2,130,652.06. In response to a query at oral argument, counsel for Bakkie told us that, if the waiver argument fails, there was no dispute with Union Carbides calculations. In these circumstances, we believe that a remand to the trial court may be avoided by this court amending the judgment, a common practice to promote judicial economy. (E.g., Munoz v. City of Union City, supra, 148 Cal.App.4th 173, 183; Greathouse v. Amcord, Inc., supra, 35 Cal.App.4th 831, 841-842.)
DISPOSITION
The purported appeal from the order denying Union Carbides motion to amend the judgment is dismissed. The judgment is modified to provide that the "Net Economic Damages" Bakkie shall recover is $2,130,652.06. As so modified, the judgment is affirmed. Union Carbide shall recover its costs on appeal.
We concur:
Haerle, Acting P.J.
Richman, J.