California’s Proposition 51 limits a defendant’s share of liability for non-economic damages (like pain and suffering) to the “defendant’s percentage of fault” for the injury, effectively allocating to other tortfeasors liability for the rest of the noneconomic damages. A recent decision, Burch v. CertainTeed, has ruled that Proposition 51 does not apply to intentional torts. The ruling magnifies a split in California appellate authority which is expected to be resolved in another case that is already before the California Supreme Court.
Plaintiffs sued defendant CertainTeed and others claiming that work with asbestos-containing underground pipes caused Mr. Burch’s mesothelioma. The jury returned a verdict for plaintiff on his claim for negligence, failure to warn, strict product liability, intentional concealment, and intentional misrepresentation. The jury awarded $776,201 in economic damages and $9.25 million in noneconomic damages. The jury apportioned 62% of the fault to CertainTeed (the only remaining defendant), with the remaining 38% allocated to various manufacturers and employers. The trial court ruled that under Proposition 51 (codified in Civil Code § 1431.2), CertainTeed, while liable for 100% of the economic damages, was liable for only 62% of the noneconomic damages.
Plaintiffs appealed, arguing that Proposition 51 does not apply to an intentional tortfeasor such as CertainTeed, so that CertainTeed should have been liable for 100% of both the economic and noneconomic damages, even though it was only 62% responsible.
The Burch court acknowledged the split of authority on the question whether the several liability provision of Proposition 51 for noneconomic damages applies to an intentional tortfeasor. In B.B. v. County of Los Angeles (2018) 25 Cal.App.5th 115, a different court of appeal concluded that Proposition 51 mandates several liability for noneconomic damages in direct proportion to even an intentional tortfeasor’s direct percentage of fault. That case is presently before the California Supreme Court.
The court in Burch, however, sided with another case, Thomas v. Duggins (2006) 139 Cal.App.4th 1105, which came to the opposite conclusion. The court in Burch offered a two-part analysis why Proposition 51 should not apply to an intentional tortfeasor. First, at the time Proposition 51 passed, the rules of equitable reimbursement (equitable indemnity, equitable contribution) and comparative fault did not allow an intentional tortfeasor to seek such reimbursement from a negligent third party (or seek a reduction in damages based on a plaintiff’s or third party’s comparative negligence), based on “policy considerations of deference and punishment for intentional torts.”
Second, the court in Burch turned to the statute itself: “In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for noneconomic damages shall be several only and shall not be joint”. Focusing on the italicized phrase, the court reasoned this language had to mean that Proposition 51 incorporated those laws or principles of comparative fault that existed at the time it was enacted — which included the law that prohibited an intentional tortfeasor from seeking equitable indemnity, contribution, and apportionment. (The court also drew a similar inference from Proposition 51’s ballot materials, though these materials make no mention of the rules of comparative fault as they applied to intentional tortfeasors.)
B.B v. County of Los Angeles relied on DaFonte v Up-Right, Inc. (1992) 2 Cal.4th 593, in which the California Supreme Court held that Proposition 51 applied to the fault of all joint tortfeasors, even one who was statutorily immune from suit (in that case, the plaintiff’s employer). The Burch court stated that DaFonte “had no occasion to consider” whether Proposition 51 allowed an intentional tortfeasor to apportion noneconomic damages according to its percentage of fault. Interestingly, though, the Court in DaFonte expressly rejected the argument, similar to the one advanced by the court in Burch, that preexisting law imposed various constraints on the application of Proposition 51. Thus, the reasoning in Burch – and in Thomas — that Proposition 51 “must have incorporated [prior] judicially-construed principles” of equitable reimbursement is flatly inconsistent with DaFonte.
In the wake of Burch, the Supreme Court in B.B v. County of Los Angeles will likely address, among other issues:
- Does the concept of “fault” in Proposition 51 include all torts and theories of liability, or, for policy reasons, will an exception be made for intentional torts?
- Which of Burch or B.B. is more consistent with prior decisions holding Proposition 51 applies not only to negligence claims, but also to strict liability, and holding that tortfeasors immune from suit should also be allocated a share of the fault?
- Of what relevance are earlier rules for equitable reimbursement from solvent tortfeasors, to the issues of apportioning fault among all tortfeasors, and limiting a defendant’s liability for noneconomic damages to its proportionate share of the overall fault?
- Does Proposition 51 only apply, as suggested by the court in Burch, to “situations in which defendants who bore only a small share of fault for an accident could be left with the obligation to pay all or a large share of the plaintiff’s damages if other more culpable tortfeasors were insolvent”?
Until B.B is decided by the Supreme Court, trial courts in California are free to follow either of the two contrary strands of appellate authority on this issue. In the meantime, plaintiffs have even more reason to allege an intentional tort claim and hope to make it stick.