California Court of Appeals, Second District, Fifth Division
CERTIFIED FOR PARTIAL PUBLICATION [*]
APPEAL from a judgment and order of the Superior Court of Los Angeles County Super. Ct. No. BC353365 David L. Minning, Judge.
Munger, Tolles & Olson, Daniel P. Collins, Bram Alden; Shook, Hardy & Bacon and Patrick J. Gregory for Defendant and Appellant.
Law Offices of Michael J. Piuze, Michael J. Piuze, Geraldine Weiss; Esner, Chang & Boyer, Stuart B. Esner and Andrew N. Chang for Plaintiff and Appellant.
Richard Boeken (Richard) brought an action against Philip Morris USA Inc. (Philip Morris) seeking damages for lung cancer he developed from smoking Philip Morris cigarettes and was awarded compensatory and punitive damages. He died while the verdict was on appeal. (Boeken v. Philip Morris Inc. (2005) 127 Cal.App.4th 1640 (Richard’s action).) In this case, Dylan Boeken (Dylan), Richard’s son, brought a wrongful death action against Philip Morris for Richard’s death and recovered $12.8 million for loss of consortium.
On appeal, in the published portion of this opinion, we discuss and reject Philip Morris’s contentions that the trial court failed to instruct the jury on the proper measure of Dylan’s damages. Relying on Blackwell v. American Film Co. (1922) 189 Cal. 689 (Blackwell), Philip Morris contends that when a personal injury plaintiff who was fully compensated in a lawsuit for his injuries and resulting physical incapacity dies from those injuries, a surviving child’s wrongful death loss of consortium damages are measured from the decedent’s post-injury diminished condition at the time of death. Also in the published portion of this opinion, as to Dylan’s cross-appeal, we hold he may not recover interest on his award because his Code of Civil Procedure section 998 (section 998) offer of settlement did not include the statutorily required “provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted.”
In the unpublished portion of this opinion, we deal with Philip Morris’s contentions concerning another jury instruction and the application of collateral estoppel. We affirm the judgment and order.
FACTUAL AND PROCEDURAL BACKGROUND
In Richard’s action, the “jury found that Philip Morris products consumed by [Richard] were defective either in design or by failure to warn prior to 1969, resulting in injuries to [Richard]. The jury also found liability to [Richard] based upon fraud by intentional misrepresentation, fraudulent concealment, false promise, and negligent misrepresentation, concluding that [Richard] had justifiably relied upon fraudulent utterances and concealment by Philip Morris.” (Boeken v. Philip Morris, Inc., supra, 127 Cal.App.4th at pp. 1649-1650.) The jury awarded Richard compensatory damages of over $5.5 million and punitive damages in an amount that ultimately was reduced on appeal to $50 million. (Ibid.) Richard died while that verdict was on appeal. (Id. at p. 1649, fn. 1.)
Richard’s widow, Judy Boeken, acting for herself and Dylan, filed an action against Philip Morris seeking wrongful death damages. Her wrongful death claim was dismissed on the ground it was barred by the res judicata effect of a voluntary dismissal with prejudice of her prior action. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788.)
In his second amended complaint for wrongful death, Dylan alleged that Richard died on January 16, 2002, from injuries caused by Philip Morris products. Dylan had claims for negligence, strict liability (prior to July 1, 1969), and fraudulent concealment. Dylan asserted that “offensive collateral estoppel applies to the issues of liability and causation of the injury which subsequently caused” Richard’s death and sought damages for loss of consortium and funeral and burial expenses. Dylan later limited his claims based on Philip Morris’ fraudulent concealment to the period prior to July 1, 1969. Prior to trial, Dylan served on Philip Morris an offer to allow judgment under section 998 in the amount of $4.95 million, which offer Philip Morris did not accept.
Prior to trial, Philip Morris moved for an order that offensive collateral estoppel did not apply to preclude it from relitigating its liability. The trial court denied the motion. The trial court also denied Philip Morris’s requests to instruct the jury that Dylan’s damages were to be measured by Richard’s condition as it existed at the time of Richard’s death and to modify an instruction on wrongful death damages to state explicitly that Dylan could not recover for any emotional injuries.
At trial, Dylan called a number of witnesses who testified that Richard was a good father who had a close relationship with Dylan throughout Dylan’s childhood and up to the time of Richard’s death. Philip Morris did not call any witnesses who challenged the nature of Dylan’s relationship with his father, and does not raise on appeal the admissibility or substance of the testimony of Dylan’s witnesses on that subject.
At the close of Dylan’s case, Philip Morris moved for a directed verdict, arguing that Dylan had not shown compensable damages by measuring the damages from the condition of Richard at the time of his death. The trial court denied the motion. The jury returned a verdict for Dylan, awarding him $12.8 million in damages. Philip Morris moved for a judgment notwithstanding the verdict, arguing that Dylan failed to show damages under the proper measure of damages. It also moved for a new trial, in part, on the grounds that the trial court erred in instructing the jury on the measure of Dylan’s damages and in applying offensive collateral estoppel to the issue of its liability. The trial court denied Philip Morris’s motions.
Dylan moved for an award of prejudgment interest pursuant to Civil Code section 3291 (section 3291) on the ground that the jury’s verdict exceeded his section 998 offer. The trial court, in denying the motion, ruled that Dylan’s section 998 offer was invalid because it did not contain the required acceptance provision that allowed Philip Morris to indicate that it accepted the offer by signing a statement in the offer that it was accepted.
Philip Morris appeals from the judgment. Dylan cross appeals from the trial court’s order denying prejudgment interest.
I. Dylan’s Damages
Philip Morris contends that when, as here, a personal injury plaintiff (Richard) who brought an action in which he was fully compensated for his injuries and resulting physical incapacity dies from those injuries, his child’s (Dylan’s) damages in a subsequent wrongful death action—here, loss of consortium damages—are based on the decedent’s post-injury diminished condition at the time of death. Philip Morris argues that the application of such a rule would, in effect, prohibit any recovery to Dylan—presumably on the theory that Richard, due to his lung cancer, was unable to provide Dylan any comfort, society, or protection at the time of Richard’s death.
“Unlike some jurisdictions wherein wrongful death actions are derivative, Code of Civil Procedure section 377.60 ‘creates a new cause of action in favor of the heirs as beneficiaries, based upon their own independent pecuniary injury suffered by loss of a relative, and distinct from any the deceased might have maintained had he survived. [Citations.]’ [Citations.]” (Horwich v. Superior Court (1999) 21 Cal.4th 272, 283.) Under Code of Civil Procedure section 377.61, damages for wrongful death “are measured by the financial benefits the heirs were receiving at the time of death, those reasonably to be expected in the future, and the monetary equivalent of loss of comfort, society, and protection. (Corder v. Corder (2007) 41 Cal.4th 644, 661 [61 Cal.Rptr.3d 660, 161 P.3d 172] (Corder).)” (Mendoza v. City of West Covina (2012) 206 Cal.App.4th 702, 720 (Mendoza).)
In Boeken v. Philip Morris USA, Inc., supra, 48 Cal.4th at pages 795 through 796, our Supreme Court explained: “Originally, the recovery in wrongful death actions was limited to ‘pecuniary injury’ (Stats. 1862, ch. 330, § 3, p. 448), which some courts interpreted to mean that only economic losses were compensable (such as loss of financial support or household services). As early as 1911, however, we recognized the right of wrongful death plaintiffs to recover noneconomic damages, including damages for loss of society and comfort, so long as the damages were not based merely on grief or sorrow. (See Bond v. United Railroads of San Francisco (1911) 159 Cal. 270, 285-286, 113 P. 366.) In Krouse v. Graham (1977) 19 Cal.3d 59, 67-70 [137 Cal.Rptr. 863, 562 P.2d 1022], we confirmed that loss of consortium damages are ...