HORWICH v. Edward Acuna et al., Real Parties in Interest.

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Court of Appeal, Second District, Division 1, California.

Benjamin R. HORWICH, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Edward Acuna et al., Real Parties in Interest.

No. B120188.

Decided: July 28, 1998

Horvitz & Levy, Barry R. Levy, Jon B. Eisenberg, Barry Bartholomew and Larry P. Bilbrew, Glendale, for Petitioner. M. Scott Radovich, San Luis Obspo, for Real Parties in Interest. No appearance for Respondent.

The Personal Responsibility Act of 1996 (Civ.Code, §§ 3333.3, 3333.4) was adopted by initiative “to restore balance to our justice system by limiting the right to sue of criminals, drunk drivers, and uninsured motorists.”  (Prop. 213, § 2, subd. (c), eff.   Nov. 5, 1996.) 1  In the case now before us, a defendant in a wrongful death action asks us to apply Proposition 213 to limit the recovery of an uninsured motorist's survivors.   To do so, we would have to rewrite the statute, and that we will not do.

BACKGROUND

Melissa Acuna was killed in an automobile accident.   Her parents (Edward and Elisa Acuna) sued Benjamin Horwich, alleging that his negligence was the cause of the accident.2  When Horwich answered, he alleged as an affirmative defense that Melissa was uninsured at the time of the accident, and that the Acunas therefore could not recover for any nonpecuniary damages.  (§ 3333.4, subds. (a)(2), (a)(3).)   The Acunas moved for judgment on the pleadings, admitting that Melissa had been uninsured but contending that subdivisions (a)(2) and (a)(3) of section 3333.4 apply only to owners and operators of the automobiles involved in the accident, not to survivors suing for wrongful death damages.   The motion was granted.   Horwich then filed a petition for a writ of mandate, contending this case presents an issue of urgent importance affecting “potentially hundreds of pending wrongful death actions,” and asking us to direct the trial court to enter the opposite order.   We issued an order to show cause and set the matter for hearing.

DISCUSSION

Horwich reads section 3333.4 to preclude the recovery of nonpecuniary damages in a wrongful death action.   In his words (with his emphasis), “the plain language of the initiative ․ broadly proscribes noneconomic recovery by ‘any person’ in ‘any action arising out of the operation or use of a motor vehicle’ when the owner or driver of the vehicle was uninsured.”   In addition, he says, “[s]uch recovery is precluded by the rule that a wrongful death action is subject to any defenses ... that could have been asserted against the decedent.”   We reject both contentions.

A.

 Subdivision (a) of section 3333.4 provides thus:

“(a) Except as provided in subdivision (c), in any action to recover damages arising out of the operation or use of a motor vehicle, a person shall not recover non-economic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages if any of the following applies:

“(1) The injured person was at the time of the accident operating the vehicle in violation of Section 23152 or 23153 of the Vehicle Code, and was convicted of that offense.

“(2) The injured person was the owner of a vehicle involved in the accident and the vehicle was not insured as required by the financial responsibility laws of this state.

“(3) The injured person was the operator of a vehicle involved in the accident and the operator can not establish his or her financial responsibility as required by the financial responsibility laws of this state.”  (Emphasis added.) 3

B.

Nowhere in his petition or supporting papers does Horwich actually quote subdivisions (a)(2) or (a)(3) of section 3333.4.   Instead, he parses the statute to suit his purpose, paraphrasing as he goes and peppering the parts he does quote with ellipses.   His argument crumbles when we examine the actual statute and we see that the reference to “a person” who pursues “any action to recover damages arising out of the operation” of an automobile (§ 3333.4, subd. (a)) is subject to the limitation thereby created only “if ․ [t]he injured person was the owner of a vehicle involved in the accident and the vehicle was not insured” or “if ․ [t]he injured person was the operator of a vehicle involved in the accident and the operator can not establish his or her financial responsibility as required by the financial responsibility laws of this state.”  (§ 3333.4, subds. (a)(2), (a)(3), italics added.)

 Statutes adopted by initiative are interpreted according to the same rules governing the interpretation of statutes enacted by the legislature.  (Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 540, 277 Cal.Rptr. 1, 802 P.2d 317.)   The determinative rule here is the one that obligates us to give significance, when we can, to every word, phrase, sentence and part of the statute and to harmonize its conflicting parts.  (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1159, 278 Cal.Rptr. 614, 805 P.2d 873;  Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.)   Horwich's construction does violence to this rule by simply ignoring the words that tell us “the injured person” who cannot recover nonpecuniary damages is the person who is the “owner” or “operator” of the uninsured “vehicle” who was “involved in the accident.”   In the context of Horwich's wrongful death action, the “injured persons” are Melissa's parents (Krouse v. Graham (1977) 19 Cal.3d 59, 68, 137 Cal.Rptr. 863, 562 P.2d 1022), who were neither “the owner[s] of a vehicle involved in the accident” nor “the operator[s] of a vehicle involved in the accident.”  (§ 3333.4, subds. (a)(2), (a)(3), italics added.)   By the plain language of these subdivisions, they do not apply to the Acunas.  (Harris v. Capital Growth Investors XIV, supra, 52 Cal.3d at pp. 1159-1161, 278 Cal.Rptr. 614, 805 P.2d 873 [the doctrine of ejusdem generis (particular expressions qualify those that are general) is based on the notion that if the writer had intended the general words to be used in their unrestricted sense, he would not have mentioned the particular things or classes of things that would in such event become mere surplusage].) 4

C.

 This brings us to Horwich's contention that a plaintiff in a wrongful death action is subject to the defenses that could have been asserted against the decedent.   In some situations, that is a correct statement of the law.   In this case, it is not.

 A wrongful death action is a creature of a statute that bestows a separate right upon the heirs.  (Scroggs v. Coast Community College Dist. (1987) 193 Cal.App.3d 1399, 1403, 239 Cal.Rptr. 916.)   It is an entirely new cause of action that does not arise until the decedent's death, and it has its own period of limitations.  (Larcher v. Wanless (1976) 18 Cal.3d 646, 657, 135 Cal.Rptr. 75, 557 P.2d 507;  Garcia v. State of California (1967) 247 Cal.App.2d 814, 816, 56 Cal.Rptr. 80.)   The measure of damages is based upon the injury to the survivors caused by the loss of the decedent (Allen v. Toledo (1980) 109 Cal.App.3d 415, 423, 167 Cal.Rptr. 270), not on the injury suffered by the decedent.   In those situations where a defendant has the right to assert in a wrongful death action the defenses he would have had against the decedent, his right to a particular defense is a creature of a judicial decision based upon the circumstances of the case, the nature of the defense, or the language of the applicable statute if there is one.  (E.g., Buckley v. Chadwick (1955) 45 Cal.2d 183, 193-201, 288 P.2d 12 [the contributory negligence of the decedent as a defense in a wrongful death action was firmly established before adoption of California's wrongful death statute and must remain so until the Legislature sees fit to provide otherwise];  Salin v. Pacific Gas & Electric Co. (1982) 136 Cal.App.3d 185, 191, 185 Cal.Rptr. 899 [when a decedent's death is caused by his employment so that his exclusive remedy would have been under the Workers' Compensation Act, Labor Code section 3600 bars a wrongful death action against the employer by providing that liability for compensation by the employer as provided in the Act is “in lieu of any other liability whatsoever to any person ”].)  (Some italics added.)

Horwich says the “most closely analogous” situation arises under MICRA (§ 3333.2, the Medical Injury Compensation Reform Act of 1975), where it has been held that the $250,000 limitation imposed on nonpecuniary damages applies in wrongful death actions arising out of a health care provider's professional negligence.  (§ 3333.2.)   In our view, the language of MICRA defeats rather than supports Horwich's argument.   As relevant, section 3333.2 provides:  “(a) In any action for injury against a health care provider based on professional negligence, the injured plaintiff shall be entitled to recover noneconomic losses ․ [¶] (b) In no action shall the amount of damages for noneconomic losses exceed” $250,000.  (Italics added.)   As Division Two of our court held in Yates v. Pollock (1987) 194 Cal.App.3d 195, 199, 239 Cal.Rptr. 383, MICRA means what it says-the $250,000 limitation imposed upon noneconomic damages applies “[i]n any action” or, put another way, “[i]n no action” shall the recovery for noneconomic damages exceed that amount.

If the proponents of Proposition 213 had wanted to limit recovery in wrongful death actions arising out of the death of an uninsured motorist, all they had to do was copy the language of section 3333.2.   That they did not do.   To the contrary, they drafted language ensuring that a survivor's action would not be affected.  Section 3333.3 (which together with section 3333.4 comprises the whole of the Financial Responsibility Act of 1996) proves the point:  “In any action for damages based on negligence, a person may not recover any damages if the plaintiff's injuries were in any way proximately caused by the plaintiff's commission of any felony, or immediate flight therefrom, and the plaintiff has been duly convicted of that felony. ”  (Italics added.)   In plain English, it is only the “plaintiff [who] has been duly convicted of [the] felony” who cannot recover for injuries caused by his commission of or flight from that felony, and we do not see how anyone could with a straight face suggest that section 3333.3 bars a wrongful death action when the decedent died during the commission of a felony-which may be why Horwich fails to discuss section 3333.3 (he has not even cited it).   Since sections 3333.3 and 3333.4 were adopted at the same time and for the same purpose, and since section 3333.4 addresses three classes of plaintiffs (drunk drivers, uninsured drivers, and uninsured owners), not just one class as does section 3333.3 (felons), it is hardly surprising that section 3333.4 is a bit less precise.   It is nevertheless clear that both sections were drafted to affect the persons therein described, not survivors who might have actions if the injured persons die from their injuries.   (Harris v. Capital Growth Investors XIV, supra, 52 Cal.3d at pp. 1159-1161, 278 Cal.Rptr. 614, 805 P.2d 873.)

D.

Our interpretation of sections 3333.3 and 3333.4 is consistent with the stated intent of the Financial Responsibility Act of 1996.   As section 2 of Proposition 213 provides, “[i]nsurance costs have skyrocketed for those Californians who have taken responsibility for their actions.   Uninsured motorists, drunk drivers, and criminal felons are law breakers, and should not be rewarded for their irresponsibility and law breaking.   However, under current laws, uninsured motorists and drunk drivers are able to recover unreasonable damages from law-abiding citizens as a result of drunk driving and other accidents, and criminals have been able to recover damages from law-abiding citizens for injuries suffered during the commission of their crimes.  [¶] ․ Californians must change the system that rewards individuals who fail to take essential personal responsibility to prevent them from seeking unreasonable damages or from suing law-abiding citizens.  [¶] ․ Therefore, the People of the State of California do hereby enact this measure to restore balance to our justice system by limiting the right to sue of criminals, drunk drivers, and uninsured motorists.”  (Italics added.)   There is nary a word about survivors.

Similar information appeared in the Ballot Pamphlet, where the Legislative Analyst explained that Proposition 213 “would prohibit the recovery of noneconomic losses in certain car accidents.   Specifically, an uninsured driver or a driver subsequently convicted of driving under the influence ․ at the time of the accident could not sue someone at fault for the accident for noneconomic losses․”  (Ballot Pamphlet, Nov. 5, 1996 election, Proposition 213, Legislative Analyst's Stmt., some italics added.)   There is nary a word about survivors.  (See Kennedy Wholesale, Inc. v. State Bd. of Equalization (1991) 53 Cal.3d 245, 250, 279 Cal.Rptr. 325, 806 P.2d 1360 [official ballot pamphlets may be considered to determine voters' intent].)

E.

Our interpretation is consistent with the views expressed in the two reported decisions considering Proposition 213.   As Division Seven of our court observed in Yoshioka v. Superior Court (1997) 58 Cal.App.4th 972, 983, 68 Cal.Rptr.2d 553 (giving retroactive effect to the initiative), the electorate voted for Proposition 213 based upon generalized interests in restoring balance to our justice system and reducing the costs of mandatory automobile insurance.   More specifically, the voters wanted to curtail a system where “unreasonable damages [were] being awarded to the uninsured,” and they adopted Proposition 213 to “encourag[e] motorists to buy liability insurance.”   (Yoshioka v. Superior Court, supra, 58 Cal.App.4th at p. 983, 68 Cal.Rptr.2d 553.)   As Division Three of the First District observed in Quackenbush v. Superior Court, supra, 60 Cal.App.4th at page 466, 70 Cal.Rptr.2d 271 (following Yoshioka and rejecting various constitutional attacks on the initiative), “Proposition 213's primary classification was a division between the group of people who obey the law by purchasing automobile insurance, driving sober, and committing no vehicle-related felonies and the group of people who violate these driving-related laws and are disfavored because of their violations.”   The Acunas are not members of the group of people who violate driving-related laws.

We find nothing in Yoshiokaor Quackenbush(or elsewhere) to support Horwich's position.

DISPOSITION

The petition is denied.   The Acunas are awarded their costs of these writ proceedings.

FOOTNOTES

1.   Unless otherwise stated, all section references are to the Civil Code.

2.   Although Melissa's estate is also a plaintiff, we are concerned only with the rights of her parents.

3.   Subdivision (b) of section 3333.4 addresses the rights of insurers.   Subdivision (c) of section 3333.4 applies to uninsured owners who are injured by someone driving under the influence of alcohol or drugs.   Subdivisions (a)(1), (b) and (c) of section 3333.4 do not apply to the facts of this case.   For purposes of the Acunas' motion for judgment on the pleadings, they conceded that Melissa “did not have any personal automobile insurance or automobile insurance on the vehicle.”   There is no contention that either driver was under the influence of alcohol or drugs.   We assume, as do the parties, that Melissa was both the owner and the driver of the vehicle in which she was killed.

4.   Our holding is that section 3333.4 does not per se limit the damages recoverable in a wrongful death action, and we do not mean to say there could never be a situation in which subdivisions (a)(2) or (a)(3) of section 3333.4 would bar a wrongful death plaintiff from recovering for his or her nonpecuniary damages.   If a child is killed while driving an uninsured vehicle owned by her uninsured parent, the parent would appear to be “[t]he injured person [who] was the owner of a vehicle involved in the accident.”   Anomalies such as this are not before us.  (But see Quackenbush v. Superior Court (1997) 60 Cal.App.4th 454, 465-467, 70 Cal.Rptr.2d 271.)

MIRIAM A. VOGEL, Associate Justice.

SPENCER, P.J., and MASTERSON, J., concur.

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