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Court of Appeal, First District, Division 2, California.

Sherrill SMOTHERS, Plaintiff and Respondent, v. GENERAL MOTORS CORPORATION, Defendant and Appellant.

No. A058191.

Decided: April 26, 1995

David M. Heilbron,Jordan C. Budd, Frank M. Hinman, McCutchen, Doyle, Brown & Enersen, San Francisco, for appellant General Motors Corp. J. Gary Gwilliam, Steven Cavalli, Gwilliam, Ivary, Chiosso, Cavalli & Brewer, Oakland, Victoria J. De Goff, Richard Sherman, De Goff and Sherman, Berkeley, for respondent Sherrill Smothers.


General Motors Corporation (GM) appeals from a judgment holding it liable under a strict products liability theory for a substantial portion of the damages incurred by Sherrill Smothers (plaintiff) when his 1984 Corvette was hit from behind.   Attempting to obtain a new trial, GM alleges several instances of reversible error.   For the reasons discussed below, we reject each of those contentions and affirm the judgment.


On November 13, 1988, plaintiff and his wife and child were driving home in their Corvette at the speed of 55 miles per hour when a car approached them from the rear.   The car, driven by one Gene Gibson (Gibson), hit plaintiff's car, causing plaintiff to lose control and the Corvette to roll over.   At the time of the collision, Gibson was intoxicated, was having trouble staying awake, and was speeding.

Plaintiff, who was wearing his seatbelt at the time of the collision, later recalled that he was able to brace himself during the roll over and never came out of his seat or hit the roof with his head.   Instead, he claims, the roof collapsed in on him.   Plaintiff's neck and spinal cord were severely damaged, and he was rendered a quadriplegic.

Plaintiff sued Gibson for negligence and GM for strict products liability.   GM and Gibson filed cross-claims against each other, claims which were still pending when the present case was tried.   Gibson admitted negligence and causing the accident but contended his negligence was not the proximate cause of plaintiff's injuries.   GM argued that (1) the Corvette roof was crashworthy and (2) the roof crush was not the cause of plaintiff's injuries.   The jury awarded plaintiff $3,100,000 in economic damages and $3,000,000 for his non-economic damages.   They apportioned liability 80% to GM and 20% to Gibson.


A. GM's Proffered Causation Instructions **

B. Evidence of Gibson's Intoxication

GM contends that the trial court committed reversible error by ruling that evidence of Gibson's intoxication at the time of the accident was irrelevant, instructing the jury to “ignore” this evidence, and preventing the jury from hearing the “true story” as to what happened on the night of the accident.   Before we turn to GM's specific contentions, we must first correct its mischaracterization of what the court did.

1. The court's ruling

The admissibility of evidence pertaining to Gibson's intoxication was challenged by Gibson's in limine motion.   GM's theory of relevance was that the evidence was admissible to prove Gibson's culpability and therefore his percentage of liability for plaintiff's injuries.   Contrary to GM's contention, the court did not rule that evidence of Gibson's intoxication was totally irrelevant.   Rather, the court analyzed the issue under section 352 of the Evidence Code and ultimately concluded that evidence of Gibson's intoxication was of “very minimal relevance and certainly the prejudicial effect far outweighs its relevance.”   GM was not precluded from introducing any of the other evidence pertaining to the so-called “true story” of Gibson's conduct or the circumstances surrounding the accident.

The court also expressly stated that GM was free to show the intoxication evidence was relevant to some other point.   Indeed, the court ultimately permitted GM to admit intoxication evidence as relevant to the issue of Gibson's perceptions at the time of the accident.5  Again contrary to GM's contention, the court did not instruct the jury to ignore the evidence of Gibson's drinking.   Rather, consistent with its prior rulings, the court instructed the jury to consider such evidence for the “limited purpose concerning Defendant Gibson's ability to observe and react at the time of this accident.”

2. Standard of review

Section 352 of the Evidence Code provides:  “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”   A trial court's ruling under Evidence Code section 352 “will be upset only if there is a clear showing of an abuse of discretion.”  (Aguayo v. Crompton & Knowles Corp. (1986) 183 Cal.App.3d 1032, 1038, 228 Cal.Rptr. 768.)

“In reviewing the exercise by the trial court of its discretion, under Evidence Code section 352, an appellate court is neither authorized nor warranted to substitute its judgment for that of the trial judge.   Relief is available only where the alleged abuse of discretion clearly constitutes a miscarriage of justice.  [Citations.]”  (Cain v. State Farm Mut. Auto Ins. Co. (1975) 47 Cal.App.3d 783, 798, 121 Cal.Rptr. 200;  see also 9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 275, p. 286.)

3. Relevance

GM cites two California cases for its contention that Gibson's intoxication is directly relevant to his degree of culpability.  (See Sagadin v. Ripper (1985) 175 Cal.App.3d 1141, 221 Cal.Rptr. 675;  Blake v. Moore (1984) 162 Cal.App.3d 700, 208 Cal.Rptr. 703).6  These cases, which involve strikingly different factual situations, support the general proposition that a plaintiff's intoxication is relevant when there is an issue as to whether he was negligent and therefore partially responsible for the accident which injured him.  (Ibid.)  In the present case, by contrast, Gibson admitted negligence and sole responsibility for causing the accident.

 If an issue has been removed from the case by an admission or concession of liability, it is error to receive evidence which is relevant solely to that settled issue.  (Fuentes v. Tucker (1947) 31 Cal.2d 1, 5, 187 P.2d 752.)   This is so even if “the party offering the evidence is deprived of an important tactical advantage.   Indeed, where the evidence is not relevant to any real issue, the advantage sought to be gained by its presentation must be recognized as unfair.”  (Albrecht v. Broughton (1970) 6 Cal.App.3d 173, 178, 85 Cal.Rptr. 659.)   Thus, authority recognizing that intoxication evidence is relevant to prove negligence does not establish the relevancy of the intoxication evidence in the present case because Gibson's negligence was not a disputed issue.7

GM cites one California case which, although it does not deal with intoxication, addresses the issue of apportioning fault when one party concedes negligence.  (Blecker v. Wolbart (1985) 167 Cal.App.3d 1195, 213 Cal.Rptr. 781.)  Blecker was an indemnity action by a women who collided with a motorcyclist.   The motorcyclist suffered a broken arm and leg and died during surgery to repair his leg.   In plaintiff's indemnity action against the anesthesiologist, the trial court accepted plaintiff's concession that she was negligent in causing the motorcycle accident and, therefore, precluded defendant from presenting evidence of the collision other than a description of the injuries the motorcyclist suffered.  (Id. at p. 1200, 213 Cal.Rptr. 781.)   The Court of Appeal held this was error.

The Blecker court reasoned that “ ‘the equitable indemnity doctrine originated in the common sense proposition that when two individuals are responsible for a loss, but one of the two is more culpable than the other, it is only fair that the more culpable party should bear a greater share of the loss.’ ”  (Blecker v. Wolbart, supra, 167 Cal.App.3d at p. 1204, 213 Cal.Rptr. 781)  According to the court, “the conduct of concurrent tortfeasors must be considered by the jury in ascertaining fault (and therefore liability) even though ‘a jury cannot be expected to determine the precise relationship between fault and liability in applying the doctrine of comparative fault.’  [Citations.]”  (Ibid.)   Evidence of plaintiff's conduct was relevant to this determination because she did not stipulate as to her percentage of fault, the very issue the jury was to determine:  “Plaintiff cannot remove from the jury's consideration her degree of fault by ‘stipulating’ she was at fault to an unknown degree.”  (Ibid.)

Although Blecker is theoretically supportive of GM's position, it is factually inapposite.   The Blecker trial court precluded defendant from introducing any evidence of the plaintiff's conduct.   By contrast, GM was free to introduce evidence of Gibson's conduct and the circumstances surrounding the accident;  the only evidence that was limited as to its admission related to Gibson's intoxication.   Further, there is no indication in Blecker that admitting evidence of plaintiff's conduct could unfairly prejudice her;  indeed, the case does not mention much less discuss Evidence Code section 352.   Thus, even if we characterize Gibson's drinking as “conduct” relevant to the apportionment issue under Blecker, that case does not assist us in evaluating the court's exercise of discretion under section 352.

GM also directs our attention to Amend v. Bell (1977) 89 Wash.2d 124, 570 P.2d 138, a personal injury action arising from an intersection collision.   Defendant admitted that his failure to yield the right of way was a proximate cause of the accident but alleged plaintiff's negligence was also a proximate cause of her injuries.  (Id., 570 P.2d at p. 140.)   The Amend court ruled the trial court erred by excluding evidence of defendant's intoxication and the speed at which he was driving.   According to the court “in a comparative negligence setting a defendant [cannot] shield his total alleged acts of negligence from the jury by admitting to one act of negligence while exposing all of the blameworthy conduct of the plaintiff.”  (Id., 570 P.2d at p. 142.)  Amend illustrates that intoxication evidence is relevant to the issue of apportioning liability for causing an automobile accident between two negligent drivers.   However, the present case did not involve two negligent drivers, nor was there any dispute that Gibson's negligence was the sole cause of the collision between Gibson and plaintiff.

The crux of GM's argument is that the intoxication evidence was relevant because California's comparative fault system apportions liability not solely by apportioning responsibility for causing the injury, but also by comparing the parties' moral blameworthiness and culpability.   Therefore, GM contends, Gibson's drinking was relevant—notwithstanding the fact that he admitted negligence—to the issue of his moral culpability.   To support its position, GM extracts phrases such as “more culpable party,” “fault,” “blameworth [iness],” “responsibility” and “wrongdoing” from cases which, for the most part, are factually irrelevant to the present issue.   We decline to draw any conclusion from the various terms used in the cases to refer to the process by which liability is apportioned among multiple tortfeasors.   Indeed, plaintiff identified comparable terms and phrases from the same or similar cases to rebut GM's contentions.

 At oral argument, the parties maintained diametrically opposing views regarding the fundamental purpose of our comparative fault system.   GM took the position that the only goal is to apportion fault in the sense of moral blameworthiness while plaintiff argued that our system apportions liability according to cause, not blame.   After considering the relevant case law and the parties' arguments, we conclude that the primary goal of comparative fault in this specific context (i.e., a mixed negligence/strict liability case) is to apportion liability according to responsibility for causing the injury in question.

In Li v. Yellow Cab Co. of California (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, our Supreme Court discarded the rule of contributory negligence and adopted a “system of ‘pure’ comparative negligence, the fundamental purpose of which shall be to assign responsibility and liability for damage in direct proportion to the amount of negligence of each of the parties.”  (Id. at p. 829, 119 Cal.Rptr. 858, 532 P.2d 1226.)   The Court subsequently held that principles of comparative fault also apply in strict liability cases.  (Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162.)

In Daly, the family of a man killed in a single-car accident brought a strict products liability action against GM and others.   Defendants were permitted to introduce evidence that the decedent had not used a seat belt or locked his car door and that he was intoxicated.   The Daly court reversed a judgment for the defendants, holding the evidence was inadmissible but setting down a new rule of comparative liability for future cases.   The Daly court made three observations about the procedure by which one party's negligence is compared to another party's strict liability which we find pertinent to the issue before us today.

First, the Daly court found that applying comparative principles would not frustrate the goals underlying the laws of strict liability because “[d]efendant's liability for injuries caused by a defective product remains strict.   The principle of protecting the defenseless is likewise preserved, for plaintiff's recovery will be reduced only to the extent that his own lack of reasonable care contributed to his injury.”  (Daly v. General Motors Corp., supra, 20 Cal.3d at p. 737, 144 Cal.Rptr. 380, 575 P.2d 1162, emphasis added.)   Second, the court emphasized that a manufacturer's incentive to produce safe products would not be reduced or removed because “[t]he manufacturer's liability, and therefore its incentive to avoid and correct product defects, remains;  its exposure will be lessened only to the extent that the trier finds that the victim's conduct contributed to his injury.”   (Ibid., emphasis added.)   Finally, although the Daly majority concluded that jurors can fairly apportion liability by comparing a plaintiff's negligence with a defendant's strict liability (Id. at p. 738, 144 Cal.Rptr. 380, 575 P.2d 1162), several members of the court acknowledged the practical difficulties inherent in such an exercise.  (Id. at p. 748, 144 Cal.Rptr. 380, 575 P.2d 1162 [conc. opn. of Clark, J.], p. 751, 144 Cal.Rptr. 380, 575 P.2d 1162 [conc. and dis. opn. of Jefferson, J.], p. 763, 144 Cal.Rptr. 380, 575 P.2d 1162 [dis. opn. of Mosk, J.].)

Implicit in Daly, therefore, is the concept that the problems inherent in comparing evidence of negligence with evidence of strict liability can be diminished by focusing on the cause of the plaintiff's injuries.8  This concept is crucial to our analysis because, as discussed below, we believe it was within the trial court's discretion to determine that admitting evidence of Gibson's intoxication would likely have impaired the jury from making an objective determination of the cause or causes of plaintiff's injuries in the present case.

4. Prejudice

“The ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.   In applying section 352, ‘prejudicial’ is not synonymous with ‘damaging’.”  (People v. Karis (1988) 46 Cal.3d 612, 638, 250 Cal.Rptr. 659, 758 P.2d 1189.)

 The primary issue in this case was the cause of plaintiff's injuries, and the jury's resolution of that issue directly impacted its apportionment of liability between the defendants.   GM contended that the accident caused plaintiff's injuries regardless of any defect.   Plaintiff and Gibson argued that plaintiff's injuries from the accident would have been minor if not for the defective roof.   Admitting the intoxication evidence would pose a significant danger of inflaming the jury against Gibson, thus rendering it less likely to render an objective determination as to this issue.

GM essentially concedes the intoxication evidence would evoke an emotional bias against Gibson, contending that such a reaction is somehow warranted.   GM's reliance on Swajian v. General Motors Corp. (1st Cir.1990) 916 F.2d 31, is misplaced.   In Swajian, plaintiff's wife died from injuries incurred when she lost control of her car and was thrown from it.   Plaintiff alleged the accident was caused by a defective right rear axle.   Defendant contended the sole cause of the accident was driver error as a result of decedent's intoxication.  (Id. at p. 33.)   The First Circuit held the trial court committed reversible error by excluding all evidence of intoxication as unduly prejudicial.  (Id. at pp. 34–35.)

Comparing the facts of Swajian to the present case highlights a crucial distinction GM fails to recognize.   In Swajian, the cause of the loss of control of the decedent's vehicle was “the ultimate issue in the case.”   (Swajian v. General Motors Corp., supra, 916 F.2d at p. 34.)   Here, the cause of the accident is not an issue at all.   The ultimate issue in this case was the cause of plaintiff's injuries.   In Swajian, excluding the intoxication evidence left the jury with no explanation for the accident other than the design defect allegations.  (Ibid.)  Here, the jury did not need to determine the cause of the accident because Gibson conceded responsibility for it.   In Swajian, the probative value of the intoxication evidence was so high because it could have led the jury to conclude that driver error contributed to or caused the accident and any prejudice was directly related to the fact that the evidence was so relevant to the ultimate issue in the case.   (Ibid.)  In this case, the cause of the accident was a non-issue and the intoxication evidence was not relevant to the ultimate issue, i.e., the cause of plaintiff's injuries.   Admitting the evidence would likely have prevented the jury from making a fair determination of that issue.

GM's contention that any prejudice associated with the intoxication evidence is not undue because the jury should apportion liability according to moral blameworthiness ignores two important facts.   First, GM's own liability is based on strict liability, which does not consider blameworthiness and thus provides no basis for comparison or apportionment.  (See generally Barker v. Lull Engineering Co., Inc. (1978), 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443.)   Second, the liability being apportioned is for compensatory, not punitive damages.   It was not the jury's role to punish Gibson or make an example of him.  (See, e.g., BAJI 14.61, an instruction given in this case.)   If we accept GM's characterization of moral blameworthiness as relevant even when divorced from the issue of causation, we permit the jury to punish the negligent tortfeasor and grant the strictly liable defendant an unwarranted windfall.   Permitting the jury to attribute a greater percentage of liability to Gibson than he was in fact responsible for causing would punish Gibson and simultaneously excuse GM of liability for damages it caused, in direct contravention of the principles of strict liability.

We conclude that, to the extent evidence of Gibson's intoxication was relevant to the issue of apportioning liability, the trial court did not abuse its discretion by concluding that the probative value of this evidence was outweighed by the danger of undue prejudice.


H. Prejudgment Interest

GM contends the trial court erred by awarding plaintiff prejudgment interest on the entire amount of the judgment pursuant to section 3291 of the Civil Code (hereafter section 3291).   According to GM section 3291 authorizes pre-judgment interest only with respect to pre-judgment damages.20  Section 3291 provides, in part:

“In any action brought to recover damages for personal injury sustained by any person resulting from or occasioned by the tort of any other person, corporation, association, or partnership, whether by negligence or by willful intent of the other person, corporation, association, or partnership, and whether the injury was fatal or otherwise, it is lawful for the plaintiff in the complaint to claim interest on the damages alleged as provided in this section.  [¶] If the plaintiff makes an offer pursuant to Section 998 of the Code of Civil Procedure which the defendant does not accept prior to trial or within 30 days, whichever occurs first, and the plaintiff obtains a more favorable judgment, the judgment shall bear interest at the legal rate of 10 percent per annum calculated from the date of the plaintiff's first offer pursuant to Section 998 of the Code of Civil Procedure which is exceeded by the judgment, and interest shall accrue until the satisfaction of judgment.”

 “Courts generally agree that the purpose of section 3291 is to provide a statutory incentive to settle personal injury litigation where plaintiff has been physically as well as economically impaired.”  (Gourley v. State Farm Mut. Auto Ins. Co. (1991) 53 Cal.3d 121, 126, 3 Cal.Rptr.2d 666, 822 P.2d 374.)  “[T]he bottom line of Civil Code section 3291 is to guarantee the plaintiff interest and to penalize the defendant in appropriate situations.”  (Morin v. ABA Recovery Service, Inc. (1987) 195 Cal.App.3d 200, 207, 240 Cal.Rptr. 509, disapproved on another point in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664, 25 Cal.Rptr.2d 109, 863 P.2d 179.)   If the statutory conditions are met, application of section 3291 is mandatory in order to further its “manifest purpose” of encouraging settlements.  (Morin v. ABA Recovery Service, Inc., supra, 195 Cal.App.3d at p. 206, 240 Cal.Rptr. 509.)

GM contends that Lakin v. Watkins Associated Industries, supra, 6 Cal.4th 644, 25 Cal.Rptr.2d 109, 863 P.2d 179 (hereafter Lakin ) squarely supports its contention that section 3291 applies only to prejudgment damages.   In Lakin, the Supreme Court reversed a trial court order denying plaintiff prejudgment interest under section 3291 for her emotional distress damages.21  To assist the trial court on remand, the Lakin court also addressed and ultimately adopted the defendants' contention that section 3291 does not authorize an award of prejudgment interest on punitive damages in personal injury cases.  (Id. at p. 662, 25 Cal.Rptr.2d 109, 863 P.2d 179.)

The Lakin court disapproved a contrary line of authority interpreting the phrase in section 3291 providing that “the judgment shall bear interest” as encompassing both compensatory and punitive damages since there is only one judgment.  (See, e.g., Greenfield v. Spectrum Investment Corp. (1985) 174 Cal.App.3d 111, 125, 219 Cal.Rptr. 805.)   According to the Lakin court, the quoted language is not dispositive but is limited by the operative language in the first paragraph of section 3291 which “restricts the availability of prejudgment interest to ‘damages for personal injury.’ ”  (Lakin, supra, 6 Cal.4th at p. 663, 25 Cal.Rptr.2d 109, 863 P.2d 179.)

Thus the issue, according to the court, was whether punitive damages are damages for personal injury.  (Lakin, supra, 6 Cal.4th at p. 663, 25 Cal.Rptr.2d 109, 863 P.2d 179)  The court found nothing in the language of section 3291 or its legislative history to suggest that punitive damages were intended to be included as damages for personal injuries.   Further, the court concluded that awarding interest on a punitive award would not serve (1) the specific statutory purpose of section 3291 to encourage settlements or (2) the general purpose of prejudgment interest statutes, to compensate the plaintiff for the loss of money during the prejudgment period.  (Id. at pp. 664–665, 25 Cal.Rptr.2d 109, 863 P.2d 179.)   Since awarding prejudgment interest on punitive damages would give a windfall to the plaintiff, the court concluded the Legislature would have explicitly authorized the inclusion of punitive damages if that was its intent.  (Ibid.)

 Lakin does not resolve the issue GM raises here.   By contrast to punitive damages, the future damages awarded to plaintiff in the present case are undeniably damages for personal injury.   Thus, they clearly fall within the restrictions set forth in section 3291.   In addition, awarding pre-judgment interest on the entire amount of the compensatory award furthers the manifest purpose of section 3291, to promote early settlement in personal injury actions such as this.   By contrast, limiting section 3291 as GM proposes would remove such a significant portion of the incentive to settle that it might well undermine the primary goal of this statute.

GM would have us isolate a fragment of the Lakin analysis and, from it, extrapolate a general rule that section 3291 applies only to damages actually incurred prior to judgment.22  But that is not what the Lakin court said.   Rather, the court stated that section 3291 interest is limited to damages for personal injury.

Neither party had cited any authority which expressly addresses whether section 3291 applies to future damages, and we find none.23  By the same token, we have found no instance in which a court faced with a section 3291 issue has questioned whether interest could be had on future damages.   To the contrary, courts apparently assume such damages bear interest.  (See, e.g., Bihun v. AT & T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 16 Cal.Rptr.2d 787 [applying section 3291 to judgment which included damages for future lost earnings and emotional distress];  Greenfield v. Spectrum Investment Corp., supra, 174 Cal.App.3d 111, 117, 123, 219 Cal.Rptr. 805 [granting prejudgment interest on compensatory award which included damages for permanent disabling injury].) 24  Indeed, the Lakin court held that section 3291 applied to plaintiff's emotional distress damages without suggesting any distinction between pre and postjudgment distress.  (Lakin, supra, 6 Cal.4th at pp. 659–661, 25 Cal.Rptr.2d 109, 863 P.2d 179.)

 GM argues that awarding prejudgment interest on postjudgment damages that have been discounted to present value as of the date of judgment (rather than the date of injury) gives the plaintiff a double interest recovery.   Implicit in this argument is the assumption that plaintiff does not become entitled to future damages (reduced to present value as of the date of judgment) until the date of the judgment itself.   This assumption is inconsistent with the language and purpose of section 3291.   The theory of section 3291 is that plaintiff is entitled to have his personal injury damages as of the date of the section 998 offer.   One portion of those damages is future losses valued as of the date of judgment.   By requiring a defendant to pay interest as of the offer date on an award calculated as of the judgment date, section 3291 effectuates its purpose of encouraging early settlements in appropriate cases.

For the foregoing reasons, we reject GM's contention that the trial court erred by awarding prejudgment interest on the total judgment in this case.


The judgment is affirmed.


FOOTNOTE.   See footnote *, ante.

5.   Gibson testified that he drank “a couple” of 22 or 24 ounce cans of Foster's Lagers between 1:00 and 2:00 a.m. on the morning of the accident.   He also admitted that his alcohol consumption slowed down his driver reaction time and made him sleepy.

6.   GM also cites Weddle v. State of California (1983) 191 Cal.Rptr. 819.   The Supreme Court ordered that Weddle v. State of California not be officially published.   GM's citation to and reliance on this case directly violates rule 977 of the California Rules of Court.

7.   For the same reason, the authority from other jurisdictions upon which GM relies does not support its position.  (See Harvey v. General Motors Corp. (10th Cir.1989) 873 F.2d 1343, 1354;  McInnis v. A.M.F., Inc. (1st Cir.1985) 765 F.2d 240, 246;  Halvorsen v. Ford Motor Co. (1987) 132 A.D.2d 57, 522 N.Y.S.2d 272, 275.)   In each of these cases, the party against whom the intoxication evidence was offered disputed that his or her negligence contributed to or caused the accident in question.   (Ibid.)

8.   GM's misplaced reliance on Daly and other cases it cites to this court perhaps derives from its erroneous belief that the mere use by a court of terms such as “fault” establishes that fault means moral culpability.   The flaw in this reasoning is illustrated in Pan–Alaska, Etc. v. Marine Const. & Design Co. (9th Cir.1977) 565 F.2d 1129, one of the cases relied on by GM at oral argument.   In that case, the court stated:  “We do note in passing that perhaps the term ‘comparative causation’ [citation] is a conceptually more precise term than ‘comparative fault’ since fault alone without causation does not subject one to liability.”   (Id. at p. 1139.)   Consistent with our analysis, the Pan–Alaska court held that a “defendant is strictly liable for the harm caused from his defective product, except that the award of damages shall be reduced in proportion to the plaintiff's contribution to his own loss or injury.”   (Ibid.)

FOOTNOTE.   See footnote *, ante.

20.   Initially, GM also contended that the court erred by awarding prejudgment interest on non-economic damages.   However, GM expressly withdrew this argument in its reply brief.

21.   Lakin was a negligence and emotional distress action arising out of an automobile accident.   After the jury returned a verdict for plaintiff, the trial court denied her motion for prejudgment interest.   The Supreme Court reversed.   The court held that plaintiff's claims of emotional distress, which were at the heart of her case, established that this was an action to recover for damages for personal injury.   However, because plaintiff claimed property damage as well as emotional distress damages, it was her burden to prove what portion of her award was “damages for personal injury” eligible for prejudgment interest under section 3291.  (Lakin, supra, 6 Cal.4th at pp. 659–661, 25 Cal.Rptr.2d 109, 863 P.2d 179.)

22.   GM ignores the practical difficulties with applying the rule it proposes:  The trier of fact would have to apportion all personal injury damages into past and future damages.   This task would be especially speculative, if not impossible, with respect to non-economic damages such as pain and suffering.   Further, GM suggests that, to truly achieve its goal of awarding only that interest necessary to compensate a plaintiff for loss of use, prejudgment interest would have to be awarded not from any fixed date but from the date the damage is incurred.   We cannot conceive of how such a rule could be implemented in personal injury cases such as this, where the types of damages caused are numerous and their effects ongoing.

23.   All of the other authority upon which GM relies pertains to prejudgment interest statutes which do not have the same language or legislative purpose as section 3291.

24.   Contrary to GM's contention, Lakin did not overrule these cases, but only disapproved them to the extent they concluded that punitive damages were subject to prejudgment interest.  (Lakin, supra, 6 Cal.4th at p. 664, 25 Cal.Rptr.2d 109, 863 P.2d 179.)

HAERLE, Associate Justice.

SMITH, Acting P.J., and PHELAN, J., concur.

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Docket No: No. A058191.

Decided: April 26, 1995

Court: Court of Appeal, First District, Division 2, California.

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