April 24, 2019

Burch v. Certainteed Corporation
(April 15, 2019; A151633)

The Court of Appeal, weighing in on an issue that has divided the appellate courts, held that Proposition 51 does not eliminate an intentional tortfeasor’s joint and several liability for noneconomic damages. However, the court’s opinion will not be the final word on this issue. Last fall, the California Supreme Court granted review to decide the issue in B.B. v. County of Los Angeles, case no. S250734.

In this action, the plaintiffs sued CertainTeed Corporation, an asbestos-cement pipe manufacturer, after plaintiff contracted mesothelioma following many years of installing asbestos-cement pipe. The jury found CertainTeed liable for negligence, failure to warn, strict product liability, and intentional concealment, and assigned it 62 percent of the fault for plaintiff’s injury. The issue was whether the intentional concealment claim prevented the operation of Proposition 51 (Civil Code section 1431.2).

The trial court concluded that the intentional concealment claim barred the application of Proposition 51, leaving Certainteed liable not just for all of the economic damages and 62 percent of the noneconomic damages, but for all of the economic and noneconomic damages. The Court of Appeal affirmed, holding that Proposition 51 does not allow allocation of noneconomic damages according to a tortfeasor’s proportion of fault if the tortfeasor committed an intentional tort.