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Filed 8/23/02
CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

RICHARD DONALDSON,

Plaintiff and Appellant,
A092876/A093705
v.

(San Francisco County
NATIONAL MARINE, INC.,
Super. Ct. No. 998145)

Defendant and Respondent.

National Marine, Inc., appeals from a judgment, entered after a jury trial, awarding
Richard Donaldson $1,616,400 on an action for the wrongful death of Donaldson's
adoptive father, Albert Pavolini.
FACTUAL/PROCEDURAL BACKGROUND

Mr. Pavolini spent his adult working life on or around boats and ships. He served
in the Navy from 1942 until 1964. He worked for Military Sea Transport from 1966 to
1967, he worked for National Marine (then Cardinal Carriers) from 1967 to 1981 and he
worked for other private shipping companies from 1980 until he retired, a few years later.
Mr. Pavolini's duties both for the Navy and for the private shipping companies included
installing or repairing insulation around pipes and waterlines, and it is undisputed that
Mr. Pavolini was exposed to asbestos during his Naval career, and later, while working
for the private companies. Mr. Pavolini also began smoking at age 16, and smoked until
1984.

* Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified
for publication with the exception of parts II and III.

1

In May 1997, Mr. Pavolini was diagnosed with lung cancer. He died in 1998 of
complications resulting from the cancer.

These proceedings began prior to Mr. Pavolini's death, when Mr. Pavolini filed
suit against multiple defendants, including several tobacco companies, on the theory that
his lung cancer was caused by a combination of his use of tobacco and his exposure to
asbestos during his naval career and his employment with the private companies.
Although it is not clear from the record, it appears that the defendants originally included
companies that manufactured or supplied products containing asbestos to the Navy or to
the private shipping companies. In all events, the parties ultimately stipulated to orders
severing the tobacco defendants from the asbestos defendants for separate trial.

In the case against the tobacco defendants, the trial court sustained a demurrer to
the complaint without leave to amend, and entered judgment in favor of the tobacco
defendants. Mr. Pavolini appealed. We consolidated that appeal with a second appeal,
filed by Edwin Brigham. (A084371 and A084367.) After Mr. Pavolini died, on July 17,
1988, we permitted his adoptive son, Richard Donaldson,1 to substitute for Mr. Pavolini.
(Mr. Brigham also died while the appeal was pending, and we permitted Joseph Naegele
and David Wheeler as co-trustees of the Edwin Naegele trust, and Alicia Ojeda Brigham,
to substitute for Mr. Brigham.) We affirmed the judgment of the trial court in both cases,
finding that the tobacco defendants were immune from suit under the version of Civil
Code section 1714.45 in effect at the time Mr. Pavolini's causes of action accrued.2
(Naegele v. R.J. Reynolds Tobacco Co. (2000) 81 Cal.App.4th 503.) Donaldson did not
seek review of our decision, but the Supreme Court granted review in Naegele, and has
reversed our decision in that case. (Naegele v. R.J. Reynolds Tobacco Co. (Aug. 5, 2002,
SO90402) ____ Cal.4th ____.)

1
Pavolini was the stepfather of Donaldson and his brother, Larry Donaldson, but
did not formally adopt Donaldson until shortly before his death. Larry Donaldson passed
away before these proceedings.
2
Civil Code section 1714.45 bars actions for damages due to injuries or death
resulting from the use of specified consumer products.

2

In the meantime, on September 25, 1999, Donaldson filed suit against National
Marine, Inc., as the successor to Cardinal Carriers, seeking damages for Mr. Pavolini's
death under the Jones Act, title 46 United States Code section 688, and under the
maritime doctrine of unseaworthiness. National Marine moved to dismiss the case
against it on the theory that the San Francisco Superior Court lacked subject matter
jurisdiction over Donaldson's maritime claims because Mr. Pavolini's work for Cardinal
Carriers took place outside of California's territorial waters. The motion was denied, and
the matter went to trial.

At trial, National Marine did not dispute that Mr. Pavolini died of lung cancer. It
defended on the theory that Mr. Pavolini's lung cancer was not related to his exposure to
asbestos, but resulted from his history of smoking tobacco. National Marine also
theorized that even if Mr. Pavolini's exposure to asbestos was a factor in his lung cancer,
tobacco was a greater factor. Finally, it argued that in all events Mr. Pavolini's exposure
to asbestos during his naval career was far greater than his exposure to asbestos while
working for Cardinal Carriers.3

The jury rejected Donaldson's unseaworthiness claims. It found, however, that
National Marine was negligent under the Jones Act, and that its negligence was a cause
of Mr. Pavolini's death. The jury further fixed the damages for Mr. Pavolini's death at
$1,796,000, and apportioned fault between Mr. Pavolini, National Marine, the Navy and
the tobacco companies, at 10 percent for Mr. Pavolini, and 30 percent each for National
Marine, the Navy and the tobacco companies.

National Marine appealed from the judgment, entered on the jury's verdict, of "at
least $538,800.00."

3
Donaldson did not bring suit against the Navy, and National Marine did not cross-
complain against the Navy, apparently because all parties believed the Navy to be
immune from Donaldson's claims. It also appears that although Donaldson's complaint
named only National Marine and its predecessors, at least some of the other asbestos
defendants were involved in the proceedings as late as May 23, 2000. It does not appear
that National Marine cross-complained against these other defendants.

3

The trial court later denied National Marine's motions for a new trial and for
judgment notwithstanding the verdict, but granted Donaldson's motion to amend the
judgment to make National Marine liable for 90 percent of the jury's verdict. The court
found that the Navy and the tobacco companies were immune from Donaldson's claims,
and that National Marine, accordingly, was liable for the full amount of damages, less the
10 percent attributable to Mr. Pavolini's fault. The court therefore corrected its judgment
to increase Donaldson's award against National Marine to $1,616,400.

National Marine filed a second appeal from the court's order. The appeals have
been consolidated, and we consider both here.
DISCUSSION
I.
Subject Matter Jurisdiction4

National Marine contends that the San Francisco Superior Court lacked subject
matter jurisdiction over Donaldson's claims, and that the trial court, accordingly, erred in
denying National Marine's motion to dismiss. The contention is based on an
interpretation of maritime law, and a split in California authority as to whether the State's
courts have subject matter jurisdiction over actions brought for the death of a seaman
outside of the State's territorial waters. After reviewing the historical development of
maritime law and its application to actions for negligence and wrongful death, we
conclude that California's courts do indeed have subject matter jurisdiction over such
actions, even when the actionable wrong or the death occurred outside of the State's
territorial limits.

It is well-settled that state courts are competent to try civil maritime suits for
injuries to seamen, although they will be required to apply federal maritime law to the
seaman's claims. (See, e.g., Engel v. Davenport (1926) 271 U.S. 33.) At first, however,
maritime law afforded no cause of action for wrongful death. (The Harrisburg (1886)

4
It is not contested that the superior court had personal jurisdiction over National
Marine.

4

119 U.S. 199, 214.) In addition, although the point later was questioned in Moragne v.
States Marine Lines (1970) 398 U.S. 375, 377-388), it was believed that no federal
common law action for wrongful death existed in the United States. Plaintiffs seeking
damages as a result of the wrongful death of a seaman, therefore, were relegated to such
relief as might be available under a state's wrongful death statute. (Moragne v. States
Marine Lines, supra, 398 U.S. 375, 377; The Tungus v. Skovgaard (1959) 358 U.S. 588,
590-591.)

In 1920, however, Congress passed two landmark acts: (1) The Death on the High
Seas Act, title 46 United States Code sections 761 et seq. (DOSHA), which established
an action for a death occurring beyond a marine league from the shore of any state, and
(2) the Jones Act, title 46 United States Code section 688, which extended the protections
of the Federal Employers' Liability Act (FELA) to seamen, and thereby provided a right
of recovery against employers for negligence resulting in injury or death. (46 U.S.C. ��
688, 761; Moragne v. States Marine Lines, supra, 398 U.S. at p. 394.) Problems arose
when suit was brought not for negligence, but for unseaworthiness, and the death
occurred within a state's territorial waters. In such cases, the death was not covered by
DOSHA, which was limited to deaths occurring on the high seas, or by the Jones Act,
which was limited to actions arising from negligence. If recovery could be had for such
claims, therefore, it still could be had only under state wrongful death statutes, a situation
that fostered a lack of consistency in the adjudication of wrongful death claims.
Moreover, because the Jones Act preempts state law remedies for the death or injury of a
seaman, state statutes could provide no relief to true seamen, with the result that, within a
state's territorial waters, recovery was available under a state's wrongful death statute for
the death of a longshoreman but not for the death of a Jones Act seaman. (Miles v. Apex
Marine Corp. (1990) 498 U.S. 19, 25; Moragne v. States Marine Lines, supra, 398 U.S.
at pp. 395-396.)

The Supreme Court, in Moragne, remedied the situation by overruling The
Harrisburg, and creating a general maritime remedy for wrongful death. (Moragne v.
States Marine Lines, supra, 398 U.S. at p. 409; and see also Miles v. Apex Marine Corp.,

5

supra, 498 U.S. at pp. 25-27.) After Moragne, the Jones Act provided a cause of action
for the negligent death of a seaman, irrespective of the place at which the injury occurred
or the death took place. In addition, DOSHA provided a cause of action for wrongful
death on the high seas, and a general maritime remedy existed for wrongful death caused
by unseaworthiness, also irrespective of the location of the injury or death.

That these causes of action exist, of course, does not mean that a state court has
subject matter jurisdiction to entertain them. Article III, section 2 of the United States
Constitution confers jurisdiction on the federal courts to hear "all cases of admiralty and
maritime jurisdiction." Title 28 United States Code section 1333, part of the Judiciary
Act of 1789, provides that the district courts "shall have original jurisdiction, exclusive of
the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction,
saving to suitors in all cases all other remedies to which they are otherwise entitled."
(Italics added.) Thus, the federal courts have exclusive jurisdiction over civil maritime
cases unless the remedy is one that is saved to suitors.

National Marine, citing Chromy v. Lawrance (1991) 233 Cal.App.3d 1521,
contends that the savings to suitors clause permits state courts to entertain admiralty or
maritime actions only if the state's wrongful death statute provides a remedy for that
action. The contention assumes that the term "remedy," for purposes of the clause,
means that the state's wrongful death statute must itself establish the right to sue for the
death at issue. California's wrongful death statutes, Code of Civil Procedure section
377.10 et seq., do not specifically establish a right to sue for maritime deaths occurring
outside of the state's territorial limits. Mr. Pavolini died in Tennessee, of injuries alleged
to have been received, in part, while working for National Marine as a seaman on or
around the Mississippi River. It follows, under National Marine's analysis, that
California's wrongful death statute cannot provide a basis for the exercise of state court
subject matter jurisdiction over Donaldson's maritime claim.

National Marine's contention, however, is based on two premises that we reject:
(1) that California's wrongful death statutes do not apply to deaths occurring outside of
the State's territories; and (2) that title 28 United States Code section 1333 allows state

6

courts to entertain only those rights of action specifically recognized by the state in
question.

Although California's wrongful death statutes do not specifically apply to deaths
occurring outside of California's territories, there is no question but that its courts have
subject matter jurisdiction over out-of-state injuries or deaths, assuming a basis for the
exercise of personal jurisdiction over the parties. Nothing in the wrongful death statutes
suggests that they are limited to deaths on waters only when those waters exist within the
state's territorial limits.5 It is true that state courts traditionally have been reluctant to
provide a remedy for a maritime death occurring outside of the state's territorial waters.
(See Miles v. Apex Marine Corp. (1990) 498 U.S. 19, 24-25; Moragne v. States Marine
Lines, supra, 398 U.S. at p. 393, including fn. 10; and The Hamilton (1907) 207 U.S.
398.) This reluctance, however, arises from issues of choice of law rather than from
issues of the competence of a state court to hear the claim. The reasoning is that because
the remedy of wrongful death is a creature of statute, not recognized in all jurisdictions, it
would be improper to impose it on a claim arising in a jurisdiction that does not itself
recognize that remedy.

This point was discussed in McDonald v. Mallory et al. (1879) 77 N.Y. 546, a case
often cited for its discussion of the reach of state wrongful death statutes. A vessel,
registered in New York, was destroyed by fire while anchored on the high seas, outside
of the territory of any jurisdiction. A citizen of New York was killed as a result of the
fire, and an action for wrongful death was brought in the New York state court. The
defendant argued that New York's statute provided no right of action to recover for
wrongs committed outside of the state's territorial limits. The court recognized, as is
particularly relevant here, that as a general rule, the law of the jurisdiction where an
accident occurred applies to any claim arising from that accident. This meant that if an

5
Contrast the situation where the exercise of personal jurisdiction over a defendant
is based on an act committed by that defendant in the forum state, or where the presence
of real or personal property within the state's boundaries provides a basis for jurisdiction
in rem or quasi in rem. (See Hanson v. Denckla (1958) 357 U.S. 235, 246-247, 251.)

7

accident took place in a jurisdiction that did not recognize a claim for wrongful death, the
State Court of New York, applying the law of the jurisdiction in which the accident
occurred, would not provide a remedy for wrongful death. The court reversed, in
essence, that it should apply the law of the jurisdiction where the death occurred. It did
not find that it lacked competence to hear a claim arising from a death resulting from a
wrong committed outside of the state's territorial waters. (Id. at pp. 550-551.)6 The
court also recognized that a vessel while at sea constructively is part of the territory of the
state to which the vessel belongs, and subject to that state's laws. (Id. at pp. 552-553.) It
concluded that the New York wrongful death statute applied unless it was displaced by
the law of the jurisdiction where the wrong occurred. As the claim arose on the high
seas, outside of any state's territorial waters, and as maritime law at that time did not
provide an exclusive remedy for a death occurring on the high seas, the court found that
the New York statute applied. (Id. at p. 556.) It also found that the state court had
jurisdiction to hear the claim. (Ibid.)

Under this analysis, California's courts have subject matter jurisdiction over
deaths occurring outside of the State's territorial limits, although they may be required to

6
The court held: "It is settled by the adjudications of our own courts that the right
to action for causing death by negligence exists only by virtue of the statute, and that
where the wrong is committed within a foreign State or country, no action therefor can be
maintained here, at least without proof of the existence of a similar statute in the place
where the wrong was committed. [Citations.] These decisions rest upon the plain ground
that our statute can have no operation within a foreign jurisdiction, and that with respect
to positive statute law it cannot be presumed that the laws of other States or countries are
similar to our own. The liability of a person for his acts depends, in general, upon the
laws of the place where the acts were committed, and although a civil right of action
acquired, or liability incurred, in one State or country for a personal injury may be
enforced in another to which the parties may remove or where they be found, yet the right
or liability must exist under the laws of the place where the act was done. Actions for
injuries to the person committed abroad are sustained without proof in the first instance
of the lex loci, upon the presumption that the right to compensation for such injuries is
recognized by the laws of all countries. But this presumption cannot apply where the
wrong complained of is not one of those thus universally recognized as a ground of
action, but is one for which redress is given only by statute." (McDonald v. Mallory
et al., supra, 77 N.Y. at pp. 550-551.)

8

apply the law of the jurisdiction where the wrong occurred. For purposes of this case,
that law is the Jones Act. As the Jones Act recognizes a claim for wrongful death, the
superior court was entitled to hear Donaldson's claims.

The second premise in National Marine's argument that we reject is that the
"savings to suitors" clause "saves" only those rights of action recognized by state law.
The clause refers to remedies, not to rights of action. The difference between the two
was explained by the United States Supreme Court in Knapp, Stout & Company v.
McCaffrey (1900) 177 U.S. 638). Knapp was a suit brought to enforce a lien for towage.
In finding that an Illinois court had jurisdiction over the case, notwithstanding the
limitations on jurisdiction imposed by the Judiciary Act of 1789, the Supreme Court
distinguished between actions brought against a vessel itself and actions brought against a
personal defendant to enforce a lien against a vessel. The court concluded that admiralty
courts have exclusive jurisdiction over the first type of action because the remedy--an
action against the vessel itself--has all the features of an admiralty proceeding in rem.7
Suit may be maintained against the owner, however, even though the plaintiff seeks to
enforce a lien against the vessel for towage charges, because the remedy--a suit brought
in personam--is a state remedy "saved to suitors." (Id. at pp. 646-648.)

An additional issue arose from the fact that the suit in Knapp, Stout & Company v.
McCaffrey, supra, was a suit in equity, and therefore "certainly not a common-law
action." (Id. at p. 644.) The court held: "But it will be noticed that the reservation is not
of an action at common law, but of a common-law remedy; and a remedy does not
necessarily imply an action." (Ibid.) "The true distinction between such proceedings as
are and such as are not invasions of the exclusive admiralty jurisdiction is this: If the

7
And even then, admiralty jurisdiction would not extend to all in rem actions.
Admiralty jurisdiction, for example, does not extend to a contract for building a vessel or
to work done or materials furnished in its construction. As to such contracts, therefore, it
is "competent for the states to enact such laws as their legislatures might deem just and
expedient, and to provide for their enforcement in rem." (Knapp, Stout & Company v.
McCaffrey, supra, 177 U.S. at p. 643.)

9

cause of action be one cognizable in admiralty, and the suit be in rem against the thing
itself, though a monition be also issued to the owner, the proceeding is essentially one in
admiralty. If, upon the other hand, the cause of action be not one of which a court of
admiralty has jurisdiction, or if the suit be in personam against an individual defendant,
with an auxiliary attachment against a particular thing, or against the property of the
defendant in general, it is essentially a proceeding according to the course of the common
law, and within the saving clause of the statute . . . of a common-law remedy. The suit in
this case being one in equity to enforce a common-law remedy, the state courts were
correct in assuming jurisdiction." (Id. at p. 648.)

In the present case, it is true, as National Marine contends, that California,
although recognizing an action for wrongful death (Code Civ. Proc., � 377), does not
specifically recognize an action for wrongful death occurring outside of its territorial
limits. Under Knapp, however, that fact is of little importance. The question is whether
California law recognizes a remedy of an in personam suit for wrongful death. It does,
and that remedy is saved to suitors by section 7 of the Judiciary Act. Finally, it is of no
consequence that the remedy of a suit for wrongful death was established only after the
adoption of the Judiciary Act of 1789. The court in Knapp, citing its earlier opinion in
Steamboat Company v. Chase (1872) 83 U.S. 522, rejected the argument that the savings
clause must be limited to such remedies as were known to the common law at the time of
the passage of the judiciary act. (Knapp, Stout & Company v. McCaffrey, supra, 177
U.S. at pp. 646-647.)

In conclusion, where a state, such as California, provides a remedy--such as an
action in personam--for a claim, such as a wrongful death claim, the State courts have
subject matter jurisdiction over that claim even though the claim is brought under
maritime law, and even though the actionable wrong took place outside of California's
territorial limits.

In reaching this conclusion we place ourselves squarely in the camp of Garofalo v.
Princess Cruises, Inc. (2000) 85 Cal.App.4th 1060, where it was found that California
courts have jurisdiction over maritime wrongful death actions arising outside of the

10

State's territorial limits. We also find that we disagree with Chromy v. Lawrance, supra,
233 Cal.App.3d 1521.8
The
decisions
in
Chromy and in Garofalo were based on different interpretations
of the opinion in Offshore Logistics, Inc. v. Tallentire (1986) 477 U.S. 207, which
involved a DOSHA action, brought in federal court, and the question of whether state or
federal law governed the suit. The court in Offshore Logistics concluded, essentially, that
while the savings to suitors clause acts as a jurisdictional savings clause allowing state
courts to entertain actions and provide wrongful death remedies for accidents occurring
both on state territorial waters and on the high seas, it does not authorize the application
of state law to those actions. Rather, "the `saving to suitors' clause allows state courts to
entertain in personam maritime causes of action, but in such cases the extent to which
state law may be used to remedy maritime injuries is constrained by a so-called `reverse-
Erie' doctrine which requires that the substantive remedies afforded by the States
conform to governing federal maritime standards." (Id. at pp. 222-223.)

The court in Chromy found that Offshore Logistics held that the saving to suitors
clause confers concurrent jurisdiction on the states to adjudicate maritime causes of
action provided that the jurisdictional requirements of the state court are met. The court
then characterized this holding as meaning that DOSHA actions could be tried in state
courts only if the state's wrongful death statute expressly extends to deaths on the high
seas. (Chromy v. Lawrance, supra, 233 Cal.App.3d at pp. 1526-1527.) Offshore
Logistics, however, was a federal court action. The Supreme Court, therefore, had no
reason to decide whether the action might have been brought in state court, and did not
address that question. It decided only that federal law governed DOSHA claims whether
suit was filed in federal or state courts.

8
Our conclusion also differs from that reached by the court in Gordon v. Reynolds
(1960) 187 Cal.App.2d 472. The court in that case concluded that the federal courts have
exclusive jurisdiction over wrongful death actions arising outside of state territorial
waters. The court, however, did not consider the effect of the saving to suitors clause on
the plaintiff's claim. A decision is not authority for a proposition not considered in the
court's opinion. (People v. Myers (1987) 43 Cal.3d 250, 265, fn. 5.)

11

In addition, as recognized by the court in Garofalo, although the court in Offshore
Logistics discussed the concurrent jurisdiction of the state courts over DOSHA actions, it
said nothing from which it might be concluded that "the exercise of concurrent
jurisdiction was to be premised upon a state-by-state analysis of whether a wrongful
death statute had been given extraterritorial effect at the time DOSHA was enacted."
(Garafalo v. Princess Cruises, Inc., supra, 85 Cal.App.4th at p. 1082.) To the contrary,
"[h]ad the Supreme Court intended the exercise of concurrent jurisdiction to turn on such
an inquiry, we would have expected the court to provide a fuller and clearer statement to
that effect. Federal courts routinely cite Offshore Logistics for the proposition that state
courts have concurrent jurisdiction over DOSHA actions, without any additional analysis
of the extraterritorial reach of the state wrongful death statute. [Citations.]" (Id. at pp.
1082-1083.) Finally, as also recognized by the court in Garofalo, the desire for
uniformity was a factor in the Offshore Logistics court's determination that federal law
should apply to all suits irrespective of forum. This desire would be frustrated by a
conclusion that the "exercise of concurrent jurisdiction depended upon the extraterritorial
reach of each state's wrongful death law." (Id. at p. 1083.)9

In conclusion, we, like the court in Garafalo, respectfully disagree with the
decision in Chromy, and find that California's courts have concurrent jurisdiction to hear
in personam maritime actions for wrongful death, although they are required to apply
federal law to such actions.

9 In
Yamaha Motor Corp., U.S.A. v. Calhoun (1996) 516 U.S. 199, the United States
Supreme Court held that while federal law governs actions brought under DOSHA and
the Jones Act, Congress has not proscribed remedies for the wrongful death of
nonseafarers in territorial waters. The court, seemingly retreating somewhat for its earlier
stance on the need for uniformity, held that state law could apply to claims arising from
such deaths. (Id. at pp. 215-216.)

12

II.
Apportionment

National Marine contends that the trial court erred in entering judgment against it
for greater than 30 percent of the damages; i.e., that amount representing the jury's
finding of National Marine's proportionate share of fault for Mr. Pavolini's death.

It is settled that defendants under the Jones Act are jointly and severally liable for
the plaintiff's damages.10 Under this rule, an award of damages will be reduced by that
portion of the damages assignable to the plaintiff's own negligence (or that of the
plaintiff's decedent in a wrongful death case), but a shipowner, such as National Marine,
remains responsible for the full remainder, even if the concurrent negligence of others
contributed to the incident. (McDermott, Inc. v. AmClyde (1994) 511 U.S. 202, 220-221;
Edmonds v. Compagnie Generale Transatl. (1979) 443 U.S. 256, 259-260, 269, 271.)
In
Edmonds, the plaintiff, a longshoreman, was injured in the course of his work.
His right to seek damages from his employer, the stevedore, was limited by the
Longshoremen's and Harbor Workers' Compensation Act (the Act). The plaintiff,
accordingly, did not file suit against the stevedore, but did file suit against the shipowner.
A jury returned a verdict finding that the plaintiff was 10 percent at fault for his injuries,
the stevedore was 70 percent at fault for those injuries and the shipowner was 20 percent
at fault for the injuries. The Supreme Court rejected the shipowner's arguments that it
should have been held liable only for that share of the total damages equivalent to the
ratio of its fault to the total fault, holding further that shipowner's responsibility for the
full amount of the plaintiff's damages (less that amount attributable to the plaintiff's own
fault) was not affected by the statutory inability of the plaintiff to seek damages from his
employer. "Under this arrangement, it is true that the ship will be liable for all of the

10
In Civil Code section 1431 et seq., California has modified the traditional doctrine
of joint and several liability. California's approach, however, may not be applied in suits
brought under the Jones Act where, as here, such a procedure would bear on the
substantive right of the plaintiff to recover. (Hutchins v. Juneau Tanker Corp. (1994) 28
Cal.App.4th 493, 500-502.)

13

damages found by the judge or jury; yet its negligence may have been only a minor cause
of the injury. The stevedore-employer may have been predominantly responsible; yet its
liability is limited by the Act, and if it has lien rights on the longshoreman's recovery it
may be out-of-pocket even less. . . . [�] . . . [�] Some inequity appears inevitable in the
present statutory scheme, but we find nothing to indicate and should not presume that
Congress intended to place the burden of the inequity on the longshoreman whom the Act
seeks to protect." (Edmonds v. Compagnie Generale Transatl., supra, 433 U.S. at pp.
269-270.) The shipowner, therefore, was held to be jointly and severally liable for the
full amount of the damages suffered by the plaintiff, save that amount attributable to the
plaintiff's own fault. (Id. at p. 271.)

As National Marine points out, the rule of joint and several liability is modified
when the plaintiff settles its case with one of several joint defendant-tortfeasors. In such
cases, the amount of the settlement will be applied to diminish the claim that the plaintiff
has against the other defendants by the amount of the equitable obligation of the released
tortfeasor. (McDermott, Inc. v. AmClyde, supra, 511 U.S. at pp. 209, 217.) The court in
McDermott found that this procedure, characterized as the "proportionate share rule," is
not inconsistent with Edmonds, holding that "[u]nlike the rule in Edmonds, the
proportionate share rule announced in this opinion applies when there has been a
settlement. In such cases, the plaintiff's recovery against the settling defendant has been
limited not by outside forces, but by its own agreement to settle. There is no reason to
allocate any shortfall to the other defendants, who were not parties to the settlement."
(Id. at p. 221.)

In the present case, there was no settlement between Donaldson and the Navy or
the tobacco companies. The exception recognized by the court in McDermott, therefore,
does not apply. It is irrelevant that the Navy and/or the tobacco companies may be
immune from Donaldson's claims. The McDermott court held: "Joint and several
liability applies when there has been a judgment against multiple defendants. It can
result in one defendant's paying more than its apportioned share of liability when the
plaintiff's recovery from other defendants is limited by factors beyond the plaintiff's

14

control, such as a defendant's insolvency. When the limitations on the plaintiff's
recovery arise from outside forces, joint and several liability makes the other defendants,
rather than an innocent plaintiff, responsible for the shortfall. [Citation.]" (McDermott,
Inc. v. AmClyde, supra, 511 U.S. at pp. 220-221.)11 The proportionate-share rule
recognized by the court in McDermott consequently has no application when a plaintiff is
unable to recover damages from one of several joint tortfeasors as a result of a statutory
immunity. In such cases the other defendants, such as National Marine, here, are
responsible for the shortfall.

National Marine cites Trevino v. General Dynamics Corp. (5th Cir. 1989) 865
F.2d 1474 as authority for adopting the proportionate-share rule in cases where the Navy
is a tortfeasor. It is true that the trial court in that case attributed 80 percent of the fault of
an accident to a private company, and 20 percent of the fault to the Navy. Nothing in
Trevino, however, indicates either that the trial court then entered judgment against the
private company in the amount of only 80 percent of the damages or that the appellate
court affirmed any such award.12

It is not persuasive that the immunity of the tobacco companies is based on a
California statute, and Donaldson chose to bring suit in California. The court in
McDermott recognized that where a plaintiff settles with a defendant, that plaintiff has
agreed to accept the settlement amount as representing the full extent of the settling

11
The court in Coats v. Penrod Drilling Corp. (5th Cir. 1995) 61 F.3d 1113, 1123,
suggested that the existence of an immunity would not trigger a McDermott
apportionment. The court there noted that the adoption of a modified version of the
doctrine of joint and several liability would result in a reduced verdict for the plaintiff in
cases where one defendant is statutorily immune (id. at p. 1123), and, after a detailed
discussion of the doctrine in connection with maritime cases, refused to reject the
traditional doctrine in favor of the modified version. (Id. at p. 1139.)
12 Donaldson has submitted the declaration of the attorney that represented the Trevino
plaintiffs that the judgment against the private company was not reduced by an amount
proportionate to the Navy's share of fault. We find it unnecessary to consider this
declaration. It is enough that the opinion in that case does not suggest that judgment was
entered against the private employer for less than 100 percent of the plaintiff's damages.

15

defendant's liability. Justice requires that the plaintiff be bound by that decision, and not
shift the risk of poor prognostication to a non-settling defendant. Donaldson did not
settle with the tobacco companies, and did not choose to file suit in California out of
some understanding or belief that the tobacco companies were not liable for Mr.
Pavolini's death. To the contrary, Mr. Pavolini brought suit against the tobacco
companies, and Donaldson, after he was substituted into that case, argued, strenuously,
that the tobacco companies were liable for Mr. Pavolini's death. Donaldson's inability to
collect from the tobacco companies, therefore, was not the result of a choice made by
him. It resulted from our finding that the tobacco companies were immune from suit, i.e.,
from the kind of "outside forces" discussed in McDermott. This case, consequently, does
not fall within the exception or modification established by the court in McDermott.

National Marine argues that, under McDermott, the trial court at least should have
reduced the award of damages against National Marine by any amount obtained by
Donaldson in settlements with the dismissed defendants. It is true that, under
McDermott, National Marine should not be required to pay the amount of damages
attributable to the settling defendants for their proportionate fault in Mr. Pavolini's death.
National Marine, however, did not identify any settling defendants, nor did it ask the jury
to assess their proportionate fault. Under the circumstances, the court had no basis for
reducing the award against National Marine.

National Marine also argues that the Navy and the tobacco companies were not
truly immune from liability for Mr. Pavolini's death. This argument may be useful to
National Marine in some later action for contribution from those entities, but as National
Marine is jointly and severally liable for Mr. Pavolini's death irrespective of the
immunities enjoyed by either the Navy or the tobacco companies, the argument is of little
import here.

16

III.
The Jury's Finding that National Marine was
30 percent at Fault for Mr. Pavolini's Injuries and Death

Finally, National Marine contends that the evidence does not support the jury's
finding that it was 30 percent at fault for Mr. Pavolini's injuries and death, arguing that
the evidence required a finding that the Navy and the tobacco companies were more at
fault for Mr. Pavolini's lung cancer than was National Marine.13

Contrary to National Marine's arguments, there was evidence from which the jury
could have concluded that National Marine's fault for Mr. Pavolini's death and injuries
was roughly comparable to the fault of the Navy and of the tobacco companies. As
National Marine emphasizes, the expert witnesses agreed that the risk of contracting lung
cancer is ten times greater for smokers than it is for non-smokers, but only five times
greater for persons exposed to asbestos than for persons who have not been exposed to
asbestos. The experts, however, also agreed that the combination of smoking and
exposure to asbestos acts as a multiplier, such that the risk of contracting cancer for
persons who both smoke and have been exposed to asbestos is 50 times greater than for
persons who neither smoke nor have been exposed to asbestos. There also was evidence
that every exposure to asbestos increases the risk that an individual will contract cancer.
No expert could identify a single cause of Mr. Pavolini's cancer, and the evidence was
that it would be impossible to rule out any exposure as playing a role in the development
of cancer. In addition, except for some testimony that Mr. Pavolini did not suffer from an
asbestos-related disease at all, no expert could apportion risk or fault between the Navy
and National Marine, or between the tobacco companies and Mr. Pavolini's employers.

National Marine argues that although the experts could not apporportion fault, the
jury was required to apportion fault in accordance to the risk that Mr. Pavolini's exposure

13
Because National Marine is jointly and severally liable for 90 percent of Mr.
Pavolini's damages irrespective of its proportional share of fault, this argument is of no
practical significance unless National Marine seeks contribution from either the Navy or
the tobacco companies.

17

to tobacco, or exposure to asbestos, would cause lung cancer. That Mr. Pavolini, as a
smoker, was ten times more likely than a non-smoker to contract lung cancer, however,
does not mean that his exposure to tobacco was in fact a cause of his lung cancer. That
the risk of cancer is ten times greater for smokers than for non-smokers, and only five
times greater for persons exposed to asbestos than for persons who were not exposed to
asbestos, does not mean that the tobacco companies were twice as responsible as Mr.
Pavolini's employers for Mr. Pavolini's cancer. Similarly, that Mr. Pavolini may have
been exposed to a greater amount of asbestos during his Naval career than during his
work for Cardinal Carriers, does require a finding that Mr. Pavolini's cancer was caused
by his exposure during his Naval career, or that the Navy was more responsible for Mr.
Pavolini's death than was National Marine. "Risk" and "Cause" are different concepts,
and there is no requirement that the jury apportion cause or fault along the lines of risk.

Moreover, even if each tortfeasor's contribution to the risk of an occurrence
determined its proportionate fault should the occurrence take place, there was evidence
from which the jury reasonably could have concluded that the tobacco companies, the
Navy, and National Marine contributed equally to the risk that Mr. Pavolini would
contract lung cancer.

Although the risk of cancer from use of tobacco exceeds the risk of lung cancer
from exposure to asbestos, Mr. Pavolini stopped smoking in 1984, 13 years before he was
diagnosed with lung cancer, and there was evidence that this fact significantly decreased
the risk that Mr. Pavolini's use of tobacco would cause him to contract lung cancer. In
addition, the evidence of Mr. Pavolini's exposure to asbestos during his Naval career, and
during his work with Cardinal Carriers, was hotly contested. National Marine introduced
evidence that as Mr. Pavolini's career with Cardinal Carriers progressed, he spent more
time on shore, and more time in a supervisory capacity, with the result that his exposure
to asbestos was reduced. Donaldson introduced evidence that even after being promoted
to supervisory positions, Mr. Pavolini continued to do hands-on work on Cardinal
Carrier's vessels, and he continued to be exposed to asbestos even when he wasn't
handling it himself. Donaldson also introduced evidence that Mr. Pavolini's naval career

18

did not constantly expose him to asbestos. For example, Mr. Pavolini was not exposed to
asbestos during periods when he was in school, or taught, or when he was on shore leave,
or when he traveled as a passenger or during a three-year period when he worked on
shore.

The doctrine of comparative fault is a flexible, commonsense concept, under
which a jury properly may consider and evaluate the relative responsibility of various
entities for an injury. (Knight v. Jewett (1992) 3 Cal.4th 296, 314; Rosh v. Cave Imaging
Systems, Inc. (1994) 26 Cal.App.4th 1225, 1233.) The doctrine does not lend itself to
" `the exact measurements of a micrometer-caliper.' [Citations.] . . . . [�] [And] `the
appellate court may not substitute its judgment for that of the jury or set aside the jury's
finding if there is any evidence which under any reasonable view supports the jury's
apportionment. [Citation.]' [Citation.]" (Rosh v. Cave Imaging Systems, Inc., supra, 26
Cal.App.4th at pp. 1233-1234.) In light of the evidence, including the opinions of the
expert witnesses and their inability to identify any particular exposure or time of
exposure to either asbestos or tobacco as being the sole or major cause of Mr. Pavolini's
cancer, we can find no error in the jury's determination that National Marine, the Navy
and the tobacco companies were equally at fault in Mr. Pavolini's death.
Conclusion

The judgment is affirmed.

_________________________

Stein, Acting P.J.

We concur:

_________________________
Swager, J.

_________________________
Margulies, J.

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Trial
Court:
Superior
Court
City
and
County
of
San
Francisco

Trial
Judge:
Honorable
James
McBride

Attorneys for Appellant:
Phillip
R.
Bonotto
Brian
M.
Taylor

Rushford & Bonoto

Attorneys for Respondent:
Harry F. Wartnick
Martha
A.
H.
Berman
Wartnick,
Chaber,
Harowitz
&
Tigerman

Daniel U. Smith
Law
Offices
of
Daniel
U.
Smith

(Donaldson v. National Marine, Inc. - A092876/A093705)

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