dissenting.
I respectfully dissent. First, neither California law nor federal law compels the result reached by the majority. We did not consider life insurance proceeds as a possible measure of damages in Galindo v. Stoody, 793 F.2d 1502, 1517 (9th Cir.1986). The Fourth Circuit, which has directly considered this issue, has held that it is the life insurance premium, not the proceeds, which is the proper measure of damages in a wrongful termination suit. See Fariss v. Lynchburg Foundry, 769 F.2d 958, 965 (4th Cir.1985).
Second, the majority misconstrues California’s survival statute, Cal.Civ.Proc.Code § 377.34, which limits-the damages recoverable by a decedent’s personal representative “to the loss or damage that the decedent sustained or incurred before death.” Under the plain language of section 377.34, Mr. Sposato is limited to the loss that Ms. Sposato suffered before her death, that is, the life insurance premiums.
Third, the result reached by the majority makes bad public policy. As a general rule, the discharge of an employee, even if wrongful, should not transform the employer into a life insurer. Unlike medical insurance, life insurance benefits not the employee, but his or her survivors, and may be obtained from various sources in amounts that are entirely within the employee’s discretion. As a result of our holding, prudent employers may well cease to offer group life insurance as a benefit of employment. See Fariss, 769 F.2d at 965.
I would affirm the district court’s well-reasoned opinion.