Allen v. Sully-Miller Contracting Co.

MORENO, J., Dissenting.

The majority’s expansive interpretation of Proposition 213, enacted as Civil Code section 3333.4 (section 3333.4), produces a result that surely was not contemplated by the voters who passed this initiative. According to the majority, a private contractor that maintains a dangerous condition on property is excused from bearing the cost of injuries caused by its negligent behavior when the injured party happens to be an uninsured motorist. Because there is no suggestion in either the language or the legislative history of section 3333.4 that it was intended to apply in the case of a negligent private contractor, I respectfully dissent.

The majority reaches its conclusion by relying on our decision in Day v. City of Fontana (2001) 25 Cal.4th 268 [105 Cal.Rptr.2d 457, 19 P.3d 1196] (Day), where we held that under section 3333.4, an uninsured motorist is precluded from recovering noneconomic damages in an action against a *233public entity. I disagree for three reasons. First, I question the Day majority’s broad reading of Proposition 213, given our previous discussion of this initiative in Hodges v. Superior Court (1999) 21 Cal.4th 109 [86 Cal.Rptr.2d 884, 980 P.2d 433] (Hodges) and Horwich v. Superior Court (1999) 21 Cal.4th 272 [87 Cal.Rptr.2d 222, 980 P.2d 927] (Horwich). Instead, I agree with the dissent in Day that the intent of the voters in passing Proposition 213 was to benefit motorists who obey the financial responsibility laws and not to insulate negligent public entities from liability. (Day, supra, 25 Cal.4th at pp. 285-286 (dis. opn. of Mosk, J.).) Second, I believe that Day is distinguishable from the present case. The position of the negligent private contractor in this case is more similar to that of an automobile manufacturer, which in Hodges we found was not protected by section 3333.4, than to a public entity, which in Day we determined was protected by the provisions of section 3333.4. Third, I find that the majority’s decision implicates serious public policy concerns that should preclude the extension of our holding in Day to insulate a private contractor from liability for noneconomic damages. For these reasons, I conclude that section 3333.4 does not prevent an uninsured motorist from recovering noneconomic damages from a negligent private contractor.

I.

On August 13, 1996, Dacus Wade Allen was injured in a single-vehicle accident as he attempted to make a right turn across an elevated concrete bus pad, which was under construction. The front tire of his motorcycle caught on a three-inch raised lip of the concrete pad. Allen’s motorcycle slipped from under him and fell onto his knee, injuring him.

The City of Los Angeles had awarded Sully-Miller Contracting Company (Sully-Miller) a contract to perform certain road construction work at the site of Allen’s accident. Sully-Miller had entered into a subcontract with Daniel J. Lopez Concrete Construction (Lopez Construction) to provide concrete work, including the construction of bus pads. Sully-Miller, as the prime contractor, was responsible for traffic control, including the installation and maintenance of road barriers to mark uneven road surfaces to protect both motorists and pedestrians from injury. Prior to the accident in this case, the City of Los Angeles’s project inspector had issued three written warnings to Sully-Miller regarding deficiencies in its traffic control plan, including the lack of barriers necessary to protect vehicular and pedestrian traffic. On August 13, 1996, the date of the accident in this case, the disparity in height between the road surface and the bus pad had existed for at least 11 days.

Allen brought a personal injury and premises liability action against Sully-Miller, Lopez Construction, and the City of Los Angeles. On the day *234of trial, defendants sought an order barring Allen from presenting evidence of general damages based on his admission that he did not have automobile liability insurance at the time of the accident. The trial court granted defendants’ motion and, at the close of Allen’s evidence, granted a nonsuit in favor of Lopez Construction. The jury returned a defense verdict in favor of the City of Los Angeles, but it found Sully-Miller liable, and awarded Allen $20,480 in medical expenses and $3,600 in lost earnings. The jury found that Allen was not comparatively negligent. The trial court entered judgment on the jury verdict.

The Court of Appeal reversed and remanded for a new trial, to permit Allen to present evidence of his noneconomic damages. In a decision filed before we issued our opinion in Day, the Court of Appeal applied our analysis of section 3333.4 in Hodges. The Court of Appeal determined: “There is no indication either the electorate or the sponsors of Proposition 213 intended to protect from premises liability claims road construction companies who do not contribute to the automobile insurance pool and whose other insurance rates are not affected by the existence of uninsured motorists.” Thus, the Court of Appeal concluded that section 3333.4 did not preclude Allen from recovering noneconomic damages from a private contractor.

II.

I disagree with the majority’s determination that the present action falls squarely within the language of section 3333.4. Instead, as we have previously concluded in both Hodges, supra, 21 Cal.4th 109, and Horwich, supra, 21 Cal.4th 272, the statutory language is ambiguous; therefore, we must look to the legislative history to determine whether Proposition 213 was intended to apply to a premises liability action against a private contractor.

In Hodges, the first case in which we interpreted section 3333.4, we found that the language of section 3333.4, specifically the phrase “any action to recover damages arising out of the operation or use of a motor vehicle,” was “not pellucid.” (Hodges, supra, 21 Cal.4th at p. 113.) The majority in the present case contends that in Hodges we found the statutory language of section 3333.4, subdivision (a) ambiguous only with respect to a products liability action against an automobile manufacturer. I disagree. While in Hodges the statutory ambiguity revealed itself in the context of a products liability action against a manufacturer, it was the language itself, specifically the phrases “arising out of’ and “operation or use,” that we found to be unclear. (Hodges, at p. 113 [“Nor, as we have previously observed, is the sense of the phrase ‘arising out of transparent.”].) Given this ambiguity, we *235looked to the legislative history to discern whether the voters intended Proposition 213 to apply in the case of an action against an automobile manufacturer. (Hodges, at p. 114.)

In Horwich, we again determined that the language in section 3333.4 was “ ‘not pellucid,’ ” this time with respect to the words “person” and “injured person.” (Horwich, supra, 21 Cal.4th at p. 277.) We further stated that “ ‘ “[i]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend.” [Citations.]”’ (Id. at p. 276.) As in Hodges, it was the vagueness of the language itself, rather than the facts of the case, that made us look beyond the words of the provision to the legislative history in order to determine its intended scope. (Harwich, at p. 277.)

In Day, a majority of this court found that the action in that case, in which an uninsured motorist sought to recover noneconomic damages from a public entity for nuisance and dangerous condition of property, fell within the terms of section 3333.4. (Day, supra, 25 Cal.4th at p. 273.) The Day court stated that since there was a “necessary and causal relationship” {id. at p. 274) between the operation of the vehicle by an uninsured motorist and the accident for which the motorist sought damages, section 3333.4 barred recovery of noneconomic damages. The majority in the present case applies the same analysis, determining that the action brought by Allen falls within the statutory language because of the “necessary and causal relationship” between his operation of the motorcycle and the accident for which he seeks damages. (§ 3333.4.)

I find that the “necessary and causal relationship” test developed by the court in Day and applied in this case broadens the reach of the statute beyond what is supported by either its language or its legislative history. The majority seeks to replace the ambiguous statutory language, “arising out of the operation or use of a motor vehicle,” by reading a “necessary and causal relationship” test into the statute. (§ 3333.4, subd. (a).) However, the majority provides no support, other than our statement in Day, to show why we should read such an expansive test into the statutory language. Moreover, the majority’s “necessary and causal relationship” test is just as indeterminate as the ambiguous statutory language it seeks to replace.

Rather than reading additional language into the statute, we should look to the legislative history of Proposition 213 to determine the intent of the voters. As we said in Hodges: “We do not interpret the meaning or intended application of a legislative enactment in a vacuum. In the case of a voters’ *236initiative statute, too, we may not properly interpret the measure in a way that the electorate did not contemplate: the voters should get what they enacted, not more and not less.” (Hodges, supra, 21 Cal.4th at p. 114.)

Our opinions in Hodges, Horwich, and Day all cite extensively from Proposition 213’s statement of legislative purpose, as well as the ballot arguments for and against the initiative. It is clear from these statements that the principal intended beneficiaries of Proposition 213 were Californians who obey the financial responsibility laws. (Hodges, supra, 21 Cal.4th at p. 115.) The initiative was fueled by a “principle of fairness.” (Ibid.) In passing Proposition 213, “[t]he electorate wanted to ensure that uninsured motorists, who contribute nothing to the insurance pool, would be restricted in what they receive from it.” (Hodges, at p. 115.) The initiative would protect insured motorists, who would not be forced to pay higher premiums in order to compensate uninsured motorists.

Proposition 213, then, was meant to “restore balance to our justice system” by remedying the unfairness that occurs between insured and uninsured motorists. (Ballot Pamp., Gen. Elec. (Nov. 5, 1996) text of Prop. 213, § 2, p. 102.) There is simply no suggestion in the legislative history that Proposition 213 was intended to bar an uninsured motorist from recovering damages from a negligent private entity. (See Hodges, supra, 21 Cal.4th at p. 116 [“no suggestion that [Proposition 213] was intended to apply in the case of a vehicle design defect”]; Horwich, supra, 21 Cal.4th at p. 280 [“no mention” in the legislative history that the heirs of an uninsured motorist would be barred from recovering noneconomic damages].) Therefore, I conclude that section 3333.4 does not bar such a recovery.

III.

Even if this court in Day were correct in deciding that an uninsured motorist cannot recover noneconomic damages from a public entity, it does not follow that section 3333.4 should also apply to suits against a negligent private contractor. Instead, the present suit is similar to a suit against an automobile manufacturer, which in Hodges we determined fell outside the scope of section 3333.4. In Day, we found it significant that the negligent defendant was a public entity. We noted that “[p]ublic entities, many of which provide the transportation infrastructure for the motoring public, are among those directly affected by motorists who violate the financial responsibility law.” (Day, supra, 25 Cal.4th at p. 275.) We further observed that “[m]otorists who drive in violation of [the financial responsibility] law and negligently cause damage to roadways and other public property, however, typically fail to compensate for the damage; in such circumstances, public *237entities wind up paying for repairs to their property while the uninsured tortfeasors escape responsibility for their actions.” (Id. at pp. 280-281.)

The negligent private contractor here is not directly affected by motorists who violate the financial responsibility law. Unlike public entities, private contractors have no obligation to maintain the state’s roadways. Additionally, unlike in Day, the private contractor in this case was the sole negligent party; the injured motorist was found not to be negligent and he did not damage any property in sustaining his injuries.

Further, while the legislative history of Proposition 213 does mention its potential effect on public entities, there is no discussion of the initiative’s effect on a private entity, such as a private contractor. The ballot materials indicate that voter approval of Proposition 213 would “result in fewer lawsuits filed against state and local governments”; the materials also refer to “unknown savings to state and local governments as a result of avoiding these lawsuits.” (Ballot Pamp., Gen. Elec. (Nov. 5, 1996) analysis of Prop. 213, p. 49.) These same ballot materials make no mention whatsoever of private entities, indicating that this initiative was not intended to affect the liability of private entities.

In fact, the position of the private contractor in this case is quite similar to that of the automobile manufacturer in Hodges. In Day, we distinguished Hodges: “While Hodges placed emphasis on the absence of any effect on the particular defendant’s insurance costs, it must be remembered that the defendant there, in its capacity as a car manufacturer, faced no potential of direct harm to itself or its property from uninsured drivers who failed to comply with the state financial responsibility law. In that case, the consideration that car manufacturers also had no insurance rates affected by the existence of uninsured motorists was significant to our conclusion that manufacturers of defective cars were not among those whom the initiative was intended to protect.” (Day, supra, 25 Cal.4th at p. 281, fn. omitted.)

Similar distinguishing facts are present here. The private contractor in this case, having negligently failed to erect safety barriers, was not harmed by the actions of the uninsured motorist. Additionally, requiring a private entity such as Sully-Miller to pay noneconomic damages when it is negligent will not impact either the public fisc or the insurance pool. For these reasons, even if public entities are protected under section 3333.4, damage suits against private contractors fall outside the purview of the statute.

IV.

There is no dispute in this case that Sully-Miller was negligent in failing to install and maintain safety barriers. Further, there is no disagreement that *238Allen’s accident, and his related injuries, were caused by Sully-Miller’s negligence. Under traditional tort principles, if Allen had been injured as an insured motorist, or as a passenger in a vehicle, or as a pedestrian, or as anyone else, Sully-Miller would certainly be required to fully compensate him. Yet the majority holds that Allen cannot recover noneconomic damages from this accident solely because he was an uninsured motorist. I find this holding to be in conflict with the long-standing public policy goal of requiring private parties who maintain dangerous conditions on property to bear the costs of injuries from their negligent behavior. (See Hodges, supra, 21 Cal.4th at p. 118 [declining to read § 3333.4 to protect manufacturers of defective cars, to further the public policy goal of requiring manufacturers to bear the costs of injuries from their defective products].)

As we articulated in Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496], “[although it is true that some exceptions have been made to the general principle that a person is liable for injuries caused by his failure to exercise reasonable care in the circumstances, it is clear that in the absence of statutory provision declaring an exception to the fundamental principle enunciated by section 1714 of the Civil Code, no such exception should be made unless clearly supported by public policy.” (Id. at p. 112.) Here, there is no indication in either the statutory language or the legislative history that Proposition 213 was intended to alter the general principles of tort liability. (See Hodges, supra, 21 Cal.4th at p. 115 [“It is not clear that anyone—either the sponsors of the measure or the voters—intended to protect from products liability claims manufacturers who do not contribute to that pool and whose other insurance rates are not affected by the existence of uninsured motorists.”].)

Further, the result in this case does not further the “principle of fairness” that “fueled the initiative.” (Hodges, supra, 21 Cal.4th at p. 115.) In fact, the majority’s holding produces the opposite result, providing a windfall to a negligent private contractor at the expense of an innocent motorist. Instead, holding private contractors liable for injuries caused to all motorists would benefit insured motorists, since it would provide additional incentives for these entities to provide adequate safety precautions.

In Hodges, we found that “the express goal of the initiative statute was restoring balance to the system, not simple retribution.” (Hodges, supra, 21 Cal.4th at p. 117.) Preventing uninsured motorists from recovering damages at the expense of insured motorists restores such a balance to the system. Insulating private entities that maintain dangerous conditions on property from paying damages simply because the injured party happens to be an uninsured motorist does not restore balance to the system. Instead, by *239shielding the negligent private contractor from responsibility, the majority’s holding unbalances the system and serves no purpose other than simple retribution.