Grahn v. Exxon Mobil Corp.9/17/04 CA1/5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A098818

Case Date: 12/01/2004

Preview:Filed 9/17/04 Grahn v. Exxon Mobil Corp. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

DONNA GRAHN et al., Plaintiffs and Respondents, v. EXXON MOBIL CORPORATION, Defendant and Appellant. _______________________________________/ The survivors of Robert Grahn (respondents) filed a complaint against Exxon Mobile Corporation (Exxon) seeking damages caused by Grahn's wrongful death due to asbestos induced lung cancer. A jury hearing the case awarded respondents a net of nearly $200,000 in damages. Exxon now appeals contending (1) the jury's verdict was not supported by substantial evidence, and (2) the trial court instructed the jury incorrectly. Respondents have filed a cross appeal contending the trial court erred when calculating pretrial settlement credits. We reject the arguments advanced on appeal and affirm that portion of the judgment. However, we agree the court calculated the pretrial settlement credits incorrectly and remand the case so the judgment can be revised accordingly. A098818 (San Francisco Super. Ct. Nos. 922682 & 966531)

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I. FACTUAL AND PROCEDURAL BACKGROUND Robert Grahn worked as a brick mason for the J.T. Thorpe Company from 1954 to 1985. He started as an apprentice, and was promoted to foreman in 1956, general foreman in 1964, and superintendent in 1974. Over the years, Grahn worked at many different sites throughout the Bay Area including, in 1968 and 1969, the Exxon Oil refinery located in Benicia. Exxon was building a new facility in Benicia and J.T. Thorpe was hired to perform refractory work for the project. Grahn was J.T. Thorpe's superintendent for the job. While Grahn was working at Exxon's Benicia facility, others were working nearby installing asbestos-containing pipe insulation. The installation created a "visible dust" that covered Grahn. Several workers described the process. Carl Ramsey, who worked as a foreman for Owens-Corning at the Benicia refinery, said his crews used asbestos containing cements, insulation and mud to insulate various components. Whenever pipes came in contact with supports or hangers, Ramsey's workers had to saw the insulation to accommodate the connection. This created dust. Ramsey's workers also used mallets to ensure the insulation fit tightly. Workers would say, "if you don't make a lot of dust [the insulation] is not tight." Charles Ay installed asbestos containing pipe insulation at Exxon's Benicia refinery for a company known as Western Asbestos. According to Ay, each stroke of a saw or tap of a mallet created asbestos-containing dust. Albert John Kiss worked as an insulator for Plant Asbestos at the Benicia facility. He estimated that about half of the time, he used pipe insulation that contained asbestosis. The process of installing pipe insulation created a "heck of a lot of dust." According to Kiss, J.T. Thorpe employees were usually there when he was installing insulation because "it seemed to be that their type of work was done around the time ours was done. [

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