John Crane, Inc. v. Hardick ( 2012 )

Present: All the Justices
JOHN CRANE, INC.
v. Record No. 101909 OPINION BY JUSTICE DONALD W. LEMONS
September 14, 2012
MARGARET DIANE HARDICK, EXECUTOR OF
THE ESTATE OF ROBERT EUGENE HARDICK,
DECEASED, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Aundria D. Foster, Judge
By order dated May 1, 2012, we granted the appellees'
petition for rehearing, in which they argued that we should
reinstate the jury's $2 million award of damages for Robert
Eugene Hardick's ("Hardick") pre-death pain and suffering, an
award we vacated in accordance with our March 2, 2012 opinion
in this matter. For the reasons that follow, we now reinstate
that award. Our prior opinion in this case is modified
accordingly. 1
This rehearing arises out of the same facts and
proceedings as those recited in our March 2, 2012 opinion in
this matter. See John Crane, Inc. v. Hardick, 283 Va. 358,
361-66, 722 S.E.2d 610, 611-14 (2012). Accordingly, it is
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Upon rehearing, we considered whether the first
assignment of error asserted by John Crane, Inc. ("JCI") was
sufficient to challenge the award of damages for Hardick's pain
and suffering. Upon thorough review of the manner in which
this case was tried, we conclude that JCI's first assignment of
error is sufficient under Rule 5:17(c).
unnecessary to repeat a recitation of the rather lengthy facts
and proceedings here.
It is important to note, however, that Hardick and his
wife, Margaret Diane Hardick, filed suit under general maritime
law against JCI and others seeking $20 million in compensatory
damages and $5 million in punitive damages. The Hardicks'
complaint alleged that Hardick was exposed to asbestos dust,
fibers, and particles contained in products manufactured by
JCI, and that he contracted mesothelioma as a result of such
exposure. Hardick died prior to trial, and his action was
revived in the names of Margaret Diane Hardick, in her capacity
as executor of Hardick's estate, and Jennifer W. Vincent, whose
surname was later changed to Stevens, as "Ancillary
Administrator C.T.A." of Hardick's estate (together, "Mrs.
Hardick"). Mrs. Hardick was granted leave to file a second
and, thereafter, a third amended complaint, both of which
included causes of action for the wrongful death of Hardick.
Mrs. Hardick settled or nonsuited the claims against all
defendants except JCI and proceeded against JCI, the sole
remaining defendant, on the third amended complaint.
Significantly, Mrs. Hardick's third amended complaint included
both the revived personal injury survival claims – which sought
damages for, among other things, Hardick's pre-death pain and
suffering – and Mrs. Hardick's wrongful death claims.
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I. Analysis
A. Standard of Review
"It is well-settled that we review questions of law de
novo, including those situations where there is a mixed
question of law and fact." Napper v. ABM Janitorial Servs.,
No. 111300, 2012 Va. LEXIS 130, at *7 (Va. June 7, 2012)
(quoting Westgate at Williamsburg Condo. Ass'n v. Philip
Richardson Co., 270 Va. 566, 574, 621 S.E.2d 114, 118 (2005))
(internal quotation marks omitted).
B. General Maritime Survival Action
for a Decedent Seaman's Pain and Suffering
In Miles v. Apex Marine Corp., 498 U.S. 19, 33 (1990), the
United States Supreme Court ("Supreme Court") observed that,
"[u]nder traditional maritime law, as under common law, there
is no right of survival; a seaman's personal cause of action
does not survive the seaman's death." The Supreme Court
further observed, however, that "Congress and the States have
changed the rule in many instances. The Jones Act, through its
incorporation of [the Federal Employers' Liability Act
("FELA"), 45 U.S.C. §§ 51-59 (1908)], provides that a seaman's
right of action for injuries due to negligence survives to the
seaman's personal representative. [See 45 U.S.C. § 59; 46
U.S.C. § 30104 (2006)]." Id. (emphasis added). The Supreme
Court also observed that "[t]he Jones Act incorporates FELA's
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survival provision, but, as in most States, recovery is limited
to losses suffered during the decedent's lifetime." Id. at 35.
Significantly, for the purposes of this case, in deciding
whether an estate can recover particular damages "in a general
maritime action surviving the death of a seaman," the Supreme
Court looked to the Jones Act for guidance even though the
decedent seaman's estate was not seeking recovery for such
damages under the Jones Act. Id. at 33 (emphasis added). The
Supreme Court stated:
Maritime tort law is now dominated by federal
statute, and we are not free to expand remedies
at will simply because it might work to the
benefit of seamen and those dependent upon them.
Congress has placed limits on recovery in
survival actions that we cannot exceed. Because
this case involves the death of a seaman, we must
look to the Jones Act.
The Jones Act/FELA survival provision limits
recovery to losses suffered during the decedent's
lifetime. See 45 U.S.C. § 59[; 46 U.S.C.
§ 30104]. This was the established rule under
FELA when Congress passed the Jones Act,
incorporating FELA, and it is the rule under the
Jones Act.
Id. at 36 (citations omitted) (emphasis added). Accordingly,
the Supreme Court held in Miles that, because the Jones Act
survival provision "limits recovery to losses suffered during
the decedent's lifetime," a similar limitation should apply
under general maritime law. Id. Similarly, "[b]ecause this
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case involves the death of a seaman," as was the case in Miles,
"we must look to the Jones Act." Id.
Accordingly, we hold that, while the recovery of
nonpecuniary damages is not permitted in actions for the
wrongful death of a seaman, "whether under [the Death on the
High Seas Act ("DOHSA"), 46 U.S.C. § 30301 et seq. (2006 &
Supp. III 2010)], the Jones Act, or general maritime law," id.
at 33, such damages may be recovered in a general maritime
survival action, provided they represent damages suffered
during the decedent seaman's lifetime – as the award of damages
for Hardick's pre-death pain and suffering does in this case.
See id. at 33-36.
JCI argues that the Supreme Court's decision in Dooley v.
Korean Air Lines Co., 524 U.S. 116 (1998), forecloses Mrs.
Hardick's survival action for Hardick's pre-death pain and
suffering, and that DOHSA 2 governs the outcome of this case
because Hardick's mesothelioma was the result of his cumulative
asbestos exposures during his service in the Navy, both in
territorial waters and on the high seas, and that mesothelioma
is an indivisible disease. We do not agree that DOHSA applies.
2
DOHSA provides a cause of action for "the death of an
individual . . . caused by wrongful act, neglect, or default
occurring on the high seas beyond 3 nautical miles from the
shore of the United States . . . ." 46 U.S.C. § 30302.
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In Dooley, the Supreme Court considered whether, in cases
of death on the high seas, a decedent's relatives may recover
damages for the decedent's pre-death pain and suffering through
a survival action under general maritime law. 524 U.S. at 118.
The Supreme Court concluded that DOHSA precluded the plaintiffs
in that case from bringing a survival action for pre-death pain
and suffering under general maritime law, reasoning that
"Congress provided the exclusive recovery [through DOHSA] for
deaths that occur on the high seas." Id. at 123-24. The
Supreme Court stated:
DOHSA expresses Congress' judgment that there
should be no such cause of action in cases of
death on the high seas. By authorizing only
certain surviving relatives to recover damages,
and by limiting damages to the pecuniary losses
sustained by those relatives, Congress provided
the exclusive recovery for deaths that occur on
the high seas.
Id. at 123.
Significantly, however, the Supreme Court declared in
Dooley that it was not deciding "whether general maritime law
ever provides a survival action." Id. at 124 n.2 (emphasis in
original). Rather, the Supreme Court explicitly recognized
that a survival action is still available, apart from DOHSA,
when the decedent is a seaman. See id. at 124. Specifically,
the Supreme Court stated:
The comprehensive scope of DOHSA is confirmed by
its survival provision, which limits the recovery
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in such cases to the pecuniary losses suffered by
surviving relatives. The Act thus expresses
Congress' "considered judgment" on the
availability and contours of a survival action in
cases of death on the high seas. For this
reason, it cannot be contended that DOHSA has no
bearing on survival actions; rather, Congress has
simply chosen to adopt a more limited survival
provision. Indeed, Congress did so in the same
year that it incorporated into the Jones Act,
which permits seamen in the course of their
employment to recover damages for their injuries,
a survival action similar to the one petitioners
seek here.
Id. (emphasis added) (citations omitted). Significantly,
Dooley did not involve the death of a seaman, as Miles did, and
as this case does. See Dooley, 524 U.S. at 118; Miles, 498
U.S. at 21.
Accordingly, because the Jones Act, "through its
incorporation of FELA, provides that a seaman's right of action
for injuries due to negligence survives to the seaman's
personal representative," Miles, 498 U.S. at 33, and because
the Jones Act's survival provision limits recovery "to losses
suffered during the decedent's lifetime," id. at 35, we hold
that a decedent seaman's estate may recover damages for the
decedent seaman's pre-death pain and suffering in a general
maritime survival action. 46 U.S.C. § 30104; 45 U.S.C. § 59.
See Miles, 498 U.S. at 33-36.
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II. Conclusion
Similar to the Supreme Court's reasoning in Miles, we hold
that in a general maritime survival action based upon the death
of a seaman, we look to the Jones Act for guidance. See Miles,
498 U.S. at 33-36. Because the Jones Act permits recovery for
the losses suffered during a decedent seaman's lifetime in a
survival action, including pre-death pain and suffering,
Hardick's estate may recover for his pre-death pain and
suffering under general maritime law. 46 U.S.C. § 30104; 45
U.S.C. § 59. See Miles, 498 U.S. at 35-36. Accordingly, the
disposition recited in our opinion dated March 2, 2012 will be
modified. We will affirm in part and reverse in part the
judgment of the trial court. We will vacate the $1.15 million
award for Mrs. Hardick’s loss of society; however, we will
affirm the $2 million award for Hardick’s pain and suffering.
We will remand the case to the trial court for entry of an
order consistent with this opinion.
Affirmed in part,
reversed in part,
and remanded.
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