Interest Was Not Recoverable

Boeken v. Philip Morris USA, Inc.
(Cal. Ct. of App., 2d Dist.), filed July 9, 2013, published July 9, 2013

Richard Boeken brought an action against Philip Morris USA, Inc. seeking damages for lung cancer he developed from smoking Philip Morris cigarettes. A jury awarded him compensatory and punitive damages. However, Boeken died while the verdict was on appeal.

After Boeken died, Dylan Boeken, Richard Boeken’s son, brought a wrongful death action against Philip Morris for Richard’s death. A jury awarded him $12.8 million for loss of consortium.

Philip Morris appealed the verdict. Dylan Boeken cross-appealed the trial court’s refusal to award certain costs.

Philip Morris argued that the trial court failed to instruct the jury on the proper measure of Dylan Boeken’s damages. It argued that based on Blackwell v. American Film Co., 189 Cal. 689 (1922), when a personal injury plaintiff who was fully compensated in a lawsuit for his injuries and resulting physical incapacity dies from those injuries, a surviving child’s wrongful death loss of consortium damages are measured from the decedent’s post-injury diminished condition at the time of death.

The Court of Appeal rejected this argument.

It reasoned that: “Reasonably read, the holding by the court in Blackwell applies to lost economic support and not to lost consortium.”

As to Dylan Boeken’s cross-appeal, the court held “he may not recover interest on his award because his Code of Civil Procedure section 998 offer of settlement did not include the statutorily required ‘provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted.’”