ML13308A861
| ML13308A861 | |
| Person / Time | |
|---|---|
| Site: | San Onofre  |
| Issue date: | 11/26/1984 |
| From: | Harward J AMERICAN NUCLEAR INSURERS |
| To: | Saltzman J NRC OFFICE OF STATE PROGRAMS (OSP) |
| References | |
| NUDOCS 8501100002 | |
| Download: ML13308A861 (15) | |
Text
REGULATORY 1*ORMAT1ON DISTRIBUTION SYbQM (RIDS)
ACCESSION NBR:8501100002 DOC.DATE:.84/11/26 NOTARIZED: NO DOCKET #
FACIL:50-206 San Onofre Nuclear Station, Unit 1, Southern Californ 05000206 50-361 San Onofre Nuclear Station, Unit 2, Southern Californ 05000361 50-362 San Onofre Nuclear Station, Unit 3, Southern Californ 05000362 AUTH.NAME AUTHOR AFFILIATION HARWARD,J,E, American Nuclear Insurers RECIP.NAME RECIPIENT AFFILIATION SALTZMAN,J.
Assistant Director for State & Licensee Relations
SUBJECT:
Forwards J 8erry complaint filed in Supreme Court of State of CA against util,Nuclear Power Outfitters & Safety &
Supply Corseeking recovery for negligencerbreach of express
& implied warrartyrstrict liability & punitive damage.
DISTRIBUTION CODE: M012D COPIES RECEIVED:LTR jENCL SIZE:..
TITLE: Insurance Claims (Indemnity)
NOTES:J Hanchett Icy PDR Documents. NRR/DL/SEP 1cy, 05000206 OL:03/27/67 J Hanchett Icy PDR Documents. ELD Chandler icy.
05000361 OL:02/16/82 J Hanchett icy PDR Documents. ELD Chandler icy, 05000362 OL:11/15/82 RECIPIENT COPIES RECIPIENT COPIES ID CODE/NAME LTTR ENCL ID CODE/NAME LTTR ENCL INTERNAL: ELD/HDS2 1
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TOTAL NUMBER OF COPIES REQUIRED:
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AMERICAN JOHN E. HARWARD NUC EARVice President-Claimns
/]
NUCLEAR.
INSURERS BURT C. PROOM,CPCU President and Chief Executive Officer November 26, 1984 Mr. Jerome Saltzman Assistant Director State and Licensee Relations Office of State Programs U. S. Nuclear Regulatory Commission Washington, D.C.
20555
Subject:
Abstract #111 Southern California Edison Company, et al.
Policy Numbers NF-146, MF-38 Re:
Joseph Berry D/O:
March 21, 1981
Dear Mr. Saltzman:
Attached find a copy of the complaint filed by the plain tiff, Joseph Berry, in the Supreme Court of the State of California, against Southern California Edison Company, Nuclear Power Outfitters and Safety and Supply Company. The complaint seeks recovery for negligence, breach of express and implied warranty, strict liability and punitive and exemplary damage against the defendants.
This suit had been outstanding for some time before we were notified of the litigation. However, the incomplete infor mation available to us at this time indicates the plaintiff is alleging unspecified injuries from radiation exposure resulting from the detachment of the air hose from his protective suit and bubble hood, while working in a contami nated area at the San Onofre nuclear generating station.
We have appointed counsel to defend this action on behalf of Southern California Edison Company and Nuclear Power Outfit ters. We have yet to be contacted by Safety and Supply Company, the other defendant in this case, but anticipate eventually participating in the defense on their behalf.
85100002 84112 PDR AD OC&K 05000206 PDR The Exchange, Suite 245/ 270 Farmington Avenue / Formington, Connecticut 06032 / (203)677-7305 0 Eng. Dept. (203) 677-7715 / TLX. No. 643-029
Mr. Jerome Saltzman Page 2 November 26, 1984 Inasmuch as California courts have previously ruled that it is against the public policy of California for a liability carrier to cover a punitive damage award against an active wrongdoer, we have taken a "reservation of rights" on this coverage issue. Please let me know if you require any additional information on this case at this time.
Very truly yours,
- E. arward Vice President, Claims JEH/pbj Enclosure
LAW 1
GRE AND IRING(SPACE BELOW FO.R FINi STAMP ONLY) 1 GSREY AND ORING A PROFESSIONAL CORPORATION 2
2721 SOUTH LA CIENEGA BOULEVARD LOS ANGELES, CALIFORNIA 90034 (213) 558-8000 5
Attomeys for Plaintiff 6
7 8
SUPERIOR COURT OF THE STATE OF CALIFORNIA 9
FOR THE COUNTY OF SAN DIEGO 10 11 JOSEPH BERRY,
)
NO.
i.,j 12i Plaintiff,
)
COMPLAINT FOR DAMAGES; NEGLIGENCE; BREACH OF EXPRESS 13J vs.
)
WARRANTY; BREACH OF IMPLIED
)
WARRANTY; STRICT LIABILITY 14 SAFETY & SUPPLY COMPANY, NUCLEAR)
POWER OUTFITTERS, SOUTHERN
)
15 CALILFOP-NIa EDISON 'COMPANY, a
,al rA corporation, and 16 DOES 1 through 25, Inclusive, 17 Defendants.
18 19 Plaintiff alleges as follows:
20 FIRST CAUSE OF ACTION AGAINST DEFENDANTS, AND 21 EACH OF THEM -1NEGLIGENCE 22
- 1.
At all times herein mentioned, plaintiff was, and 23 is, a resident of the County of Los Angeles, State of California.
24
- 2.
At all times herein mentioned, defendants, and each 25 of them, were and are,residents of the County of San Diego and/or 26 all of the acts sued upon herein occurred within the geographical 27 jurisdiction of this Court.
- 3.
Plaintiff is ignorant of the true names and capa-
.1 cities of defendants sued herein as DOES 1 throuch 25, inclusive, 2
and therefore sues such defendants by such fictitious names.
31 Plaintiff will amend this complaint to allege their true names and 4 capacities when the same have been ascertained.
5
- 4.
At all times herein mentioned, each of the above 6
defendants was t.he agent and employee of each of its co-defendants, 7
and in doing the things hereinafter alleged, was acting within the 8 course and scope of such agency and employment and with the permission and consent of each of their co-defendants.
10!
- 5.
At all times herein mentioned, defendarnts SAFETY &
SUPPT.V COMPANY and NUCLEAR POWER OUTFITTERS were engaced in the 12:: business of, inter alia, manufacturing, compounding, packaging,
> 0oo n
- designing, distributing, testing, constructing, fabricating,
~ L6 ianalyzing, recommending, merchandising, advertising, promoting and O21t 151: selling products known as radiation protective suits and bubble 16:hoods, for use by persons in the nuclear power industry.
- 6.
At all times herein mentioned, defendants, and each of them, had a duty to properly manufacture, compound, test, 19 inspect, package, label, distribute and market said products.
20'
- 7.
At all times herein mentioned, defendants, and each 21 of them, knew, or in the exercise of reasonable care should have 2 2
- known, that said protective suits and bubble hoods were of such a 23 nature that if not properly manufactured, compounded, tested, 24! inspected, packaged, labeled, distributed and marketed for the use 25 and purpose for which they were intended, they would be likely to 26! injure the person by whom said equipment was used.
271l
- 8.
Defendants, and each of them, so negligently and 281 carelessly manufactured, compounded, tested or failed to test, 1 inspected or failed to inspect, labeled, distributed, recommended, 2
displayed and sold said products that the same were defective and 3
dangerous products, and unsafe for the uses and purposes for which 4
they were intended when used and applied as recommended by defen 5, dants, and each of them.
6
- 9.
At all times herein mentioned, defendant SOUTHERN 7
CALIFORNIA EDISON COMPANY was the owner and operator of the San 8' Onofre Nuclear Power Plant located in the County of San Diego, 9 State of California and were engaged in the business of providing 10 nuclear electrical power and maintaining said plant.
11 :
- 10.
On or about March 21, 1981, at the aforementioned 12' power plant, plaintiff was using said products for the purposes for 0 13 which they were intended to be used, namely protection from hostile.
n14 environments in the nuclear power industry.
1511. Because of the aforementioned negligence of.the a: defendants, and each of them, in the manufacture, compounding, 1711 testing, inspection, distribution, recommendation, display and sale 181 of said products, plaintiff was injured when a hose broke away from said protective suit and bubble hood causing plaintiff severe, 20 grievous and serious injuries, as hereinafter described.
21 K12.
As a direct and proximate result of the aforemen 22 tioned negligence of defendants, and each of them, olaintiff was 23K caused to sustain damages and injuries, including but not limited 24 to, injury to his health, strength and activity, and has further 25 sustained bodily injury and shock to his nervous system and person, 26! all of which have caused and continue to cause plaintiff great 27 mental and-physical. pain and suffering and nervousness. Plaintiff 28 is informed and believes and thereon alleges that these injuries 1
will result in some permanent disability to plaintiff, all to 2:, plaintiff's general damage in a sum according to proof at time of 3
trial.
4
- 13.
As a further direct and Droximate result of said 5
acts of defendants, and each of them, plaintiff has incurred, and 6 will continue to incur, medical and incidental expenses.
The exact 7
amount of such expenses are presently unknown to-plaintiff, and 81 when the same are ascertained, plaintiff will seek leave of Court 9 to amend this complaint to correctly set forth the same.
- 14.
Plaintiff is informed and believes and thereon 11 alleges that said injuries will result in some degree of permanent
- 2. injury to plaintiff.
>0 og 13.'
- 15.
Plaintiff is informed and believes and thereon U
alleges that plaintiff has sustained an impairment to plaintiff's present and future earning capacity as a result of the negligence 0 6 a&
of defendants, and each of them.
The full and exact amount of such 17; loss of present and future earnings is presently unknown to 18 plaintiff, and at such time as the same-is ascertained, plaintiff 19 will seek leave of Court to amend this complaint to set forth the 20 same.
21 SECOND CAUSE OF ACTION AGAINST DEFENDANTS 22 SAFETY & SUPPLY COMPANY AND NUCLEAR POWER 2 23 OUTFITTERS --
BREACH OF EXPRESS WARRANTY 24
- 16.
Plaintiff incorporates herein by reference paragraphs 25 1 through 7 of his First Cause of Action and makes them a part of 26 this cause of action as though fully set forth at -length.
27
- 17.
At all times herein mentioned, on and prior to 28 March 21, 1981, defendants, and each of them, did expressly warrant 1! to plaintiff and other members of the working force that said 2 product was effective, proper and safe for its intended use.
3
- 18.
Plaintiff relied on said express warranty represen 4, tations of defendants, and each of them, in using said products.
5
- 19.
Said express warranty representations were false in 6, that the products had not been adequately safeguarded against the K
7 danger of faulty fittings of hoses for said products, and defendants 8: and each of them, thereby breached said warranty.
9
- 20.
On or about March 21, 1981, plaintiff was using said 10 products for the purpose for which they were intended when a hose 11 broke away from said products causing plaintiff severe, grievous a
12 and serious injuries, as hereinafter described.
<O e 8 13
- 21.
On or about March 21, 1981, plaintiff discovered that 14 said express warranty representations of defendants, and each of Z fN15 them, were false, and immediately gave defendant manufacturers due 16 and timely notice thereof.
"g 17
- 22.
As a direct and proximate result of said defects in 18 said products, resulting in the breach of express warranty of 19 defendants, and each of them, as alleged above, plaintiff was 20 caused to sustain damages and injuries, including but not limited 211 to, injury to his health, strength and activity, and has further 22 sustained bodily injury and shock to his nervous system and person, 23 all of which have caused and continue to cause plaintiff great 24 mental and physical pain and suffering and nervousness. Plaintiff 25 is informed and believes and thereon alleges that these injuries 26 will result in some permanent disability to plaintiff, all to 27 plaintiff's general damage in a sum according to proof at time of 281 trial.
.1
- 23.
As a further direct and proximate result of said 2 defects in said products, resulting in the breach of express 3; warranty of defendants, and each of them, as alleged above, plain 4;: tiff has incurred, and will continue to incur medical and incidental 5i expenses. The exact amount of such expenses are presently unknown 6H to plaintiff, and when the same are ascertained, plaintiff will seek 7' leave of Court to amend this complaint to correctly set forth the 8: same.
9
- 24.
Plaintiff is informed and believes and thereon 10 alleges that said injuries will result in some degree of permanent
/II injury to plaintiff.
<0i 121
- 25.
Plaintiff is informed and believes and thereon 13 alleges that plaintiff has sustained an impairment to plaintiff's Et 14 present and future earning capacity as a result of said defects in b
said products, resulting in the breach of express warranty or d
16' defendants, and each of them, as alleged above.
The full and exact' 17 amount of such loss of present and future earnings is presently
'0 Nj 18 unknown to plaintiff, and at such time as the same is ascertained,
- 19. plaintiff will seek leave of Court to amend this complaint to set 20:, forth the same.
21
/
THIRD CAUSE OF ACTION AGAINST DEFENDANTS 22 SAFETY & SUPPLY COMPANY AND NUCLEAR POWER 23 OUTFITTERS -- BREACH OF IMPLIED WARRANTY 24
- 26. Plaintiff incorporates herein by reference paragraphs 25; 1 through 7 and 10 of his First Cause of Action and makes them a 26 part of'this cause of action as though fully set forth at length.
27
- 27.
Prior to the time that plaintiff began using said 28 products for the hereinabove descr/ibed purposes, defendants, and 1
each of them, impliedly warranted to plaintiff that said products 2
were of merchantable quality and safe for the use for which said 3, products were intended by defendants, namely protection from hostilE 4
environments in the nuclear power industry.
5i!
28.. Plaintiff relied on the skill and judgment of 6" defendants, and each of them, in his manner of using said products 7 and on the date at the time previously mentioned, plaintiff was 8! using said products in a foreseeably intended manner.
9
- 29.
Said products were not safe for their intended use, 10' or of merchantable qualities warranted by defendants, in that said 11 products had a dangerous propensity for faulty fittinos of its g
12 hoses.
< 0 0 2a0 a8 13'
- 30.
Said hose broke away from said products causinq 0 14 plaintiff severe, grievous and serious injuries, as hereinafter oz 0u 15 described.
- 31.
After plaintiff was injured by said products and in 17; the time and in the manner and in the form prescribed by law, 18 notice was given by plaintiff to defendants of the breach of.said 19 implied warranties.
20
- 32.
As a direct and proximate result of said defects in 21 said products, resulting in the breach of implied warranty of 22 defendants, and each of them, as alleged above, plaintiff was 23 caused to sustain damages and injuries, including but not limited 24 to injury to his health, strength and activity, and has further 25i sustained bodily injury and shock to his nervous system and person, 26 all of which have caused and continue to cause plaintiff great 27' mental and physical pain and suffering and nervousness.
Plaintiff 28 is informed and believes and thereon alleges that these injuries 1
will result in some permanent disability to plaintiff all to 2 plaintiff's general damage in a sum according to proof at time of 3 trial.
- 33.
As a further direct and proximate result of said 5 1 defects in said products, resulting in the breach of implied 6 warranty of defendants, and each of them, as alleged above, plain 7 tiff has incurred, and will continue to incur, medical and inci 8 dental expenses.
The exact amount of such expenses are presently 9 unknown to plaintiff, and when the same are ascertained, plaintiff wi l
s e
e ve o
o r
o m
nOh s
co p
anOo co r
c l
e 1 ort t,he same.
12:
- 34.
Plaintiff is informed and be.lieves and thereon alleges that said injuries will result in some degree of permanent injury to plaintiff.
Oz 1u; 5
- 35.
Plaintiff is informed and believes and thereon 16 alleges that plaintiff has sustained an imnairment to plaintiff's present and future earning capacity as a result of said defects in 18 said products, resulting in the breach of implied warranty of 19 defendants, and each of them, as alleged above.
The full and exact 20 amount of such loss of present and future earnings is presently 21 unknown to plaintiff, and at such time as the same is ascertained, 22 plaintiff will seek leave of Court to amend this complaint to set 23 forth the same.
24 FOURTH CAUSE OF ACTION AGAINST DEFENDANTS 25 SAFETY & SUPPLY COMPANY AND NUCLEAR POWER 26
~
OUTFITTERS -- STRICT LIABILITY 27
- 36.
Plaintiff incorporates herein by reference paragraphs 28 1 through 7 of his First Cause of Action and mkaes them a part of f
g 1
this cause of action.as though fully set forth at length.
21
,37.
Defendants, and each of them, manufactured, packaged 3
designed, distributed, tested, constructed, fabricated, analyzed, 4i recommended, merchandised, promoted and sold the foregoing products 5
and their component parts, ingredients and constituents, which were 6 intended by defendants, and each of them, to be used for protection
-7 from hostile environments in the nuclear oower industry.
8
- 38.
Defendants, and each of them, knew that said products 9 would be used without inspections for defects by plaintiff.
10
- 39.
Said products were unsafe for their intended uses by 11: reason of defects in their manufacture, ingredients and contents g
1.2 in that said products had a dangerous propensity for faulty fittingE z>OO 13; of its hoses.
E 14 1
- 40.
On or about March 21, 1981, olaintiff was using the 15 above-described products in a manner for which it was foreseeably 16 intended that they be used, and as a proximate result of the defects S17: previously described, said hose broke away from said products and 181 proximately caused plaintiff to sustain the injuries and damages 19 set forth below.
- 41.
As a direct and proximate result of the defects, as 21 alleged herein, plaintiff suffered severe, grievous and serious 22 injuries and damages, including but not limited to, in'urv to his 23 health, strength and activity, and has further sustained bodily 24' injury and shock to his nervous system and person, all of which 25, have caused and continue to cause plaintiff great mental and 26'i physical pain and suffering and nervousness. Plaintiff is informed 27 and believes and thereon alleges that these injuries will result in 28 some permanent disability to plaintiff, all to plaintiff's general damage in a sum according to proof at time of trial.
2
- 42.
As a further direct and proximate result of the 31 defects, as alleged herein, plaintiff has incurred, and will con 4K tinue to incur medical and incidental expenses. The exact amount 5 of such expenses are presently unknown to plaintiff, and when the 6 same are ascertained, plaintiff will seek leave of Court to amend 7 this complaint to correctly set forth the same.
8
- 43.
Plaintiff is informed and believes and thereon 9 alleges that said injuries will result in some degree of permanent 10 injury 11h
- 44.
Plaintiff is informed and believes and thereon 12: alleges that plaintiff has sustained an impairment to plaintiff's o 1 present and future earning capacity as a result of the defects, as S14' alleged herein. The full and exact amount of such loss of present.
0G 15': and future earnings is presently unknown to plaintiff, and -at such 16: time as the same is ascertained, plaintiff will seek leave of Court 17 to amend this complaint to set forth the same.
18
- 45.
Defendants, and each of them, knew that said 19 products had such a dangerous propensity for its hoses to break 20 away from said products when used for the purpose for which defen 21: dants Foreseeably intended said products to be used.
22.:
- 46.
Defendants, and each of them, acted with malice, 23 willfullness, fraud and oppression towards plaintiff in allowing 24 such an extremely dangerous product to be used by members of the 25: class to which plaintiff belonged without a proper warning. Plain 26' tiff is therefore entitled to punitive and exemplary damages in the 27' sum of $500,000.00.
WHEREFORE, plaintiff prays judgment acainst defendants, 2
and each of them, as follows:
3 FIRST CAUSE OF ACTION AGAINST DEFENDANTS, AND EACHOFTHEM
- 1.
General damages according to proof at time of trial; 5
- 2.
Medical and incidental expenses according to proof at time of trial; 7'
- 3.
Loss of earnings, present and future, according to S proof at time of trial;
- 4.
Pre-judgment interest at the legal rate based upon 10 ultimate recovery;
- 5.
Costs of suit incurred herein; and 2:6.
Such other and further relief as this Court may deem z >0 0 5 3 just and proper.
z Q z C SECOND AND THIRD CAUSE OF ACTION AGAINST DEFENDANTS or oa 15 SAFETY & SUPPLY COMPANY AND NUCLEAR POWER OUTITES 0
L
- 1.
General damages according to proof at time of trial; 17
- 2.
Medical and incidental expenses according to proof 18 at time of trial; 19'
- 3.
Loss of earnings, present and future, accordinq to 20 proof at time of trial; 21:
- 4.
Pre-judgment interest at the legal rate based upon 22 ultimate recovery; 23:;
- 5.
Costs of suit incurred herein; and 24
- 6.
Such other and further relief as this Court may deem 25 just and proper.
26:
FOURTH CAUSE OF ACTION AGAINST DEFENDANTS SAFETY &
27 SUPPLY COMPANY AND NUCLEAR POWER OUTFITTERS:
- 28.
- 1.
General damages according to proof at time of trial; 1
- 2.
Medical and incidental expenses accordina to proof 2,: at time of trial; 3:
- 3.
Loss of earnings, present and future, according to 4
proof at time of trial; 5,
- 4.
Punitive and exemplary damages in the sum of 6! $500,000.00; 7
- 5.
Pre-judgment interest at the legal rate based upon 8 ultimate recovery; 9
- 6.
Costs of suit incurred herein; and 10
- 7.
Such other and further relief as this Court may deem 11 just and proper.
S2;
< 00 z>o 13 DATED:
March 18, 1982.
GREY AND ORING MR RINGO 14 20c20 IL ILI~
- "'A~
'tA~
v
'or Plaintiff 18 20; 21
- 22.
23 24 25 26 27 !;
28