upon the location of the weak spot in that gasket, the hot water and steam could have incapacitated him immediately upon its failure rather than providing him with the possibility of a retreat into the rear of the room. In no way can his choice of the particular valves assuming that he knew or should have known that other valves would have been as well suited for the procedure be regarded as an assumption of risk.
For these reasons, the Court finds that defendant was negligent and that it has not presented any defenses which would avoid its liability.
Under the law of the District of Columbia, if a tort results in death, two causes of action arise, one under the Survival Statute (12 D.C. Code § 101 (1978)), and the other under the Wrongful Death Act (16 D.C. Code § 2701 et seq. (1976)). Each of these causes of action has its own elements of damages. Runyon v. District of Columbia, 150 U.S. App. D.C. 228, 463 F.2d 1319, 1321 (D.C. Cir. 1972). In connection with the question of damages under these statutes, plaintiff proffered the deposition testimony of an expert witness; and defendant relied on its cross examination of that witness, contesting several elements of the expert's calculations.
Recovery under the Survival Statute is comprised of that which the deceased would have been able to recover had he lived. Semler v. Psychiatric Institute of Washington, D.C., Inc., 188 U.S. App. D.C. 41, 575 F.2d 922, 925 (D.C. Cir. 1978). In this case, the parties agree that the hospital and medical expenses amount to approximately $ 89,789.31. In addition, plaintiff asserts, and the Court agrees, that the 1978 amendment to 12 D.C. Code § 101 which eliminated a previously-existing prohibition on damages for the decedent's pain and suffering reflects a legislative intent to allow such recovery. Plaintiff's evidence shows that Mr. Graves was conscious and suffered a great deal of pain from second and third degree burns all around his body during the approximately three weeks he survived following the explosion. Under the facts of this case, and taking into account the testimony concerning Mr. Graves' condition prior to his death, the Court finds that $ 75,000 is fair and reasonable compensation for decedent's pain and suffering. Since all of Mr. Graves' earnings were used to pay taxes and to maintain himself and those entitled to recover under the Wrongful Death Act (see Runyon v. District of Columbia, supra, 463 F.2d at 1322), damages under the Survival Act in this case amount to the total of the above figures, that is, $ 164,789.31.
The computation of plaintiff's recovery under the Wrongful Death Act is somewhat more difficult. While the formula appears to be quite simple, i.e., the annual share of the plaintiff in the deceased's earnings multiplied by the decedent's work life expectancy and discounted to present worth, plus the costs of decedent's funeral and last illness ( Runyon v. District of Columbia, supra, 463 F.2d at 1322), there is considerable dispute concerning the assumptions and figures employed by plaintiff's expert in calculating the loss to plaintiff. In addition, the parties dispute the application of the decision in Murray v. United States, 132 U.S. App. D.C. 91, 405 F.2d 1361 (D.C. Cir. 1968) to the instant case.
A discussion of the areas of dispute follows.
First, a figure of eight percent was used by plaintiff's expert to determine what the annual increases in Mr. Graves' income and benefits would have been, on the theory that Mr. Graves had experienced an average annual increase in income of approximately 8.5 percent over eighteen years of employment. The government, on the other hand, contends the appropriate figure is six percent, the average annual increase for craftsmen,
contending that the higher rate was unlikely to continue because it was essentially attributable to factors not likely to be repeated, such as advancement from apprentice to boilermaker and becoming a union member.
At the time of his death Mr. Graves was earning double the wages of the average boilermaker, and his projected earnings would be nearly three times the average by 1990 if the 8.5 percent figure were used. The Court agrees with the government that the evidence is insufficient to justify such a substantial deviation from the average rate of increase and that some of the factors contributing to the 8.5 percent rate were unusual and unlikely to be repeated. However, because of Graves' earning history, the Court will approve the use of a 6.5 percent rate of increase rather than the 6 percent proposed by the government.
Second, in order to arrive at the present value of future earnings, plaintiff's expert used a discount rate of 10.5 percent, while the government contends that the rate should be 12 percent or 13 percent, the rates for long term Treasury securities.
As plaintiff's expert pointed out, however, other economists would use a figure of 6 to 7 percent, and there is no guarantee that once securities purchased in today's market matured they could be replaced with securities yielding equivalent interest. Bearing in mind the various speculations and intangibles, the Court will use the 10.5 percent discount rate.
Third, in adjusting the total figure to compensate for taxes the plaintiff will have to pay on the income derived from the award in this case, it was assumed by plaintiff's expert that taxes would be assessed as if the income were received by one person. The government argues that the tax burden would be lower if it were assumed, as it contends it should be, that the income will be taxable income to four persons (Mr. Graves' widow and his three children). There is no evidence before the Court concerning the effect this would have on the witness's calculations, and the Court refuses to speculate as to what the tax rates of each individual might be.
Finally, the figure supplied by plaintiff as representing the value of the services lost to the family as a result of Mr. Graves' death is the present value of twelve hours per week at the minimum wage ($ 3.50 per hour plus five percent increase per year) for the full life expectancy period, a total of $ 35,542. The evidence shows that Mr. Graves tutored his 16 year old daughter, taught his sons his trade, cooked dinner, did grocery shopping for the family, and did all of the household and automobile repairs. Presumably, however, there would have come a point where Mr. Graves would have no longer been required to tutor his daughter and would have let experience take over as his sons' teacher. The Court finds plaintiff's estimate of the value of lost services to be excessive, and further finds that $ 7,500 is reasonable compensation for this loss.
In view of the foregoing, the Court finds that the damages under the Wrongful Death Act, including the annual share of plaintiff in the deceased's earnings (wages and benefits) multiplied by the decedent's work life expectancy and discounted to present worth, compensation for lost services and compensation for the decedent's last illness and funeral, amount to a total of $ 427,468.
The final issue in connection with relief is the application of the rule established in the case of Murray v. United States, 132 U.S. App. D.C. 91, 405 F.2d 1361 (D.C. Cir. 1968), that a judgment against a defendant must be reduced by one-half where the defendant is statutorily precluded from seeking contribution from a joint tortfeasor. The policy underlying this equitable doctrine is that the defendant would be entitled to contribution from the joint tortfeasor but for the statutory scheme, and that for this reason he should not be held liable for the full amount of the damages. Of course, the application of the "Murray credit" presupposes the existence of a joint tortfeasor in this case that Capitol Boilerworks, Inc. was negligent concurrently with defendant.
Defendant argues that Capitol was negligent in using an asbestos gasket and in failing to "machine" the flange against which the gasket was installed. Plaintiff asserts the following grounds for denial of the credit: (1) Capitol was not negligent; (2) defendant has waived this affirmative defense by failing to plead it and failing to raise it until pretrial, Fed.R.Civ.P. 8(c); (3) the trend of the law in the District of Columbia is to reject the doctrine, Coleman v. Ceco Corp., 108 Washington Law Reporter 893 (Superior Court April 8, 1980);
and (4) application of the Murray credit in this case would work a gross inequity because the insurance carrier of Capitol, intervenor herein, is a subrogee of plaintiff as to any recovery in this action, and if the employer were found negligent, the result would be that the employer would have to pay nothing, the employer's carrier would lose nothing, and plaintiff would lose one-half of the recovery.
The Court has found that Graves was not contributorily negligent, and on similar reasoning it also finds that Capitol was not negligent.
Use of an asbestos gasket was not in itself unreasonable the asbestos gasket used was designed to withstand pressure greater than that of the converter and final authorization for use of the asbestos gasket came from qualified Air Force personnel. In addition, the government presented no evidence that Capitol acted negligently in failing to "machine" the flange against which the gasket was installed. Accordingly, the Murray credit does not apply to plaintiff's recovery in this case irrespective of any of the other considerations advanced.
For all of the above reasons, judgment in the amount of $ 592,257.31, plus of interest and costs, will be entered in favor of plaintiff in this action.
As a result of a claim filed by the surviving wife and children of George Graves under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq.,
Fireman's Fund Insurance Company, the workmen's compensation carrier for Capitol, was ordered on April 11, 1979, to pay compensation, medical benefits, and death benefits to Graves' family for the losses complained of in this action. Fireman's Fund was granted leave to intervene herein, and it filed a complaint asserting that under the Longshoremen's and Harbor Worker's Compensation Act (33 U.S.C. § 933(b)) it is entitled to a lien interest in any recovery by plaintiff in the amount it has paid to or on behalf of plaintiff and decedent pursuant to said order, that is, $ 280,321.31.
Although the government moved to dismiss the intervenor's complaint,
it conceded Fireman's Fund's right to intervene for the limited purpose of obtaining a lien on plaintiff's recovery. Plaintiff, the only party who actually stands to lose as a result of intervenor's claim, has disputed neither intervenor's right to such a lien
nor the amount claimed. Thus, intervenor's claim is taken as conceded, and intervenor's lien on plaintiff's recovery will be recognized in the Court's order.