Unpublished Disposition, 852 F.2d 571 (9th Cir. 1988)

MEMORANDUM^* 

The government appeals the award of loss of consortium damages to Janice Flanigan in this Federal Tort Claims Act action. Liability is not contested.

Flanigan's husband of 28 years, Richard Flanigan, was killed in 1981 when the commercial cargo plane he was piloting crashed at Pullman, Washington. Richard Flanigan was 49 and in good health at the time of his death. The Flanigans had two children.

The district court awarded economic loss damages to Janice Flanigan in the amount of $134,955. The court also awarded noneconomic loss damages for "intangible losses such as comfort, love and affection, care, companionship, society and consortium" in the amount of $270,000. It commented that this amount was "obviously a rounding and doubling of her economic loss". The total damages of Janice Flanigan was $404,955; however, this amount was reduced by the district court by 30%, the percentage of comparative fault attributed to the decedent. Thus, the net total award was $283,468.50.

The government contends that the district court, using incorrect legal standards, improperly doubled the economic damage award to arrive at the noneconomic damage award. The government further contends that as a matter of law the amount of the district court's loss of consortium award is excessive.

In a Federal Tort Claims Act action the measure of damages that can be recovered against the United States is based on state law, in this case, Washington. Shaw v. United States, 741 F.2d 1202, 1205 (9th Cir. 1984); Felder v. United States, 543 F.2d 5657, 665 (9th Cir. 1976). See 28 U.S.C. §§ 1346(b), 2674.

The district court's methodology in assessing damages is a purely legal issue and not a factual issue. We review legal issues de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.), cert. denied, 469 U.S. 824 (1984). "On questions of law, such as the proper elements of an award of damages, we, of course, have a free hand in scrutinizing the district judge's decisions." Felder, id. at 663, citing United States v. Mississippi Valley Generating Co., 364 U.S. 520, 526 (1961).

The Washington Supreme Court in Mallstrom v. Kalland, 384 P.2d 613 (Wash.1963), discussed the distinction between jury verdict damage awards and trial court damage awards such as the one here:

No reasons are given in a jury verdict fixing the amount of damages unless special interrogatories are propounded. The trial court, on the other hand, usually expresses its reasons, either in an oral or a written memorandum opinion. For an interpretation of the facts found and the amount of damages awarded, we may consider the opinion of the trial court to test whether it has acted upon a wrong principle of law, has misapprehended the facts, or has made a wholly erroneous estimate of the damages suffered; otherwise, the alleged excessiveness of an award of damages by a jury (absent passion and prejudice) and by a trial judge should be tested by the same rules.

384 P.2d at 616.

We held in Felder that " [N]on pecuniary damages must be based on the relationship between the decedent and his survivors, not upon economic status," 543 F.2d at 675, and also held that the size of pecuniary loss is an "impermissible criterion upon which to base damages intended to be compensatory." Id.

The district court discussed the factors it considered in reaching its award of noneconomic damages:

Now with regard to the nonpecuniary loss, the intangibles--an award for those factors that include so many things that are difficult to label--the loss of support, meaning not economic support, which has already been considered, but the loss of moral support and the family support, of comfort in the sense of the enjoyment that people gain from their joint endeavors in their rearing of a family and the making of a home; loss of affection, care--actual physical care for one another--services mutually extended, companionship, society, consortium.

We conclude that the district court complied with the standards of Felder. The court in its ruling discussed the relationship between the decedent and his wife relative to the issue of loss of consortium. We hold that the basis of the court's ruling was within the mandate of Felder that nonpecuniary damages be based on the relationship between the decedent and his survivors and not upon economic status. In this regard, what the court did was neither arbitrary nor based on a "simple doubling" of the economic damage award.

Accordingly, we affirm the district court's award of noneconomic damages.

To determine whether an award is excessive under the Federal Tort Claims Act we look to the relevant state's case law. "The State of Washington considers awards excessive 'only if the amount shocks the court's sense of justice or sound judgment' and if it 'appears that the trial judge was swayed by passion or prejudice.' " Trevino v. United States, 804 F.2d 1512, 1515 (9th Cir. 1986), quoting Shaw v. United States, 741 F.2d 1202, 1209 (9th Cir. 1984). To make that determination, we compare the challenged award to awards in similar cases in the same jurisdiction. Id.

The highest award for a loss of consortium claim based solely upon a wrongful death action in Washington State was $200,000. Ginochio v. Hesston Corp., 733 P.2d 551 (Wash.Ct.App.1987). A higher award of $293,000 for loss of consortium was awarded in Bingaman v. Grays Harbor Community Hosp., 685 P.2d 1090 (Wash.Ct.App.1984), reversed in part, 699 P.2d 1230 (Wash.1985). However, that award was based on an erroneous instruction directing the jury to include in the wrongful death claim all elements of pecuniary loss even those relating to the survival claim.

The award to Janice Flanigan of $270,000 for intangibles plus $25,065 for household services does not shock our sense of sound judgment and is not clearly excessive in light of Ginochio and Bingaman.

We affirm.