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SAN FRANCISCO-Defendants are still liable to pay jury awards for pain and suffering, even if the plaintiff dies while the award is appealed, the California Supreme Court has ruled, reversing an appellate court opinion.

The state's high court ruled last week that the heirs of a plaintiff who received a jury award for emotional distress but died before the defendant's appeal was complete are entitled to receive the award if it is upheld.

The unanimous decision in Alene M. Sullivan vs. Delta Air Lines Inc. is particularly relevant in cases where plaintiffs are suffering from terminal illnesses, such as asbestosis or AIDS, attorneys said.

Legal experts say the ruling removes a possible incentive for defense attorneys to stall the appeals procedure until plaintiffs die. California is among the minority of states that do not normally permit heirs to seek pain and suffering awards on behalf of victims.

The decision is not expected, however, to affect a large number of litigants.

The ruling overturns a 1996 decision by the state Court of Appeals in San Francisco that heirs could not claim juries' pain and suffering awards if an appeal was pending. Before that ruling, it had been widely assumed they could do so, attorneys say.

The May 6 decision stems from a wrongful termination suit originally brought by Joseph A. Sullivan, a Delta Air Lines reservations agent fired in 1991. A jury in 1994 awarded him $275,000 for emotional distress. But Mr. Sullivan died of AIDS in 1995, before the appellate process could be completed. The case is now being pursued by his mother, Alene.

The Supreme Court decision, however, does not automatically mean Ms. Sullivan will receive an award, because numerous other issues involved in the complex litigation first will have to be decided by the appellate court, said Delta's attorney, Gilmore F. Diekmann Jr. of Bronson, Bronson & McKinnon in San Francisco.

The decision written by Justice Stanley Mosk says that while California law prohibits recovery of damages of pain and suffering in an "action" brought or maintained on behalf of a deceased plaintiff, "we address here the narrow question whether this statute applies when a judgment for such damages is rendered while the decedent is alive, but the decedent dies during the pendency of an appeal from that judgment."

The decision notes that the Court of Appeals construed the law to bar recovery for damages while an appeal is pending. Judge Mosk wrote: ". . .the (appeals) court stressed that the statute applies generally to 'an action' and construed that word to include an appeal."

However, in ruling that the appellate court erred, Judge Mosk noted that different rules apply depending upon whether or not the plaintiff dies before or after a judgment, and a jury verdict can be considered a final judgment.

"In its most fundamental sense, 'finality' is an attribute of every judgment at the moment it is rendered; indeed, if a judicial determination is not immediately 'final,' in this sense it is not a judgment, no matter what is denominated," said Judge Mosk.

Judge Mosk concluded the relevant statutory language "did not abolish the common law rule that death after judgment does not abate any aspect of personal tort actions, including the right to recover damages for pain and suffering."

The decision will apply to relatively few cases, according to Roy G. Weatherup, a defense attorney with Haight, Brown & Bonesteel in Santa Monica. Mr. Weatherup submitted a friend of the court brief in the case on behalf of the Center for Claims Resolution, a group of asbestos manufacturers.

"It's difficult to say how big an impact it's going to have economically," because cases in which a plaintiff dies between the jury verdict and completion of the appeals process "are not very common."

Delta attorney Mr. Diekmann said pain and suffering is only one category among many for which damages can be awarded, "and often times it's not that significant a category of damages."

Furthermore, he said, before the appellate decision, it had been commonly assumed that surviving heirs could be given a jury's pain and suffering award, "although there was little in the way of court authority to support it."

The Court of Appeals decision "had a lot of plaintiffs attorneys worried," and it would have had an impact had it been upheld, said Mr. Diekmann.

"It was a great deal of work in order to get back to where we were already," said Dianna Lyons, of Kazan, McClain, Edises, Simon & Abrams in Oakland, who represents Ms. Sullivan in the case.

"The effect of the decision is to return the law to where, I think virtually all attorneys and all litigants believed it was before the Court of Appeals decision a year ago," said plaintiffs attorney Harry F. Wartnick of Wartnick, Chaber, Harowitz, Smith & Tigerman in San Francisco.

Mr. Wartnick submitted a friend of the court brief in the case on behalf of two asbestos victims groups, the Baltimore-based National White Lung Assn. and the Scotts Valley, Calif.-based Asbestos Victims of America. Had the appellate court decision been upheld, "it would just have been devastating for people with AIDS, people with cancer, people with asbestosis and the elderly. It would have turned the court system into a very cruel irony for those people," said Mr. Wartnick.

To move up a trial date, someone with a terminal illness must establish he or she will die within six months, noted Mr. Wartnick.

The appellate decision would have meant that plaintiffs would have had to survive two to three additional years to go through the appeal. "That is the Catch-22 effectively that this court removed," Mr. Wartnick said.

Not everyone was as pleased with the decision. "It creates a windfall for the heirs of somebody who dies after receiving an award," though the plaintiff himself "will never see it or get to spend it," said Kevin J. Dunne, a defense attorney with Sedgwick, Detert, Moran & Arnold in San Francisco.

"It's not an unreasonable decision in my opinion," however, said James N. Penrod, a defense attorney with Brobeck, Phlager & Harrison in San Francisco. In dealing with an essentially personal issue, such as awards for pain and suffering, the decision must be made to either not allow them at all, to allow them under all circumstances, or to permit them only under certain circumstances, the middle ground taken in California, Mr. Penrod said. This requires drawing an arbitrary line to decide when they will and will not be permitted, he added.

The arbitrary line drawn in this case is that if the plaintiff survives long enough to obtain a judgment, his heirs can retain the award, said Mr. Penrod.

Mr. Penrod added that, in his view, if an heir is dependent on someone for earnings, an award should survive the plaintiff's death. But, "when its purely pain and suffering damages, it's harder to rationalize others getting those damages, philosophically speaking."

Alene M. Sullivan, as special administrator, etc. plaintiff and respondent, vs. Delta Air Lines Inc., defendant and appellant, No. 5052972, California Supreme Court.