Economic Loss Damages for Asbestos In Building
Summarizing asbestos-in-building cases from all over the country, the Grace court (San Francisco Unified School Dist. v. W.R. Grace & Co. (1995)) noted the issue presented itself in two distinct situations:
Cases involving the mere presence of asbestos in the buildings and those in which asbestos contamination had occurred. ( Grace, supra, 37 Cal. App. 4th at pp. 1328-1329.)
It noted in the latter category, "jurisdictions that adopt Seely's physical injury/economic loss distinction routinely find that asbestos contamination constitutes the physical injury element of strict liability or negligence causes of action . . . . the injury for which asbestos plaintiffs are being recompensed has been found to be the contamination of their buildings, not the mere presence of asbestos." (Ibid.)
It concluded, "In order to be consistent with the principles of Seely, it appears that until contamination occurs, the only damages that arise are economic losses that do not constitute physical injury to property recoverable in strict liability . . . . Physical injury resulting from asbestos contamination, not the mere presence of asbestos, must have occurred before a cause of action for strict liability . . . can accrue . . . ." ( Id. at p. 1330.)
Although there is a generous supply of other authorities illustrating the difference between physical damage and economic loss, a brief notation regarding one more recent decision should be sufficient to hammer the point home. Casey v. Overhead Door Corp. (1999) 74 Cal. App. 4th 112 [74 Cal. App. 4th 1231g, 87 Cal. Rptr. 2d 603] involved, inter alia, defectively constructed windows in a residential tract.
The plaintiffs argued the trial court had improperly precluded their cost estimator expert from testifying to certain damages.
The Casey court noted the ruling had correctly barred testimony regarding "economic losses," i.e., the removal and replacement of the windows, but it had not prevented the plaintiffs from eliciting testimony "regarding damages which were not 'economic losses,' " i. e., the physical damage caused by the defective windows "to the drywall and framing," and the resultant "insect infestation and damage to personal property." ( Casey v. Overhead Door Corp., supra, 74 Cal. App. 4th at p. 123.)
For some unknown reason, the plaintiffs had simply stipulated "that the cost estimator would not testify that repair would include new drywall, new framing and removal of the insects." (Id. at p. 124.)
The reviewing court found the appellants bound by the admission "they had no evidence to support a claim for any measure of damages other than economic loss." (Ibid.)