San Francisco Chronicle - The Voice of the West, 901 Mission Street, San Francisco, CA 94119 - Tuesday, May 6, 1997 - Page A18
Harriet Chiang, Chronicle Legal Affairs Writer

In a unanimous decision, the high court found that Alene Sullivan is entitled to collect her late son's award for emotional distress damages. Joseph Sullivan had sued the airline after he was fired in 1991, claiming he was dismissed because he had AIDS. After winning in court, he died of AIDS in February 1995.

Even if a plaintiff dies the day after a verdict, the judgment is still final, assuming that it is ultimately upheld on appeal, the court ruled yesterday.

"Finality," wrote Justice Stanley Mosk, "is an attribute of every judgment at the moment it is rendered."

The case has been closely watched by trial lawyers, who anticipate that it will have a major effect in protecting emotional distress verdicts awarded to dying plaintiffs and will prevent defense attorneys from prolonging cases by filing endless appeals.

"Plaintiffs lawyers have been watching this case with bated breath," said Dianna Lyons, the Oakland attorney representing Sullivan's mother.

Attorneys generally agree that the decision will have its biggest impact in asbestos cases, where retired ship workers and others bringing suit often are diagnosed only in the latter stages of asbestos-related diseases. By the time they get to trial, they often have less than a year to live.

The high court found yesterday that a law forbidding the estate of a deceased plaintiff from collecting damages for pain and suffering did not apply.

The court reversed a state appeals court decision that had concluded that the judgment had died with Sullivan.

Sullivan had worked for Delta Air Lines for 13 years as a reservations agent at San Francisco International Airport before he was fired in October 1991.

He sued, claiming that he been illegally fired because he was infected with the AIDS virus.

A San Mateo jury returned a verdict in favor of Sullivan in May 1994, finding that the airline had invaded his privacy by compiling a list of employees who have HIV.

The jury also found that Delta had fired him for taking part in an alcohol rehabilitation program. However, the jury rejected his claim that he had been fired because of his illness and deadlocked on whether he was a victim of AIDS discrimination. The trial judge tossed out Sullivan's bid for lost wages because of his admitted cocaine use and the airline's "no- tolerance" drug policy.

In its appeal, the airline said the list was compiled to help supervisors to deal with on-the-job absences caused by AIDS- related illnesses. Delta also claimed that Sullivan was fired after he had been kicked out of a second alcohol abuse rehabilitation program.

While the case was on appeal, Sullivan died of AIDS.

In March 1996, a state Court of Appeal in San Francisco sided with the airline and threw out the suit on behalf of Sullivan's mother, who was the administrator of her son's estate.

San Francisco attorney Gil Diekmann Jr., who represented Delta, criticized the Supreme Court for failing to address the Legislature's intent in passing the law involved.

"The Legislature decided in 1949 that it was going to prohibit the estates of the deceased from collecting money for emotional distress they suffered during their lifetime," Diekmann said.

The court's decision sends the case back to the state Court of Appeal, where Diekmann says he is confident that Delta will ultimately prevail on other disputed issues.
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