[author: Guy W. Stilson]
Vanhooser v. Superior Court (Hennessy Industries, Inc.)
Second Appellate District, Division 3 (June 1, 2012)
Loss of consortium is a plaintiff’s claim for loss of the marital services of the plaintiff’s spouse caused by an injury to the spouse and made against the person who allegedly caused the injury to the spouse. Such claims were recognized under English common law and are frequently made by plaintiffs who are married to people who have developed asbestos-related diseases. The first element of a loss of consortium claim is the existence of a marriage at the time of the injury to the plaintiff’s spouse: loss of consortium relief is not available when the injury pre-exists the marriage. This case examined the issue of whether, in the context of asbestos litigation, the “injury” should be considered to have occurred at the time of the exposure to asbestos or when the asbestos-related disease was discovered. The Court of Appeal determined that the time of discovery is the relevant time, overturning a summary judgment.
Until the announcement of this case, defendants in asbestos cases had had significant success in arguing that loss of consortium relief could not be awarded where the exposure to asbestos occurred before the marriage, regardless of the fact that the asbestos-related disease may not have been discovered until years after the marriage took place. This argument was based on the case of Zwicker v. Altamont Emergency Room Physicians Medical Group (2002) 98 Cal.App.4th 26, a case which did not involve a latent disease and which equated the time of the wrongful act with the time of the injury. Here, the Court of Appeal found that the fact that asbestos-related diseases have long latency periods separates the time of the wrongful act (exposure to asbestos) and the time of the injury (development of an asbestos-related disease) in a way which impacts loss of consortium analysis.
Ms. Vanhooser’s husband, Frederick Kenney, was exposed to asbestos in the 1960s and 1970s while he was in the Navy, and until 1990 as an automobile mechanic. He married the plaintiff, Sherrell Vanhooser, in late 1991 or 1992. In 2010 Mr. Kenney developed symptoms of mesothelioma and he was diagnosed with the disease in June 2011. Defendants, arguing on the basis of Zwicker, were awarded summary judgment on Ms. Vanhooser’s loss of consortium claim. Los Angeles County Judge Emilie H. Elias, who is the coordinating judge for all asbestos personal injury cases in Los Angeles, granted the motion but expressed her dislike for the result Zwicker engendered and certified the ruling to the Court of Appeal, noting that this loss of consortium issue was a recurring issue in Southern California asbestos litigation (Editor’s Note: this was also a recurring issue in Northern California cases). The Court of Appeal issued a writ of mandate and reversed the summary judgment order.
The Court of Appeal stressed the fact that mesothelioma is a latent disease, that it is difficult to tell when the injury occurs, and no temporally discrete event exists that encompasses the defendant’s breach and the plaintiff’s injury. The Court of Appeal stated that “diagnosis or discovery of actual injury or symptoms is the earliest point at which it might reasonably be said, in the latent disease context, that the [spouse] has been placed on actual notice of his injuries such that he might contemplate suit” and “a spouse has not suffered a compensable harm or injury from asbestos exposure until he or she is diagnosed with or discovers actual injury from or symptoms of the asbestos-related illness.” The Court of Appeal did not go into detail regarding what constitutes discovery of an asbestos-related disease.
Comment and Evaluation
This case holds that the date of discovery of an asbestos-related disease constitutes the important date (rather than the date of exposure) in loss of consortium claims with regard to determining whether injury existed at the time of the marriage. Accordingly, the grounds for summary judgment and other dismissals of certain loss of consortium claims has been effectively narrowed.
Prior to this case, while it was certainly important for defendants to understand the medical history of the injured person, it was not critical for defendants to know the specific dates of potential indicators of asbestos-related disease, such as episodes of shortness of breath, coughing, or other conditions that could raise a suspicion of an asbestos-related disease. Based on this case, defendants in situations where loss of consortium claims are presented – particularly where the marriage occurs late in life – may want to obtain more and earlier medical records than are usually obtained in these cases in order to look for any early indications of an asbestos-related disease which may be used to cut off a loss of consortium claim. Plaintiffs are sure to resist these efforts. The end result will be more time spent on discovery requests, analysis of discovery materials and records, and discovery motions.
Additional litigation will also be required to answer questions regarding what constitutes discovery of an asbestos-related disease and whether discovery of one asbestos-related disease, such as asbestosis, before a marriage occurs will serve to cut off a loss of consortium claim allegedly relating to another asbestos-related disease, such as mesothelioma or lung cancer, which arises after the marriage occurs.
For the full decision see http://www.courts.ca.gov/opinions/documents/B239677.PDF
Low, Ball & Lynch’s Environmental and Toxic Torts Team has been successfully representing defendants in asbestos-related litigation for over 25 years. The Environmental and Toxic Torts Team also handles cases involving chemical spills and toxicity, lead, silica, and Proposition 65.
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