[author: Sunny Shaprio]
In Vanhooser v. Superior Court, 2012 Cal. App. LEXIS 648 (Cal. CT. App. June 1, 2012) the Second District of the California Court of Appeal ruled that the date of diagnosis or discovery of illness, not the date of exposure, is relevant for determining whether a spouse may maintain a loss of consortium cause of action in cases involving latent diseases.
In Vanhooser, Frederick Kenney and his wife, Sherrell Vanhooser, sued auto parts manufacturer Hennessy Industries Inc., based on his alleged exposure to asbestos to its products. His alleged exposure ceased in August 1990. Kenney married Vanhooser in December 1992, and he was diagnosed with mesothelioma in June 2011. In addition to Kenney’s claim for personal injuries, Vanhooser sued Hennessy and others for loss of consortium. Relying on Zwicker v. Altamont Emergency Room Physicians Medical Group, 98 Cal.App.4th 26 (2002), the Los Angeles trial court granted Hennessy’s motion for summary judgment, holding that Vanhooser had no claim for loss of consortium because she was not married to Kenney at the time of his purported exposures to asbestos.
The plaintiff sought a writ of mandate, and Court of Appeal vacated the trial court’s decision. The Court of Appeal distinguished Zwicker, ruling that it only controlled loss of consortium claims in “snapshot torts” – cases in which the tortious act and injury occur almost simultaneously – but did not control in cases involving latent diseases such as mesothelioma. The court reasoned that it would be unfair and “make little sense” to look to the date of exposure, rather than the date of diagnosis/discovery of actual injury, which is the earliest point at which a spouse is placed on actual notice such that he or she might contemplate suit.
The Vanhooser decision mirrors another recent holding by the First District of the California Court of Appeal in Leonard v. John Crane, No.CGC-10-275715, 2012 Cal. App. LEXIS 688 (Cal.Ct. App. June 13, 2012).