Metropolitan News-Enterprise


Thursday, June 14, 2012


Page 1


C.A. Takes Liberal View of Consortium Claim in Asbestos Case

Panel Declines to Apply Third District Ruling to Toxic Exposure Case




The spouse of a person who suffers injury before marriage may bring a loss-of-consortium claim if the injury first manifests itself during the union, the First District Court of Appeal ruled yesterday,

Reinstating Sandra Leonard’s claim against John Crane, Inc., Div. Five said the Third District opinion relied on by the lower court, Zwicker v. Altamont Emergency Room Physicians Medical Group (2002) 98 Cal.App.4th 26, should not apply to a case of exposure to toxics. Zwicker said a spouse may sue for loss of consortium only if the injury-producing conduct occurred during the marriage.

Leonard and her husband were married in 2001, nine years before he was diagnosed with mesothelioma. Their complaint filed in San Francisco Superior Court says he was exposed to asbestos between 1958 and 1995.

Judge Harold E. Kahn sustained a demurrer, saying it was compelled to do so under Zwicker.

Appeal Allowed

Justice Terence Bruniers, writing for the Court of Appeal, explained as a preliminary matter that Sandra Leonard may appeal the dismissal of her consortium claim independently of her husband’s claims, which were awaiting trial when she filed her notice of appeal and have since been dismissed without prejudice.

California treats a claim for loss of consortium as an independent cause of action, not a derivative one, the justice explained.

As for the merits, he wrote, the better rule is “that a valid loss of consortium claim arises when a latent and unappreciated injury first becomes manifest during marriage.”

When Claim Accrues

The state Supreme Court, Bruniers noted, has concluded that an asbestosis claim does not accrue until “the plaintiff discovers or should reasonably have discovered he has suffered a compensable injury,” and that there must not only be an injury, but also “an awareness of same,” otherwise the plaintiff would be unable to claim non-economic damages such as emotional distress and loss of society and companionship.

That analysis is inconsistent with the approach argued for by Crane, under which the injured person’s spouse would have a claim for loss of consortium at the time of exposure “whether or not the spouse suffered any actual symptoms of the disease, was unaware he/she would contract the disease, and was not diagnosed with the disease at the time the undetected cellular changes first occurred.”

The justice went on to say:

“The relevant injury in a loss of consortium claim is injury to the spouse’s enjoyment of the marital relationship....That injury does not occur until the direct victim suffers an appreciated physical or emotional injury due to the defendant’s negligent conduct that in turn damages the marital relationship.”

The case is Leonard v. John Crane, Inc., A133322.


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