Loss of Consortium: When Does a Cause of Action Accrue?

— by Jeremy K. Robinson

(Reprinted with permission from the Consumer Attorneys of San Diego, Trial Bar News)

This month I wanted to draw your attention to a pair of recent loss of consortium cases, both of which address the same subject: When does a claim for loss of consortium begin to accrue when the directly injured spouse suffers injuries from a latent disease?  In both cases – Leonard v. John Crane, Inc. (2012) 206 Cal.App.4th 1274 and Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, the First and Second Appellate Districts respectively held that a loss of consortium claim accrues when the injuries to the injured spouse manifest themselves, as opposed to when the initial exposure occurs.  In so holding, both courts limited the application of Zwicker v. Altamont Emergency Room Physicians Medical Group (2002) 98 Cal.App.4th 26, an earlier case in which the Third Appellate District decided that a loss of consortium cause of action potentially begins to accrue at the time of the defendant’s wrongful conduct.

So why does this matter, given that both the direct injury claims and the loss of consortium claims tend to accrue simultaneously?  Primarily because there is a rule that a couple must be married at the time the injury occurs in order for there to be a valid claim for loss of consortium.  “If there is no marriage at the time of the negligent or intentional act causing the injury, then there is no cause of action for loss of consortium, and later discovery of the injury will not change that result.” (Zwicker, supra, 98 Cal.App.4th at p. 35.)  In other words, one cannot marry into a cause of action.  (Id.)  If the injury predates the marriage, there is no viable loss of consortium cause of action.  (Id.)

This rule makes sense – and is relatively easy to apply – in cases where there is a discrete injury-producing event.  But it gets trickier in cases where there is a long latency period between exposure to toxic substances and the manifestations of a disease caused by that exposure.  That is where Leonard and Vanhooser come in.  Both cases, perhaps not too surprisingly, involved asbestos exposure.  And in both cases, the defendant argued there was no valid loss of consortium claim because the exposure occurred long before the couples were married.

Although they used slightly different reasoning, both courts rejected that argument.  Here’s how the Leonard court got there.

1. Background on Loss of Consortium

“[L]oss of consortium is not a derivative cause of action. While the cause of action is triggered by the spouse’s injury, ‘a loss of consortium claim is separate and distinct…” (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1089.)  Boiled down to its essence, loss of consortium is the spouse’s “physical, psychological and emotional pain and anguish which results when [the injured spouse] is… is no longer capable of providing the love, affection, companionship, comfort or sexual relations concomitant with a normal married life.”  (Lantis v. Condon (1979) 95 Cal.App.3d 152, 157.)

The California Supreme Court first recognized a cause of action for loss of consortium in Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382.  There, the court reasoned that “one who negligently causes a severely disabling injury to an adult may reasonably expect that the injured person is married and that his or her spouse will be adversely affected by that injury. In our society the likelihood that an injured adult will be a married man or woman is substantial, … [a]nd the probability that the spouse of a severely disabled person will suffer a personal loss by reason of that injury is equally substantial.” (Id. at p. 400.)  Thus, “each spouse has a cause of action for loss of consortium … caused by a negligent or intentional injury to the other spouse by a third party.” (Id. at p. 408.)

Key to the court’s decision, and all that have followed it, is the requirement of marriage.  In Elden v. Sheldon (1988) 46 Cal.3d 267, the court explained some of the policy reasons underlying that limitation.  First, “the state has a strong interest in the marriage relationship; to the extent unmarried cohabitants are granted the same rights as married persons, the state’s interest in promoting marriage is inhibited.” (Id. at 274.)  Second, a determination of whether an unmarried relationship is sufficiently stable and significant to be the equivalent of a formal marriage would place a difficult burden on the courts and would require intrusion into private relationships. (Id. at 275–276.)  And third is the ubiquitous concern of “the need to limit the number of persons to whom a negligent defendant owes a duty of care.” (Id. at 276.)  As such, the courts have refused to extend liability for loss of consortium to nonspouse plaintiffs, such as children or parents of injured parties (See, Elden, supra; Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441, 444–445; Baxter v. Superior Court (1977) 19 Cal.3d 461, 463.)

1. The Zwiker rule

In Zwicker the court used that marriage requirement to reject a loss of consortium claim where the defendant’s negligent conduct (medical malpractice) predated the marriage.  In that case, Zwicker went to an emergency room complaining of pain in his left scrotum and, allegedly due to medical malpractice, was told there was nothing wrong and discharged. (Id. at p. 29.)  When he later returned with increased pain, a urologist diagnosed probable torsion and performed emergency surgery, resulting in removal of one of Zwicker’s testicles.  Over the next 11 months, three tests showed that Zwicker was infertile. He then married.  Two weeks after the marriage, his wife sued for loss of consortium, arguing she learned that Zwicker’s infertility was permanent only after the marriage. (Id.)  The court affirmed summary judgment in favor of the defendants, reasoning that because the wife had no right to Zwicker’s consortium at the time of the misdiagnosis, she suffered no actionable loss as a result of defendants’ alleged negligence. The court held that “[a] premarital injury does not give rise to a cause of action for loss of consortium at the time it occurs, and the postmarital discovery of the premarital injury cannot create a cause of action for loss of consortium where one did not exist in the first place.” (Id. at p. 30.)

1. The Leonard court distinguishes Zwicker

The defendant in Leonard argued that the rule set forth in Zwicker, i.e., that an injury which predate the marriage could not give rise to a loss of consortium, applied equally in the case where a plaintiff is exposed to asbestos before the marriage, but develops an asbestos-related disease after being married.  The Leonard court did not agree.

It first noted that latent disease injuries such as those posed by asbestos exposure, pose unique problems for determining accrual.  Citing to the Supreme Court’s decision in Buttram v. Owens–Corning Fiberglas Corp. (1997) 16 Cal.4th 520, the Lenoard court stated that “Our Supreme Court has recognized the unique problems presented in determining the time of accrual for a cause of action arising from latent, progressively developing diseases such as mesothelioma or asbestosis, where decades can pass between the first asbestos exposure and development of cancerous mesothelioma tumors.”  “This lengthy latency period renders efforts to pinpoint the date on which the disease was contracted virtually impossible, medically and legally.  Further, this inability to pinpoint when injuries were sustained in asbestosis cases renders determining the date on which a plaintiff’s cause of action accrued a herculean task .”  (Buttram, at p. 530 (citations omitted.)  Thus, “[n]o temporally discrete event exists that encompasses the defendant’s breach and the plaintiff’s injury. Instead, insidious disease litigation involves an extended chronology of causation unlike traditional snapshot torts.”  (Id., at 529.)  As such, the cause of action generally does not accrue until the plaintiff has been diagnosed with an asbestos-related condition. “[U]ntil the plaintiff’s injury is first diagnosed or discovered by the plaintiff, he has no awareness of his disease or injuries, or of the possibility of a future need to file suit, much less any expectation of recovery….”  (Id., at 535.)

As such, the court in Leonard found that circumstance to be readily distinguishable from the facts in Zwicker.  In Zwicker, the injury occurred and became manifest before the couple’s marriage: Zwicker’s testicle was surgically removed and three tests showed he was infertile. (Zwicker, supra, 98 Cal.App.4th at p. 29.)  It was only the permanence of the infertility that was discovered after the date of the marriage.  (Id.) The wife’s argument for a loss of consortium claim was simply an assertion that her claim did not arise until she knew the full extent of her spouse’s injury.  (Id.  See also, Priola v. Paulino (1977) 72 Cal.App.3d 380 [rejecting attempt to state a claim for loss of consortium stemming from unexpected complications arising from prior car crash].)

Given these distinctions, the court in Leonard found no reason to depart from the reasoning set forth in Buttram in cases involving latent diseases.  The relevant injury in a loss of consortium claim is injury to the spouse’s enjoyment of the marital relationship. (See Rodriguez, supra, 12 Cal.3d at pp. 404–405.)  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.”  So even if the negligent conduct precedes the marriage, a loss of consortium claim may be maintained if the injury is not discovered (or discoverable) until after the marriage.