Daily Blast June 1, 2012

Recently, Division Three of the Second Appellate District Court of Appeal (LA) issued an opinion in a writ proceeding in Vanhooser v. Superior Court (June 1, 2012, B239667) ____ Cal.App.4th ____, holding that a couple’s marital status at the time of diagnosis or discovery of actual injury or symptoms of an asbestos-caused illness, rather than marital status at the time of exposure, determines whether the first element of a loss of consortium right of action is satisfied. (Slip opn., p. 8.)

Petitioner’s husband was exposed to asbestos in the 1960’s and 1970’s during his service in the United States Navy, and until 1990 as an automobile mechanic working with Hennessy’s products. (Slip opn., p. 3.) The couple married on December 31, 1991 or 1992. (Ibid.) However, the husband first exhibited symptoms of mesothelioma in late 2010 and he was diagnosed in 2011. (Ibid.) Petitioner included a loss of consortium cause of action in her husband’s suit for negligence and strict products liability. (Ibid.) The trial court granted Hennessy’s summary judgment motion finding that petitioner had no claim for loss of consortium because she was not married to her husband when he was exposed to the asbestos. (Ibid.) The trial court certified its ruling to the appellate court and the petition for writ of mandate ensued because the husband was gravely ill and the question presented by the petition was found to be one of statewide concern.  (Id. at pp. 3-4.) 

The Court of Appeal issued a peremptory writ of mandate directing the trial court to vacate its order granting summary judgment on the loss of consortium cause of action. (Slip opn., p. 12.) The court held that the first element of a loss of consortium cause of action — the existence of a marriage at the time of injury to the plaintiff’s spouse — is satisfied if the plaintiff’s marriage to the injured spouse predates discovery of symptoms, or diagnosis, of an asbestos-related disease. (Id. at p. 2.) According to the court, “is so even if the marriage postdates the spouse’s exposure to the asbestos that ultimately results in the injury.”  (Ibid.)  The court reasoned that just like a legal malpractice case, there must be appreciable or actual injury before a right of action can arise with respect to a latent disease. (Id. at p. 8.) Therefore, “for purposes of creation of a loss of consortium cause of action, injury to the spouse in the latent disease context occurs when the illness or its symptoms are discovered or diagnosed, not at the time of the tortious act causing the harm.” (Id. at p. 4.)

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