Supreme Court of California Justia
Citation 206 Cal. App. 4th 921 (2012)

Vanhooser v. Super. Ct.


Filed 6/1/12
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE

SHERRELL VANHOOSER,
B239677
Petitioner,
(Los Angeles County
Super. Ct. No. BC468065)
v.

THE SUPERIOR COURT OF
LOS ANGELES COUNTY,

Respondent;

HENNESSY INDUSTRIES, INC., et al.,

Real Parties in Interest.
PETITION for writ of mandate. Emilie H. Elias, Judge. Petition granted.
The Lanier Law Firm, H.W. Trey Jones and Lynne Rasmussen for Petitioner.
Farrise Firm, Simona A. Farrise, Carla V. Minnard; The Arkin Law Firm and
Sharon J. Arkin on behalf of Consumer Attorneys of California as Amici Curiae on
behalf of Petitioner.
No appearance for Respondent.
Gordon & Rees, Roger M. Mansukhani, Steven A. Sobel and Mitchell B.
Malachowski for Real Party in Interest Hennessy Industries, Inc.
Hawkins Parnell Thackston & Young, Robert E. Thackston, Julia A. Gowin,
Stephanie L. Bowlby and Lauren E. Wood for Real Party in Interest John Crane Inc.



Crowell & Moring and Steven P. Rice on behalf of Coalition for Litigation Justice,
Inc. as Amici Curiae on behalf of Real Parties in Interest.
Fred J. Hiestand on behalf of The Civil Justice Association of California as Amici
Curiae on behalf of Real Parties in Interest.
Brydon Hugo & Parker, Edward R. Hugo, Shaghig D. Agopian and Thomas J.
Moses on behalf of Toyota Motor Sales, U.S.A., Inc. as Amici Curiae on behalf of Real
Parties in Interest.
_____________________
INTRODUCTION
The first element of a loss of consortium cause of action is the existence of a
marriage at the time of injury to the plaintiff‟s spouse. With asbestos-related illnesses, as
with other latent diseases, appreciable injury does not occur at the time of exposure to the
toxic substance, but often decades later when disease is diagnosed or symptoms are
discovered. In this opinion, we hold that the first element of a loss of consortium cause
of action is satisfied if the plaintiff‟s marriage to the injured spouse predates discovery of
symptoms, or diagnosis, of an asbestos-related disease. This is so even if the marriage
postdates the spouse‟s exposure to the asbestos that ultimately results in the injury.
Petitioner Sherrell Vanhooser seeks a writ of mandate directing the trial court to
vacate its order granting the motion of defendant Hennessy Industries, Inc. (Hennessy)
for summary judgment of her loss of consortium cause of action. Hennessy premised its
motion on Zwicker v. Altamont Emergency Room Physicians Medical Group (2002)
98 Cal.App.4th 26 (Zwicker) to argue that petitioner has no claim for loss of consortium
because she was not married to her husband when he was exposed to the asbestos that
caused his mesothelioma. Petitioner contends the ruling was incorrect because, pursuant
to California Supreme Court authority, her cause of action for loss of consortium
damages could only arise once her husband was diagnosed with mesothelioma, not when
2

he was exposed to the asbestos that later resulted in the disease.1 The trial court certified
its ruling granting summary judgment to this court (Code Civ. Proc., § 166.1). We
conclude that Zwicker is entirely distinguished, and we grant the petition and the writ.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner‟s husband, Frederick Kenney, 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 asbestos-containing automobile parts. It is undisputed that his
last encounter with Hennessy‟s products was sometime between 1988 and August 1990.
The couple married on December 31, 1991 or 1992. Petitioner‟s husband first exhibited
symptoms of mesothelioma in late 2010 almost 20 years later, and he was diagnosed with
the disease in June 2011.
Frederick2 sued numerous companies, including Hennessy, seeking damages for
negligence and strict products liability. Petitioner included a cause of action for loss of
consortium. Hennessy‟s ground for summary judgment of petitioner‟s cause of action
was that petitioner did not marry Frederick until after “the claimed injury-causing event
in this case,” namely his exposure to asbestos, with the result that, as a matter of law,
petitioner has no cause of action for loss of consortium. Hennessy argued the dates of
both diagnosis and discovery of the illness are irrelevant under Zwicker.
The trial court granted Hennessey‟s summary judgment motion ruling pursuant to
Zwicker that the date of the wrongful act, namely exposure to asbestos, was the relevant
date for ascertaining existence of a loss of consortium cause of action. As Frederick
married petitioner after he was exposed to asbestos, the court ruled, petitioner had no
claim for loss of consortium damages as a matter of law. Petitioner effectively married

1
“Mesothelioma is a form of cancer that starts to grow in [the mesothelium] lining:
the most common form starts in the lining of the chest cavity and is therefore called
pleural mesothelioma; less common is the form that starts in the lining of the abdomen,
called peritoneal mesothelioma.” (Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127,
1135 (Hamilton).)
2
We refer to Frederick by his first name and mean no disrespect thereby.
3



her cause of action. The court expressed its dislike for the result Zwicker engendered and
certified its ruling to this court. The trial court stated: “The loss of consortium issue
addressed in this order is a recurring issue in the [Los Angeles, Orange, and San Diego
County] Asbestos Cases pending before this Court. The Court believes that it is „a
controlling question of law as to which there are substantial grounds for difference of
opinion, appellate resolution of which may materially advance the conclusion of the
litigation.‟ ” This petition for writ of mandate ensued because Frederick is gravely ill
and the question presented by this petition is one of statewide concern. We issued a stay
of the trial court proceedings and an order to show cause.
DISCUSSION
a. 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.
“[T]he right to recover for loss of consortium is founded on the relationship of
marriage, and absent such a relationship the right does not exist.” (Elden v. Sheldon
(1988) 46 Cal.3d 267, 278.) “A person who suffers a loss of consortium as the result of a
negligent or intentional injury to his or her spouse is entitled to recover damages from the
tortfeasor.” (Mealy v. B-Mobile, Inc. (2011) 195 Cal.App.4th 1218, 1223, citing
Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 408.)
There are four elements to a cause of action for loss of consortium: “(1) a valid
and lawful marriage between the plaintiff and the person injured at the time of the injury;
[¶] (2) a tortious injury to the plaintiff‟s spouse; [¶] (3) loss of consortium suffered by the
plaintiff; and [¶] (4) the loss was proximately caused by the defendant‟s act.” (Hahn v.
Mirda (2007) 147 Cal.App.4th 740, 746, fn. 2, italics added, citing 4 Levy et al., Cal.
Torts (2006) Loss of Consortium, § 56.02[2], p. 56–4.) A loss of consortium cause of
action is triggered by the spouse‟s injury. (Rosencrans v. Dover Images, Ltd. (2011)
192 Cal.App.4th 1072, 1089; cf. Bartalo v. Superior Court (1975) 51 Cal.App.3d 526,
533 [husband‟s loss of consortium cause of action “does not arise unless his wife has
sustained a personal injury”].) “A cause of action for loss of consortium is, by its nature,
4

dependent on the existence of a cause of action for tortious injury to a spouse.” (Hahn v.
Mirda, supra, at p. 746.) And, there is no right of action for loss of consortium if the
spouse‟s “ „injury occurs before the marriage.‟ ” (Zwicker, supra, 98 Cal.App.4th at
p. 31, italics added.) Therefore, it is the couple‟s marital status at the time the spouse is
tortiously injured that determines whether the plaintiff can meet the first element of a loss
of consortium right of action.
Injury is an essential element of any cause of action. (1A Cal.Jur.3d (2006)
Actions, § 86, pp. 132-133; Civ. Code, § 3281 [“[e]very person who suffers detriment
from the unlawful act or omission of another, may recover . . . damages”] & § 3282
[“[d]etriment is a loss or harm suffered in person or property”]; Rodriguez v. Bethlehem
Steel Corp., supra, 12 Cal.3d at pp. 408-409 [“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.” (Italics added.)].) Without injury to the spouse, the plaintiff has no loss of
consortium claim. Thus, a cause of action is not complete in the sense it is not
actionable, without spousal injury. (Hahn v. Mirda, supra, 147 Cal.App.4th at p. 746,
fn. 2.)
Although injury often occurs at the same time as the wrongful act is committed
(see, e.g., Zwicker, supra, 98 Cal.App.4th at p. 28), that is not always the case. With
latent diseases, it is difficult to determine when the injury occurs and “[n]o temporally
discrete event exists that encompasses the defendant’s breach and the plaintiff’s injury.”
(Buttram v. Owens-Corning Fiberglas Corp. (1977) 16 Cal.4th 520, 529, italics added
(Buttram).)
“Mesothelioma is a latent, progressively developing disease,” our Supreme Court
explained. “[D]ecades can often pass between the time a person is first exposed to
asbestos and the time he first develops a cancerous mesothelioma tumor. Moreover,
although early formation of undetected cellular changes ultimately leads to contraction of
5

the disease, it may be [30 to 403] years before the cancerous cells will result in a tumor
large enough to be detected, be medically diagnosed, or cause symptomatology of the
disease.” (Buttram, supra, 16 Cal.4th at p. 529.) “ „The combination of lengthy latency
periods and diagnostic difficulties is a unique feature of toxic substances cases for
purposes of statutes of limitations analysis or related legal issues . . . . Instead, insidious
disease litigation involves an extended chronology of causation unlike traditional
snapshot torts.‟ [Citation.]” (Ibid., italics added, brackets omitted.)
With particular reference to latent injuries, our Supreme Court has established that
“a cause of action for a latent injury or disease generally accrues, in the sense that it is
ripe for suit, when the [spouse] discovers or should reasonably have discovered he has
suffered a compensable injury.” (Hamilton, supra, 22 Cal.4th at p. 1144, italics added.)
Accordingly, “in the latent disease context, until the [spouse] is diagnosed with or
otherwise learns he has the disease, he has not placed any reliance on rules of law
governing potential tort causes of action of which he is as yet unaware. It would make
little sense to look to the occurrence of the ‘wrongful act’ (in essence, [the spouse’s]
exposure to defendants’ asbestos products) as the sole event establishing accrual of a
cause of action . . . . [Thus, d]iagnosis 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 place reasonable reliance on the rules and laws governing recovery of damages
for his compensable injuries.” (Buttram, supra, 16 Cal.4th at p. 537, first italics in
original, additional italics added.)

3
“Mesothelioma is often difficult to diagnose: in . . . peritoneal mesothelioma-the
tumor first grows as a spreading mass in the abdominal cavity of the victim, and its early
signs are such nonspecific symptoms as stomach pain, nausea, vomiting, and weight loss.
Mesothelial tumors initially grow very slowly; the disease has an average latency period
of 30 to 40 years. But by the time the cancer is diagnosed, it is often in an advanced
stage and is rapidly metastasizing. It is also inevitably fatal: there is no known cure for
any form of malignant mesothelioma.” (Hamilton, supra, 22 Cal.4th at p. 1136, italics
added.)
6



Hennessy argues that Buttram is distinguished because it addresses when a cause
of action “accrues” for purposes of Proposition 51 (Civ. Code, § 1431.2 [liability for
noneconomic damages is several only, not joint]), and did not consider the question of
when a plaintiff may bring a loss of consortium cause of action. Hennessy correctly
observes that accrual of a cause of action in the sense of creation of an actionable claim is
not the same as accrual for purposes of the statute of limitations. “[A] cause of action
may be viewed in the eyes of the law as „accruing‟ for different purposes on different
dates, depending on the purpose for which the accrual determination is being sought.”
(Buttram, supra, 16 Cal.4th at p. 530.) In this case, we are not concerned with “accrual”
for purposes of Proposition 51 or the statute of limitations; we are only concerned with
when asbestos-related injury occurs to a spouse to satisfy the first element of a loss of
consortium cause of action, namely a valid and lawful marriage at the time of the
spouse‟s injury. Buttram establishes the particular nature of insidious diseases and
addresses at length the issue of when latent disease injury occurs for purposes of both
“statutes of limitations analysis or related legal issues.” (Buttram, supra, at p. 529,
brackets omitted.) One such related legal issue is when actual injury occurs so as to
create a right of action.4
Similar to insidious disease torts, legal malpractice cases can lack a temporally
discrete event encompassing both the wrongful action and the injury, with the result such
cases are instructive. “ „If the allegedly negligent conduct does not cause damage, it
generates no cause of action in tort. [Citation.] The mere breach of a professional duty,

4
Defendant John Crane, Inc. argues that the Supreme Court in McCann v. Foster
Wheeler LLC (2010) 48 Cal.4th 68 discussed when and where an asbestos-related injury
is deemed to have legally developed and held it was at exposure, not manifestation of the
disease. (Id. at p. 102.) But McCann involved a choice of law question and applied
Oklahoma law. (Id. at pp. 89-102.) Oklahoma law in this context does not govern or
influence our conclusion here. Furthermore, the court in McCann stated, “By contrast,
plaintiff‟s action against Foster Wheeler clearly would be timely if California law were
applied.” (Id. at pp. 89-90.)

By the same token, the out-of-state authorities cited by Hennessy and John Crane,
Inc. are not persuasive.
7



causing only nominal damages, speculative harm, or the threat of future harm -- not yet
realized -- does not suffice to create a cause of action for negligence. [Citations.] Hence,
until the client suffers appreciable harm as a consequence of [the] attorney‟s negligence,
the client cannot establish a cause of action for malpractice.‟ [Citation.] . . . Any
appreciable and actual harm flowing from the attorney’s negligent conduct establishes a
cause of action upon which the client may sue.‟ [Citation.]” (Jordache Enterprises, Inc.
v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 749-750.) With both latent
diseases and legal malpractice, there must be appreciable or actual injury before a right of
action can arise. That injury does not necessarily occur simultaneously with the wrongful
act and indeed may not appear for decades until the plaintiff suffers appreciable harm.
Applying the rules concerning latent-illness injury, 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. (Buttram,
supra, 16 Cal.4th at p. 537.) Necessarily, until the spouse suffers that injury, the plaintiff
does not have a loss of consortium cause of action. (Hahn v. Mirda, supra, 147
Cal.App.4th at p. 746, fn. 2.) It is illogical to conclude, as Hennessy and John Crane, Inc.
would have it, that a plaintiff‟s loss of consortium cause of action arises at exposure to
asbestos where that exposure occurred decades before the spouse suffers any injury and
becomes aware of his or her own right of action. Therefore, consistent with California
law, in asbestos-related cases, we consider the couple‟s marital status at the time of
diagnosis or discovery of actual injury or symptoms of the asbestos-caused illness, not at
the time of exposure, to determine whether the first element of a loss of consortium right
of action is satisfied.5

5
Petitioner cites Uram v. Abex Corp. (1990) 217 Cal.App.3d 1425 (Uram) to argue
that the injury caused by asbestos occurs when the spouse is impaired, not when the
spouse is exposed to asbestos. The issue in Uram was application of the statute of
limitations once a plaintiff has suffered injury caused by her spouse‟s asbestos-related
illness. Uram explained that the husband‟s “disability retirement in 1959 commenced the
loss of services which constituted the injury to his wife . . . . When her consortium was
to some extent reduced, a cause of action arose. [Citation.]” (Id. at p. 1438.) There are
8



b. Zwicker is distinguished and does not govern.
In Zwicker, as the result of a misdiagnosis, the plaintiff lost a testicle and was
sterile. The couple married shortly after a third test showing infertility and brought their
lawsuit two weeks after the wedding. (Zwicker, supra, 98 Cal.App.4th at p. 29.)
Zwicker‟s wife sued for loss of consortium damages. The Zwicker court “h[e]ld that a
premarital injury cannot provide the basis for a loss of consortium claim in California,
regardless of whether the plaintiff first learned of the injury before or after marriage.”
(Id. at p. 35, italics added.)
Zwicker is inapposite because it did not involve a latent disease such as
mesothelioma; it concerned a so-called snapshot tort. (Buttram, supra, 16 Cal.4th at
p. 529.) In Zwicker, the tortious act and the injury occurred almost simultaneously, i.e.,
the injury was fully appreciable at the time of the wrongful conduct. By contrast, with
mesothelioma, as with other latent diseases, the tortious act - the exposure - can take
place decades before any appreciable injury develops and becomes manifest. Incubating,
undetectable damage resulting from exposure to asbestos is not equivalent to a sudden
injury-causing event. Zwicker is also distinguished because there the couple married
shortly after knowledge of the injury and two weeks before filing suit, with the result
Mrs. Zwicker married her cause of action. Here, by contrast, Frederick did not suffer
appreciable harm until he discovered symptoms of or was diagnosed with mesothelioma.
By that time, petitioner and Frederick had been married for 19 or 20 years, and so
petitioner did not marry her loss of consortium right of action.
Zwicker‟s wife argued that she was married before she discovered that her
husband‟s injury was permanent. (Zwicker, supra, 98 Cal.App.4th at p. 28.) Zwicker

two separate injuries in a loss of consortium cause of action, the injury to the spouse
during the marriage, and the plaintiff‟s loss of services damages as the proximate result
of the spouse‟s injury. (Hahn v. Mirda, supra, 147 Cal.App.4th at p. 746.) We are only
concerned here with the first injury, namely when does asbestos-caused illness occur to
the spouse for purposes of satisfying the first element of the plaintiff‟s loss of consortium
cause of action. Uram is relevant only insofar as it acknowledges that harm from
asbestos does not occur at the time of exposure.
9



stated, “We are aware of no decision by a California court addressing whether a negligent
or intentional act occurring before the marriage can give rise to a cause of action for loss
of consortium when the injury resulting from the act is not discovered until after the
marriage” (id. at p. 33) and concluded, “[t]he delayed discovery rule has no place in
determining whether a tort claim ever arose in the first place.” (Id. at p. 34.) However,
there can be separate and distinct periods marking the creation of a cause of action on the
one hand and the beginning of the statute of limitations period on the other hand.
(Hamilton, supra, 22 Cal.4th at pp. 1144-1145.) As explained, we are not concerned with
a statute of limitations analysis. In Zwicker, the injury happened before the marriage and
the only fact the wife did not know was the extent of her husband‟s damage. Here, by
contrast, the issue is not discovery of harm that has already manifested. Rather, as
Frederick suffers from a latent, slowly developing illness, he had no injury until long
after the tortious act. Frederick was not actually injured until after the couple had been
married when a cancerous mesothelioma tumor developed. Discovery in the context of
this case, therefore, fixes the date on which injury actually occurred to satisfy the first
element of the loss of consortium cause of action.
Hennessy argues that Zwicker conveniently provides a readily applicable, bright-
line rule that a plaintiff must be married to the injured party at the time of the wrongful
act causing the injury. John Crane, Inc. observes Zwicker stated five times that the date
of the negligent act controls, and the negligent act in this case is exposure to asbestos
fibers. Admittedly, Zwicker appears to cite the tortious conduct as the event pegging
creation of the cause of action. But it also cited injury as the triggering event. Zwicker
stated, “we hold that a premarital injury cannot provide the basis for a loss of consortium
claim in California . . . .” (Zwicker, supra, 98 Cal.App.4th at p. 35, italics added.)
Zwicker also stated, “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 . . . .” (Ibid.,
italics added.) Zwicker understandably relied on both wrongful conduct and injury as
creating a right of action because that case involved a snapshot tort and so a distinction
between the tortious act and the harm had no legal relevance.
10

Hennessy argues we must follow Zwicker or risk expanding the loss of consortium
cause of action in contravention of the Supreme Court‟s declaration that judicial
recognition of this right of action should be narrowly circumscribed. (Borer v. American
Airlines, Inc. (1977) 19 Cal.3d 441, 444.) Our holding here is not expansive. As always,
a valid marriage must exist before spousal injury for a loss of consortium right of action
to lie. (Hahn v. Mirda, supra, 147 Cal.App.4th at p. 746, fn. 2; Zwicker, supra, 98
Cal.App.4th at p. 34 [Loss of consortium “ „protects the parties‟ relational interest, and if
the relationship did not exist at the time of the tort, a fortiori it could not be injured.‟ ”].)
We are simply applying Supreme Court authority establishing when injury occurs to a
spouse suffering asbestos-related disease for the purpose of establishing whether a
plaintiff has met the first element of a loss of consortium cause of action.
Accordingly, to defeat petitioner‟s loss of consortium cause of action based on
Frederick‟s mesothelioma, Hennessy had to demonstrate that Frederick suffered injury,
i.e., that he was diagnosed with, or he discovered actual symptoms of, mesothelioma
before his marriage to petitioner. Hennessy‟s motion did not make that showing. Rather,
the sole issue Hennessey‟s summary judgment motion raised in addressing petitioner‟s
cause of action for loss of consortium was whether, under California law, summary
judgment should be granted because “asbestos exposure attributed to Hennessy, the
claimed injury-causing event in this case, ended well before Plaintiffs‟ marriage began.”
(Italics added.) Therefore, summary judgment was improperly granted.
11

DISPOSITION
Let a peremptory writ of mandate issue directing the respondent court to vacate its
order granting summary judgment of the loss of consortium cause of action and enter a
new order denying the motion. This opinion shall become final upon filing of the opinion
in this court. The stay of proceedings in the superior court will terminate upon finality of
this opinion in this court. Petitioner shall recover costs in this original proceeding.

CERTIFIED FOR PUBLICATION
ALDRICH, J.
We concur:
KLEIN, P. J.
CROSKEY, J.
12


Opinion Information
Date:Citation:Docket Number:
Fri, 06/01/2012206 Cal. App. 4th 921 (2012)B239677

May 14, 2013
Annotated by John Perez

FACTS

Petitioner’s husband was exposed to asbestos during his work for defendant Hennessey Industries. The petitioner married her husband a couple of years after he was last exposed to asbestos. Twenty years after marriage, the husband began exhibiting symptoms of mesothelioma for the first time and was diagnosed with the disease a year later in 2011. Petitioner sued Hennessey Industries for loss of consortium. Hennessey moved for summary judgment on the grounds that, as a matter of law, there could be no loss of consortium cause of action since the petitioner did not marry her husband until after the “claimed injury-causing event.” The Los Angeles trial court granted the summary judgment and the petitioner appealed to the Court of Appeals for a writ of mandate.

PROCEDURAL HISTORY

At trial, Hennessey moved for summary judgment on the grounds that the petitioner did not marry until after the “injury-causing event” and thus, as a matter of law, there could be no cause of action for loss of consortium. The trial court, relying on Zwicker v. Altamont Emergency Room Physicians Medical Group, 98 Cal. App. 4th 26 (2002), granted the motion for summary judgment. The trial court ruled that the date of the wrongful act (exposure) was the relevant date for purposes of determining when the “injury” occurred. The court then certified its ruling to the Court of Appeals. The petitioner requested the Court of Appeals to issue a writ of mandate directing the trial court to vacate its summary judgment order.

ISSUE

The first requirement in a loss of consortium cause of action is “a valid and lawful marriage between the plaintiff and the person injured at the time of the injury.” Does the fact that exposure occurred before marriage nullify any claims in a loss of consortium action? Is the “time of injury” when the tortious act (exposure) leading to future harm occurs?

HOLDING

In a loss of consortium action dealing with a latent disease/injury, the relevant date for determining when the actual “injury” occurred is when the disease/injury is diagnosed or when symptoms begin.
In loss of consortium cases, “injury to the spouse in the latent disease context occurs when the illness or its symptoms are discovered and diagnosed, not at the time of the tortious act causing the harm.”

ANALYSIS

The Court focused on the first element of a loss of consortium cause of action: a valid marriage at the time of injury. The court looked to the California’s Supreme Court’s decision in Buttram v. Owen Corning Fiberglass Corp., 16 Cal. 4th 520 (Cal. 1997), and Hamilton v. Asbestos Corp., 22 Cal. 4th 1127 (Cal. 2000), for guidance. The Buttram court discussed the unique nature of latent diseases and how that plays into legal issues and analyses. The Court relied on the California Supreme Court’s language in Hamilton, stating that a cause of action for latent injury or disease becomes “ripe for suit, when the [spouse] discovers or should have reasonably discovered he has suffered a compensable injury.” The Court then said that like legal malpractice cases, there needs to be some sort of actual injury before a right of action for loss of consortium can exists. Since exposure may not ultimately lead to injury such as development of tumors, the injury cannot be said to occur until such symptoms manifest themselves. Also, since the injury need not occur simultaneously with the tortious act and may not actually appear until decades after exposure, the two (tortious act and injury) are not tied together. Using this rationale, the Court concluded that in latent injury cases, a spouse does not suffer “injury” until he or she is diagnosed with the disease or discovers symptoms.

At trial, Hennessey Industries used Zwicker to support its summary judgment motion; the Court of Appeals distinguished it and said it did not govern. The Court distinguished Zwicker on the grounds that it involved a “snapshot” tort and did not deal with a latent disease like mesothelioma. The tortious act in Zwicker occurred simultaneously to the injury (misdiagnosis led to lost testicle and infertility). Additionally, the wife of the injured husband in Zwicker married after the injury became known. In the present case, the petitioner’s spouse did not suffer appreciable harm until he had been married roughly 20 years. While the spouse in Zwicker was injured before marriage, the spouse of the petitioner in the present case was not injured (by the development of a cancerous mesothelioma tumor) until after marriage. The Court distinguished the cases on all of these grounds.

Hennessy needed to show that the petitioner’s husband suffered injury before marriage to the petitioner. Given the fact that injury takes place at the time of diagnosis or discovery of symptoms, Hennessey failed to make such a showing. The summary judgment was improperly granted.

KEY CASES
Zwicker v. Altamont Emergency Room Physicians Medical Group, 98 Cal. App. 4th 26 (Cal. Ct. App. 2002)

Buttram v. Owens-Corning Fiberglass Corp., 16 Cal. 4th 520 (Cal. 1997)

Hamilton v. Asbestos Corp., 22 Cal. 4th 1127 (Cal. 2000)

Hahn v. Mirda, 147 Cal. App. 4th 740 (Cal. Ct. App. 2007)

TAGS

loss of consortium, asbestos, asbestos exposure, asbestos-related illness, exposure, latent disease, loss of consortium, marriage, mesothelioma, premarital injury, snapshot tort, spousal injury, summary judgment, writ of mandate

Christian Perez