(San Francisco City and County Super. Ct. No. CGC-10-275715) Superior Court of City and County of San Francisco, No. CGC-10-275715, Harold E. Kahn, Judge.
The opinion of the court was delivered by: Bruiniers, J.
CERTIFIED FOR PUBLICATION
Our law recognizes that when a spouse suffers a personal injury, the marital partner may likewise suffer injury as a consequence. In this case, appellant Sandra Leonard's husband, John Leonard, was diagnosed with mesothelioma, a progressive and fatal disease related to asbestos exposure. Sandra and John*fn1 were married at the time of his diagnosis, but not at the time of his exposure to asbestos-containing materials, many years earlier. In reliance on a decision of the Third District Court of Appeal in Zwicker v. Altamont Emergency Room Physicians Medical Group (2002) 98 Cal.App.4th 26 (Zwicker), the trial court sustained, without leave to amend, defendant's demurrer to Sandra's claim for loss of consortium. Zwicker holds that a loss of consortium cause of action is cognizable only if the plaintiff was married to the injured spouse at the time of the defendant's wrongful conduct, regardless of when the injury becomes manifest. We disagree, and reverse to allow Sandra to pursue her claim.*fn2
The Leonards were married on April 20, 2001. In September 2010, John was diagnosed with mesothelioma. In December 2010, they sued several named and Doe defendants for personal injury and for loss of consortium arising from John's exposure to asbestos between 1958 and 1995.
In March 2011, the Leonards substituted John Crane, Inc. (Crane) as a Doe defendant. In April, Crane moved to strike Sandra's loss of consortium claim and demurred to the claim. Crane argued, "Loss of consortium . . . is available only to a plaintiff who is married to the injured party at the time of his injury. Plaintiffs allege that they married on April 20, 2001. Plaintiffs allege [John] was last exposed in 1995. Thus, [Sandra] is not entitled to claim a cause of action for loss of consortium as a matter of law, and this cause of action must be stricken." The company relied on Zwicker. There the Third District 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, and later discovery of the injury will not change that result." (Zwicker, supra, 98 Cal.App.4th at p. 35.) Sandra countered that Zwicker was factually distinguishable and that the quoted language was dicta. Relying on Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127 (Hamilton), she argued that her cause of action for loss of consortium did not accrue until the injury to her marital relationship, which occurred when John was diagnosed with mesothelioma in 2010. Crane insisted that the Zwicker holding was binding on the trial court even if wrongly decided. The trial court sustained the demurrer to Sandra's loss of consortium cause of action without leave to amend in May 2011, under what it believed to be the compulsion of Zwicker. We denied Sandra's petition for writ review of that order, explaining, "Petitioner has not persuasively demonstrated that she lacks an adequate remedy at law on appeal, and that writ review is appropriate under all of the circumstances." (Leonard v. Superior Court (Aug. 4, 2011, A132489) [nonpub. order].) The trial court thereafter entered judgment in favor of Crane and against Sandra. Sandra now appeals.
On April 20, 2012, Crane moved to dismiss this appeal. Crane reported that John had now dismissed his personal injury claim against Crane and that John's claims against the remaining defendants were scheduled for trial in April. Crane contends the appeal became moot because even if Sandra prevailed, she could no longer try her loss of consortium claim together with John's personal injury claims. Crane since informed us that John's remaining claims began trial in April and it appeared that trial would be completed before this appeal could be heard and decided. Sandra argues the appeal is not moot because she may pursue her claim independently from John's. We agree with Sandra and deny the motion.
"[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 . . . . [Citations.]' [Citation.]" (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1089 (Rosencrans).) "[T]he injury incurred can neither be said to have been 'parasitic' upon the husband's cause of action nor can it be properly characterized as an injury to the marital unit as a whole. Rather, it is composed of [the spouse's] own physical, psychological and emotional pain and anguish which results when [the injured spouse] is negligently injured to the extent he [or she] is no longer capable of providing the love, affection, companionship, comfort or sexual relations concomitant with a normal married life. [Citation.]" (Lantis v. Condon (1979) 95 Cal.App.3d 152, 157 (Lantis).) While joinder of a loss of consortium claim with the injured spouse's personal injury claim is encouraged, it is not mandatory and a loss of consortium claim may be maintained independently. (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 406-407 (Rodriguez); Evans v. Dayton Hudson Corp. (1991) 234 Cal.App.3d 49, 54-55 (Evans).)
In many different contexts over a period of decades, California courts have held that a loss of consortium claim is an independent tort that does not rise or fall with the procedural fate of the injured party's personal injury claim. (Brumley v. FDCC California, Inc. (2007) 156 Cal.App.4th 312, 325 [loss of consortium claim does not relate back to filing of original complaint for statute of limitations purposes because "these are the claims of different plaintiffs, and they seek different damages from the original claims"]; Gapusan v. Jay (1998) 66 Cal.App.4th 734, 742-743 [an employer entitled to reimbursement from tort settlement for workers' compensation benefits paid to employee had no right to reimbursement from settlement sums for loss of consortium]; Evans, supra, 234 Cal.App.3d at pp. 53-55 [tolling under Ins. Code, § 11583, based on insurance payments to injured party does not apply to spouse's loss of consortium claim]; Uram v. Abex Corp. (1990) 217 Cal.App.3d 1425, 1436 [special statute of limitations for personal injury arising from asbestos exposure does not apply to independent tort of loss of consortium of spouse]; Abellon v. Hartford Ins. Co. (1985) 167 Cal.App.3d 21, 25-26 [loss of consortium claim subject to separate per person limit under liability policy because it compensates for separate injury to injured person's spouse]; Lantis, supra, 95 Cal.App.3d at pp. 157-158 [injured party's contributory negligence to his own injury does not operate to reduce spouse's recovery for loss of consortium]; see also Rosencrans, supra, 192 Cal.App.4th at p. 1089 [conclusion that injured party's claims were barred by release of liability did not support conclusion that spouse's loss of consortium claim was also barred (dicta)].) In Hahn v. Mirda (2007) 147 Cal.App.4th 740, we reiterated that a loss of consortium claim is an independent cause of action and also addressed the procedural issue presented here: does the dismissal of an injured party's personal injury claim moot an appeal from a judgment on the spouse's loss of consortium claim? Although not a contested issue in that case, we concluded that the appeal was unaffected by the dismissal. (Id. at p. 745, fn. 1.)
Crane acknowledges that "[t]echnically speaking" Sandra could pursue her claim on remand, but argues that as a practical matter Sandra cannot or will not establish her claim on remand. The company notes that Sandra would first have to prove Crane's responsibility for John's asbestos-related injuries in order to establish her claim for loss of consortium, and argues that John "has abandoned his attempt to prove an asbestos-related claim against [Crane]. For that reason, there is no case to which [Sandra] can return in which [Crane's] liability to [John] will or can be shown." We are not persuaded. While Sandra can prevail on her claim only if she proves Crane caused John's injury, there is no reason she would be precluded from doing so in her own action.
John's dismissal of his cause of action against Crane has no impact on Sandra's ability to pursue her loss of consortium claim. They are separate causes of action. (Hahn v. Mirda, supra, 147 Cal.App.4th at p. 745, fn. 1.) John's dismissal was in any event without prejudice, and can have no arguable res judicata or collateral estoppel effect on Sandra's loss of consortium claim. (See Shelton v. Superior Court (1976) 56 Cal.App.3d 66, 79-80 [personal injury claim and loss of consortium claim are separate causes of action that protect two separate primary rights]; Gagnon Co. v. Nevada Desert Inn (1955) 45 Cal.2d 448, 455 [" 'dismissal without prejudice . . . is not a bar to another action by the plaintiff on the same cause' "].)
Crane implies that John's dismissal of his claim is a concession that it lacked merit, but there is nothing in the appellate record before us which would justify such an assumption. John may have dismissed the claim for strategic reasons and he may choose to revive it in the event Sandra prevails in this appeal; it is also not self-evident based on the limited allegations in the complaint that a later-filed claim by John would necessarily be time-barred. (See Hamilton, supra, 22 Cal.4th at pp. 1144-1147 [Code Civ. Proc., § 340.2, the special statute of limitations applicable to asbestos-related injuries, does not begin to run until the plaintiff suffers and discovers "disability" as defined in the statute, which may never occur].) Crane argues that, even if Sandra technically may pursue her claim on remand, it is unlikely she will do so and Crane therefore should not be unreasonably burdened with having to defend this appeal. Again, the ...