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Spouse has Valid Loss of Consortium Claim in Latent Injury Case

On July 24, 2012, in Pacific Ship Repair and Fabrication Inc. v. Office of Worker Compensation Programs (United States Court of Appeals– 9th Circuit, No. 11-70292), the court held that negligent conduct predating marriage does not void a loss of consortium claim when the injury is latent.

In Leonard, Mr. and Mrs. Leonard were married 9 years prior to his diagnosis of mesothelioma. However, the cause of his mesothelioma was asbestos exposure related to the defendant's negligent conduct that occurred many years prior to their marriage.

The trial court granted the defendant's demurrer on the grounds that Mrs. Leonard was not married to Mr. Leonard at the time of the defendant's wrongful conduct that caused the injuries, and thus is not entitled to loss of consortium.

However, as the appellate court pointed out in its ruling, causes of action for injuries or diseases that are not immediately discoverable generally emerge when the plaintiff discovers or should reasonably have discovered the injury or disease. Since in this case Mr. Leonard, and by extension Mrs. Leonard, could not have known about the disease prior to his marriage and 9 years prior to his diagnosis, Mrs. Leonard's cause of action for loss of consortium was not void.

Accordingly, the trial court's decision was reversed on appeal and the court ruled that Mr. Leonard's wife had a valid loss of consortium claim for her husband's mesothelioma caused by the negligent conduct of the defendant prior to their marriage.

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