LOSS OF CONSORTIUM CLAIMS FOR SPOUSAL INJURIES

OCCURRING PRIOR TO MARRIAGE

Edward T. Shipley, III Spilman Thomas & Battle, PLLC 110 Oakwood Drive, Suite 500 Winston-Salem, NC 27103 www.spilmanlaw.com

Defense Trial Counsel of West Virginia 26th Annual Meeting June 14-17, 2009 LOSS OF CONSORTIUM CLAIMS FOR SPOUSAL INJURIES

OCCURRING PRIOR TO MARRIAGE

Under West Virginia law, consortium is defined as, “a right arising from the marital union, to have performance by a spouse of all the duties and obligations assumed by the marriage relationship, including the right to society, companionship, and services.” King v. Bittinger, 160

W.Va. 129, 134, 231 S.E.2d 239, 243-44 (W.Va. 1976); see also Polling v. Motorist Mutual Ins.

Co., 192 W.Va. 46, 49, 450 S.E.2d 635, 638 (W.Va. 1994). While at common law, only a husband could state a claim for loss of consortium, the cause of action is available regardless of gender. 41 Am.Jur.2d Husband and Wife § 213 (2008).

The General Rule

The general rule is that, because a cause of action for loss of consortium is incident to the marriage relationship, if the impaired spouse was injured before marriage, the plaintiff-spouse has no right to recover for loss of consortium. 41 Am.Jur.2d Husband and Wife § 221 (2008).

Courts that apply the general rule use three justifications for the marriage requirement: (1) the law should not permit a person to “marry a cause of action;” (2) the risk of future loss of consortium is assumed at the time of marriage; and (3) allowing loss of consortium claims arising from premarital injuries would provide for near-unlimited liability for tortfeasors. Green v. A.P.C., 136 Wash.2d 87, 93, 960 P.2d 912, 918 (Wash. 1998). To date, West Virginia law is consistent with this general rule in light of the Supreme Court of Appeals’ decisionin Booth v.

Baltimore & O. R. Co., 77 W.Va. 100, 87 S.E. 84 (1915).

- 2 - 1281427v1 Exceptions to the General Rule

The general rule developed when injuries were more obvious (missing limbs, scars, burns, etc.) and when fewer unmarried couples cohabitated. Due to the increase in unmarried couples living under one roof, however, it is no surprise that cohabitating partners of the injured have attempted to assert their own loss of consortium claims outside of an established marriage relationship. Plus, due to the development of asbestos and mesothelioma claims, some states have deviated from the general rule when it relates to latent injuries. A developing rule in a number of states is that a loss of consortium claim is barred if, at the time the parties marry, the couple knew or reasonably should have known of the injury. Owens-Illinois, Inc. v. Gianotti,

148 Md.App. 457, 813 A.2d 280 (2002).

Injury During a Stable and Significant Relationship

Plaintiffs seeking to undermine the general rule that parties must be married at the time of the injury have met fierce resistance in the courts, which have repeatedly stated that marriage is an essential element to a claim for loss of consortium. See Childers v. Shannon, 183 N.J.Super.

591, 444 A.2d 1141 (1982) (dismissing loss of consortium claim where parties were only engaged at time of the injury, which accrued two months before wedding); Metauro v. Abbott

Laboratories, 146 Misc.2d 537, 551 N.Y.S.2d 444 (1990) (husband had no claim for loss of consortium as he was not married when wife was exposed to DES); Miller v. Davis, 107

Misc.2d 343, 433 N.Y.S.2d 974 (1984) (injury on scheduled date of the marriage, causing postponement of wedding, was not sufficient basis upon which wife could claim loss of consortium); Gillespie-Linton v. Miles, 58 Md.App. 484, 473 A.2d 947 (1984) (husband cannot recover for injuries occurring to wife four days prior to their marriage “since right to recovery requires existing marital relationship at time injuries are sustained”).

- 3 - 1281427v1 Nonetheless, this has not dissuaded plaintiffs from arguing that a spouse may recover for loss of consortium where the parties are in a “stable and significant relationship.”Undoubtedly, today it is common for unwed couples to hold themselves out as married: buying real property, entering into cohabitation agreements, and having children outside of the marriage relationship.

In Butcher v. Superior Court, 139 Cal.App.3d 58, 188 Cal.Rptr. 503 (1983), a California court held that an unmarried co-habitant may state a cause of action for loss of consortium by showing that the non-marital relationship is both “stable and significant.” Id. The court stated that evidence of the stability and significance of the relationship could be demonstrated by: (1) the duration of the relationship, (2) whether the parties have a mutual contract, (3) the degree of economic cooperation and entanglement, (4) the exclusivity of sexual relations, and (5) whether there was a “family” relationship with the children. Id. at 70, 188 Cal.Rptr. at 515. In holding that plaintiff stated a valid claim for loss of consortium, the court noted that the plaintiffs had lived together nearly twelve years prior to the accident, had two children together, filed joint income tax returns, and maintained joint savings and checking accounts. Id.

While the decision in Butcher has been rejected by numerous courts, including a handful of California courts,1 in Stahl v. Nugent, 212 N.J.Super. 340, 514 A.2d 1367 (1986), the court denied defendant’s motion for summary judgment on plaintiff’s loss of consortium claim. Id. In

Stahl, plaintiff-wife was injured in an accident on January 1, 1984 while she was engaged to be married to plaintiff-husband. Id. at 341, 514 A.2d at 1367. Plaintiffs married less than two months after the accident. Id.The court stated that the general rule barring plaintiff-husband’s claim was antiquated and rationalized that “any proved loss of consortium which the newlywed husband sustained from the date of the marriage should not be barred by a legal catch-phrase.”

1 Elden v. Sheldon, 46 Cal.3d 267, 758 P.2d 582 (1988) (California Supreme Court specifically overruling Butcher and stating that the “Butcher decision has not been followed in California”).

- 4 - 1281427v1 Id.As such, the court allowed the loss of consortium claim for an obvious injury occurring while the parties were engaged.2 Fortunately, courts have not readily adopted the rationale in

Butcher and Stahl, which undermine the bright line rule that marriage is a prerequisite to a loss of consortium claim.

Latent Injuries and Manifestation of Symptoms

While the aforementioned exception to the general rule has not been widely embraced, an exception for latent, undiscovered injuries continues to grow, based on the idea that a potential plaintiff should not be punished for an undiscovered injury at the time of the marriage. It is generally accepted that a cause of action accrues, and the statute of limitations begins to run, when the tort occurs; under the “discovery rule,” the statute of limitations is tolled until the claimant knows or by reasonable diligence should know of his claims. Gaither v. City Hosp.,

Inc., 199 W.Va. 706, 711, 487 S.E.2d 901, 906 (1997). Courts are increasingly adapting the statute of limitations’ discovery rule to loss of consortium claims in cases of latent injuries occurring prior to, but discovered after, the marriage. Two main factors have brought this issue before the courts in the last twenty years: (1) the increase in toxic tort litigation, which often concerns the latency period of injuries caused by toxic substances3 and (2) increased acceptance

2 See Southern v. Auch Inter-Borough Transit Co., 366 F.Supp. 127 (E.D.Pa. 1975) (allowing plaintiff-husband’s loss of consortium claim where he married injured opera singer after bus accident). 3 Furby v. Raymark Industries, Inc., 154 Mich. App. 339, 397 N.W.2d 303 (1986) (wife's cause of action for loss of consortium arising out of asbestos-related injury to her husband accrued at the time her husband's underlying cause of action accrued, i.e., at time he discovered or, through exercise of reasonable diligence, should have discovered he had possible cause of action, and thus wife's claim for loss of consortium was not barred by fact that husband had been exposed to injury- causing asbestos prior to parties' marriage);

- 5 - 1281427v1 of repressed memory syndrome, wherein individuals respond to horrible traumas later in life.4

Paul Davis Fancher, To Have and Not Hold: Applying the Discovery Rule to Loss of Consortium

Claims Stemming from Premarital, Latent Injuries, 53 Vand.L.Rev. 685 (March 2000).

In Owens-Illinois, Inc. v. Gianotti, 148 Md.App. 457, 813 A.2d 280 (2002), worker and his wife brought action against asbestos manufacturers claiming damages for his development of mesothelioma resulting from asbestos exposure and loss of consortium. Id.The court stated that where the premarital injury is latent, the threat of someone marrying an injured person for the purpose of creating a loss of consortium claim does not exist, “for it is impossible to ‘marry a lawsuit’or assume a risk, where the injury is unknown and unknowable at the time of the marriage.” Id. at 492, 813 A.2d at 301. The court stated that denying such a claim fails to consider the equitable principles and history of the cause of action and suggested that courts apply the discovery rule in cases of premarital, latent injuries. Id. Therefore, “the same principles that have led courts and legislatures to create the discovery rule are the principles that justify application of the rule to loss of consortium claims in the premarital, latent injury context.” Id. at 493, 813 A.2d at 301.

The court held that for purposes of applying the common law rule, a loss of consortium claim is barred only if, at the time the parties married, the couple knew or reasonably should have known of the injury that formed the basis of the loss of consortium claim. Id. The court found that the trial judge did not err in allowing the jury to consider the loss of consortium claim as it was undisputed that the worker’smesothelioma was neither discovered nor could it have reasonably been discovered prior to the marriage. Id. at 494, 813 A.2d at 301; see Kocienda v.

G.D. Searle & Co., 683 F.Supp. 1577 (D.Minn. 1988) (allowing husband of intrauterine device

4 Armstrong v. Lamy, 938 F.Supp. 1018 (D.Mass. 1996) (allowing wife’s loss of consortium claim for husband’s injuries that manifested one year after marriage, even though source of husband’s trauma

- 6 - 1281427v1 user to maintain loss of consortium claim even though the device had been implanted prior to marriage, as the user’sinjury did not manifest itself until after marriage).5

Nevertheless, this exception is still considered the minority rule. See Clark v. Eli Lilly &

Co., 725 F.Supp. 130 (N.D.N.Y. 1989) (husband could not maintain loss of consortium claim based on wife’s premarital in utero exposure to DES, even though the injury to the wife did not manifest itself until after marriage). Indeed, as stated recently by the Northern District of Ohio:

Plaintiffs suggest that the current trend is to allow a loss of consortium claim for an injury caused before marriage but discovered after marriage. The prevailing trend is not so clear-cut as plaintiffs would suggest. Twelve states and the District of Columbia have considered the issue. Nine have allowed such claims; four have declined to allow such claims. The remaining thirty-eight states follow the dominant common law rule that the husband and wife must be married at the time of the accrual of the underlying claim, otherwise a loss of consortium claim cannot exist.

Bransteter v. Moore, 579 F.Supp.2d 982, 983 (N.D. Ohio 2008) (disallowing loss of consortium on inability to conceive where motor vehicle accident injured wife while the couple was engaged, but they did not discover her inability to conceive until after marriage). was sexual abuse by junior high school teacher years before the couple had married). 5 See Friedman v. Klazmer, 315 N.J. Super. 467, 718 A.2d 1238 (1998) (wife was entitled to bring loss of consortium claim since neither she nor her husband knew, or had reason to know, of husband's premarital tumor or his potential malpractice claim, which was not discovered until after their marriage); Aldredge v. Whitney, 591 So.2d. 1201 (La. App. 2d. Cir. 1991) (in action by woman involved in automobile accident and her husband, court did not err in holding that husband had claim for loss of consortium, despite fact that accident occurred five months before woman and husband were married; woman's injuries did not become apparent until four months after marriage; the court rationalized that, under the circumstances, husband would have had cause of action for wrongful death had wife died, and therefore husband was member of designated class of persons who could recover damages for loss of consortium); Stager v. Schneider, 494 A.2d 1307 (D.C.App. 1985) (trial court erroneously found that husband could not properly assert claim for loss of consortium based on physician's medical malpractice where wife's cause of action for malpractice, based on physician's negligent failure to inform wife of spot or shadow on x-ray of her lung taken prior to her marriage, did not accrue until after her marriage when routine x-rays disclosed abnormality, since it was only then that she knew or by exercise of due diligence should have known of injury; so, neither wrongful conduct nor fact of injury was known prior to marriage).

- 7 - 1281427v1 West Virginia Law

As stated, West Virginia follows the general rule that marriage at the time of the injury is a prerequisite for bringing a loss of consortium claim. In Booth, supra, a married woman brought a cause of action for bodily injuries she sustained due to defendant’s negligent operation of a train. Id. at 101, 87 S.E. at 85. Plaintiff was unmarried at the time of her injury, but was living with a man whom she would later marry. Id. According to the facts, “a few months” after she was injured, the two were married. Id. At trial, she recovered upon a verdict for $1,500.00.

Defendant appealed based on an unrelated issue of the trial court’s jury instructions. Id.

On appeal, the Supreme Court of Appeals upheld the verdict and stated that, if the husband had brought a loss of consortium claim, a spouse cannot maintain such an action to recover for an injury that occurred prior to marriage. Id. at 102, 87 S.E. at 85. Indeed, the Court stated that “as hemarried her with knowledge of the injury, he cannot complain of the impaired physical condition due to the wrong done to her prior to the assumption of that relation, whatever the ensuing disabilities may be.” Id.; see Weaver v. G.D. Searle & Co., 558 F.Supp. 720 (N.D.

Ala. 1983) (citing Booth and authoritative decisions from numerous other states to affirm the majority rule that “a valid marriage at the time of the injury is a necessary and indispensable element in any cause of action for loss of consortium”).

In 2005, the Southern District of West Virginia reaffirmed Booth’slogic in an unpublished opinion, Jordan v. Babcock & Wilcox Construction Co., No. 304-0392, 2005 WL

1657052 (S.D.W.Va. July 13, 2005). In that case, plaintiff-wife brought a claim for loss of consortium against defendant-employer although she was not married to her injured husband at the time of the accident. Id. at *1. The Court noted that “plaintiffs urge the Court to adopt a more expansive definition of loss of consortium and consider the relationship of the plaintiffs

- 8 - 1281427v1 prior to the accident.”6 Id. at *2. Nonetheless, the Southern District stated that it must “apply the law of West Virginia as it currently exists” and granted defendant’s motion for summary judgment due to the fact that the injury occurred prior to the marriage. Id.

Conclusion

At present, West Virginia law is consistent with the general rule that a cause of action for loss of consortium is incident to the marriage relationship and cannot exist without it. However, several states have carved out an exception, which states that a loss of consortium claim is barred only if, at the time the parties married, the couple knew or reasonably should have known of the injury that formed the basis of the claim. This exception has certainly gained more traction than the exception for unmarried couples in a “stable and significant relationship.”Nevertheless, the common law rule has come under increased scrutiny in state courts. The Supreme Court of

Appeals of West Virginia has not visited the issue since 1915 in Booth, and it is likely that the issue will arise in a toxic tort case bootstrapped with a loss of consortium claim in the near future. Practitioners should continue to monitor the development of loss of consortium case law in neighboring jurisdictions for future guidance.

6 Plaintiffs asked the Court to enlarge the scope of loss of consortium to include those individuals who were in a “stable and significant relationship” at the time of the injury. Id. at *2.

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