Loss of Consortium Damages Available If Married When Disease Diagnosed

   In California, a spouse is permitted damages for loss of consortium for the personal injury or death of a spouse. The recovery for loss of consortium is limited to married couples.  Individuals in relationships, boyfriends and girlfriends, or even couples who are engaged but not married, are not entitled to such damages.

   The damages for loss of consortium include damages for the  loss of love, companionship, comfort, care, assistance, protection, affection, society, moral support, and loss of the enjoyment of sexual relations, or of the ability to have children. While not specifically limited, damages for loss of consortium are usually only paid when the injury to a spouse is severe, of long duration, or resulted in death.

   In most circumstances, the date of injury of a spouse is readily ascertainable and it is easy to determine if the injury occurred during marriage. However, there are circumstances, such as with asbestos-related illnesses and other latent diseases, where appreciable injury does not occur at the time of exposure, but often decades later when disease is diagnosed or symptoms are discovered.

   In these circumstances, when must the plaintiff be married to the injured spouse to recover damages for loss of consortium? When the exposure to the injury producing agent occurred, or when the disease was diagnosed or symptoms discovered? Or, at both times?

  The Second Appellate District determined in Vanhooser v. Superior Court, decided June 1, 2012, 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, even if the marriage postdates the spouse’s exposure to the asbestos that ultimately results in the injury.

   The critical date, therefore, is diagnosis or discovery of symptoms. If a non-injured spouse was married to the injured spouse at that time, loss of consortium damages are recoverable.

  I consult with clients and accept cases involving personal injury damages, including loss of consortium claims of spouses. For other types of cases I accept, please scroll my “Home” and “My Practice” pages. If you are seeking a legal consultation or representation, please give me a call at 818.971.9409. – Michael Daymude

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