Federal judge nixes loss of consortium claims when asbestos exposure occurred pre-marriage

By Heather Isringhausen Gvillo | Jul 18, 2014

CHICAGO (Legal Newsline) - An Illinois federal judge has ruled that loss of consortium claims in asbestos cases are not appropriate if the asbestos exposure occurred before the plaintiffs got married, meaning the defendant owes no duty to the asbestos victim's spouse.

Judge Robert W. Gettleman delivered the ruling on July 14 in the United States District Court for the Northern District of Illinois, Eastern Division.

Defendants Crane Co. and Ingersoll-Rand Corporation filed the motion to dismiss Count III of plaintiffs Kenneth and Diane Smiths' lawsuit, which alleged loss of consortium. Gettleman granted the dismissal request.

Prior to the Smiths' marriage in 1979, Kenneth Smith served in the U.S. Navy from 1964 to 1968. He alleges that during his service, Crane sold or supplied asbestos-containing products to the Navy, resulting in his asbestos exposure while aboard the vessel.

In June 2013, Kenneth Smith was diagnosed with mesothelioma.

The plaintiffs filed the asbestos lawsuit alleging Diane Smith's loss of consortium, among other claims, due to her husband's illness.

However, the defendants argued that they owe no duty to Diane Smith because her husband's asbestos exposure predates their marriage.

Gettleman explained in his decision that loss of consortium claims are "'legally separate and distinct from the directly injured spouse's cause of action,' although they are predicated on the alleged injury to a spouse."

Furthermore, a plaintiff may only collect damages for negligence if the defendant breached a duty owed to the claimant. In order for breach of duty to occur, the couple would have had to be married at the time of the alleged injury.

"If a marital relationship does not exist at the time of the alleged injury, a defendant owes no duty to the spouse alleging loss of consortium," Gettleman wrote.

Therefore, he concluded that because the two were not married at the time of Kenneth Smith's exposure, the defendants owe no duty to Diane Smith.

The plaintiffs argued that the Illinois discovery rule allows for loss of consortium claims to commence at the same time as the cause of action.

However, Gettleman rejected the argument, concluding that the rule does not indicate that loss of consortium claims may be brought for alleged injuries occurring before marital union.

"[B]ecause Diane and Kenneth Smith married after Kenneth's alleged exposure to asbestos, no valid cause of action for Diane existed at the time of exposure," Gettleman wrote. "Because the discovery rule's scope does not include loss of consortium claims for spouses married after the injury occurred, when no valid cause of action existed, plaintiffs' first argument fails."

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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