If there was any ambiguity regarding California's position that a premarital injury does not give rise to a cause of action for loss of consortium, the California Court of Appeal recently resolved it in Zwicker v. Altamont Emergency Room, 2002 DJDAR 4795 (Cal. App. May 1, 2002).
In Zwicker, the court held that the delayed discovery rule does not operate to allow a loss-of-consortium claim arising out of premarital injuries even if the injuries were not discovered until after the marriage.
Zwicker involved a husband and wife who sued a medical provider for failing to properly diagnose Gary Zwicker's condition when he reported to the emergency room complaining of pain in his left scrotum and was discharged with antibiotics and told to follow up with his physician. Zwicker's pain increased, however, and the next day, he visited a different emergency room, where he was diagnosed with "acute left scrotum with probable torsion of spermatic cord."
He was forced to undergo emergency surgery, which resulted in the removal of his left testicle and infertility, which was later discovered.
Despite the surgery, the Zwickers proceeded with their marriage - and also filed a lawsuit claiming that the defendants failed to properly diagnose Zwicker's condition in time to prevent the loss of his testicle.
The trial court rejected Valri Zwicker's loss-of-consortium claim, however, because she was not married at the time the injury arose. On appeal, she argued that her cause of action for loss of consortium did not accrue until she knew or should have known that her husband's infertility was permanent.
Valri Zwicker reasoned that the delayed discovery rule, which functions to prevent tort claims from expiring before they can reasonably be discovered by a plaintiff, applied with equal force to claims for loss of consortium.
The Court of Appeal rejected this reasoning and held that a valid marriage is a necessary prerequisite for any loss-of-consortium claim: "[A] premarital injury does not give rise to a cause of action for loss of consortium at the time it occurs and the post-marital discovery of the premarital injury cannot create a cause of action for loss of consortium where one did not exist in the first place."
Although the Zwicker court approached the issue in the absence of direct controlling authority, its ruling is consistent with a long line of cases regarding the narrow scope of loss-of-consortium claims.
In California, the most basic predicate to any loss-of-consortium claim is a valid marriage - "absent such a relationship, the right does not exist." Elden v. Sheldon, 46 Cal.3d 267 (1988) (declining to extend application of loss-of-consortium claim to "unmarried cohabitating couples with a 'stable and significant relationship ... parallel to a marital relationship'"); see also Lieding v. Commercial Diving Ctr., 143 Cal.App.3d 72 (1983) (summarily denying cause of action for loss of consortium where husband, who sustained personal injuries in diving accident, was engaged to be married but incurred injury before marriage); Tong v. Jocson, 76 Cal.App.3d 603 (1977).
Because a valid marriage is a prerequisite to any loss-of-consortium claim, it follows that the applicability of the delayed discovery rule to a loss-of-consortium claim is irrelevant where a premarital injury is involved.
The reverse of this issue - whether the delayed discovery rule could apply to a spouse where the injury occurred subsequent to the marriage - was addressed in Uram v. Abex Corp., 217 Cal.App.3d 1425 (1990).
In Uram, the court denied a spouse's claim for loss of consortium on statute-of-limitations ground. However, in its analysis, the court determined that the spouse's cause of action was delayed pursuant to the discovery rule until she should have reasonably suspected that the loss of her husband's services was due to his exposure to asbestos during his work years.
Borrowing from Uram, the plaintiff in Zwicker carefully characterized the central issue before the court as whether the delayed discovery rule applied to a loss-of-consortium analysis. Using this narrow frame, she argued that Uram affirmed that it did and that her cause of action therefore did not accrue until she should have suspected wrongdoing on the part of the defendant.
Because the plaintiff contended that this did not occur until after her marriage to Gary Zwicker, she argued that her cause of action was both valid and timely raised.
But the Zwicker court quickly disposed of this argument and appropriately distinguished Uram as involving a post-marital injury, not a premarital injury followed by post-marital discovery of the extent of the injury. The court noted: "[T]his is no help to plaintiff, however, since the purpose of the delayed discovery rule is 'to prevent tort claims from expiring before they are discovered.' The delayed discovery rule has no place in determining whether a tort claim ever arose in the first place."
Because the plaintiffs in Uram were married at the time of the alleged injury, the court was not faced with whether the plaintiffs maintained a valid cause of action but instead with whether the cause of action was timely brought. Accordingly, the Zwicker court reframed the question before it to whether plaintiff could maintain a valid cause of action at all.
In addition to keeping consistent with California's focused approach to loss-of-consortium claims, the Zwicker holding appears to make good sense. The delayed discovery rule functions in connection with the statute of limitations to defeat a defense of tolling where an injury is not immediately discovered by a plaintiff.
But, as the court reasons, whether a plaintiff can defeat an affirmative defense to a cause of action is secondary to whether he or she can state a cause of action at all.
Indeed, the date of injury is key in the loss-of-consortium context not for limitations accrual purposes but because the entire premise of the claim is that compensation is owed because a post-marital injury has taken away specific spousal functions that once existed earlier in the marriage. See United Services Automobile Ass'n v. Warner, 64 Cal.App.3d 957 (1976) (loss of consortium arises because bodily injury renders a spouse unable to perform spousal functions that he or she once did); see also BAJI 14.10 (loss-of-consortium damages arise from loss of previously provided spousal function).
This policy is not served where the function at issue is absent before the marriage even begins.
Post-Zwicker, the message to plaintiffs bringing loss-of-consortium claims is clear: You need "I do" before you sue.
David E. Stanley, a director at Crosby Heafey, Roach & May, is chair of the product liability practice group in Los Angeles. Carrie M. Hemphill, an associate at the firm, practices in the product liability and commercial litigation groups.