A recent decision from Florida’s Fourth District Court of Appeals raises interesting questions about how and whether the traditional “marriage before injury” doctrine should apply in asbestos and other types of latent disease cases.
In Florida, like many jurisdictions around the country, the “marriage before injury” doctrine holds that a spouse cannot “marry into” a pre-existing cause of action and thereby create for himself or herself a loss of consortium claim if the marriage occurred subsequent to the injury but prior to the filing of suit.
Traditionally, the wrongful death statutes around the country identify specific family members who have claims and the survival statutes often define the term “Survivors” as a group of individuals who generally have a familial relationship to the injured party at the time of the injury which gives rise to the claim. Under traditional analysis, therefore, a spouse who marries the tort victim after the cause of action has accrued is not entitled to recover.
In a recent Florida case, however, the plaintiff’s lawyer argued creatively that it is unjust in latent disease cases to deprive a spouse of the right to recover where the injury to his/her marriage partner occurred prior to marriage, but did not manifest itself until long afterward.
In the case of latent disease claims, an individual may have been exposed, for example, to asbestos 40 years ago, marry two years later and remain married to the same spouse for 38 years before the disease manifests itself. In the Florida case, the Plaintiff counsel argued that the underlying policy of preventing a spouse from “marrying into a cause of action” is absent where the consortium claimant could not possibly have known of the existence of a potential claim. It was argued that it is unjust to deprive a consortium claim to the spouse under such circumstances. It was alleged that there was no risk that the consortium claimant could have actual knowledge of the existence of a claim and, therefore, the underpinnings of the prohibition against marrying into a claim were absent.
Nonetheless, the Florida court held that where the exposures were not continuing, neither the development of the latent disease process during the period of the marriage and nor the ultimate manifestation of that disease during the marriage is sufficient to support a consortium claim on behalf of the spouse. It has been suggested that the Florida Supreme Court soon will look at this issue.
Commentators have suggested that in “plaintiff friendly” jurisdictions around the country, courts may soon be compelled by plaintiff’s counsel to begin to evaluate whether a public policy exception should be made to accommodate spousal consortium claims in latent disease cases.
To the extent that many states around the country, including Pennsylvania have adopted the “triple trigger” in evaluating the application of commercial liability insurance to latent disease claims, so might courts begin to evaluate whether a more flexible analysis of when a cause of action accrues for purposes of determining the propriety of consortium claims.