Cleveland v. Johns-Manville Corp., JOHNS-MANVILLE

• Citation: 547 Pa. 402,690 A.2d 1146
• Decision Date: 18 March 1997
• Docket Number: JOHNS-MANVILLE
• Parties: , Prod.Liab.Rep. (CCH) P 14,916 Ernest CLEVELAND, Jr. and Winifred Cleveland, H/W, Appellants, v.CORP., Johns Manville Sales Corp., Manville Corp., Raybestos Manhattan, Inc., GAF Corp., Unarco Industries, Inc., Celotex Corp., H.K. Porter Co., Inc., Southern Textile Corp., Eaglepicher Industries, Inc., Pacor, Inc., Keene Corp., Garlock, Inc., Owens-Illinois Glass Co., Pittsburgh Corning Corp., Amatex Corp., Owens-Corning Fiberglas Corp., Celotex Corp., Appellee.
• Court: United States State Supreme Court of Pennsylvania

Page 1146

690 A.2d 1146

547 Pa. 402, Prod.Liab.Rep. (CCH) P 14,916

Ernest CLEVELAND, Jr. and Winifred Cleveland, H/W, Appellants, v. JOHNS-MANVILLE CORP., Johns Manville Sales Corp., Manville

Corp., Raybestos Manhattan, Inc., GAF Corp., Unarco

Industries, Inc., Celotex Corp., H.K. Porter Co., Inc.,

Southern Textile Corp., Eaglepicher Industries, Inc., Pacor,

Inc., Keene Corp., Garlock, Inc., Owens-Illinois Glass Co.,

Pittsburgh Corning Corp., Amatex Corp., Owens-Corning Fiberglas Corp.,

Celotex Corp., Appellee.

Supreme Court of Pennsylvania.

Argued Oct. 15, 1996.

Decided March 18, 1997.

Martin Greitzer, Joseph Greitzer, Jonathan W. Miller, Philadelphia, for Ernest & Winifred Cleveland.

Bruce H. Bikin, Douglas L. Overtoom, Philadelphia, for Celotex Corporation.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.

OPINION OF THE COURT

NEWMAN, Justice.

This appeal concerns a personal injury action filed by appellants Ernest Cleveland, Jr., and Winifred Cleveland, husband and wife, based on Mr. Cleveland's exposure to asbestos products manufactured by several companies, including appellee Celotex Corporation (Celotex). We must decide the following three issues: (1) can a spouse recover damages for loss of consortium where the other spouse's injury occurred prior to marriage; (2) can a spouse recover delay damages on an award for loss of consortium where the other spouse's injury occurred prior to marriage; and (3) should this Court retroactively apply case law precluding claims for damages based on increased risk and fear of developing asbestos-related cancer? We answer each of these questions in the negative.

FACTS AND PROCEDURAL HISTORY

In 1969, Mr. Cleveland began working as a painter's apprentice at the Philadelphia Naval Shipyard. From 1969 until 1976, Mr. Cleveland's duties included preparing and painting the interiors of ships. Because other shipyard employees inside the ships were constantly removing and installing insulating materials containing asbestos, Mr. Cleveland worked in an environment thick with asbestos dust.

Following a series of chest x-rays during an annual physical examination in 1980, a doctor informed Mr. Cleveland that he had asbestosis. ¹ Although Mr. Cleveland was diagnosed with asbestosis, he was not diagnosed with cancer. He does, however, have an increased likelihood of contracting cancer in the future because of his exposure to asbestos. Notes of Testimony, April 26, 1989 at 6.77-6.88; Epstein Videotaped Deposition, April 24, 1989 at 87. On July 19, 1982, Mr. and Mrs. Cleveland filed a complaint against various manufacturers of insulating materials containing asbestos. Mr. Cleveland sought damages for his injuries, including, inter alia, increased risk and fear of developing cancer. In addition, Mrs. Cleveland sought damages for the loss of Mr. Cleveland's consortium.

Mr. and Mrs. Cleveland, however, were not married when they filed the complaint. Mr. Cleveland first met the future Mrs. Cleveland in 1968, when she was married to Timothy A. Smith and was known as Winifred Smith. Mrs. Smith began living with Mr. Cleveland in 1971 or 1972 and assumed the name Winifred Cleveland, even though she was still married to Mr. Smith. She divorced Mr. Smith in April 1983, and married Mr. Cleveland in September 1983. Thus, the Clevelands were not married until more than one year after they filed their complaint purporting to be husband and wife. ²

All defendants, except Celotex, settled with the Clevelands before trial. Celotex stipulated to liability and agreed to pay 15 percent of any verdict upheld on appeal. The parties proceeded to trial on the issue of damages only. Following a trial in the Court of Common Pleas of Philadelphia County (trial court) during April and May of 1989, a jury returned a verdict in favor of Mr. Cleveland for $1,500,000.00 and a verdict in favor of Mrs. Cleveland for $140,000.00. In an Order dated January 8, 1990, the trial court denied Celotex's post-trial motions. In a second Order dated January 8, 1990, the trial court Celotex separately appealed each of the trial court's Orders to the Superior Court on April 12, 1990. ⁶ The Superior Court consolidated the appeals pursuant to Pa.R.A.P. 513. On October 26, 1990, the Superior Court dismissed the appeals without prejudice because Celotex had instituted bankruptcy proceedings in federal court. Following the resolution of Celotex's bankruptcy proceedings, the Superior Court granted Celotex's petition for reinstatement of the appeals on December 1, 1993.

                granted the Clevelands' motion for delay damages and entered judgments against Celotex and in favor of the Clevelands. 3  Mr. Cleveland received a judgment for $396,067.40 4 and Mrs. Cleveland received a judgment for $36,966.40. 5
                

The Superior Court reversed Mrs. Cleveland's award of damages for loss of consortium and her award for delay damages on the verdict for loss of consortium. The Superior Court also granted Celotex's request for a new trial limited to damages by retroactively applying case law abolishing a cause of action for risk and fear of cancer. ⁷ The Clevelands filed a timely Petition for Allowance of Appeal, which we granted on March 12, 1996.

DISCUSSION

I. Loss of Consortium

Mrs. Cleveland claims she is entitled to compensation for loss of consortium because of Mr. Cleveland's asbestosis. Consortium is defined as the "[c]onjugal fellowship of husband and wife, and the right of each to the company, society, co-operation, affection, and aid of the other in every conjugal relation." Black's Law Dictionary 309 (6th ed. 1990). A claim for loss of consortium arises from the marital relationship and is based on the loss of a spouse's services resulting from an injury. Sprague v. Kaplan, 392 Pa.Super. 257, 572 A.2d 789 (1990). Because it arises from the marital relationship, a claim for loss of consortium does not exist if the complaining parties are not married when the injury occurs. Vazquez v. Friedberg, 431 Pa.Super. 523, 637 A.2d 300 (1994); Sprague; see also 21 Standard Pennsylvania Practice 2d § 116:39 (1995); 18 Pennsylvania Law Encyclopedia § 83 (1988). When the injury involves a hidden or latent disease, such as asbestosis, the injury occurs when the plaintiff discovers, or reasonably should have discovered, the injury. Vazquez.

Mr. Cleveland's injury occurred in 1980, when he discovered that he had asbestosis. Id. The Clevelands readily admit, however, that they did not marry until 1983. Accordingly, Mrs. Cleveland cannot maintain a cause of action for loss of consortium because she was not married to Mr. Cleveland when his injury occurred. Vazquez; Sprague.

II. Delay Damages

It is self-evident that without a valid award of compensatory damages, a litigant has no basis to seek delay damages pursuant to Pa.R.C.P. 238. Because we hold that Mrs. Cleveland cannot recover damages for loss of consortium, the issue of delay damages on her award for loss of consortium is moot.

III. Retroactivity

On appeal to the Superior Court, Celotex, then the appellant, claimed that the trial court erred in charging the jury that Mr. Cleveland could recover for increased risk and fear of developing cancer in the future because of his exposure to asbestos. At the time of trial in 1989, increased risk and fear of cancer was compensable pursuant to Pennsylvania law, even where cancer had not yet developed. Higginbotham v. Fibreboard Corp., 428 Pa.Super. 26, 28 n. 4, 630 A.2d 14, 15 n. 4 (1993); Giovanetti v. Johns-Manville Corp., 372 Pa.Super. 431, 437-38, 539 A.2d 871, 874 (1988); see also Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984). However, while the Clevelands were awaiting the reinstatement of their appeal to the Superior Court, that court decided Giffear v. Johns-Manville Corp., 429 Pa.Super. 327, 632 A.2d 880 (1993), aff'd sub nom. Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232 (1996), which held that plaintiffs could no longer pursue claims for increased risk and fear of cancer in asbestos actions where cancer is not present. Celotex argued that the Superior Court should give Giffear retroactive effect to invalidate the trial court's charge allowing Mr. Cleveland to recover for increased risk of cancer and fear of cancer. ⁸ The Superior Court agreed and granted a new trial on damages.

While the Clevelands' appeal to this Court was pending, we affirmedGiffear in a consolidated case named Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232 (1996). Simmons originated in the Court of Common Pleas of Philadelphia County. James Simmons and Theodore Murray and their wives sued various manufacturers of asbestos products. The Superior Court consolidated the appeals from the Court of Common Pleas and entered a judgment under the name Murray v. Philadelphia Asbestos Corp., 433 Pa.Super. 206, 640 A.2d 446 (1994). We consolidated the appeal from the Superior Court's judgment in Murray with the appeal from the judgment in Giffear and issued an Opinion under the name Simmons.

In Simmons, a case of first impression for our Court, we addressed the issue of whether increased risk of cancer and fear of cancer were compensable in an asbestos action where cancer has not yet developed. We held that a plaintiff asserting a non-cancer, asbestos-related claim could not recover for any part of the damages relating to cancer. ⁹ Simmons, 543 Pa. at 678, 674 A.2d at 239. This holding abolishes claims for increased risk and fear of cancer where cancer is not present, thus eliminating the recovery of damages based on a speculative future event, the possible occurrence of cancer. Id. at 676-77, 674 A.2d at 238. ¹⁰

Although we applied our holding to the parties before us in Simmons, we did not address whether our holding should be given retroactive effect. Celotex argues for a retroactive application of Simmons here to invalidate the trial court's charge on increased risk and fear of cancer. The Clevelands...