Furby v. Raymark Industries, Inc., Docket No. 85897

• Decision Date: 08 September 1986
• Docket Number: Docket No. 85897
• Parties: Kenneth FURBY and Shelbie Furby, Plaintiffs-Appellants, v. RAYMARK INDUSTRIES, INC., et al., Defendants-Appellees. 154 Mich.App. 339, 397 N.W.2d 303, Prod.Liab.Rep.(CCH)P. 11,240
• Court: Court of Appeal of Michigan — District of US

Page 303

397 N.W.2d 303

Kenneth FURBY and Shelbie Furby, Plaintiffs-Appellants, v. RAYMARK INDUSTRIES, INC., et al., Defendants-Appellees.

Docket No. 85897.

154 Mich.App. 339, 397 N.W.2d 303, Prod.Liab.Rep.(CCH)P.

11,240

Court of Appeals of Michigan.

Submitted April 8, 1986.

Decided Sept. 8, 1986.

[154 MICHAPP 341] Michael B. Serling, P.C. by Michael B. Serling, Birmingham, for plaintiffs.

Vandeveer, Garzia, Tonkin, Kerr, Heaphy, Moore, Sills & Poling, P.C. by Robert D. Brignall, Detroit, for defendants-appellees.

Before DANHOF, C.J., and HOOD and SULLIVAN, JJ.

SULLIVAN, Judge.

On January 17, 1984, plaintiffs filed a complaint against defendants in this asbestos-related personal injury action. Included in this complaint was a claim filed by plaintiff Shelbie Furby for loss of consortium. Defendant Raymark Industries, Inc. subsequently moved for summary disposition only as the loss of consortium claim. The motion was granted by an order for partial summary disposition, entered on June 3, 1985. On June 21, 1985, the trial court entered an order modifying the June 3, 1985, order to reflect that it applied to all defendants. Plaintiffs appeal as of right.

Plaintiff Kenneth Furby, Shelbie's husband, was employed in the insulation industry from 1947 until 1968. During this period, he was repeatedly exposed to asbestos, asbestos dust and fibers. In 1980, Kenneth Furby was hospitalized for lung congestion and fatigue. Dr. Irving Selikoff, after viewing Mr. Furby's x-rays, wrote the following [154 MICHAPP 342] opinion in a letter to Mr. Furby dated June 16, 1981:

"There is clear evidence of scarring of the pleura and left diaphragm, with calcification. This is characteristically the result of previous asbestos exposure.

"However, these scars were limited in extent and were not accompanied by any of the more serious changes that we occasionally see and that would give us current concern."

In their answer to defendants' interrogatories, plaintiffs stated "plaintiff (Kenneth Furby) was aware of his respiratory disorders in general terms, but such conditions were not attributed to exposure to asbestos until June of 1981," the date of Dr. Selikoff's letter.

Plaintiffs were married on October 11, 1981. In September, 1983, Dr. Jeffrey Parker diagnosed Mr. Furby as having asbestosis, and stated that the condition was related to his occupational exposure to asbestos.

In their complaint, plaintiffs alleged negligence, breach of warranty, and strict liability, and further claimed that Kenneth Furby's injuries were caused by products containing asbestos which he used in the course of his work. Additionally, as stated, Shelbie Furby filed her claim for loss of consortium. Raymark brought its motion to dismiss the loss of consortium claim on the basis that the plaintiffs did not marry until after Mr. Furby became exposed to asbestos and learned that he had an asbestos-related injury. The circuit court granted the motion, holding that the spouse of an individual who has sustained asbestos-related injuries may not sue for loss of consortium unless he or she was married to the victim at the time he [154 MICHAPP 343] first became exposed to or became aware of the possibility of an asbestos-related disease.

Defendant Raymark brought its motion for partial summary disposition on the ground that Ms. Furby failed to state a claim upon which relief can be granted pursuant to MCR 2.116(C)(8), formerly GCR 1963, 117.2(1).

"A summary judgment under GCR 1963, 117.2(1) challenges the legal adequacy of the pleadings. The test which the court should apply is whether plaintiff's claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover. Abel v Eli Lilly & Co, 418 Mich 311, 323-324; 343 NW2d 164 (1984), reh den 419 Mich 1201, 1214 (1984), cert den US ; 105 S Ct 123; 83 L Ed 2d 65 (1984)." Jackson Dist Library v. Jackson County # 1, 146 Mich.App. 392, 400, 380 N.W.2d 112 (1985).

In Oldani v. Lieberman, 144 Mich.App. 642, 645, 375 N.W.2d 778 (1985), this Court stated as follows:

"Michigan case law permits a husband or wife to recover damages for loss of consortium when his or her spouse is injured by the negligence of a third party. Loss of consortium includes conjugal fellowship, companionship, services and all other incidents of the marriage relationship.

"In Michigan, a claim for loss of consortium is derivative and recovery in an action for loss of consortium is contingent upon the injured person's recovery of damages. In Rusinek v Schultz, Snyder & Steele Lumber Co, [411 Mich. 502, 508, 309 N.W.2d 163 (1981), reh. den. 412 Mich. 1101 (1981) ] the Supreme Court said:

" 'Since it is derived from the injured spouse's action, a claim of loss of consortium does not create a new case nor does it contribute significantly to the problems the act was intended to alleviate.' "

[154 MICHAPP 344] Michigan case law does not state whether a plaintiff may recover for loss of consortium when she was not married to her husband at the time of his injury. However, in Chiesa v. Rowe, 486 F.Supp. 236 (W.D.Mich.1980), the court, applying Michigan substantive law, dismissed a wife's loss of consortium claim when her husband's injury occurred while they were engaged. The court stated:

"When a fiancee decides to go forward with the marriage after injury and disability strikes her betrothed she must recognize the extent of assistance and comfort that he will be able to provide and will in turn require. In doing so she waives her rights to another level or form of conjugal fellowship which might have been obtained had she married another. In addition policy dictates that there be some limitation to this form of liability. Although plaintiffs were living together and engaged to be married when an injury to the female plaintiff occurred, the Court in Tong v. Jocson, 76 Cal App 3d 603, 142 Cal Rptr 726 (1977), denied recovery. There the court approvingly cited other California cases for the proposition that:

"... social policy must at some point intervene to delimit liability ... Not every loss can be made compensable in money damages, and legal causation must terminate somewhere ... Rodriguez [v. Bethlehem Steel Corp., 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669 (1974) ], supra, repudiates 'an, indefinite extension of liability for loss of consortium to all foreseeable relationships.' (Tong, id., [142 Cal.Rptr.] at 727 citations omitted).

"This Court is of the opinion that a Michigan state Court presented with the issue of whether loss of consortium should be extended to a party betrothed to another would find the above reasoning persuasive and would follow the general rule denying such an extension, and accordingly this Court finds the Defendants' Motions for Dismissal [154 MICHAPP 345] as to Count II ought to be granted." 486 F.Supp. 238-239.

Generally, other federal and state courts have denied recovery for loss of consortium where the injury occurs before the marriage:

"Frequently observing that the right of consortium grows out of the marital relationship, these courts have refused to allow recovery for loss of consortium on the ground that the respective spouses were not married at the time of the injury. ¹"

A glimmer to the contrary appears in Wagner v. International Harvester Co., 455 F.Supp. 168 (D.Minn., 1978), where the court refused to allow recovery for loss of consortium when the plaintiff did not know his wife at the time of her injury. The court stated, "He should not be entitled to marry a cause of action." But the court stated further that the general rule may yield to special circumstances. 455 F.Supp. 169.

Here, the plaintiffs married in 1981, thirteen years after the last date Mr. Furby sustained asbestos exposure. But, plaintiffs argue that they were married before Mr. Furby's injury manifested physical symptoms to allow a firm diagnosis of asbestosis, and that it was not until such a diagnosis was made that his cause of action accrued. Defendants argued, and the trial court agreed, that Mr. Furby was injured either on the date he was exposed to the asbestos, or in June, 1981, when Dr. Selikoff advised him that he had a possible asbestos-related disease.

[154 MICHAPP 346] In the case of Stager v. Schneider, 494 A.2d 1307 (D.C.App., 1985), the plaintiffs were married on June 2, 1980. In December of that year, Mrs. Stager, during the course of a physical examination, was diagnosed as having adenocarcinoma. Mrs. Stager had taken an x-ray prior to the marriage which indicated the same problem; however, her doctor did not inform either her or her husband of this fact. The court concluded that since Patrick Stager was lawfully married to Dixie Stager at the time they were informed of the nature of the injury, he had a justiciable claim for loss of consortium.

It is true that the courts of this country have, in the majority, held that the evidence of a lawful marital relationship at the time of the tortious conduct and resultant injury to one spouse is required before the other can bring an action for loss of consortium. See Sawyer v. Bailey, 413 A.2d 165 (Me.1980); Tremblay v. Carter, 390 So.2d 816 (Fla.App., 1980); Angelet v. Shivar, 602 S.W.2d 185 (Ky.App.,1980). Courts generally agree that a person should not be permitted to marry a cause of action. Wagner, supra. One takes a spouse in their existing state of health, and thus assumes the risk of any deprivation resulting from prior disability. As the court in Stager, supra, p. 1316 said:

"We have no hesitance in expressing our agreement with these courts where the issue is the right to claim consortium where the tortious conduct and fact of injury were both known or knowable prior...