Walsh v. Armstrong World Industries, Inc., CV 87-2593.

• Decision Date: 06 December 1988
• Docket Number: No. CV 87-2593.,CV 87-2593.
• Citation: 700 F. Supp. 783
• Parties: Sandra WALSH, Individually and as Executrix of the Estate of John Walsh, Deceased, Plaintiff, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of New York

700 F. Supp. 783

Sandra WALSH, Individually and as Executrix of the Estate of John Walsh, Deceased, Plaintiff, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants.

No. CV 87-2593.

United States District Court, S.D. New York.

December 6, 1988.

Perry Weitz, Eisen & Weitz, New York City, for plaintiff.

Patrick Wilkinson, Goeller & Modessit, Nara Haute, Ind., for defendants.

MEMORANDUM AND ORDER

DEARIE, District Judge.^*

In February, 1988, while this action was pending, John Walsh, then a plaintiff herein, died, allegedly as a result of his prior occupational exposure to asbestos. His widow, Sandra Walsh, continued the action in her own behalf and as executrix of his estate. John Walsh's last exposure to asbestos occurred long before his 1984 marriage to Sandra; indeed, when the Walshes married, John already suffered from the allegedly asbestos-related fibrosis of the lung that ultimately claimed his life. These undisputed facts form the basis for several applications, made orally during the jury trial of this action by Celotex Corp. — the sole remaining defendant — seeking to limit the causes of action and elements of damages that Mrs. Walsh may pursue.¹

Two distinct causes of action are pressed in this lawsuit. The first is John Walsh's claim for personal injuries, which survives his death and may be pursued by Sandra Walsh as her husband's personal representative. N.Y. Estates, Powers & Trusts Law ("EPTL") § 11-3.2(b) (McKinney 1988 Supp.). The second is Sandra Walsh's claim for pecuniary damages resulting from John Walsh's wrongful death. Sandra Walsh is entitled to bring the wrongful death action because she is the decedent's personal representative; her entitlement to recover wrongful death damages stems from her status as the sole distributee of the estate. EPTL §§ 5-4.1 to 5-4.4 (McKinney 1981 & 1988 Supp.). Defendant contends (1) that damages for loss of consortium resulting from wrongful death are not compensable; (2) that Mrs. Walsh may not seek damages for, or maintain a separate cause of action for, loss of consortium during her husband's lifetime, because they were not married at the time his personal injury claim accrued; and (3) that, for the same reason, Mrs. Walsh should be precluded from pursuing any wrongful death claim.

Under New York law, which governs this lawsuit, defendant's first contention is clearly correct. In Liff v. Schildkrout, 49 N.Y.2d 622, 633-34, 427 N.Y.S.2d 746, 749-50, 404 N.E.2d 1288, 1291-92 (1980), the New York Court of Appeals construed the statutory limitation of wrongful death damages to "pecuniary injuries," EPTL § 5-4.3, to exclude loss of consortium damages. The Liff court also rejected plaintiffs' argument that the common law would permit an action for loss of consortium resulting from wrongful death. 49 N.Y.2d at 631-33, 427 N.Y.S.2d at 748-49, 404 N.E.2d at 1290-92. Thus, Mrs. Walsh may not recover damages for loss of consortium resulting from Mr. Walsh's untimely demise.

Liff did recognize, however, that just as a tortiously injured decedent's personal injury claim survives the death, so does the spouse's derivative claim for loss of consortium during the decedent's lifetime. However, that derivative claim is available only to a spouse who is married to the injured party at the time of the injury. Briggs v. Julia L. Butterfield Mem. Hosp., 104 A.D.2d 626, 479 N.Y.S.2d 758 (2d Dep't 1984); Rademacher v. Torbensen, 257 A.D. 91, 13 N.Y.S.2d 124 (4th Dep't 1939) (per curiam); Miller v. Davis, 107 Misc.2d 343, 433 N.Y.S.2d 974 (Sup.Ct. Schoharie Cty.1980); see Einhorn v. Seeley, 136 A.D.2d 122, 525 N.Y.S.2d 212, 216-17 (1st Dep't 1988) (Kassal, J., dissenting in part). Defendant correctly argues that current New York law would not support Mrs. Walsh's claim for loss of consortium during the period her husband was alive.

Plaintiff responds that when the Legislature permitted revival of previously barred claims for asbestos exposure, N.Y. Laws 1986, Ch. 682 § 4, it created a new cause of action that "accrued" on the effective date of the act, by which time the Walshes were married, thus making Mrs. Walsh eligible to recover loss of consortium damages. The statute, however, is explicit: it did not create new causes of action but rather permitted renewal of previously barred claims. Nor does the simultaneous enactment of a new statute of limitations for so-called "toxic torts," N.Y. Civ.Prac.Law & Rules ("CPLR") § 214-c (McKinney Supp.1988), make loss of consortium damages available to Mrs. Walsh. That section abrogated the New York Court of Appeals' "ancient doctrine that in tort cases the statute of limitations runs from the date the injury is inflicted, regardless of when the injury is actually discovered." McLaughlin, Practice Commentary to CPLR § 214-c; see Steinhardt v. JohnsManville Corp., 54 N.Y.2d 1008, 446 N.Y. S.2d 244, 430 N.E.2d 1297 (1981), appeal dism'd, cert. denied, 456 U.S. 967, 102 S.Ct. 2226, 72 L.Ed.2d 840 (1982). Under the new statute, the limitations period in latent injury cases runs from the time the injury is or should be discovered. In this case, there is no dispute that John Walsh was disabled when he and Sandra were married, and that Sandra knew of that illness and disability. A spouse who married a victim of toxic exposure after exposure, but during the latency period of the disease, should perhaps be entitled to recover for loss of consortium; the "discovery rule," however, does not affect the principle that a spouse may not recover loss of consortium damages for injury that is manifest at the time of marriage. See Rademacher, supra, 257 A.D. at 91, 13 N.Y.S.2d at 124.

The Rademacher rule makes a degree of sense when applied to the spouse of someone who, before the marriage, has suffered a disabling injury causing a generally static condition, such as a serious trauma without further complications. The injured party's inability to provide the bundle of services and benefits referred to as "consortium," see Millington v. Southeastern Elevator Co., Inc., 22 N.Y.2d 498, 293 N.Y.S.2d 305, 239 N.E.2d 897 (1968), is apparent at the time of marriage; the spouse never has any consortium to lose, nor any expectation of consortium. By contrast, as Mrs. Walsh eloquently testified, where at the time of marriage the injured party is in the relatively early stages of a progressive disease, both the quality and quantity of consortium decrease with time; the spouse suffers a real and tortiously inflicted loss. The Court therefore has misgivings about applying the Rademacher rule to a case such as this. However, given the consistency and rigidity² with which New York courts have applied Rademacher, this Court cannot conclude that a New York court would modify the rule to allow Mrs. Walsh to recover for loss of consortium. Therefore, the complaint is dismissed to the extent that it asserts a claim for loss of consortium deriving from John Walsh's claim for personal injury.

Defendant urges that the Rademacher and Briggs cases also compel the dismissal of Mrs. Walsh's wrongful death action. The Court disagrees.

The New York Court of Appeals decided, in Radley v. Le Ray Paper Co., 214 N.Y. 32, 108 N.E. 86 (1915), that a decedent's wife, who married him after the tortious infliction of a lethal injury, could recover her pecuniary damages under the wrongful death statute. In addition, for purposes of calculating damages, the court held that the appropriate measure of decedent's life expectancy was the length of time he would have lived had he not been injured, not his life expectancy at the time he was married. Defendant concedes that Radley has never been overruled³ but urges that modern New York law, as evidenced by Briggs, effectively disavows Radley. However, the issues raised by Radley and Briggs are quite different, and there are sound jurisprudential reasons why plaintiffs in Mrs. Walsh's position should be allowed to maintain wrongful death actions even if they may not bring suit for loss of consortium.

The basic concern of Rademacher, Briggs and Miller is that one should not be able to "marry a lawsuit." At its core, the Rademacher rule is a twist on the famous "thin skull rule" of tort law: you take your spouse as you find him or her. When an unmarried person is tortiously injured, the liability created is limited to the damages recoverable by that person for personal injury. The courts have refused to allow third parties, by their voluntary act of marriage to the injured person, to in effect create an ex post facto liability for loss of consortium where none had existed before.⁴

By contrast, the wrongful death statute creates a liability where the common law had illogically rejected liability, that is, in cases where a tortfeasor caused death instead of mere injury. Liff, supra. Although defendant repeatedly says that Mrs. Walsh, because she married Mr. Walsh after the onset of his illness, is not his "spouse" within the meaning of the wrongful death statute, the current version of that statute⁵ has but two requirements that might affect Mrs. Walsh's status: first, it allows only the decedent's "personal representative, duly appointed" to maintain the action, EPTL § 5-4.1 subd. 1 (McKinney Supp.1988), and second, it allows distribution of wrongful death damages "exclusively for the benefit of the decedent's distributees", id. § 5-4.4(a) (McKinney 1981). Mrs. Walsh satisfies both these requirements, and the statute does not require that she satisfied them at the time Mr. Walsh was injured.

Of course, one's status as "personal representative" of the deceased generally arises only at or after the time of death, so it would make no sense to read into the statute a requirement that the party plaintiff be the decedent's personal representative at the time of the injury. Nor does it make sense to limit recovery only to those who are distributees at the time of the injury. The losses compensable under the wrongful death statute, id. §...