*1 Furby Raymark INDUSTRIES, FURBY v RAYMARK INC 8, 1986, April Docket No. 85897. Submitted at Detroit. Decided 8, 1986. September Furby Furby, Wayne Kenneth and Shelbie filed suit in the Inc, against Industries, Circuit Court and others alleging plaintiff Furby’s Kenneth asbestosis was caused by exposure products containing his asbestos which he used industry. in the course his work in the insulation Plaintiffs’ complaint pleaded negligence, warranty, claims for breach liability, by plaintiff Furby strict and a claim Shelbie for loss of court, Mies, J., granted consortium. The circuit James E. sum- claim, mary disposition ruling of the loss of consortium plaintiff Furby Shelbie could not maintain a claim plaintiff since she was not married to Kenneth Furby to, Furby at the time Mr. first became or of, possibility alleged became aware appealed. disease. Plaintiffs Appeals The Court of held: Generally, evidence of a lawful marital at the time injury of the tortious conduct and resultant to one required bring is before the other can an action for loss of generally agree person consortium. Courts that a should not be permitted marry case, a cause of action. Appeals plaintiffs’ underlying Court of concluded that cause of product plaintiff action for Shelbie for loss of consortium did not accrue until such time as or, through Kenneth discovered exercise reason- diligence, able have discovered that should he had cause of action. plaintiffs’ underlying The exact time when of action _2. References 2d, seq. Am Jur Husband and Wife 440 et §§ 2d, seq. Am Jur Master and et Servant §§ 2d, Pleading seq. Am Jur 230 et §§ 2d, Liability seq., Am Jur seq. Products 284 et 913 et §§ Wife’s of action for loss of consortium. 36 ALR3d 900. Occupa- See also the annotations in the Index to Annotations under Health; Safety Liability; Safety tional Products Codes and Standards. 154 question accrued of fact that is best left for the fact finder discovery following proceedings. to decide the termination of Reversed and remanded. Danhof, C.J., where, He dissented. would hold that as in this case, alleged marriage, occurs before *2 loss of consortium should not be allowed. He would further that, assuming governs
hold that the rule which accrual of Mr. Furby’s viability cause of action should also control the of Mrs. claim, product loss of consortium an asbestos-related liability act, i.e., wrongful the time of accrues at exposure to asbestos. He would affirm.
Opinion of the Court Summary Disposition — — 1. and Orders Motions Failure to — a Claim State Court Rules. summary disposition ground oppos- A for motion on the that the ing party upon has failed to a claim relief state can be granted challenges legal adequacy pleadings; of the the test apply claim, which the court should is on whether pleadings, clearly is so unenforceable as a matter of law that development possibly justify no factual can recover (MCR2.116[C][8], 1963,117.2[1]). formerly GCR — Loss of Torts Consortium. society, companionship, Loss of consortium includes ser- vice, marriage relationship. all other incidents — — 3. Torts Loss of Consortium Actions. A claim for loss of consortium is derivative and in an upon contingent injured for action loss of consortium is person’s recovery damages. of Liability — — 4. Products Loss of Consortium of Causes Action — Accrual of Cause of Action. underlying A for claim loss of consortium derived from an action product liability does accrue until such time as the or, injured spouse through discovers of the exercise reasonable diligence, should have discovered that he had cause action, alleged injury where the is related a latent disease such asbestosis. by Danhof, C.J.
Dissent — — 5. Torts Loss of Consortium Actions. The loss consortium claim derived from relation- ship rights arising it; recovery and the from for loss of consor- generally tium is not allowed where the before occurs marriage. Liability — — 6. Products Loss Accrual of Cause of Action Consortium. product A cause of action for accrues at the time the upon wrong done; which the claim is based is a claim for loss similarly from such derived action accrues at that time. Serling, (by Serling Michael B. P.C. Michael B. Areeda), and Michelle E. plaintiffs. Heaphy,
Vandeveer, Garzia, Tonkin, Kerr, Poling, (by Brignall), Moore, Sills & P.C. Robert D. for defendants. Danhof, C.J.,
Before: Sullivan, and Hood and JJ. January J. On
Sullivan, *3 complaint against filed a tos-related complaint defendants this asbes-
personal injury action. Included in this by plaintiff was a claim filed Shelbie Furby Raymark for loss of consortium. Defendant subsequently summary Industries, Inc., moved for disposition only as to the loss of consortium claim. granted by partial The motion was an order for summary disposition, 3, entered on June 1985. On 21, 1985, June the trial court entered an order modifying 3, 1985, the June order to reflect that it applied appeal to all defendants. Plaintiffs as of right. Furby,
Plaintiff Kenneth husband, Shelbie’s was employed industry in the insulation from 1947 During period, repeatedly until 1968. he was exposed asbestos, to asbestos and dust fibers. In Furby hospitalized lung 1980, Kenneth was congestion fatigue. Irving and Selikoff, Dr. after viewing Furby’s x-rays, following Mr. wrote 154 June Furby letter to Mr. dated
opinion in a 1981: scarring pleura
There is clear evidence is char- diaphragm, with calcification. This and left expo- previous asbestos acteristically the result of sure. limited in these scars were extent accompanied by any of more serious were not changes occasionally see and that would that we
give us concern. current interrogatories, In answer to defendants’ their "plaintiff Furby] plaintiffs stated [Kenneth in general disorders aware of his respiratory terms, conditions were attributed but such 1981,” date until exposure to asbestos June of Dr. SelikofFs letter. In
Plaintiffs were on October married Mr. diagnosed Dr. Parker September, Jeffrey asbestosis, and stated that Furby as exposure condition was related to his to asbestos. alleged complaint, negligence, their plaintiffs fur- warranty, liability,
breach of and strict ther injuries claimed Kenneth he containing products caused by Additionally, used the course of work. stated, Furby Shelbie filed her claim for loss brought consortium. its to dis- motion miss the of consortium claim on the basis did not until Mr. marry he became asbestos and learned that had an The circuit *4 motion, granted holding that the of an spouse the inju- who has individual sustained asbestos-related he may ries not sue for of consortium unless loss he or she married to the victim at the time 343 op Opinion the Court first became to or became aware the possibility of an asbestos-related
Defendant Raymark brought par- its motion for summary ground tial on disposition the that Ms. Furby failed to state a claim can upon relief granted pursuant 2.116(C)(8), be to MCR formerly 117.2(1). 1963, GCR 117.2(1) 1963, summary judgment A under GCR
challenges
legal adequacy
pleadings.
apply
The test which the court should
is whether
claim,
the pleadings,
clearly
on
is so
unenforceable as a matter of
law
no factual
development
possibly
justify
can
a
to recover.
Co,
Eli Lilly
323-324;
Abel v
&
418 Mich
343
(1984),
164
NW2d
reh den 419 Mich
1214
—
(1984),
—;
123;
cert den
83 L
2d
US
S Ct
Ed
(1984).
Dist Library
County
v Jackson
[Jackson
#1,
392, 400;
(1985).]
380 NW2d
Lieberman,
Oldani
In
642, 645;
144 Mich App
(1985),
NW2d 778
this Court
as follows:
stated
Michigan
permits
case law
a husband or wife to
damages
recover
for loss of consortium when his
or
by
negligence
her
injured
is
aof
party.
third
Loss of consortium includes conjugal
fellowship, companionship,
services
all other
marriage
incidents of
relationship.
Michigan,
loss of consortium is
recovery
derivative and
in an
action
loss
contingent upon
injured
consortium is
person’s
damages.
Schultz,
In Rusinek
Snyder
Co,
&
508;
Steele Lumber
[411
(1981)]
NW2d
reh den
. . . social
must at some
intervene
liability
every
to delimit
....
loss can be
Not
compensable
legal
money damages,
made
and
causation must
terminate
. . .
somewhere
Rodri-
guez
Corp,
Bethlehem
Steel
Cal 3d
[v
Rptr
(1974)], supra,
repudi-
Cal
Generally, other federal and state courts have denied recovery for loss of consortium where the injury occurs the marriage: before Frequently observing that of consor- *6 grows
tium out of the marital relationship, these courts have consortium recovery refused to allow for loss of ground on respective the that the spouses not were married at the time of the in- jury.1 1 693(h) requires See Restatement of Torts 2d Sec a marriage spouse against valid for to maintain an action one ALR4th, injury spouse. who inflicts on the other [5 301.] A glimmer contrary appears Wagner to v the Co, International Harvester (D 455 F 168 Supp Minn, 1978), where the court refused to allow for consortium when the did not know his at wife the time of her stated, The court "He not should be entitled to marry a action.” But the court stated further that general rule may to yield special circumstances. 455 F 169. Supp
Here, the plaintiffs married thirteen years the last date Mr. Furby sustained But, exposure. plaintiffs argue they that were married Mr. before Furby’s injury manifested physical symptoms to allow a firm diagnosis asbestosis, and that it diagno- was until such a sis was made that his cause of action accrued. argued, Defendants agreed, the trial that Mr. Furby injured was either on the date he asbestos, June, was or in when Dr. Selikoff advised him that he had a possible asbestos-related 154 339
346 Opinion op the Court Schneider, Stager 494 A2d In the case of (DC on 1985), married App, Mrs. of that year, December June physical of a examina- Stager, during course tion, diagnosed as adenocarcinoma. was the mar- x-ray prior taken to Mrs. had an Stager however, problem; indicated the same riage which hus- or her her did not inform either her doctor that since fact. The court concluded band this Dixie married Stager lawfully Patrick Stager time were informed they at justiciable had a injury, nature of the he loss of consortium. have, country
It is that the courts of true a lawful held the evidence of majority, time of the tortious at to one conduct and resultant bring the other can an action required before Sawyer Bailey, A2d consortium. See Carter, (Me, 1980); So 2d Tremblay Shivar, (Fla 1980); Angelet v 602 SW2d App, 1980). generally agree Courts (Ky App, be a cause person permitted marry should not *7 Wagner, in supra. of action. One takes a health, existing their state of thus assumes prior risk from any deprivation resulting the of Stager, supra, p the in disability. As said: expressing agree- in We have no hesitance our
ment
to claim consortium
and
these
the
the
with
courts where
issue is
the tortious conduct
where
known
fact of
were both
or knowable
prior
marriage. [Emphasis
original.]
to that
Stager was the
holding
implicit
cause
did
until
underlying
of action
not accrue
the results of the earlier
were known
x-rays
respective parties.
A2d
Unfortunately,
there is currently
split
of au-
thority within this Court on the issue of when a
of
products
action based on
liability accrues
in this state. We find that
the underlying cause of
action here
did
accrue until Mr. Furby either
or,
discovered
through
exercise of reasonable
diligence,
should have discovered that he had a
Co,
v The
cause of action.
Bonney
Upjohn
18, 34-35;
129 Mich App
(1982),
In so we holding, reject opinion the majority Larson Johns-Manville Corp, Sales 140 Mich 254; gtd NW2d 194 lv (1985), which, of purposes calculating running limitation, period of the declined to adopt "discovery” rule of accrual ato number products liability claims similar and, instead, to the instant strictly con- general statute, strued the 600.5827; accrual MCL 27A.5827, MSA as requiring finding that accrual occurred at wrongful the time of the act.
App 267.
We believe that application of the "discovery” rule to the instant situation would not thwart policies supporting general limiting rule causes action for an indi- vidual who is married at the time of the injury to his or her spouse. cases where an individual marries someone who exposed has been to asbestos but has not yet diagnosed been asbesto- sis disease, or a related such an individual did not enter into the with knowledge nature his or her spouse’s injuries potential Thus, causes of action. it would be unrea- that, sonable to regard conclude with to such an spouse, individual and his a cause of *8 App 154 Mich C.J. by Danhof, Dissent when, due to extreme already action accrued illnesses, neither of asbestos-related latent nature not, in the could in fact know and spouse did diligence, know of of reasonable care and exercise the nature and cause Shelbie
Indeed, for certain that say one cannot Plaintiffs were married a cause action. Furby marriage, 1981. Prior to the married in October of opin- a medical June, Mr. received Furby character- stating possessed symptoms ion that he that such exposure, but previous istic of concern.” not a cause of "current symptoms the mar- years It was not until almost two Mr. Furby that riage, September, learned that diagnosed asbestosis and expo- to his the condition was related It stated as a matter of sure to asbestos. cannot be June, opinion gave medical Mr. law that had a sufficient notice that he Indeed, had not underlying yet of action. was at "potential accrued because his speculative incapable proof time merely (J. R. certainty.” a reasonable Ernst, J., dissenting part).
Since the time the cause of action underlying of fact left for question accrued is best following the fact finder to decide the termination of discovery, partial we reverse the order of sum- disposition and mary remand the matter trial court for a factual determination of this issue and for other proceedings further not inconsistent opinion. with this
Reversed and remanded.
Hood, J., concurred.
Danhof, C.J., (dissenting). I dissent. respectfully *9 Furby y Raymark Industries by Danhof, Dissent C.J. I agree with the circuit that Ken- neth Furby sustained at injury either the time he or no later of than June June, Dr. 1981. SelikofFs letter plainly communicated the fact I conclude that occurred plaintiffs’ well before the mar- riage in October of 1981.
The loss consortium claim is derived from rights and the arising from it. Rowe, (WD Chisea v 486 F Supp Mich, 1980). See, also, (5th Keeton, ed), Prosser & Torts p Where the injury occurs before mar- § riage, loss of consortium is generally Sawyer (Me, not allowed. Bailey, 413 A2d Carter, (Fla 1980); Tremblay 390 So 2d 816 App, 1980). These principles are fairly easy apply to cases which the claims for liability consortium arise as a result of an accident. Their application where, here, becomes more difficult the claims arise as result of an Schneider, Stager
The majority follows (DC A2d 1985), App, applies discov- rule in ery order to viability determine consortium claim. I am not completely convinced that the rule which governs accrual Mr.
cause of action should also control
the viability of
Mrs. Furby’s loss of
Assuming
consortium claim.
does,
it
I would follow the majority
view
expressed in Larson v
Corp,
Johns-Manville Sales
I would affirm the decision of the circuit court.