Wrongful Death Claims Barred by Res Judicata from Prior Loss of Consortium Case California Court of Appeal, July 11, 2017
In this wrongful death case, plaintiff Janet Stewart appealed the grant of summary judgment to Union Carbide that her loss of consortium claim was barred by res judicata. The plaintiff also argued a miscarriage of justice in the setoff of her deceased husband’s settlement with two asbestos bankruptcy trusts against her entire economic damage award. The court affirmed both rulings.
Larry Stewart worked as a plumber from 1968-2007 when he was diagnosed with mesothelioma. He and his wife filed a personal injury lawsuit (Stewart I). At trial, Union Carbide received a directed verdict on the fraud claim, but the jury found it liable for negligence and strict products liability. The jury found Union Carbide 85 percent at fault and Hamilton Materials 15 percent at fault. After setoffs, the court entered judgment in favor of the plaintiffs for various amounts and Union Carbide appealed (which was affirmed). While the appeal was pending, Larry Stewart settled his claim against the Gypsum Trust and Manville Trust. As part of the settlements Larry Stewart released future claims by his heirs. Janet Stewart received money from these settlements.
After trial, Larry Stewart died, and one year later Janet Stewart and her two adult stepchildren filed this wrongful death lawsuit (Stewart II). Union Carbide settled with the stepchildren, but moved for summary judgment on the claims with Janet Stewart.
The court reviewed California law in finding that her loss of consortium claims were barred. In a split decision, the California Supreme Court previously concluded in a lung cancer smoke case that a widow’s wrongful death action involved the same primary right and breach as her former loss of consortium action. Both Stewart cases involved the same allegations of permanent deprivation of Larry Stewart’s consortium, and the court was bound by the Supreme Court decision. Further, the fact that Janet Stewart did not seek post-death loss of consortium damages in Stewart I did not distinguish this case. “Like the plaintiff in Boeken, in Stewart appellant alleged permanent deprivation of her husband’s consortium and could have sought all her loss of consortium damages in that case. Res judicata precludes her from splitting her cause of action.” Further attempts to distinguish Boeken likewise fail.
The plaintiff also challenged the settlement credit the trial court applied against her award for economic damages. She argued that the Gypsum and Manville settlements could not be applied to her award in this case because she did not sign the released. Similar arguments were rejected in prior case law. Further, it was undisputed that her stipulated damage award in this case was solely for economic damages, and California civil procedure mandated that Union Carbide was entitled to a credit against her entire damage award.