Categories
· Lawsuits
· Court Documents
USA, by State
· California
Lawsuits
· Boeken
Organizations
· MO
|
Jump to full article: California Courts (Judicial Council of California), 2008-02-12
Intro: In affirming the trial court’s judgment of dismissal, we hold that the final
adjudication on the merits of plaintiff’s loss-of-consortium claim against defendant
results in a res judicata bar of plaintiff’s subsequent wrongful death action for loss-ofconsortium
damages against defendant arising from the same injury to plaintiff’s spouse
that was the basis of the adjudicated loss-of-consortium claim.
. . .
Finally, plaintiff argues that applying res judicata to bar her wrongful death action
would deprive her of due process because, when she dismissed her loss-of-consortium
claim in 2001, she had no “tenable basis” to believe she could assert a claim for loss-ofconsortium
damages caused by Mr. Boeken’s death. Civil Code section 3283, however,
has authorized tort plaintiffs to recover prospective damages since 1872. Furthermore,
plaintiff, in her loss-of-consortium complaint, alleged that Mr. Boeken would be unable
“to perform [his] work, services, and duties in the future,” and that she had been
“permanently deprived” of his consortium. She thus not only had a “tenable basis” to
assert a claim for loss-of-consortium damages for the remainder of Mr. Boeken’s
expected lifespan, but she in fact asserted such a claim.
20
DISPOSITION
The judgment is affirmed. Philip Morris is to recover its costs on appeal.
Turner, P.J.
I respectfully dissent. In my view, the demurrer should not have been sustained
because the prior dismissal of the common law consortium loss claim of plaintiff,
Judy Boeken, does not bar her from recovering any damages sustained after her
husband’s death. No doubt, there are res judicata consequences of plaintiff’s
dismissal of her prior common law consortium loss complaint. But I disagree with
the assertion of defendant, Phillip Morris USA, Inc., that the dismissal of the prior
common law consortium loss claim bars any recovery on plaintiff’s statutory
wrongful death cause of action. . . .
No doubt, plaintiff may be barred from pursuing any damages for pre-death
injury. Her dismissal of her common law consortium loss claim may potentially
bar any claim for pre-death losses. But as to plaintiff’s post-death claims, she may
pursue them in her statutory wrongful death cause of action.
Jump to full article » |