Owens-Illinois, Inc. v. Cook

⁴⁷¹ BELL, C.J. Having granted the petition, filed by the petitioner, Owens-Illinois, and the cross-petition, see Owens-Illinois v. Cook, 374 Md. 82 , 821 A.2d 370 (2003), filed by the respondents, John A. and Shirley Gianotti, for writ of certiorari, 1 this Court must decide four issues: whether, under the parties’ 1994 settlement agreement, pursuant to which the respondents signed a release reserving their claims for certain “future disease[s],” in an asbestos-related personal injury case, Maryland’s statutory cap on non-economic damages, Md.Code (1974, 2002 Rep. Vol.) § 11-108 of the Courts and Judicial Proceedings Article (hereinafter “Statutory Cap”), 2 applied to bar the respondents’ ⁴⁷² claim for mesothelioma and loss of consortium; when, in a latent disease case, a loss of consortium case arises for purposes of the “cap” statute; whether, in light of our decisions in John Crane, Inc. v. Scribner, 369 Md. 369, 372 , 800 A.2d 727, 728 (2002) and Georgia-Pacific Corp. v. Pransky, 369 Md. 360, 363 , 800 A.2d 722, 723 (2002), the respondents’ loss of consortium claim, based on an injury incurred before they married, is barred as a matter of law and whether the judgment for the respondents was properly reduced pursuant to Maryland Code (1997, 2001 Rep. Vol.) § 3-1401 et. seq. of the Courts and Judicial Proceedings Article, the Uniform Contribution Among Tortfeasors Act (“UCATA”), based on a default judgment entered against a third party defendant, (Babcock & Wilcox), in Porter Hayden Co. v. Bullinger, 350 Md. 452 , 713 A.2d 962 (1998), an asbestos case, who is also a third party defendant in the case sub judice and where there was, in the case sub ⁴⁷³ judice, no finding that the defaulting party was a joint tortfea- ' sor. We shall affirm.

I. The facts pertinent to the resolution of this appeal, stated in the light most favorable to the respondents, the prevailing parties on liability at trial, see Board of County Com’rs of Garrett County, Md. v. Bell Atlantic-Maryland, Inc., 346 Md. 160, 182 , 695 A.2d 171, 182 (1997); Burroughs Intern. Co. v. Datronics Engineers, Inc., 254 Md. 327, 337-338 , 255 A.2d 341, 346 (1969); Goodwin v. Lumbermens Mutual Cas. Co., 199 Md. 121, 129-30 , 85 A.2d 759, 762-63 (1952), can be summarized quickly and simply. John Gianotti was exposed to asbestos between 1956 and 1974, while employed as a laborer and ceiling installer.

In August 1985, he was diagnosed with “asbestos lung disease.” Ten months after that diagnosis, and just short of a month before § 11-108 became effective, see Acts 1986, ch. 639, effective July 1, 1986, Mr. Gianotti and the respondent Shirley Gianotti were married. The following year, the respondents filed suit against various manufacturers and suppliers of asbestos containing products, including the petitioner, alleging both that Mr. Gianotti suffered “asbestos lung disease” as a result of exposure to their products and, as a result of that disease, loss of consortium. The petitioner and the respondents entered into a settlement agreement with respect to that suit in 1994. 3 As required by the settlement agreement, the respondents executed a “Release and Settlement of Claim,” in which they released the petitioner from the claim that John Gianotti “[h]as contracted the disease known as asbestosis.” The release also provided: “It is the specific intent of this release to release and discharge [Owens-Illinois] for any and all further claims relating to the matters for which recovery was sought in the ⁴⁷⁴ Circuit Court for Baltimore County, Case Number 87CG3549/45/19, including any and all claims made in the Complaint, Answers to Interrogatories, depositions, reports of medical experts prepared at the request of me/us and/or my/our attorneys, and opinions rendered concerning the condition of JOHN GIANOTTI by experts retained by me/us and/or my/our attorneys, regardless of the future progression or course of the medical conditions alleged to exist therein, including death resulting from that/those conditions (all such claims are hereinafter referred to as the ‘existing lawsuit’).” The preceding paragraph was further clarified by inclusion of an exception which expressly limited its effect: “[i]t is not the intent of this release, and I/we specifically do not release claims for cancer, mesothelioma and or other malignancies or death resulting from cancer, mesothelioma or other malignancies not alleged or described in the existing lawsuit allegedly resulting or to result from JOHN GIONOTTI’S exposure to asbestos (hereinafter described as ‘future disease’).” The respondents also acknowledged in the release that: “[Owens-Illinois], by making payment herein and agreeing to the form and content of this Release, [is] likewise not admitting or conceding any liability for any future disease that may occur, nor [is it] estopped in the future on any grounds to contest [its] liability therefor[ ], and neither settlement, payment nor existence of this release may be used against [Owens-Illinois] in any way to attempt to prove liability or fault for any future disease.” In March 1999, more than four years after executing the release, Mr. Gianotti was diagnosed with mesothelioma. 4 The ⁴⁷⁵ respondents thereafter sought recovery for this injury and the accompanying loss of consortium from the asbestos manufacturers, suppliers and installers they previously had sued for asbestos lung disease. They did not file a new lawsuit, however; rather, the mesothelioma claim proceeded under the short form complaint filed in 1987, which incorporated, by reference, allegations in a master complaint for unspecified “asbestos-related diseases,” filed by their attorney.

Before trial, the petitioner challenged the viability of John Gianotti’s mesothelioma claim and, therefore, the respondents’ loss of consortium claim through a counterclaim for declaratory judgment. In that pleading, it claimed that, under the release executed by the respondents, the mesothelioma was either a “future disease” and, therefore, subject to the cap on noneconomic damages, or an existing “asbestos-related disease” and, thus, released by the express terms of the parties’ settlement agreement. The trial court disagreed and, on motion of the respondents, dismissed the counterclaim. It reasoned: “I think [‘future disease’] is a term of art. [The release document] says hereinafter referred to — described, hereinafter described as future disease, and future disease is in quotation marks. “So it’s a term that’s being used to talk about what will happen if there is a claim later for some form of cancer. “The Fact that [the release document says] future disease I don’t think this is a future disease without the quotation marks. ⁴⁷⁶ “It means at the time that this release was entered into, he hadn’t been diagnosed with such a disease, but it doesn’t mean that he didn’t have it. “The question of whether this is a true, future disease, that is without the quotation marks, is really one that’s going to depend on the proof that’s given at trial. “It may well be a nonquotation mark future disease and the cap will apply.

That’s going to be up to a jury to decide based on the evidence that’s presented at the time. “The Court will not apply and I don’t think it is right to apply the cap based on the release and based on the information that I have now. “The defense is asking the Court to apply the cap based solely on the fact that the release refers to something as a future disease. I will not do that.”[ 5 ] The court thus adopted the respondents’ argument that in using the term, “future disease,” the parties were adopting a term of art, or convenient way to say, “undiagnosed disease.” After trial, the case was presented to the jury, which returned, inter alia, verdicts in favor of the respondents against the petitioner, for the personal injury to Mr. Gianotti and for the joint loss of consortium claim. Following post trial proceedings, including the denial of the petitioner’s motion for judgment notwithstanding the verdict, judgment was entered. The jury’s verdicts for the respondents were reduced by pro rata releases of adjudicated joint tortfeasors, as well as by a default judgment, entered in favor of the petitioner, against Babcock & Wilcox, an asbestos manufacturer, who also was a third party defendant in the case. ⁴⁷⁷ Owens-Illinois noted an appeal to the Court of Special Appeals presenting, in addition to the issues raised in this Court, 6 issues relating to the sufficiency of the respondents’ proof as to when their claims arose.

That court rejected all of the petitioner’s arguments. Owens-Illinois v. Gianotti, 148 Md.App. 457 , 813 A.2d 280 (2002). The latter issues, the intermediate appellate court concluded, were resolved by Scribner, supra, 7 decided by this Court after oral argument in that court. Thus, it held: “Although the jury in the case at hand decided that Mr. Gianotti was injured prior to July 1, 1986, it was unneces ⁴⁷⁸ sary for the jury to even consider that issue because it was undisputed that the last date of asbestos exposure of Mr. Gianotti was before July 1, 1986.

Applying the dictates of the Scribner case to the facts of this case, the plaintiffs met their burden of proof as to the cap issue. No evidentiary ruling concerning expert testimony as it related to the issue of when the worker’s injury arose could possibly have prejudiced Owens-Illinois because, under Scribner , the cap statute was inapplicable as a matter of law.” Gianotti, 148 Md.App. at 467-68 , 813 A.2d at 286 . Like the trial court, the Court of Special Appeals interpreted the release signed by the respondents as reserving Mr. Gianotti’s claim for asbestos related cancers. Unpersuaded by the petitioner’s emphasizing of the phrase, “future disease,” the intermediate appellate court opined, agreeing with the trial court and the respondents, that: “It is clear that, when the parties to the Release used the parenthetical phrase ‘hereinafter described as “future disease,” ’ they used it simply as shorthand to denote what claims that were not being released.

Three categories of claims were not being released, viz, claims for ‘(1) cancer, (2) mesothelioma, (3) other malignancies or death resulting from cancer, mesothelioma, or other malignancies not alleged or described in the existing law suit ... resulting or to result from John Gianotti’s exposure to asbestos.’ [Respondents’] present claims come within the second category.” 148 Md.App. at 480 , 813 A.2d at 293 . 8 The Court of Special Appeals also rejected the petitioner’s argument with respect to when, in a latent disease case, a loss ⁴⁷⁹ of consortium claim arises and the viability of such a claim when, as in the case of the respondents, the marriage is subsequent to the occurrence of the personal injury from which the loss of consortium derives. Agreeing with the respondents that the applicable rule looks to when the cause of action accrues — not when it arises — and that “a cause of action did not ‘accrue,’ at least for statute of limitations purposes, until the injury was discovered, or reasonably should have been discovered,” the intermediate appellate court observed, “Here, Mr. Gianotti’s injury did not accrue until he found out he had cancer, which was long after the date of his marriage.” Gianotti, 148 Md.App. at 489 , 813 A.2d at 298-99 . After reviewing out-of-State authority and the views of legal commentators, id. at 489-493 , 813 A.2d at 299-301 , particularly Stager v. Schneider, 494 A.2d 1307, 1315-16 (D.C.1985), and Paul David Fasscher, Note: To Have and Not Hold; Applying the Discovery Rule to Loss of Consortium Claim Stemming from Pre-marital, Latent Injuries, 53 Vand. L.Rev. 685 (2000), addressing “whether the general rule (that no loss of consortium claim exists for an ante-nuptial tort) applies in cases where, at the time of the marriage, the injury to the spouse is latent and therefore has not been, and could not have been, reasonably discovered prior to the marriage,” Gianotti, supra, 148 Md.App. at 485 , 813 A.2d at 296 , it held: ⁴⁸⁰ “for purposes of applying the common law rule enunciated in [Gillespie-Linton v.] Miles, supra [ 58 Md.App. 484, 495 , 473 A.2d 947 (1984) ], a loss of consortium claim is barred only if, at the time the parties marry, the couple knew or reasonably should have known of the injury that formed the basis for their joint claim.

We, therefore, conclude that the trial judge did not err in allowing the jury to consider the Gianottis’ joint loss of consortium claim — inasmuch as it is undisputed that when the Gianottis married in 1986, his mesothelioma was neither discovered nor could it have reasonably been discoverable.” Id. at 493 , 813 A.2d at 301 . The respondents cross-appealed, challenging the decision to reduce their judgment, pursuant to the UCATA, based on a default judgment entered against Babcock & Wilcox in a prior proceeding and despite there having been no adjudication, in this case, of Babcock & Wilcox’s joint tortfeasor status and the respondents’ denial that they had reached a settlement agreement with Babcock & Wilcox. In rejecting the respondents’ arguments, the Court of Special Appeals noted that in the prior case, Bullinger, supra, 350 Md. at 471 , 713 A.2d at 962 , the respondents settled their claim with Babcock & Wilcox and emphasized that that case and this one are not, as the respondents’ argument requires them to be, completely separate. The intermediate appellate court was unpersuaded by the respondents’ alternative argument that this case is distinguishable from Bullinger , in that the respondents, in that case, unlike in this one, did settle with Babcock & Wilcox.

In deciding that the respondents and Babcock & Wilcox, in fact, had settled, the trial court noted the course of dealings between the respondents’ counsel and Babcock & Wilcox, that there were on-going discussions between Babcock & Wilcox and the respondents’ counsel after the trial in this case commenced and those discussions related to efforts to resolve problems of Babcock & Wilcox’s non-payment to various plaintiffs who had settled with it and for whom it had signed releases, that three days after the respondents’ counsel sup ⁴⁸¹ plied Babcock & Wilcox with a chart of clients and the recommended settlement amounts, counsel for Babcock & Wilcox advised the court, in the presence of the respondents’ counsel and counsel for the petitioner, “[w]e have resolved our differences,” and that the respondents’ counsel did not dispute that advise. 9 The intermediate appellate court concluded that “[t]he trial judge was .. . not clearly erroneous when he found that there had been a settlement between B & W and the Gianottis.” 148 Md.App. at 501-02 , 813 A.2d at 306 .

II

A. Since July 1, 1986, it has been legislatively mandated in Maryland that damages for noneconomic loss be limited. See Acts 1986, ch. 639. Codified at § 11-108 of the Courts and Judicial Proceedings Article, without accounting for subsequent amendments affecting the amount of noneconomic damages presently permitted, the statute provides: “(b)(1) In any action for damages for personal injury in which the cause of action arises on or after July 1, 1986, an award for noneconomic damages may not exceed $350,000.” Although the application of the statute is straightforward and simple in the routine personal injury case, that is not the ⁴⁸² case when the personal injury is the result of a disease with a lengthy latency period. In such cases, the answer to the question of when the cause of action “arose” “is largely dependent on the test or standard to be applied in making that determination.” Scribner, 369 Md. at 382-83 , 800 A.2d at 735 .

That was what this Court, in Scribner , undertook to do, “set the proper standard for determining when, for purposes of ... the cap statute a cause of action for cancer or other disease based on exposure to asbestos arises.” Id. at 372 , 800 A.2d at 729. In doing so, we identified: “Three possible approaches for determining when a cause of action arises for purposes of § 11—108(b)(1): (1) the manifestation approach, which is the latest in time and looks to when the disease sued upon first becomes either symptomatic or diagnosed, (2) the exposure approach, which is the earliest in time and looks to when the plaintiff first inhaled asbestos fibers that caused cellular changes leading to the disease, and (3) the Grimshaw[ 10 ] approach, which, as to disease, looks to when the disease itself first arose in the body.” Id. at 390, 800 A.2d at 739. Although recognizing its assets, “simplicity and certainty [and that] it is much easier to establish when a disease was diagnosed or became symptomatic than to establish when cellular changes have progressed into a disease that is not, at the time, detectable,” id., we rejected the manifestation approach because “it flatly ignores the distinction made by the Legislature between when an action arises and when it accrues, and is therefore wholly inconsistent with the statute.” Id. We further pointed out: “It is virtually conceded, even by asbestos-action defendants, that diseases such as cancer and asbestosis exist in ⁴⁸³ the body before they become symptomatic and before they are capable of clinical diagnosis.

The manifestation approach would nonetheless apply the cap even when it is clear that the disease existed, and thus the cause of action based on that disease arose, prior to July 1, 1986.” Id. 11 The Court also rejected the Grimshaw approach, opining that, despite “some conceptual plausibility,” as initially and most recently articulated by the Court of Special Appeals, “it suffers from the fact that it is impossible to apply in any uniform and rational way and necessarily engenders competing expert testimony as to the timing of an event that no one can precisely define.” Id. at 391, 800 A.2d at 739. We ⁴⁸⁴ concluded that “[i]t is not a workable approach.” Id. at 391, 800 A.2d at 740. Although not problem-free, we selected the exposure approach as “the one that presents the fewest significant problems and is most consistent with the statutory language.” Id. at 390, 800 A.2d at 739. We further explained: “The exposure approach is consistent with our holdings in Mitchell and Murphy v. Edmonds, 325 Md. 342 , 601 A.2d 102 (1992), and, if carefully delineated, is both theoretically supportable and workable.

It rests, initially, on the premise that there is, in fact, an injury. If there is no injury, there is no cause of action. Thus, it need not attempt to address the problem of entirely inconsequential exposures or exposures that produce only pleural plaques or other conditions that, absent more, do not constitute injuries, which seems to have plagued the Court of Special Appeals, for, if that is all that the plaintiff has, no cause of action exists and § 11—108(b)(1) never comes into play. We start, then, with the requisite premise that the plaintiff has established to the satisfaction of the trier of fact that he or she has an injury that was proximately caused by exposure to the defendant’s asbestos-containing product.

Whether the injury sued upon is cancer or asbestosis, the plaintiff must, at the outset, establish that he or she has that disease and that it was caused, in whole or substantial part, by exposure to the defendant’s asbestos-containing product. The question, for purposes of § 11-108(b)(1), is when that injury came into existence.” Id. at 391-92, 800 A.2d at 740. We held, inter alia: “in actions for personal injury founded on exposure to asbestos, the court, as an initial matter, may look, for purposes of § 11-108(b)(1), to the plaintiffs last exposure to the defendant’s asbestos-containing product. If that last exposure undisputedly was before July 1, 1986, § 11-108(b)(1) does not apply, as a matter of law.” Fully cognizant of this holding and certainly appreciative of its effect in this case, to render the cap inapplicable to Mr. ⁴⁸⁵ Gianotti’s personal injury, 12 the petitioner urges a different result for the loss of consortium claim and argues that such a result is required by the nature of the action and by our cases.

This is so, it says, because, such a claim being one that “arises from the loss of society, affection, assistance, and conjugal fellowship suffered by the marital unit as a result of the physical injury to one spouse through the tortious conduct of a third party,” Oaks v. Connors, 339 Md. 24, 33-34 , 660 A.2d 423, 428 (1995), “[a] loss of consortium claim does not and cannot ‘arise’ until the marriage is negatively impacted by one spouse’s underlying personal injury.” It relies on Phipps v. General Motors Corp., 278 Md. 337, 354 , 363 A.2d 955, 964 (1976); Travelers Indem. Co. v. Cornelsen, 272 Md. 48, 51 , 321 A.2d 149, 150 (1974); Exxon Corp. v. Schoene, 67 Md.App. 412, 423 , 508 A.2d 142, 148 (1986). In further support of its position that a different trigger applies to a loss of consortium claim, the petitioner submits that the causes of action are separate, citing P. Sandler and J. Archibald, Pleading Causes of Action (2nd ed.1998 and Supp.2004) § 3.48 at 319-20; G. Shadoan, Maryland Tort Damages (4th ed.1994) at 21-22; R. Bell, Maryland Civil Jury Instructions and Commentary § 18.11 at 415 (Michie 1993 and Supp.1996). The petitioner maintains this position, notwithstanding the inextricable intertwining of the loss of consortium claim and the personal injury claim underlying it and the fact that a single cap applies to both.

Although aware that Grimshaw considered when a loss of consortium claim arose in the context of the cap statute and a ⁴⁸⁶ latent disease, holding that it arose at the same time as the predicate personal injury claim, the petitioner maintains that it is neither persuasive nor dispositive: “[bjecause this Court in Scribner overruled Grimshaw on the issue of when a personal injury claim arises, it is not clear whether Grimshaw’s holding as to when the underlying personal injury arises — is still good law.” (Petitioner’s Brief at 23) Moreover, the petitioner points out that Grimshaw cited Oaks for the proposition that “loss of consortium is not a separate action” from the predicate personal injury, even though this Court, in Oaks , did not disturb the Court of Special Appeals’ statement in its opinion, see Connors v. Oaks, 100 Md.App. 525, 549 , 642 A.2d 245, 257 (1994), that: “[a]n action for personal injuries and a claim for loss of consortium are separate causes of action____The plaintiffs in each action are different-the physically injured spouse has an individual claim in the action for personal injuries, and the husband and wife jointly have a claim for loss of consortium.” It urges, therefore, at most, a reconsideration of Grimshaw. To no one’s surprise, the respondents do not agree. They, like the Court of Special Appeals, in Grimshaw, 115 Md.App. at 166, 692 A.2d at 21, read Oak’s holding that, “a loss of consortium claim is derivative of the injured spouse’s claim for personal injury, and therefore, a single cap for non-economic damages applies to the whole action,” and admonition that, to hold otherwise “would circumvent the Legislature’s intent to limit noneconomic damages and avoid double recoveries Oaks, supra, 339 Md. at 38 , 660 A.2d at 430 , as indicating that “Moss of consortium is not a separate action.” Noting that the personal injury, from which the loss of consortium claim derives, and the harm Mr. Gianotti sustained, with which the loss of consortium is inextricably intertwined, are the result of exposures to asbestos occurring prior to the effective date of the cap statute and that the jury found that injury to pre-exist that date, a finding Scribner requires as a matter of law, in any event, although it only became discoverable after that date. The respondents aver, “[i]t is illogical to impose a cap ⁴⁸⁷ on non-economic damages in a loss of consortium claim, when the personal injury cause of action is not subject to the statute.” (Respondent’s Brief at 18).

B. In Deems v. Western Maryland Railway Company, 247 Md. 95, 115 , 231 A.2d 514, 525 (1967), this Court held that, “when either husband or wife claims loss of consortium by reason of physical injuries sustained by the other as the result of the alleged negligence of the defendant, that claim can only be asserted in a joint action for injury to the marital relationship. That action is to be tried at the same time as the individual action of the physically injured spouse.” Thus, we extended to a wife a right theretofore only accorded to a husband, thereby creating a new substantive right and delineating a different procedural approach in such actions; however, that action “gave rise to no new cause of action” Travelers Indem. Co. v. Cornelsen, 272 Md. 48, 50 , 321 A.2d 149, 150 (1974). We have defined loss of consortium to mean the “loss of society, affection, assistance and conjugal fellowship.

It includes the loss or impairment of sexual relations.” Deems, 247 Md. at 100 , 231 A.2d at 517 . See Oaks, 339 Md. at 33-34 , 660 A.2d at 428 (“A claim for loss of consortium arises from the loss of society, affection, assistance, and conjugal fellowship suffered by the marital unit as a result of the physical injury to one spouse through the tortious conduct of a third party”). We recognized in Deems that “there is, in a continuing marital relationship, an inseparable mutuality of ties and obligations, of pleasures, affection and companionship, which makes the relationship a factual entity.” 247 Md. at 108 , 231 A.2d at 521 . Such interests are so interdependent that injury to them is essentially incapable of separate evaluation as to the husband and wife.

Id. at 109 , 231 A.2d at 522 . We also observed, with respect to the effect of an injury to one spouse: “That both spouses suffer when the marriage relationship is adversely affected by physical injury to either is a fact ⁴⁸⁸ evidenced, if not by logic, by human experience since the institution of marriage became a basic part of our mores. If the husband is the one injured, it is not only the wife who is affected by reason of any resultant change of the husband’s personality or ability to engage in all the intangible associations which marriage brings; he too suffers the effect of the change, if only in reaction to his wife’s unhappiness. Today, at least, it is unquestioned that the desire to have children and the pleasures of sexual intercourse are mutually shared.

If the husband’s potency is lost or impaired, it is both the man and woman who are affected. If the physical injury is to the wife, she sustains the same kind of loss in the marital relation as he does in the converse situation.” Id. at 108-109 , 231 A.2d at 522 . There is also, we said, an interdependence between the injury to the marital unit and the action of the defendant that causes that injury: “whether'it be the husband or wife who is injured, the negligence of the defendant directly affects the entity through its member who sustains the physical injury. Once the rule is established, the possible loss to the absent member of the entity is a direct and expectable result of the negligence.

See Mahnke v. Moore, 197 Md. 61, 69 , 77 A.2d [923], 927 (1951) and Restatement, Torts § 905, Comments e and f.” Id. at 114, 231 A.2d at 525 . Oaks is to like effect. There, we opined, “We believe that damages to a marital relationship are frequently inextricably intertwined with the harm sustained by the injured spouse,” explaining: “the pain, suffering, and depression that are personal to the injured victim will inevitably affect the relationship with that person’s spouse. Whether these injuries are claimed individually, by the marital unit, or by both, however, they constitute noneconomic damages flowing from a single source, the tortious injury to the victim spouse.” 339 Md. at 37 , 660 A.2d at 430 .

Thus, “[a] loss of consortium claim is derivative of the injured spouse’s claim for personal injury.” Id. at 38 , 660 A.2d at 430 ; Okwa v. Harper, 360 Md. 161, 176 , 757 A.2d 118, 126 (2000); Klein v. Sears, Roebuck ⁴⁸⁹ and, Co., 92 Md.App. 477, 493 , 608 A.2d 1276, 1284 , cert. denied, 328 Md. 447 , 614 A.2d 973 (1992) (“When a physical injury results to a married person as a result of someone else’s tortious conduct, two injuries may arise: (1) the physical injury to the spouse who was directly injured by the tortious conduct and (2) the derivative loss of society, affection, assistance, and conjugal fellowship to his or her spouse.”).

III

To be sure, the general rule, which the Court of Special Appeals has endorsed, Gillespie-Linton v. Miles, 58 Md.App. 484, 496 , 473 A.2d 947, 953 (1984), is that a claim for loss of consortium does not lie for an ante-nuptial tort, Gianotti, 148 Md.App. at 485 , 813 A.2d at 296 . See Marri v. Stamford St. R. Co., 84 Conn. 9 , 78 A. 582, 582-83 (1911); Sawyer v. Bailey, 413 A.2d 165, 166-167 (Me.1980) Tribble v. Gregory, 288 So.2d 13, 16 (Miss.1974); Consorti v. Owens-Corning Fiberglas Corp., 86 N.Y.2d 449 , 634 N.Y.S.2d 18 , 657 N.E.2d 1301, 1301 (1995); Anderson v. Eli Lilly & Co., 79 N.Y.2d 797 , 580 N.Y.S.2d 168 , 588 N.E.2d 66, 67 (1991) (“It is by now well settled that a cause of action for loss of consortium does not lie if the alleged tortious conduct and resultant injuries occurred prior to the marriage”); Domany v. Otis Elevator Company, 13 Ohio Misc. 161 , 369 F.2d 604 , 609 (6th Cir.1966), cert. denied, 387 U.S. 942 , 87 S.Ct. 2073 , 18 L.Ed.2d 1327 (1967) (absent the lawful relationship of husband and wife, there can be no recovery for loss of consortium); Rockstroh v. A.H. Robins Co., 602 F.Supp. 1259, 1269 (D.Md.1985) (“It appears to be universally held that, in order to maintain a valid cause of action for loss of consortium, the parties must be married at the time of injury.”); Wagner v. International Harvester Company, 455 F.Supp. 168, 169 (D.Minn.1978). One rationale offered for the rule is to prevent a person from marrying a cause of action, Wagner v. International Harvester Company, 455 F.Supp. at 169, citing and quoting with approval, Sartori v. Gradison Auto Bus Co., 42 Pa. D. & C.2d 781, 785 (Pa.

Comm. Pleas 1967); Kociemba v. G.D. Searle & Co., 683 F.Supp. 1577, 1578 (D.Minn.1988) (“The ⁴⁹⁰ purpose of the general rule is to prevent an individual from making a conscious decision to acquire a cause of action by marrying an injured party”). Closely related, another recognizes that one spouse takes the other in his or her then existing state of health and assumes the risk of any deprivation resulting from prior disability. Furby v. Raymark Industries, Inc., 154 Mich.App. 339 , 397 N.W.2d 303, 305 (1986); Rademacher v. Torbensen, 257 A.D. 91 , 13 N.Y.S.2d 124 (1939).

As the court in Chiesa v. Rowe, 486 F.Supp. 236 (W.D.Mich.1980), applying Michigan substantive law, put it: “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.” A third rationale is that, as a matter of social policy, tort liability should be limited. Stager v. Schneider, 494 A.2d 1307, 1315 (D.C.App.1985), citing Tong v. Jocson, 76 Cal.App.3d 603, 605 , 142 Cal.Rptr. 726, 727 (1977). When the injury and the harm coalesce and manifest at the same time, the cause of action both arises and accrues at approximately the same time, the issue is uncomplicated, even simple, and straightforward; knowledge of the injury will be apparent.

That is not the case, however, when the injury is latent and, thus, has not been, and reasonably could not have been, discovered prior to the marriage. The courts that have considered the loss of consortium issue in this latter context have reached different results. Some courts hold that there can be no cause of action for loss of consortium “where, prior to the marriage, the plaintiff spouse was exposed to, and ingested, a substance that remained in his body and eventually caused illness, but the illness did not occur until after the marriage.” Consorti v. Owens-Coming Fiberglas, 86 N.Y.2d 449 , 634 N.Y.S.2d 18 , 657 N.E.2d 1301, 1303 (N.Y.1995). See Zwicker v. Altamont ⁴⁹¹ Emergency Room Physicians Medical Group, 98 Cal.App.4th 26, 32-34 , 118 Cal.Rptr.2d 912, 916-918 (Cal.App.2002); Fullerton v. Hospital Corp. of America, 660 So.2d 389, 390 (Fla.App.1995); Monroe v. Trinity Hospital-Advocate, 345 Ill.

App.3d 896 , 281 Ill.Dec. 381 , 803 N.E.2d 1002, 1005 (2003); Doe v. Cherwitz, 518 N.W.2d 362, 364 (Iowa 1994); Anderson v. Eli Lilly & Co., 79 N.Y.2d 797 , 580 N.Y.S.2d 168 , 588 N.E.2d 66, 68 (1991). These cases proceed on the basis that the marriage requirement for a loss of consortium claim is absolute, that if the marriage