Judge: Laura A. Seigle, Case: 21STCV42171, Date: 2023-09-13 Tentative Ruling

Case Number: 21STCV42171    Hearing Date: September 13, 2023    Dept: 15

[TENTATIVE] ORDER RE DEMURRER

            Defendant Metalclad Insulation LLC filed a demurrer to the second amended complaint, arguing it is barred by the workers compensation exclusivity doctrine because Plaintiffs Craig Hagan and Klaus Marcher allege Nikolaus Marcher was exposed to asbestos while employed by Defendant.

            That is partially correct.  But the second amended complaint also alleges “Mr. Marcher was exposed to asbestos both through his work for contractor defendants, such as Metalclad, and was also exposed to asbestos from locations contractor defendants, including Metalclad, were responsible for while not working for them.”  (Second Amended Complaint, ¶ 15.)  It alleges Nikolaus Marcher was exposed to Defendant’s products when he was employed at Owens Corning, Shell Oil, and Bechtel, and for himself, as well as while employed at Metalclad.  (Second Amended Complaint, ¶ 16, Ex. A.) 

The Workers’ Compensation Act does not apply to the periods that Marcher was working at Owens Corning, Shell Oil, and Bechtel, and for himself.  The holding in Melendrez v. Ameron International Corporation (2015) 240 Cal.App.4th 632 does not require the contrary conclusion.  In that case, the plaintiff was exposed to the asbestos-containing products at work over 24 years.  During those years, he took the products home from work for his personal use, thereby exposing himself at home as well.  (Id. at p. 635.)  Here, Marcher was exposed from the 1970s through the 1980s.  (Second Amended Complaint, ¶ 16, Ex. A.)  Based on the allegations, it appears that his work at Owens Corning, Shell Oil, and Bechtel, and for himself was separate from his work while employed at Metalclad and did not “occur in the course of,” did not “arise out of,” was not “linked in some causal fashion to,” and was not “collateral to or derivative of” his employment at Metalclad.  (Melendrez, supra, 240 Cal.App.4th at pp. 639, 642.) 

The demurrer is overruled on that ground. 

            Defendant also demurrers to the third cause of action for loss of consortium brought by Nikolaus Marcher’s son, Klaus Marcher.  Defendant argues children have no loss of consortium cause of action, citing Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441.  Plaintiffs’ opposition fails to address this argument. 

While Borer does state that “a child cannot maintain a cause of action for loss of parental consortium,” that case did not involve a wrongful death cause of action, and the court distinguished wrongful death causes of action.  (Borer, supra, 19 Cal.3d at p. 444.)  Civil Code section 377.60 creates a cause of action in favor of heirs for wrongful death with damages “ ‘measured by the financial benefits the heirs were receiving at the time of death, those reasonably to be expected in the future, and the monetary equivalent of loss of comfort, society, and protection.’  [Citation.]”  (Boeken v. Philip Morris USA Inc. (2013) 217 Cal.App.4th 992, 997.)  Because this is a wrongful death case, Klaus Marcher does have a cause of action under section 377.60.

The demurrer is OVERRULED.

            The moving party is to give notice.