FEUER, J.
Plaintiff R.S.
PacifiCare filed the first lawsuit in 2008 (R.S.-I) in a Missouri court seeking to rescind the insurance policies on the basis of alleged fraud. R.S. and R.C. filed a counterclaim for breach of contract, but dismissed it without prejudice before trial. The court issued a judgment in favor of R.S. and R.C. and ordered PacifiCare to pay medical benefits to R.S. and R.C.; the order was affirmed on appeal.
In 2009 R.S. and R.C. brought a second action in Los Angeles County Superior Court for breach of contract, breach of the covenant of good faith and fair dealing and unfair business practices. The trial court sustained PacifiCare's demurrer, finding that R.S.'s and R.C.'s claims were barred as compulsory counterclaims that were required under Missouri law to be asserted in R.S.-I. This district affirmed. (R.S. v. PacifiCare Life & Health Ins. Co. (2011) 194 Cal.App.4th 192, 195 (R.S.-II).)
After R.C.'s death in 2011, R.S. filed this action alleging claims for the wrongful death of R.C. (Code Civ. Proc., § 377.60) and for damages as R.C.'s survivor (id., § 377.30). The trial court sustained PacifiCare's demurrer without leave to amend, finding R.S.'s claims were barred by res judicata. We conclude the trial court was correct as to R.S.'s survivor claim. However, we find that R.S.'s wrongful death claim asserts a different "primary right" from the rights asserted in R.S.-I and R.S.-II based on alleged loss of consortium following R.C.'s death, and the trial court erred in sustaining the demurrer on that basis. We therefore reverse the judgment of dismissal.
R.S. and R.C. were registered domestic partners in California. They were dual residents of Los Angeles County, California and Jackson County, Missouri. In 2004 R.C. obtained medical insurance under a policy with PacifiCare, which provided coverage for treatment and medications in connection with his HIV and AIDS diagnosis disclosed to PacifiCare. R.S. also obtained a policy with PacifiCare and made claims for treatment for his infection with HIV.
In September 2007 PacifiCare stopped paying R.C.'s claims for medical treatment and medications. However, PacifiCare continued to accept payments for policy premiums. From September 2007 through June 2008, PacifiCare repeatedly assured R.C. that his medical expenses would be reimbursed.
In June 2008 R.C. was forced to stop taking his medications and medical treatment because he was unable to pay for them. At that time, R.C.'s health was stable, and he was doing well on his prescribed regimen of a drug cocktail and IVIG therapy. When PacifiCare stopped paying for his medications and medical treatment, R.C.'s health declined rapidly, resulting in his death on January 10, 2011.
On June 12, 2008 PacifiCare and Golden Rule Insurance Company (Golden Rule) filed a declaratory relief action against R.S. and R.C. in a Missouri court (R.S.-I), seeking to rescind and terminate the insurance policies issued to R.S. and R.C.
R.S. and R.C. filed a counterclaim under Missouri law for breach of contract. They alleged that they were residents of Missouri, and that in 2004 they had purchased policies from PacifiCare and Golden Rule. They started paying premiums to PacifiCare and Golden Rule at that time. On or about September 1, 2007 PacifiCare and Golden Rule stopped paying medical benefits, resulting in R.S. and R.C. "incurring medical treatment expenses in the approximate amount of $339,265.00." R.S. and R.C. also alleged they had continued to pay premiums on the policies totaling approximately $40,000, which PacifiCare and Golden Rule accepted. However, the insurance companies refused to pay medical benefits under the policies. R.S. and R.C. sought to recover their unpaid medical bills and premium payments they made for which they received no benefits.
On December 19, 2008 the Missouri trial court issued a preliminary injunction requiring PacifiCare and Golden Rule to pay benefits to R.S. and R.C. for their medical conditions.
On June 3, 2009, on the eve of trial, R.S. and R.C. dismissed their counterclaim without prejudice.
On June 16, 2009 the Missouri court conducted a bench trial. On February 2, 2010 the court entered judgment in favor of R.S. and R.C., finding that they did not misrepresent material information on their insurance applications, that PacifiCare and Golden Rule were required to pay benefits under their policies, and that R.S. and R.C. were entitled to permanent injunctive relief requiring the insurance companies to pay benefits under the policies. The court ordered PacifiCare and Golden Rule to provide "ongoing medical care benefits to [R.S. and R.C.]," and that the benefits be retroactive to the effective date of the insurance policies.
PacifiCare and Golden Rule appealed. On June 19, 2012 the Missouri Court of Appeals issued its decision in Golden Rule Ins. Co. v. R.S. (Mo. Ct. App. 2012) 368 S.W.3d 327, affirming the judgment as to PacifiCare and reversing as to Golden Rule. As to PacifiCare, the appellate court found that "there was substantial evidence to support the conclusion that [R.S. and R.C.] maintained dual residencies and therefore did not misrepresent their residency in the PacifiCare application." (Id. at p. 339.) The court held "that PacifiCare was not entitled to terminate the insurance policies issued to R.S. and R.C.[] based upon alleged material misrepresentations. . . ." (Ibid.)
The day after dismissing their counterclaim in R.S.-I, on June 4, 2009, R.S. and R.C. filed suit against PacifiCare and Golden Rule in the Los Angeles Superior Court. (R.S. v. PacifiCare (Super. Ct. L.A. County, 2010, No. BC415200).) The complaint alleged causes of action for (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; and (3) unfair business practices.
In R.S.-II, R.S. and R.C. similarly alleged that they had obtained policies from PacifiCare and Golden Rule in 2004. In September 2007 PacifiCare and Golden Rule stopped paying for medical treatment and medication for R.S. and R.C., but continued accepting premiums. R.S. and R.C. alleged further that PacifiCare and Golden Rule filed a declaratory relief action in Missouri. The Missouri trial court issued a preliminary injunction requiring PacifiCare and Golden Rule to pay benefits to R.S. and R.C., but the insurance companies had not paid full benefits since September 2007.
R.S. and R.C. alleged that they "suffered significant damages as a result of [PacifiCare's and Golden Rule's] wrongful conduct including, but not limited to, economic damages, loss of policy benefits, emotional distress, pain and suffering, and damage to [R.S.'s and R.C.'s] health and well-being, in an amount to be proven at trial." In their second cause of action for breach of implied covenant of good faith and fair dealing, R.S. and R.C. also sought punitive damages.
PacifiCare and Golden Rule demurred to the complaint on multiple grounds, including that the Missouri judgment barred the complaint because R.S. and R.C. failed to assert their claims in the Missouri action as required by Missouri's compulsory counterclaim law.
On April 9, 2010 the trial court sustained the demurrer and dismissed the complaint with prejudice. On June 9, 2010 the trial court entered judgment in favor of PacifiCare and Golden Rule.
R.S. and R.C. appealed. On April 12, 2011 Division Eight of this district filed its decision in R.S.-II, affirming the trial court's judgment.
As we discuss further below, the court found that the claims brought by R.S. and R.C. in R.S.-II and the claims brought by PacifiCare and Golden Rule in R.S.-I "arose from one set of insurance policies and are `logically related' [citation]," causing them to fall within Missouri's compulsory counterclaim law. (R.S.-II, supra, 194 Cal.App.4th at p. 205.)
R.S. filed this action against PacifiCare in Los Angeles Superior Court on January 9, 2013. The first amended complaint filed on June 6, 2013 alleges one cause of action for breach of the implied covenant of good faith and fair dealing. R.S. alleges a claim that PacifiCare tortiously breached the implied covenant of good faith and fair dealing in R.C.'s insurance policy by unreasonably denying medical benefits under the policy, failing to conduct a fair investigation into alleged fraud, and unreasonably seeking to rescind the policy. R.S. alleges that as a result of PacifiCare's termination of R.C.'s medical benefits, R.C. was unable to obtain adequate medical treatment, leading to his death.
As part of his first cause of action, R.S. asserts a claim for wrongful death of R.C. as his registered domestic partner, in which he alleges "the loss of the love, support, society and companionship" of R.C. (wrongful death claim).
PacifiCare filed a demurrer on August 28, 2013 on the ground R.S.'s claims were barred by the doctrine of res judicata based on R.S.-I and R.S.-II and because they were compulsory counterclaims in R.S.-I. On October 21, 2013 the trial court issued its ruling sustaining PacifiCare's demurrer without leave to amend. The trial court found that R.S.'s wrongful death and survivor claims were barred by res judicata.
The trial court first found as to R.S.'s wrongful death claim for loss of consortium that R.S. could have asserted his claim in R.S.-II, but failed to do so. The court therefore found that the claim was barred by res judicata, relying on the holding of our Supreme Court in Boeken v. Phillip Morris USA, Inc. (2010) 48 Cal.4th 788, 798 (Boeken), which we discuss below.
With respect to R.S.'s survivor claim for damages, the court found that this claim "arise[s] out of the denial of benefits, the same wrong that was at issue in [R.S.-I] and again in [R.S.-II]." The court concluded that this claim was therefore also barred by res judicata. The court cited to this district's holding in R.S.-II that the claims asserted in R.S.-I and R.S.-II were "logically related," rejecting R.S.'s argument that he could avoid the bar of res judicata by alleging damages incurred after the Missouri judgment was entered.
The order of dismissal and judgment was entered on May 13, 2014. R.S.'s notice of appeal was filed prematurely on December 20, 2013 — after the order was filed sustaining PacifiCare's demurrer without leave to amend, but before final judgment was entered.
R.S. contends that while the three lawsuits involve the same "wrong," i.e., PacifiCare's denial of medical benefits to R.C., PacifiCare's wrong in this action invaded "primary rights" that are different from those alleged in R.S.-I and R.S.-II. With respect to his wrongful death claim, R.S. argues that neither R.S.-I nor R.S.-II alleged damages for loss of consortium, and thus this action concerns a different primary right. R.S. argues as to his survivor claim that Code of Civil Procedure section 377.30 creates a separate cause of action in favor of the heirs that only arises upon the death of the decedent, and thus it too is not barred by res judicata.
We find the trial court correctly sustained the demurrer as to R.S.'s survivor claim, but find R.S.'s argument persuasive as to his wrongful death claim.
"We independently review the superior court's ruling on a demurrer and determine de novo whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense. [Citations.]" (Regents of University of California v. Superior Court (2013) 220 Cal.App.4th 549, 558; accord, Rosolowski v. Guthy-Renker LLC (2014) 230 Cal.App.4th 1403, 1410.) "We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. [Citations.]" (City of Dinuba v. County of Tulare, supra, 41 Cal.4th at p. 865.)
"We will affirm the ruling if there is any ground on which the demurrer could have been properly sustained. [Citation.]" (Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1052; see Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) However, if the complaint states a cause of action under "any possible legal theory, the trial court's order sustaining the demurrer must be reversed. [Citation.]" (Chavez v. Indymac Mortgage Services (2013) 219 Cal.App.4th 1052, 1057; accord, Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
PacifiCare argues that R.S.'s claims are barred by both the Missouri judgment in R.S.-I and the California judgment in R.S.-II. We turn first to the question of which law applies to application of res judicata.
Whether an action filed in California is barred by a prior judgment under the res judicata doctrine is determined by application of the law of the state in which the judgment was entered.
As our Supreme Court held in Gagnon Co.," `The effect of a valid judgment as a conclusive adjudication between the parties and persons in privity with them of facts which were or might have been put in issue in the proceedings is determined by the law of the state where the judgment was rendered.'" (Gagnon Co., Inc. v. Nevada Desert Inn, supra, 45 Cal.2d at p. 454, citing Rest., Conflicts, § 450.)
This district in R.S.-II similarly found that Missouri law applied to determine whether the action was barred under Missouri's compulsory counterclaim law. (R.S.-II, supra, 194 Cal.App.4th at pp. 201-203.) In reaching this conclusion, the court held: "The full faith and credit clause obligates California to enforce the Missouri judgment to the same effect as if [PacifiCare and Golden Rule] sought the judgment's enforcement in Missouri." (Id. at p. 201.) The court proceeded to "[f]ram[e] the question before us as the effect a Missouri court would give the Missouri judgment. . . ." (Id. at pp. 201-202.)
In this case, if a Missouri court were to consider the res judicata effect of R.S.-I, it would apply Missouri principles of res judicata. Accordingly, so do we. However, the judgment entered in R.S.-II was entered in California; thus, California law applies to determine whether R.S.'s claims in this action are barred by the judgment in R.S.-II.
Under California law, a cause of action is barred under principles of res judicata if "`"(1) [a] claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. [Citations.]"' [Citation.]" (Boeken, supra, 48 Cal.4th at p. 797.)
Our Supreme Court in Boeken held further: "`As generally understood, "[t]he doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy." [Citation.] The doctrine "has a double aspect." [Citation.] "In its primary aspect," commonly known as claim preclusion, it "operates as a bar to the maintenance of a second suit between the same parties on the same cause of action. [Citation.]" [Citation.] "In its secondary aspect," commonly known as collateral estoppel, "[t]he prior judgment . . . `operates'" in "a second suit . . . based on a different cause of action . . . `as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action.' [Citation.]" [Citation.]'" (Boeken, supra, 48 Cal.4th at p. 797, italics omitted.)
California law analyzes whether a cause of action is "identical" based on an analysis of the "primary right" involved. The primary right theory "provides that a `cause of action' is comprised of a `primary right' of the plaintiff, a corresponding `primary duty' of the defendant, and a wrongful act by the defendant constituting a breach of that duty. [Citation.] . . . [T]he violation of a single primary right gives rise to but a single cause of action. [Citation.] . . . [¶] . . . [T]he primary right is simply the plaintiff's right to be free from the particular injury suffered. [Citation.]" (Crowley v. Katleman (1994) 8 Ca1. 4th 666, 681; accord, Hindin v. Rust (2004) 118 Ca1.App.4th 1247, 1257.) Accordingly, "`if a plaintiff alleges that the defendant's single wrongful act invaded two different primary rights, he has stated two causes of action, and this is so even though the two invasions are pleaded in a single count of the complaint.' [Citation.]" (Hindin, supra, at p. 1258.)
Res judicata bars claims that were brought in a prior lawsuit as well as claims that could have been raised in the former action. (Busick v. Workmen's Comp. Appeals Bd. (1972) 7 Cal.3d 967, 975 ["`the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable'"]; see also Villacres v. ABM Industries Inc. (2010) 189 Cal.App.4th 562, 576.) This district held in Villacres: "`"If the matter was within the scope of the action, related to the subject-matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged. . . ."'" (Villacres, supra, at p. 576.)
"The Missouri Supreme Court has set forth a four prong test to be used when determining whether collateral estoppel is appropriate. [Citation.] First, the issue decided in the first action must be identical to the issue in the second action. [Citation.] Second, the prior litigation must have resulted in a final judgment on the merits. [Citation.] Third, the party to be estopped must have been a party or in privity with a party to the prior adjudication. [Citation.] Finally, the party to the prior adjudication must have had a full and fair opportunity to litigate the issue in the prior suit.
Under Missouri law, "[t]he res judicata defense precludes not only those issues on which the court in the former suit was required to pronounce judgment, but on all points properly belonging to the subject matter of the litigation and which the parties, exercising reasonable diligence, might have brought into the case at the time. [Citation.]" (Hollida v. Hollida, supra, 190 S.W.3d at p. 555.)
R.S. does not dispute that there was a final judgment in R.S.-I and R.S.-II. As to privity, both R.S. and R.C. were parties in R.S.-I and R.S.-II.
We discuss R.S.'s survivor and wrongful death claims in turn.
The complaint in R.S.-II alleged a cause of action seeking damages for PacifiCare's alleged breach of the covenant of good faith and fair dealing by its denial of medical benefits to R.C. (R.S.-II, supra, 194 Cal.App.4th at p. 196.) In R.S.-II, this district held that R.C.'s claim was barred as a compulsory counterclaim he was required to assert in R.S.-I. (R.S.-II, supra, at p. 207.)
R.S. appears to concede that all three actions concern the same wrongful act, stating in his opening brief that "the present action arises out of PacifiCare's wrongful act that formed the basis of [R.S.-I and R.S.-II] — its wrongful failure to pay for [R.C.'s] medical treatments." Instead, R.S. argues that his survivor claim arises out of a different "primary right." More specifically, R.S. argues that he seeks economic damages that "were incurred at least in part
A cause of action accrues when a person sustains damage that can be ascertained; it is not necessary that the full amount of damages be determined for the claim to arise. (See Boeken, supra, 48 Cal.4th at p. 799 ["[t]he general rule is that a tort plaintiff may recover prospective damages, as long as it is sufficiently certain that the detriment will occur"]; Garcia v. Duro Dyne Corp. (2007) 156 Cal.App.4th 92, 97 [upholding jury verdict for future damages to plaintiff from mesothelioma, holding that "a plaintiff may recover if the detriment is `reasonably certain' to occur"].) There is no reason that R.C.'s full amount of damages could not have been ascertained in R.S.-I or R.S.-II.
Further, R.S.'s survivor claim is brought on behalf of R.C., and thus is identical to the claim brought by R.C. found barred in R.S.-II. As the Fourth District held in San Diego Gas & Electric Co. v. Superior Court (2007) 146 Cal.App.4th 1545: "A survivor claim is also a statutory cause of action; however, unlike a wrongful death claim, the survival statutes do not create a cause of action but merely prevent the abatement of the decedent's cause of action and provide for its enforcement by the decedent's personal representative or successor in interest. [Citation.]" (Id. at p. 1553; see also Grant v. McAuliffe (1953) 41 Cal.2d 859, 864 ["[b]efore his death, the injured person himself has a separate and distinct cause of action and, if it survives, the same cause of action can be enforced by the personal representative of the deceased against the tortfeasor" and "[t]he survival statutes do not create a new cause of action, as do the wrongful death statutes"].)
R.S. cites to no authority to support his argument that a claim barred by res judicata during R.C.'s lifetime can be revived upon his death by having the claim asserted by R.C.'s heir, R.S. We find that R.S.'s survivor claim is therefore barred.
PacifiCare argues that R.S.'s wrongful death claim is barred by the judgments in R.S.-I and R.S.-II under the doctrine of res judicata, and on the basis that it should have been asserted as a compulsory counterclaim under Missouri law in R.S.-I. We disagree.
PacifiCare argues that the trial court correctly found that while R.S. did not assert claims for loss of consortium in R.S.-I or R.S.-II, he could have brought a claim for loss of consortium in those actions, and therefore his wrongful death claim is barred by res judicata, citing to Boeken, supra, 48 Cal.4th at page 804. R.S. argues in response that Boeken is distinguishable because the wife in that case had filed a lawsuit for loss of consortium prior to her husband's death, but dismissed it with prejudice. R.S. contends that he did not suffer from loss of companionship during R.C.'s lifetime, and therefore he could not have asserted a claim for loss of consortium in R.S.-I or R.S.-II. We find R.S.'s argument persuasive.
Boeken arose out of a personal injury lawsuit filed by Richard Boeken (Richard) against cigarette manufacturer Phillip Morris for causing his lung cancer resulting from smoking cigarettes. A jury awarded Richard compensatory and punitive damages. (Boeken, supra, 48 Cal.4th at p. 792.) While Richard was still alive, his wife filed a separate common law action against Phillip Morris for loss of consortium, alleging "that she had been `permanently deprived' of her husband's consortium." (Ibid.) The wife subsequently dismissed her action with prejudice. (Id. at p. 793.)
A year later, Richard died from lung cancer. The wife then filed a wrongful death action against Phillip Morris under Code of Civil Procedure section 377.60, seeking compensation for the loss of Richard's companionship and affection. (Boeken, supra, 48 Cal.4th at p. 793.) Phillip Morris demurred, arguing that the wife's wrongful death action was barred by res judicata based on her prior lawsuit for loss of consortium. (Ibid.)
Our Supreme Court held that the primary right in the wife's first action for loss of consortium was the same primary right asserted in her wrongful death claim. (Boeken, supra, 48 Cal.4th at p. 798.) The court held as to the common law action for loss of consortium: "The primary right was the right not to be wrongfully deprived of spousal companionship and affection, and the corresponding duty was the duty not to wrongfully deprive a person of spousal companionship and affection. The breach was the conduct of defendant Philip Morris that wrongfully induced plaintiff's husband to smoke defendant's cigarettes. . . . Once plaintiff [dismissed her lawsuit for loss of consortium with prejudice], the primary right and the breach of duty (together, the cause of action) had been adjudicated in defendant's favor. Therefore, plaintiff could not later allege the same breach of duty in a second lawsuit against defendant, based on a new legal theory (statutory wrongful death)." (Ibid.) The court concluded "that the primary right at issue in plaintiff's current wrongful death action for loss of consortium is the same as the primary right at issue in her previous common law action for loss of consortium, and therefore the res judicata doctrine bars the wrongful death action insofar as it concerns loss of consortium." (Id. at p. 804.)
Boeken is distinguishable from the instant case on the basis that the wife there filed a lawsuit for loss of consortium prior to filing her lawsuit for wrongful death. Notably, the court did not find that Richard's prior personal injury lawsuit was a bar to his wife's common law claim for loss of consortium or her wrongful death action.
As in Boeken, had R.S. asserted a claim in R.S.-I or R.S.-II for loss of consortium, the same claim in this action would be barred. However, it is undisputed that R.S. did not allege loss of consortium in R.S.-I or R.S.-II. The trial court found that Boeken still applied because R.S. could have asserted a claim for loss of consortium in R.S.-II, causing him to be barred from bringing a later wrongful death claim for loss of consortium.
Applying the holding in Boeken to a situation where the plaintiff did not previously file an action for loss of consortium is contrary to California law that "where a recovery was had and a liability established against defendants in the personal injury action, the additional action for wrongful death accrues under the provisions of [former] section 377 (now § 377.60) of the Code of Civil Procedure." (Secrest v. Pacific Electric Ry. Co., supra, 60 Cal.App.2d at p. 751; accord, Blackwell v. American Film Co. (1922) 189 Cal. 689, 693-694 [widow could recover for her own damages in wrongful death action resulting from the death of her husband in automobile accident even though husband recovered damages in prior lawsuit during his lifetime for personal injuries]; Earley v. Pacific Electric Ry. Co. (1917) 176 Cal. 79, 81 [widow could maintain wrongful death claim despite settlement by decedent during his lifetime with defendant for his injuries, holding that "the loss to his heirs did not accrue until he died"].)
As the Court of Appeal held in Brown v. Rahman (1991) 231 Cal.App.3d 1458: "If the injured party prevailed, the heirs are not precluded from seeking their own damages. Where the judgment was adverse to the decedent, however, the contemporary view, and the one to which we subscribe, is that the heirs are collaterally estopped from relitigating the issue." (Id. at p. 1461.)
Further, our Supreme Court has made clear that the wrongful death statute is intended to create a new and separate cause of action in favor of the heirs. (See Ruiz v. Podolsky (2010) 50 Cal.4th 838, 844; see also Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263 [statutorily created wrongful death cause of action "is a new cause of action that arises on the death of the decedent and it is vested in the decedent's heirs"].) As the court held in Ruiz: "`Unlike some jurisdictions wherein wrongful death actions are derivative, Code of Civil Procedure section 377.60 "creates a new cause of action in favor of the heirs as beneficiaries, based upon their own independent pecuniary injury suffered by loss of a relative, and distinct from any the deceased might have maintained had he survived. [Citations.]"' [Citation.]" (Ruiz, supra, at p. 844.)
By contrast, in Secrest v. Pacific Electric Ry. Co., supra, 60 Cal.App.2d 746, this district held that the plaintiff's wrongful death action arising from a car accident was barred where the decedent brought a prior lawsuit for personal injuries from the accident which resulted in a verdict for the defendants, because the final judgment in the personal injury action for defendants "`negatives the existence of conditions which would charge the defendant with responsibility for the death.'" (Id. at p. 750, italics omitted.) The court distinguished the holdings in Blackwell and Earley on the basis that in those cases there was not an adverse decision on the merits finding that the defendants were free from negligence or the decedent contributed to his own injuries. (Id. at pp. 748-749; see also Evans v. Celotex Corp. (1987) 194 Cal.App.3d 741, 745 [defense verdict in personal injury case for worker's asbestos exposure for lack of proof of causation barred later wrongful death claim by heirs].)
In this case, while the demurrer was sustained in R.S.-II, the ruling was based on the judgment in R.S.-I, not a finding that PacifiCare did not owe a duty to R.C. Thus, like Blackwell and Earley, and contrary to Secrest and Evans, there was a determination that PacifiCare did owe a duty to provide insurance benefits to R.C.
Under Missouri law, a wrongful death action is likewise not barred even where the decedent previously brought a lawsuit for personal injuries. (Smith v. Brown & Williamson Tobacco Corp., supra, 275 S.W.3d at p. 782.) In Smith, the court reviewed case law from around the country, and concluded: "we hold that, pursuant to the language employed in [Missouri Revised Statutes] section 537.080 [(2000)] [for wrongful death], the wrongful death action is not barred in this case, despite the fact that Ms. Smith brought a personal injury action for the injuries eventually resulting in her death during her lifetime."
The court in Smith based its conclusion on the holding by the Missouri Supreme Court "that the wrongful death statute creates a new cause of action and does not revive an action belonging to the decedent." (Smith v. Brown & Williamson Tobacco Corp., supra, 275 S.W.3d at p. 765, citing O'Grady v. Brown (Mo. 1983) 654 S.W.2d 904, 910; see also Sennett v. National Healthcare Corp. (Mo. Ct. App. 2008) 272 S.W.3d 237, 244-245 [wrongful death cause of action is "`"a new and distinct cause of action created purely by statute, which sprang into being and accrued to plaintiffs as the designated beneficiaries at the moment, but not until the moment, that the death of the deceased occurred"'"].)
Notably, Missouri law provides for a more expansive wrongful death claim than under California law. In Smith, the decedent had asserted claims for negligence and strict liability against the defendants for their failure to warn her of the dangers from smoking cigarettes. The court granted summary judgment in favor of the defendant, finding that the decedent could not prove causation, i.e., that if she had been warned she would have altered her smoking behavior. (Smith v. Brown & Williamson Tobacco Corp., supra, 275 S.W.3d at pp. 759-760.) Even though the decedent suffered an adverse decision in her lawsuit, the court found that the heirs had a separate wrongful death claim for the decedent's injuries. (Id. at p. 782.)
Under Missouri law as well as California law, the primary rights at issue in R.S.-I and R.S.-II — the right of R.C. and R.S. not to be harmed by PacifiCare's denial of their medical benefits — are separate "primary rights" from R.S.'s right not to be permanently deprived of R.C.'s "spousal companionship and affection." (Boeken, supra, 48 Cal.4th at p. 804; accord, Smith v. Brown & Williamson Tobacco Corp., supra, 275 S.W.3d at p. 782.) Accordingly, the judgments in R.S.-I and R.S.-II do not bar R.S.'s wrongful death claim.
This district in R.S.-II held that the claims asserted by R.S. and R.C. were precluded by the Missouri judgment under the full faith and credit clause of the United States Constitution (U.S. Const., art. IV, § 1) and Code of Civil Procedure section 1913
The Missouri courts have held that rule 55.32(a) "is simply the codification of the principles of res judicata and collateral estoppel. Claims and issues which could have been litigated in a prior adjudicated action are precluded in a later action between the same parties or those in privity with them." (Joel Bianco Kawasaki Plus, Inc. v. Meramec Valley Bank (Mo. Banc 2002) 81 S.W.3d 528, 523, bold omitted; accord, Adamson v. Innovative Real Estate, Inc., supra, 284 S.W.3d at p. 728; see also R.S.-II, supra, 194 Cal.App.4th at p. 203.) Further, "[t]he function of this rule is to serve as `a means of bringing all logically related claims into a single litigation, through the penalty of precluding the later assertion of omitted claims.' [Citation.]" (Adamson, supra, at p. 728, citing State ex rel. J.E. Dunn, Jr. & Associates, Inc. v. Schoenlaub (Mo. Banc 1984) 668 S.W.2d 72, 75.)
As the court held in Adamson: "To determine if a cause of action is single and cannot be split, the trial court should consider: (1) whether the separate actions brought arise out of the same act or transaction; and (2) whether the parties, subject matter, and evidence necessary to sustain the claim are the same in both actions. [Citation.] The term `transaction' has been held to be a term of broad and flexible meaning which is intended to include all the facts and circumstances constituting the foundation of a claim and should be applied so as to bring all logically related claims into a single litigation." (Adamson v. Innovative Real Estate, Inc., supra, 284 S.W.3d at pp. 728-729.)
PacifiCare argues that R.S. was required to assert his wrongful death claim for loss of consortium in R.S.-I because his claim for loss of consortium arose out of the same "act or transaction" (denial of insurance benefits) and was "logically related" to the claims asserted in R.S.-I. Further, PacifiCare argues that R.C. "was gravely ill and near death" at the time of R.S.-I, and therefore the loss of consortium claim was capable of ascertainment at that time.
As we discuss above, however, under Missouri principles of res judicata, a wrongful death claim is not barred by the prior personal injury claim for damages by the decedent during his lifetime. Because Missouri's compulsory counterclaim law is premised on the principles of res judicata and collateral estoppel, then just as R.S.'s wrongful death claims are not barred by res judicata, they cannot be barred for failure to assert them in R.S.-I. This is consistent with Missouri law that a wrongful death cause of action accrues at the time of death of the decedent. (See Sennett v. National Healthcare Corp., supra, 272 S.W.3d at p. 245 [wrongful death claim found to accrue "not until the moment[] that the death of the deceased occurred"].)
The judgment is reversed. The trial court is directed to vacate the order sustaining PacifiCare's demurrer and to enter a new order overruling the demurrer with respect to R.S.'s wrongful death claim and sustaining the demurrer as to R.S.'s survivor claim. R.S. is to recover his costs on appeal.
PERLUSS, P. J. and ZELON, J., concurs.
The California statute (Code Civ. Proc., § 377.61) states: "[D]amages may be awarded that, under all the circumstances of the case, may be just. . . ." California courts have specified available damages. As the court held in Boeken v. Phillip Morris USA Inc. (2013) 217 Cal.App.4th 992, "damages for wrongful death `are 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.]' [Citation.]" (Id. at p. 997.)
