" In 1974 the Act was amended to eliminate the remaining references to time of exposure [and] making the date of acquiring knowledge that the disease could have been related to employment the determinant for all purposes."Mergenthaler v. Asbestos Corp. of America, 534 A.2d 272 (Del.Super. 1987).Mergenthaler, 534 A.2d at 275.

at 354 (citing 2 Norman J. Singer, Sutherland Stat. Const. § 41.09, at 399 (5th ed. 1993)). Mergenthaler v. Asbestos Corp. of Am, Inc., 534 A.2d 272, 276 (Del. Super. Ct. 1987). The question based on that shared understanding of Delaware law, then, is whether Section 1513(b)(2) impacts Ms. L----'s vested rights or is remedial.

Under Delaware law a loss of consortium claim is derivative to that of the injured spouse and is dependent upon the existence of a valid claim by the injured spouse for physical injury against the tortfeasor. Mergenthaler v. Asbestos Corp. of Am., 534 A.2d 272, 280-81 (Del.Super.Ct. 1987). A claim for loss of consortium consists of three elements: (1) the party asserting the claim must have been married to the person who suffered the physical injury at the time the injury occurred; (2) as a result of the physical injury, the spouse asserting the loss of consortium claim must have been deprived of some benefit which formerly existed in the marriage; and (3) the physically injured spouse must have had a valid cause of action for recovery against the tortfeasors.

The loss of consortium claim is derivative to that of the injured spouse and is dependent upon the existence of a valid claim by the injured spouse for physical injury against the tortfeasor. Mergenthaler v. Asbestos Corp. of Am., 534 A.2d 272, 280-81 (Del.Super.Ct. 1987). A cause of action for loss of consortium is predicated upon three elements:

practices, and other public policy concerns, so long as there is a rational relationship between the government interest that is asserted and the retroactive legislation); Marriage of Bouquet, 128 Cal. Rptr. 427, 546 P.2d at 1376 (examining "the significance of the state interest served by the law, the importance of the retroactive application of the law to the effectuation of that interest, the extent of reliance upon the former law, the legitimacy of that reliance, the extent of actions taken on the basis of that reliance, and the extent to which the retroactive application of the new law would disrupt those actions"); Reed v. Brunson, 527 So.2d 102, 115-16 (Ala. 1988) (eliminating co-employee lawsuits, while noting that "[i]t is certainly within the police power of the legislature to act to enhance the economic welfare of the citizens of this state [by eliminating the common law cause of action] . . . in an attempt to eradicate or ameliorate what it perceives to be a social evil"); Mergenthaler v. Asbestos Corp. of Am., 534 A.2d 272, 276-77 (Del.Super.Ct. 1987) (noting that the determination of retroactivity "rests on subtle judgments concerning the fairness of applying the new statute" and noting that the considerations of vested rights "may be moderated or overcome if the statute is in furtherance of the general police power for concerns of public, health, morals, safety, or general welfare" and holding retroactive application of workers' compensation benefits to asbestos claimants who were exposed prior to coverage was not unconstitutionally retroactive). When considering the application of the police power, this case is a close one.

There is no cause of action until there is a right to bring suit or until a present remedy exists. Mergenthaler v. Asbestos Corp. of America, Del.Super., 534 A.2d 272, 276 (1987). This Court examined the timeliness of a claim for uninsured motorist benefits under 18 Del. C. § 3902 in Allstate Ins. Co. v. Spinelli, Del.Supr., 443 A.2d 1286 (1982).

Accordingly, as the Superior Court has recognized, "Statutes which retrospectively make reasonable change in remedy are not impermissible." Mergenthaler v. Asbestos Corp. of America, Inc., Del.Super., 534 A.2d 272, 277 (1987). In light of these principles, we find that the Court of Chancery was correct when it affirmed the award of restitutionary damages pursuant to 6 Del. C. § 7325(b).

To make occupational-disease claims covered by workers compensation instead of tort law would not constitute a constitutional violation. See Mergenthaler v. Asbestos Corp. of Am., 534 A.2d 272, 280 (Del.Super.Ct. 1987) (applying legislative amendment to the Workmen's Compensation Law for asbestos-related diseases did not "violate the concepts of retroactivity and [met] the test of fairness"). Traditionally, then, inchoate tort claims have not been regarded as vested rights of sufficient status to withstand, in all circumstances, a clear legislative intent to apply retroactively the amendments to plaintiff's cause of action.

4 LARSON'S WORKMEN'S COMPENSATION LAW § 95.25(a), at 17-149-50 and cases cited therein.See, e.g., Mergenthaler v. Asbestos Corp. of America, 534 A.2d 272 (Del.Super.Ct. 1987) (manifestations after amendment to workers' compensation law providing, for first time, compensation for asbestos-related diseases, covered by amended law); Wood v. J.P. Stevens Co., 297 N.C. 636, 256 S.E.2d 692 (1979) (amended statute applies to all claims in which disability manifested after effective date of statute); Tucker v. Claimants in Death of Gonzales, 37 Colo. App. 252, 546 P.2d 1271 (1976) (legislative intent that amended statute controls rights and liabilities of worker and employer, which accrue at time of disability); Frisbie v. Sunshine Mining Co., 93 Idaho 169, 457 P.2d 408 (1969) (amended statute applies since right to compensation does not accrue and rights of parties do not become fixed until time of disability). A case holding to the contrary, Johnson v. State Accident Ins. Fund Corp., 78 Or. App. 143, 714 P.2d 1098 (1986), review denied, 301 Or. 240, 720 P.2d 1279 (1986), turned on a provision in Oregon's workers' compensation law which provided that the contr

Motor Vehicle Accident Indemnification Corp. v. Aetna Casualty and Surety Co., 674 N.E.2d 1349, 1353 (N.Y. 1996).Mergenthaler v. Asbestos Corp. of America, 534 A.2d 272, 276 (Del.Super.Ct. 1987). 10 Del. C. § 8106 ("[N]o action based on a statute . . . shall be brought after the expiration of 3 years from the accruing of the cause of such action.