Brumley vs. FDCC Asbestos Case Discussion: The Relation Back Theory

Read the discussion of the relation back theory in the appellate decision in Brumley, et. al vs. FDCC California, Inc. In this decedent asbestos cancer case, the plaintiffs appeal the lower court’s decision on the wrongful death claim filed on behalf of the widow and children and the widow’s loss of consortium.

B. Relation Back
A new cause of action in an amended complaint is held to relate back to the earlier pleaded claims if the later cause of action “(1) rest[s] on the same general set of facts, (2) involve[s] the same injury, and (3) refer[s] to the same instrumentality, as the original one.” (Norgart, supra, 21 Cal.4th at p. 409.)

In Bartalo v. Superior Court (1975) 51 Cal.App.3d 526 (Bartalo), the plaintiff sued to recover for injuries she suffered in an auto accident. Sometime later, after expiration of the applicable statute of limitations, her husband filed a claim for loss of consortium arising out of her injuries. (Id. at p. 528.) The court found that the loss of consortium claim did not relate back to the wife’s claims for injury because “Husband’s claim to a loss of consortium is a wholly different legal liability or obligation. The elements of loss of society, affection and sexual companionship are personal to him and quite apart from a similar claim of the wife. True, in a sense it is derivative because it does not arise unless his wife has sustained a personal injury, however, his claim is not for her personal injuries but for the separate and independent loss he sustained.” (Id. at p. 533.)

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