Brumley vs. FDCC Asbestos Case Discussion: Barrington v. A.H. Robins Co.

Read the discussion of the Barrington case and its relevance to 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.

A. Barrington v. A. H. Robins Co.
The trial court dismissed the entirety of plaintiffs’ claims under sections 583.310 and 583.360. Section 583.310 states, “An action shall be brought to trial within five years after the action is commenced against the defendant.” “Commencement” of an action for purposes of section 583.310 and its predecessor, section 583, is firmly established as the date of filing of the initial complaint. (E.g., Kowalski v. Cohen (1967) 252 Cal.App.2d 977, 980.) Section 583.360 prescribes the remedy for a violation of section 583.310: “An action shall be dismissed by the court . . . if the action is not brought to trial within the time prescribed in this article.” (§ 583.360, subd. (a).) The trial court reasoned that because plaintiffs’ lawsuit had not been brought to trial within the five years of its filing, and because “plaintiffs failed to establish that it was impractical, impossible or futile to bring this case to trial within that five-year period of time,” its dismissal was required by section 583.360.

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