Brumley vs. FDCC Asbestos Case Discussion: The Lamont v. Wolfe Case

Read the discussion of the Lamont v. Wolfe 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.

The only case defendants cite on the issue of relation back is Lamont v. Wolfe (1983) 142 Cal.App.3d 375, in which a wife who was the alleged victim of medical malpractice filed claims for personal injury. Her husband joined in the suit with a claim for loss of consortium growing out of the same injuries. (Lamont, at p. 377.) After the wife’s death, the husband filed an amended complaint alleging claims for wrongful death, but his filing occurred after the expiration of the year afforded the filing of such claims. (Id. at pp. 377–378.) The court of appeal dismissed the wrongful death claims as time-barred, reasoning that the wrongful death claims related back to the husband’s original claim for loss of consortium because they alleged the same type of injuries as a loss of consortium claim. (Id. at pp. 381–382.) The case is inapplicable here because neither Mrs. Brumley nor Brumley’s children filed claims in the original lawsuit, and their claims in the amended complaint alleged a different type of injury than those that had been alleged by Brumley in the original complaint.

Because plaintiffs’ wrongful death claims and Mrs. Brumley’s loss of consortium claim do not relate back to Brumley’s original personal injury claims, under Barrington these claims should not have been dismissed pursuant to section 583.360.

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