Brumley vs. FDCC Asbestos Case Discussion: The Quiroz v. Seventh Ave. Center Case

Read the discussion of the Quiroz v. Seventh Ave. Center in the appellate decision in Brumley, et. al vs. FDCC California, Inc. In this 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.

In Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256 (Quiroz), the initial complaint alleged wrongful death claims in connection with the death of an adult child in nursing home care. (Id. at p. 1266.) The first amended complaint added a survivorship claim, purporting to assert the rights of the decedent. (Id. at p. 1267.) The defendant moved for summary adjudication of the survivorship claims as time-barred. The court applied a rationale similar to that used in of San Diego Gas & Electric in concluding that the survivorship claim did not relate back to the earlier-filed wrongful death claims: “[W]e readily conclude, as did the court below, that the survivor cause of action pleaded a different injury than the initial complaint. We also conclude that the two claims in the amended pleading were asserted by different plaintiffs, [the decedent’s mother] acting in two separate capacities with respect to each, and that the addition of fresh allegations concerning her representative capacity in pursuit of the new survivor claim was not just the mere technical substitution of the proper party plaintiff on a previously existing claim. This survivor claim, which plaintiff pursued as the decedent’s successor in interest, pleaded injury to the decedent . . . . In contrast, the earlier filed wrongful death claim pleaded only injury to plaintiff, acting for herself, as the decedent’s heir. As a matter of law, these distinct claims are technically asserted by different plaintiffs and they seek compensation for different injuries. [Citations.] Accordingly, the doctrine of relation back does not apply and the entire survivor claim is barred by the statute of limitations.” (Quiroz, at pp. 1278–1279.)

There can be no doubt that these authorities require a finding that plaintiffs’ wrongful death and loss of consortium claims do not relate back to the original claims. As in Quiroz, these are the claims of different plaintiffs, and they seek different damages from the original claims. The plaintiff in the original lawsuit was Brumley, rather than his family members. The original claims sought recovery for injuries to Brumley, while the new claims seek compensation for individualized injuries to each family member, growing out of Brumley’s death.

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