Brumley vs. FDCC Asbestos Case

Read about 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.

Filed 10/22/07
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

CAROL BRUMLEY et al., Plaintiffs and Appellants,

v.
FDCC CALIFORNIA, INC., et al., Defendants and Respondents.

A114840

(San Francisco City & County Super. Ct. No. 314479)

Plaintiffs’ decedent, William Brumley, filed suit several years ago in connection with alleged noncancerous asbestos injuries. Nearly four years after he filed suit, Brumley developed an asbestos-linked lung cancer and died. Thereafter, plaintiff Carol Brumley, his wife, was granted leave to file an amended complaint asserting wrongful death claims of her and her children and substituting herself as Brumley’s personal representative to assert survivorship claims.

After plaintiffs failed to secure a trial on the amended complaint within five years of the filing of the original complaint, their entire lawsuit was dismissed pursuant to Code of Civil Procedure sections 583.310 and 583.360. Plaintiffs concede that the survivorship claims are barred by the five-year rule, but they contend that the wrongful death claims and Mrs. Brumley’s loss of consortium claim should not have been dismissed. We agree and reverse as to those claims.

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