Brumley vs. FDCC Asbestos Case: Procedural Delays

Read about the procedural delays discussed in the background of 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.

These changes caused procedural delays, but a second trial date of April 3, 2006 was eventually set. Plaintiffs’ counsel apparently realized only afterward that this date would exceed the five-year limit of section 583.310, for on January 26, 2006, plaintiffs filed a motion requesting either an earlier trial date or an extension of the five-year limitation of section 583.310. According to plaintiffs, the five years applicable to the original complaint would expire in February 2006, having been tolled during the period from Brumley’s death until Mrs. Brumley’s appointment.

Several defendants opposed the motion, arguing that the five years had already run on August 18, 2005, exactly five years from the date of filing of Brumley’s original complaint. Alternatively, defendants argued, even if the time following Brumley’s death was excluded, the five years expired on January 27—the day following the filing of Mrs. Brumley’s motion. Their various oppositions also included facts that, they argued, demonstrated that plaintiffs’ counsel had not been diligent in pursuing the action. Based on these facts, defendants FDCC California, Inc., Scott Co. of California, and Allied Heating & Air Conditioning Co. requested an order dismissing the case under section 583.310.

In response, plaintiffs argued that several periods of tolling should be recognized and that, in any event, only Brumley’s surviving causes of action should dismissed as beyond the five years, since the wrongful death claims did not arise until much later.

The trial court granted the motion to dismiss, holding, “under [sections] 583.310 and 583.360(a) plaintiffs failed to bring this case to trial within five years of the filing of the original complaint in this matter. The Court also finds that the calculation of the five years within which to bring this case to trial pursuant to [section] 583.310 was tolled during the period of time between decedent William Brumley’s death and the appointment of Carol Brumley as his successor-in-interest. The Court further finds that plaintiffs failed to establish that it was impractical, impossible or futile to bring this case to trial within that five-year period of time.”

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