Brumley vs. FDCC Asbestos Case Discussion: The San Diego Gas & Electric Case

Review the discussion of the San Diego Gas & Electric Case 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.

Two cases building on this general principle lead to the inevitable conclusion that the wrongful death and loss of consortium claims of heirs do not relate back to the decedent’s personal injury claims arising from his or her fatal injury.5 In San Diego Gas & Electric Co. v. Superior Court (2007) 146 Cal.App.4th 1545 (San Diego Gas & Electric), relatives of soldiers killed in a helicopter accident brought suit, alleging various survivorship and wrongful death claims. On the eve of trial, the plaintiffs sought to file an amended complaint adding wrongful death claims by the widow of one of the soldiers, who apparently had not joined earlier. The new claims were time-barred unless they related back to the claims of the other parties. (Id. at pp. 1548–1549.) Citing Bartalo, the court noted that “an amended pleading that adds a new plaintiff will not relate back to the filing of the original complaint if the new party seeks to enforce an independent right or to impose greater liability against the defendants.” (San Diego Gas & Electric, at p. 1550.)

The court then considered the nature of the wrongful death cause of action, explaining: “A cause of action for wrongful death is a statutory claim [citations] that compensates specified heirs of the decedent for losses suffered as a result of a decedent’s death. [Citation.] Any recovery is in the form of a lump sum verdict determined according to each heir’s separate interest in the decedent’s life [citation], with each heir required to prove his or her own individual loss in order to share in the verdict. [Citations.] Because a wrongful death action compensates an heir for his or her own independent pecuniary losses, it is one for ‘personal injury to the heir.’ [Citations.] Thus, in a wrongful death action the ‘injury’ is not the general loss of the decedent, but the particular loss of the decedent to each individual claimant.” (San Diego Gas & Electric, supra, 146 Cal.App.4th at pp. 1550–1551.) Based on this foundation, the court held that “[b]ecause all wrongful death claimants must show the nature of his or her loss as a result of the decedent’s death, the addition of an omitted heir to a wrongful death action after expiration of the limitations period as to the omitted heir necessarily inserts a new cause of action that seeks to enforce an independent right; as such, the relation-back doctrine will not apply.” (Id. at pp. 1552–1553.)

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