The trial court's demurrer must be reversed
(PRWEB) February 10, 2012
Clapper, Patti, Schweizer & Mason (CPSM) filed a wrongful death complaint on behalf of their clients, Rachel Flores and her two children, against Kmart in Superior Court. The trial court dismissed the Flores case, stating that the claim was barred because of Kmart’s reorganization plan that had been approved in April of 2003 as result of bankruptcy proceedings. (In re Kmart Corp. (Bkrtcy. N.D.Ill. 2003) 293 B.R. 905, 907.) CPSM filed an appeal, to overturn the ruling. CPSM was successful and this ruling was reversed on appeal.
According to testimony taken in preparation for filing a mesothelioma lawsuit, Martin Flores stated he was exposed to asbestos in 1989 and 1990 while performing construction work in a Riverside store operated by defendant, Kmart. Mr. Flores then developed mesothelioma, an incurable cancer caused by exposure to asbestos, and died on June 19, 2008. His wife, Rachel Flores, filed a wrongful death action on behalf of herself and her two children on December 17, 2008.
According to the National Institutes of Health, mesothelioma's long latency period between time of exposure and development of disease does not develop is anywhere from ten to fifty years after exposure to asbestos. Asbestos exposure is a common occurrence during construction projects on older buildings, as most were constructed using asbestos containing materials until the mid-1980’s when restrictions began to be enforced.
As reflected in court documents, Kmart asserted that Flores could not file a wrongful death action because of defendant’s approved reorganization plan of 2003 that discharged all known and unknown claims. The plaintiffs argued that barring the Flores claim violated their Fourteenth Amendment due process rights as there was no evidence that Mr. Flores or his family had any notice of the 2002 and 2003 bankruptcy proceedings and furthermore there was no way that Mr. Flores could have been aware of injuries sustained at the time of the reorganization plan approval.
The California State Court of Appeals reversed the previous ruling, (Flores v. Kmart Corp. (2012) 2012 Cal. App. LEXIS 55) agreeing that it would violate due process rights, and ordered that the Flores family could indeed continue with their wrongful death action against Kmart Corporation. The case was remanded to trial court for further proceedings.
Clapper, Patti, Schweizer & Mason are leading mesothelioma attorneys having successfully won awards, settlements and bankruptcy claims on behalf of their clients for more than 30 years. If you have been diagnosed with mesothelioma and would like to know what your legal rights are, contact our office today at 1-800-442-4262 and receive a free case evaluation from one of our attorneys that specialize in handling asbestos claims.