Union Carbide Corp. v. Brannan, A21A0143
| Court | United States Court of Appeals (Georgia) |
| Writing for the Court | Gobeil, Judge. |
| Citation | 360 Ga.App. 109,860 S.E.2d 881 |
| Parties | UNION CARBIDE CORPORATION v. BRANNAN et al. |
| Docket Number | A21A0143 |
| Decision Date | 25 June 2021 |
360 Ga.App. 109
860 S.E.2d 881
UNION CARBIDE CORPORATION
v.
BRANNAN et al.
A21A0143
Court of Appeals of Georgia.
June 25, 2021
Catherine Diane Payne, Philip Aaron Sandick Sandick, Atlanta, William Clay Massey, for Appellant.
Robert Cape Buck, Peachtree Corners, Brian Kinsley, for Appellee.
Gobeil, Judge.
Union Carbide Corporation ("UCC") appeals from the trial court's denial of its motion to dismiss the claims raised by Louise Brannan ("Louise"), in her capacity as the representative of the estate of her deceased husband, Charles Brannan ("Charles"). On appeal, UCC asserts that the prior pending action doctrine precluded the personal injury claims she raised on Charles's behalf. For the reasons that follow, we affirm the trial court's denial of UCC's motion to dismiss.
First Action
Charles was diagnosed with malignant pleural mesothelioma in 2015. On September 14, 2015, Charles and his wife Louise filed a complaint in DeKalb County for damages against several defendants, including UCC, alleging that Charles contracted the disease as a result of exposure to asbestos in products at his workplace that were supplied in part by UCC. In the first complaint, Charles raised personal injury claims of negligence and product liability. Louise raised a claim for loss of consortium.
On October 5, 2015, Charles passed away. On October 14, 2015, counsel for one of the defendants filed a "Notice of Suggestion of Death of Plaintiff Charles H. Brannan." At that time, no estate
representative had been appointed, so no one from Charles's estate was served with this notice. Louise was served with the notice as a co-plaintiff. Later, on December 17, 2015, Louise was appointed executrix of Charles's estate.
On September 14, 2016, almost a year after Charles's death, Louise filed a first amended complaint, amending the case caption by (1) removing Charles as a plaintiff and (2) adding herself as a co-plaintiff as the representative of Charles's estate. In the first amended complaint, Louise, in the capacity of Charles's estate representative, reasserted the personal injury claims. In her individual capacity, Louise reasserted her claim for loss of consortium and added a claim of wrongful death. On the same day, she filed a motion to "modify the caption" of the action to reflect the changes made in the first amended complaint.1 The defendants, including UCC, opposed this motion citing OCGA § 9-11-25 (a) (1).2 No order was entered on this motion.
On September 28, 2016, the defendants moved to dismiss the personal injury claims because the representative of the estate had not moved to substitute herself as a plaintiff within 180 days of the notice of suggestion of death, as required by OCGA § 9-11-25 (a) (1). Two days later, Louise filed a voluntary dismissal of "all claims as asserted against all Defendants under the Complaint" pursuant to OCGA § 9-11-41 (a).3 UCC did not object to the dismissal, and Louise filed a separate civil disposition form showing the case closed as of September 30, 2016.
Second Action
On November 3, 2016, Louise filed a second complaint in DeKalb County, again naming several defendants including UCC. Louise was named as a plaintiff both in her individual capacity and as the representative of Charles's estate. As the estate representative, Louise raised the personal injury claims. As an individual, Louise raised her loss of consortium and wrongful death claims. UCC answered the second complaint. Among 40 other defenses, UCC asserted that "Plaintiff's claims are barred if there is a prior pending
action between the parties related to the subject matter of this lawsuit."
After the denial of UCC's motion for summary judgment, UCC filed a motion to dismiss the personal injury claims Louise raised as Charles's estate representative. UCC asserted that Louise could not unilaterally dismiss the claims...
To continue reading
Request your trial
-
West v. Bowser, A21A0055
...opinion, we declined to address the plaintiffs’ remaining arguments related to the enforceability of the Arbitration Agreement. West , 360 Ga. App. at 109 (2), 860 S.E.2d 904. Given our holding in Division 1, we now find it necessary to address those arguments. The plaintiffs contend that t......
-
West v. Bowser, A21A0055
...opinion, we declined to address the plaintiffs' remaining arguments related to the enforceability of the Arbitration Agreement. West, 360 Ga. App. at 109(2), 860 S.E.2d 904. Given our holding in Division 1, we now find it necessary to address those arguments. The plaintiffs contend that the......
-
Oldham v. Landrum, A21A1271
..., 361 Ga. App. 877, 864 S.E.2d 189 (2021) (describing a lawsuit brought "against several defendants"); Union Carbide Corp. v. Brannan , 360 Ga. App. 109, 109, 860 S.E.2d 881 (2021) (same). And it stands to reason that the party "against" whom the abusive litigation was brought gets the righ......
-
West v. Bowser, A21A0055
...opinion, we declined to address the plaintiffs' remaining arguments related to the enforceability of the Arbitration Agreement. West, 360 Ga.App. at 109 (2). Given our holding in Division 1, we now find it necessary to address 2 those arguments. The plaintiffs contend that the agreement is ......
-
West v. Bowser, A21A0055
...opinion, we declined to address the plaintiffs’ remaining arguments related to the enforceability of the Arbitration Agreement. West , 360 Ga. App. at 109 (2), 860 S.E.2d 904. Given our holding in Division 1, we now find it necessary to address those arguments. The plaintiffs contend that t......
-
West v. Bowser, A21A0055
...opinion, we declined to address the plaintiffs' remaining arguments related to the enforceability of the Arbitration Agreement. West, 360 Ga. App. at 109(2), 860 S.E.2d 904. Given our holding in Division 1, we now find it necessary to address those arguments. The plaintiffs contend that the......
-
Oldham v. Landrum, A21A1271
..., 361 Ga. App. 877, 864 S.E.2d 189 (2021) (describing a lawsuit brought "against several defendants"); Union Carbide Corp. v. Brannan , 360 Ga. App. 109, 109, 860 S.E.2d 881 (2021) (same). And it stands to reason that the party "against" whom the abusive litigation was brought gets the righ......
-
West v. Bowser, A21A0055
...opinion, we declined to address the plaintiffs' remaining arguments related to the enforceability of the Arbitration Agreement. West, 360 Ga.App. at 109 (2). Given our holding in Division 1, we now find it necessary to address 2 those arguments. The plaintiffs contend that the agreement is ......