Del. SC sides with employer in asbestos suit

By Jessica M. Karmasek | Jul 24, 2012


DOVER, Del. (Legal Newsline) - The Delaware Supreme Court has dismissed an appeal by the family of an employee who sued a company over the man's alleged asbestos exposure.

In its ruling Thursday, the Court dismissed plaintiffs Elizabeth, Edmond, John and James Plummer's appeal as untimely.

The Plummers had appealed from a New Castle County Superior Court order granting summary judgment in favor of defendant R.T. Vanderbilt Co. Inc.

Edward Plummer, deceased, was an employee at the Avisun/Amoco Plant.

The Plummers sued Vanderbilt and 36 other defendants, alleging that Edward had been exposed to asbestos-containing products during the course of his employment.

Vanderbilt moved to dismiss the Plummers' appeal, arguing that the superior court's June 28, 2011 dismissal order was the final order in the matter.

The company contended that the family's notice of appeal, filed Sept. 6, 2011, was therefore untimely.

Vanderbilt argued in the alternative that if the June 28 order is not the final order, the appeal is interlocutory and any appeal must await entry of a final order.

In response, the Plummers argued that a special master's Aug. 9, 2011 order dismissing nine defendants -- and not the June 28 order -- constituted the final order.

The state's high court, in its 10-page ruling, sided with the company.

It concluded that the June 28 order was the only final order in the case and that no court error contributed to the Plummers' delayed filing of their appeal.

"The June 28 order is clear on its face that it is a final order," Justice Henry duPont Ridgely wrote for the Court.

On top of which, the Court noted that a May 17 letter preceding the dismissal also "clearly notified" the plaintiffs' counsel that the case would be dismissed the following month if no further action was taken.

"If there was any ambiguity as to the May 17 letter or the June 28 order, plaintiffs' counsel could have requested clarification from the Superior Court. Plaintiffs' counsel did not do so," Ridgely wrote.

The Court said the June 28 order was the only final order from which the Plummers could have appealed in the case.

It also noted that the plaintiffs did not show that their failure to file a timely appeal was attributable to court personnel.

"The Plummers argue that nine defendants moving for dismissal evidenced confusion among the parties as to the effect of the June 28 order. But the Superior Court followed its established procedure in asbestos cases by issuing the May 17 letter followed by the June 28 order," Ridgely explained.

"By the time the special master acted on Aug. 9, the Plummers' 30-day window to file an appeal had closed. Thus, even if the Plummers could show error attributable to court personnel in connection with the Aug. 9 order, that error is irrelevant.

"It is the appeal of the final order entered on June 28 that matters, and that appeal is out of time."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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