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Order Dismissing Claims Reversed by Court of Appeals

December 20, 2005 – Media Coverage
HarrisMartin

WEST PALM BEACH, Fla. -- A Court of Appeals has reversed the dismissal of claims against Union Carbide, ruling that the asbestos defendant failed to timely file a forum motion to dismiss. Phillips v. American Optical Corp., et al., No. 4D04-3493 (Fla. Ct. App., 4th Dist.).

The Florida Court of Appeals for the Fourth District reversed the dismissal of claims on Nov. 23.

On July 16, 2003, Jack Phillips filed a lawsuit against 53 defendants, alleging exposure to asbestos. According to the Court of Appeals opinion, defendant Union Carbide was served with a copy of the lawsuit on Dec. 4 of the same year.

Union Carbide subsequently filed a motion to dismiss based on forum non conveniens, which the trial court granted. The Court of Appeals noted in its reversal of the trial court decision that the motion was filed on May 21, 2004, well after the 60-day requirement for filing forum motions.

'The motion to dismiss for forum non conveniens was not served until May 21, 2004, well outside the 60-day window for filing such a motion,' the Court of Appeals stated. 'As a result, the trial court erred by not denying the motion to dismiss.'

The Court of Appeals relied on Fox v. Union Carbide (910 So. 2d 422 Fla. 4th DCA 2005) in opining that the trial court had erred in granting the motion to dismiss. Subsequently, the Court of Appeals reversed the decision dismissing claims against Union Carbide and remanded for further proceedings.

Counsel for the plaintiff are David A. Jagolinzer and James L. Ferraro of Ferraro & Associates in Miami.

The defendant is represented by Nathan M. Thompson and Evelyn Fletcher Davis of Hawkins Parnell & Young in Atlanta.

Document is Available Call (800) 496-4319 or Search www.harrismartin.com Opinion Ref# ASB-0512-10

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