JOHN KISH and ELIZABETH KISH, vs. Petitioners, SUPREME COURT OF FLORIDA CASE NO. SC06-1523 METROPOLITAN LIFE INSURANCE COMPANY, Respondent. / ON DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT PETITIONERS' AMENDED BRIEF ON JURISDICTION DANIEL F. O'SHEA, Esq. Reyes, O'Shea & Coloca, P.A. 1101 Brickell Avenue Suite 1601 Miami, Florida 33131-3104 305-374-8110 (phone) 305-374-8112 (fax) By DANIEL F. O'SHEA, Esq. Fla. Bar No. 825999
TABLE OF CONTENTS TABLE OF CITATIONS...ii I. STATEMENT OF THE CASE AND FACTS...1 II. SUMMARY OF ARGUMENT...2 III. ARGUMENT......3 IV. CONCLUSION.....10 V. CERTIFICATE OF SERVICE...11 VI. CERTIFICATE OF COMPLIANCE...11 i
TABLE OF CITATIONS Cases Pulmosan Safety Equipment Corporation v. Barnes, 752 So. 2d 556 (Fla. 2000)...1, 2, 3, 4, 8, 9 Kluger v. White, 281 So. 2d 1, 4 (Fla. 1973)...2, 4, 5, 7, 8, 10 Crossley v. State, 596 So. 2d 447, 449 (Fla. 1992)...2 Nielsen v. City of Sarasota, 117 So. 2d 731, 734 (Fla. 1960)...2 Mitchell v. Moore, 786 So. 2d 521 (Fla. 2001)... 3, 4, 6 Diamond v. E.R. Squibb & Sons, Inc., 397 So. 2d 671 (Fla. 1981)...3, 4, 5, 8, 9 Firestone Tire& Rubber Co. v. Acosta, 612 So. 2d 1361 (Fla. 1992)...3, 5 Kush v. Lloyd, 616 So. 2d 415 (Fla. 1992)...4 ii
Agency for Health Care Administration v. Associated Industries of Florida, Inc., 678 So. 2d 1239 (Fla. 1996)...5 Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993)......6 Smith v. Department of Insurance, 507 So. 2d 1080 (Fla. 1987)... 6, 9 Psychiatric Associates v. Siegel, 610 So. 2d 419 (Fla. 1992)...7 Owens Corning Fiberglass Corp. v. Corcoran 679 So. 2d 291 (Fla. 3d DCA 1996)...7, 8 Carr v. Broward County, 541 So. 2d 92 (Fla. 1989)...9 Statutes Florida Statutes section 95.031(2)...1, 3, 5, 7, 10 Other Citations Florida Constitution s Article I, Section 21...6, 7 iii
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I. STATEMENT OF THE CASE AND FACTS The question is whether the statute of repose for fraud, Florida Statutes section 95.031(2), can be constitutionally applied to bar Plaintiff/Petitioner John Kish's latent asbestos injury claim against Defendant/Respondent Metropolitan Life Insurance Company (hereinafter "Met Life") for conspiracy to fraudulently conceal the dangers of asbestos. The district court affirmed the trial court's grant of summary judgment to Defendant Met Life predicated solely "on the basis of the statute of repose for fraud". (A.1-2). In August 2004, the Kishes filed a five-count complaint against twenty-one entities, including Defendant Met Life, for injuries allegedly sustained from exposure to asbestos. (A.2). According to the district court, the Kishs' fraud claim as to Defendant Met Life was predicated upon its failure to divulge, at the request of its co-conspirator policy holders, the results of industrial hygiene surveys and studies it had performed regarding the dangers of exposure to asbestos. (A.2). In upholding the constitutionality of the statute of repose for fraud the district court relied, in large part, upon a number of medical malpractice cases interpreting the medical malpractice statute of repose. (see A.6-9). The district court found this line of decisions more persuasive than this Court's decision in Pulmosan Safety Equipment Corporation v. Barnes, 752 So. 2d 556 (Fla. 2000), and other 1
cases construing the products repose, which have held that application of the products repose in the context of a latent injury claim would unconstitutionally deny the claimant access to courts in violation of the Florida Constitution. The district court also held that the Plaintiffs' constitutional right of access to courts was not sufficiently impaired because of the availability of other defendants in the case and that the test for analyzing an alleged access to courts violation, announced by this Court in Kluger v. White, 281 So. 2d 1, 4 (Fla. 1973), was satisfied. (A.3-4). The reasoning of the district court will be discussed more fully in the argument section. II. SUMMARY OF ARGUMENT The reasoning of Barnes, 752 So. 2d 556 (Fla. 2000) construing the products repose is equally applicable to this latent injury asbestos cause of action predicated upon fraud. The district court therefore misapplied Barnes to indistinguishable facts, which is a recognized basis for conflict jurisdiction. 1 The district court also adopts a test for alleged access to courts violations, different from the test set forth by 1 Although the district court attempted to distinguish Barnes, the jurisdictional question is whether it successfully did so. The operative question is not simply whether the district court announced a conflicting rule of law, but also whether it applied a rule of law involving indistinguishable facts to reach a different outcome. See Crossley v. State, 596 So. 2d 447, 449 (Fla. 1992); Nielsen v. City of Sarasota, 117 So. 2d 731, 734 (Fla. 1960). 2
this Court in Kluger. The district court further erred in failing to ascertain the extent to which the application of the statute of repose in question "obstructs or infringes" upon Plaintiffs' right of access to courts as required by this Court in Mitchell v. Moore, 786 So. 2d 521 (Fla. 2001). III. ARGUMENT THE DISTRICT COURT'S DECISION CONFLICTS WITH BARNES AND ADOPTS A TEST IN CONFLICT WITH KLUGER The issue presented herein is indistinguishable from the issue presented in Barnes, which held that the former product liability statute of repose could not constitutionally be applied to bar plaintiff's latent injury claim which did not manifest until after expiration of the repose period. The statute of repose for fraud, originally found at Florida Statutes section 95.031(2), was enacted in 1974 and, for purposes relevant to this action, has remained unchanged ever since. (hereinafter referred to as "1974 fraud repose"). The original statute of repose for products was enacted during the same legislative session, incorporated into the same statute, same section and same subsection as the 1974 fraud repose. (hereinafter referred to as "1974 products repose"). 2 In Barnes, this Court had occasion to re-consider the latent injury exception first announced by this Court in 2 The 1974 products repose was repealed by the Legislature in 1986. However, pursuant to this Court's holding in Firestone Tire & Rubber Co. v. Acosta, 612 So. 2d 1361 (Fla. 1992) it remained applicable in cases where the defendant had a "vested right" not to be sued where the repose period had expired prior to its repeal. 3
Diamond v. E.R. Squibb & Sons, Inc., 397 So. 2d 671 (Fla. 1981). In Barnes this Court reiterated that the underlying rationale for the latent injury exception to a statute of repose is one of constitutional magnitude. 3 Though Diamond and Barnes concerned the 1974 products repose, the issue presented herein is indistinguishable from the issue presented in Diamond, Barnes and other cases construing the 1974 products repose. The latent injury exception is, in part, predicated upon application of this Court's test announced in Kluger, for "determining compliance with the access to courts clause when the Legislature enacts provisions which appear to restrict the right". See Mitchell at 526. In order to satisfy the Kluger test: 1. The Legislature must have provided a reasonable alternative to protect such right; or, 2. The Legislature must have shown an "overpowering public necessity" for the statute at issue and must further have shown that no alternative means of meeting such public necessity was available. Kluger at 4. In improperly applying the Kluger test, as described more fully below, the district court has, in essence, set forth a new test to be utilized in determining whether a statute violates a claimant's right of access to courts, which is far less stringent and affords far less 3 Statutes of repose are always subject to constitutional attack under the access to courts provision of the Florida Constitution. See Kush v. Lloyd, 616 So. 2d 415 (Fla. 1992). 4
protection, and accordingly, conflicts with Kluger. The district court sought to distinguish the Plaintiffs' conspiracy to commit fraud claims herein from the product claims in Diamond and Barnes by stating: First, although the Legislature, through section 95.031(2)(a), has foreclosed the Kishs' stale fraud claim, it has provided them with a reasonable alternative remedy via the Diamond exception, now codified in sections 95.031(2)(c) and (d) of the Florida Statutes. (A.4). In essence holding that the Legislature had provided a "reasonable alternative" which satisfied the Kluger test. Unfortunately, the district court's reasoning and holding are both flawed. First of all, the exception adopted by the Legislature in 1999 when re-enacting a products repose, is not a "latent injury" exception at all, but instead, like the 1999 products repose itself, is predicated upon the "useful safe life" policy. See Florida Statutes section 95.031(2)(c). Secondly, even if the Legislature had wanted to craft an "alternative remedy" for the Plaintiffs' fraud claims herein, 25 years after the 1974 fraud repose was enacted, the Legislature would have been powerless to do so. (A.4). In Firestone Tire & Rubber Company v. Acosta, 612 So. 2d 1361 (Fla. 1992), this Court held that a defendant has a "vested right" in application of a statute of repose that has run and barred an action. Accordingly, any statute which limits or abolishes a "vested" repose defense would be 5
unconstitutional as violative of the due process clause of the Florida Constitution. Agency for Health Care Administration v. Associated Industries of Florida, Inc., 678 So. 2d 1239 (Fla. 1996). Despite the district court's statement to the contrary, but for the Diamond exception, any and all of the Plaintiffs' claims, whether for products liability and/or fraud, would be barred by the 1974 products repose and 1974 fraud repose, notwithstanding any "exception" enacted by the Legislature in 1999. The district court further concluded that since the Plaintiffs had claims against a number of other defendants the Plaintiffs' right of access to courts was not violated. (A.4). Through its reasoning the district court has crafted a new exception to the Florida Constitution's Article I, Section 21, guarantee of access to courts. Pursuant to the district court's holding a plaintiff may not challenge a statute which completely precludes his cause of action against one defendant if in fact such plaintiff retains some access to courts against some other defendant(s). (A.4). Such a test has never been utilized by any appellate court of this state. Florida is now a pure comparative fault state. Accordingly, each entity is liable according to its degree of fault and not according to the doctrine of joint and several liability. Even non-parties may be placed upon the verdict form and reduce a plaintiff's potential recovery. Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). In Mitchell, this Court 6
stated: A violation (of Article I, Section 21 of the Florida Constitution) occurs if the statute obstructs or infringes that right to any significant degree. Clearly, application of the statute of repose at issue herein completely and totally "obstructs" and "infringes" upon Plaintiffs' claims against Met Life. In Smith v. Department of Insurance, 507 So. 2d 1080 (Fla. 1987) this Court held as unconstitutionally violative of access to courts a statute which placed a $450,000 cap on a plaintiff's potential recovery of non-economic damages. Similarly, the statute in question may limit Plaintiffs' recovery herein if fault is assigned at trial by the jury to Defendant Met Life. Pursuant to the reasoning of the district court the last defendant remaining, in a multi-party case, may always assert that the plaintiff has had "enough" access to courts such that Article I, Section 21 of the Florida Constitution is not violated. Clearly, this is not the test which has been utilized by this Court. The district court also sought to uphold the constitutionality of the 1974 fraud repose as applied herein by describing what it termed the "public necessity that justifies cutting off a stale fraud claim". (A.5). Never once did the district court assert that the Legislature had set forth an "overwhelming public necessity" as heretofore required by Kluger. Never once did the district court assert that the Legislature had shown that no alternative method of 7
meeting such public necessity existed. See Psychiatric Associates v. Siegel, 610 So. 2d 419 (Fla. 1992). In Owens Corning Fiberglass Corp. v. Corcoran 679 So. 2d 291 (Fla. 3d DCA 1996), the Third District in analyzing the legislative history of Section 95.031(2), Florida Statutes, held that a "public necessity was never enunciated, demonstrated, or contemplated" for application of "section 95.031(2) to a cause such as this one (latent disease claim)". While the Third District in Owens Corning Fiberglass Corp. v. Corcoran 679 So. 2d 291 (Fla. 3d DCA 1996) was concerned with the products prong of the 1974 repose statute, the legislative history for the fraud prong of the 1974 repose statute was no different. Therefore, if there was no overpowering public necessity "enunciated, demonstrated, or contemplated" in the statute or its legislative history for the product prong of the statute there can be no overpowering public necessity for the fraud prong of the 1974 repose statute which remains unchanged, in all pertinent respects, until today. The reasoning and holding in Corcoran was approved by this Court in Barnes. 4 The district court "divines" the Legislature's purpose and intent in enacting the statute of repose at issue in 1974 through references to a review article written by a Thomas Bevis in 1972, which the district court asserts the 1974 4 In Corcoran, a total of 12 entities were originally sued, though only Owens-Corning remained at the time of trial. 8
Legislature was "well aware" of, through references to post 1974 cases construing the medical malpractice statute of repose, and through the Legislature's failure to "import a Diamond exception" into the fraud statute of repose. (A.7-8). In "divining" the Legislature's purpose and intent, never once does the district court reference the wording of the statute at issue nor its legislative history. First of all, simple "awareness" has never been equated to a legislative showing of an "overpowering public necessity" as required by Kluger. If it did, then the Tallahassee Democrat, which presumably most legislators read, would by virtue of simple "awareness", become part of the legislative history of every statute. As for the district court's reliance upon medical malpractice cases, this Court considered a similar question certified to it by the First District in Barnes: Is the exception established in Diamond v. E.R. Squibb & Sons, Inc., 397 So. 2d 671 (Fla. 1981), still viable in view of the Court's recent decisions holding the medical malpractice statute of repose constitutional? This Court considered and rejected reliance on precedent construing the medical malpractice statute of repose, when considering the 1974 products repose, for the same reason this Court should reject reliance on such precedent herein. Medical malpractice cases are different for the simple reason that the medical malpractice statute of repose, unlike the repose statute at issue herein, was grounded on an "overwhelming 9
public necessity" as set forth by the Legislature. Carr v. Broward County, 541 So. 2d 92 (Fla. 1989). The possible "rationales" for a statute of repose for fraud, as described by the district court in its opinion, are also insufficient to satisfy the requirement that the Legislature itself establish, announce and show, at time of enactment, an "overwhelming public necessity" for the statute at issue. 5 (see A.7). As recognized by this Court in Smith at 1089: Rationality only becomes relevant if the Legislature provides an alternative remedy or abrogates or restricts the right based on a showing of overpowering public necessity and that no alternative method of meeting that necessity exists. With respect to the 1974 fraud repose, rationality is not relevant because the first two requirements of the Kluger test have not been satisfied. Lastly, the failure of the Legislature to act has never been equated with a finding of an announced public policy of an "overwhelming public necessity" for the statute as originally enacted. Especially in instances, such as the case herein, where there is no evidence that the Legislature ever considered the question at issue. 6 5 For example, the district court cites to various "rationales" for the statute such as stale memories, lost witnesses, destroyed documents, etc. 6 The district court's assumption that the Legislature is adverse to what it repeatedly refers to as "stale fraud claims" is belied by the legislative enactment in 1999 of a "fraud" exception to the product repose which has the effect of preserving otherwise "stale product claims" where fraudulent concealment is involved. See 95.031(2)(d). 10
IV. CONCLUSION It is respectfully submitted, that the decision of the district court directly and expressly conflicts with decisions this Court, warranting conflict review to determine the constitutionality of the statute of repose at issue, as applied. 11
Respectfully submitted 1601 Reyes, O'Shea & Coloca, P.A. 1101 Brickell Ave., Suite Miami, Florida 33131 305-374-8110 (phone) 305-374-8112 (fax) By: DANIEL F. O'SHEA Fla. Bar No. 825999 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was mailed to Martin Unger, Esq., 701 Peachtree Road, Orlando, FL 32804, Jeffrey A. Cohen, 100 S.E. 2nd St., Miami, Florida 33131 and Jeffrey E. McFadden 1330 Conn. Ave., NW, Washington, DC 20026 this 21st day of August, 2006. By: DANIEL F. O'SHEA Fla. Bar No. 825999 CERTIFICATE OF COMPLIANCE WITH RULE (9.210(a)(2) I hereby certify that the type style utilized in this brief is 14 point New Times Roman proportionally spaced. By: DANIEL F. O'SHEA Fla. Bar No. 825999
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