IN THE SUPREME COURT OF THE STATE OF FLORIDA BEATRICE HURST, as Personal Representative of the Estate of KENNETH HURST, Petitioner, v. CASE NO. SC07-722 L.T. No.:04-24071 CA 13 DAIMLERCHRYSLER CORPORATION, Respondent. / ON DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL THIRD DISTRICT OF FLORIDA Case No. 3D06-2593 RESPONDENT S BRIEF ON JURISDICTION JEFFREY M. BELL, ESQ. Florida Bar No.: 374539 BELL & MELAMED, LLC 4901 N.W.17 th Way, Suite 302 Ft. Lauderdale, FL 33309 Telephone: 954/489-2331 Facsimile: 954/489-2332 Attorneys for Respondent DaimlerChrysler Corporation
TABLE OF CONTENTS Page TABLE OF AUTHORITIES...ii STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF ARGUMENT...3 ARGUMENT...4 THE THIRD DISTRICT S DECISION IS NOT IN CONFLICT WITH DECISIONS OF ANY OTHER DISTRICT COURT OF APPEAL OR OF THIS COURT CONCLUSION...10 i
TABLE OF AUTHORITIES Cases Page(s) Aravena v. Miami-Dade County, 928 So. 2d 1163, 1166 (Fla. 2006)...5 Arrow Air, Inc. v. Walsh, 645 So. 2d 422, 424 (Fla. 1994)...6 Clausell v. Hobart Corp., 515 So. 2d 1275 (Fla. 1987)...9 DaimlerChrysler Corp. v. Hurst, 949 So. 2d 279 (Fla. 3d DCA 2007)... passim Dep t of Agriculture and Consumer Services v. Bonanno, 568 So. 2d 24, 30 (Fla. 1990)...6 Dept. of Transp. v. Knowles, 402 So. 2d 1155, 1158 (Fla. 1981)...6 El Portal v. Miami Shores, 362 So.2d 275, 278 (Fla. 1978)...8 Flowserve Corp. v. Bonilla, 2007 WL 981640 at *1 (Fla. 3d DCA April 4, 2007)...5 Hill v. Hill, 778 So.2d 967 (Fla. 2001)(Pariente, J. specially concurring)...5 Homemakers, Inc. v. Gonzales, 400 So. 2d 965 (Fla. 1981)... 9, 10 In re Asbestos Litigation, 933 So. 2d 613, 617 (Fla. 3d DCA 2006)...5 Johns v. Wainwright, 253 So. 2d 873 (Fla. 1971)...6 Mancini v. State, 312 So. 2d 732 (Fla. 1975)...5, 7 Ortiz v. Fibreboard Corp., 119 S.Ct. 2295 (1999)...2 Paley v. Maraj, 910 So.2d 282, 283 (Fla. 4 th DCA 2005)...8 Reaves v. State, 485 So. 2d 829, 830 n. 3 (Fla. 1986)...1 Stanfill v. State, 384 So. 2d 141 (Fla. 1980)...6 Walker & LaBerge, Inc. v. Halligan, 344 So. 2d 239, 243 (Fla. 1977)...8 ii
Yamaha Parts Distributors, Inc. v. Ehrman, 316 So. 2d 557 (Fla. 1975)...6 Other Authorities Asbestos and Silica Compensation Fairness Act, Chapter 774.201... passim H.R. 1019, 2005 Leg., Reg. Sess. (Fla. 2005), Ch. 2005-274, at 2563, Laws of Fla...2 Medical Malpractice Act, Chapter 766...8 iii
STATEMENT OF THE CASE AND FACTS 1 This case addresses whether legislatively mandated retroactive application of section 774.204(3) of the Asbestos and Silica Compensation Fairness Act (the Act ), Chapter 774.201, et. seq., Florida Statutes, violates the due process rights of individuals whose common law tort claims were pending prior to the effective date of the Act. DaimlerChrysler Corp. v. Hurst, 949 So. 2d 279, 285 la. 3d DCA 2007). Specifically, after a thorough and well-reasoned analysis, the Third District determined that a plaintiff does not have a substantive vested right in a common law tort claim, and that section 774.204(3) is procedural in nature and may be applied retroactively to a pending asbestos claim. To date, the Third District is the only Florida appellate court which has addressed these issues. This action was originally brought by Kenneth Hurst, who was diagnosed with lung cancer in August 2004, and died as a result of the disease in April, 2005. DaimlerChrysler, 949 So. 2d at 282. Beatrice Hurst, as personal representative of Mr. Hurst s estate, was substituted as plaintiff following Mr. Hurst s death. Id. Mr. Hurst filed suit against DaimlerChrysler ( DCC ) and others in November 1 Petitioner overlooks that only those facts contained within the four corners of the decision allegedly in conflict are relevant to this Court s decision to accept or reject jurisdiction. Reaves v. State, 485 So. 2d 829, 830 n. 3 (Fla. 1986). Petitioner s Statement of the Case and Facts not only far exceeds the boundaries of the Third District s opinion, but also improperly reargues the merits of the court s ruling. 1
2004, alleging that his lung cancer was caused by exposure to asbestos. Id. DCC moved to dismiss the action based on plaintiff s failure to satisfy the prima facie requirements of section 774.204(3) of the Act. Conceding her inability to satisfy these requirements, plaintiff argued that the statute s retroactive application to her claim violated her due process rights. Id. Determining that plaintiff had a vested right in her pending claim and that retroactive application of the statute was unconstitutional as applied to her cause of action, the trial court denied the motion to dismiss. Id. DCC petitioned the Third District for a writ of certiorari. Focusing on the purpose and intent of the Act, the court acknowledged the legislature s concern that exposure to asbestos has created a flood of litigation in state and federal courts which has been characterized as an elephantine mass of cases that defies customary judicial administration. Id. at 283, citing H.R. 1019, 2005 Leg., Reg. Sess. (Fla. 2005), Ch. 2005-274, at 2563, Laws of Fla., quoting Ortiz v. Fibreboard Corp., 119 S.Ct. 2295 (1999). The court went on to note that the Act is designed to give priority to true victims of asbestos and silica, to fully preserve the rights of those claimants, to enhance the ability of the judicial system to supervise and control asbestos and silica litigation, and to conserve the scarce resources of defendants to allow compensation to cancer victims and others who are physically impaired by asbestos and silica exposure, while securing compensation for others 2
who may suffer physical impairment in the future. 949 So. 2d at 283-84; citing Fla. Stat. 774.202(1)-(4). After analyzing the polic ies underlying the Act, the Third District proceeded to consider whether retroactive application of the statute was unconstitutional as applied to plaintiff s case. Id. Determining that plaintiff had a mere expectation that her common law tort claim would not be altered by legislation, the court rejected the argument that plaintiff had a vested right in her cause of action. 949 So. 2d at 287. The court went on to rule that section 774.204(3) merely affects the means and methods the plaintiff must follow when filing or maintaining an asbestos cause of action and, therefore, is procedural in nature, and may be applied retroactively. Id. The court, accordingly, quashed the trial court s order and remanded for entry of an order granting DaimlerChrysler s motion to dismiss. Id. On March 15, 2007, the Third District denied Petitioner s Motion for Certification. Petitioner now seeks review in this Court based on an alleged express and direct conflict of decisions. SUMMARY OF ARGUMENT The Third District s decision is not in express and direct conflict with other Florida appellate decisions on the same question of law. The Third District is the only Florida appellate court which has addressed the retroactive application of 3
section 774.204(3) of the Act. Petitioner does not raise any legitimate conflict issues in her brief, but rather, reargues the merits of issues she has litigated and lost. Contrary to Petitioner s argument, the Third District s decision does not run afoul of the general presumption against the retroactive application of substantive legislation because (1) the Legislature specifically provided that the Act would have retroactive application; (2) the Act does not impact a vested right ; and (3) the Third District determined that section 774.204(3) is procedural in nature not substantive. The decision does not present a conflict in the law on whether an existing cause of action is a vested right because the Florida courts have consistently held that a plaintiff has no vested right in a common law tort claim, like the asbestos claim at issue. Finally, the decision presents no conflict on the facial constitutionality of the statute because that issue was neither presented to the Third District nor addressed by the court in its decision. This Court, therefore, should deny Petitioners request that the Court invoke its discretionary jurisdiction to hear her case. ARGUMENT THE THIRD DISTRICT S DECISION IS NOT IN CONFLICT WITH DECISIONS OF ANY OTHER DISTRICT COURT OF APPEAL OR OF THIS COURT. I. The Third District is the only appellate court in Florida which has addressed the retroactive application of Section 774.204(3) of the Act. 4
The Third District determined that plaintiff did not have a vested right in her common law asbestos claim, and that section 774.204(3) of the Act is procedural in nature and may be applied retroactively. The Third District is the only Florida appellate court which has addressed these issues. 2 Jurisdiction based on an express and direct conflict on the same question of law, therefore, does not exist. See, e.g., Aravena v. Miami-Dade County, 928 So. 2d 1163, 1166 (Fla. 2006) (one of the tests for conflict jurisdiction is whether the cited holdings are irreconcilable); Mancini v. State, 312 So. 2d 732 (Fla. 1975) (conflict jurisdiction is invoked by the announcement of a rule of law which conflicts with a rule previously announced, or the application of a rule to produce a different result in a case with substantially the same facts); Hill v. Hill, 778 So.2d 967 (Fla. 2001)(Pariente, J. specially concurring)( I reluctantly conclude that this Court does not have a basis to exercise our discretionary jurisdiction because within the four corners of this opinion, there is no express and direct conflict between this case and any other case. ). II. The case does not present a conflict on the issues identified by Petitioner. 3 2 See DaimlerChrysler, 949 So. 2d 279; Flowserve Corp. v. Bonilla, 2007 WL 981640 at *1 (Fla. 3d DCA April 4, 2007) (quashing order holding Act unconstitutional when applied retroactively to pending asbestos claims on the authority of DaimlerChrysler); see also In re Asbestos Litigation, 933 So. 2d 613, 617 (Fla. 3d DCA 2006) (prima facie requirements of statute apply to plaintiffs who had already received trial dates when the statute became effective. ). 3 As will be shown below, Petitioner is not really seeking to correct the existence 5
A. The Third District s decision is not in conflict with Florida decisions prohibiting the retroactive application of substantive legislation. Petitioner argues that the Third District s decision is in conflict with other Florida decisions purportedly prohibiting the retroactive application of substantive legislation. (Jurisdictional Brief at 5-6.) Petitioner s argument is flawed in two principal respects. First, there is no absolute prohibition on the retroactive application of substantive legislation, especially where the legislature expresses its intent that the law apply retrospectively. See, e.g., Dep t of Agriculture and Consumer Services v. Bonanno, 568 So. 2d 24, 30 (Fla. 1990), quoting Dept. of Transp. v. Knowles, 402 So. 2d 1155, 1158 (Fla. 1981) (recognizing that presumption against retroactive abrogation of value is not absolute). 4 Second, the Third District s decision is not in conflict with case law holding that a law affecting substantive rights is presumed to apply prospectively in the of a legitimate conflict in the law. Rather, she is seeking an impermissible second appeal on issues she has litigated and lost. Florida s District Courts are not intended to be intermediate courts, and the decisions of these courts are considered final. See Johns v. Wainwright, 253 So. 2d 873 (Fla. 1971); Stanfill v. State, 384 So. 2d 141 (Fla. 1980). 4 Petitioner s reliance on Arrow Air, Inc. v. Walsh, 645 So. 2d 422, 424 (Fla. 1994) and Yamaha Parts Distributors, Inc. v. Ehrman, 316 So. 2d 557 (Fla. 1975) is unavailing. (Jurisdictional Brief at 7). The statute in Arrow Air, unlike the Act, was not intended by the legislature to apply retroactively. Yamaha Parts, moreover, does not even address the retroactive application of a statute to a tort cause of action, but rather, the impairment of a contract by retroactive application of legislation. 6
absence of clear legislative intent to the contrary, because (i) the legislature clearly intended for the Act to apply retroactively, (ii) the law does not impact a vested right; and (iii) the court has determined that the statute is procedural in nature, not substantive. DaimlerChrysler, 949 So. 2d at 284-87. The Third District s decision is in complete harmony with this general rule. Here, Petitioner concedes that the Third District has determined that the statute is procedural not substantive. As such, the court s decision cannot possibly conflict with decisions prohibiting the retroactive application of substantive legislation. Petitioner argues that she strongly disagree[s] with the Third District s determination that the Act is procedural in nature and may be applied retroactively showing that she is really asking this Court to determine, on a de novo review, that the statute is substantive, not procedural. This Court does not have jurisdiction to resolve whether or not the Third District s determination was correct. See, e.g., Mancini, 312 So. 2d at 732 ( Our jurisdiction cannot be invoked merely because we might disagree with the decision of the district court... ). 5 5 Petitioner improperly rehashes the merits of the Third District s decision throughout her brief, arguing that the statute has a significant retroactive substantive effect because it purportedly abolishes her claim. (Jurisdictional Brief at 9.) The Third District expressly disagreed with Petitioner on this point, stating that the statute does not impair or eliminate the plaintiff s right to sue for asbestos-related injuries but merely sets forth the procedures a plaintiff must follow to file or maintain an asbestos cause of action... DaimlerChrysler, 949 So. 7
Petitioner s argument that, even if the statute is procedural, it has a significant retroactive substantive effect because it purportedly abolishes her claim and therefore cannot be applied retroactively under existing law, is incorrect. (Jurisdictional Brief at 8-9.) The Third District made clear that the statute does not impair or eliminate the plaintiff s right to sue for asbestos-related injuries but merely sets forth the procedures she must follow in filing or maintaining her asbestos cause of action, including her burden of proof as plaintiff. 949 So. 2d at 287. 6 The court s decision is in line with Florida law holding that increasing a plaintiff s burden of proof does not amount to a substantive change in the statutory scheme, and may be applied retroactively. 949 So.2d at 287-88, citing Shaps v. Provident Life & Accident Ins. Co., 826 So. 2d 250, 254 (Fla. 2002) and Stuart L. Stein, P.A. v. Miller Indus., Inc., 564 So. 2d 539, 540 (Fla. 4 th DCA 1990). 7 There is no merit, therefore, to Petitioner s argument that the Third District 2d at 287. Petitioner is not entitled to further review by this Court to revisit her disagreement on this issue. 6 In this regard, the Act s requirements are analogous to the pre-suit requirements of the Medical Malpractice Act, Chapter 766, et. seq., Florida Statutes, which have been held to be procedural, and thus retroactive. See Paley v. Maraj, 910 So.2d 282, 283 (Fla. 4 th DCA 2005); See also, El Portal v. Miami Shores, 362 So.2d 275, 278 (Fla. 1978). 7 This Court likewise held in Walker & LaBerge, Inc. v. Halligan, 344 So. 2d 239, 243 (Fla. 1977) a case cited by Petitioner that statutory burden of proof requirements are procedural in nature and do not abrogate a substantive right. 8
impermissibly applied the statute retroactively because it acts to abolish her claim. B. The Third District s decision does not create a conflict on the issue of vested rights. Petitioner cites a purported conflict in Florida law on the issue of whether an existing cause of action is a vested right as the second basis for conflict jurisdiction. (Jurisdictional Brief at 9-10.) Petitioner suggests that a conflict on this issue arises out of this Court s decision in Clausell v. Hobart Corp., 515 So. 2d 1275 (Fla. 1987) on the one hand, and Homemakers, Inc. v. Gonzales, 400 So. 2d 965 (Fla. 1981) on the other. Petitioner concedes, however, that the Third District s decision is supported by Clausell. (Jurisdictional Brief at 9.) Contrary to Petitioner s argument, Clausell and the Third District s decision in this case are not in conflict with Homemakers because the decisions address entirely different principles of law. In Clausell and in the present case, this Court and the Third District acknowledged that a plaintiff has no vested interest in a common law tort claim. Clausell, 515 So. 2d at 1276, DaimlerChrysler, 949 So. 2d at 286-87. In Homemakers, this Court held that an amendment to the medical malpractice limitations statute did not apply retroactively to revive the plaintiff s time-barred claim absent an express, clear and manifest legislative intent to provide retroactive effect. Homemakers, 400 So. 2d at 967. 9
In the present case, the legislature clearly intended for the statute to apply retroactively, and the presumption against retroactive application, therefore, does not apply. 949 So. 2d at 284. Absent a corresponding expression of legislative intent in Homemakers, this Court determined that the statute did not apply retroactively to revive the plaintiff s claim. 400 So. 2d at 967. The decisions are in harmony and present no express and direct conflict on the issue of whether an existing cause of action is a vested right, as Petitioner erroneously asserts. C. Conflict jurisdiction does not exist on the basis that the statute is facially unconstitutional. Petitioner concludes by asserting that the Act is facially unconstitutional and that the Third District s decision therefore conflicts with settled law. It is clearly improper for Petitioner to assert a conflict on an issue which was never presented to the Third District. The issue before the Third District, as framed by Petitioner in the trial court proceedings, was whether the statute was unconstitutional as applied to her case... DaimlerChrysler, 949 So. 2d at 284. Facial constitutionality was never addressed by the Third District, and the conflict issue raised by Petitioner, therefore, is non-existent. CONCLUSION For the reasons set forth above, Respondent DaimlerChrysler Corporation respectfully requests that this Court deny Petitioner s request that the Court accept discretionary jurisdiction to hear this case. 10
Respectfully submitted, /s Jeffrey M. Bell, Esq. JEFFREY M. BELL, ESQ. Florida Bar No.: 374539 BELL & MELAMED, LLC 4901 N.W.17 th Way, Suite 302 Ft. Lauderdale, FL 33309 Telephone: 954/489-2331 Facsimile: 954/489-2332 Attorneys for Respondent DaimlerChrysler Corporation CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served this 16th day of May, 2007, to counsel listed on the attached service list. /s Jeffrey M. Bell, Esq. Attorney CERTIFICATE OF COMPLIANCE I hereby certify that this brief is in compliance with Rule 9.210, Fla. R. App. P., and is in the required font of Times New Roman 14. /s Jeffrey M. Bell, Esq. Attorney 11