06-2593 DAIMLERCHRYSLER V. HURST

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State: Florida

Court: Florida Third District Court

Docket No: 06-2593 DAIMLERCHRYSLER V. HURST

Case Date: 02/07/2007

Preview:Third District Court of Appeal
State of Florida, January Term, A.D. 2007
Opinion filed February 7, 2007. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D06-2593
Lower Tribunal No. 04-24071

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DaimlerChrysler Corporation,
Petitioner, vs.

Beatrice Hurst, as Personal Representative of the Estate of Kenneth Hurst, et al.,
Respondents.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Joseph P. Farina, Chief Judge. Bell & Melamed and Jeffrey M. Bell (Fort Lauderdale), for petitioner. David M. Lipman and Rebecca S. Shull and Marisol Estevez; Jonathan Ruckdeschel (Maryland), for respondents. Ullman, Bursa, Hoffman & Ragano and Daniel S. Green (Tampa); Fowler, White, Boggs & Banker and Tracy Raffles Gunn (Tampa) for Florida Defense Lawyers Association, as amicus curiae.

Shook, Hardy & Bacon and Frank Cruz-Alvarez for The Associated Industries of Florida, American Insurance Association, Chamber of Commerce of the United States of America, American Tort Reform Association, American Chemistry Council, and National Association of Manufacturers, as amicus curiae. Before WELLS, SUAREZ, and ROTHENBERG, JJ. ROTHENBERG, Judge. The defendant, DaimlerChrysler Corporation ("DCC"), sought dismissal in the trial court of the plaintiffs' asbestos claim based upon the plaintiffs' failure to satisfy the "prima facie" requirement under section 774.204(3) of the Asbestos and Silica Compensation Fairness Act ("the Act"). motion, finding section 774.201, et seq., The trial court denied DCC's Florida Statutes (2005),

"unconstitutionally retroactive as applied" to the plaintiffs, Beatrice Hurst, as Personal Representative of the Estate of Kenneth Hurst, et al. (collectively referred to as "the plaintiff"), thereby relieving the plaintiff's compliance with the requirements of the Act. DCC petitions this court for a writ of certiorari, seeking quashal of the denial of its motion to dismiss and the trial court's findings regarding the constitutionality of the Act. We grant DCC's petition, quash the order under review, and remand for further proceedings. PROCEDURAL HISTORY In August 2004, Kenneth Hurst ("Mr. Hurst") was diagnosed with lung cancer. Although Mr. Hurst was previously a smoker, he had not smoked

cigarettes for approximately thirteen years prior to the diagnosis of his lung cancer. 2

In November 2004, Mr. Hurst filed suit against DCC and other defendants, alleging that he was exposed to asbestos and the exposure to asbestos caused his lung cancer. In April 2005, Mr. Hurst died of lung cancer. Thereafter, Mr. Hurst's wife, Beatrice Hurst, as Personal Representative of the Estate of Kenneth Hurst, et al., was substituted as the plaintiff. Section 774.204(3) of the Act provides that "[a] person who is a smoker may not file or maintain a civil action alleging an asbestos claim which is based upon cancer of the lung, larynx, pharynx, or esophagus in the absence of a prima facie showing that includes all of the following requirements: . . . ." (emphasis added). 1 DCC moved to dismiss the lawsuit based upon the plaintiff's

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The requirements listed under section 774.204(3), Florida Statutes (2005), are as follows: (a) A diagnosis by a qualified physician who is board certified in pathology, pulmonary medicine, or oncology, as appropriate for the type of cancer claimed, of a primary cancer of the lung, larynx, pharynx, or esophagus, and that exposure to asbestos was a substantial contributing factor to the condition. (b) Evidence sufficient to demonstrate that at least 10 years have elapsed between the date of first exposure to asbestos and the date of diagnosis of the cancer. (c) Radiological or pathological evidence of asbestosis or diffuse pleural thickening or a qualified physician's diagnosis of asbestosis based on a chest X ray graded by a certified B-reader as at least 1/0 on the ILO scale and high-resolution computed tomography supporting the diagnosis of asbestosis to a reasonable degree of medical certainty. (d) Evidence of the exposed person's substantial occupational exposure to asbestos. If a plaintiff files a civil action alleging an 3

failure to provide evidence satisfying the "prima facie" showing under this section of the Act. At the hearing on DCC's motion, the plaintiff conceded that she could not satisfy the Act's prima facie showing, and argued that the Act's retroactive application to her claim violated her due process rights and was, therefore, unconstitutional. The trial court found that the plaintiff had a "vested right which cannot be altered by legislation like the instant Act." The trial court, therefore, concluded that "the Act is unconstitutionally retroactive as applied to the [plaintiff]" and asbestos-related claim based on cancer of the lung, larynx, pharynx, or esophagus, and that plaintiff alleges that his or her exposure to asbestos was the result of extended contact with another exposed person who, if the civil action had been filed by the other exposed person, would have met the substantial occupational exposure requirement of this subsection, and the plaintiff alleges that he or she had extended contact with the exposed person during the time period in which that exposed person met the substantial occupational exposure requirement of this subsection, the plaintiff has satisfied the requirements of this paragraph. The plaintiff in such a civil action must individually satisfy the requirements of this subsection. (e) If the exposed person is deceased, the qualified physician, or someone working under the direct supervision and control of a qualified physician, may obtain the evidence required in paragraphs (b) and (d) from the person most knowledgeable about the alleged exposures that form the basis of the asbestos claim. (f) A conclusion by a qualified physician that the exposed person's medical findings and impairment were not more probably the result of causes other than the asbestos exposure revealed by the exposed person's employment and medical history. A conclusion that the medical findings and impairment are "consistent with" or "compatible with" exposure to asbestos does not meet the requirements of this subsection.

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denied DCC's motion to dismiss. In its petition for writ of certiorari, DCC does not assert that the trial court failed to afford it procedural due process. Thus, we must determine whether the trial court departed from the essential requirements of law in denying DCC's motion to dismiss. Allstate Ins. Co. v. Kaklamanos, 843 So. 2d 885, 889 (Fla. 2003)(stating that certiorari review is "limited to those instances where the lower court did not afford procedural due process or departed from the essential requirements of law"). However, "[a] district court should exercise its discretion to grant certiorari review only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice." Kaklamanos, 843 So. 2d at 889 (citing Ivey v. Allstate Ins. Co., 774 So. 2d 679, 682 (Fla. 2000)). Furthermore, validly enacted statutes are presumed constitutional, see Chicago Title Ins. Co. v. Butler, 770 So. 2d 1210, 1214 (Fla. 2000), and the issue of whether a statute is constitutional is a question of law. See Caribbean

Conservation Corp., Inc. v. Fla. Fish & Wildlife Conservation Comm'n, 838 So. 2d 492, 500 (Fla. 2003). DCC contends that the trial court violated clearly established law by finding that the retroactive application of the Act is violative of the plaintiff's due process rights. We agree. As the plaintiff concedes that she cannot satisfy the "prima facie showing" of section 774.204(3), Florida Statutes (2005), we grant the petition,

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quash the order under review, and remand to the trial court for entry of an order granting DCC's motion to dismiss. LEGAL ANALYSIS The Florida Legislature recognized that "exposure to asbestos has created a flood of litigation in state and federal courts that the United States Supreme Court in Ortiz v. Fibreboard Corporation, [527 U.S. 815, 821,] 119 S. Ct. 2295, 2302 (1999), has characterized as an `elephantine mass' of cases that `defies customary judicial administration' . . . ." H.R. 1019, 2005 Leg., Reg. Sess. (Fla. 2005), Ch. 2005-274, at 2563, Laws of Fla. Additionally, the legislature recognized that "the vast majority of asbestos claims are filed by individuals who allege they have been exposed to asbestos and who may have some physical sign of exposure but who suffer no present asbestos-related impairment . . . ." H.R. 1019, 2005 Leg., Reg. Sess. (Fla. 2005), Ch. 2005-274, at 2564, Laws of Fla. Thus, the legislature provided that the Act, which became effective on July 1, 2005,2 applies to all asbestos claims "in which trial has not commenced as of [July 1, 2005]." The stated purpose of the Act is set forth in section 774.202, Florida Statutes (2005), as follows: Purpose. -- It is the purpose of this act to: (1) Give priority to true victims of asbestos and silica, H.R. 1019, 2005 Leg., Reg. Sess. (Fla. 2005), Ch. 2005-274,

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