Fischer v. Metcalf

• Decision Date: 18 April 1989
• Docket Number: No. 86-1366,86-1366
• Citation: 543 So.2d 785,14 Fla. L. Weekly 994
• Parties: 14 Fla. L. Weekly 994 S.M. FISCHER, A.M. Fischer, Appellants, v. G.W. METCALF, M.D., Appellee.
• Court: Florida District Court of Appeals

Page 785

543 So.2d 785

14 Fla. L. Weekly 994

S.M. FISCHER, A.M. Fischer, Appellants, v. G.W. METCALF, M.D., Appellee.

No. 86-1366.

District Court of Appeal of Florida,

Third District.

April 18, 1989.

David W. Verizzo, Miami, for appellants.

Lee, Schulte, Murphy & Coe, Coral Gables, for appellee.

Before SCHWARTZ, C.J., and BARKDULL, HUBBART, NESBITT, BASKIN, FERGUSON and JORGENSON, JJ.

ON REHEARING EN BANC

JORGENSON, Judge.

The defendant, Dr. George W. Metcalf, filed a motion for rehearing of the opinion of this court. The panel opinion reversed the trial court's order of dismissal. This court, on its own motion, granted rehearing en banc pursuant to Florida Rule of Appellate Procedure 9.331(c) on the ground that the case is of exceptional importance. We requested supplemental briefs from the parties on whether Rosenberg v. Ryder Leasing, Inc., 168 So.2d 678 (Fla. 3d DCA 1964), should be overruled. The panel opinion filed in this case on December 15, 1987, is withdrawn, and the following opinion is substituted in lieu thereof.

The minor daughters of G.R. Fischer, by and through their mother and next friend, brought an action against their father and his psychiatrist, Dr. George W. Metcalf. The children alleged, inter alia, that Dr. Metcalf knew or should have known that his patient, G.R. Fischer, physically and mentally abused his daughters; that Dr. Metcalf, in violation of the child abuse reporting provisions of section 827.07(3), Florida Statutes (1979), failed to report his knowledge to the Department of Health and Rehabilitative Services (HRS); and that, as a result of this omission, the children suffered physical and emotional injuries. Dr. Metcalf filed a motion to dismiss for failure to state a cause of action. The trial court, after hearing argument, granted the motion and entered an order of dismissal. One of the minor daughters, S.M. Fischer, appealed. We affirm the trial court's order based upon our holding that Florida's Abuse of Children or Disabled Persons Law, Chapter 827, Florida Statutes, does not provide a private right of action for violation of a statutory duty to report an alleged abuse. ¹

Section 827.07(3) requires that reports of known or suspected child abuse or neglect be referred to the Department of Health and Rehabilitative Services as follows:

(3) Any person, including, but not limited to, any:

(a) Physician, osteopath, medical examiner, chiropractor, nurse, or hospital personnel engaged in the admission, examination, care, or treatment of persons;

(b) Health or mental health professional other than one listed in paragraph (a);

(c) Practitioner who relies solely on spiritual means for healing;

(d) School teacher or other school official or personnel;

(e) Social worker, day care center worker, or other professional child care foster care, residential, or institutional worker; or

(f) Law enforcement officer,

who knows, or has reasonable cause to suspect, that a child is an abused or neglected child shall report such knowledge or suspicion to the department in the manner prescribed in subsection (9).

Section 827.07(18) provides a penalty for failure to report:

(18)(a) Any person required by this section to report known or suspected child abuse or neglect who knowingly and willfully fails to do so, or who knowingly and willfully prevents another person from doing so, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Section 827.07 is a penal statute; it "imposes punishment for an offense committed against the state and its term includes all statutes which command or prohibit acts and establishes penalties for their violations to be recovered for the purpose of enforcing obedience to the law and punishing its violation." Dotty v. State, 197 So.2d 315 (Fla. 4th DCA 1967). Laws which are penal in nature are to be strictly construed in favor of the individual against whom a penalty is to be imposed. Id. In construing a criminal statute, "nothing that is not clearly and intelligently described in [a statute's] very words, as well as manifestly intended by the Legislature, is to be considered as included within its terms." Earnest v. State, 351 So.2d 957 (Fla.1977).

Chapter 827 makes no express provision for civil liability. Our threshold inquiry, therefore, concerns the appropriate test to use in deciding whether a cause of action should be judicially implied. This court previously has followed common-law tradition and set forth a relatively simple test in Rosenberg v. Ryder Leasing, Inc., 168 So.2d 678 (Fla. 3d DCA 1964). Rosenberg provided that, where a penal statute imposes a duty to benefit a class of individuals, a right of action accrues to a class member injured through breach of the duty. Having once ascertained the existence of a special class and plaintiff's membership therein, we reasoned that "the cause of action arises by virtue of the duty created by the statute." Id. at 680. The Rosenberg test comported with the test set out in Texas & Pacific R. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed. 874, 877 (1916). "[W]here a statute enacts or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary to the said law." (Citations omitted.)

More than a half-century after Rigsby was decided, the Supreme Court modified its approach in determining whether a private remedy should be implied in a statute not expressly providing one. As will be seen, infra, we now alter our own approach. In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Court set forth four criteria that focused on discerning the intent of Congress in enacting the statute under review. Three of the four factors enumerated in Cort are germane in a state court setting. These are:

(1) whether the plaintiff is one of the class for whose especial benefit the statute was enacted;

(2) whether there is any indication, either explicit or implicit, of a legislative intent to create or deny such a remedy;

(3) whether judicial implication is consistent with the underlying purposes of the legislative scheme[.]

422 U.S. at 78, 95 S.Ct. at 2088, 45 L.Ed.2d at 36 (emphasis in the original). ² Referring to these criteria, the Court observed that increasingly complex federal legislation, coupled with a much higher volume of federal litigation, "strongly supported the desirability of a more careful scrutiny of legislative intent than Rigsby had required." Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 377, 102 S.Ct. 1825, 1838, 72 L.Ed.2d 182, 200 (1982). Although not expressly overruled, all that survives of Rigsby is reflected in the first of the Cort factors, that is, the necessity of establishing plaintiff's status as "one of the class for whose especial benefit the statute was enacted."

While Cort and Curran are not binding upon us, the Court's rationale is compelling. Legislation in Florida has become increasingly comprehensive in recent years, and Florida courts bear an ever-greater burden of ascertaining legislative intent when it is not otherwise clear. Within this contemporary context, we find the Cort analysis is a more incisive aid in determining legislative intent. Mindful that "[i]t is a fundamental rule of statutory construction that legislative intent is the polestar by which the court must be guided....," State v. Webb, 398 So.2d 820, 824 (Fla.1981), we adopt the implication doctrine articulated in Cort. Accordingly, we recede from Rosenberg to the extent that it holds the "class benefited" factor to be the sole determinative in implying a private right of action for violation of a penal statute. Our decision to recede will not undermine prior case law in this district. In our more recent opinions, we have not strictly applied the Rosenberg test but have incorporated the substance of the Cort factors into our analyses. See Bass v. Morgan, Lewis & Bockius, 516 So.2d 1011 (Fla. 3d DCA 1987) (court looked to additional factors of statutory history and intendment of extortion statute to hold no civil cause of action for violation of statute creating crime of extortion), rev. denied, 525 So.2d 876 (Fla.1988); Lavis Plumbing Servs. v. Johnson, 515 So.2d 296 (Fla. 3d DCA 1987) (court reviewed purpose of statute, subsequent history, and scrutinized legislative intent in determining that law prohibiting impersonation of an officer did not impose duty for benefit of special class and thus did not give rise to cause of action for civil liability); Tourismart of America, Inc. v. Gonzalez, 498 So.2d 469 (Fla. 3d DCA 1986); Perdomo v. Jackson Memorial Hosp., 443 So.2d 298 (Fla. 3d DCA 1983); Roger Rankin Enters., Inc. v. Green, 433 So.2d 1248 (Fla. 3d DCA 1983) (Pearson, J., specially concurring).

In his dissent in Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), Justice Powell noted that in the first four years after the Cort decision no fewer than twenty decisions by the circuit courts had implied private actions from federal statutes. This suggests that application of the Cort doctrine will not--nor should it--operate to close the courthouse doors to litigants seeking private redress for violations of penal statutes. At the same time, there is merit in Justice Powell's criticism that Cort permits the judiciary to assume policymaking authority vested in the legislature, thereby inviting the legislature

to avoid resolution of the often controversial question whether a new regulatory statute should be enforced through private litigation. Rather than confronting the hard political choices involved, Congress is encouraged to shirk its constitutional obligation and leave the issue to the courts to decide. When this happens, the legislative process with its public scrutiny and participation has been bypassed, with attendant...