Williams v. American Optical Corp.
| Decision Date | 28 May 2008 |
| Docket Number | No. 4D07-153,No. 4D07-146,No. 4D07-407.,No. 4D07-149,No. 4D07-150,No. 4D07-147,No. 4D07-405,No. 4D07-148,No. 4D07-144,No. 4D07-145,No. 4D07-151,No. 4D07-143,No. 4D07-154,4D07-143,4D07-144,4D07-145,4D07-146,4D07-147,4D07-148,4D07-149,4D07-150,4D07-151,4D07-153,4D07-154,4D07-405,4D07-407. |
| Parties | Daniel N. WILLIAMS and Anita Williams; Robert Plummer, as Personal Representative for Wayne Smith; Edward Nixon and Georgia M. Nixon; Peter Ruben Britt and Gloria Britt; Bill R. Martinez; Earl J. Mixon; Charlie M. Pittman and Teola Pittman; Merrell A. Ponder Jr. and Kay Ponder; Floyd H. Perry; Russel Thomas Fink; Lewis Martin; Walter R. Spiewak and Betty J. Spiewak, Appellants, v. AMERICAN OPTICAL CORPORATION; Acands, Inc.; AC & S, Inc.; Eastern Refractories, Bird, Inc.; Certain Teed Corporation; Cleaver Brooks; Crane Co.; John Crane, Inc.; Weil-McClain Company; Flowserve Corporation; General Electric Company; Goulds Pumps, Inc.; Hobart Brothers Company; Kelly-Moore Paint Company, Inc.; Lincoln Electric Company; TH Agriculture & Nutrition, LLC.; The Goodyear Tire & Rubber Co.; and Bondex International, Inc., Appellees. |
| Court | Florida District Court of Appeals |
David A. Jagolinzer, James L. Ferraro, and Case A. Dam of The Ferraro Law Firm, Miami, and Joel S. Perwin, P.A., Miami, for appellants.
John H. Pelzer and Robin F. Hazel of Ruden McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, and Michael R. Holt of Rumberger, Kirk & Caldwell, P.A., Miami, for appellees.
Frank Cruz-Alvarez of Shook, Hardy & Bacon, L.L.P., Miami, for Amicus Curiae of the Associated Industries of Florida, American Insurance Association, National Federation of Independent Business Legal Foundation, Chamber of Commerce of the United States of America, American Chemistry Council, and National Association of Manufacturers.
Daniel P. Mitchell of Barr Murman & Tonelli, Tampa, for Amicus Curiae Florida Defense Lawyers Association.
We have cobbled these cases together for decision because all present the same dispositive issue, which we state thus:
Can the Florida Asbestos and Silica Compensation Fairness Act be retroactively applied to prejudice or defeat causes of action already accrued and in litigation?
We hold that the Act cannot constitutionally be so applied and return the cases to the trial court for consistent proceedings.
Litigation in Florida state courts involving asbestos contamination has been considerable and persistent for a number of years. Prompted by that, the Florida Legislature decided to enact the Florida Asbestos and Silica Compensation Fairness Act, which became effective in 2005.1 The Act made significant changes to the cause of action for damages resulting from an exposure to asbestos. The issue we confront involves the nature of those changes.
Before the Act was adopted, all of the plaintiffs in these cases had filed actions for damages based on various degrees of asbestosis — that is, interstitial lung disease resulting from asbestos exposure and pleural thickening. According to plaintiffs, when they filed their lawsuits before the Act's adoption it was not necessary to establish that any malignancy or physical impairment had already resulted from their contraction of the disease asbestosis. Instead, they claim, it was merely necessary for them to show that they had suffered an injury from an asbestos-related disease.
Under the Act, however, a claimant bringing an action for damages from exposure to asbestos must now, as an indispensable element, plead and prove an existing malignancy or actual physical impairment for which asbestos exposure was a substantial contributing factor.2 Plaintiffs' asbestosis claims were dismissed for failing to meet the requirements of the Act. They challenge the Act on the grounds that by this legislation the government of Florida has taken from them a personal right in a cause of action for money damages arising from the exposure to asbestos even if the injury has not yet become malignant or caused any physical impairment.3 We thus briefly survey the powers of State government to adversely affect plaintiffs' cause of action as filed before the adoption of the Act.
Here we confront the personal rights of citizens to acquire, defend and keep their own property free from the claims of government, and to vindicate these rights in a court of law.4 There are various forms of property in which a person may have rights. For most forms, real or personal, tangible or intangible, the government may not take these rights through legislation unless it has a public purpose for such property and pays the owner fair compensation.5
One form of intangible property is a cause of action. This is a right grounded in tort, property or contract law to recover a judgment for money or property from another person whose conduct or activity is deemed by applicable law to have caused the claimant to suffer damage or a loss. This is the form of property involved in these cases. The general rule as to property rights is well stated in McCord v. Smith, 43 So.2d 704, 708-09 (Fla.1949):
43 So.2d at 708-09. When the cause of action accrues it becomes "[a] substantive vested right ... an immediate right of present enjoyment, or a present fixed right of future enjoyment." Clausell v. Hobart Corp., 515 So.2d 1275, 1276 (Fla. 1987) (quoting In re Will of Martell, 457 So.2d 1064, 1067 (Fla. 2d DCA 1984)).
Whether legislation may affect a vested right to a particular cause of action depends on the stage the right has attained when the legislation is enacted. In its earliest stage — before any harm or invasion has occurred — a right to sue is inchoate, a mere prospect. At that stage, it is an expectation that if another person does someday engage in specific conduct or activity causing some injury, and a specific cause of action has then accrued, the person so aggrieved may then be able to bring an action in court to vindicate the claim in money damages.
Florida law is well established that the right to sue on an inchoate cause of action — one that has not yet accrued — is not a vested right because no one has a vested right in the common law, which the Legislature may substantively change prospectively. See § 2.01, Fla. Stat. (2007) (); Clausell v. Hobart Corp., 515 So.2d 1275, 1275-76 (Fla. 1987) () (quoting Duke Power Co. v. Carolina Envir'l Study Group Inc., 438 U.S. 59, 88, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978)); Hart v. Bostwick, 14 Fla. 162, 180 (1872) (); but see Kluger v. White, 281 So.2d 1, 4 (Fla.1973) ().
At the other end of the spectrum is a cause of action that has evolved into a money judgment. Here the right is indeed vested and may not be abrogated by legislation. As the court explained in State Department of Transportation v. Knowles, 402 So.2d 1155 (Fla.1981):
That brings us to the stages between those two extremes. In these stages, an act or event has already occurred affecting a claimant and has been transformed into an accrued right to sue. Suit may not yet have been brought, on the one hand; or suit may have already been brought, on the other hand, but no outcome has been reached in any litigation. As it turns out, both of these stages involve vested rights.
Where a cause of action has accrued but claimant has not yet filed an action for damages when new legislation substantively affecting the cause of action becomes effective, the new statute may not be applied to the cause of action when filed. See Alamo Rent-A-Car Inc. v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994) (). And it logically follows that if a new statute cannot defeat a cause of action that is accrued but not yet filed, it is even more ineffective to defeat an action already filed when it becomes effective. See Rupp v. Bryant, 417 So.2d 658 (Fla.1982) ().6
The question therefore devolves into an inquiry whether plaintiffs are correct in their assertion that before the statute was enacted Florida law recognized a cause of action for damages arising from the disease of asbestosis without any permanent impairment or the...
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