SUPREME COURT RULES THAT COMMERCIAL FISHERMEN HAD A CAUSE OF ACTION AGAINST A COMPANY WHICH OWNED OR CONTROLLED A PHOSPHOGYPSUM STORAGE AREA FROM WHICH WASTEWATER SPILLED, POLLUTING WATERS OF TAMPA BAY AND REDUCING AVAILABLE SUPPLY OF FISH, WHICH PLAINTIFFS ALLEGED REDUCED THEIR INCOME; COURT FURTHER RULED THAT SUCH CAUSE OF ACTION WAS NOT BARRED BY THE ECONOMIC LOSS RULE
Curd v. Mosaic Fertilizer, 35 Fla. L. Weekly S341 (Fla. June 17, 2010):
The Second District had certified two questions as those of great public importance:
1. DOES FLORIDA RECOGNIZE A COMMON LAW THEORY UNDER WHICH COMMERCIAL FISHERMEN CAN RECOVER FOR ECONOMIC LOSSES PROXIMATELY CAUSED BY THE NEGLIGENT RELEASE OF POLLUTANTS DESPITE THE FACT THAT THE FISHERMEN DO NOT OWN ANY PROPERTY DAMAGED BY THE POLLUTION?
2. DOES THE PRIVATE CAUSE OF ACTION RECOGNIZED IN SECTION 376.313 PERMIT COMMERCIAL FISHERMEN TO RECOVER DAMAGES FOR THEIR LOSS OF INCOME DESPITE THE FACT THAT THE FISHERMEN DO NOT OWN ANY PROPERTY DAMAGED BY THE POLLUTION?
The supreme court answered both questions in the affirmative.
The fishermen plaintiffs had alleged that in the summer of 2004, the Hillsborough County Environmental Protection Commission and the Florida Department of Environmental Protection warned defendant Mosaic that the quantity of wastewater in its storage facility was dangerously close to exceeding the safe storage level and that its dike was three feet narrower than the minimum required width. One month later, the dike gave way and pollutants were spilled into Tampa Bay.
The fishermen filed a complaint containing three counts: Count I alleged statutory liability under §376.313(3); Count II alleged common law strict liability based on damages resulting from Mosaic’s use of its property for a ultra-hazardous activity; and Count III alleged simple negligence.
The supreme court first found that §376.313(3) did allow commercial fishermen to recover damages for the loss of income, despite the fact that the fishermen did not own the property damaged by the pollution. Because the statute (entitled “pollutant discharge prevention and removal”) broadly allows any person to recover for damages suffered as a result of pollution, and because that statute explicitly allows for an individual cause of action for damages caused by the destruction of the environment, the statute does subsume this cause of action.
The statute also allows a private cause of action for damages for a non-negligent discharge of pollution without proof that the defendant caused it. Because the statute enumerates specific defenses like acts of God, acts of war, acts by a governmental entity or omissions or acts by a third party, and does not specifically list the lack of property ownership as a defense, the court found that the defense of not owning property was not a valid one. Since there was nothing in the statutory provisions to prevent commercial fishermen from bringing an action pursuant to Chapter 376, the court held the cause of action was valid.
Importantly, the court also ruled the economic loss rule did not bar the action. The court noted that the economic loss rule in Florida applies in only two situations: (1) where the parties are in contractual privity and one seeks to recover damages in tort for matters arising out of the contract, or (2) where the defendant is a manufacturer/distributor of a defective product which damages itself, but does not cause personal injury or damage to any other property. Because the fishermen’s claims did not fall into either one of those two categories, the economic loss rule did not apply.
The court also rejected the claim that Mosaic did not owe an independent duty of care to protect the fishermen’s purely economic interests. In Florida, the question of duty is linked to the concept of foreseeability. As these fishermen were in the zone of risk, the court found a duty arose because there was a foreseeable risk created by the acts of the defendants. For these reasons, the court found the fishermen had both a statutory and a common law cause of action, and ruled to allow the case to go forward.
A NON-RESIDENT COMMITS A TORTIOUS ACT WITHIN FLORIDA FOR PURPOSES OF §48.193(1)(b) WHEN HE OR SHE ALLEGEDLY MAKES DEFAMATORY STATEMENTS ABOUT A COMPANY WITH ITS PRINCIPLE PLACE OF BUSINESS IN FLORIDA, BY POSTING STATEMENTS ON A WEBSITE, WHERE SUCH WEBSITE POSTS ARE ACCESSIBLE AND ACCESSED IN FLORIDA
Internet Solutions Corp. v. Marshall, 35 Fla. L. Weekly S349 (Fla. June 17, 2010):
Because a woman who posted on her website in Washington made the material accessible to anyone with Internet access worldwide, once the allegedly defamatory material was published in Florida, the defendant committed the tortious act of defamation within Florida for the purposes of Florida’s long-arm statute.
However, the court noted that while it was only addressing the first step of the inquiry regarding personal jurisdiction, the second step is more restrictive, and precludes suit in any situation where the exercise of jurisdiction over a non-resident defendant would violate due process. Because the question of whether due process concerns prevented the exercise of jurisdiction was not before the court, it did not answer it.
THE TRIAL COURT ERRS IN PROCEEDING WITH AN ACTION AFTER A DEFENDANT DIES, UNLESS THERE IS SUBSTITUTION OF THE DEFENDANT’S ESTATE AS THE PARTY
Schaeffler v. Deych, 35 Fla. L. Weekly D1296 (Fla. 4th DCA June 9, 2010):
A woman was injured when a man made a right turn and negligently drove into her as she was walking her bicycle across the street. The case was set for trial on a September 2008 docket. In July, the defendant died from cancer.
Notwithstanding that defense counsel was aware of the defendant’s death, the admission of liability and the agreement that there was no comparative negligence, the case went to trial and resulted in a $1.6 million dollar verdict, and a final judgment against the deceased.
The defense moved for a new trial, and also sought to join the estate as an indispensable party. The defense argued that the trial court erred in proceeding without substituting the estate as a party. The estate was ultimately substituted, and the final judgment was amended to reflect entry of final judgment against the estate.
Pursuant to Rule 1.260(a)(1), when an indispensable party to an action dies, the action abates until the deceased party’s estate or other appropriate legal representative has been substituted. Here, the defendant was the sole defendant and an indispensable party to the action. Because the case proceeded without the estate participating, the court ruled the estate’s due process rights were violated. Even though the estate was “constructively” before the court, and everyone knew the defendant had died, plaintiff argued the estate was indeed constructively before the court. Notwithstanding that this seemed to be a hyper-technical and illogical application of the rule, the violation of due process required a new trial.
ERROR TO ENTER SUMMARY JUDGMENT FOR INSURED IN A PIP CASE WHERE A SECOND AFFIDAVIT WAS FILED AND COULD NOT BE CONSIDERED A REPUDIATION OF THE FIRST AFFIDAVIT
United Automobile Insurance Co. v. Seffar, 35 Fla. L. Weekly D1302 (Fla. 3rd DCA June 9, 2010):
In this PIP case, the physician admitted he had not reviewed any medical records, and said he would be happy to review any further material available on the patient. Subsequently, the doctor received the records and reviewed them and concluded that much of the treatment was unreasonable, unrelated, and medically unnecessary.
The trial court struck the second affidavit, finding that it was a repudiation of the first and invalid.
The Third District reversed. It found that any discrepancy in the second affidavit was not a bald repudiation of the first because the doctor did not have all the records and admitted that fact in his first affidavit. Thus, it was error for the trial court to enter summary judgment in favor of the insured in the face of that affidavit.
APPELLATE COURT LACKED THE DISCRETION TO GRANT A NEW TRIAL BASED ON UNPRESERVED ERROR – ALTHOUGH COUNSEL TOLD JUDGE AT SIDEBAR HE THOUGHT AMENDED VERDICT WAS INCONSISTENT, FLORIDA LAW REQUIRES THERE BE A SPECIFIC REQUEST TO RESUBMIT THE MATTER TO THE JURY – ANY INCONSISTENCY WAS WAIVED WITHOUT SUCH A REQUEST
Barreto v. Wray, 35 Fla. L. Weekly D1307 (Fla. 3rd DCA June 9, 2010):
Florida law requires there be a specific request to resubmit a matter to the jury when there is a perceived inconsistency, and the failure to do so waives it. In this case, the evidence was consistent with the verdict and therefore the final judgment was affirmed.
*Available to handle appellate and trial support matters for attorneys throughout the state.
