Defense Digest 9/08: Florida's Asbestos And Silica Compensation Fairness Act Is Unconstitutional In A Retroactive Application Which Would Prejudice Or Defeat An Accrued Cause Of Action

By Ronald O. Armbrust, Esq.*

Florida - Environmental/Toxic Tort

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.

And, so said the court; at least the Florida Fourth District Court of Appeal did. And, is it not that far into the future when Florida's Supreme Court will have its say too? The preparation of amicus briefs is underway.

On July 1, 2005, the Asbestos and Silica Compensation Fairness Act of 2005 ("the Act") was signed into the law by then Governor Jeb Bush. The stated purpose of this legislation was to unclog courts and relieve defendants of the associated financial burden in defending and litigating claims brought by plaintiffs who are not impaired, while at the same time allowing plaintiffs with substantial asbestos- and silica-related health problems to be compensated.

In the asbestosis arena, as the court stated in Williams, the Act requires that, as an indispensable element of their cause of action, plaintiffs bringing an action based on an alleged exposure to asbestos must "plead and prove" an "actual physical impairment" or an "existing malignancy." Prior to its enactment, plaintiffs brought litigation alleging various degrees of asbestosis, interstitial lung disease caused by asbestos exposure, and pleural thickening. As the plaintiffs/appellants pointed out to the court in Williams, prior to the Act, proof of malignancy or physical impairment was not required. At common law, only an injury from an asbestosis-related disease was needed to be shown.

Having received separate cases on appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Florida, where they had been dismissed for failing to meet the previously identified requirements of the Act, the court in Williams applied the "vested rights rule of law." In this regard, the court stated:

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.

In its opinion, the court explored the "inchoate cause of action," one not accrued with no vested rights attached, and allowed that such cause of action could be substantively changed prospectively. It also reviewed Florida law as to the cause of action which had already resulted in a money judgment and acknowledged that such judgment could not be taken away by legislation. The court then entertained the case between these two extremes. In doing so, it recognized that where a cause of action had accrued, but the plaintiff had not yet filed, a new statute could not be employed as a defense when the cause of action was eventually filed. In its musings, the court related:

And it logically follows that if a new statue 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.

Because the court found that all of these cases had been filed before the Act was adopted, the court reasoned that the plaintiffs' causes of action had accrued prior to the Act becoming effective.

Therefore, on this basis, the court held the Act could not be applied retroactively to bar claims of previously pending litigation.

The court in Williams further concluded, relative to the provisions of the Act under scrutiny:

After giving the entire text of the Act - especially its preamble of purpose - a careful reading in light of these consideration, we conclude that it is not intellectually possible on the basis of any recognized principles to disconnect the several provisions of an Act whose singular purpose is to end litigation by claimants who have been damaged by asbestos exposure without resulting or physical impairment. That purpose pervades every word in the Act. The entire Act is tied to that aim. We are simply forced to acknowledge that as regards these cases of accrued causes of action, after eliminating its very raison d'être, nothing meaningful in the Act could possibly remain.

And, thus, the court so ruled that the Act in its entirety could not constitutionally be applied retroactively to any accrued causes of action.

And does anyone believe that Florida's Supreme Court will find to the contrary?

* Ron is a shareholder in the Fort Lauderdale, Florida, office and can be reached at (954) 847-4920 or roarmbrust@mdwcg.com.