SIMON‘S TRUCKING, INC. v. CHARLES A. LIEUPO
No. 1D17-2065
First District Court of Appeal State of Florida
April 18, 2018
WOLF, J.
On аppeal from the Circuit Court for Hamilton County. William R. Slaughter, II, Senior Judge.
Appellant, Simon’s Trucking, challenges a judgment entered in favor of Charles Lieupo, appellee, awarding him damages for personal injuries that the jury found he suffered after a tractor-trailer owned by Simon’s Trucking was involved in an accident. Simon’s Trucking argues the case should never have gone to trial because the Florida Supreme Court held that the statutory cause of action created by
I. Facts
Lieupo filed a complaint against Simon’s Trucking, alleging it was strictly liable for injuries he suffered after one of its tractor-trailers was involved in an accident while transporting batteries, spilling battery acid onto the highway. Lieupo alleged he responded to the scene to tow away the truck and came into contact with the battery acid, which caused him serious pеrsonal injuries. He filed his complaint under
Simon’s Trucking argued that Lieupo could not seek recovery under
II. Analysis
The sole issue before this court is whether
We conclude that the supreme court’s decision in Curd v. Mosaic Fertilizer, LLC, 39 So. 3d 1216 (Fla. 2010), precludes personal injury claims from being brought under
A. Framework of Chapter 376
Chаpter 376 regulates the discharge and removal of certain pollutants. The two portions of chapter 376 at issue in this case are the Pollutant Discharge and Control Act, passed in 1970 and codified at
Each act established a private cause оf action to recover damages caused by pollution covered under that act. The 1970 act permits “any person” to bring a cause of action for “damages,” which are defined as “the . . . loss of any rеal or personal property, or . . . destruction of the environment and natural resources, including all living things except human beings.”
The 1983 act, under which appellee brought his cause of action, permits “any person [to] bring[] a cause of action . . . for all damages resulting from . . . pollution” regulated by that act.
B. Curd v. Mosaic Fertilizer, LLC, 39 So. 3d 1216 (Fla. 2010)
The Florida Supreme Court applied the 1970 act’s definition of “damages” to a cause of action brought under the 1983 act in Curd v. Mosaic Fertilizer, LLC, 39 So. 3d 1216, 1220 (Fla. 2010). However, the parties dispute whether this application was dicta, or whether the supreme court intended to hold that this definition of damages applies in all causes of action brought under
In Curd, fishermen brought a cause of action under the 1983 act seeking damages for economic loss they suffered after pollution contaminated the waters where they fished. Id. at 1218. The trial court dismissed their claim because the fishermen lacked an ownership interest in the fish. Id. at 1219. The Second District affirmed that decision, but the supreme court reversed. Id. The supreme court framed the issue before it as “whether the private cause of action recognized in
The court began by explaining, “In reaсhing our conclusion that
The court then stated, “We find that
However, the cоurt then applied the definition of “damages” from the 1970 act, characterizing it as applying to the entirety of chapter 376: “‘Damage,’ as used in chapter 376, is defined as ‘. . . destruction to or loss of any real or personal property . . . or . . . any destruction of the environment and natural resources, including all living things except human beings, as the direct result of the discharge of a pollutant.’” Id. (emphasis added) (quoting
In sum, the Legislature has enacted a far-reaching statutory scheme aimed at remedying, preventing, and removing the discharge of pollutants from Florida’s waters and lands. To effectuate these purposes, the Legislature has provided for private causes of action to any person who can demonstrate damages as defined under the statute. There is nothing in these statutory provisions that would prevent commercial fishermen from bringing an action pursuant tо chapter 376.
Id. (emphasis added).
In a concurrence, Justice Polston agreed with the majority’s conclusion that the fishermen could bring their cause of action under the 1983 act. Id. at 1229-30. However, he disagreed with the majority’s applicаtion of the “restrictive” definition of damages from the 1970 act because “the Legislature specified in
languagе from the 1983 act and concluded that “all damages” included the fishermen’s claims of economic loss. Id.
It is somewhat difficult to determine whether the majority intended its in pari materia application of the definition of damages from the 1970 act to the fishermen’s cause of action brought under the 1983 act to be its holding, or merely dicta.
Lieupo argues that Curd was not a personal injury case, and the court could not have intended to hold that this more restrictive definition of damages should be applied to prohibit all personal injury claims from being brought under the 1983 act. Such a holding would contradict the plain language of
We cannot, however, overlook the fact that the Curd court specifically found the 1970 definition of damages was applicable to the fishermen’s cause of action brought under the 1983 act. A
court’s statement is dicta if it is “not essential to the decision of that court.” State ex rel. Biscayne Kennel Club v. Bd. of Bus. Regulation of Dep’t of Bus. Regulation, 276 So. 2d 823, 826 (Fla. 1973). “When a court makes a pronouncement of law that is ultimately immaterial to the outcome of the case, it cannot be said to be part of the holding in the case.” Lewis v. State, 34 So. 3d 183, 186 (Fla. 1st DCA 2010).
In order for the Curd court to answer the central question in that case of whether the fishermen’s claims could be brought under the 1983 act, the court first had to determine what scope of damages was available under thаt act. The court found this scope of damages was defined by the 1970 act. The majority was clearly aware that the 1970 act’s definition of damages stated that it was only applicable to that act, because Justice Polston pointed it out in his concurrence. Justice Polston also suggested that the majority could have proceeded by solely considering the plain meaning of the “all damages” language from thе 1983 act. However, the majority did not follow that approach and instead found that the 1970 act’s definition of damages was applicable to causes of action brought under the 1983 act. Thus, we cannot find that application was dicta.
As such, we are required to apply the 1970 act’s definition of damages here, which precludes appellee’s cause of action for personal injuries. However, beсause it is difficult to discern whether the Curd court actually intended for this definition of damages from the 1970 act to be applied to all causes of action brought under the 1983 act, we certify the following question as one of great public importance:
DOES THE PRIVATE CAUSE OF ACTION CONTAINED IN
SECTION 376.313(3), FLORIDA STATUTES , PERMIT RECOVERY FOR PERSONAL INJURY?
REVERSED; QUESTION CERTIFIED.
ROBERTS and WETHERELL, JJ., concur.
Not final until disposition of any timely and authorized motion under
Jason Gonzalez and Amber Stoner of Shutts & Bowen LLP, Tallahassee, for Appellant.
Frank A. Shepherd of Gray Robinson, P.A., Miami, for Amicus Curiae Florida Justice Reform Institute, in support of Appellant.
Peter D. Webster оf Carlton Fields, Tallahassee; Michael J. Damaso, II, and Jackson W. Adams of Wooten Kimbrough, P.A., Orlando, for Appellee.