Florida Record

Tuesday, November 12, 2019

Florida Supreme Court ponders if personal injury suits are barred under pollution statutes

State Court

By John Breslin | Oct 23, 2019


TALLAHASSEE -- A question over whether a person can sue for personal injury if adversely affected by the discharge of pollutants is being considered by the justices of the Florida Supreme Court.

The case, Charles Lieupo v Simon's Trucking, began with an accident that caused the spilling of battery acid onto a highway. Oral arguments were heard earlier this year but it is not clear when a decision will be handed down by the state's highest court.

Lieupo, in his initial claim against the company, stated he suffered injuries when he was called out to tow away the truck and came in contact with the acid.

Following a trial in Hamilton County Circuit Court, a jury found the company strictly liable for the injuries suffered and awarded the plaintiff $5.2 million.

However, the First Circuit Court of Appeals, citing Supreme Court precedent from 2010 that seemingly settled the core of the question relating to two statutes and personal injury, overturned the trial verdict and award.

However, the appeals panel added, "We conclude that the Supreme Court’s decision in Curd v. Mosaic Fertilizer...precludes personal injury claims from being brought...but we certify a question of great public importance asking the (Supreme) court to clarify this issue."

At the core of the discussion are two statutes, the 1970 Pollutant Discharge and Control Act,  which addressed pollution in coastal waters and adjacent land, and the Water Quality Assurance Act of 1983 addressing pollution to surface and ground waters.

Those opposing the petitioner's position - that, in fact, the appeals court ruling "expressly and directly conflicts" with the Curd decision - believe it is clear that the acts in question bar any claim for personal injury following discharge of pollutants.

"The legislature did not expressly create a cause of action for personal injuries under the subject statute," according to an amicus - friend of the court - brief filed with the Supreme Court filed by the Florida Defense Lawyers' Association (FDLA).

"It would be improper for this court to judicially create one," wrote attorneys Kansas R. Gooden of Boyd & Jenerette, and Andrew Bolin of Bolin Law Group for the FDLA.

The authors also played down the idea that this was a case of great public importance, characterizing it as an isolated claim for damages under a particular statute and one that should have been doomed because of the Supreme Court's previous interpretation of the law.

William Large of the Florida Justice Reform Institute believes if the state Supreme Court should rule for the petitioner it will open the doors to personal injury cases for administrative violations, and actions not confined to the discharge of pollutants.

"I believe this is significant because what is happening is that the plaintiff is trying to use an administrative violation as a basis for a personal injury," Large said. "I hope the Florida Supreme Court upholds the appeals court opinion. An administrative violation cannot form the basis of a personal injury. If the Supreme Court comes down on the side of the petitioner you will see more lawsuits [using administrative violations to form the basis of suits]."

However, the fact the appeals court, although siding with the defendant, believes it needed further advice and guidance suggests there remains some ambiguity in the wording of the statutes under scrutiny, particularly the definition of damages.

The Supreme Court, in the 2010 Curd decision, relied heavily on what seems to be the clearer definition of damages contained in the 1970 act. But Lieupo took his action under the 1983 law.

The 1970 act permits “any person” to bring a cause of action for “damages,” which are defined as “the ...  loss of any real or personal property, or ... destruction of the environment and natural resources, including all living things except human beings."

But the 1983 act permits “any person [to bring] a cause of action . . . for all damages resulting from . . . pollution." Damages is not explicitly defined.

The FDLA, in its brief to the Supreme Court, argued that, after bringing together the "closely related statutes that regulate environmental discharge and contamination," it must be concluded that the bar on personal injury damages is "well-founded, provides no avenue for alternate ruling, and precludes the petitioner’s argument that an alternative conclusion could be reached."

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