MIAMI - Flowserve Corp. has petitioned a Florida appeals court for writ of certiorari, arguing that a trial court's denial of its motion to dismiss a plaintiff's asbestos claims is erroneous because the plaintiff's claims fail under the state's Asbestos and Silica Compensation Fairness Act. Flowserve Corp. v. Bonilla, et al. No. n/a (Fla. Ct. App., 3rd Dist.)

Flowserve petitioned the Florida's 3rd Circuit Court of Appeals on Sept. 6, seeking to reverse the Dade County Circuit Court's Aug. 7 order denying its motion to dismiss Thomas J. Bonilla's claims. In issuing that order, the Circuit Court ruled that retroactive application of the Act is unconstitutional.

'Certiorari relief is appropriate here because the trial court's order violates clearly established law and fails to follow the dictates of [a] constitutionality valid statute,' Flowserve argues. '[T]he trial court's refusal to apply the Asbestos and Silica Compensation Fairness Act to a pending case despite the Legislature's clear directive contravenes clearly established law on vested rights, application of procedural statutes to pending cases, and the necessity of considering the public interests identified by the Legislature in enacting a statute.'

Flowserve moved to dismiss Thomas and Ana Bonilla's claims for an unspecified asbestos-related disease, saying that the plaintiff failed to comply with the ASCFA. Bonilla opposed the motion, arguing that retroactive application of the Act would 'unconstitutionally abrogate [his] vested rights in the claims underlying [his] action.'

The trial court ruled that the Act 'infringed upon Plaintiff's vested rights be requiring [him] to 'provide specific prima facie evidence that exposure to asbestos was a 'substantial contributing factor' to Mr. Bonilla's medical condition.''

In its petition, Flowserve maintains that in enacting the ASCFA, the Legislature intended for it to be applied to cases pending at the time of the enactment. In ruling that the Act was unconstitutional, the circuit court disregarded this procedural statute and additionally overlooked the public interests of the Act, Flowserve says.

Earlier this year, the 3rd District Court of Appeals reversed a circuit court order that exempted plaintiffs with claims set for trial before the act's enactment from filing written reports. [Mobil Corp. v. Mallia, No. 3D05-2194]

While that appellate order dealt with exempting plaintiffs with trial dates scheduled, an 3rd District opinion in the instant case would address retroactive application of the act.

'Certiorari relief is appropriate here because the trial court's order violates clearly established law and fails to follow the dictates of constitutionally valid statute,' Flowserve says. 'Specifically, the trial court's order contravenes clearly established law by (1) finding that Plaintiffs had a vested right; (2) ruling that the Act made substantive, rather than procedural, changes in the law; and (3) failing to consider the substantial public interest served by the act.'

Flowserve continued to say that the Bonillas failed to establish a cause of action accrued before the act's enactment and that a substantive change in the law did not occur because the plaintiff's duties and rights were not altered.

'The Act simply requires a plaintiff to produce at the beginning of his case the evidence that he would ultimately have to produce to survive a motion for directed verdict and recover his claim,' Flowserve contends. 'Thus, the Act simply advances the time at which plaintiff must satisfy his burden of production on the issue of asbestos-related injury. A change of this type is procedural, not substantive.'

Flowserve is represented by Evelyn Fletcher Davis of Hawkins Parnell & Young in Atlanta.

Document is Available Call (800) 496-4319 or Search www.harrismartin.com Petition Ref# ASB-0609-14

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