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Asbestos & Silica Act's Procedural Nature Permits Retroactive Application

April 5, 2007 – Media Coverage
HarrisMartin

MIAMI - Relying on a recent, related decision, a Florida appellate court has reversed a trial court order that found the retroactive application of the state's Asbestos and Silica Compensation Fairness Act unconstitutional. Flowserve Corp. v. Bonilla, et al., No. 3D06-2201 (Fla. Ct. App., 3rd Dist.).

On April 4, Florida's Third District Court of Appeal granted Flowserve Corp.'s petition for a writ ofcertiorari and reversed the Circuit Court for Miami-Dade County's order denying Flowserve's motion to dismiss Thomas J. Bonilla's claims for an unspecified asbestos-related disease.

The appellate court based its ruling on its Feb. 7 decision in DaimlerChrysler Corp. v. Hurst, et al.(No. 3D06-2593), in which the court found Florida's asbestos and silica medical criteria law to be procedural in nature, and thus retroactive.

"Prior to the enactment of the Act [on July 1, 2005], the plaintiff had, at most, a 'mere expectation' that the common law would not be altered by legislation," the court said in Hurst. "Thus, the plaintiff did not have a vested right in her common law asbestos claim."

In the instant action, the trial court ruled that the ASCFA "infringed upon [Bonilla's] vested rights by requiring [him] to provide specific prima facie evidence that exposure to asbestos was a 'substantial contributing factor' to Mr. Bonilla's medical condition."

Flowserve asserted in its petition for certiorari relief that in enacting the ASCFA, the Legislature intended for it to be applied to cases pending at the time of the enactment. Flowserve argued that in ruling that retroactive application of the act was unconstitutional, the trial court disregarded this procedural statute and also overlooked the public interests of the act.

The Third District noted that Bonilla's lawsuit was pending on the July 1, 2005, effective date of the ASCFA, and that the Legislature "clearly intended" that the act be applied retroactively.

In Hurst, the appellate court stated that the act "does not impair or eliminate the plaintiff's right to sue for asbestos-related injuries. Rather, [it] sets forth the procedures a plaintiff must follow to file or maintain an asbestos cause of action."

Counsel for Flowserve are Evelyn Fletcher Davis of Hawkins Parnell & Young in Atlanta and John H. Pelzer of Ruden McClosky in Fort Lauderdale, Fla.

James L. Ferraro, David A. Jagolinzer and Case A. Dam of The Ferraro Law Firm in Miami represent Thomas Bonilla.

Daniel S. Green of Ullman, Bursa, Hoffman & Ragano in Tampa, Fla., and Tracy Raffles Gunn of Fowler White Boggs & Banker in Tampa, Fla., are counsel for amicus curiae Florida Defense Lawyers Association. Frank Cruz-Alvarez of Shook, Hardy & Bacon in Miami represents amicus curiae The Associated Industries of Florida.

Document is Available Call (800) 496-4319 or Search www.harrismartin.com Opinion Ref# ASB-0705-02

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