IN THE SUPREME COURT OF FLORIDA

CSX TRANSPORTATION, INC.,

Petitioner/Defendant, vs. Case No.

DAVID C. MCNEIL,

Respondent/Plaintiff.

______/

ON DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, SECOND DISTRICT CASE NO.: 2D01-4547

______

PETITIONER’S BRIEF ON JURISDICTION ______

STEPHEN N. GORDON Florida Bar No.: 0452033 JOSE A. GUTIERREZ Florida Bar No.: 0964042 MELKUS, FLEMING & GUTIERREZ, P.L. 410 Ware Boulevard, Suite 1101 Tampa, Florida 33619 Telephone: (813) 623-2747 Attorneys for Petitioner/Defendant CSX Transportation, Inc.

ii TABLE OF CONTENTS

PAGE

TABLE OF CITATIONS……………………...…………………………………………

STATEMENT OF THE CASE AND FACTS.…..…………………………………… 1

ISSUE PRESENTED FOR PREVIEW………….…………………………………….2

WHETHER THE DISTRICT COURT=S DECISION REVERSING the TRIAL COURT=S ORDER GRANTING SUMMARY JUDGMENT FOR CSX TRANSPORTATION, INC. UNDER FLORIDA=S BORROWING STATUTE IS AN EXPRESS AND DIRECT CONFLICT WITH A DECISION OF THE SUPREME COURT ON THE SAME QUESTION OF LAW AND WITH DECISION OF ANOTHER DISTRICT COURT OF APPEAL ON THE SAME QUESITON OF LAW.

SUMMARY OF ARGUMENT……………………………………………………….2

ARGUMENT………………………………………………………………………….4

CONCLUSION………………………………………………………………………10

CERTIFICATE OF SERVICE……………………………………………………….11

CERTIFICATE OF COMPLIANCE………………………………………………...11

APPENDIX I…………………………………………………………………………12

ii i TABLE OF CITATIONS

Florida Cases

Bates v. Cook, Inc., 509 So.2d 1112, 565 (Fla. 1987)……..………………………………….3,4,5,6,10

Bishop v. Florida Specialty Paint Co., 389 So.2d 999 (Fla. 1980)……………...……………………………………..4,5,7

Fabre v. Marin 623 So.2d 1182 (Fla. 1993)……………...……………………………………..9

Ford Motor Co. v. Kikis 401 So.2d 1341 (Fla. 1981)………………...…………………………………..4

Jenkins v. Rockwood 820 So. 2d 426, 428 (Fla. 4th DCA 2002)…....…………………………………7

Jones v. Cook 587 So.2d 570 (Fla. 1st DCA 1991)…………....………………………..3,8,9,10

Florida Statutes

Florida Statute ' 95.10 (2000)…………………………....………………………4,5,6,

Federal Statutes

28 U.S.C. '1331 (1995).…………………………………..…………………………1

28 U.S.C '1349 (1995)……………………………………….……………………..1

Miscellaneous

RESTATEMENT (SECOND) OF CONFLICT OF LAWS '' 145 (1971) ………8,9 RESTATEMENT (SECOND) OF CONFLICT OF LAWS '' 146(1971) ....….3,7

STATEMENT OF THE CASE AND FACTS

This personal injury tort action arises out of a collision that occurred on May 2,

1995, near Sycamore, South Carolina between a tractor-trailer and a passenger train operated by the National Railroad Passenger Corporation (hereinafter "Amtrak"). David

McNeil (hereinafter AMcNeil@) was a passenger aboard the train. The accident occurred at a grade crossing maintained by CSX Transportation, Inc. (hereinafter "CSX"). The tractor-trailer was operated by Leroy Ellis, an employee of O&J Gordon Trucking, both residents of South Carolina. McNeil was a Florida resident at the time of the accident.

CSX is incorporated in Virginia but conducts business in 23 states and has its principal office located in Florida.

On September 28, 1998, McNeil filed a two-count complaint for personal injuries against Amtrak and CSX in the Circuit Court in Polk County, Florida.1 After voluntarily dismissing Amtrak, the case proceeded solely against CSX. He contended that CSX, as

1 The action was removed to federal court on January 20, 1999, because Amtrak was created by an act of Congress, thus vesting the federal court with original jurisdiction pursuant to 28 U.S.C. ''1331 and 1349 (1995). On November 22, 1999, Amtrak and CSX moved for summary judgment with supporting memoranda on a statute of limitations defense. Before the federal court had an opportunity to rule on the respective motions for summary judgment, McNeil moved simultaneously to voluntarily dismiss Amtrak (the source of original federal jurisdiction) and remand the action to state court. On March 20, 2000, the federal court granted the motion to remand. the owner of the tracks, had negligently designed, installed, and maintained the crossing in

South Carolina. Specifically, McNeil alleged that this grade crossing was ultra-hazardous

due to an unusual hump that prevented the tractor-trailer from traversing the crossing without becoming lodged.

Both McNeil and CSX moved for summary judgment on CSX's statute of limitations affirmative defense. CSX argued that Florida=s "borrowing statute," prohibited McNeil's action in Florida because the action arose in South Carolina and was time barred by South

Carolina's three-year statute of limitations. McNeil maintained that Florida's four-year statute of limitations applied. After applying the significant relationship test, the trial court found that the cause of action arose in South Carolina, thus, granting CSX's motion for summary judgment. On appeal, The Second District Court of Appeal reversed and remanded holding that Florida's statute of limitations should apply.

ISSUE PRESENTED FOR REVIEW

WHETHER THE DISTRICT COURT'S DECISION REVERSING THE SUMMARY JUDGMENT FOR CSX TRANSPORTATION, INC., UNDER FLORIDA'S BORROWING STATUTE IS IN EXPRESS AND DIRECT CONFLICT WITH A DECISION OF THE SUPREME COURT AND WITH A DECISION OF ANOTHER DISTRICT COURT OF APPEAL ON THE SAME QUESTION OF LAW.

SUMMARY OF ARGUMENT The Second District Court's decision in McNeil v. CSX Transportation, Inc., Case

No.: 2D01-4547 (decided December 4, 2002), is in direct conflict with the decision of the

Supreme Court in Bates v. Cook, Inc., 509 So.2d 1112 (Fla. 1987), as well as the decision of the First District Court of Appeal in Jones v. Cook, 587 So.2d 570 (Fla. 1st DCA 1991).

These decisions hold that, in deciding conflict of law questions, Florida courts are required to apply the significant relationship test, as set forth in the RESTATEMENT (SECOND)

OF CONFLICTS OF LAW '145-146 (1971), to determine where the cause of action

"arose." If after employing the significant relationship test it is ascertained that the action arose in another state and that state=s laws forbid the maintenance of the cause of action based on a lapse of time, Florida's borrowing statute precludes the maintenance of the action in Florida.

The Second District Court in McNeil misapplied the significant relationship test by failing to determine where the cause of action arose. Instead, the Second District structured its inquiry into what state had a more significant relationship to the statute of limitations issue. By framing the analysis in this manner, the court in McNeil concluded that because both parties are residents of Florida and Florida courts will resolve their dispute, Florida's statute of limitations should apply. The Second District's misapplication of the required analysis mandated by Bates and followed in Jones, not only ignores the principles set forth in the RESTATEMENT, but eviscerates the purpose of Florida's borrowing statute. ARGUMENT Florida=s borrowing statute, '95.10, Fla. Stat. (2000), sets Florida=s basic policy with respect to the application of an outside state=s statute of limitations. The borrowing statute requires Florida courts to apply an outside state=s shorter statute of limitations when confronted with a cause of action that arises within the outside state. In Bates v. Cook, 509

So.2d 1112 (Fla.1987), the Supreme Court held that the significant relationships test utilized in Bishop v. Florida Specialty Paint Co., 389 So.2d 999 (Fla. 1980), should be used by courts in this state in order to determine where a cause of action arose. The court in McNeil v. CSX Transportation, Inc., Case No.: 2D01-4547 (decided on December 4, 2002), acknowledges the application of the significant relationships test, but fails to properly apply this test to the borrowing statute in order to determine where the cause of action arose.

Consequently, the opinion of the Second District Court of Appeals expressly and directly conflicts with Supreme Court precedent as well as the decision of at least one other District

Court of Appeal. When such conflicts exist, this court=s jurisdiction is properly invoked.

Ford Motor Co. v. Kikis, 401 So.2d 1341, 1342 (Fla. 1981) (AIt is not necessary that a district court explicitly identify conflicting district court or supreme court decisions in order to create a >express= conflict under section 3(b)(3).@ A Adiscussion of the legal principles which the court applied supplies a sufficient basis for a petition for conflict review@). The key question presented in Bates was whether, in applying Florida=s borrowing statute to an action based on the theft of trade secrets, Florida uses the Alast act necessary to establish liability@ or the Asignificant relationships@ test to determine where the cause of action arose. First, the court found there was Ano reason to treat an action for theft of trade secrets differently than other tort actions.@ Bates, 509 So.2d at 1113. The court then held that the significant relationships test should be applied in tort law situations to determine where the cause of action arose. In so doing, Bates sets up a three-step process for courts to use whenever a potential tort law conflict presents itself under '95.10. In the first step the court must identify the cause of action. If the cause of action is based in tort law, the second step requires the court to use the significant relationships test set out in Bishop to determine where the cause of action arose. If it is determined that the cause of action arose outside the state, the court then moves to the third step. This third step is purely mechanical, as Florida=s borrowing statute requires the court to apply the outside state=s shorter statute of limitations if the cause of action arose in that state.

In Bates this court held that an action for theft of trade secrets was no different than a regular tort action and thus, identified it as such. 509 So.2d at 1113. As the McNeil case is also a personal injury tort action, the Bates 3-step process should have been utilized. However, The Second District treated this personal injury action differently from any other tort action by failing to determine where the cause of action arose and instead focusing on what state had a more significant relationship to the statute of limitations issue.

In so doing, the McNeil court misapplied the significant relationships test in a manner that conflicts with the Bates holding.

Bates requires that the court apply the significant relationships test to the cause of action, not to the respective interest that each state has in applying its own statute of limitations. As the Bates court said, the decision is not intended to do violence to '95.10, it Asimply hold[s] that the significant relationships test should be employed to decide in which state the cause of action arose.@ 509 So.2d. at 1115. The decision in McNeil does do violence to '95.10 by conducting a completely different analysis. It compares Athe interest that Florida and the state where the accident occurred would have in the statute of limitations determination,@ McNeil, Case No.: 2D01-4547 at 3, and does so without ever determining where the actual cause of action arises. The comparison of interests with respect to the statute of limitations in McNeil fails to recognize that the Florida legislature has already decided this issue. The legislature, in passing '95.10, decided that an outside state=s interest outweighs that of Florida when the cause of action arises in the outside state and the outside state has a shorter statute of limitations. Jenkins v. Rockwood, 820 So.2d

426, 428 (Fla. 4th DCA 2002). The McNeil court=s failure to properly apply the significant relationships test also ignores the principles established in Bishop. The Bishop court first identified the significant relationships test, RESTATEMENT (SECOND) OF CONFLICTS OF LAW '145-146

(1971), as the proper method to determine the correct choice of law with respect to conflicts arising in tort. 389 So.2d at 1001. Bishop lists the four salient factors that are to be taken into account by the court in determining where a cause of action arises.2 The

McNeil court completely forgoes the weighing of these factors in favor of an inflexible rule stated thusly, Aif both parties are residents of the same state and that state=s courts will resolve their dispute that state=s statute of limitations should apply.@ McNeil, Case No.:

2D01-4547 at 3. The McNeil decision treats the residency of the named parties as both the beginning and the end of the analysis. This approach is a departure from the recognition in Bishop that in personal injury actions the place of injury and the place of the conduct causing the injury tend to be the most important factors in determining the applicable choice of law. Bishop, 389 So.2d at 1001.

The place of the injury and the place of conduct causing the injury are particularly important factors in McNeil because there is no allegation that the place of injury is based on fortuity or happenstance. In fact, the opposite is true.

2 The four factors listed in RESTATEMENT '145(2) are: a) the place where the injury occurred; b) the place where the conduct causing the injury occurred; c) the domicile, residence, nationality, place of incorporation and the place of business of the parties and; d) the place where the relation relationship, if any, between the parties is centered. McNeil=s complaint specifically alleges injury as a result of both the ultra-hazardous design and the improper maintenance of the particular crossing in Sycamore, South Carolina.

Consequently, the present tort action has actual roots in South Carolina making the determination of where the action arose all the more important. Despite this, the McNeil court only briefly mentions the place of injury and completely fails to analyze the importance of the place where the conduct causing the injury occurred.

The Second District=s decision in McNeil is also in direct conflict with the First

District Court decision in Jones v. Cook, 587 So.2d 570 (Fla. 1st DCA 1991). In Jones, the First District properly analyzes the factors of '145(2) in an effort to adduce where the cause of action arose. The initial incident in Jones was a two-car accident in Georgia between a Florida resident and an employee of a company that had its principal place of business in Florida. This incident led to a personal injury suit in a Florida court. The defendants moved for summary judgment alleging that the cause of action arose in Georgia and, because the plaintiff had failed to file suit in a timely manner under Georgia law, the suit was time-barred in Florida based on the borrowing statute.

The Jones court examined all the factors of the significant relationships test in an effort to ascertain where the cause of action arose. First, it found that because there was no relationship between the parties, save for the one created by the accident, '145(2)(d) was inapplicable. Second, the Jones court noted that both the conduct causing the injury and the place of the injury were in Georgia. Finally, the court in Jones reached the residency of the parties, where it found that, while the parties were residents of Florida, each had significant contacts to Georgia.

Applying the factors used in Jones to McNeil highlights the conflict between the districts. First, McNeil did not have a relationship with CSX other than the one that was precipitated by the accident.3 Second, the trial court in McNeil found B and the Second

District makes no effort to dispute B that both the conduct causing the injury and the actual place of the injury are in South Carolina. Lastly, while McNeil and CSX had contacts to

Florida, CSX owns many miles of track in South Carolina and conducts a significant amount of business within its borders. Additionally, two South Carolina residents have been named as Fabre defendants in this case. Fabre v. Marin, 623 So.2d 1182 (Fla. 1993).

Given the fundamental similarities in the underlying facts between McNeil and Jones, it is apparent that the Second District=s decision in McNeil conflicts with the holding in Jones.

The analysis employed in McNeil eliminates the consideration of factors such as the place of the injury or the place of the conduct causing the injury in contravention of Bates and Jones. Under the restructured inquiry utilized in McNeil, the fact that both parties are

residents of Florida and that the action is before a Florida court is enough to apply the

3 McNeil did have a contractual relationship with Amtrak, but he voluntarily dismissed Amtrak from this action. Florida statute of limitations. Therefore, the McNeil decision manifestly conflicts with the decisions rendered in Bates and Jones.

CONCLUSION

Based on the express and direct conflict between the decision rendered by the

Second District Court of Appeal in McNeil v. CSX Transportation, Inc., Case No.: 2D01-

4547 (decided on December 4, 2002), and the decision of the Supreme Court in Bates v.

Cook, Inc., 509 So.2d 1112 (Fla. 1987), and the First District Court of Appeal in Jones v.

Cook, 587 So.2d 570 (Fla. 1st DCA 1991), petitioner respectfully requests this court to accept jurisdiction and permit the matter to be briefed on the merits.

______

Stephen N. Gordon FBN: 0452033 Jose A. Gutierrez FBN: 0964042 410 Ward Blvd., Suite 1101 Tampa, Florida 33619 Telephone: (813) 623-2747 Facsimile: (813) 620-4669 Attorneys for Defendant/Appellant

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been

furnished by U.S. Mail to Joseph R. Bryant, Esquire, 202 South Moody Avenue,

Tampa, FL 33609 (Attorney for Appellant) this ______day of January, 2003.

______

Stephen N. Gordon

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFIY that the foregoing brief conforms to the requirements of

Rule 9.120(d) and Rule 9.210(a) of the Florida Rules of Appellate Procedure.

______

Stephen N. Gordon APPENDIX

David C. McNeil v. CSX Transportation, Inc

(Florida Second District Court of Appeal - Opinion filed December 4,2002