© 2014 Thomson Reuters. No Claim to Original U.S. Government Works. 1 Moody V

Moody v. Advance Stores Co., Inc., 2014 WL 4210511 (2014)

2014 WL 4210511 (Fla.Cir.Ct.) (Trial Order) Circuit Court of Florida. Fourth Judicial Circuit Duval County

Ruth MOODY, individually and as Personal Representative of the Estate of Riley Moody, Plaintiff, v. ADVANCE STORES COMPANY, INC., et al., Defendants.

No. 162012CA13784. August 22, 2014.

*1 Division: CV-H

Order Dismissing Plaintiff's Amended Wrongful Death Complaint with Prejudice

David Jagolinzer, Esq., Mark Kunen, Esq., 4000 Pone de Leon Blvd., Suite 700, Miami, Florida 33146.

Henry Salas, Esq., Andrew Freedman, Esq., Clarke S. Sturge, Esq., Dadeland Centre II, 14th Floor, 9150 S. Dadeland Blvd., Miami; Florida 33156.

Daniel Garcia, Esq., One East Broward Blvd., Suite 1010, Ft. Lauderdale, Florida 33301.

Ari Shapiro, Esq., Michelle Levy, Esq., 4300 Southeast Financial Center, 200 South Biscayne Blvd., Suite 2790, Miami, FL 33131.

Michael Orr, Esq., Amanda Eaton Ferrelle, Esq., Carl Dawson, Esq., Jeremy Paul, Esq., 50 N. Laura Street, Suite 1675, Jacksonville, Florida 32202.

Chris N. Nolos, Esq., 200 S. Orange Ave., Suite 2600, Orlando, Florida 32801.

Virginia Easley Johnson, Esq., Branton Whisenant, Jr., Esq., 4770 Biscayne Blvd., Suite 1000, Miami, Florida 33137.

Johnathan Hollingshead, Esq., PO Box 712, Orlando, Florida 32802.

Evelyn Fletcher Davis, Esq., Frances Spinthourakis, Esq., Leslie Bryan, Esq., Winter Wheeler, Esq., Ernest L. Wetzler II, Esq., Catherine McCormack, Esq., 4000 SunTrust Plaza, 303 Peachtree Street, N.E., Atlanta, Georgia 30308.

Seth Goldberg, Esq., Xaverie Baxley-Hull, Esq., 3440 Hollywood Boulevard, 2nd Floor, Hollywood, Florida 33021.

Lucia Pazos, Esq., Gustave Perez, Esq., Frank J. Sioli, Jr., Esq., Datran II, Suite 1600, 9130 S. Dadeland Blvd., Miami, Florida 33156.

Jana Marie Fried, Esq., Laura Eggnatz, Esq., 1920 N. Commerce Pkwy., Suite 1, Weston, Florida 33326.

Susan Cole, Esq., Melanie Chung-Tims, Esq., Thomas Scholtzhauer, Esq., Eduardo Medina, Esq., 999 Ponce de Leon Blvd., Suite 710, Coral Gables, Florida 33134.

Mark Greene, Esq., Cameron Kingery, Esq., 501 East Kennedy Blvd., Suite 1500, Tampa, Florida 33602.

Anthony Upshaw, Esq., Caroline Iovino, Esq., Melissa Alvarez, Esq., 333 Avenue of the Americas, Suite 4500, Miami, Florida 33131.

John Seipp, Jr., Esq., Donald Blackwell, Esq., 2 Alhambra Plaza, Suite 800, Coral Gables, Florida 33134.

M. Stephen Smith, Esq., David Krupski, Esq., Craig C. Minko, Esq., 80 S.W. 8th Street, Suite 3000, Miami, Florida 33130.

Stuart Cohen, Esq., Adam Richards, Esq., 25 Southeast Second Ave., Miami, Florida 33131.

Waddell A. Wallace, III, Judge.

This matter is before the Court by way of various motions to dismiss the Plaintiff's amended complaint based upon the Plaintiff's failure to satisfy the filing requirements of the Asbestos and Silica Compensation Fairness Act (“Act”). Having considered the record and the written and oral arguments of counsel, the Court finds as follows:

1. According to the amended complaint, the decedent, Riley Moody, died on February 17, 2010, of lung cancer caused by exposure to asbestos-containing products that were manufactured, sold, supplied, and/or distributed by the thirty named Defendants. The Plaintiff, Ruth Moody, serving as personal representative of the decedent's estate, filed suit alleging claims of negligence and strict liability.

2. Twenty-six of the thirty Defendants filed motions to dismiss the Plaintiff's initial complaint. On June 27, 2013, in addition to striking certain allegations in the complaint, the Court permitted the Plaintiff sixty days from May 15, 2013, to amend her complaint to designate whether the decedent was a “smoker” or “non-smoker” pursuant to the Act, and to provide the necessary documentation showing prima facie evidence of the decedent's asbestos-related injury as required by the Act. The order denied the remaining motions to dismiss, motions to strike, and motions for more definite statement pertaining to matters not expressly addressed in the order. The Plaintiff filed her amended complaint on July 15, 2013, alleging that the decedent was a smoker.

3. Twenty-three of the named defendants have filed motions to dismiss the Plaintiff's amended complaint. Common among the claims raised in the various motions to dismiss the amended complaint is the argument that the Plaintiff has failed to comply with the requirements for filing and maintaining an action under the Act. Specifically, the Defendants argue that the Court must dismiss the Plaintiff's amended complaint because the Plaintiff has failed to comply with the requirements of sections 774.204 and 774.205, Florida Statutes. Furthermore, the Defendants argue that the amended complaint must be dismissed with prejudice, as the statute of limitations has expired.

4. As an initial matter, a motion to dismiss alleging that the statute of limitations has expired is permissible in this instance, as it can be conclusively determined from the face of the complaint that the two-year limitations period, as provided for by section 95.1 l(4)(d), Florida Statutes, has expired. See New York State Dept. of Taxation v. Patafio, 829 So. 2d 314, 316 (Fla. 5th DCA 2002) (“The statute of limitations is generally an affirmative defense that cannot be raised in a motion to dismiss unless the complaint affirmatively shows the conclusive applicability of such defense to bar the action.”). The amended complaint alleges that the decedent died on February 17, 2010.

*2 5. Turning to the requirements of the Act, section 774.204(3), states:

A person who is a smoker may not file or maintain a civil action alleging an asbestos claim which is based upon cancer of the lung, larynx, pharynx, or esophagus in the absence of a prima facie showing that includes all of the following requirements:

(a) A diagnosis by a qualified physician who is board certified in pathology, pulmonary medicine, or oncology, as appropriate for the type of cancer claimed, of a primary cancer of the lung, larynx, pharynx, or esophagus, and that exposure to asbestos was a substantial contributing factor to the condition.

(b) Evidence sufficient to demonstrate that at least 10 years have elapsed between the date of first exposure to asbestos and the date of diagnosis of the cancer.

(c) Radiological or pathological evidence of asbestosis or diffuse pleural thickening or a qualified physician's diagnosis of asbestosis based on a chest X ray graded by a certified B-reader as at least 1/0 on the ILO scale and high-resolution computed tomography supporting the diagnosis of asbestosis to a reasonable degree of medical certainty.

(d) Evidence of the exposed person's substantial occupational exposure to asbestos. If a plaintiff files a civil action alleging an asbestos-related claim based on cancer of the lung, larynx, pharynx, or esophagus, and that plaintiff alleges that his or her exposure to asbestos was the result of extended contact with another exposed person who, if the civil action had been filed by the other exposed person, would have met the substantial occupational exposure requirement of this subsection, and the plaintiff alleges that he or she had extended contact with the exposed person during the time period in which that exposed person met the substantial occupational exposure requirement of this subsection, the plaintiff has satisfied the requirements of this paragraph. The plaintiff in such a civil action must individually satisfy the requirements of this subsection.

(e) If the exposed person is deceased, the qualified physician, or someone working under the direct supervision and control of a qualified physician, may obtain the evidence required in paragraphs (b) and (d) from the person most knowledgeable about the alleged exposures that form the basis of the asbestos claim.

(f) A conclusion by a qualified physician that the exposed person's medical findings and impairment were not more probably the result of causes other than the asbestos exposure revealed by the exposed person's employment and medical history. A conclusion that the medical findings and impairment are “consistent with” or “compatible with” exposure to asbestos does not meet the requirements of this subsection.

(emphasis added).

6. Pursuant to section 774.205(2), a plaintiff alleging an asbestos claim must include with the complaint a written report and supporting test results constituting prima facie evidence of the exposed person's asbestos-related physical impairment meeting the requirements of section 774.204(3). Furthermore, a plaintiff's claim brought under the Act shall be dismissed without prejudice upon a finding of failure to make the required prima facie showing. Id

*3 7. Here, it is clear that the Plaintiff did not comply with the requirements of sections 774.204(3) and 774.205(2) prior to filing suit. While the Plaintiff did file a written report and supporting test results, issued by Dr. Richard Bernstein, M.D., on May 21, 2013, such filings were insufficient to satisfy the requirements of section 774.204(3). More importantly, the report and test results were filed well after the statute of limitations period had elapsed. At this point, it is impossible for the Plaintiff to comply with these requirements within the statue of limitations period.

8. This issue is whether the Court must dismiss with prejudice a claim brought under the Act when the requisite written report and supporting test results meeting the requirements of section 774.204(3) are not filed prior to the expiration of the statute of limitations. The available case law interpreting the Act does not address this issue. See American Optical Corp. v. Spiewak, 73 So. 3d 120 (Fla. 2011); Williams v. American Optical Corp., 985 So. 2d 23 (Fla. 4th DCA 2008); DaimlerChrysler Corp. v. Hurst, 949 So. 2d 279 (Fla. 3d DCA 2007); In re Asbestos Litigation, 933 So. 2d 613 (Fla. 3d DCA 2006). These four cases address whether chapter 744 has retroactive application to claims filed prior to the effective date of the Act.

9. The most applicable parallel to the Act for comparison purposes is chapter 766, Florida Statutes. Specifically, the case law discussing compliance with the conditions precedent set forth under chapter 766 appears to be relevant and instructive for purposes of deciding the issue at hand in the instant case. Prior to filing suit, section 766.203(2), Florida Statutes, requires that a claimant first conduct an investigation to ascertain that there are reasonable grounds to believe that: (a) any named defendant in the litigation was negligent in the care or treatment of the claimant; and (b) such negligence resulted in injury to the claimant.

Corroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant's submission of a verified written medical expert opinion from a medical expert at the time that the notice of intent to initiate litigation is mailed, which statement shall corroborate reasonable grounds to support the claim of medical negligence. Id. Once this presuit investigation is completed, the claimant must then notify each prospective defendant by certified mail of the intent to initiate litigation for medical negligence prior to filing a complaint alleging medical negligence. § 766.106(2), Fla. Stat. (2011).

10. The cases interpreting sections 766.203 and 766.106 provide that even where the malpractice complaint is filed prior to the expiration of the statute of limitations, the failure of the claimant to comply with the presuit requirements of chapter 766 within the statute of limitations period requires dismissal of the action with prejudice. See Williams v. Campagnulo, 588 So. 2d 982, 983 (Fla. 1991); Shands Teaching Hosp. v. Miller, 642 So. 2d 48 (Fla. 1st DCA 1994); Maguire v. Nichols, 712 So. 2d 784, 785 (Fla. 2d DCA 1998); Florida Hosp. Waterman v. Stoll 855 So. 2d 271, 276 (Fla. 5th DCA 2003); Solomon v. Well Care HMO, Inc., 822 So. 2d 543, 545 (Fla. 4th DCA 2002); Berry v. Padden, 84 So. 3d 1145, 1146-47 (Fla. 4th DCA 2012).

11. Furthermore, this general rule has been applied to other Florida laws containing mandatory conditions precedent to filing an action. See generally City of Coconut Creek v. City of Deerfield Beach, 840 So. 2d 389, 393 (Fla. 4th DCA 2003) (“If there remains sufficient time to comply with the statutory precondition, the action should be dismissed with leave to amend. If the time to comply with the precondition has expired, the action should be dismissed with prejudice.” (footnotes omitted)); Holding Electric, Inc. v. Roberts, 530 So. 2d 301, 302 (Fla. 1988) (finding that an amended complaint may be filed to show delivery of the contractor's affidavit, in accordance with the provisions of section 713.06(3), Florida Statutes, provided the statute of limitations has not run prior to the filing of the amended complaint); Villa Maria Nursing & Rehab. Ctr., Inc. v. South Broward Hosp. Dist., 8 So. 3d 1167, 1171 (Fla. 4th DCA 2009) (noting that dismissal with prejudice is appropriate when a party fails to comply with the notice requirement of section 768.28(6), Florida Statutes, prior to the expiration of the statute of limitations); Privas v. Brisson Custom Homes, Inc., 817 So. 2d 983, 984-85 (Fla. 4th DCA 2002) (reversing judgment foreclosing lien where final contractor's affidavit, a condition precedent to filing suit under section 713.06(3)(d), Florida Statutes, was not timely served on the homeowner within the statutory time limit).

*4 12. In conclusion, due to the Plaintiff's failure to meet the requirements of sections 774.204(3) and 774.205(2) prior to the expiration of the two-year statute of limitations applicable to wrongful death actions, the Court must dismiss the Plaintiff's amended complaint with prejudice.

Accordingly, it is:

ORDERED AND ADJUDGED that:

A. The motions to dismiss raising the claim that the Plaintiff has failed to make the requisite prima facie showing as required by the Act are GRANTED on that basis; and

B. The Plaintiffs amended complaint is hereby DISMISSED with prejudice.

DONE AND ORDERED in chambers, at Jacksonville, Duval County, Florida, this 22 nd day of August 2014.

Waddell A. Wallace, III

Circuit Judge

Copies to:

David Jagolinzer, Esq.

Mark Kunen, Esq.

4000 Pone de Leon Blvd., Suite 700

Miami, Florida 33146

Henry Salas, Esq.

Andrew Freedman, Esq.

Clarke S. Sturge, Esq.

Dadeland Centre II, 14th Floor

9150 S. Dadeland Blvd.

Miami; Florida 33156

Daniel Garcia, Esq.

One East Broward Blvd., Suite 1010

Ft. Lauderdale, Florida 33301

Ari Shapiro, Esq.

Michelle Levy, Esq.

4300 Southeast Financial Center

200 South Biscayne Blvd., Suite 2790

Miami, FL 33131

Michael Orr, Esq.

Amanda Eaton Ferrelle, Esq.

Carl Dawson, Esq.

Jeremy Paul, Esq.

50 N. Laura Street, Suite 1675

Jacksonville, Florida 32202

Chris N. Nolos, Esq.

200 S. Orange Ave., Suite 2600

Orlando, Florida 32801

Virginia Easley Johnson, Esq.

Branton Whisenant, Jr., Esq.

4770 Biscayne Blvd., Suite 1000

Miami, Florida 33137

Johnathan Hollingshead, Esq.

PO Box 712

Orlando, Florida 32802

Evelyn Fletcher Davis, Esq.

Frances Spinthourakis, Esq.

Leslie Bryan, Esq.

Winter Wheeler, Esq.

Ernest L. Wetzler II, Esq.

Catherine McCormack, Esq.

4000 SunTrust Plaza

303 Peachtree Street, N.E.

Atlanta, Georgia 30308

Seth Goldberg, Esq.

Xaverie Baxley-Hull, Esq.

3440 Hollywood Boulevard, 2nd Floor

Hollywood, Florida 33021

Lucia Pazos, Esq.

Gustave Perez, Esq.

Frank J. Sioli, Jr., Esq.

Datran II, Suite 1600

9130 S. Dadeland Blvd.

Miami, Florida 33156

Jana Marie Fried, Esq.

Laura Eggnatz, Esq.

1920 N. Commerce Pkwy., Suite 1

Weston, Florida 33326

Susan Cole, Esq.

Melanie Chung-Tims, Esq.

Thomas Scholtzhauer, Esq.

Eduardo Medina, Esq.

999 Ponce de Leon Blvd., Suite 710

Coral Gables, Florida 33134

Mark Greene, Esq.

Cameron Kingery, Esq.

501 East Kennedy Blvd., Suite 1500

Tampa, Florida 33602

Anthony Upshaw, Esq.

Caroline Iovino, Esq.

Melissa Alvarez, Esq.

333 Avenue of the Americas, Suite 4500

Miami, Florida 33131

John Seipp, Jr., Esq.

Donald Blackwell, Esq.

2 Alhambra Plaza, Suite 800

Coral Gables, Florida 33134

M. Stephen Smith, Esq.

David Krupski, Esq.

Craig C. Minko, Esq.

80 S.W. 8th Street, Suite 3000

Miami, Florida 33130

Stuart Cohen, Esq.

Adam Richards, Esq.

25 Southeast Second Ave.

Miami, Florida 33131