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.