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					__________________________________________________________________

        IN THE SUPREME COURT OF THE STATE OF FLORIDA
__________________________________________________________________

BEATRICE HURST, as Personal Representative
of the Estate of KENNETH HURST,

          Petitioner,

v.                                           CASE NO. SC07-722
                                             L.T. No.:04-24071 CA 13

DAIMLERCHRYSLER CORPORATION,

          Respondent.
_________________________________/

ON DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL
                   THIRD DISTRICT OF FLORIDA
                         Case No. 3D06-2593
__________________________________________________________________

             RESPONDENT’S BRIEF ON JURISDICTION
__________________________________________________________________


                                      JEFFREY M. BELL, ESQ.
                                      Florida Bar No.: 374539
                                      BELL & MELAMED, LLC
                                      4901 N.W.17th Way, Suite 302
                                      Ft. Lauderdale, FL 33309
                                      Telephone: 954/489-2331
                                      Facsimile: 954/489-2332

                                      Attorneys for Respondent
                                      DaimlerChrysler Corporation
                                     TABLE OF CONTENTS
                                                                                                        Page

TABLE OF AUTHORITIES...............................................................................ii

STATEMENT OF THE CASE AND FACTS......................................................1
SUMMARY OF ARGUMENT ...........................................................................3

ARGUMENT .....................................................................................................4
              THE THIRD DISTRICT’S DECISION IS NOT IN
              CONFLICT WITH DECISIONS OF ANY OTHER
              DISTRICT COURT OF APPEAL OR OF THIS COURT


CONCLUSION................................................................................................ 10




                                                  i
                                    TABLE OF AUTHORITIES

Cases                                                                                                   Page(s)

Aravena v. Miami-Dade County, 928 So. 2d 1163, 1166 (Fla. 2006) .....................5
Arrow Air, Inc. v. Walsh, 645 So. 2d 422, 424 (Fla. 1994)....................................6

Clausell v. Hobart Corp., 515 So. 2d 1275 (Fla. 1987).........................................9
DaimlerChrysler Corp. v. Hurst,
     949 So. 2d 279 (Fla. 3d DCA 2007) .................................................. passim
Dep’t of Agriculture and Consumer Services v. Bonanno, 568 So. 2d
      24, 30 (Fla. 1990)......................................................................................6
Dept. of Transp. v. Knowles, 402 So. 2d 1155, 1158 (Fla. 1981) ...........................6

El Portal v. Miami Shores, 362 So.2d 275, 278 (Fla. 1978)...................................8
Flowserve Corp. v. Bonilla, 2007 WL 981640 at *1 (Fla. 3d DCA
     April 4, 2007) ...........................................................................................5
Hill v. Hill, 778 So.2d 967 (Fla. 2001)(Pariente, J. specially
       concurring) ...............................................................................................5

Homemakers, Inc. v. Gonzales, 400 So. 2d 965 (Fla. 1981)............................. 9, 10
In re Asbestos Litigation, 933 So. 2d 613, 617 (Fla. 3d DCA 2006) ......................5

Johns v. Wainwright, 253 So. 2d 873 (Fla. 1971) .................................................6
Mancini v. State, 312 So. 2d 732 (Fla. 1975).................................................... 5, 7

Ortiz v. Fibreboard Corp., 119 S.Ct. 2295 (1999) ................................................2
Paley v. Maraj, 910 So.2d 282, 283 (Fla. 4th DCA 2005)......................................8

Reaves v. State, 485 So. 2d 829, 830 n. 3 (Fla. 1986)............................................1
Stanfill v. State, 384 So. 2d 141 (Fla. 1980) .........................................................6

Walker & LaBerge, Inc. v. Halligan, 344 So. 2d 239, 243 (Fla. 1977) ...................8



                                                    ii
Yamaha Parts Distributors, Inc. v. Ehrman, 316 So. 2d 557 (Fla.
     1975)........................................................................................................6

Other Authorities

Asbestos and Silica Compensation Fairness Act , Chapter 774.201 .............. passim
H.R. 1019, 2005 Leg., Reg. Sess. (Fla. 2005), Ch. 2005-274, at 2563,
      Laws of Fla...............................................................................................2
Medical Malpractice Act, Chapter 766.................................................................8




                                                   iii
                 STATEMENT OF THE CASE AND FACTS1

      This case addresses whether legislatively mandated retroactive application

of section 774.204(3) of the Asbestos and Silica Compensation Fairness Act (the

“Act”), Chapter 774.201, et. seq., Florida Statutes, violates the due process rights

of individuals whose common law tort claims were pending prior to the effective

date of the Act. DaimlerChrysler Corp. v. Hurst, 949 So. 2d 279, 285 la. 3d DCA

2007). Specifically, after a thorough and well-reasoned analysis, the Third District

determined that a plaintiff does not have a “substantive vested right” in a common

law tort claim, and that section 774.204(3) is procedural in nature and may be

applied retroactively to a pending asbestos claim. To date, the Third District is the

only Florida appellate court which has addressed these issues.

      This action was originally brought by Kenneth Hurst, who was diagnosed

with lung cancer in August 2004, and died as a result of the disease in April, 2005.

DaimlerChrysler, 949 So. 2d at 282. Beatrice Hurst, as personal representative of

Mr. Hurst’s estate, was substituted as plaintiff following Mr. Hurst’s death. Id.

Mr. Hurst filed suit against DaimlerChrysler (“DCC”) and others in November


1
  Petitioner overlooks that only “those facts contained within the four corners of
the decision allegedly in conflict” are relevant to this Court’s decision to accept or
reject jurisdiction. Reaves v. State, 485 So. 2d 829, 830 n. 3 (Fla. 1986).
Petitioner’s Statement of the Case and Facts not only far exceeds the boundaries of
the Third District’s opinion, but also improperly reargues the merits of the court’s
ruling.


                                       1
2004, alleging that his lung cancer was caused by exposure to asbestos. Id. DCC

moved to dismiss the action based on plaintiff’s failure to satisfy the prima facie

requirements of section 774.204(3) of the Act. Conceding her inability to satisfy

these requirements, plaintiff argued that the statute’s retroactive application to her

claim violated her due process rights. Id. Determining that plaintiff had a “vested

right” in her pending claim and that retroactive application of the statute was

unconstitutional as applied to her cause of action, the trial court denied the motion

to dismiss. Id.

      DCC petitioned the Third District for a writ of certiorari. Focusing on the

purpose and intent of the Act, the court acknowledged the legislature’s concern

that “exposure to asbestos has created a flood of litigation in state and federal

courts” which has been characterized as an “elephantine mass” of cases that “defies

customary judicial administration.” Id. at 283, citing H.R. 1019, 2005 Leg., Reg.

Sess. (Fla. 2005), Ch. 2005-274, at 2563, Laws of Fla., quoting Ortiz v. Fibreboard

Corp., 119 S.Ct. 2295 (1999). The court went on to note that the Act is designed

to give priority to true victims of asbestos and silica, to fully preserve the rights of

those claimants, to enhance the ability of the judicial system to supervise and

control asbestos and silica litigation, and to conserve the scarce resources of

defendants to allow compensation to cancer victims and others who are physically

impaired by asbestos and silica exposure, while securing compensation for others


                                        2
who may suffer physical impairment in the future. 949 So. 2d at 283-84; citing Fla.

Stat. § 774.202(1)-(4).

      After analyzing the polic ies underlying the Act, the Third District proceeded

to consider whether retroactive application of the statute was unconstitutional as

applied to plaintiff’s case. Id. Determining that plaintiff had a “mere expectation”

that her common law tort claim would not be altered by legislation, the court

rejected the argument that plaintiff had a “vested right” in her cause of action. 949

So. 2d at 287. The court went on to rule that section 774.204(3) “merely affects

the means and methods the plaintiff must follow when filing or maintaining an

asbestos cause of action” and, therefore, “is procedural in nature, and may be

applied retroactively.” Id. The court, accordingly, quashed the trial court’s order

and remanded for entry of an order granting DaimlerChrysler’s motion to dismiss.

Id.

      On March 15, 2007, the Third District denied Petitioner’s Motion for

Certification. Petitioner now seeks review in this Court based on an alleged

express and direct conflict of decisions.

                          SUMMARY OF ARGUMENT

      The Third District’s decision is not in express and direct conflict with other

Florida appellate decisions on the “same question of law.” The Third District is

the only Florida appellate court which has addressed the retroactive application of



                                       3
section 774.204(3) of the Act. Petitioner does not raise any legitimate conflict

issues in her brief, but rather, reargues the merits of issues she has litigated and

lost. Contrary to Petitioner’s argument, the Third District’s decision does not run

afoul of the general presumption against the retroactive application of substantive

legislation because (1) the Legislature specifically provided that the Act would

have retroactive application; (2) the Act does not impact a “vested right”; and (3)

the Third District determined that section 774.204(3) is procedural in nature – not

substantive. The decision does not present a conflict in the law on “whether an

existing cause of action is a vested right” because the Florida courts have

consistently held that a plaintiff has no “vested right” in a common law tort claim,

like the asbestos claim at issue. Finally, the decision presents no conflict on the

“facial constitutionality” of the statute because that issue was neither presented to

the Third District nor addressed by the court in its decision. This Court, therefore,

should deny Petitioners’ request that the Court invoke its discretionary jurisdiction

to hear her case.

                                  ARGUMENT

THE THIRD DISTRICT’S DECISION IS NOT IN CONFLICT WITH
DECISIONS OF ANY OTHER DISTRICT COURT OF APPEAL OR OF
THIS COURT.

I.    The Third District is the only appellate court in Florida which has
      addressed the retroactive application of Section 774.204(3) of the Act.




                                      4
        The Third District determined that plaintiff did not have a vested right in her

common law asbestos claim, and that section 774.204(3) of the Act is procedural in

nature and may be applied retroactively. The Third District is the only Florida

appellate court which has addressed these issues.2 Jurisdiction based on an express

and direct conflict “on the same question of law,” therefore, does not exist. See,

e.g., Aravena v. Miami-Dade County, 928 So. 2d 1163, 1166 (Fla. 2006) (one of

the tests for conflict jurisdiction is whether the cited holdings are irreconcilable);

Mancini v. State, 312 So. 2d 732 (Fla. 1975) (conflict jurisdiction is invoked by the

announcement of a rule of law which conflicts with a rule previously announced,

or the application of a rule to produce a different result in a case with substantially

the same facts); Hill v. Hill, 778 So.2d 967 (Fla. 2001)(Pariente, J. specially

concurring)(“I reluctantly conclude that this Court does not have a basis to exercise

our discretionary jurisdiction because within the four corners of this opinion, there

is no express and direct conflict between this case and any other case.”).

II.     The case does not present a conflict on the issues identified by
        Petitioner.3


2
  See DaimlerChrysler, 949 So. 2d 279; Flowserve Corp. v. Bonilla, 2007 WL
981640 at *1 (Fla. 3d DCA April 4, 2007) (quashing order holding Act
unconstitutional when applied retroactively to pending asbestos claims on the
authority of DaimlerChrysler); see also In re Asbestos Litigation, 933 So. 2d 613,
617 (Fla. 3d DCA 2006) (prima facie requirements of statute apply to “plaintiffs
who had already received trial dates when the statute became effective.”).
3
    As will be shown below, Petitioner is not really seeking to correct the existence

                                        5
      A.    The Third District’s decision is not in conflict with Florida
decisions “prohibiting the retroactive application of substantive legislation.”

       Petitioner argues that the Third District’s decision is in conflict with other

Florida decisions purportedly “prohibiting the retroactive application of

substantive legislation.” (Jurisdictional Brief at 5-6.) Petitioner’s argument is

flawed in two principal respects. First, there is no absolute prohibition on the

retroactive application of substantive legislation, especially where the legislature

expresses its intent that the law apply retrospectively.        See, e.g., Dep’t of

Agriculture and Consumer Services v. Bonanno, 568 So. 2d 24, 30 (Fla. 1990),

quoting Dept. of Transp. v. Knowles, 402 So. 2d 1155, 1158 (Fla. 1981)

(recognizing that presumption against retroactive abrogation of value is not

absolute). 4

       Second, the Third District’s decision is not in conflict with case law holding

that a law affecting substantive rights is presumed to apply prospectively in the

of a legitimate conflict in the law. Rather, she is seeking an impermissible second
appeal on issues she has litigated and lost. Florida’s District Courts are not
intended to be intermediate courts, and the decisions of these courts are considered
final. See Johns v. Wainwright, 253 So. 2d 873 (Fla. 1971); Stanfill v. State, 384
So. 2d 141 (Fla. 1980).
4
 Petitioner’s reliance on Arrow Air, Inc. v. Walsh, 645 So. 2d 422, 424 (Fla. 1994)
and Yamaha Parts Distributors, Inc. v. Ehrman, 316 So. 2d 557 (Fla. 1975) is
unavailing. (Jurisdictional Brief at 7). The statute in Arrow Air, unlike the Act,
was not intended by the legislature to apply retroactively. Yamaha Parts,
moreover, does not even address the retroactive application of a statute to a tort
cause of action, but rather, the impairment of a contract by retroactive application
of legislation.


                                       6
absence of clear legislative intent to the contrary, because (i) the legislature clearly

intended for the Act to apply retroactively, (ii) the law does not impact a vested

right; and (iii) the court has determined that the statute is procedural in nature, not

substantive. DaimlerChrysler, 949 So. 2d at 284-87. The Third District’s decision

is in complete harmony with this general rule.

       Here, Petitioner concedes that the Third District has determined that the

statute is procedural – not substantive.      As such, the court’s decision cannot

possibly conflict with decisions “prohibiting the retroactive application of

            e
substantive l gislation.” Petitioner argues that she “strongly disagree[s] with the

Third District’s determination that the Act is procedural in nature and may be

applied retroactively” – showing that she is really asking this Court to determine,

on a de novo review, that the statute is substantive, not procedural. This Court

does not have jurisdiction to resolve whether or not the Third District’s

determination was correct. See, e.g., Mancini, 312 So. 2d at 732 (“Our jurisdiction

cannot be invoked merely because we might disagree with the decision of the

district court. . .”).5


5
   Petitioner improperly rehashes the merits of the Third District’s decision
throughout her brief, arguing that the statute “has a significant retroactive
substantive effect” because it purportedly “abolishes” her claim. (Jurisdictional
Brief at 9.) The Third District expressly disagreed with Petitioner on this point,
stating that the statute “does not impair or eliminate the plaintiff’s right to sue for
asbestos-related injuries” but merely “sets forth the procedures a plaintiff must
follow to file or maintain an asbestos cause of action ...” DaimlerChrysler, 949 So.

                                        7
         Petitioner’s argument that, even if the statute is procedural, it has a

“significant retroactive substantive effect” because it purportedly “abolishes” her

claim and therefore cannot be applied retroactively under existing law, is incorrect.

(Jurisdictional Brief at 8-9.) The Third District made clear that the statute “does

not impair or eliminate the plaintiff’s right to sue for asbestos-related injuries” but

merely “sets forth the procedures” she must follow in filing or maintaining her

asbestos cause of action, including her burden of proof as plaintiff. 949 So. 2d at

287. 6

         The court’s decision is in line with Florida law holding that increasing a

plaintiff’s burden of proof does not amount to a substantive change in the statutory

scheme, and may be applied retroactively. 949 So.2d at 287-88, citing Shaps v.

Provident Life & Accident Ins. Co., 826 So. 2d 250, 254 (Fla. 2002) and Stuart L.

Stein, P.A. v. Miller Indus., Inc., 564 So. 2d 539, 540 (Fla. 4th DCA 1990).7 There

is no merit, therefore, to Petitioner’s argument that the Third District

2d at 287. Petitioner is not entitled to further review by this Court to revisit her
disagreement on this issue.
6
 In this regard, the Act’s requirements are analogous to the pre-suit requirements
of the Medical Malpractice Act, Chapter 766, et. seq., Florida Statutes, which have
been held to be procedural, and thus retroactive. See Paley v. Maraj, 910 So.2d
282, 283 (Fla. 4th DCA 2005); See also, El Portal v. Miami Shores, 362 So.2d 275,
278 (Fla. 1978).
7
  This Court likewise held in Walker & LaBerge, Inc. v. Halligan, 344 So. 2d 239,
243 (Fla. 1977) – a case cited by Petitioner – that statutory burden of proof
requirements are procedural in nature and do not abrogate a substantive right.


                                       8
impermissibly applied the statute retroactively because it acts to “abolish” her

claim.

       B.    The Third District’s decision does not create a conflict on the
issue of “vested rights.”

         Petitioner cites a purported “conflict in Florida law on the issue of whether

an existing cause of action is a vested right” as the second basis for conflict

jurisdiction. (Jurisdictional Brief at 9-10.) Petitioner suggests that a conflict on

this issue arises out of this Court’s decision in Clausell v. Hobart Corp., 515 So. 2d

1275 (Fla. 1987) on the one hand, and Homemakers, Inc. v. Gonzales, 400 So. 2d

965 (Fla. 1981) on the other.         Petitioner concedes, however, that the Third

District’s decision is supported by Clausell. (Jurisdictional Brief at 9.)

         Contrary to Petitioner’s argument, Clausell and the Third District’s decision

in this case are not in conflict with Homemakers because the decisions address

entirely different principles of law. In Clausell and in the present case, this Court

and the Third District acknowledged that a plaintiff has no vested interest in a

common law tort claim. Clausell, 515 So. 2d at 1276, DaimlerChrysler, 949 So.

2d at 286-87. In Homemakers, this Court held that an amendment to the medical

malpractice limitations statute did not apply retroactively to revive the plaintiff’s

time-barred claim absent an “express, clear and manifest” legislative intent to

provide retroactive effect. Homemakers, 400 So. 2d at 967.




                                        9
      In the present case, the legislature clearly intended for the statute to apply

retroactively, and the presumption against retroactive application, therefore, does

not apply. 949 So. 2d at 284. Absent a corresponding expression of legislative

intent in Homemakers, this Court determined that the statute did not apply

retroactively to revive the plaintiff’s claim. 400 So. 2d at 967. The decisions are

in harmony and present no express and direct conflict on the “issue of whether an

existing cause of action is a vested right,” as Petitioner erroneously asserts.

      C.    Conflict jurisdiction does not exist on the basis that the statute is
“facially unconstitutional.”
      Petitioner concludes by asserting that the Act is “facially unconstitutional”

and that the Third District’s decision “therefore conflicts with settled law.” It is

clearly improper for Petitioner to assert a “conflict” on an issue which was never

presented to the Third District. The issue before the Third District, as framed by

Petitioner in the trial court proceedings, was whether the statute “was

unconstitutional as applied to her case...” DaimlerChrysler, 949 So. 2d at 284.

“Facial constitutionality” was never addressed by the Third District, and the

“conflict issue” raised by Petitioner, therefore, is non-existent.

                                   CONCLUSION

      For the reasons set forth above, Respondent DaimlerChrysler Corporation

respectfully requests that this Court deny Petitioner’s request that the Court accept

discretionary jurisdiction to hear this case.


                                       10
                                              Respectfully submitted,


                                              /s Jeffrey M. Bell, Esq.
                                              JEFFREY M. BELL, ESQ.
                                              Florida Bar No.: 374539
                                              BELL & MELAMED, LLC
                                              4901 N.W.17th Way, Suite 302
                                              Ft. Lauderdale, FL 33309
                                              Telephone: 954/489-2331
                                              Facsimile: 954/489-2332

                                              Attorneys for Respondent
                                              DaimlerChrysler Corporation



                         CERTIFICATE OF SERVICE

      I HEREBY CERTIFY that a true and correct copy of the foregoing was

served this 16th day of May, 2007, to counsel listed on the attached service list.

                                              /s Jeffrey M. Bell, Esq.
                                              Attorney

                      CERTIFICATE OF COMPLIANCE

      I hereby certify that this brief is in compliance with Rule 9.210, Fla. R. App.

P., and is in the required font of Times New Roman 14.

                                              /s Jeffrey M. Bell, Esq.
                                              Attorney




                                      11

				
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