Florida Court Decides Asbestos Act Can’t Be Retroactively Applied

Insurance Journal--June 4, 2008

By Brian Kern

When Florida lawmakers passed asbestos legislation in 2005, they muddied the waters for plaintiffs afflicted with asbestosis who were in the throes of litigation.

The state’s Fourth District Court of Appeal has now moved to clarify the situation, ruling that the Florida Asbestos and Silica Compensation Fairness Act cannot be retroactively applied to prejudice or defeat causes of action already accrued and in litigation.

The court confirmed that plaintiffs are correct in their assertion that before the Florida Asbestos and Silica Compensation Fairness Act was enacted Florida law recognized a cause of action for damages arising from the disease of asbestosis without any permanent impairment or the presence of cancer.

Under the provisions of the act, plaintiffs are required to prove malignancy in conjunction with claims of complications due to asbestos exposure or asbestosis.

“We hold that the Act cannot constitutionally be so applied and return the cases to the trial court for consistent proceedings,” the Court said.

Before the 2005 act was adopted, all of the plaintiffs in these cases filed actions for damages based on various degrees of asbestosis: interstitial lung disease resulting from asbestos exposure and pleural thickening. According to plaintiffs, when they filed their lawsuits before the act’s adoption it was not necessary to establish that any malignancy or physical impairment had already resulted from their contraction of the disease asbestosis. They claimed it was merely necessary for them to show that they had suffered an injury from an asbestos-related disease.

The court’s decision referenced a 1988 case stating that there is usually a latent period of 10 to 25 years between initial asbestos exposure and apparent effect. Some workers exposed for 40 years or more will not become diseased at all whereas others exposed for shorter periods of time at lower concentrations will contract asbestosis. If the asbestosis is not seriously advanced, an individual may continue to lead a relatively normal life. Although the disease is progressive once it begins and is incurable, it is not cancerous. Mesothelioma, on the other hand, is a rare form of cancer, with a potential latency period from 20 to 40 years or more.

The court concluded that it is not “intellectually possible on the basis of any recognized principles to disconnect the several provisions of an Act whose singular purpose is to end litigation by claimants who have been damaged by asbestos exposure without resulting malignancy or physical impairment”.

Source: Florida Fourth District Court of Appeal