           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                 _____________________________

                         No. 1D17-2065
                 _____________________________

SIMON'S TRUCKING, INC.,

    Appellant,

    v.

CHARLES A. LIEUPO,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Hamilton County.
William R. Slaughter, II, Senior Judge.

                          April 18, 2018


WOLF, J.

     Appellant, Simon’s Trucking, challenges a judgment entered
in favor of Charles Lieupo, appellee, awarding him damages for
personal injuries that the jury found he suffered after a tractor-
trailer owned by Simon’s Trucking was involved in an accident.
Simon’s Trucking argues the case should never have gone to trial
because the Florida Supreme Court held that the statutory cause
of action created by section 376.313(3), Florida Statutes, under
which Lieupo filed his claim, does not permit recovery for
personal injuries. We agree and reverse, though we certify a
question of great public importance asking the supreme court to
clarify the issue.
                             I. Facts

     Lieupo filed a complaint against Simon’s Trucking, alleging
it was strictly liable for injuries he suffered after one of its
tractor-trailers was involved in an accident while transporting
batteries, spilling battery acid onto the highway. Lieupo alleged
he responded to the scene to tow away the truck and came into
contact with the battery acid, which caused him serious personal
injuries. He filed his complaint under section 376.313(3), Florida
Statutes, which imposes strict liability for the discharge of
certain types of pollutants.

    Simon’s Trucking argued that Lieupo could not seek recovery
under section 376.313(3) because that statute did not permit
recovery for personal injury. The trial court rejected this
argument, and the case proceeded to trial. 1 The jury found the
battery acid caused Lieupo’s injuries and awarded him a total of
$5,211,500 in damages. This appeal follows.

                           II. Analysis

     The sole issue before this court is whether section 376.313(3)
permits recovery for personal injury. 2 This question of statutory
interpretation presents a pure question of law, reviewed de novo.
Hardee Cty. v. FINR II, Inc., 221 So. 3d 1162, 1165 (Fla. 2017),
reh’g denied, SC15-1260, 2017 WL 3015682 (Fla. July 17, 2017).


    1   Simon’s Trucking raised this issue through a motion to
dismiss, a motion for summary judgment, a motion for directed
verdict, and a motion for judgment notwithstanding the verdict,
all of which were denied by the trial court.
    2  During the trial, Simon’s Trucking argued that Lieupo’s
injuries were caused by ant bites rather than battery acid and
that his medical expenses were paid for by workers’
compensation coverage. However, the narrow issue raised by
Simon’s Trucking on appeal does not pertain to these arguments.
During oral argument, counsel for Simon’s Trucking also
acknowledged that the issue of whether the amount of damages
was excessive was not before this court.

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    We conclude that the supreme court’s decision in Curd v.
Mosaic Fertilizer, LLC, 39 So. 3d 1216 (Fla. 2010), precludes
personal injury claims from being brought under section
376.313(3), but we certify a question of great public importance
asking the court to clarify this issue.

                  A. Framework of Chapter 376

     Chapter 376 regulates the discharge and removal of certain
pollutants. The two portions of chapter 376 at issue in this case
are the Pollutant Discharge and Control Act, passed in 1970 and
codified at sections 376.011-376.21, Florida Statutes (the “1970
Act”), and the Water Quality Assurance Act, passed in 1983 and
codified at sections 376.30-376.317, Florida Statutes, (the “1983
act”). The 1970 act is intended to protect coastal waters and
adjoining lands, whereas the 1983 act is intended to combat
pollution to surface and ground waters. §§ 376.021, 376.041,
376.30(1)(b), & (2)(b), Fla. Stat.

     Each act established a private cause of action to recover
damages caused by pollution covered under that act. The 1970
act permits “any person” to bring a cause of action for “damages,”
which are defined as “the . . . loss of any real or personal
property, or . . . destruction of the environment and natural
resources, including all living things except human beings.” §§
376.205 & 376.031(5), Fla. Stat. (emphasis added). This definition
of “damages” expressly states it applies to the 1970 act. §
376.031, Fla. Stat. (“When used in ss. 376.011-376.21 . . . the
term: . . . ‘Damage’ means . . . .”).

     The 1983 act, under which appellee brought his cause of
action, permits “any person [to] bring[] a cause of action . . . for
all damages resulting from . . . pollution” regulated by that act. §
376.313(3), Fla. Stat. (emphasis added); see also Aramark Unif. &
Career Apparel, Inc. v. Easton, 894 So. 2d 20, 28 (Fla. 2004)
(finding the cause of action created by section 376.313(3) is one of
strict liability). The 1983 act has its own definitional section, but
it does not include a definition of the word “damages.” § 376.301,
Fla. Stat.




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  B. Curd v. Mosaic Fertilizer, LLC, 39 So. 3d 1216 (Fla. 2010)

     The Florida Supreme Court applied the 1970 act’s definition
of “damages” to a cause of action brought under the 1983 act in
Curd v. Mosaic Fertilizer, LLC, 39 So. 3d 1216, 1220 (Fla. 2010).
However, the parties dispute whether this application was dicta,
or whether the supreme court intended to hold that this
definition of damages applies in all causes of action brought
under section 376.313(3). This presents a close question primarily
because the opinion alternatingly states that the court relied
solely on the plain language of section 376.313(3) to reach its
decision and that the court relied on an in pari materia reading of
the definition of “damages” from the 1970 act. We find the court’s
application of the definition of “damages” from the 1970 act was
part of the court’s holding and not dicta; however, we certify a
question of great public importance asking the court to clarify the
matter.

     In Curd, fishermen brought a cause of action under the 1983
act seeking damages for economic loss they suffered after
pollution contaminated the waters where they fished. Id. at 1218.
The trial court dismissed their claim because the fishermen
lacked an ownership interest in the fish. Id. at 1219. The Second
District affirmed that decision, but the supreme court reversed.
Id. The supreme court framed the issue before it as “whether the
private cause of action recognized in section 376.313(3), Florida
Statutes (2004), allows commercial fishermen to recover damages
for their loss of income despite the fact that the fishermen do not
own any property damaged by the pollution.” Id. at 1220. There
was no action for personal injury brought in that case.

     The court began by explaining, “In reaching our conclusion
that chapter 376, Florida Statutes (2004), allows a cause of action
by these plaintiffs, we have construed several provisions of
the chapter in pari materia and given effect to the various
sections.” Id. Specifically, the court construed sections 376.315
and 376.30 as expressing a legislative intent for the 1983 act to
be “liberally construed” to promote public and private interests,
including “public health and safety,” “the environment,” and
“other interests deriving livelihood from the state.” Id. at 1221
(citing §§ 376.315 & 376.30(2)(b), Fla. Stat.).

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     The court then stated, “We find that section 376.313(3) and
the language used in section 376.30 are clear and unambiguous,
and we rely solely on their plain language to discover the
legislative intent.” Id. The court quoted section 376.313(3) and
emphasized that it provides “any person” may bring a cause of
action for “all damages.” Id.

     However, the court then applied the definition of “damages”
from the 1970 act, characterizing it as applying to the entirety of
chapter 376: “‘Damage,’ as used in chapter 376, is defined as ‘. . .
destruction to or loss of any real or personal property . . . or . . .
any destruction of the environment and natural resources,
including all living things except human beings, as the direct
result of the discharge of a pollutant.’” Id. (emphasis added)
(quoting § 376.031(5), Fla. Stat). The court noted this definition
permitted recovery not only for damages to real or personal
property, but also for damages to natural resources. Id. at 1222.
Further, the court noted that a lack of ownership of the damaged
property was not one of the expressly enumerated defenses
provided in the 1983 act. Id. The court concluded:

       In sum, the Legislature has enacted a far-reaching
    statutory scheme aimed at remedying, preventing, and
    removing the discharge of pollutants from Florida’s
    waters and lands. To effectuate these purposes, the
    Legislature has provided for private causes of action to
    any person who can demonstrate damages as defined
    under the statute. There is nothing in these statutory
    provisions that would prevent commercial fishermen
    from bringing an action pursuant to chapter 376.

Id. (emphasis added).

     In a concurrence, Justice Polston agreed with the majority’s
conclusion that the fishermen could bring their cause of action
under the 1983 act. Id. at 1229-30. However, he disagreed with
the majority’s application of the “restrictive” definition of
damages from the 1970 act because “the Legislature specified in
section 376.031 that the definition only applies to . . . the 1970
act.” Id. at 1230. Instead, he stated the majority should have
liberally construed the “plain meaning” of the “all damages”


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language from the 1983 act and concluded that “all damages”
included the fishermen’s claims of economic loss. Id.

    It is somewhat difficult to determine whether the majority
intended its in pari materia application of the definition of
damages from the 1970 act to the fishermen’s cause of action
brought under the 1983 act to be its holding, or merely dicta.

     Lieupo argues that Curd was not a personal injury case, and
the court could not have intended to hold that this more
restrictive definition of damages should be applied to prohibit all
personal injury claims from being brought under the 1983 act.
Such a holding would contradict the plain language of section
376.031, which states the “damages” definition only applies to the
1970 act. It would also contradict the court’s statement that it
reached its decision based “solely” on the “plain language” of
sections 376.313(3) and 376.30, and the court’s finding that the
1983 act should be liberally construed. 3 Instead, Lieupo suggests
the supreme court merely looked to the 1970 act’s definition for
“guidance” and did not reach the question of whether only those
damages available under the 1970 act could be sought under the
1983 act.

     We cannot, however, overlook the fact that the Curd court
specifically found the 1970 definition of damages was applicable
to the fishermen’s cause of action brought under the 1983 act. A

3    Appellee also argues there is no indication that the Curd
court intended to overturn Cunningham v. Anchor Hocking Corp.,
558 So. 2d 93, 94 (Fla. 1st DCA 1990), which he interprets to
have held that personal injury claims can be brought under the
1983 act. Though the plaintiffs in Cunningham sought damages
for personal injuries, that court was not asked to address
whether personal injury damages were recoverable under the
1983 act. Instead, the Cunningham court considered the limited
issues of whether the 1983 act was applicable to certain gaseous
pollutants and whether the alleged events occurred prior to the
statute’s effective date. Id. at 99. As such, Cunningham is not
controlling.



                                6
court’s statement is dicta if it is “not essential to the decision of
that court.” State ex rel. Biscayne Kennel Club v. Bd. of Bus.
Regulation of Dep’t of Bus. Regulation, 276 So. 2d 823, 826 (Fla.
1973). “When a court makes a pronouncement of law that is
ultimately immaterial to the outcome of the case, it cannot be
said to be part of the holding in the case.” Lewis v. State, 34 So.
3d 183, 186 (Fla. 1st DCA 2010).

     In order for the Curd court to answer the central question in
that case of whether the fishermen’s claims could be brought
under the 1983 act, the court first had to determine what scope of
damages was available under that act. The court found this scope
of damages was defined by the 1970 act. The majority was clearly
aware that the 1970 act’s definition of damages stated that it was
only applicable to that act, because Justice Polston pointed it out
in his concurrence. Justice Polston also suggested that the
majority could have proceeded by solely considering the plain
meaning of the “all damages” language from the 1983 act.
However, the majority did not follow that approach and instead
found that the 1970 act’s definition of damages was applicable to
causes of action brought under the 1983 act. Thus, we cannot find
that application was dicta.

    As such, we are required to apply the 1970 act’s definition of
damages here, which precludes appellee’s cause of action for
personal injuries. However, because it is difficult to discern
whether the Curd court actually intended for this definition of
damages from the 1970 act to be applied to all causes of action
brought under the 1983 act, we certify the following question as
one of great public importance:

    DOES THE PRIVATE CAUSE OF ACTION CONTAINED IN
    SECTION  376.313(3), FLORIDA STATUTES, PERMIT
    RECOVERY FOR PERSONAL INJURY?

    REVERSED; QUESTION CERTIFIED.

ROBERTS and WETHERELL, JJ., concur.




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                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Jason Gonzalez and Amber Stoner of Shutts & Bowen LLP,
Tallahassee, for Appellant.

Frank A. Shepherd of Gray Robinson, P.A., Miami, for Amicus
Curiae Florida Justice Reform Institute, in support of Appellant.

Peter D. Webster of Carlton Fields, Tallahassee; Michael J.
Damaso, II, and Jackson W. Adams of Wooten Kimbrough, P.A.,
Orlando, for Appellee.




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