Baranek v. AMERICAN OPTICAL CORPORATION

941 So. 2d 1214, 2006 Fla. App. LEXIS 19096
CourtDistrict Court of Appeal of Florida
DecidedNovember 15, 2006
Docket4D05-9 to 4D05-94
StatusPublished
Cited by2 cases

This text of 941 So. 2d 1214 (Baranek v. AMERICAN OPTICAL CORPORATION) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baranek v. AMERICAN OPTICAL CORPORATION, 941 So. 2d 1214, 2006 Fla. App. LEXIS 19096 (Fla. Ct. App. 2006).

Opinion

941 So.2d 1214 (2006)

Frank BARANEK, et al., Appellants
v.
AMERICAN OPTICAL CORPORATION, et al., Appellees.

Nos. 4D05-9 to 4D05-94.

District Court of Appeal of Florida, Fourth District.

November 15, 2006.

*1215 David A. Jagolinzer, Case A. Dam and James L. Ferraro of The Ferraro Law Firm, Miami, for appellants.

Albert H. Parnell, Nathan M. Thompson and Evelyn M. Fletcher of Hawkins & Parnell, LLP, Atlanta, Georgia, for appellees Bayer Cropscience, Inc., Dana Corp., Dow Chemical Co., Ericsson, Inc., Flowserve Corp., Maremont Corp., Union Carbide Corp., and Zurn Industries, Inc.

STEVENSON, C.J.

Frank Baranek and more than eighty others filed suits in Palm Beach County against more than fifty defendants, seeking damages for injuries associated with asbestos exposure. The trial court dismissed the claims on forum non conveniens grounds. In this consolidated appeal, the plaintiffs/appellants challenge the manner in which the trial court conducted its analysis under Florida Rule of Civil Procedure 1.061 and Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla. 1996), and the sufficiency of the evidence supporting that analysis. For the reasons discussed below, we reverse the order of dismissal and remand for further proceedings consistent with this opinion.

Forum Non Conveniens Generally

"Forum non conveniens is a common law doctrine addressing the problem that arises when a local court technically has jurisdiction over a suit but the cause of action may be fairly and more conveniently litigated elsewhere." Kinney, 674 So.2d at 87 (footnote omitted). The doctrine "serves as a brake on the tendency of some plaintiffs to shop for the `best' jurisdiction in which to bring suit." Id. In Kinney, our supreme court found that the demands being placed on Florida's courts by the bringing of claims that did not have a substantial connection to the state warranted modification of Florida forum non conveniens law. Id. at 88. Thus, the supreme court adopted the four-part federal standard:

"[1] As a prerequisite, the court must establish whether an adequate alternative forum exists which possesses jurisdiction over the whole case. [2] Next, the trial judge must consider all relevant factors of private interest, weighing in the balance a strong presumption against disturbing plaintiffs' initial forum choice. [3] If the trial judge finds this balance of private interests in equipoise or near equipoise, he must then determine whether or not factors of public interest tip the balance in favor of a trial in [another] forum. [4] If he decides that the balance favors such a . . . forum, the trial judge must finally ensure that plaintiffs can reinstate their suit in the alternative forum without undue inconvenience or prejudice."

Id. at 90 (quoting Pain v. United Technologies Corp., 637 F.2d 775, 784-85 (D.C.Cir. *1216 1980)). This four-part test now appears in Florida Rule of Civil Procedure 1.061.

The Proceedings Below

More than ninety complaints against the same fifty-three defendants, seeking damages for asbestos-related injuries, had been filed in the asbestos division of the Palm Beach County circuit court. Counsel for the plaintiffs was the same in all of these cases. Four of the defendants filed an untimely motion to dismiss on forum non conveniens grounds and a fifth defendant joined in the motion. Around this same time, Judge McCarthy, who was in the midst of a trial involving an asbestos claim brought by an Alabama resident for exposure that took place outside of Florida, became concerned about the number of out-of-state asbestos filings. Before the untimely motion to dismiss could be heard, Judge McCarthy sua sponte issued an order directing the plaintiffs to show cause as to why their cases should not be dismissed on forum non conveniens grounds. Following the hearing, the trial court retained jurisdiction over the one case alleging exposure in Palm Beach County, transferred eleven cases to other Florida counties, and dismissed eighty-three cases. This appeal involves only the eighty-three dismissed cases.

The bulk of the information concerning the plaintiffs comes from the "exposure sheets" appended to the complaints. Of the eighty-three plaintiffs, none reside in Florida. Thirty-five are Alabama residents who suffered all their asbestos exposure in Alabama. Twenty-one are Alabama residents who suffered most of their exposure in Alabama and none in Florida. Three are Alabama residents who suffered substantial exposure outside of Alabama, but none in Florida. Thirteen are Alabama residents who suffered some exposure in Florida. Four are Wisconsin residents who suffered all their exposure in Wisconsin. One is a Wisconsin resident who alleges exposure in Wisconsin from 1973 to 1990 and exposure in California, Illinois, and Jacksonville, Florida, during the years 1969-1973. Four reside in Maine, Rhode Island, and Pennsylvania and suffered all or most of their exposure in the northeast, but none in Florida. Two are Kentucky residents who suffered most of their exposure in Kentucky, but none in Florida.

The plaintiffs' complaints allege the defendants are foreign corporations, amenable to service in Florida. And, in opposing dismissal, the plaintiffs asserted five of the defendants, Bigham Insulation and Supply Company ("Bigham"), Metropolitan Life, Goodyear Tire & Rubber Company, Exxon Mobil, and Westinghouse Electric Corporation, had business locations in Palm Beach County, offering web site print-outs reflecting Palm Beach County addresses. Additionally, during the hearing precipitating the dismissal, an objection filed by Bigham's counsel, asserting the company conducted its business entirely within the State of Florida and was not amenable to service elsewhere, was offered. Bigham's counsel was not, however, present for the hearing or, for that matter, any other hearing during the preceding four years of litigation. The "exposure sheets" of a number of plaintiffs, however, alleged exposure to Bigham products in states other than Florida.

With this evidence before him, the trial judge determined dismissal was appropriate as to the eighty-three cases. As for the first Kinney factor, adequate, alternative forum, the order of dismissal details the law governing amenability to service of process and personal jurisdiction for the states of Alabama, Wisconsin, Rhode Island, Kentucky, Pennsylvania, California, New Jersey, New Hampshire, and Massachusetts and concludes an adequate, alternative *1217 forum exists for each of the eighty-three cases dismissed. The lower court next found the "private interests" factor favored dismissal as access to evidence was no greater in Palm Beach County, and to the contrary, access to witnesses, job sites, and treating medical providers would be greater in the alternative forums. With respect to the "public interests," the trial judge found that the cases had no connection to Palm Beach County and yet trials in the myriad pending cases would consume enormous judicial resources at the expense of Palm Beach County taxpayers. Finally, the court concluded the eighty-three plaintiffs could reinstate their claims in the alternative forums without undue prejudice, relying upon that portion of Kinney

Free access — add to your briefcase to read the full text and ask questions with AI

Related

POULTRY AND INDUSTRIAL SUPPLIERS, INC. v. INCUBACOL, S.A.S.
District Court of Appeal of Florida, 2020
Solari v. ZUBLIN CHILE INGENIERIA Y CONSTRUCCIONES
987 So. 2d 161 (District Court of Appeal of Florida, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
941 So. 2d 1214, 2006 Fla. App. LEXIS 19096, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baranek-v-american-optical-corporation-fladistctapp-2006.