SUPREME COURT OF FLORIDA CASE NO. SC11-263 Fourth DCA Case No. 4D09-728 MCLAUGHLIN ENGINEERING COMPANY, a Florida Corporation, JERALD MCLAUGHLIN, individually, and CARL E. ALBREKTSEN, individually, vs. Defendants/Petitioners, SUE E. ROCKS, SANDRA BRIGMAN LATTA, and SHERYL LOPEZ, as CO-PERSONAL REPRESENTATIVES OF THE ESTATE OF JOANNE ROCKS, and ROLLY MARINE SERVICE, INC., a Florida Corporation. Plaintiffs/Respondents. / JURISDICTIONAL BRIEF OF PETITIONERS ON DISCRETIONARY REVIEW FROM A DECISION OF THE FOURTH DISTRICT COURT OF APPEAL JORDANA L. GOLDSTEIN, ESQ. FLORIDA BAR NO. 021891 FERENCIK LIBANOFF BRANDT BUSTAMANTE AND WILLIAMS, P.A. 150 SOUTH PINE ISLAND ROAD, SUITE 400 FORT LAUDERDALE, FL 33324 PHONE: 954-474-8080 / FAX: 954-474-7343 jgoldstein@flbbwlaw.com ATTORNEYS FOR PETITIONERS
TABLE OF CONTENTS Page TABLE OF CITATIONS... ii PREFACE... iv STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 3 ARGUMENT WHETHER THE FOURTH DISTRICT COURT OF APPEAL S DECISION THAT THE DEFINITION OF THE TERM PROFESSIONAL ESTABLISHED IN GARDEN V. FRIER, 602 SO.2D 1273 (FLA. 1992), IS LIMITED TO THE CONTEXT OF THE STATUTE OF LIMITATIONS AND, THEREFORE, SHOULD NOT BE APPLIED WHEN DETERMINING THE APPLICATION OF THE PROFESSIONAL MALPRACTICE EXCEPTION TO THE ECONOMIC LOSS RULE EXPRESSLY AND DIRECTLY CONFLICTS WITH PRIOR DECISIONS OF THIS COURT AND OTHER FLORIDA DISTRICT COURTS OF APPEAL... 4 CONCLUSION... 10 CERTIFICATE OF SERVICE... 11 CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENT... 11 APPENDIX... 12 i
TABLE OF CITATIONS Case Law Page Bruhl v. Pricewaterhousecoopers Int l, 2007 WL 983263(S.D. Fla. Mar. 27, 2007)... 9 Century Land Dev., L.P. v. Weits, 2009 WL 252091(S.D. Fla. Feb. 2, 2009)... 9 Cessna Aircraft Co. v. Avior Technologies, Inc., 990 So.2d 532 (Fla. 3 rd DCA 2008)... 3, 5, 7, 8, 9, 10 Chicago Title Ins. Co. v. Commonwealth Forest Invs., Inc., 494 F.Supp.2d 1332 (M.D. Fla. 2007)... 9 Court Appointed Receiver of Lancer Mgmt. Group, LLC v. Lauer, 2008 WL 906274 (S.D. Fla. March 31, 2008)... 9 Court Appointed Receiver of Lancer Offshore, Inc. v. Citco Group, Ltd. 2008 WL 926513 (S.D. Fla. March 31, 2008)... 9 Garden v. Frier, 602 So.2d 1273 (Fla. 1992)... 2, 3, 4, 5, 6, 7, 8, 9, 10 Hardee v. State, 534 So.2d 796 (Fla. 1998)... 4 Monroe v. Sarasota County School Board, 746 So.2d 530 (Fla. 2 nd DCA 1999)... 3, 5, 8, 9, 10 Moransais v. Heathman, 744 So.2d 973(Fla. 1999)... 3, 5, 6, 7, 8, 9, 10 Tiara Condo. Ass n, Inc. v. Marsh & McLennan Cos., Inc., 607 F.3d 742(11 th Cir. 2010)... 3, 4, 10 Vesta Constr. and Design, LLC v. Lotspeich & Assocs., Inc., 974 So.2d 1176 (Fla. 5 th DCA 2008)... 3, 5, 6, 7, 8, 9, 10 Wallace v. Dean, 3 So.3d 1035 (Fla. 2009)... 4 Warter v. Boston Securities, S.A., 2004 WL 691787 (S.D. Fla. Mar. 22, 2004)... 9 ii
Statutes Art. V, 3(b)(3), Fla. Const.... iv, 4 Other Authorities Fla. R. App. P. 9.030(a)(2)(A)(iv)... iv, 4 iii
PREFACE Defendants/Petitioners, MCLAUGHLING ENGINEERING COMPANY, JERALD MCLAUGHLIN and CARL ALBREKTSEN, seek to invoke the discretionary jurisdiction of this Court pursuant to Art. V, 3(b)(3), Fla. Const. and Fla. R. App. P. 9.030(a)(2)(A)(iv), to resolve a conflict between the decision rendered by the Fourth District Court of Appeal in this case and previous decisions of this Court and other Florida District Courts of Appeal. In this instance, the Fourth District Court of Appeal reversed an order entered by the trial court dismissing Plaintiffs/Respondents Third Amended Complaint with prejudice on the grounds that such claims were barred by the economic loss rule. Throughout this Brief, the Plaintiffs/Respondents, SUE E. ROCKS, SANDRA BRIGMAN LATTA, and SHERYL LOPEZ, as CO-PERSONAL REPRESENTATIVES OF THE ESTATE OF JOANNE ROCKS and ROLLY MARINE SERVICE, INC., will be referred to collectively as either Respondents or Rolly Marine and Defendants/Petitioners, MCLAUGHLING ENGINEERING COMPANY, JERALD MCLAUGHLIN and CARL ALBREKTSEN, will be referred to collectively as Petitioners or McLaughlin Engineering. The opinion of the Fourth District Court of Appeal is attached hereto as an Appendix. Reference to the opinion will be by the abbreviation A followed by the applicable page number(s), e.g., [A/4-5]. iv
STATEMENT OF THE CASE AND FACTS This case involves land surveying work performed by McLaughlin Engineering pursuant to a contract with Respondents. Respondents allege in their Third Amended Complaint that between 1997 and 2004, Respondents hired McLaughlin Engineering to perform various boundary surveys on their property. [A/1]. McLaughlin Engineering allegedly certified on various survey drawings that a ten (10) foot strip of land on the west side of the property was within the property s boundary. [A/1]. Allegedly, in reliance upon the information contained in the surveys, Respondents constructed certain improvements on the property within the ten (10) foot strip of land. [A/1]. The adjoining property owner notified Respondents that those improvements were encroaching on its property. [A/1]. Respondents alleged that they suffered damages as a result of the encroachment. [A/1]. The Third Amended Complaint included claims for negligence, negligent misrepresentation, fraudulent misrepresentation, and negligence per se 1. [A/3]. Petitioners moved to dismiss the Third Amended Complaint arguing the negligence, negligent misrepresentation and fraudulent misrepresentation claims were barred by Florida s economic loss rule, and the claims for negligence per se should be dismissed because the alleged statutory violations were merely evidence of negligence rather than negligence per se. [A/3]. Among other arguments, Petitioners maintained that Respondents negligence claims were barred by the 1 The Fourth District incorrectly states in its opinion that the Third Amended Complaint only contains three causes of action. 1
economic loss rule because surveyors were not professionals as that term was defined by this Court in Garden v. Frier, 602 So.2d 1273 (Fla. 1992), and, therefore, the professional malpractice exception to the economic loss rule did not apply. [A/3]. Following a hearing, the trial court granted Petitioners Motion to Dismiss the Third Amended Complaint with prejudice. [A/3]. Thereafter, Respondents filed an appeal. On December 1, 2011, the Fourth District reversed, holding that this Court s definition of the term professional in Garden, supra, involved only the professional malpractice statute of limitations and, therefore, should not have been used for purposes of determining the application of the economic loss rule in this case. [A/5]. Instead, the Fourth District held there is a strong general sense that surveyors are professionals because the Legislature used the word professional in two statutes contained in Chapter 472, Florida Statutes, which addresses the regulation and licensing of surveyors. The Fourth District also held that surveyors render a professional service by virtue of the special education, training, experience and skill needed to perform their work, and, therefore, an action for professional malpractice is an appropriate remedy. [A/6-7]. Petitioners Motion for Rehearing and/or Motion for Certification was denied on January 6, 2011. Petitioners filed a timely Notice to Invoke Discretionary Jurisdiction of the Florida Supreme Court on February 3, 2011. 2
SUMMARY OF ARGUMENT The Fourth District s holding that the definition of the term professional as established in Garden v. Frier, 602 So.2d 1273 (Fla. 1992) is limited to the context of the professional malpractice statute of limitations, and, therefore, should not be applied in determining the application of the professional malpractice exception to the economic loss rule, expressly and directly conflicts with this Court s decision in Moransais v. Heathman, 744 So.2d 973 (Fla. 1999), as well as the District Court decisions in Vesta Constr. & Design, LLC v. Lotspeich, 974 So.2d 1176 (Fla. 5 th DCA 2008), Monroe v. Sarasota County School Bd., 746 So.2d 530 (Fla. 2 nd DCA 1999), and Cessna Aircraft Co. v. Avior Technologies, Inc., 990 So.2d 532 (Fla. 3 rd DCA 2008). All of these courts extended the Garden definition beyond the context of the statute of limitations, and relied upon it to determine whether a claim for negligence could be maintained. Consequently, the Fourth District s opinion to the contrary has created a conflict justifying this Court s discretionary review. This Court should also grant review of this matter since it is currently considering an analogous question certified by the United States Court of Appeals for the Eleventh Circuit in the case of Tiara Condo. Ass n, Inc. v. Marsh & McLennan Cos., Inc., 607 F.3d 742 (11 th Cir. 2010). In Tiara, the Eleventh Circuit concluded that while insurance agents generally do not fall within the Garden definition of professional, it is still unclear whether insurance brokers provide professional services for purposes of the economic loss rule. As such it certified the 3
following question: [D]oes an insurance broker provide a professional service such that the insurance broker is unable to successfully assert the economic loss rule as a bar to tort claims seeking economic damages that arise from the contractual relationship between the insurance broker and the insured? Id. at 749. The decision rendered by this Court in Tiara will be dispositive of the issue in the instant action because in making its decision this Court will confirm whether the Garden definition of professional should be applied for purposes of the professional malpractice exception to the economic loss rule. For this reason, this Court should accept jurisdiction to review the decision of the Fourth District in this case. ARGUMENT WHETHER THE FOURTH DISTRICT COURT OF APPEAL S DECISION THAT THE DEFINITION OF THE TERM PROFESSIONAL ESTABLISHED IN GARDEN V. FRIER, 602 SO.2D 1273 (FLA. 1992) IS LIMITED TO THE CONTEXT OF THE STATUTE OF LIMITATIONS AND THEREFORE SHOULD NOT BE APPLIED WHEN DETERMINING THE APPLICATION OF THE PROFESSIONAL MALPRACTICE EXCEPTION TO THE ECONOMIC LOSS RULE EXPRESSLY AND DIRECTLY CONFLICTS WITH PRIOR DECISIONS OF THIS COURT AND OTHER DISTRICT COURTS OF APPEAL This Court has discretionary jurisdiction to review a district court of appeal's decision that expressly and directly conflicts with a decision from another district court on the same question of law or conflicts with a prior decision of this Court. See Art. V, 3(b)(3), Fla. Const.; Fla. R. App. P. 9.030(a)(2)(A)(iv); Wallace v. Dean, 3 So.3d 1035, 1039-1040 (Fla. 2009); Hardee v. State, 534 So.2d 796 (Fla. 1998). In the case sub judice, the Fourth District held that the Garden definition of professional is limited to the context of the statute of 4
limitations. [A/5]. This holding is in direct conflict with this Court s prior decision in Moransais v. Heathman, 744 So.2d 973 (Fla. 1999), as well as the district court decisions in Vesta Constr. & Design, LLC v. Lotspeich, 974 So.2d 1176 (Fla. 5 th DCA 2008), Monroe v. Sarasota County School Bd., 746 So.2d 530 (Fla. 2 nd DCA 1999), and Cessna Aircraft Co. v. Avior Technologies, Inc., 990 So.2d 532 (Fla. 3 rd DCA 2008), and, therefore, this Court has discretionary jurisdiction to review the Fourth District s opinion. In Moransais v. Heathman, 744 So.2d 973 (Fla. 1999), the Florida Supreme Court considered whether an engineer was a professional, and thus unable to take advantage of the economic loss rule. The Court cited its decision in Garden v. Frier, 602 So.2d 1273 (Fla. 1992), which defined profession in applying the statute of limitations for malpractice actions, and concluded that an engineer was a professional under the law because the state requires at least a four year college degree before an engineer may be licensed in Florida. See Moransais at 976 ( A profession, within the meaning of section 95.11, is any vocation requiring at a minimum a four-year college degree before licensing is possible in Florida. See Garden v. Frier, 602 So.2d 1273, 1275 (Fla.1992). Under this definition, an engineer is considered a professional, see id. at 1276 n. 5 and, accordingly, has been held liable as such for failure to exercise due care in rendering professional services. ). Thus, while Garden may have determined how a professional is to be defined in a case involving the professional malpractice statute of limitations, 5
Moransais makes clear that the same definition applies for purposes of the professional malpractice exception to the economic loss rule established in that case. By contrast, the Fourth District determined that Garden limited the four-year degree definition of professional solely to the context of the professional malpractice statute of limitations. [A/5]. Subsequent to this Court s decision in Moransais, state courts in Florida have consistently relied upon the definition of professional as set forth in Garden when considering whether a claim is barred by the economic loss rule. For example, in Vesta Constr. & Design, LLC v. Lotspeich, 974 So.2d 1176, 1181 (Fla. 5 th DCA 2008), the Fifth District addressed the question of whether a non-professional employee could be sued for negligence in performing a contract on behalf of the corporation, when a claim against the corporation is barred by the contractual privity economic loss rule. The Fifth District answered the question in the negative and affirmed the trial court s dismissal with prejudice of the claims against the employee and in so doing held that: [w]hen suit is barred against a corporation by the contractual privity economic loss rule, the contracting party cannot bypass the rule by suing [non-professional] corporate employees for their negligent performance of the contract. Id. at 1180. More significantly, the Fifth District held that: [t]he Moransais exception to the economic loss rule is limited to suits against individual professionals, which our supreme court narrowly defined as a person engaged in a vocation requiring at a minimum a four-year college degree before licensing is possible in Florida (emphasis added). Id. at 1181, citing Moransais at 977 (quoting Garden v. Frier, 6
602 So.2d 1273, 1275 (Fla. 1992)). In support of its decision, the Fifth District stated there would have been no need for the Court in Moransais to carve out an exception to the economic loss rule for suits against a professional, if a party could sue any employee who helped perform the contract, whether they were a professional or not, based simply on the fact that there was lack of privity with the employee. Id. at 1181. Unlike the Fourth District, the Fifth District applied the Garden definition of professional in determining the application of the economic loss rule in that case. Likewise, in the matter of Cessna Aircraft Co. v. Avior Technologies, Inc., 990 So.2d 532 (Fla. 3 rd DCA 2008) the Third District relied, in part, upon the Garden definition of professional in determining whether an action for professional malpractice was barred against an airplane manufacturer. In Cessna, a jet aircraft owner and its subsidiary sued an aircraft manufacturer for professional negligence arising from the manufacturer s alleged failed repairs to an aircraft. The Third District held that Plaintiff s pleadings as well as the evidence at trial, failed to support a claim for professional negligence. The Third District pointed to the fact that no individual professionals were named as defendants in the Fourth Amended Complaint, and the allegations refer generally to billings for engineering professional services without identifying any engineering discipline, any individual engineer, or any applicable engineering standard or practice. Cessna at 538. More significantly, citing to Vesta, supra, the Third District 7
held that: the contract here was to repair a used aircraft suffering from mechanical problems, under an agreement similar to a service contract signed at an auto mechanic s garage and stated further that: [w]hile we acknowledge the experience and skill both auto and aircraft mechanics possess, neither group meets the legal definition of a professional (emphasis added). Id. at n. 7 (citing Vesta, 974 So.2d at 1181). Contrary to the Fourth District s decision in this case, the Third District applied the Garden definition of professional in determining whether the professional malpractice exception to the economic loss rule applied. Similarly, in the case of Monroe v. Sarasota County School Bd., 746 So.2d 530 (Fla. 2 nd DCA 1999), the Second District applied the Garden definition of professional in determining whether an action for negligence may be brought against a school board. In Monroe, the plaintiff sought money damages from the school board for negligently omitting his name from a list of eligible potential employees. The specific question facing the court was whether Moransais provided the plaintiff with a cause of action in negligence against the school board as a result of the omission. In answering this question, the Second District specifically found the administrators who erred in failing to properly process Mr. Monroe s application were professionals because they were licensed teachers whose vocation requires a minimum of a four-year college degree (emphasis added). Id. at 533, citing Moransais, 744 So.2d at 976. While the Court found the administrators to be professionals as that term is defined 8
in Garden and applied in Moransais, the Court held the plaintiff failed to state a cause of action for negligence against the school board, because the risk of him losing income as a result of the mishandling of his job application was not the type of injury the school board was required to guard against under traditional common law negligence principles. Id. at 533. The significance of this opinion is that unlike the Fourth District, the Second District extended the Garden definition of professional beyond the context of the statute of limitations, and relied upon same to determine whether a claim for negligence could be maintained. In light of the conflict between the Fourth District s opinion and the decisions rendered in Moransais, Vesta, Cessna, and Monroe 2, it is appropriate for this Court to exercise its discretionary jurisdiction to resolve the conflict. Review of this matter is also appropriate because this Court is currently considering the following question certified by the 2 The importance of resolving this conflict over the scope of the Garden definition of the term professional is underscored by numerous instances where federal courts have relied upon the Garden definition of professional when determining whether the professional malpractice exception to the economic loss rule applies. See, e.g., Century Land Dev., L.P. v. Weits, 2009 WL 252091 (S.D. Fla. Feb. 2, 2009) (claim for professional negligence barred against a realtor because a four-year degree is not required for licensing in Florida); Court Appointed Receiver of Lancer Offshore, Inc. v. Citco Group, Ltd., 2008 WL 926513, at *2-3 (S.D. Fla. March 31, 2008) (professional malpractice claim barred because fund administrators are not professionals since they are not required to obtain a four-year degree for licensing in Florida); Court Appointed Receiver of Lancer Mgmt. Group, LLC v. Lauer, 2008 WL 906274, at *6 (S.D. Fla. March 31, 2008); Chicago Title Ins. Co. v. Commonwealth Forest Invs., Inc., 494 F. Supp.2d 1332, 1334 (M.D. Fla. 2007); Bruhl v. Pricewaterhousecoopers Int l, 2007 WL 983263, *8-9 (S.D. Fla. March 27, 2007); Warter v. Boston Securities, S.A., 2004 WL 691787 at *13 (S.D. Fla. Mar. 22, 2004). 9
United States Court of Appeals for the Eleventh Circuit in the case of Tiara Condo. Ass n, Inc. v. Marsh & McLennan Cos., Inc., 607 F.3d 742 (11 th Cir. 2010): [D]oes an insurance broker provide a professional service such that the insurance broker is unable to successfully assert the economic loss rule as a bar to tort claims seeking economic damages that arise from the contractual relationship between the insurance broker and the insured? Id. at 749. While the Eleventh Circuit recognized that insurance agents are generally not considered to be professionals since they are not required to have a four-year degree before licensing in Florida, the Court chose to certify the foregoing question because it believed the issue concerning whether an insurance broker provides a professional service for purposes of the economic loss rule remains unsettled. Id. at 748. The decision rendered by the Supreme Court in Tiara will be dispositive of the issue in the instant action, because in making its decision the Supreme Court will confirm whether the Garden definition of professional should be applied for purposes of the professional malpractice exception to the economic loss rule. For this reason, this Court should accept jurisdiction to review the Fourth District s opinion. CONCLUSION Petitioners respectfully request that the Court exercise its discretionary jurisdiction to resolve the conflict between the Fourth District s decision and the decision of this Court in Moransais and the decisions rendered by the Fifth, Third and Second District Courts of Appeal in Vesta, Cessna and Monroe. 10
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Brief has been mailed this _11th_day of February 2011 to JUSTIN C. LETO, ESQ., Counsel for Plaintiffs/Respondents, Justin C. Leto, P.A., 201 South Biscayne Blvd., Suite 1720, Miami, Florida 33131. FERENCIK LIBANOFF BRANDT BUSTAMANTE AND WILLIAMS, P.A. Attorneys for Defendants/Petitioners MCLAUGHLIN ENGINEERING COMPANY, JERALD MCLAUGHLIN AND CARL ALBREKTSEN 150 S. Pine Island Road, Suite 400 Fort Lauderdale, FL 33324 Phone: 954-474-8080 Fax: 954-474-7343 jgoldstein@flbbwlaw.com By: /s/jordana L. Goldstein JORDANA L. GOLDSTEIN Fla. Bar No. 021891 CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENT The undersigned hereby certifies that she has complied with the font requirements set forth Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. /s/jordana L. Goldstein JORDANA L. GOLDSTEIN 11
APPENDIX Estate of Joanne Rocks and Rolly Marine Service, Inc. v. McLaughlin Engineering Co., et al, Case No. 4D09-728, Fourth District Court of Appeal (Opinion issued December 1, 2010). 12