2020 WL 58294

This case was not selected for publication in West’s Federal Reporter.
See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also U.S.Ct. of App. 7th Cir. Rule 32.1.
United States Court of Appeals, Seventh Circuit.
Marina D. KOLCHINSKY and Lidia L. Kolchinsky, Plaintiffs-Appellants,
v.
WESTERN DAIRY TRANSPORT, LLC, and WD Logistics, LLC, Defendants-Appellees.
No. 19-1739
|
Argued December 17, 2019
|
Decided January 6, 2020
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 15 C 10544, Matthew F. Kennelly, Judge.
Attorneys and Law Firms
Eugene Bykhovsky, Attorney, Bykhovsky Law, LLC, Shorewood, WI, for Plaintiffs-Appellants
Donald Devitt, Attorney, Springer, Casey, Dienstag & Devitt, Chicago, IL, Russell Jay Taylor, Jr., Attorney, Scopelitis, Garvin, Light, Hanson & Feary, P.C., Indianapolis, IN, for Defendant-Appellee Western Dairy Transport, LLC
Donald Devitt, Attorney, Springer, Casey, Dienstag & Devitt, Chicago, IL, Gary M. Feiereisel, Attorney, Feiereisel & Kasbohm LLC, Chicago, IL, for Defendant-Appellee WD Logistics LLC
Before KENNETH F. RIPPLE, Circuit Judge, DIANE S. SYKES, Circuit Judge, AMY J. ST. EVE, Circuit Judge

ORDER
*1 After Marina Kolchinsky and her mother, Lidia Kolchinsky, were severely injured in a car collision with a tractor-trailer in Illinois, they sued the truck driver and the two companies that contracted with him. They filed in federal court based on diversity of citizenship; Illinois law controlled. The district court entered partial summary judgment in favor of Western Dairy Transport, LLC, and WD Logistics, LLC, concluding that the driver was an independent contractor so the Kolchinskys could not hold the companies responsible for the driver’s alleged negligence. Because the district court properly classified the driver as an independent contractor, we affirm the summary judgment for the companies.

William G. Bentley, a Colorado citizen and the owner and sole member of Bill Bentley Trucking, LLC, a Colorado company, rear-ended the Kolchinskys’ car while driving a tractor-trailer through Illinois.1 Bentley had just dropped off a load of milk in Minnesota and was en route to Indiana with an empty trailer to pick up another load. Both deliveries had been arranged by WD Logistics, an LLC consisting of Missouri and Texas citizens. WD Logistics instructed Mr. Bentley to transport the milk from Indiana to its destination; how he got to Indiana was up to him. The Kolchinskys, especially Marina, were severely injured in the crash.

At the time Bentley Trucking regularly provided freight-transportation services to WD Logistics according to the terms of a Carrier/Broker Agreement. The nonexclusive agreement provided that Bentley Trucking was an independent contractor and retained “full control” over its personnel and that either party could terminate the agreement upon 30 days’ written notice. When Bentley Trucking accepted a job from WD Logistics, it agreed to call the broker daily with a status update, protect the freight, notify the broker of any damage, and inform the broker of delivery. Bentley Trucking was also responsible for determining delivery times but agreed to inform WD Logistics if Bentley (in his capacity as a driver for Bentley Trucking) could not meet the schedule; the broker reserved the right to withhold any resulting damages from Bentley Trucking’s pay. Finally, the agreement required Bentley Trucking to pay its employees and provide and maintain its own tractor, fuel, insurance, licenses, and permits.

The Kolchinskys, Wisconsin citizens, sued Bentley in federal court alleging that he negligently collided with their car and asserting more than $75,000 in damages. Citing theories of respondeat superior and vicarious liability, the Kolchinskys also sued Bentley Trucking, WD Logistics, and Western Dairy Transport, an LLC with the same members as WD Logistics.

WD Logistics moved for summary judgment, arguing that because Bentley Trucking was not its agent, the broker could not be held liable for Bentley’s negligent driving. In support the company offered evidence showing that WD Logistics did not control how Bentley Trucking performed its work for WD Logistics. It pointed to the agreement, which classified Bentley Trucking as an independent contractor, and to testimony that the parties conducted their business consistently with the terms of the agreement. Bentley Trucking also negotiated the rate for each job, and WD Logistics did not withhold payroll-related taxes or insurance. And apart from the few communication requirements set out in the agreement, Bentley Trucking controlled the details of the delivery, including providing and maintaining the tractor, and selecting the driver, the route, the number of hours to drive per day, and where to refuel.

*2 Western Dairy also moved for summary judgment, arguing that the only possible basis for liability against it was through WD Logistics and that it had no business relationship with WD Logistics with respect to the trip at issue. Western Dairy and WD Logistics are owned by the same parent company, but their roles are distinct: Western Dairy owns and leases trucks and trailers and hauls freight, while WD Logistics brokers the hauls. In other words, Western Dairy was a carrier hired by WD Logistics to transport loads for third parties; it also sometimes supplied trailers that other carriers used to haul loads brokered by WD Logistics. Bentley Trucking was one of those other carriers. And Bentley Trucking was the carrier for the load brokered by WD Logistics at the time of the collision.

In their opposition to the motion for summary judgment, the Kolchinskys pointed to several aspects of Bentley Trucking’s relationship with WD Logistics that, they argued, supported finding an agency relationship. First, the Carrier/Broker Agreement instructed that when Bentley Trucking was carrying a load, the driver had to call WD Logistics with a daily status update and upon delivery, and also report any damage to the load. WD Logistics paid Bentley Trucking directly and could withhold damages resulting from a late delivery or lost load. Finally, WD Logistics provided Bentley Trucking with trailers to haul the loads and had the power to fire Bentley Trucking, and at the time of the accident, Bentley Trucking was hauling exclusively for WD Logistics.

The judge granted the summary-judgment motions, concluding as a matter of Illinois law that Bentley Trucking was an independent contractor.2 And because any possible path to liability for Western Dairy ran through WD Logistics, the details of Western Dairy’s relationship to the broker were ultimately irrelevant.

The judge entered a final judgment for WD Logistics and Western Dairy under Rule 54(b) of the Federal Rules of Civil Procedure, which permitted the Kolchinskys to immediately appeal even though their claims against Bentley and Bentley Trucking remain pending. In response to an order from this court, the judge explained that he had entered final judgment because allowing immediate review of the summary-judgment order would be more expedient than trying the case against Bentley and Bentley Trucking alone and then holding a second trial if the appeal was successful.

On appeal the Kolchinskys first argue that a reasonable jury could conclude based on the summary-judgment evidence that WD Logistics and Western Dairy exercised enough control over Bentley Trucking to create an agency relationship. We review a summary judgment de novo, drawing reasonable inferences in favor of the Kolchinskys, the nonmoving parties. Walker v. Ingersoll Cutting Tool Co., 915 F.3d 1154, 1157 (7th Cir. 2019).

Under Illinois law, deciding whether an agency relationship exists requires a multifactor analysis. The “cardinal consideration” for determing the existence of an agency relationship is whether the alleged principal has the “right to control the manner of work performance.” Sperl v. C.H. Robinson Worldwide, Inc., 408 Ill.App.3d 1051, 349 Ill.Dec. 269, 946 N.E.2d 463, 471 (2011). Other considerations include whether the nature of the work is in the principal’s field, whether the principal has the right to discharge the purported agent, the method of payment and whether taxes are deducted, the provision of equipment, and the level of skill required. Id. Though no single factor controls, id., and weighing them is typically a question of fact, a court may decide the question if the underlying facts are not disputed, Dowe v. Birmingham Steel Corp., 357 Ill.Dec. 391, 963 N.E.2d 344, 351 (Ill. App. Ct. 2011).

*3 We agree with the district judge that the evidence shows as a matter of law that Bentley Trucking was not an agent of WD Logistics. The Kolchinskys’ strongest facts in support of an agency relationship are that WD Logistics required Bentley to contact it at various times when carrying its loads, including a daily status call and a call upon delivery, and that WD Logistics could charge Bentley Trucking for damages if a delivery was late or damaged. But none of these facts shows the degree of control that Illinois courts have required when finding that an agency relationship exists. See, e.g., Sperl, 349 Ill.Dec. 269, 946 N.E. 2d at 471–72 (upholding a finding of agency relationship where the broker specified the trailer length, required the driver to take the trailer temperature regularly, and imposed strict communication requirements and delivery times enforced by fines); see also Powell v. Dean Foods Co., 379 Ill.Dec. 837, 7 N.E.3d 675, 698 (Ill. App. Ct. 2013) (upholding a finding of agency relationship where the trial evidence showed that the shipping company controlled the drivers’ actions, required drivers to wear uniforms, and provided trailers; and the evidence also showed that the driver pulled exclusively for the company for 60 years and used its letterhead).

Meanwhile, courts applying Illinois law consistently have declined to find an agency relationship when a company hires an independent driver to deliver a load to designated persons at designated hours but does not reserve the right to control the manner of delivery. See Powell, 379 Ill.Dec. 837, 7 N.E.3d at 697–98 (citing Shoemaker v. Elmhurst-Chi. Stone Co., 273 Ill.App.3d 916, 210 Ill.Dec. 61, 652 N.E.2d 1037 (1994), as modified (July 12, 1995)); Manahan v. Daily News-Tribune, 50 Ill.App.3d 9, 8 Ill.Dec. 659, 365 N.E.2d 1045, 1046–47, 1050–51 (1977). Even if a broker requires an exclusive relationship, has the power to fire, and sets rules governing the manner of loading the trucks, no agency relationship exists if the broker does not have the power to control the details of the manner of delivery. See Dowe, 357 Ill.Dec. 391, 963 N.E.2d at 351 (finding no agency relationship where a trucking company chose the route, set hours, and provided and maintained equipment and insurance). Here, it is undisputed that WD Logistics and Bentley Trucking adhered to the terms of their agreement, which explicitly states that Bentley Trucking had “full control” over its personnel, was solely responsible for its own operational costs and its equipment, and would perform services as an “independent contractor.” See Manahan, 8 Ill.Dec. 659, 365 N.E.2d at 1051 (“If the parties to the relation are bound by a contract which by its terms clearly defines that relationship as that of employer/independent contractor, and the parties abide by that contract, then the contract may be conclusive of their relationship.”).

The Kolchinskys’ remaining points do not support finding an agency relationship. The fact that Bentley Trucking was hauling exclusively for WD Logistics is irrelevant because the broker did not require it. See Sperl, 349 Ill.Dec. 269, 946 N.E.2d at 471 (focusing on the employer’s right to control behavior); see also Trzaska v. Bigane, 325 Ill.App. 528, 60 N.E.2d 264, 265–67 (1945) (finding no agency relationship where the driver is free to refuse a load). Likewise, the fact that WD Logistics provided Bentley Trucking with trailers also cannot support a finding of an agency relationship. See Petersen v. U.S. Reduction Co., 267 Ill.App.3d 775, 204 Ill.Dec. 415, 641 N.E.2d 845, 851 (1994) (finding no agency relationship despite providing a trailer). And the Kolchinskys’ arguments that WD Logistics (as opposed to the owners of the freight) paid Bentley Trucking directly and had the power to fire the company are somewhat distracting: WD Logistics did not deduct income taxes or social security contributions like it would for an employee, and the Carrier/Broker Agreement provided that either party could terminate the relationship. Bentley Trucking, moreover, was solely responsible for paying all payroll-related expenses for its drivers, including workers’ compensation, unemployment, and social security.

The Kolchinskys next argue that Bentley and Bentley Trucking had apparent authority to act for WD Logistics. To support this theory, the Kolchinskys point to various bills of lading from Bentley Trucking’s trips—including the trip it completed before the collision—on which Mr. Bentley signed boilerplate forms on behalf of WD Logistics or Western Dairy, some designating him as a pickup “agent.” The Kolchinskys also note that the trailer bore Western Dairy’s logo and was en route to pick up a load for WD Logistics when the collision happened. The forms, however, more often designated Bentley as “driver.” And when Bentley was en route from Minnesota to Indiana, he was not yet working on a job under the Carrier/Broker Agreement. He had accepted a new job for WD Logistics, but it did not begin until he picked up the new load in Indiana, which never happened because of the intervening accident. So regarding the trip in question, Bentley was not acting on the broker’s behalf.

*4 And it is difficult to imagine how an apparent-agency theory could fit the facts of this case. The Kolchinskys do not argue that Mr. Bentley ever appeared to them as Western Dairy’s agent. But even if the bills of lading and Western Dairy’s logo could create apparent agency, to survive summary judgment the Kolchinskys needed evidence that could create an inference that their injuries would not have occurred “but for [their] justifiable reliance on the apparent agency.” O’Banner v. McDonald’s Corp., 173 Ill.2d 208, 218 Ill.Dec. 910, 670 N.E.2d 632, 634–35 (1996). They offered no such facts, and this failure alone is reason enough to reject this theory. See id. The undisputed record, moreover, contradicts any such inference: The Kolchinskys stopped their car on the side of the road before they could have seen the truck bearing Western Dairy’s logo, and the truck struck their car from behind.

Finally, the Kolchinskys argue that the judge erred in failing to address their argument that Western Dairy could be held liable for the accident based on a joint venture relationship with WD Logistics. But the judge did address it—he simply concluded that this argument was irrelevant given his conclusion that any theory of liability against Western Dairy required finding WD Logistics liable (either individually or as part of a joint venture). We agree with this analysis. The evidence shows that Western Dairy had no part in the transaction leading to Mr. Bentley’s fateful trip. And even if there were a joint venture between WD Logistics and Western Dairy, Bentley Trucking was not its agent for the same reason it was not the agent of WD Logistics alone.

AFFIRMED

All Citations
— Fed.Appx. —-, 2020 WL 58294

Footnotes

1
The Kolchinskys’ claims against Bentley and Bentley Trucking are not part of this appeal.

2
A federal court exercising diversity jurisdiction must apply the choice-of-law rules used by the state in which the court sits. NewSpin Sports, LLC v. Arrow Elecs., Inc., 910 F.3d 293, 300 (7th Cir. 2018). When there is no dispute over which state’s law applies, the court will apply the substantive law of the state in which the federal court sits. Med. Protective Co. of Fort Wayne v. Am. Int’l Specialty Lines Ins. Co., 911 F.3d 438, 445 (7th Cir. 2018). Here, the parties agree that Illinois law applies, and their choice is consistent with Illinois’s presumption in personal-injury cases to apply the law of the state in which the injury occurred. Townsend v. Sears, Roebuck & Co., 227 Ill.2d 147, 316 Ill.Dec. 505, 879 N.E.2d 893, 903 (2007).

2019 WL 6904130

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
Supreme Court of Florida.
Charles L. LIEUPO, Petitioner,
v.
SIMON’S TRUCKING, INC., Respondent.
No. SC18-657
|
December 19, 2019
Synopsis
Background: Individual who responded to accident scene to tow tractor-trailer brought an action against trucking company, alleging it was strictly liable for injuries he suffered when he came in contact with spilled battery acid. The Circuit Court, Hamilton County, William R. Slaughter, II, S.J., entered jury verdict in favor of plaintiff. Company appealed. The District Court of Appeal, Wolf, J., concluded that 1970 Pollutant Discharge and Control Act’s definition of damages precluded cause of action for personal injuries. Question was certified.

[Holding:] The Supreme Court, Polston, J., held that private cause of action in 1983 Water Quality Assurance Act permitted recovery for personal injury; receding from Curd v. Mosaic Fertilizer, LLC, 39 So. 3d 1216.

Ordered accordingly.

West Headnotes (5)

[1]
Environmental Law
Private right of action;  citizen suits

Private cause of action in 1983 Water Quality Assurance Act permitted recovery for personal injury; receding from Curd v. Mosaic Fertilizer, LLC, 39 So. 3d 1216. Fla. Stat. Ann. §§ 376.031(5), 376.313(3).

[2]
Appeal and Error
Statutory or legislative law

A certified question presenting an issue of statutory construction is reviewed de novo.

[3]
Environmental Law
Private right of action;  citizen suits

Plain meaning of “all damages” in 1983 Pollutant Discharge and Control Act under provision addressing discharge or other condition of pollution included personal injury damages. Fla. Stat. Ann. § 376.313(3).

[4]
Statutes
Language

A court’s determination of the meaning of a statute begins with the language of the statute.

[5]
Statutes
Plain language;  plain, ordinary, common, or literal meaning

If the language of a statute is clear, the statute is given its plain meaning, and a court does not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction.

Application for Review of the Decision of the District Court of Appeal – Certified Great Public Importance/Certified Direct Conflict of Decisions, First District – Case No. 1D17-2065 (Hamilton County)
Attorneys and Law Firms
Michael J. Damaso, II, and Jackson W. Adams of Wooten Kimbrough, P.A., Orlando, Florida; and Peter D. Webster of Carlton Fields, Tallahassee, Florida, for Petitioner
Jason Gonzalez and Amber Stoner Nunnally of Shutts & Bowen, LLP, Tallahassee, Florida, for Respondent
Kansas R. Gooden of Boyd & Jenerette, P.A., Jacksonville, Florida; and Andrew S. Bolin of Bolin Law Group, Tampa, Florida, Amicus Curiae Florida Defense Lawyers Association
Frank A. Shepherd of Gray Robinson, Miami, Florida; and William W. Large of Florida Justice Reform Institute, Tallahassee, Florida, Amicus Curiae Florida Justice Reform Institute
Opinion

POLSTON, J.

*1 We review the decision of the First District Court of Appeal in Simon’s Trucking, Inc. v. Lieupo, 244 So. 3d 370, 374 (Fla. 1st DCA 2018), a case in which the First District certified the following question of great public importance:
DOES THE PRIVATE CAUSE OF ACTION CONTAINED IN SECTION 376.313(3), FLORIDA STATUTES, [of the 1983 Water Quality Assurance Act] PERMIT RECOVERY FOR PERSONAL INJURY?
For the reasons explained below and receding from precedent as requested by Lieupo, we answer the certified question in the affirmative.1

I. BACKGROUND
The First District set forth the pertinent facts as follows:
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, [of the 1983 Water Quality Assurance Act] 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. The jury found the battery acid caused Lieupo’s injuries and awarded him a total of $5,211,500 in damages.
Id. at 371 (footnote omitted).

On appeal, the First District reversed the trial court’s decision based on this Court’s decision in Curd v. Mosaic Fertilizer, LLC, 39 So. 3d 1216 (Fla. 2010). Lieupo, 244 So. 3d at 371, 374. In Curd, 39 So. 3d at 1221, the majority applied the 1970 Pollutant Discharge Prevention and Control Act’s (the “1970 act”) definition of “damage” to a claim for economic loss brought by commercial fishermen under the 1983 Water Quality Assurance Act (the “1983 act”). The 1970 act defines “damage” 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.” Lieupo, 244 So. 3d at 373 (emphasis added) (quoting Curd, 39 So. 3d at 1221 (quoting § 376.031(5), Fla. Stat.)).

The First District concluded that “the majority [in Curd] 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, [not] merely dicta.” Id. Therefore, the First District concluded that it was “required to apply the 1970 act’s definition of damages here, which precludes [Lieupo]’s cause of action for personal injuries.” Id. at 374.

II. ANALYSIS
[1] [2] [3]We agree with the First District that it was required to apply this Court’s decision in Curd and that this Court’s application of the definition of “damage” from the 1970 act was part of this Court’s holding in Curd. However, because it is not supported by the plain meaning of the 1983 act, we now recede as requested by Lieupo from Curd’s incorrect application of the 1970 act’s definition of “damage” to a claim brought under the 1983 act.2

*2 [4] [5]A court’s determination of the meaning of a statute begins with the language of the statute. Lopez v. Hall, 233 So. 3d 451, 453 (Fla. 2018) (citing Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984)). If that language is clear, the statute is given its plain meaning, and the court does not “look behind the statute’s plain language for legislative intent or resort to rules of statutory construction.” City of Parker v. State, 992 So. 2d 171, 176 (Fla. 2008) (quoting Daniels v. Fla. Dep’t of Health, 898 So. 2d 61, 64 (Fla. 2005)).

As the First District summarized,
[c]hapter 376 regulates the discharge and removal of certain pollutants. The two portions of chapter 376 at issue in this case are the Pollutant Discharge [Prevention] and Control Act, passed in 1970 and codified at sections 376.011–376.21, Florida Statutes (the “1970 [a]ct”), 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.
Lieupo, 244 So. 3d at 371-72 (emphasis added); see, e.g., § 376.021, Fla. Stat. (2011) (entitled “Legislative intent with respect to pollution of coastal waters and lands”); § 376.041, Fla. Stat. (2011) (“The discharge of pollutants into or upon any coastal waters, estuaries, tidal flats, beaches, and lands adjoining the seacoast of the state in the manner defined by ss. 376.011–376.21 is prohibited.”).

Specifically, section 376.031(5), Florida Statutes (2011), of the 1970 act defines “damage” as “the documented extent of any destruction to or loss of any real or personal property, or the documented extent, pursuant to s. 376.121, of 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.” (Emphasis added.) However, section 376.031 plainly specifies that the definition only applies to sections 376.011 through 376.21, namely the 1970 act. See § 376.031 (“When used in ss. 376.011–376.21, unless the context clearly requires otherwise, the term … ‘Damage’ means ….”).

To be clear, before 1990, the 1970 act did not include a definition of “damage” in its definitions section. In 1990, the Legislature amended the definitions section of the 1970 act (section 376.031) to include the restrictive definition of “damage” applicable only to the 1970 act. See ch. 90-54, § 10, at 145, Laws of Fla. Then, in 1996, the Legislature amended the language in the cause of action section of the 1970 act. The language in section 376.205 was changed from “all damages” to “damages, as defined in s. 376.031” (the definitions section of the 1970 act), which limited the damages recoverable under the 1970 act to those defined in section 376.031. See ch. 96-263, § 13, at 1030, Laws of Fla.

While the 1970 act involves pollution of coastal waters and adjoining lands, the 1983 act provides a cause of action for those harmed by pollution of ground and surface waters. See § 376.30, Fla. Stat. (2011) (entitled “Legislative intent with respect to pollution of surface and ground waters”); § 376.302(1)(a), Fla. Stat. (2011) (prohibiting the discharge of “pollutants or hazardous substances into or upon the surface or ground waters of the state or lands”). Section 376.315, Florida Statutes (2011), provides that “[s]ections 376.30–376.317, being necessary for the general welfare and the public health and safety of the state and its inhabitants, shall be liberally construed to effect the purposes set forth under ss. 376.30–376.317 and the Federal Water Pollution Control Act, as amended.” Additionally, section 376.30(2)(b) provides that the Legislature found and declared that spills, discharges, and escapes of pollutants “as a result of procedures taken by private and governmental entities involving the storage, transportation, and disposal of such products pose threats of great danger and damage to the environment of the state, to citizens of the state, and to other interests deriving livelihood from the state.” (Emphasis added.)

*3 In contrast to the 1970 act, the 1983 act does not and never has included any definition of damages in its definition section. See § 376.301, Fla. Stat. (2011) (setting forth the definitions for sections 376.30-376.317, 376.70, and 376.75 (the 1983 act)). Instead, the 1983 act provides for the recovery of “all damages.” Specifically, section 376.313(3), Florida Statutes (2011), of the 1983 act states as follows:
Except as provided in s. 376.3078(3) and (11), nothing contained in ss. 376.30–376.317 prohibits any person from bringing a cause of action in a court of competent jurisdiction for all damages resulting from a discharge or other condition of pollution covered by ss. 376.30–376.317. Nothing in this chapter shall prohibit or diminish a party’s right to contribution from other parties jointly or severally liable for a prohibited discharge of pollutants or hazardous substances or other pollution conditions. Except as otherwise provided in subsection (4) or subsection (5), in any such suit, it is not necessary for such person to plead or prove negligence in any form or manner. Such person need only plead and prove the fact of the prohibited discharge or other pollutive condition and that it has occurred. The only defenses to such cause of action shall be those specified in s. 376.308.
(Emphasis added.)

In this case, because Lieupo filed his cause of action under section 376.313(3) of the 1983 act, the “all damages” language of the 1983 act applies, not the more restrictive definition of the 1970 act that expressly only applies to the 1970 act. The plain meaning of “all damages” includes personal injury damages. See Merriam-Webster’s Collegiate Dictionary 29 (10th ed. 1994) (defining “all” as “the whole amount or quantity of” and “as much as possible”); Black’s Law Dictionary 471 (10th ed. 2014) (defining “damages” as “[m]oney claimed by, or ordered to be paid to, a person as compensation for loss or injury”); Merriam-Webster’s Collegiate Dictionary 291 (10th ed. 1994) (defining “damage” as “loss or harm resulting from injury to person, property, or reputation”); see also State v. Brake, 796 So. 2d 522, 528 (Fla. 2001) (“[W]here a statute does not specifically define words of common usage, such words are construed in their plain and ordinary sense.”). Moreover, the Legislature has directed that section 376.313(3) be liberally construed. See § 376.315, Fla. Stat. (2011) (“Sections 376.30–376.317 … shall be liberally construed to effect the purposes set forth under ss. 376.30–376.317 ….”). Accordingly, section 376.313(3) of the 1983 act provides for the recovery of personal injury damages. If the text of the statute is overly broad as suggested by Simon’s Trucking, that is an issue for the Legislature to address.

The majority in Curd applied the incorrect definition of “damage” to determine that the 1983 act allows commercial fishermen to recover damages for their loss of income. Specifically, the majority in Curd applied the 1970 act’s definition of “damage” to a claim brought pursuant to the 1983 act. Section 376.031(5), the 1970 act’s definition of “damage,” excludes “destruction” to “human beings,” which would preclude the recovery of personal injury damages. However, as explained above, the language of the 1970 act’s definitions section clearly states that the definitions only apply to sections 376.011 through 376.21, namely the 1970 act. See Curd, 39 So. 3d at 1230 (Polston, J., concurring in part and dissenting in part).

III. CONCLUSION
*4 For the above reasons, we answer the certified question in the affirmative and hold that the plain meaning of “all damages” in section 376.313(3) of the 1983 act includes personal injury damages. As requested by Lieupo, we hereby recede from Curd’s incorrect application of the 1970 act’s definition of “damage” to a claim brought under the 1983 act. Accordingly, we quash the First District’s decision and remand for proceedings consistent with our decision.

It is so ordered.

CANADY, C.J., and LABARGA, LAWSON, and MUÑIZ, JJ., concur.
All Citations
— So.3d —-, 2019 WL 6904130

Footnotes

1
We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

2
The certified question presents an issue of statutory construction, which we review de novo. Borden v. East-European Ins. Co., 921 So. 2d 587, 591 (Fla. 2006).