It is a fairly well established rule that CERCLA does not provide for the recovery of personal injury damages; rather, CERCLA is intended to govern the remediation of contaminated sites.  Many states have passed their own mini-CERCLA regulations which also are intended to address the remediation of contaminated sites.  

The Florida mini-CERCLA is no exception.  The private party provision of the statute provides that “[n]otwishstanding any other provision of law, nothing contained in [the statute] prohibits any person from bring a cause of action in a court of competent jurisdiction for all damages resulting from a discharge or other condition of pollution….”  Fla. Stat. § 376.313(3).  The statute further provides that the only defenses to an action brought pursuant to this section are the typical CERCLA defenses such as act of war, act of god, act or omission of a third party, etc.  Fla. Stat. § 376.308.  

On its face, and as would typically be the case for a state mini-CERCLA statute based upon the federal CERCLA statute, the Florida legislature likely intended that the statute be used to allow private parties to recover for property damage caused by the releases of hazardous substances into the soil and/or groundwater.  However, a 1990 Florida appellate court decision held that the statute applied to an action by a former employee against its employer to recover for personal injuries allegedly suffered by exposure to hazardous substances in the workplace.  Cunningham v. Anchor Hocking Corp., 558 So.2d 93 (Fla. 1st DCA 1990).  The Cunningham court also noted, in dicta, that workers’ compensation immunity was not one of the listed defenses, which of course it wouldn’t have been since the statute was never intended to allow for the recovery of personal injury damages.  

Following Cunningham, things were relatively quiet in Florida for almost a decade and a half.  However, in the past year, there have been a number of toxic tort lawsuits filed in Florida state courts that seek to recover for personal injuries under Florida § 376.313.  In these lawsuits, Plaintiffs seek to recover from current and former owners and operators of contaminated sites for personal injuries allegedly caused by exposure to hazardous substances released into the groundwater, soil or air.  A troubling issue in these lawsuits is that many of the plaintiffs are former employees.  Since workers’ compensation immunity is not specifically listed as an enumerated defense under the statute, these employee-plaintiffs are using the statute to make an end run around the Florida workers’ compensation statute in an effort to recover for injuries allegedly suffered in the course of their employment.  

The issue of whether Florida’s mini-CERCLA statute can be used as a vehicle for the recovery of personal injury damages and whether workers’ compensation immunity is an applicable defense to such claims are issues that have not yet been (but are soon likely to be) addressed by the Florida Supreme Court.  The implications of how the Florida Supreme Court resolves this issue will be significant for owners and operators (current and former) of contaminated sites in Florida.  There is also a concern that this could spill over into other states.  State mini-CERLCA statutes are often not as carefully drafted as the federal CERCLA statute (to the extent one believes that the federal statute was carefully drafted).  If plaintiffs are successful with this theory in Florida, it remains to be seen whether these types of claims spread.  

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