source: Caselaw Access Project

author: EMAS, J. ROTHENBERG, J.

license: Public Domain

text:
    Everett A. BELANGER, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY, Appellee.
    No. 3D12-165.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 2014.
    Rehearing Denied June 25, 2014.
    The Ferraro Law Firm, and Melissa D. Visconti, Miami, and Jeffrey H. Sloman, Fort Lauderdale, for appellant.
    Carlton Fields, and Benjamine Reid, Amy Furness and Olga M. Vieira, Miami; Jones Day and Gregory G. Katsas, John F. Yarber, John M. Walker and Christine D. Graves, Washington, D.C., for appellee.
    Before SUAREZ, ROTHENBERG and EMAS, JJ.
   EMAS, J.

In 2007, Everett Belanger (“Belanger”), a longtime smoker with Chronic Obstructive Pulmonary Disease (“COPD”), filed a post-Engle lawsuit against R.J. Reynolds Tobacco Co. (“RJ.Reynolds”). Based on the record evidence, the trial court entered final summary judgment in favor of R.J. Reynolds, finding Belanger’s alleged cause of action was barred by the four-year statute of limitations. Specifically, the trial court concluded that Belanger’s cause of action accrued before the undisputed limitations bar date of May 5, 1990, as he had a “clear awareness ... that cigarettes were killing him” as of August 29, 1981. We conclude that the holdings of Engle, Carter v. Brown & Williamson Tobacco Corp., 778 So.2d 932 (Fla.2000), and Frazier v. Philip Morris USA Inc., 89 So.Sd 937 (Fla. 3d DCA 2012), require reversal of the final summary judgment entered by the trial court.

We review de novo the trial court’s order granting summary judgment. Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001); Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). The record evidence, which we must consider in a light most favorable to Belanger, reflects the following:

Belanger was born in 1926, and started smoking when he was ten years old. In the 1960’s or 1970’s, Belanger, by then a professional dancer, began to experience shortness of breath while dancing. His breathing became worse in the 1970’s and 80’s, but he did not seek medical attention specifically for shortness of breath. However, Belanger did seek medical attention from Dr. Katz for “terrible colds” during that time. X-rays taken of Belanger in the 1980’s showed that his lungs had scarring. Belanger attributed the scarring to bouts of pneumonia as a child, although he was not told this by his doctor. Further, Be-langer did not tell Dr. Katz or any other doctor that he smoked cigarettes and was experiencing shortness of breath.

In August 1981, while experiencing a severe cold and cough, Belanger decided to stop smoking. As he explained in his deposition:

Q: [W]as there some point in your life where, when you were smoking, you went from enjoying smoking and smoking because you wanted to smoke, to something different, and if so, when did that occur?
A: When I had such a cold that I couldn’t breathe and I was coughing my guts out and I was reaching for a cigarette, that is when I realized to myself, you sick son of a bitch, you are reaching for something that is killing you.
Q: And when was that?
A: August the 29th, 1981.
Q: Why is it you remember that date?
A: ... I had a terrible, terrible cold. I was coughing very, very much. I couldn’t enjoy the weekend with them, but I was in the hotel all the time coughing, choking, and that’s when I was reaching for a cigarette and coughing, and I said to myself, how stupid I was, because what I was reaching for was killing me. I was dying from choking and still reaching for a cigarette. That’s when I had an awakening of what I had was an addiction to the cigarette that controlled me....
Q: That’s the time that you had sufficient motivation to quit smoking?
A: Exactly. And I threw the pack away.
Q: You never had another one?
A: I never had another cigarette.
Q: And the coughing, that was a cough from a cold or a flu that you had, right?
A: Yes, yes.
Q: Had you ever had, prior to that time, any smoker’s cough that you’re aware of?
A: Every time when I had a cold, I would get that cough.
Q: Tell me why it wasn’t until 1981 that you believe you had sufficient motivation to quit smoking?
A: When I thought I was dying.
Q: Why did you think you were dying?
A: Because I was choking.
A: I’ve had severe coughs prior to that because I had pneumonia many times, and I had many colds during my lifetime, but the severe cough of that, and then coming to the realization of reaching for that cigarette as I am coughing, I came to the conclusion, or I had an awakening of what was causing it.

Belanger also testified in deposition that, while he believed at the time the smoking exacerbated his coughing and choking, he did not believe his smoking had caused a disease. Belanger testified that no medical professional told him prior to May 5, 1990 (the Engle limitations date) that his x-rays showed evidence of COPD, emphysema or other smoking-related medical condition; the first time a doctor or other medical professional advised him the scarring on his lungs was related to smoking was in 1993. This was also the first time he was referred to a pulmonologist, who determined at that time that Belanger suffered from COPD.

Thus, although R.J. Reynolds’ radiology expert, Dr. Cohen, opined, after a review of Belanger’s records in 2011, that those records revealed radiographic signs of emphysema and COPD as far back as 1985, there is no evidence that Belanger knew, or that any medical professional made him aware, he was suffering from, or manifesting symptoms of, a medical condition or disease which was caused by cigarette smoking. In fact, Dr. Cohen himself admitted that nothing in Belanger’s medical records indicated Belanger knew he had, or was told he had, COPD during the 1980’s. Belanger’s own expert, Dr. Pitch-enik, a pulmonologist, opined that although Belanger’s x-rays showed signs of emphysema in 1985, his coughing episode in 1981 would not have necessarily put him on notice that he had COPD. Belanger testified that he first became aware of this when he was diagnosed with smoking-related COPD in 1993, well after the Engle cutoff date of May 5, 1990. Therefore, because the evidence, taken in a light most favorable to Belanger, indicates that Be-langer did not know, as of May 5, 1990, the question remains whether the trial court can conclude, as a matter of law, that Belanger “reasonably should have known” prior to May 5,1990, that he was suffering from a medical condition or disease which was caused by cigarette smoking.

In granting summary judgment, the trial court found Belanger’s deposition testimony demonstrated he “was aware of his injury ... in 1981, the day that he quit smoking cold turkey. He had an awareness, clear awareness, in the transcript, that the cigarettes were killing him.” The trial court concluded that by 1981 Belan-ger “realize[d] that the cigarettes [were] killing [him],” and the statute of limitations therefore began running as of that date. The trial court erred in concluding that Belanger’s deposition testimony warranted a finding, as a matter of law, that Belanger reasonably should have known that he was suffering from a medical condition or disease caused by smoking.

In Carter v. Brown & Williamson Tobacco Corp., 778 So.2d 932 (Fla.2000), the Florida Supreme Court held that, in cases involving latent or “creeping” diseases, the cause of action accrues “when the accumulated effects of the deleterious substance manifest themselves to the claimant in a way which supplies some evidence of a causal relationship to the manufactured product.” Id. at 934. Carter, who smoked cigarettes for forty-four years, became concerned about his health on January 29, 1991, when he coughed and spit up blood. Upon consulting a medical dictionary, Carter discovered there were only two possible explanations for spitting up blood: lung cancer and tuberculosis. He quit smoking that day and sought medical help immediately, and he was told on February 14, 1991, that he had lung cancer. Carter filed suit on February 10, 1995.

Brown & Williamson moved for summary judgment, asserting Carter’s cause of action accrued on the day he spit up blood (January 29, 1991), and therefore, the statute of limitations ran on January 29, 1995. Carter argued that his cause of action did not accrue until he was told he had lung cancer (February 14,1991).

The First District Court of Appeal agreed with Brown & Williamson, holding that “the evidence shows beyond dispute that Grady Carter knew or should have known, before February 10, 1991, that his lungs were injured, and he was on notice that the injury was probably caused by smoking.” Id. at 938 (quoting Brown & Williamson Tobacco Corp. v. Carter, 723 So.2d 833, 835-36 (Fla. 1st DCA 1998)). The Florida Supreme Court reversed, ■ holding that although a jury could reasonably conclude Carter knew or should have known, prior to February 10, 1991, that the effects of smoking cigarettes manifested themselves in such a way to supply some evidence of a causal relationship to the cigarettes, a jury could also reasonably conclude otherwise. Carter, 778 So.2d at 938.

Importantly, the supreme court in Carter noted that “the question of when the statute of limitations begins to run in this type of case is ‘generally treated as a fact question for a jury to resolve, and therefore inappropriate for resolution on a summary judgment or directed verdict.’ ” Id. at 937. In conclusion, the supreme court held that “[bjecause conflicting reasonable inferences can be drawn from the record, this issue was a question of fact for the jury to resolve.” Id.

This court recently reversed a special interrogatory jury verdict based on a statute of limitations affirmative defense, finding “there was no competent record evidence that ‘the accumulated effects of the substance [had] manifested] in a -way which supplie[d to plaintiff] some evidence of the causal relationship to the manufactured product.’ ” Frazier v. Philip Morris USA Inc., 89 So.3d 937, 939 (Fla. 3d DCA 2012) (quoting Am. Optical Corp. v. Spiewak, 73 So.3d 120, 126 (Fla.2011)). In Frazier, the evidence at trial established that Ms. Frazier had been smoking for decades and began seeking medical treatment for respiratory problems in 1986. She was repeatedly diagnosed with recurrent pneumonia and bronchitis but was never referred to a pulmonologist or ordered to undergo specialized tests for investigation of a possible condition more serious than a short-term infection. In 1991, upon returning to the doctor for an upper respiratory infection, she was referred to a pulmonologist, who eventually diagnosed her with COPD related to long-term tobacco use. Of significance, and similar to the situation in the present case, Philip Morris’s expert testified that although not diagnosed at the time, Frazier suffered from COPD as early as 1986.

This court held that “the issue was whether [Frazier] knew, or reasonably should have known, enough to permit her to commence a non-frivolous tort lawsuit against the [tobacco companies] on the basis of those physical, observable, patent symptoms and effects (‘manifestations’) before that date.” Frazier, 89 So.3d at 946 (emphasis added).

The facts of the instant case are similar in nearly all relevant respects to the facts in Frazier, in that Belanger sought treatment for respiratory problems several times prior to 1990, but was never referred to a pulmonologist or diagnosed with COPD or emphysema until 1993. Additionally, RJ Reynolds’ expert testified that based on his review of x-rays taken in prior years, Belanger did have COPD or emphysema as early as 1985. However, Belanger testified he was not made aware of this until 1993, and none of the earlier medical records establish that he was contemporaneously diagnosed with, or advised he was manifesting symptoms of, emphysema or COPD. R.J. Reynolds’ focus on the after-the-fact diagnoses obscures the real question. The question is not whether in fact Belanger had COPD prior to May of 1990, but rather whether he knew or reasonably should have known prior to May of 1990 that he had COPD (or some other medical condition or disease) which was caused by his cigarette smoking. Be-langer testified (without contradiction) that he did not know that the lung scarring (found in x-rays in 1985) was smoking related. He testified (without contradiction) that he believed the lung scarring was the result of bouts of pneumonia he suffered as a child. He testified (without contradiction) that he did not know and was not told by any doctor, prior to May 1990, that he had symptoms of COPD or emphysema. Whether he in fact knew, or should have known, are determinations which necessarily involve a weighing of the evidence and an assessment of witness credibility. Frazier, Carter and Engle compel reversal so these disputed issues of material fact may be resolved by a jury.

The only relevant distinguishing feature between the instant case and Frazier is that Belanger stated in deposition he thought his addiction to cigarettes “was killing [him].” Even with this deposition testimony, there nevertheless remains a disputed issue of material fact whether Belanger knew or should have known that the cigarettes were causing a specific smoking-related medical condition or disease. In granting summary judgment, the trial court determined that Belanger knew or that he should have known, the day he quit smoking in 1981, that he suffered a specific smoking-related injury. However, had Belanger, on the day he quit smoking, filed a lawsuit against R.J. Reynolds, and alleged therein that he was injured and entitled to damages because he was addicted to smoking cigarettes and that those cigarettes were “killing [him],” such a lawsuit surely would not have survived a motion to dismiss. As Engle and its progeny make clear, the cause of action does not accrue unless and until Belanger “knew, or reasonably should have known, enough to permit [him] to commence a non-frivolous tort lawsuit against the [tobacco company] on the basis of those physical, observable, patent symptoms and effects (‘manifestations’) before that date.” Frazier, 89 So.3d at 946. The trial court’s reliance on Belanger’s claim that cigarettes “were killing [him]” as evidence that he “should have known” is the very type of generalized and undefined, “injury” analysis rejected by this Court in Frazier.

In a similar case, Philip Morris USA, Inc. v. Barbanell, 100 So.3d 152 (Fla. 4th DCA 2012), the Fourth District held the limitations period began to run when the smoker knew or should have known she had smoking-related COPD or lung cancer, not when she earlier became aware of an unspecified respiratory-related injury. Although there was evidence that the smoker had seen a doctor prior to May 1990 because she had difficulty breathing, her testing came back normal, and it was not until after May 1990 that the smoker first became aware that she had a specific medical condition (COPD) or disease (lung cancer) as a result of smoking cigarettes.

By this opinion we offer no view on the relative strength or weakness of Belan-ger’s cause of action or R.J. Reynolds’ affirmative defenses. Nor can we say who, ultimately, will prevail on the merits of this cause of action. Rather, we conclude only that, based upon the record and taking the evidence in a light most favorable to Belanger, what he knew or reasonably should have known as of May 5, 1990, remains a disputed issue of material fact which must be determined by the jury as a matter of fact and not by the court as a matter of law.

Reversed and remanded.

SUAREZ, J., concurs.

ROTHENBERG, J.

(dissenting).

Everett Belanger (“Mr.Belanger”), a longtime smoker with Chronic Obstructive Pulmonary Disease (“COPD”), filed a post- ' Engle lawsuit against R.J. Reynolds Tobacco Co. (“R.J.Reynolds”). Based on the record evidence, the trial court entered final summary judgment in favor of R.J. Reynolds, finding that Mr. Belanger’s alleged cause of action was barred by the four-year statute.of limitations. The trial court concluded that Mr. Belanger’s cause of action accrued before the undisputed limitations bar date of May 5, 1990, as he had “an awareness, clear awareness ... that cigarettes were killing him” as of 1981. Specifically, the trial court stated:

I find that the plaintiff was aware of his injury ... at least in 1981, the day that he quit smoking cold turkey. He had an awareness, clear awareness, in the transcript, that the cigarettes were killing him....
Here, I understand we don’t need a definitive diagnosis, but we have a very articulate plaintiff, who has a family history of people with smoking, and he’s a gentleman that had recovered from an addiction. He appeared to be very articulate in his deposition, aware of what was happening.
And he’s on vacation. He can’t enjoy his vacation; he is coughing. The worst coughing ever that he can remember. He is reaching for his cigarette and it is an epiphany. He realizes that the cigarettes are killing [him].
And, at that point, I find that there is no question that that is when the statute began to run ....

Based on the record evidence, reviewed in the light most favorable to Mr. Belan-ger, I would affirm the trial court’s order granting summary judgment in favor of R.J. Reynolds.

I. STANDARD OF REVIEW

We review the trial court’s order granting summary judgment de novo, Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001); Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). In reviewing the order, we “must consider the evidence in the record, including any supporting affidavits or documents, in the light most favorable to the non-moving party.” AJH Prop. Invs. Ltd. v. SunTrust Bank, 89 So.3d 948, 950 (Fla. 3d DCA 2012); see also Fla. R. Civ. P. 1.510(c). Therefore, the issue before this Court is whether the trial court erred by finding that the record evidence, when viewed in the light most favorable to Mr. Belanger, demonstrates that there is no genuine issue of material fact that he knew or reasonably should have known based on the manifestations of his physical, observable, and patent symptoms, that he had a disease or medical condition caused by cigarette use prior to May 5,1990.

II. THE UNDISPUTED EVIDENCE

The trial court found that Mr. Belanger knew or should have known he had a smoking related illness or medical condition prior to May 5, 1990. Although the majority has articulated some of the undisputed evidence, there is a great deal of evidence omitted. Because the omitted evidence supports the trial court’s conclusion, it will be included herein. The undisputed evidence relied on by the trial court is as follows.

A. Mr. Belanger’s tobacco use and worsening respiratory problems

Mr. Belanger, who was born in 1926 and started smoking at age ten, began to experience respiratory problems such as shortness of breath, coughing, and congestion at a young age. For example, as a teenager, Mr. Belanger experienced shortness of breath while playing sports and, in high school, respiratory problems prevented him from participating in the school band. Mr. Belanger continued to smoke, and these symptoms progressively worsened. In the 1960s, Mr. Belanger, a professional dancer, was unable to continue dancing professionally due to shortness of breath. As he explained, he was “puffing and puffing and puffing until the point where I couldn’t breathe anymore,” and after these “puffing” episodes, he would be “laid up in bed afterwards.”

Mr. Belanger also experienced heavy colds accompanied by not just a cough, but rather, what he identified as “smoker’s cough,” and in the 1980s, he repeatedly sought medical attention for his worsening respiratory problems. By his own account, his shortness of breath got “worse and worse” in the 1970s and the 1980s. By 1981, Mr. Belanger’s respiratory problems had become so severe that he quit smoking “cold turkey.” Specifically, Mr. Belanger testified: “I was in the hotel coughing, choking, and that’s when I was reaching for a cigarette and coughing and I said to myself, how stupid I was, because what I was reaching for was killing me.” (emphasis added). Mr. Belanger characterized this episode as an “awakening.”

B. Mr. Belanger’s knowledge of the hazards associated with smoking cigarettes

By his own admission, Mr. Belanger knew as early as the mid-1960s that smoking was hazardous to his health. For example, he attributed both his mother’s death from lung disease in 1967 and his father’s death from heart disease in 1975 to smoking cigarettes. Thus, he knew cigarettes killed his mother, cigarettes killed his father, and, as stated earlier, in 1981, he stopped smoking cold turkey because he knew that cigarettes were killing him. Mr. Belanger also warned his partner about the dangers of smoking and encouraged him to stop smoking because “he was stealing time away from us every time he picked up a cigarette.”

C. The medical evidence

It is undisputed that Mr. Belanger had a chest x-ray in 1985 that showed significant radiographic changes associated with COPD. In 1992, when Mr. Belanger was referred for another chest x-ray, the radiologist, Dr. Borrero, indicated in his report that Mr. Belanger had “emphysema-tous bullae and chronic interstitial fibrotic changes seen predominately in the left lung.” In comparing this x-ray with the chest x-ray taken in 1985, Dr. Borrero noted that there were “no significant changes since prior examination.” It is undisputed that “emphysematous bullae” are associated with COPD and emphysema.

In 1994, Mr. Belanger was referred for a third chest x-ray, after which Dr. Borrero reported: “Extensive chronic changes are seen bilaterally. These consist of large bullae in the upper lobes bilaterally as well as in the left lower lobe as well as some chronic pleural thickening and calcification on the left side.... Changes are stable since exams dating back to 1988.”

Dr. Arthur Pitchenik, a pulmonologist and Mr. Belanger’s expert, acknowledged that the pulmonary function test performed on Mr. Belanger in September 1993 indicated that he was suffering from severe to very severe COPD, and the report indicated that Mr. Belanger had experienced worsening shortness of breath (dyspnea) “for years.”

R.J. Reynolds’s expert, Dr. Lawrence J. Cohen, a diagnostic radiologist, testified in his deposition that he conducted a “blind review” of Mr. Belanger’s medical records and imaging to determine “what disease entities may be present, what symptoma-tology was present and ... what the imaging showed.” Dr. Cohen’s review included reports as to the several chest x-rays performed on Mr. Belanger. Dr. Cohen noted that Dr. Schneider’s report concerning a chest x-ray he performed on Mr. Belan-ger in September 1991 reflects that Mr. Belanger had both emphysema and pneumonia. Additionally, Dr. Borrero’s March 1992 report stated that Mr. Belanger had “emphysematous bullae.” Dr. Cohen explained that, ■ “[I]f you have bullae, you have emphysema,” and the report is “suggestive of COPD” because of the bullae. Dr. Cohen also noted that Dr. Borrero’s report indicated that the March 1992 films were compared to films dating back to 1985, and Dr. Cohen found there were no “significant changes since prior examination,” which, in Dr. Cohen’s opinion, means that the emphysematous bullae was present in 1985. The December 1994 chest x-ray and report issued by Dr. Borrero confirmed the earlier reports, finding the presence of “emphysematous bullae,” which Dr. Cohen testified meant that Mr. Belanger had COPD.

Dr. Cohen testified that “Mr. Belanger had radiographic signs of emphysema and COPD as far as back as 1985, as well as in 1988, and that after reviewing medical records and depositions, [Mr. Belanger] had symptoms consistent with COPD and emphysema.” Dr. Cohen also testified that, based on the symptoms Mr. Belanger was experiencing as early as 1981, Mr. Belan-ger

knew he had a problem because of his ongoing shortness of breath and dysp-nea, meaning shortness of breath on — on exertion, and knew he had a lung or chest disease problem. What it was — I don’t think he put a — had a name he could put on it or anyone actually described it for him, but I think he knew he had lung problems.

Dr. McGoohan, a family practitioner who had initialed Dr. Borrero’s 1992 report, testified in his deposition that he could not remember if Mr. Belanger was one of his patients or if he ever spoke to Mr. Belan-ger about the 1992 report. Dr. McGoohan did note, however, that because the 1992 report states that Mr. Belanger had em-physematous bullae, and that “[t]here is no significant change since the [1985] examinations,” the emphysematous bullae were present in 1985. Dr. McGoohan further testified that he “probably” would have marked Dr. Borrero’s report as “possible COPD,” and if Mr. Belanger was his patient, he would have most likely referred him to a pulmonologist for a definitive diagnosis.

Although the majority repeatedly states that Mr. Belanger testified “without contradiction,” it is important to note that, because Mr. Belanger has waited so long to file his lawsuit, most of his medical records have been destroyed. Although we will never know what Mr. Belanger told his doctors or what they told him, the evidence establishes that, based on what he did know, he should have known he was suffering from a smoking-related disease or illness.

The undisputed evidence demonstrates that, from as far back as the 1960s, Mr. Belanger knew of the dangerous effects of cigarette smoking. His mother died of lung cancer in 1967 and his father died in 1975 from heart disease due to cigarette smoking. Mr. Belanger also saw the effect cigarette smoking was having on his own health long before he lost his parents due to their cigarette smoking. He could not play sports or play in the band while a teenager due to his difficulty breathing, and his respiratory problems continued to worsen. In the 1960s, while his mother was dying of lung cancer related to cigarette smoking, Mr. Belanger could no longer dance professionally due to his breathing difficulties. He also experienced what he identified as a “smoker’s cough” and heavy colds which caused him to cough violently. His respiratory problems had become so severe by 1981, that he quit smoking “cold turkey” because, in his own words, he knew cigarettes were “killing” him. More importantly, even after he quit smoking in 1982, Mr. Belanger’s symptoms worsened. By 1993, he had severe to very severe COPD, where he could no longer walk a distance of fifty feet; he had difficulty breathing even at rest; and, at times, his breathing difficulties resulted in him being confined to his bed.

Mr. Belanger’s awareness that cigarette smoking was killing him in 1981, coupled with the worsening of the symptoms even after he quit smoking in 1981, and the chest x-rays taken in 1985 and 1992 showing “scarring” on his lungs, “emphysema-tous bullae,” and “chronic interstitial fi-brotic changes,” which are radiographic evidence of COPD, certainly put Mr. Be-langer on notice that he had an actionable smoking-related illness or disease. The manifestations of his illness were obvious, they continued to worsen, and Mr. Belan-ger recognized how serious they were. The fact he waited for a definitive diagnosis in 1993 was his choice and does not negate his awareness that he was suffering from a smoking-related illness or disease for many years. Importantly, his symptoms did not suddenly appear in 1994 or appreciably worsen because the unrefuted evidence is that radiological exams demonstrated “no significant changes from 1985 to 1994.”

III. THE APPLICABLE LAW

Initially, we note that, although the issue of when the plaintiff in a products liability action involving a creeping disease such as COPD knew or should have known he was suffering from the actionable injury is generally a fact issue for the jury to resolve, the Florida Supreme Court has left the door open for the rare case in which the issue may be decided as a matter of law. See Carter v. Brown & Williamson Tobacco Corp., 778 So.2d 932, 937 (Fla.2000) (holding that “the question of when the statute of limitations begins to run in this type of case is ‘generally treated as [a] fact question[ ] for a jury to resolve’ ”) (alteration in original) (emphasis added) (quoting Copeland v. Armstrong Cork Co., 447 So.2d 922, 926 (Fla. 3d DCA 1984). “In products liability actions involving latent or creeping diseases, ... ‘[t]he action accrues only when the accumulated effects of the deleterious substance manifest themselves [to the claimant] in a way which supplies some evidence of causal relationship to the manufactured product.’” Carter, 778 So.2d at 937 (quoting Copeland, 447 So.2d at 926 (citations omitted)). In Engle, the Florida Supreme Court explained that “[t]he critical event is not when an illness was actually diagnosed by a physician, but when the disease or condition first manifested itself.” Engle, 945 So.2d at 1276 (second emphasis added).

In conformity with Engle, Carter, and Copeland, the First District in R.J. Reynolds Tobacco v. Jewett, 106 So.3d 465, 472 (Fla. 1st DCA 2012), reversed a jury verdict in favor of an Engle plaintiff who died from COPD based on the failure to provide the jury with the following special jury instruction requested by R.J. Reynolds:

Defendants do not need to prove that Ms. Jewett was actually diagnosed with COPD prior to May 5, 1990, in order to prevail on this defense. For purposes of this defense, the critical event is not when her COPD was actually diagnosed by a physician, but when her COPD first manifested itself.
Ms. Jewett knew or should have known that there was a reasonable possibility that her COPD was caused by cigarette smoking if her COPD manifested itself to her in a way that supplied some evidence of a causal relationship to cigarette smoking. In making that determination, you may properly consider what Ms. Jewett knew prior to May 5, 1990, concerning the health risks of cigarettes.

Id. at 468 (emphasis added).

This Court has also recently addressed the issue of when a smoking-related disease, medical condition, or injury manifests itself for purposes of the limitations period in Engle-progenj lawsuits in Frazier v. Philip Morris USA Inc., 89 So.3d 937 (Fla. 3d DCA 2012). In Frazier, this Court reiterated that the issue was not when Ms. Frazier was actually diagnosed with a smoking-related injury, but rather when the disease or condition manifested itself. Id. at 944. We additionally held that the issue was not when Ms. Frazier developed COPD or emphysema, “the issue was whether she knew, or reasonably should have known, enough to permit her to commence a non-frivolous tort lawsuit against [the tobacco companies] on the basis of those physical, observable, patent symptoms and effects (‘manifestations’) before [the relevant] date.” Id. at 946.

In Frazier, “there was no competent record evidence that ‘the accumulated effects of the substance [had] manifested] in a way which supplie[d to Ms. Frazier] some evidence of the causal relationship to the manufactured product’ before the undisputed limitations bar date of May 5, 1990.” Id. at 939 (alterations in original) (footnote omitted). Specifically, although Ms. Frazier had periodic bouts of bronchitis and pneumonia, neither she nor any of her treating physicians ever suspected they were caused by her cigarette smoking. In fact, she believed on each occasion she simply had a “bad cold” or a short-term infection, and her belief was bolstered by the medical treatment she received. Id. at 940. Upon each visit, Ms. Frazier was prescribed antibiotics, no chest x-rays were performed, and she was not referred to a pulmonologist. Thus, because Ms. Frazier was not put on notice either by her doctors or her symptoms that she may have been suffering from a smoking-related illness or disease until February 1991, her action was not barred by the May 5, 1990, statute of limitations.

In contrast, Mr. Belanger knew by no later than 1981 that the difficulties he was experiencing — shortness of breath, severe coughing episodes, and repeated illnesses — were related to his cigarette smoking. He admits he knew by 1981 that smoking cigarettes was “killing” him. He was so concerned about the seriousness of his medical condition in 1981 that he quit smoking “cold turkey” after having smoked cigarettes for forty-five years. Mr. Belanger testified: “I was in the hotel coughing, choking, and that’s when I was reaching for a cigarette and coughing and I said to myself, how stupid I was, because what I was reaching for was killing me.” In Mr. Belanger’s own words, he did not quit smoking because smoking cigarettes made him cough or sick; rather he quit smoking because he knew that smoking cigarettes was killing him.

Despite quitting smoking in 1981, Mr. Belanger’s health did not improve. He watched his health continue to deteriorate and, by 1985, x-rays revealed scars on his lungs and other changes consistent with COPD. Mr. Belanger knew or should have known what his symptoms meant. He had witnessed firsthand the manifestations of smoking-related illnesses. He watched his mother die of lung cancer, and his father die of a heart disease, both of which he attributed to cigarettes. Despite his symptoms, and his knowledge of what those symptoms meant, he did not seek medical attention or a definitive diagnosis until 1993 when he could not even walk fifty feet, had difficulty breathing even at rest, and was often totally bedridden.

The fact that Mr. Belanger waited until his medical condition had become so dire should neither inure to his benefit, nor protect him from the limitations period. By his own admissions, Mr. Belanger knew by 1981 that cigarettes were killing him, and when his symptoms continued to worsen, based on his own awareness of the causal relationship of his symptoms, his use of cigarettes, and his family history, he knew or should have known that his medical condition was related to his forty-five year history of cigarette smoking. Thus, he should have sought a definitive diagnosis.

IV. CONCLUSION

Based on these undisputed facts, the trial court properly granted R.J. Reynolds’ motion for summary judgment, and therefore, we should affirm the trial court’s order. I, therefore, respectfully dissent from the majority’s opinion.

      . Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006).

      . AJH Prop. Invs. Ltd. v. SunTrust Bank, 89 So.3d 948, 950 (Fla. 3d DCA 2012).

      . There is no dispute in this case that Belan-ger’s COPD qualifies as a "creeping disease,” which is defined as "a disease acquired over a period of years as a result of long-term exposure to injurious substances.” Carter v. Brown & Williamson Tobacco Corp., 778 So.2d 932, 936 (Fla.2000) (citing Copeland v. Armstrong Cork Co., 447 So.2d 922, 926 (Fla. 3d DCA 1984)).

      . The trial court initially certified a nationwide class consisting of "[a]ll United States citizens and residents, and their survivors, who have suffered, presently suffer or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.” Thereafter, this Court affirmed the class certification, but limited the class to Florida citizens and residents. R.J. Reynolds Tobacco Co. v. Engle, 672 So.2d 39 (Fla. 3d DCA 1996). The Florida Supreme Court decertified the class, but held that qualifying class members can file individual actions, and rely on the findings of fact common to the class members' claims, defining the Engle class members as "[a]ll [Florida] citizens and residents, and their survivors, who have [as of November 21, 1996,] suffered, presently suffer or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.” Engle v. Liggett Group, Inc., 945 So.2d 1246, 1275 (Fla.2006). As the Engle class action was filed in the lower tribunal on May 5, 1994, and Florida has a four-year statute of limitations period for product liability actions, § 95.11(3), Fla. Stat. (1994), an individual's Engle cause of action must have accrued between May 5, 1990, and November 21, 1996, the cut-off date for class membership.

      . This is why we have statutes of limitation. See Estate of Eisen v. Philip Morris USA, Inc., 126 So.3d 323, 328 (Fla. 3d DCA 2013) (“The primary purpose of a statute of limitations is to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend.”); Ar-velo v. Park Fin. of Broward, Inc., 15 So.3d 660, 663 (Fla. 3d DCA 2009) ("Statutes of limitation are intended to encourage the enforcement of legal remedies before time dilutes memories, witnesses move to greener pastures, and parties pitch out (or “delete,” in this electronic age) old records.”).


author: LOGUE, J.

text:
    Jerilynn GIDNEY and Michael Goldberg, etc., Appellants/Cross-Appellees, v. AXIS SURPLUS INSURANCE COMPANY, Appellee/Cross-Appellant.
    No. 3D12-1250.
    District Court of Appeal of Florida, Third District.
    April 9, 2014.
    Rehearing Denied June 25, 2014.

      Fuerst Ittleman David and Joseph, PL, and Allan A. Joseph and Michael B. Korn-hauser; Akerman Senterfitt, and Marc Gottlieb and Gerald B. Cope, Jr., for appellants/cross-appellees.
    Campbell Law Firm PLLC, and Dennis M. Campbell and Rossana Navarro, and Tania M. Varela, for appellee/cross-appel-lant.
    Before SHEPHERD, C.J., and SALTER and LOGUE, JJ.
   LOGUE, J.

Appellants challenge a final summary judgment of the trial court that determined no coverage was owed under a claims-made insurance policy for a class action claim because the claim was filed outside the policy period. We hold that the trial court erred in determining that the class action claim was not covered. The class action claim at issue was based on the same or similar facts, circumstances, and transactions as a claim brought before the policy terminated. Under the policy provision governing multiple claims, therefore, the class action claim relates back to the earlier-filed claim. Accordingly, we reverse.

FACTS AND PROCEDURAL HISTORY

Berman Mortgage Corporation (“BMC”) is a mortgage broker that arranged for privately funded mortgages for commercial properties. It brokered and then serviced the mortgages for private investors who participated in the loans. Axis Surplus Insurance Company issued BMC a Miscellaneous Professional Liability Insurance Policy, with effective dates from May 10, 2007 to May 10, 2008 (“the policy”). The policy covers, among other things, “[a] negligent act, error or omission.”

In October 2007, Robert Revitz, a private investor who had participated in a number of BMC’s mortgages, filed a complaint against BMC and other entities alleging BMC negligently brokered and serviced mortgages by various actions, including: (1) “failing to perform proper due diligence to determine the viability of the projects;” (2) using negligent accounting practices, including “co-mingling the funds” and “co-mingling income and revenue;” and (3) “negligently failing to fully and accurately disclose the amount, nature and status of superior encumbrances on the property.” This claim (“the Revitz claim”) named eleven mortgages and claimed damages in excess of $4.5 million. The Revitz claim was filed during the policy period and Axis received notice of the claim during the policy period.

In December 2007, Michael Goldberg (“the Receiver”) was appointed to serve as receiver over BMC’s assets to protect its creditors. The Revitz claim was stayed as a result of the receivership.

In May 2009, after the policy had terminated, the Receiver and Jerilynn Gidney, an investor in BMC’s mortgage transactions, filed a class action complaint against the principal officers of BMC on behalf of approximately 640 similarly situated investors who had financed mortgages brokered by BMC (“the class claim”). The class complaint claimed damages in excess of $168 million. The complaint alleged that BMC negligently brokered and serviced forty-one named projects by (1) “neglecting to engage in fundamental due diligence required by minimum industry standards,” (2) “neglecting to ensure that minimum accounting safeguards were in place,” and (3) “neglecting to ... advise Lenders of superior liens in certain properties.” The class claim also alleged that Gidney is the attorney-in-fact to bring claims on behalf of several relatives who were also major investors in the projects at issue, including Revitz.

In response to the class claim, Axis filed the instant declaratory judgment action, seeking a declaration that no coverage was owed under the policy for the class claim. Axis moved for summary judgment and Gidney and the Receiver cross-moved. The trial court granted Axis’s motion for summary judgment and denied Gidney and the Receiver’s motion. Gidney and the Receiver timely appealed.

ANALYSIS

The trial court analyzed the coverage issue under the Reported Wrongful Acts provision of the policy, treated the Revitz claim as if it were a report by the insured, and held that the Revitz claim did not provide the insurer with the information required under that provision. We hold that the coverage issue should have been analyzed under the Multiple Claims provision of the policy, which does not require the insured to provide any particular level of information, but instead requires only that the subsequent claim be based upon the same or similar facts, circumstances, and transactions as a prior claim brought during the policy period. When so analyzed, the class action claim relates back to the Revitz claim and, therefore, the class action claim is covered.

A. Claims-Made Insurance

The policy at issue is a “claims-made” insurance contract. Insurance can be written on either an “occurrence” or “claims-made” basis. Occurrence policies “trigger the carrier’s liability if the error or omission occurs during the period of policy coverage, regardless of the date of discovery or the date the claim is made or asserted.” U.S. Fire Ins. Co. v. Fleekop, 682 So.2d 620, 622 (Fla. 3d DCA 1996) (citation and internal quotation omitted). An occurrence policy allows an insured to make a claim against the policy long after the policy has terminated, so long as the occurrence from which the claim arises took place during the policy period.

With claims-made policies, on the other hand, coverage will only “trigger ... if the negligent or omitted act is discovered and brought to the attention of the insurer within the policy term.” Id. (citations and internal quotation omitted). With claims-made policies, notice to the insurer of a claim or potential claim during the policy period is generally required to trigger the insurer’s coverage obligations. This notice typically takes the form of the claim being made during the policy period.

In the instant case, for example, this type of basic, claims-made coverage is provided by the provision of the policy entitled “Claims First Made.” This provision reads:

Claims First Made
This insurance applies when a written Claim is first made against any Insured during the Policy Period. To be covered, the Claim must also arise from a Wrongful Act committed during the Policy Period.
The Company will consider a Claim to be first made against an Insured when a written Claim is first received by any Insured.

Claims-made policies also often permit coverage of “related claims,” meaning claims made after the policy period that related back to (1) a report made by the insured during the policy period, or (2) a claim made by a third party during the policy period. The “related claims” provisions serve the following purposes:

(a) to allow insurers to confíne related wrongful acts to a single policy period and, thereby, a single liability limit, and
(b) to allow an insured to buy a new policy, despite facing additional liability exposure from its past acts, by having future related claims covered by the prior policy.

In re DBSI, Inc., 08-12687 PJW, 2011 WL 3022177, at *3 (Bankr.D.Del. July 22, 2011) (citations omitted). The dispute in this case focuses on whether the Revitz claim comes within the “related claims” provisions of the policy.

B. The Revitz Claim Does Not Come Within the Reported Wrongful Acts Provision.

The trial court focused on the related claims provision entitled “Reported Wrongful Acts” which provides coverage for claims made subsequent to the policy period but that relate back to a prior written report by the insured. Under this provision, the insured gives the insurer a report of a wrongful act it committed during the policy period. By reporting its wrongful act, even though no claim has yet been made, the insured puts the insurer on notice of potential liability, and thereby secures coverage in the event a claim is subsequently made.

The Reported Wrongful Acts provision contains strict requirements concerning the level of information that must be reported. This Reported Wrongful Acts provision of the policy reads:

Reported Wrongful Acts
This policy will apply to a written Claim first made against any Insured after the end of the Policy Period, but only if all of the following conditions are met:
(1) The Wrongful Act giving rise to the Claim is committed between the Retroactive Date and the end of the Policy Period;
(2) The Company receives written notice from the Insured during the Policy Period of the Wrongful Act. The notice must include all of the following information:
(a) The names of those persons or organizations involved in the Wrongful Act;
(b) The specific person or organization likely to make the Claim;
(c) A description of the time, place and nature of the Wrongful Act; and
(d) A description of the potential Damages[.]

The trial court treated the Revitz claim as a written report of a wrongful act under this provision. Because the Revitz claim did not provide “a description of the potential damages” that included the class action claim, the trial court concluded the Revitz claim did not constitute an adequate report to trigger coverage of the class claim. We agree the Revitz claim did not provide this information. But we disagree with the conclusion that the Reported Wrongful Acts provision governs the coverage dispute at issue. As discussed in the next section, the policy contains a specific provision which deals with when and how such later-filed claims relate back to a previously-filed claim, like the Revitz claim.

For this reason, we distinguish National Union Fire Insurance Co. of Pittsburgh, PA v. Underwriters at Lloyd’s, London, 971 So.2d 885 (Fla. 3d DCA 2007). National Union concerned whether subsequent claims related back to an insured’s report of a wrongful act, not whether subsequent claims related back to an actual claim. This distinction is crucial because the policy provision at issue in National Union, like the Reported Wrongful Acts provision in the instant case, provided that the insured’s report seeking to secure coverage for potential future claims had to adequately describe the potential liability presented by the possible future claims. The Court found that the report at issue failed to do so. In contrast, the Multiple Claims provision which governs here has no requirement that a prior claim identify or describe the potential liability stemming from related claims.

C. Under the Multiple Claims Provision, the Class Action Claim Relates Back to the Revitz Claim Because It is Based on Common Facts, Circumstances, Transactions, Events or Decisions.

The provision of the policy entitled “Multiple Claims” provides coverage for claims made subsequent to the policy period that relate back to a prior claim brought by a third party during the policy period against the insured. The policy defines “claim” as “a demand or assertion of a legal right seeking Damages made against any Insured.” The Multiple Claims provision deems all claims that arise from the same “wrongful act” to have been made on the date the first of the claims is made.

The Multiple Claims provision reads:

Multiple Claims

All Claims arising from the same Wrongful Act will be deemed to have been made on the earlier of the following times:

(1) The date the first of those Claims is made against any Insured; or
(2) The first date the Company receives the Insured’s written notice of the Wrongful Act.

Significantly, the Multiple Claims provision does not require that the insured anticipate the subsequent related claim or provide a description of the estimated damages that might result from any subsequent claim. Instead, in language crucial to this case, the policy states that all wrongful acts “related by common facts, circumstances, transactions, events and/or decisions ... will be treated as one Wrongful Act.”

The Multiple Claims provision governs whether the class claim relates back to the Revitz claim. The Revitz claim was a claim covered by the policy made during the policy period.

The central issue in this case thus becomes whether the class claim relates back to the Revitz claim in such a manner as to trigger coverage under the Multiple Claims provision of the policy. If the class claim and the Revitz claim are “related by common facts, circumstances, transactions, events and/or decisions ... [they] will be treated as one Wrongful Act” and the class claim will be “deemed to have been made” on the date of Revitz claim — which was made during the policy period. For the reasons explained below, we hold that the class claim relates back to the Revitz claim under the Multiple Claims provision.

In Capital Growth Financial LLC v. Quanta Specialty Lines Insurance Co., 07-80908-CIV, 2008 WL 2949492 (S.D.Fla. July 30, 2008), the court interpreted a “claims-made” policy with a related claims .provision similar to the Multiple Claims provision at issue here. During the policy period, one client had filed an arbitration claim against the insured brokerage firm claiming that the firm had churned the account and inappropriately invested in high-risk stocks. Later, after the policy period had expired, five other clients came forward and filed similar claims. The issue was whether the later claims filed after the policy period related back to the first claim filed during the policy period.

The policy in Capital Growth defined “interrelated wrongful acts” as those “connected by reason of any common fact, circumstance, situation, transaction, casualty, events, decision or policy or one or more series of facts, circumstances, situations, transactions, casualties, event, decisions or policies.” Id. at *1. The court noted that “ ‘relatedness’ [is] a concept encompassing both logical and causal connections, an assessment which typically involves consideration of whether the acts in question are connected by time, place, opportunity, pattern, and perhaps most importantly, by method or modus operandi.” Id. at *4 (citation omitted). This policy language, the court found, “does not require exact factual overlap, or even identical legal causes of action, but rather focuses simply on whether the claims are logically linked by a ‘sufficient factual nexus.’ ” Id.

In Capital Growth, the Court held that the claims filed after the policy period related back to claim because the claims “all share the common allegation ... [of] a pattern of churning and unsuitable, aggressive and risky investments for clients expressing conservative trading objectives.” Id. at *2. It did so even though the claimants, the accounts, the individual investments, and the damages were different. The court reasoned that neither the “variation in the types of misrepresentations allegedly made to induce the investors,” nor “the unique financial position of each investor” was sufficient to negate the interrelatedness of the claims. Id. at *5.

The analysis in Capital Growth supports the conclusion that the class claim in the instant case relates back to the Revitz claim. As in Capital Growth, the class claim and the Revitz claim are based on the same course of conduct by the insured, in this case BMC’s allegedly negligent brokering and servicing of mortgages. The fact that individual class members may have been involved in separate mortgage transactions does not negate the fact that each claim is based on BMC’s negligence in this regard. We agree with the court in Capital Growth that “the unique financial position of each investor” in the various projects financed through BMC does not change the fact that the claims are related by a “sufficient factual nexus.”

Similarly, in Vozzcom, Inc. v. Great American Insurance Company of New York, 666 F.Supp.2d 1332, 1339 (S.D.Fla.2009) aff'd, 374 Fed.Appx. 906 (11th Cir.2010), the court held that multiple claims filed after the policy period related back under a “claims-made” policy to a claim filed during the policy period. In Vozz-com, one employee filed a claim during the policy period contending that Vozzcom had illegally failed to pay wages for overtime work. After the policy period expired and during a time when Vozzcom was insured by a different insurer, other employees came forward and similarly claimed Vozz-com had illegally failed to pay them overtime. The court held that the later-filed claims arose from the same “wrongful act” under the policy as the claims filed during the policy period, and thus were together considered a “single claim” under the policy. As such, those later-filed claims fell within the policy coverage of the earlier policy period, which was issued by the prior insurer. Id.

In assessing the relatedness of the claims, the Vozzcom court focused on factors such as “whether the parties are the same, whether the claims all arise from the same transactions, whether the ‘wrongful acts’ are contemporaneous, and whether there is a common scheme or plan underlying the acts.” Id. at 1338. The court concluded that these factors supported a determination that the claims were related, because the multiple claimants were “employed in the same positions, as cable technicians!,] ... were non-exempt hourly or piece rate workers!,] ... were employed by Vozzcom during approximately the same time period!, and] ... were allegedly denied overtime coverage in the course of their employment by Vozzcom.” Id. at 1339.

The relatedness analysis in Vozzcom supports the conclusion that the class claim in the instant case relates back to the Revitz claim. In terms of BMC’s alleged negligence, the members of the class are investors in the same situation as the investors who made the Revitz claim. Indeed, while the class members constitute a broader group of plaintiffs, Revitz is within the group. Most of the specific projects listed in the Revitz claim are included in the class claim. Finally, the Revitz claim and the class claim are based on the same course of conduct by BMC, particularly its alleged failure to conduct due diligence, maintain proper accounting, and detect and report prior encumbrances on the properties which provided collateral for the loans.

It could be argued that the class claim should not relate back to the Revitz claim because the potential damages relating to the class claim are significantly greater than the damages at issue in the Revitz claim. We find no authority to support this contention.

The number of claimants or amount of alleged damages involved in each claim is not dispositive in this analysis under a Multiple Claims provision like the one at issue. Acts can be “related” under the policy’s definition of “Wrongful act” even if the resulting claims differ in magnitude, such as the amount of damages or number of claimants, so long as the basis of those claims are “common facts, circumstances, transactions, events and/or decisions.” See, e.g., Capital Growth Fin. LLC v. Quanta Specialty Lines Ins. Co., 07-80908-CIV, 2008 WL 2949492 (S.D.Fla. July 30, 2008) (holding that five subsequent claims by different claimants arose from the same wrongful act as a sole earlier claim filed during the policy period because the claims were connected by common facts and circumstances); Am. Med. Sec., Inc. v. Exec. Risk Specialty Ins. Co., 393 F.Supp.2d 693, 707 (E.D.Wis.2005) (holding that thirty-eight subsequent lawsuits, including several class actions, related to prior class action because they were all based on the insured’s allegedly illegal underwriting practice).

Our conclusion that the class action claim relates back to the Revitz claim is in accordance with the dual purposes behind related claims provisions in claims-made insurance policies mentioned earlier in this decision. This interpretation limits Axis’s liability for all claims related to the wrongful act at issue in the class claim and the Revitz claim — negligent brokering and servicing of the mortgages — to a single policy period and liability limit. Although BMC is in receivership, this interpretation also would have allowed BMC to purchase a similar professional liability policy from a subsequent insurer, despite the potential for more claims arising from its alleged negligence during the policy period.

CONCLUSION

In sum, we hold that class claim is covered under the policy because it is related by common facts, circumstances, transactions, events, and decisions to the Revitz claim and therefore relates back to the Revitz claim under the Multiple Claims provision of the policy.

Reversed and remanded for proceedings consistent with this opinion.

      . National Union involved a written report of a future “potential claim.” 971 So.2d at 887. The report sought to secure coverage under a directors and officers liability policy in the event that the directors and officers were sued after the policy period expired. That written report consisted of a cover letter with a copy of a complaint against the company that employed the insured directors and officers. The complaint sought a declaration that a third party had rightfully terminated an agreement to merge with the company. The complaint was not covered by the policy because no director or officer had been named as a defendant. After the policy period expired, the officers and directors were sued in a different lawsuit by shareholders for violations of federal securities laws. The issue arose whether the subsequent lawsuit for securities violations related back to the prior written report of the lawsuit over the failed merger. This Court held that the report did not provide the details required under a policy provision, which required the insured to report the potential consequences or exposure that might result from the reported wrongful act. Id. at 887-88. This court reasoned that "[tjhere was no reference in these materials to intimate a potential claim that might be brought against [the company’s] directors and officers by its shareholders for securities law violations.” Id. at 889. National Union thus involved whether the subsequent claim related back to a report by the insured seeking to secure coverage; it did not involve whether a subsequent claim related back to a prior claim.

      . To the extent that Axis argues that the requirements of the Reported Wrongful Acts provision in the instant case be imported into the Multiple Claims provision, we decline to accept such an interpretation, which involves rewriting the language of the policy. Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 166 (Fla.2003) ("[W]e have consistently held that in construing insurance policies, courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect.”) (internal quotations and citation omitted).

      . This last sentence overlaps with the Reported Wrongful Acts provision. It addresses the situation where multiple claims are filed after the policy period. If the insured anticipated these claims by filing a written report during the policy period of the wrongful act from which all of these subsequent claims arose, then all of the subsequent claims will relate back to that written report.

      . Because the Multiple Claims provision applies to bring the class claim within the policy period, we need not address the issue of the propriety of the policy termination raised by Gidney and the Receiver. We also note that the trial court has not yet considered the class certification question in this case. This opinion should not be construed to offer an opinion of this court on that question. We affirm without discussion Axis's cross appeal on the application of a policy exclusion.


author: CLARK, J. WOLF, J.,

text:
    Reuben ALEXIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2489.
    District Court of Appeal of Florida, First District.
    April 14, 2014.
    Rehearing Denied June 4, 2014.

      Dane K. Chase of Chase Law Florida, P.A., Saint Petersburg, for Appellant.
    Pamela Jo Bondi, Attorney General, and Meredith Clark Hinshelwood, Assistant Attorney General, Tallahassee, for Appel-lee.
   CLARK, J.

Reuben Alexis appeals his conviction of aggravated assault with a firearm. The sole issue before the Court is whether Alexis validly waived his trial attorney’s potential conflict of interest due to the joint representation of Alexis and a code-fendant. Based upon this Court’s holding in Lee v. State, 690 So.2d 664 (Fla. 1st DCA 1997), we conclude that because the trial court’s inquiry was legally insufficient, Alexis’ waiver of his attorney’s potential conflict was invalid. Such a finding requires reversal and remand for a new trial. Subsequent to their arrests, both Alexis and his codefendant were tried together and represented by the same attorney. The issue of a potential conflict of interest due to the joint representation was raised at a pretrial hearing.

DEFENSE COUNSEL: And by the way Judge, since both young men are here, I discussed with them a possible conflict of interest here cause of the facts. Terry Guerrier, though wants me to continue to be his attorney; because he emphatically denies ever making the statement to law enforcement. So I think that would take it out of the conflict. But I told him it was his call. And he’s in the courtroom, but he’s told me he wants me to continue to represent both of them. And Mr. Alexis says the same thing.
PROSECUTOR: And, Your Honor, for 3850 purposes, could we inquire of the defendants to make sure that there is no conflict, and that they waive any possible conflict by being represented by the same counsel?
COURT: Okay. Let’s bring them on up, then. And which one is this?
DEFENSE COUNSEL: This is Terry Guerrier, Your Honor.
MR. GUERRIER: Terry Guerrier.
COURT: Mr. Guerrier, and this then must by [sic] Mr. Alexis.
MR. ALEXIS: Reuben Alexis.
COURT: Okay. And the State Attorney does want to make sure that you don’t come back later; and file a claim and say Mr. Harrison was ineffective, because he was representing you with a conflict. But you heard what he just said, Mr. Harrison?
MR. GUERRIER: Yes, sir.
COURT: And knowing that there’s that potential conflict, both of you still want him to be your attorney?
MR. GUERRIER: Yes, Sir.
MR. ALEXIS: Yes, Your Honor.
COURT: Okay. Is that okay?
PROSECUTOR: That should be sufficient, Your Honor.
COURT: Okay.
DEFENSE COUNSEL: Thank you, Judge.

Alexis now argues his waiver was invalid. We agree.

“When defense counsel makes a pretrial disclosure of a possible conflict of interest with the defendant, the trial court must either conduct an inquiry to determine whether the asserted conflict of interest will impair the defendant’s right to the effective assistance of counsel or appoint separate counsel.” Lee, 690 So.2d at 667 (citing Holloway v. Arkansas, 435 U.S. 475, 484, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978)). A defendant may however validly waive a conflict by “clear, unequivocal, and unambiguous language.” Id. Our supreme court has mandated three requirements to show a waiver of conflict: the record must show the defendant (1) was aware of the conflict of interest, (2) realized the conflict could affect the defense, and (3) knew of the right to obtain other counsel. Id. (quoting Larzelere v. State, 676 So.2d 394, 403 (Fla.1996)). Each of these requirements is independent of the others and essential. Id. Without each, a defendant’s waiver of his right to conflict-free counsel is not voluntary. Id.

In this case, when defense counsel disclosed his possible conflict of interest the trial court became legally obligated to either conduct an inquiry or appoint separate counsel. Here, the court made an attempt at an inquiry. Yet it was not sufficient. The trial court’s inquiry must address the three requirements of Lee: the defendant (1) was aware of the conflict of interest, (2) realized the conflict could affect the defense, and (3) knew of the right to obtain other counsel. It is the trial judge’s responsibility to conduct this three-part inquiry.

The record here shows the court failed to inquire into the second and third requirements — whether Alexis knew his defense could be affected by his attorney’s potential conflict or that he had the right to obtain other, conflict-free counsel. Further, an examination of the rest of the record does not reveal that Alexis had independent knowledge of these prior to making his waiver. As such, because the inquiry here was legally insufficient, Alexis’ resulting waiver was invalid. Therefore, the trial court erred in determining that Alexis voluntarily waived his right to conflict-free counsel.

“[EJrror in accepting a waiver of the right to conflict-free counsel cannot be excused as harmless error on direct appeal.” Id. at 668. When, as here, Alexis “preserve[d] the conflict issue by raising it before trial and [did] not validly waive the conflict, the trial court’s failure to conduct an inquiry ... requires that the resulting conviction be reversed.” Id. at 668-69. Due to the trial court’s error in accepting his invalid waiver of conflict-free counsel, Alexis’ conviction is REVERSED and the ease is REMANDED for a new trial.

VAN NORTWICK, J., concurs, and WOLF, J., concurring with opinion.

WOLF, J.,

concurring.

Were we not bound by this court’s decision in Lee v. State, 690 So.2d 664 (Fla. 1st DCA 1997), I would affirm for two reasons. The trial court conducted a sufficient inquiry concerning a potential conflict based on the circumstances, and the failure to conduct a more thorough inquiry in this case should constitute harmless error.

First, at the time the trial court was made aware of a potential conflict, counsel represented that the issue had been resolved. Any potential conflict of interest arose out of a statement made by appellant’s co-defendant in this case. It was revealed that the co-defendant now disavowed the statement, and both defendants wished to pursue compatible defenses that neither committed the crime. In fact, the State never sought to introduce the statement at trial. No conflict existed. The Third District affirmed under similar circumstances in Dixon v. State, 758 So.2d 1278 (Fla. 3d DCA 2000). Absent the decision in Lee, I would affirm based on Dixon.

Second, I disagree with the reasoning in Lee that the harmless error analysis may never be applied in cases upon failure to conduct a sufficient conflict of interest inquiry because of the holding in Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). In Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), the U.S. Supreme Court said Holloway ⅛ holding means automatic reversal is only necessary where counsel is required to conduct joint representation over a specific objection asserting that a conflict exists which precludes adequate representation. In the instant case, exactly the opposite occurred. Counsel specifically represented that any conflict no longer existed. In light of counsel’s representations, and the fact that any potential conflict was totally alleviated by the State’s decision not to introduce the co-defendant’s statement, along with the overwhelming evidence of guilt, I would find any error to be harmless were I free to do so. This is another case that demonstrates the folly in applying a per se reversible error rule in too many circumstances. I have no doubt that the result in this case was not affected by the alleged error. A reversal in this case does not promote either justice or judicial economy.