Florida/Georgia Personal Injury & Workers Compensation

...of America, 824 So.2d 997, 999 (Fla. 4th DCA 2002) ("A `cumulative remedies' clause in a statute usually does not supersede other common law remedies."); cf. *26 Flo-Sun, Inc. v. Kirk, 783 So.2d 1029, 1036 (Fla.2001) (concluding that interpreting a cumulative remedies clause in section 403.191, Florida Statutes (1995), to foreclose other remedies "would be less than intellectually credible")....

...The district court added: If [Petitioners] can later disprove [Respondents'] allegations through record evidence, then the doctrine of primary jurisdiction might serve as a basis for disposing of this case. Id. Additionally, relying primarily on the "cumulative remedies" clause in section 403.191, Florida Statutes (1995), the Fourth District disagreed with the trial court and held that that chapter 403 had not impliedly superseded chapter 823....

...relating to the protection of Florida's air and waters from contamination. The Act deposits the power and duty to control and prohibit air and water pollution with the DEP. See § 403.061, Fla. Stat. (1995). It also includes the following provision: 403.191 Construction in relation to other law....

...ndent civil action under or pursuant to chapter 403, it nevertheless noted that the state attorney had the authority to initiate an action to abate or enjoin a public nuisance. Specifically, the court relied on the "cumulative remedies" provision in section 403.191 in support of its reasoning that "a public nuisance cause of action seems to be one of the `rights of action or remedies in equity under the common law or statutory law' which is not abridged or altered by chapter 403 and is cumulativ...

...In this case, the district court below determined that chapter 403 did not impliedly supersede the provisions of chapter 823; therefore, according to the district court, a cause of action for public nuisance relating to air and water pollution still remains a viable option. We agree. First, the language of section 403.191, the cumulative remedies/savings clause, could not be more clear. The remedies included within chapter 403 are intended to be "additional and cumulative" to the remedies currently available (i.e., public nuisance suit under chapter 823). It would be less than intellectually credible to conclude that section 403.191 does not mean what its words plainly express....

...ing forth this case. Moreover, an independent review of the district court's holding as to standing appears to indicate that the Fourth District's determination was correct. [4] To be sure, although the cumulative remedies/savings clause codified as section 403.191, Florida Statutes (1995), evinces a legislative intent to retain non-administrative remedies in the environmental pollution arena, it does not preclude us from considering whether primary jurisdiction—a doctrine based on judicial def...

...nistrative body. See, e.g., Bal Harbour Village v. City of North Miami, 678 So.2d 356, 364 (Fla. 3d DCA 1996)(applying primary jurisdiction based on chapter 403's regulatory scheme despite the existence of the cumulative remedy/savings clause (i.e., section 403.191)); South Lake Worth Inlet Dist....

...Dairyland Power Co-op (Wis. 1971), 52 Wis.2d 45, 187 N.W.2d 878. [8] We suggest, also, that this theorem seems to have been expressly recognized by our legislature in enacting the Florida Air and Water Pollution Control Act, Chapter 403, F.S. 1971, § 403.191(1) F.S.A....

...4th DCA 1976). In fact, a public nuisance action seems to be one of the "rights of action or remedies in equity under the common law or statutory law," which is not abridged or altered by Chapter 403 and is cumulative to the remedies provided in that chapter. § 403.191; State ex rel....

...ity under the common law or statutory law,' which is not abridged or altered by chapter 403 and is cumulative to the remedies provided in that chapter"), approved, 469 So.2d 1381 (Fla.1985). The district court's reference is to language contained in section 403.191(1), Florida Statutes, as follows: Nothing contained herein shall be construed to abridge or alter rights of action or remedies in equity under the common law or statutory law, criminal or civil, nor shall any provisions of this act, o...

...ppress nuisances or to abate pollution. We think the second district court is correct, and that the above statutory language makes clear that chapter 403 does not supersede any part of chapter 823. Nevertheless, in the event we are reading more into section 403.191(1) than is there, we shall explain why chapter 403 should not be perceived as superseding or repealing section 823.05 by implication....

...In fact, a public nuisance action seems to be one of the “rights of action or remedies in equity under the common law or statutory law,” which is not abridged or altered by Chapter 403 and is cumulative to the remedies provided in that chapter. § 403.191; State ex rel....

...(2012) (“Nothing in ss. 83.801-83.809 shall be construed as in any manner impairing or affecting the right of parties to create liens by special contract or agreement nor shall it in any manner impair or affect any other lien arising at common law . . . .”); § 403.191(1), Fla....