52 F.3d 913 (11th Cir. 1995), 93-3555, Mosher v. Speedstar Div. of AMCA Intern., Inc.

Docket Nº:93-3555.
Citation:52 F.3d 913
Party Name:Robert C. MOSHER; Margaret M. Mosher, Plaintiff-Appellants, v. SPEEDSTAR DIVISION OF AMCA INTERNATIONAL, INC., f/k/a Speedstar Division of Koehring Company; Koehring Company, a Delaware Corporation, Defendants-Appellees.
Case Date:May 19, 1995
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 913

52 F.3d 913 (11th Cir. 1995)

Robert C. MOSHER; Margaret M. Mosher, Plaintiff-Appellants,

v.

SPEEDSTAR DIVISION OF AMCA INTERNATIONAL, INC., f/k/a

Speedstar Division of Koehring Company; Koehring

Company, a Delaware Corporation,

Defendants-Appellees.

No. 93-3555.

United States Court of Appeals, Eleventh Circuit

May 19, 1995

Page 914

Donald E. Pervis, Bradenton, FL, John P. Graves, Jr., John P. Graves, Jr., Chartered, Sarasota, FL, for appellants.

Patrick H. Dickinson, Kimberly Carlton Bonner, Dickinson & Gibbons, P.A., Sarasota, FL, for appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before DUBINA and BLACK, Circuit Judges, and MORGAN, Senior Circuit Judge.

DUBINA, Circuit Judge:

Plaintiffs/Appellants Robert C. Mosher and Margaret M. Mosher (collectively "Mosher") appeal the district court's grant of summary judgment on their products liability claim based on the Florida products liability statute of repose, Fla.Stat.Ann. Sec. 95.031(2) (West 1982) (repealed as amended by Laws 1986), in favor of the Defendants/Appellees, Speedstar Division of AMCA International, Inc. and Koehring Company (collectively "Speedstar"). Because the issues presented in this appeal involve questions of state law implicating substantial public policy concerns and because there appears to be conflicting controlling precedents in the divisions of the Florida courts that are dispositive of these issues, we believe the issues are appropriate for resolution by the Supreme Court of Florida. We therefore defer our decision in this case pending certification of the questions to the Supreme Court of Florida. See Varner v. Century Finance Co., 720 F.2d 1228 (11th Cir.1983).

We submit the following for consideration by the Supreme Court of Florida.

CERTIFICATION FROM THE United States Court of Appeals FOR THE ELEVENTH CIRCUIT TO THE SUPREME COURT OF FLORIDA, PURSUANT TO ARTICLE V, SECTION 3(b)(6) OF THE FLORIDA CONSTITUTION.

TO THE SUPREME COURT OF FLORIDA AND THE HONORABLE JUSTICES THEREOF:

I. STYLE OF THE CASE

The style of the case in which this certification is made is as follows: Robert C. Mosher; Margaret M. Mosher, Plaintiffs/Appellants v. Speedstar Division of AMCA International, Inc. f/k/a Speedstar Division of Koehring Company; Koehring Company, a Delaware Corporation, Defendants/Appellees (D.C. Docket No. 88-882-CIV-T-99C). This case is assigned number 93-3555 in the United States Court of Appeals for the Eleventh Circuit, on appeal from the United States District Court for the Middle District of Florida.

II. STATEMENT OF THE CASE

A. Facts and Procedural History

This is the second time this case has been before the Eleventh Circuit. On July 9, 1984, Robert Mosher was operating a well-drilling machine manufactured by Speedstar. When Mosher raised the drill derrick on the drilling rig, the rig came into contact with a 7,200 volt power line running over the drill site where Mosher was working. As a result of the accident, Mosher was seriously injured.

Page 915

Mosher filed suit against Speedstar in June of 1988 on theories of strict products liability, negligent design, and failure to place sufficient warnings at the operator's location. A jury trial resulted in a verdict and judgment for Speedstar, but we reversed the judgment and remanded for a new trial because of an error in the jury instructions. See Mosher v. Speedstar Division of AMCA Int'l, Inc., 979 F.2d 823 (11th Cir.1992) ("Mosher I "). Prior to the appeal of Mosher I, a defense motion for summary judgment based on the Florida statute of repose was denied, and Speedstar did not cross-appeal that decision.

After remand, Speedstar made a renewed motion for summary judgment, again based upon the defense that the action is barred by the statute of repose. Specifically, because the drill rig was delivered to Mosher's employer in January of 1973 and Mosher's claim was not instituted until June of 1988, fifteen years after the date of delivery, Speedstar argued that Mosher's claim was time-barred. Speedstar contended that an intervening decision of the Supreme Court of Florida, Firestone Tire & Rubber Co. v. Acosta, 612 So.2d 1361 (Fla.1992), established that when the twelve-year repose period in the statute of repose has expired, all causes of action accruing during the twelve-year period are barred regardless of any reliance by Mosher on legislation or judicial decisions in effect at the time of the accrual of the cause of action.

With "some reluctance," the district court granted summary judgment for Speedstar. The court reasoned:

If, as Acosta definitely holds, manufacturers of products acquire a vested right not to be sued for products liability where the repose period has expired, it seems to this court that if this law is to mean what it says, it must not be subject to an exception whereby a litigant can revive a claim already barred by the statute of repose simply by representing that he relied on a [Florida] Supreme Court decision long since overruled in delaying the institution of his action.

District Court's Memorandum of Decision at 8. Mosher then perfected this appeal.

B. Historical Background: The Florida Statute of Repose

Florida's statute of repose, section 95.031(2), was enacted in 1975 and repealed by way of amendment in 1986. While in effect, the statute barred products liability claims that were instituted more than twelve years from the date the product was delivered to its original purchaser, regardless of when the plaintiff's injury actually occurred. In 1980, the Florida Supreme Court in Battilla v. Allis Chalmers Manufacturing Co., 392 So.2d 874 (Fla.1980), held that the statute of repose was unconstitutional "as applied to this case." In 1985, the Florida Supreme Court receded from Battilla in Pullum v. Cincinnati, Inc., 476 So.2d 657, 659 (Fla.1985), and held that the statute of repose was not unconstitutional. Thus, from 1980 until 1985, the only time constraint applicable to a products liability lawsuit in Florida was the four-year statute of limitations. Later, in 1987, the Florida court held that causes of action previously barred under the statute of repose could not be "resurrected" due to the repeal of the statute. Melendez v. Dreis & Krump Mfg. Co., 515 So.2d 735, 736 (Fla.1987). Thus, because Mosher did not file his claim until 1988, it would appear that his cause of action is barred.

Mosher argues, however, that his case falls into a recognized exception to the rule protecting plaintiffs who relied on the Battilla...

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