Barnes v. Clark Sand Co., Inc., 97-3331.

• Court: Court of Appeal of Florida (US)
• Citation: 721 So.2d 329
• Docket Number: No. 97-3331.,97-3331.
• Parties: Earl BARNES and Lydia Barnes, Appellants, v. CLARK SAND COMPANY, INC., et al., Appellees.
• Decision Date: 05 October 1998

721 So.2d 329

Earl BARNES and Lydia Barnes, Appellants,
v.
CLARK SAND COMPANY, INC., et al., Appellees

No. 97-3331.

District Court of Appeal of Florida, First District.

October 5, 1998.

Rehearing Denied November 19, 1998.

Louis K. Rosenbloum of Louis K. Rosenbloum, P.A., Pensacola; H. Guy Green of Green Law Firm, Marianna; and Lance P. Bradley of Provost & Umphrey, Beaumont, TX, for Appellants.

Brian C. Sanders, Fort Walton Beach Attorney for The Clark Appellees.

Robert A. Mercer of Robert A. Mercer, P.A., Miami, for Appellee Pulmosan.

Andrew D. Weinstock of Duplass, Zwain & Williams, Metairie, LA, for The Key Houston Appellees.

Millard L. Fretland and Wendy F. Lumish of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Pensacola, and W. Mark Edwards of Brown, Watt & Buchanan, P.A., Pascagoula, MS, for Minnesota Mining & Manufacturing Company.

Kimberly A. Ashby of Maguire, Voorhis & Wells, P.A., Orlando, for Amicus Curiae Florida Defense Lawyers Association, for Appellees.

721 So.2d 330

LAWRENCE, Judge

Earl Barnes (Barnes), formerly employed as a sandblaster, filed a negligence action against appellees (manufacturers), producers of sand used in sandblasting operations. He alleged that he had contracted a lung disease (silicosis) from exposure to silica dust emanating from the sand used in sandblasting operations and that appellees' products caused or contributed to his illness. Barnes claimed that he was exposed to the silica dust from 1972 to 1974. The manufacturers denied the material allegations of Barnes' complaint and argued that Barnes' action was barred by the now-repealed products liability statute of repose, section 95.031(2), Florida Statutes (1975).¹ The trial court granted the manufacturers' motion for summary judgment. We reverse.

Barnes' left lung was surgically removed on July 16, 1984, and he was informed by his physicians that his lung had been removed because of cancer; however, he was told several weeks later that the lung had been removed because of a fungal infection known as actinomycosis. Barnes testified that he did not know that his lung problems were related to silicosis or exposure to silica dust until 1992, and that the diagnosis of silicosis was not confirmed by tissue analysis until 1995.

Section 95.031, Florida Statutes (1975), the statute of repose for products liability cases, eliminated any cause of action based on fraud or products liability filed more than twelve years after the fraud was committed or after the product was sold to its original purchaser. The statute was subsequently held unconstitutional as applied to the facts of the case by the supreme court in Battilla v. Allis Chalmers Mfg. Co., 392 So.2d 874 (Fla.1980), on the grounds that the statute violated Florida's constitutional right of access to the courts. However, no facts were recited in the case.

One year later, the supreme court decided Diamond v. E.R. Squibb & Sons, Inc., 397 So.2d 671 (Fla.1981). In Diamond, a pregnant woman ingested the drug diethylstilbestrol (DES) from 1955 to 1956. The daughter born of the pregnancy developed cancer in 1976 allegedly as a result of the mother's ingestion of the drug. Section 95.031, Florida Statutes, was in effect at the time the action in Diamond was brought. The supreme court explained that the statute of repose was unconstitutional as applied in Diamond because it barred the plaintiffs' right of action "before it ever existed" and therefore "violate[d] the Florida Constitution's guaranty of access to courts." Diamond, 397 So.2d at 672. Justice McDonald, specially concurring in Diamond, noted:

The sale and ingestion of the alleged defective product took place in 1955-1956. It is alleged that the effect of that ingestion did not materialize until after the plaintiff reached puberty. In this plaintiff's case the claim would have been barred, even though the wrongful act had taken place, before the injury became evident. She had an accrued cause of action but it was not recognizable, through no fault of hers, because the injury had not manifested itself. This is different from a situation where the injury is not inflicted for more than twelve years from the sale of the product. When an injury has occurred but a cause of action cannot be pursued because the results of the injury could not be discovered, a statute of limitations barring the action does, in my judgment,

721 So.2d 331

bar access to the courts and is constitutionally impermissive.

Diamond, 397 So.2d at 672.

Several years later, the supreme court expressly receded from Battilla in Pullum v. Cincinnati Inc., 476 So.2d 657 (Fla.1985), holding section 915.031(2) constitutional. Pullum was injured in 1977 by a press brake machine delivered to the original purchaser in 1966. The appellant sued the manufacturer in 1980, more than twelve years after the date of delivery. The supreme court, in affirming the trial court's grant of summary judgment in favor of the manufacturer, expressly receded from Battilla and held that section 95.031(2) did not violate the right of access to the courts guaranteed under article I, section 21 of the Florida Constitution. The court explained that the legislature enacted section 95.031(2) because it found that "perpetual liability places an undue burden on manufacturers," and because "twelve years...