Board of County Com'rs of Polk County, Fla. v. Aetna Cas. and Sur. Co., No. 91-02973

CourtCourt of Appeal of Florida (US)
Writing for the CourtBLUE; HALL; HALL
Citation604 So.2d 850
Decision Date17 July 1992
Docket NumberNo. 91-02973
PartiesBOARD OF COUNTY COMMISSIONERS OF POLK COUNTY, FLORIDA, Appellant, v. The AETNA CASUALTY & SURETY COMPANY and Barton Malow Company, Appellees. 604 So.2d 850, 17 Fla. L. Week. D1726

Page 850

604 So.2d 850
BOARD OF COUNTY COMMISSIONERS OF POLK COUNTY, FLORIDA,
Appellant,
v.
The AETNA CASUALTY & SURETY COMPANY and Barton Malow
Company, Appellees.
No. 91-02973.
604 So.2d 850, 17 Fla. L. Week. D1726
District Court of Appeal of Florida,
Second District.
July 17, 1992.
Rehearing Denied Sept. 21, 1992.

Robert L. Trohn and Charles T. Canady of Lane, Trohn, Clarke, Bertrand & Williams, P.A., Lakeland, for appellant.

John W. Frost, II, of Frost & Dale, P.A., Bartow, Ronald S. Holliday of Dykema Gossett, Tampa, for appellee, Aetna Cas. & Sur. Co.

No appearance for appellee, Barton Malow Co.

BLUE, Judge.

The Board of County Commissioners of Polk County (Polk) appeals the trial court's granting of The Aetna Casualty and Surety Company's (Aetna) motion to dismiss count IV of Polk's counterclaim. 1 Aetna's motion alleged a statute of limitations defense based on a bond provision that limited liability to one year according to section 255.05(2), Florida Statutes (1983).

The trial court correctly determined that the one-year statute of limitations is applicable when latent defects are the subject of claims against a prime contractor. Dist. School Bd. v. Safeco Ins. Co., 434 So.2d 38 (Fla. 2d DCA 1983). On that point we affirm. We hold, however, that the trial court erred in granting Aetna's motion to dismiss because the counterclaim does not show on its face a statute of limitations violation.

The original complaint was filed in 1987 by Barton Malow Company, the prime contractor for the Imperial Polk County judicial

Page 851

complex. Aetna, Barton Malow's bonding company, was not joined as a party until Polk filed its first amended counterclaim and cross-claim in 1991. Polk filed a counterclaim against Barton Malow Company in 1988 and at that time alleged the building was completed and occupied prior to the counterclaim's filing date. Polk adopted the earlier allegations of the 1988 counterclaim within pleadings directed to other parties in 1990. Polk's first amended counterclaim and cross-claim filed in 1991 included the counterclaim against Aetna but contained no allegations concerning the date of completion or acceptance of the building.

The counterclaim referenced the contract which was attached to other pleadings. The contract provided, "The Work to be performed under this contract shall be commenced within ten (10) calendar days after 'Notice to Proceed' and subject to authorized adjustments, substantial completion shall be achieved no later than seven hundred fifty (750) calendar days." The pleading does not reflect the date of substantial completion from which the statute of limitations would run. The date of substantial completion cannot be presumed since the commencement date was undetermined and the date of substantial completion was subject to authorized adjustments.

Florida Rule...

To continue reading

Request your trial
9 practice notes
  • Vause v. Bay Medical Center, No. 94-549
    • United States
    • Court of Appeal of Florida (US)
    • December 30, 1996
    ...Ellen Tracy, Inc., 648 So.2d 253 (Fla. 2d DCA 1994); Board of County Commissioners of Polk County, Fla. v. Aetna Casualty and Surety Co., 604 So.2d 850 (Fla. 2d DCA 1992), rev. denied, 613 So.2d 2 (Fla.1993); Attias v. Faroy Realty Co., 609 So.2d 105 (Fla. 3d DCA 1992). Even a relatively st......
  • Mettler, Inc. v. Ellen Tracy, Inc., No. 93-02970
    • United States
    • Court of Appeal of Florida (US)
    • December 30, 1994
    ...Attias v. Faroy Realty Co., 609 So.2d 105 (Fla. 3d DCA 1992); Board of County Com'rs of Polk County, Fla. v. Aetna Cas. & Sur. Co., 604 So.2d 850 (Fla. 2d DCA), review denied, 613 So.2d 2 Applying these principles to the complaint, amended complaint and second amended complaint in the insta......
  • Horn v. State, Dept. of Transp., No. 94-4262
    • United States
    • Court of Appeal of Florida (US)
    • January 4, 1996
    ...conclusively, on its face, that the negligence claims are barred. See, e.g., Board of County Comm'rs v. Aetna Casualty & Sur. Co., 604 So.2d 850 (Fla. 2d DCA 1992) (motion to dismiss is appropriate vehicle to raise statute of limitations defense only if it is apparent on face of complaint t......
  • Holland v. Anheuser Busch, Inc., No. 93-02964
    • United States
    • Court of Appeal of Florida (US)
    • April 8, 1994
    ...summary judgment for the purpose of attempting to terminate litigation. Board of County Commissioners v. Aetna Casualty and Surety Co., 604 So.2d 850, 851 (Fla. 2d DCA 1992). Counsel must remember that Page 624 each motion has a separate purpose under our rules of civil procedure. A motion ......
  • Request a trial to view additional results
9 cases
  • Vause v. Bay Medical Center, No. 94-549
    • United States
    • Court of Appeal of Florida (US)
    • December 30, 1996
    ...Ellen Tracy, Inc., 648 So.2d 253 (Fla. 2d DCA 1994); Board of County Commissioners of Polk County, Fla. v. Aetna Casualty and Surety Co., 604 So.2d 850 (Fla. 2d DCA 1992), rev. denied, 613 So.2d 2 (Fla.1993); Attias v. Faroy Realty Co., 609 So.2d 105 (Fla. 3d DCA 1992). Even a relatively st......
  • Mettler, Inc. v. Ellen Tracy, Inc., No. 93-02970
    • United States
    • Court of Appeal of Florida (US)
    • December 30, 1994
    ...Attias v. Faroy Realty Co., 609 So.2d 105 (Fla. 3d DCA 1992); Board of County Com'rs of Polk County, Fla. v. Aetna Cas. & Sur. Co., 604 So.2d 850 (Fla. 2d DCA), review denied, 613 So.2d 2 Applying these principles to the complaint, amended complaint and second amended complaint in the insta......
  • Horn v. State, Dept. of Transp., No. 94-4262
    • United States
    • Court of Appeal of Florida (US)
    • January 4, 1996
    ...conclusively, on its face, that the negligence claims are barred. See, e.g., Board of County Comm'rs v. Aetna Casualty & Sur. Co., 604 So.2d 850 (Fla. 2d DCA 1992) (motion to dismiss is appropriate vehicle to raise statute of limitations defense only if it is apparent on face of complaint t......
  • Holland v. Anheuser Busch, Inc., No. 93-02964
    • United States
    • Court of Appeal of Florida (US)
    • April 8, 1994
    ...summary judgment for the purpose of attempting to terminate litigation. Board of County Commissioners v. Aetna Casualty and Surety Co., 604 So.2d 850, 851 (Fla. 2d DCA 1992). Counsel must remember that Page 624 each motion has a separate purpose under our rules of civil procedure. A motion ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT