Board of Public Instruction of Collier County v. Travelers Indem. Co.

Decision Date29 July 1966
Docket NumberNo. 6014,6014
Citation190 So.2d 32
PartiesBOARD OF PUBLIC INSTRUCTION OF COLLIER COUNTY, Florida, a public authority, for the Use and Benefit of Naples Builders Supply Co., Inc., a Florida corporation, Appellant, v. TRAVELERS INDEMNITY COMPANY, a corporation of the State of Connecticut, Appellee.
CourtFlorida District Court of Appeals

Walters, Moore & Costanzo, Miami, and Smoot, Blair & Whigham, Fort Myers, for appellant.

Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee.

MOODY, JAMES S., Associate Judge.

This is an appeal by NAPLES BUILDERS SUPPLY CO., INC., Plaintiff below, from a Final Summary Judgment in favor of TRAVELERS INDEMNITY COMPANY, Defendant, denying recovery on a surety bond executed in furtherance of a public school contract. We reversed for failure to plead the appropriate statute of limitations.

In December, 1959, the County School Board of Collier County entered into a contract to construct a highschool building and in connection therewith, the principal contractor executed a surety bond with TRAVELERS INDEMNITY COMPANY, Defendant below. The bond was in the form as required by Chapter 255, Florida Statutes, on public construction contracts and guaranteed the performance and payments of all material furnished.

Plaintiff below, a materialman to the prime contractor, furnished certain materials on the job ending in December, 1960. Upon non-payment, Plaintiff filed suit in January, 1961, against the contractor, judgment thereon being entered in January, 1964. In June, 1964, Plaintiff filed this action against the surety on the performance bond to recover against the surety for the materials furnished, pleading the recovery of the judgment against the contractor. Defendant filed answer pleading the one year statute of limitations under Section 255.05(2), Florida Statutes, 1963, F.S.A. Motions for summary judgment with accompanying affidavits were filed by both parties. Summary judgment thereon was entered in favor of the Defendant, surety, and hence this appeal.

Disposition of the case revolves around the determination of which statute of limitations is applicable. The Defendant plead the one year statute of limitations set forth in 255.05, but on appeal abandoned the applicability of this statute and now asserts the statute of limitations as set forth in paragraph 95.11(5), Florida Statutes, F.S.A., providing for a three year limitation on suits upon 'a liability created by statute, other than a penalty or forfeiture.' Plaintiff asserts the case is governed by Section 95.11(1), providing a twenty year statute of limitations on any 'action upon any contract, obligation, or liability founded upon an instrument in writing under seal.'

This cause of action arose in December, 1960. Previous court decisions have ruled the one year statute set forth in Section 255.05(2) enacted by the Legislature in 1963 is not retroactive. Indemnity Insurance Co. of North America v. Brooks-Fisher Insulating Company, Fla.App., 140 So.2d 613. A similar statute enacted in 1959 attempting to set up a one year statute of limitations was held unconstitutional. Auto Owners Insurance Company v. Hillsborough County Aviation Authority, etc., Fla., 153 So.2d. 722.

In the absence of an effective statute of limitations in Chapter 255, our courts have not been uniform in determining the applicability of the three or twenty year statute of limitations. In Indemnity Insurance Company of North America v. The Brooks-Fisher Insulating Co., supra, where suit was filed one year and two months after the furnishing of the last material, the court held the three year statute was applicable. On the other hand, in a similar case, W. F. Thompson Construction Co. v. Southeastern Palm Beach, etc., Fla.App., 174 So.2d 410, the court held the twenty year statute applicable. The...

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2 cases
  • Phillips v. Ostrer
    • United States
    • Florida District Court of Appeals
    • August 10, 1982
    ...Ellis National Bank of Tallahassee v. Davis, 359 So.2d 466 (Fla. 1st DCA 1978); Board of Public Instruction of Collier County v. Travelers Indemnity Company, 190 So.2d 32 (Fla. 2d DCA 1966). Turning to the summary judgment in favor of INA, the Honesty Bond insured the Annuity fund "against ......
  • Board of Public Instruction of Collier Countyv. Travelers Indemnity Company, 35812
    • United States
    • Florida Supreme Court
    • April 26, 1967
    ...CURIAM. Writ of certiorari was issued to review the decision of the District Court of Appeal, Second District, in this case appearing at 190 So.2d 32. The history, factual background, questions presented and disposition are clearly set out in the opinion of the District Court. Argument havi......

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