Kish v. A.W. Chesterton Co.

• Decision Date: 26 April 2006
• Docket Number: No. 3D05-1538.,3D05-1538.
• Citation: 930 So.2d 704
• Parties: John KISH and Elizabeth Kish, Appellants, v. A.W. CHESTERTON COMPANY, et. al., Appellees.
• Court: Florida District Court of Appeals

930 So.2d 704

John KISH and Elizabeth Kish, Appellants, v. A.W. CHESTERTON COMPANY, et. al., Appellees.

No. 3D05-1538.

District Court of Appeal of Florida, Third District.

April 26, 2006.

Rehearing Denied June 27, 2006.

Reyes & O'Shea and Angel M. Reyes and Daniel F. O'Shea, Miami, for appellant.

Carlton Fields and Alina Alonso and Jeffrey A. Cohen, Miami; Martin Unger, Orlando; Steptoe & Johnson and Stephen A. Fennell and Jeffrey E. McFadden, Washington, D.C., for appellee Metropolitan Life Insurance Company.

Before WELLS, CORTIÑAS, and ROTHENBERG, JJ.

WELLS, Judge.

John and Elizabeth Kish appeal from a final summary judgment, wherein the trial court ruled in favor of Metropolitan Life Insurance Company "on the basis of the statute of repose for fraud claims as described in § 95.031, Fla. Stat." We affirm.

In August 2004, the Kishes filed a five-count complaint against twenty-one entities, alleging negligence, strict liability, breach of warranty, civil conspiracy to commit fraud, and intentional infliction of emotional distress relating to injuries Mr. Kish allegedly sustained from asbestos exposure. The Kishes sought to hold Metropolitan Life (the only non manufacturer, distributor, or supplier named in the suit) liable for Mr. Kish's injuries because during the 1930's and 1940's, Metropolitan Life allegedly agreed, at the request of a number of its co-conspirator group policy holders, not to "fully share with the public" the results of industrial hygiene surveys and studies it had performed.

The court below ruled that section 95.031(2)(a), the fraud statute of repose,¹ barred the Kishes' fraud claims.² The Kishes contend that the trial court's failure to apply a delayed manifestation exception to the fraud statute of repose, similar to that made applicable to the products liability statute of repose by Diamond v. E.R. Squibb & Sons, Inc., 397 So.2d 671 (Fla. 1981), resulted in an unconstitutional denial of access to courts. See Art. I, § 21, Fla. Const. (providing "[t]he courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay").

In Diamond, the Florida Supreme Court held that the twelve year statute of repose applicable at that time in products liability actions was unconstitutional as applied to bar an action for injuries which manifested long after they occurred and long after the statute of repose had run.³ The question here is whether the failure to extend that exception to the instant fraud claim amounts to an unconstitutional denial of court access. We conclude it does not.

In Kluger v. White, 281 So.2d 1, 4 (Fla. 1973), the Florida Supreme Court set forth the following test for analyzing access to the courts claims:

where a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla.Stat. s. 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.

The statute of repose as applied to this case satisfies this test.

First, although the Legislature, through section 95.031(2)(a), has foreclosed the Kishes' stale fraud claim, it has provided them with a reasonable alternative remedy via the Diamond exception, now codified in sections 95.031(2)(c) and (d) of the Florida Statutes.⁴ By virtue of these provisions, the Kishes concededly have valid ongoing claims against the manufacturers of the products which they maintain caused their injuries. In light of this reasonable alternative remedy, Kluger has been satisfied. See Alterman Transport Lines, Inc. v. State, 405 So.2d 456, 459 (Fla. 1st DCA 1981) ("No substitute remedy need be supplied by legislation which only reduces but does not destroy a cause of action. Jetton v. Jacksonville Electric Authority, 399 So.2d 396 (Fla. 1st DCA 1981). Nor does the elimination of one possible ground of relief require the Legislature to provide some replacement.").

Second, the public necessity that justifies cutting off a stale fraud claim which manifests before expiration of the statute of repose⁵ is equally applicable to the instant late manifesting claim. "Fraud" is generally defined as "(1) a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment; and (2) a misrepresentation made recklessly without belief in its truth to induce another person to act." Nehme v. Smithkline Beecham Clinical Labs., Inc., 863 So.2d 201, 205 (Fla.2003). It is exactly this type of claim that is most susceptible to concerns of stale memories, and most deserving of the observation that a defendant "ought not to be called on to defend a claim when the evidence has been lost, memories have faded, and witnesses have disappeared." Shepard, 1998 WL 34064515 at 4; Nehme, 863 So.2d at 208-09 (recognizing that concerns over any injustice caused by precluding a valid cause of action are addressed by "a countervailing concern—that is, the difficulty in defending against a lawsuit many years after the conduct at issue occurred [because]... [a]s time passes, memories fade, documents are destroyed or lost, and witnesses disappear").⁶ As the Florida Supreme Court confirmed when rejecting a latent manifestation argument involving a claim of fraudulently concealed medical negligence, "the legislature may properly take into account the difficulties of defending against a stale fraud claim in determining a reasonable period for the statute of repose." Carr v. Broward County, 541 So.2d 92, 95 (Fla.1989). These policy considerations are equally applicable to the instant claim and satisfy the Kluger public necessity test.

We also note that since 1974 when the fraud statute of repose was first enacted, the Legislature has had numerous opportunities to import a Diamond exception into it, but has not done so.⁷ The Florida Supreme Court also has refused to apply the Diamond exception in other cases where injuries have manifested after the repose period expired. See Kush v. Lloyd, 616 So.2d 415, 418-419, 421 (Fla.1992) (rejecting a latent injury manifestation argument in a medical malpractice case and observing that "[s]tatutes of repose by their nature reimpose on some plaintiffs the hardship of having a claim extinguished before it is discovered, or perhaps before it even exists, and their constitutionality has been challenged on a variety of state and federal grounds. Although some of the statutes have been declared unconstitutional, the courts in most jurisdictions have upheld their statutes and the legislatures in those that have not have sometimes reenacted new repose legislation that has withstood constitutional attack.... The dissenting opinion seems to rest upon its reluctance to eliminate a cause of action before it has accrued. Yet, this is exactly what a statute of repose does."); see also Damiano v. McDaniel, 689 So.2d 1059, 1061 (Fla.1997) ("In creating a statute of repose which was longer than the two-year statute of limitation [for medical malpractice], the legislature attempted to balance the rights of injured persons against the exposure of health care providers to liability for endless periods of time. Once we determined that the statute was constitutional, our review of its merits was complete. This Court is not authorized to second-guess the legislature's judgment.").⁸

As already noted, fraud claims are most susceptible to concerns of stale memories and lost evidence and witnesses. Here, where a fraudulent misrepresentation allegedly produced a physical injury through use of a product, the Kishes have a product liability claim to pursue via the Diamond exception. As to Metropolitan Life's alleged fraudulent conduct, the twelve-year period provided for redress adequately protects the Kishes' interests when balanced against Metropolitan Life's right not to be called upon to defend a claim some fifty or sixty years old.

In sum, the test set out in Kluger has been met in this case. Thus we reject the claim that application of the statute of repose resulted in an unconstitutional denial of access to the courts as to these litigants.

Accordingly, we affirm.

1. Section 95.031(2)(a) provides:

An action founded upon fraud under s. 95.11(3), including constructive fraud, must be begun within the period prescribed in this chapter, with the period running from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence, instead of running from any date prescribed elsewhere in s. 95.11(3), but in any event an action for fraud under s. 95.11(3) must be begun within 12 years after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered.

2. Although we have grave misgivings as to whether the Kishes can state a viable claim against Metropolitan Life, we nonetheless review the trial court's ruling on this point.

3. Diamond's continued applicability to products liability actions was recently reconfirmed in Pulmosan Safety Equipment Corp. v. Barnes, 752 So.2d 556, 559 (Fla.2000).

4. Sections 95.031(2)(c) and (d) provide:

(c) The repose period prescribed in paragraph (b)[addressing product liability claims] does not apply if the claimant was exposed to or used the product within the repose period, but an injury caused by such exposure or use did not manifest itself until after expiration of the repose period.

(d) The repose period prescribed within paragraph (b)[addressing product liability claims] is...