Lamb v. Volkswagenwerk Aktiengesellschaft

• Decision Date: 25 March 1986
• Docket Number: No. 82-1692-CIV.,82-1692-CIV.
• Parties: Dana LAMB, a minor, By and Through his mother and next friend, Jeanne F. DONALDSON, and Jeanne F. Donaldson, individually, Plaintiffs, v. VOLKSWAGENWERK AKTIENGESELLSCHAFT, a German corporation, and Volkswagen of America, Inc., a New Jersey corporation, Defendants.
• Court: U.S. District Court — Southern District of Florida

631 F. Supp. 1144

Dana LAMB, a minor, By and Through his mother and next friend, Jeanne F. DONALDSON, and Jeanne F. Donaldson, individually, Plaintiffs, v. VOLKSWAGENWERK AKTIENGESELLSCHAFT, a German corporation, and Volkswagen of America, Inc., a New Jersey corporation, Defendants.

No. 82-1692-CIV.

United States District Court, S.D. Florida.

March 25, 1986.

Arno Kutner, Preddy, Kutner, Hardy, Rubinoff, Brown & Thompson, Miami, Fla., Charles R. Stack, High, Stack, Lazenby, Bender, Palahach & Lacasa, Coral Gables, Fla., for plaintiffs.

Peter Wechsler, Myron Shapiro, Wendy Lumish, Rumberger, Wechsler & Kirk, Miami, Fla., for defendants.

FINAL ORDER OF SUMMARY JUDGMENT

MARCUS, District Judge.

THIS CAUSE has come before the Court on a Motion for Summary Judgment filed by the Defendants, Volkswagenwerk Aktiengesellschaft and Volkswagen of America, Inc. This is a products liability action arising out of grievous injuries sustained by a passenger in a vehicle manufactured by the Defendants. Volkswagen has averred that it is exonerated from all liability based upon the tolling of the Florida products liability statute of repose, Florida Statute Section 95.031(2). The statute unambiguously provides for the termination of manufacturer liability twelve years after the date of the product's delivery to its first purchaser. The somewhat irregular history of the statute as well as the renewed judicial approbation of the statute by the Florida Supreme Court in Pullum v. Cincinnati, Inc., 476 So.2d 657 (Fla.1985), have created a question regarding retroactive application of the twelve year period to the instant action. The precise issue before this Court concerns the viability of Plaintiff's claims against the Defendant manufacturers in light of the twelve year period of liability.

It is axiomatic that summary judgment is appropriate when no material facts are in dispute and it is clear that a party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P. After careful review of the extensive pleadings, motions, affidavits and memoranda of law filed by the parties, and based upon extensive oral argument, this Court has determined that the statute of repose precludes Plaintiffs' claims against the Defendants, Volkswagenwerk Aktiengesellschaft and Volkswagen of America. Volkswagen has met "the exacting burden of demonstrating that there is no dispute as to any material fact in the case." Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir.1983). Plaintiffs' memorandum of law in opposition to Volkswagen's Motion for Summary Judgment fails to create any genuine issue of material fact regarding the chronology upon which Defendants' Motion for Summary Judgment is based. Because Plaintiff has not controverted any of the salient factual aspects of the lapse of the statutory period, it is clear to this Court that Defendants are entitled to judgment as a matter of law.

The parties are in essential agreement as to the scenario that forms the basis for this products liability action. On November 21, 1979, the seventeen-year-old Plaintiff, Dana Lamb, was a passenger in a 1967 Volkswagen Karmann Ghia automobile manufactured by the Defendants. The vehicle was operated by a driver, Kurt Hammerschmidt, who is not a party to this action. For reasons not explained by the record before this Court, the Karmann Ghia left the road and overturned.¹ The front windshield disintegrated and Plaintiff was ejected from the car. As a consequence of his injuries, Plaintiff was rendered a permanent quadraplegic. Plaintiff commenced this action on August 10, 1982. The gravamen of Plaintiff's claims against Defendants concerns the design of the Karmann Ghia; Plaintiff claims that the vehicle's rollover propensity and easily-fractured windshield constituted a defect which caused his casualty. Defendants have raised the affirmative defenses of assumption of the risk, contributory negligence, product misuse and the tolling of the statute of repose. Since Defendants' Motion for Summary Judgment is based only upon the last point that this action is time barred, the dispositive inquiry for this Court is whether the Florida statute of repose has abrogated the viability of Plaintiff's action.

The exhibits presented by the Defendants in their Motion for Summary Judgment include a police report of the accident of November 21, 1979, as well as the certificate of title for the subject Karmann Ghia which indicates an issuance date of November 13, 1967. Plaintiff does not challenge these dates. Under this chronology, the critical period of liability for Volkswagen would run from November 13, 1967 until November 13, 1979. Measured by this meter it is apparent that Plaintiff's claim is outside the statutory boundary since the car was delivered to its original purchaser more than twelve years prior to the initiation of this action.

In analyzing the issue of whether Pullum is to be afforded retroactive application, this Court must be guided by state law as interpreted by the state's highest court. Bailey v. Southern Pacific Transport Co., 613 F.2d 1385, 1388 (5th Cir.), cert. denied, 449 U.S. 836, 101 S.Ct. 109, 66 L.Ed.2d 42 (1980). Jurisdiction in the instant case is founded on diversity; no federal question is involved. Accordingly we are bound to apply Florida substantive law. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). As Justice Frankfurter observed in Guaranty Trust Co. v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945), "... in all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court." This basic precept commands us to follow the most recent pronouncement of the Florida Supreme Court regarding the statute of repose.

The statute of repose under examination here, Florida Statute Section 95.031(2), sets forth the time limits for commencing products liability actions and provides in pertinent part:

Actions for products liability ... must be begun within the period prescribed in this chapter ... but in any event within twelve years after the date of delivery of the completed products to its original purchaser ... regardless of the date defect in the product ... was or should have been discovered.

This statute is one of repose as contrasted with a statute of limitations. While in the most general sense statutes of repose and statutes of time limitation are similar in that they prescribe the periods within which actions may be brought, we think there are critical analytical distinctions between the two and we do not use the terms interchangeably here. A statute of repose terminates the right to bring an action after the lapse of a specified period. The right to bring the action is foreclosed when the event giving rise to the cause of action does not transpire within this interval. A statute of limitations delineates the time a party has to initiate an action once the injury has occurred; it does not begin to run until the wrong has been or should have been discovered. Simply stated, a statute of repose is triggered once the product is delivered to its first purchaser. If an injury results from the product after the authorized period has elapsed the victim is without recourse to the manufacturer of the product. A statute of repose "... does not bar a cause of action; its effect, rather, is to prevent what might otherwise be a cause of action, from ever arising." Rosenberg v. Tower of North Bergen, 61 N.J. 190, 293 A.2d 662, 667 (1972). Thus under the Florida statute of repose an injury caused by a product which has reached its original purchaser more than twelve years prior forms no basis for recovery because the statute prevents the accrual of a right of action. "The injured party literally has no cause of action. The harm that has been done is damnum absque injuria — a wrong for which the law affords no redress." Id. The effect of the statute of repose may be to bar the cause of action before it has accrued.

These product liability statutes of repose are designed and intended to encourage diligence in the prosecution of claims, eliminate the potential of abuse from a stale claim, and ultimately foster certainty and finality in liability. But because statutes of repose have the harsh effect of foreclosing the invocation of a remedy, they have been subjected to constitutional challenges in at least twenty-nine jurisdictions.² The Florida statute of repose has been attacked on equal protection, due process, and access to the courts theories. A study of the Florida caselaw is necessary to understand the context of the instant litigation.

In Battilla v. Allis Chalmers Mfg. Co., 392 So.2d 874 (Fla.1981), the Florida Supreme Court struck down Section 93.031(2) as a violation of Plaintiff's right of access to the courts embodied in the Florida Constitution.³ The Battilla plaintiff had been injured by a machine which reached its original purchaser more than twelve years prior to the injury. In disapproving Section 93.031(2), the Supreme Court of Florida in a brief per curiam opinion relied on Overland Construction Co. v. Sirmons, 369 So.2d 572 (Fla.1979), where it held that a similar twelve-year statute of repose regarding architects and builders was similarly violative of a plaintiff's constitutional right of access to the courts.⁴

Most recently the Florida Supreme Court had occasion to revisit the product liability statute of repose, Section 95.031(2), reversed its prior ruling in Battilla, and held that the statute was not unconstitutional. In Pullum v. Cincinnati, Inc., supra, the Court affirmed the granting of summary judgment by the trial judge in favor of a defendant-manufacturer. The Pullum plaintiff was injured in April,...