Mathieson v. General Motors Corp.
| Decision Date | 19 July 1988 |
| Docket Number | No. 86-2998,86-2998 |
| Citation | 13 Fla. L. Weekly 1707,529 So.2d 761 |
| Parties | 13 Fla. L. Weekly 1707 Larry W. MATHIESON, Louis M. Gonzalez and Geoffrey M. Swann, each individually and on behalf of all persons similarly situated, Appellants, v. GENERAL MOTORS CORPORATION, Appellee. |
| Court | Florida District Court of Appeals |
Rossman, Baumberger & Peltz and Robert D. Peltz and Jordan J. Lewis, Miami, for appellants.
Kimbrell & Hamann and R. Benjamine Reid and Paul L. Nettleton, Miami, for appellee.
Before BARKDULL, BASKIN and FERGUSON, JJ.
This appeal is brought from a final judgment dismissing a complaint with prejudice.
We agree that where a claim for economic loss caused by a product defect is brought, and the plaintiffs' response to a statute of limitations defense is that the unnamed plaintiffs were unaware of the defect within the time permitted for filing, the suit is inappropriate for a class action. Plaintiffs who propose to represent a class are required to show that they truly represent the purported class. Fla.R.Civ.P. 1.220; Southern Bell Tel. & Tel. Co. v. Wilson, 305 So.2d 302 (Fla. 3d DCA 1974), cert. discharged, 327 So.2d 220 (Fla.1976). A claim is not representative where the defenses of each plaintiff would be dependent on different facts and circumstances. Costin v. Hargraves, 283 So.2d 375 (Fla. 1st DCA 1973).
We also agree with the appellees that the plaintiffs' counts for negligence and strict liability were properly dismissed since pure economic losses are not recoverable under tort theories. Florida Power & Light Co. v. Westinghouse Elec. Corp., 510 So.2d 899 (Fla.1987); Affiliates for Evaluation & Therapy, Inc. v. Viasyn Corp., 500 So.2d 688 (Fla. 3d DCA 1987).
Nevertheless, plaintiffs' pleadings adequately stated a cause of action for breach of implied warranty against the automobile manufacturer on a theory of agency sufficient to survive a motion to dismiss. Although the term agency is a conclusion of law rather than an allegation of fact, that conclusion appears here to be so elemental as to constitute a permissible pleading. See H. Trawick, Florida Practice and Procedure § 6-6 (1987) (citing Panama Realty, Inc. v. Robinson, 305 So.2d 34 (Fla. 1st DCA 1974), cert. denied, 320 So.2d 395 (Fla.1975)). As to the count for breach of express warranty, from the conclusory allegation it appears that a cause of action can be stated and the complaint cured by amendment. The trial court, therefore,...
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...Wade, 457 So.2d 1008 (Fla.1984), K.D. Lewis Enter. Corp., Inc. v. Smith, 445 So.2d 1032 (Fla. 5th DCA 1984), Mathieson v. General Motors Corp., 529 So.2d 761 (Fla. 3d DCA 1988), or [Cohen v.] Camino Sheridan[, Inc., 466 So.2d 1212 (Fla. 4th DCA 1985)]. These cases do not dictate affirmance;......
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