McLeod v. Barber, 5D98-3397.
| Court | Court of Appeal of Florida (US) |
| Writing for the Court | PER CURIAM. |
| Citation | 764 So.2d 790 |
| Parties | Johnie A. McLEOD and Eloise W. McLeod, Appellant, v. Michael H. BARBER, et al., Appellees. |
| Docket Number | No. 5D98-3397.,5D98-3397. |
| Decision Date | 21 July 2000 |
764 So.2d 790
Johnie A. McLEOD and Eloise W. McLeod, Appellant,v.
Michael H. BARBER, et al., Appellees
No. 5D98-3397.
District Court of Appeal of Florida, Fifth District.
July 21, 2000.
Rehearing Denied August 16, 2000.
Vivian P. Cocotas of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Orlando, for Appellee Barber.
Daniel C. Brown and Alan Harrison Brents of Katz, Kutter, Haigler, Alderman, Bryant & Yon, P.A., Tallahassee, for Appellee The Prudential Insurance Company of America.
PER CURIAM.
The McLeods filed suit against Mr. Barber and Prudential alleging misconduct on the part of Prudential and its agents, including Mr. Barber, in their efforts to sell life insurance to the McLeods. The claims against Mr. Barber all sounded in tort, while the claims against Prudential raised both tort and breach of contract issues. Mr. Barber and Prudential filed separate motions to dismiss the complaint. Upon review, the trial court dismissed with prejudice all claims against Mr. Barber and dismissed with prejudice all direct and vicarious liability tort claims against Prudential. The McLeods' breach of contract claims remain pending against Prudential.
The McLeods appeal, arguing that the trial court erred in dismissing their tort claims. We affirm in part and reverse in part, discussing the claims against each party separately.
DISMISSAL OF TORT CLAIMS AGAINST MR. BARBER
The McLeods first contend that the trial court erred in dismissing count II of their
Florida's statute of repose, set forth in section 95.031(2), Florida Statutes (1997), requires that an action for fraud must be instituted within 12 years after the date of the commission of the alleged fraud.1 In their complaint, the McLeods averred that Mr. Barber's fraudulent conduct initially occurred in 1981 and continued to occur through 1996. Based on this pleading, the November 1996 filing of the McLeods' initial complaint was sufficient to avoid Mr. Barber's statute of repose defense. See Ambrose v. Catholic Soc. Servs., Inc., 736 So.2d 146 (Fla. 5th DCA 1999).
The next question is whether the McLeods' claim of fraud is barred under Florida's four-year statute of limitations, section 95.11(3)(j), Florida Statutes (1997).2 The defense of statute of limitations is ordinarily an affirmative defense which must be raised in the defendant's answer. See Jelenc v. Draper, 678 So.2d 917, 919 (Fla. 5th DCA 1996). Thus, "`only in extraordinary circumstances where the facts constituting the defense affirmatively appear on the face of the complaint and establish conclusively that the statute of limitations bars the action as a matter of law, should a motion to dismiss on this ground be granted.'" Khalaf v. City of Holly Hill, 652 So.2d 1246, 1247 (Fla. 5th DCA 1995) (quoting Rigby v. Liles, 505 So.2d 598, 601 (Fla. 1st DCA 1987)).
Mr. Barber acknowledges that the McLeods' complaint avers that their fraud claim accrued on October 7, 1996, the date they received confirmation from Prudential that their 1981 and 1983 insurance policies had lapsed. However, he argues that on the face of the complaint it is evident that the McLeods were "on notice" as late as 1985 that their policies were not performing as had been represented and thus their cause of action accrued more than ten years before they filed their initial complaint in November 1996. We disagree. The face of the instant complaint does not conclusively show that Mr. Barber's fraudulent conduct was or should have been discovered by the McLeods within four years prior to the date they filed their complaint. On the contrary, the complaint avers that all of the elements of fraud did not occur until at least October 7, 1996. The complaint was filed one month later. Based upon these facts, the trial court's ruling that Florida's statute of limitations bars the McLeods' fraud claim against Mr. Barber must also be reversed.
As for the trial court's third reason for dismissing the McLeods' fraud claim, application of Florida's economic loss rule, the law is clear that the economic...
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...& Sons, Inc., 397 So.2d 671 (Fla.1981), Laschke v. Brown & Williamson Tobacco Corp., 766 So.2d 1076 (Fla. 2d DCA 2000), McLeod v. Barber, 764 So.2d 790 (Fla. 5th DCA 2000), and Ambrose v. Catholic Soc. Servs., Inc., 736 So.2d 146 (Fla. 5th DCA 1999), on a question of law. We have jurisdicti......
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...simultaneously bring causes of action against both an insurer and an agent when a coverage dispute arises. See, e.g., McLeod v. Barber, 764 So.2d 790 (Fla. 5th DCA 2000); Daniel v. Florida Residential Prop. & Cas. Joint Underwriting Ass'n, 718 So.2d 936 (Fla. 3d DCA 1998); Warren v. Dairyla......
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...of limitations or affirmative defenses. See Doe v. Hillsborough County Hosp. Auth., 816 So.2d 262 (Fla. 2d DCA 2002); McLeod v. Barber, 764 So.2d 790 (Fla. 5th DCA 2000). Cf. Todd v. Johnson, 965 So.2d 255 (Fla. 1st DCA 2007) (quoting Vause v. Bay Med. Ctr., 687 So.2d 258, 261 (Fla. 1st DCA......
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Hess v. Philip Morris USA, Inc., No. SC12–2153.
...& Sons, Inc., 397 So.2d 671 (Fla.1981), Laschke v. Brown & Williamson Tobacco Corp., 766 So.2d 1076 (Fla. 2d DCA 2000), McLeod v. Barber, 764 So.2d 790 (Fla. 5th DCA 2000), and Ambrose v. Catholic Soc. Servs., Inc., 736 So.2d 146 (Fla. 5th DCA 1999), on a question of law. We have jurisdicti......
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Blumberg v. USAA Cas. Ins. Co., No. SC95740.
...simultaneously bring causes of action against both an insurer and an agent when a coverage dispute arises. See, e.g., McLeod v. Barber, 764 So.2d 790 (Fla. 5th DCA 2000); Daniel v. Florida Residential Prop. & Cas. Joint Underwriting Ass'n, 718 So.2d 936 (Fla. 3d DCA 1998); Warren v. Dairyla......
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Hess v. Philip Morris U.S., Inc., No. SC12-2153
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Avco Corp. v. Neff, No. 1D09-5531
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