Meehan v. Celotex Corp.

• Citation: 10 Fla. L. Weekly 333,466 So.2d 1100
• Decision Date: 05 February 1985
• Docket Number: No. 82-122,82-122
• Parties: 10 Fla. L. Weekly 333, 10 Fla. L. Weekly 904 Carmella MEEHAN, as Personal Representative of the Estate and Heirs of Charles Meehan, deceased, Appellant, v. The CELOTEX CORPORATION, a Delaware corporation, Eagle-Picher Industries, Inc., and Ohio corporation, GAF Corporation, a Delaware corporation, Johns-Manville Sales Corporation a Delaware corporation, Owens-Illinois, Inc., an Ohio corporation, and H.K. Porter Company, Inc., Appellees.
• Court: Court of Appeal of Florida (US)

Page 1100

466 So.2d 1100

10 Fla. L. Weekly 333, 10 Fla. L. Weekly 904

Carmella MEEHAN, as Personal Representative of the Estate and Heirs of Charles Meehan, deceased, Appellant, v. The CELOTEX CORPORATION, a Delaware corporation, Eagle-Picher Industries, Inc., and Ohio corporation, GAF Corporation, a Delaware corporation, Johns-Manville Sales Corporation a Delaware corporation, Owens-Illinois, Inc., an Ohio corporation, and H.K. Porter Company, Inc., Appellees.

No. 82-122.

District Court of Appeal of Florida,

Third District.

Feb. 5, 1985.

On Rehearing En Banc Feb. 5, 1985.

Rehearing and Certification Denied

April 9, 1985.

Frederick M. Baron & Associates and Jane N. Saginaw and Brian D. Weinstein, Dallas, Tex., Robles & Robles, Miami, for appellant.

Shackleford, Farrior, Stallings & Evans and Clark Jordan-Holmes and Charles P. Schropp, Tampa, Thomson, Zeder, Bohrer, Werth, Adorno & Razook and Jon W. Zeder and Rana M. Gorzeck; Wolpe & Leibowitz, Steven R. Berger, Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Susan J. Cole and Michael K. McLemore, Marks, Gray, Conroy & Gibbs and Tracey I. Arpen, Jr., Jacksonville, for appellees.

Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.

REVISED OPINION

DANIEL S. PEARSON, Judge.

The panel opinion issued in this cause on November 15, 1983, is withdrawn, and the following opinion is substituted therefor.

The appellant, Carmella Meehan, is the personal representative of the estate of Charles Meehan, her late husband. Reciting a now all too familiar scenario, Mrs. Meehan charged that the defendants caused her husband's death when products manufactured by them exposed him to the pernicious effects of asbestos dust.

Between 1942 and 1945, Charles worked at the Brooklyn Navy Yard where, it is alleged, he was exposed to the defendants' asbestos products. He and Carmella moved to Florida in 1969. Eight years later, Charles' Florida physician first diagnosed Charles as having asbestosis and mesothelioma, diseases caused by the inhalation of asbestos. Charles died in 1978, and a year later this suit was filed in Florida. The trial court entered summary judgment for the defendants on the stated ground that:

"It is undisputed that the Decedent, CHARLES FRANCIS MEEHAN, was exposed to asbestos products only at the Brooklyn Navy Yard, Brooklyn, New York, from 1942 through 1945. Pursuant to the provisions of Section 95.10 of the Florida Statutes this Court applies the appropriate statute of limitations under the laws of the State of New York and finds that this action is barred by those statutes of limitations [sic]."

This appeal followed. We reverse.

Section 95.10, Florida Statutes (1979), referred to in the trial court's judgment, is commonly known as a borrowing statute. It provides:

"When the cause of action arose in another state or territory of the United States, or in a foreign country, and its laws forbid the maintenance of the action because of lapse of time, no action shall be maintained in this state." (emphasis supplied).

It is clear that the borrowing statute is triggered only upon a finding that the cause of action arose in another state. Because Florida's borrowing statute is considered to be purely procedural, Colhoun v. Greyhound Lines, Inc., 265 So.2d 18 (Fla.1972); Pledger v. Burnup & Sims, Inc., 432 So.2d 1323 (Fla. 4th DCA 1983), rev. denied 446 So.2d 99 (Fla.1984), the determination of where a "cause of action arose" is made in accordance with the law of the forum state, (here Florida), Colhoun, 265 So.2d 18; Pledger, 432 So.2d 1323, see Farris & Co. v. William Schluderberg, T.J. Kurdle Co., 141 Fla. 462, 193 So. 429 (1940), rather than New York, the state apparently deemed by the trial court to Under the thus applicable Florida law, a cause of action in tort "arises in the jurisdiction where the last act necessary to establish liability occurred." Colhoun v. Greyhound Lines, Inc., 265 So.2d at 21. Although it is plausibly argued by the defendants that we must distinguish between where a cause of action arises (said by them to be the place where the claim originates) and when a cause of action accrues (said by them to be the time when the statute of limitations begins to run) and that discovery of the existence of a cause of action is relevant only to the latter inquiry, our examination of Florida case law discloses that no such distinction has ever been made and that, to the contrary, the terms "arise" and "arose" have consistently been used interchangeably with the terms "accrue" and "accrued". ² See, e.g., Universal Engineering Corp. v. Perez, 451 So.2d 463 (Fla.1984); Colhoun v. Greyhound Lines, Inc., 265 So.2d 18; Brown v. Case, 80 Fla. 703, 86 So. 684 (1920). Cf. Georgia-Pacific Corp. v. Squires Development Corp., 387 So.2d 986 (Fla. 4th DCA 1980) (splitting causes of action); Gaboury v. Flagler Hospital, Inc., 316 So.2d 642 (Fla. 4th DCA 1975) (venue case). Indeed, in the face of this case law, assumed to be known by the legislature, see Migliore v. Crown Liquors of Broward, Inc., 448 So.2d 978 (Fla.1984); Senfeld v. Bank of Nova Scotia Trust Co., 450 So.2d 1157 (Fla. 3d DCA 1984), the legislature, in 1975, revised Chapter 95, including Section 95.10, and not only made no effort to distinguish between these terms, but instead reinforced their equation by defining accrue as occurring "when the last element constituting the cause of action occurs", § 95.031(1), Fla.Stat. (1975), a definition which is substantially the same as the definition of arise ("where the last act necessary to establish liability occurred") found in Colhoun. Thus, to ascertain the meaning of the phrase "where the last act necessary to establish liability occurred"--that is, where the cause of action arose--we may properly look to the meaning of its equivalent, "when the last element constituting the cause of action occurs"--that is, when the cause of action accrued. It being clear that "the accrual [of a cause of action] must coincide with the aggrieved party's discovery or duty to discover the act constituting an invasion of his legal rights", Creviston v. General Motors Corp., 225 So.2d 331, 334 (Fla.1969); see Senfeld v. Bank of Nova Scotia Trust Co., 450 So.2d 1157; Lund v. Cook, 354 So.2d 940 (Fla. 1st DCA), cert. denied 360 So.2d 1247 (Fla.1978), a cause of action in tort arises when the plaintiff knew or should have known of the existence of the cause of action or the invasion of his legal rights. ³ , ⁴ Therefore, insofar as Marano v. Celotex Corp., 433 So.2d 592 (Fla. 3d DCA 1983) holds that for purposes of Florida's borrowing statute a cause of action arises at the time of exposure to a deleterious substance without regard to whether the plaintiff knew or should have known of the injury, that holding is overruled.

have the most significant relationship to the occurrence and to the parties. ¹

Because the record before us does not conclusively demonstrate that the cause of action arose in New York or, for that matter, arose anytime prior to 1977 when Meehan's disease was first diagnosed in Florida, we hold that the trial court erred in finding as a matter of law that Meehan's cause of action arose in New York rather than in Florida. See Brown v. Armstrong World Industries, Inc., 441 So.2d 1098 (Fla. 3d DCA 1983). Of course, if, in subsequent proceedings, there is evidence adduced to show that Meehan knew or should have known through the exercise of due diligence of the existence of his cause of action more than four years prior to the institution of this suit, our opinion will not prevent the fact-finder from concluding that this action is limitations-barred under Section 95.11(3)(a), Florida Statutes (1979). ⁵

Reversed and remanded for further proceedings.

Before SCHWARTZ, C.J., and HENDRY, BARKDULL, HUBBART, NESBITT, BASKIN, DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.

OPINION ON REHEARING EN BANC

PER CURIAM.

The court has reheard this matter en banc because of its determination that the panel opinion conflicts with the decision of this court in Marano v. Celotex Corp., 433 So.2d 592 (Fla. 3d DCA), pet. for review denied, 438 So.2d 833 (Fla.1983). Four members of the court (the panel members and Judge Jorgenson) have voted to adhere to the panel decision; four members of the court (Chief Judge Schwartz and Judges Barkdull, Baskin and Ferguson) would vacate the panel decision and follow Marano for the reasons set forth in Chief Judge Schwartz's attached dissent; and Judge Hubbart would deny en banc consideration of the matter for the reasons expressed in his dissent. Therefore, there being a 4-4 tie on the merits of the controversy, the panel's decision stands as the decision of the court. See Fla.R.App.P. 9.331(a).

HUBBART, Judge (dissenting).

I must respectfully dissent to the court's decision to rehear this case en banc; I also dissent to the court's decision to declare the revised panel opinion the decision of this court on the merits. I would deny the appellees' motion for rehearing en banc and reinstate the original panel opinion filed in this cause on November 15, 1983. In my view, the original panel opinion created no conflict or lack of uniformity with Marano v. Celotex Corp., 433 So.2d 592 (Fla. 3d DCA), pet. for review denied, 438 So.2d 833 (Fla.1983), as urged by the appellees herein, sufficient to invoke our en banc jurisdiction under Fla.R.App.P. 9.331; accordingly, the original panel opinion should stand as the decision of this court.

The November 15, 1983 original panel opinion--which the court voted to rehear en banc over my dissent--narrowly, and I think correctly, reads the Marano decision as follows:

"We read Marano v. Celotex Corp., 433 So.2d 592 (Fla. 3d DCA 1983), as standing for the narrow proposition that where the allegations of the plaintiff's pleadings conclusively show that his cause of action arose in another state, the trial court properly borrows the foreign state's statute of limitations to bar the...