Nissan Motor Co., Ltd. v. Phlieger

• Decision Date: 28 May 1987
• Docket Number: No. 68823,68823
• Parties: 12 Fla. L. Weekly 256, Prod.Liab.Rep. (CCH) P 11,434 NISSAN MOTOR CO., LTD., Petitioner, v. Lynn PHLIEGER, Respondent.
• Court: Florida Supreme Court

Page 713

508 So.2d 713

12 Fla. L. Weekly 256, Prod.Liab.Rep. (CCH) P 11,434

NISSAN MOTOR CO., LTD., Petitioner, v. Lynn PHLIEGER, Respondent.

No. 68823.

Supreme Court of Florida.

May 28, 1987.

Rehearing Denied July 16, 1987.

Sharon Lee Stedman, of Rumberger, Kirk, Caldwell, Cabaniss & Burke, Orlando, for petitioner.

James C. Blecke, Gary D. Fox, of Stewart, Tilghman, Fox & Bianchi, Miami, and Thomas E. Thoburn, Cocoa, for respondent.

EHRLICH, Justice.

We have for review Phlieger v. Nissan Motor Co. 487 So.2d 1096 (Fla. 5th DCA 1986), because of apparent conflict with several decisions of this Court. We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and approve the decision below.

In August 1981, Jay Phlieger was killed as a result of an allegedly defective roof design in his Nissan truck. In June 1983, less than two years after Mr. Phlieger's death, his widow, in her capacity as his personal representative (respondent herein), filed a wrongful death action against Nissan, pursuant to section 768.19, Florida Statutes (1983). Nissan filed a motion for summary judgment relying on section 95.031(2), Florida Statutes (1983), the twelve-year products liability statute of repose. Nissan argued that since the truck had been originally purchased on February 13, 1970, its exposure to liability ended on February 13, 1982, pursuant to section 95.031(2). Nissan maintained that because on June 3, 1983, the date this action was filed, a products liability action by Mr. Phlieger would have been barred by section 95.031(2), a wrongful death action on behalf of his survivors was likewise barred. The trial court agreed with Nissan, entering summary judgment in its favor.

On appeal the district court reversed, holding section 95.031(2) inapplicable in wrongful death actions. In reaching this conclusion the court looked first to the various limitations set forth in sections 95.11 and 95.031(2), Florida Statutes (1983). Section 95.11 provides in pertinent part:

Actions other than for recovery of real property shall be commenced as follows:

................................................................................

* * *

(3) WITHIN FOUR YEARS.--

(a) An action founded on negligence.

................................................................................

* * *

(e) An action for injury to a person founded on the design, manufacture, distribution or sale of personal property that is not permanently incorporated in an improvement to real property, including fixtures.

................................................................................

* * *

(j) A legal or equitable action founded on fraud.

................................................................................

* * *

(4) WITHIN TWO YEARS.--

................................................................................

* * *

(d) An action for wrongful death.

Section 95.031(2) dealing with computation of time under chapter 95 provides:

Actions for products liability and fraud under s. 95.11(3) 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 within 12 years after the date of delivery of the completed product to its original purchaser or within 12 years after the date of the commission of the alleged fraud, regardless of the date the defect in the product or the fraud was or should have been discovered.

The district court reasoned that since this action was a wrongful death action pursuant to section 768.19 ¹ rather than a products liability action, "by its very language, section 95.031(2) does not apply and, rather, the two year statute of limitations for wrongful death actions found in section 95.11(4)(d) applies." 487 So.2d at 1097. Nissan concedes that it is section 95.11(4)(d) rather than section 95.11(3) which is the applicable statute of limitations in this action but argues that the twelve-year statute of repose set forth in section 95.031(2) applies to bar what Nissan characterizes as the underlying products liability cause of action. Nissan maintains that the district court confused the concepts of a "right of action" and a "cause of action." It contends that Florida's Wrongful Death Act simply gives the designated beneficiaries a right of action based on the decedent's underlying products liability cause of action. Thus, according to Nissan, because the underlying products liability action is barred by section 95.031(2), Mrs. Phlieger has a right of action but has no viable cause of action. Nissan relies heavily on this Court's decisions in Variety Children's Hospital v. Perkins, 445 So.2d 1010 (Fla.1983), and Ash v. Stella, 457 So.2d 1377 (Fla.1984), for the position that Florida's Wrongful Death Act does not create a cause of action separate and distinct from that which the decedent could have maintained had he lived. We reject this narrow interpretation of Florida's Wrongful Death Act and agree with the district court that our decisions in Perkins and Ash "actually support Mrs. Phlieger's position." 487 So.2d at 1098.

Florida's Wrongful Death Act does create a right of action in favor of statutory beneficiaries which was not recognized at common law. Florida East Coast Ry. v. McRoberts, 111 Fla. 278, 149 So. 631 (1933); Perkins, 445 So.2d at 1012. However, this Court has consistently held that the act also creates a new and independent cause of action in the statutorily designated beneficiaries. See, e.g., Perkins, 445 So.2d at 1012; Martin v. United Security Services, Inc., 314 So.2d 765 (Fla.1975); Stokes v. Libery Mutual Insurance Co., 213 So.2d 695 (Fla.1968); Shiver v. Sessions, 80 So.2d 905 (Fla.1955); Epps v. Railway Express Agency, 40 So.2d 131 (Fla.1949); Ake v. Birnbaum, 156 Fla. 735, 25 So.2d 213 (1945). Neither Ash nor Perkins should be read to have held to the contrary.

Although we stated in Ash that the issue before the Court was "whether a survivor can bring a wrongful death action in cases where if the decedent had survived, the decedent would have been precluded from filing suit because of the statute of limitations," 457 So.2d at 1378-79, that issue was never actually reached by this Court. In Ash we held that wrongful death actions based on medical malpractice would be governed by the medical malpractice statute of limitations, section 95.11(4)(b), Florida Statutes (1979). This conclusion was based solely on the fact that the statute of limitations at issue specifically defined an action for medical malpractice as including "a claim in tort or in contract for damages because of ... death" and thus, clearly expressed the legislature's intent that section 95.11(4)(b) apply to wrongful death actions based on medical malpractice. 457 So.2d at 1379, quoting § 95.11(4)(b).

Neither does this Court's decision in Perkins support the position urged by Nissan. In Perkins we held, in accord with the majority of other courts which have addressed the issue, that a wrongful death action is barred where the decedent, during his lifetime, had filed a personal injury action against the tortfeasor and had fully recovered. Our holding was based on the fact that "[a]t the moment of his death [the injured party] had no right of action against the tortfeasor because his cause of action had already been litigated, proved and satisfied.... Since there was no right of action existing at the time of death, under the statute no wrongful death cause of action survived the decedent." 445 So.2d at 1012 (emphasis added). As noted by the district court below, at the moment of Jay Phlieger's death, the twelve years had not yet run. Therefore, unlike the decedent in Perkins, Mr. Phlieger had a right to maintain an action against Nissan at the time of his death; and thus, Mrs. Phlieger, acting as his personal representative, had a statutory right to bring an action based on injuries suffered by Mr. Phlieger's survivors as a result of his death. See Ake v. Birnbaum, 156 Fla. 735, 25 So.2d 213. The question then becomes does section 95.031(2) apply to bar this otherwise viable wrongful death action.

We agree with the district court that "by its very language section 95.031(2) does not apply [to wrongful death actions]." 487 So.2d at 1097. Section 95.031(2) specifically refers to "the actions for products liability ... under s. 95.11(3)." Section 965.031(2) makes no reference to wrongful death actions under section 95.11(4)(d); nor does either section 95.11(3) or section 95.031(2) refer to actions for damages because of death. Compare Ash (wrongful death action based on medical malpractice barred where medical malpractice statute of limitations specifically defined an action for medical malpractice as including a claim for damages because of death) with Parker v. City of Jacksonville, 82 So.2d 131 (Fla.1955) (wrongful death action was not barred by statute of limitations pertaining to actions against city for any negligence or wrongful injury or damage to person or property where statute did not expressly refer to death actions.). Therefore, we conclude that the legislature did not intend that section 95.031(2) operate as a bar to wrongful death actions brought more than twelve years after the original purchase of the product allegedly causing death. ²

Accordingly, the decision of the district court below is approved.

It is so ordered.

McDONALD, C.J., and OVERTON, SHAW, BARKETT and KOGAN, JJ., concur.

GRIMES, J., concurs specially in result only with an opinion.

GRIMES, Justice, specially concurring in result only.

A statute of repose cuts off a right of action within a specified time after the delivery of a product or the completion of an improvement, regardless of the time of the accrual of the cause of action. Bauld v. J.A. Jones...