Overland Const. Co., Inc. v. Sirmons, s. 52799

CourtUnited States State Supreme Court of Florida
Citation369 So.2d 572
PartiesOVERLAND CONSTRUCTION COMPANY, INC., Petitioner, v. Jerry I. SIRMONS, et ux., et al., Respondents, (Two cases).
Docket Number52788,Nos. 52799,s. 52799
Decision Date01 March 1979

Page 572

369 So.2d 572
Jerry I. SIRMONS, et ux., et al., Respondents, (Two cases).
Nos. 52799, 52788.
Supreme Court of Florida.
March 1, 1979.
Rehearing Denied May 2, 1979.

Justus W. Reid of Magill, Sevier & Reid, Palm Beach, and Edna L. Caruso, West Palm Beach, for petitioner-appellant.

Richard L. Martens of Cone, Owen, Wagner, Nugent, Johnson & McKeown, and Larry Klein, West Palm Beach, for respondents-appellees.

ENGLAND, Chief Justice.

In this proceeding we are called upon to review the constitutionality of section 95.11(3)(c), Florida Statutes (1975), insofar as it absolutely bars the right to bring suit for certain injuries incurred on real property unless the lawsuit is commenced within twelve years after the completion of the improvements which produced the injury. The relevant portion of the statute, which limits actions "founded on the design, planning, or construction of an improvement to real property," states:

In any event the action must be commenced within 12 years after the date of actual possession by the owner, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his employer.

In 1961, Overland and another company completed construction of a building in West Palm Beach. In 1975, more than twelve years after Overland's completion of construction, Jerry Sirmons was injured in the building in the course of his employment. He sued both the owner of the building and its builders. When Overland

Page 573

moved for a summary judgment based on the statutory twelve year ban on lawsuits, the quoted portion of section 95.11(3)(c) was declared unconstitutional by the trial court, thereby allowing Sirmons and the other respondents to proceed with the lawsuit notwithstanding the seeming bar of the statute. Overland has now sought to have the ruling reversed here, pursuant to article V, section 3(b)(3), Florida Constitution, and Burnsed v. Seaboard Coastline Railroad Co., 290 So.2d 13 (Fla.1974).

The trial court held the statute unconstitutional as violative of article I, section 21 of the Florida Constitution, 1 which provides:

The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.

This constitutional mandate, which has appeared in every revision of the state constitution since 1838, 2 has no counterpart in the federal constitution and derives its scope and meaning solely from Florida case law. 3 The polestar decision for the construction of this provision is Kluger v. White, 281 So.2d 1, 4 (Fla.1973), in which we held:

(W)here a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla.Stat. § 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.

Based on Kluger, then, we must first decide whether the legislature, without providing any reasonable alternative, has abolished a statutory or common law right of action protected by article I, section 21, 4 and if so, whether that action is grounded both on an overpowering public necessity and an absence of any less onerous alternative means of meeting that need.

It is undisputed that a cause of action of the type asserted by Sirmons in this case the right of an injured person to bring suit against a building contractor with whom he is not in privity for damages suffered as a result of alleged negligence in construction even after the owner has accepted the completed building is one for which a right of redress is guaranteed by article I, section 21. This common law right, though not expressly recognized by statute until 1975, 5 was acknowledged as extant by this Court in 1959. 6 When the "access to courts" provision

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of the constitution was re-adopted in 1968, there existed a right of redress against contractors for the type of injury Sirmons suffered, provided, of course, that suit was commenced within four years 7 after the cause of action accrued by the occurrence of the injury.

Section 95.11(3)(c), insofar as is relevant to this proceeding, creates absolute immunity from suit for certain professionals and contractors connected with the construction of improvements to real property after the expiration of twelve years from the completion of the building. It unquestionably abolished Jerry Sirmons' right to sue Overland for his injuries and provided no alternative form of redress. The only remaining issue under Kluger, therefore, is whether the legislature has shown an overpowering public necessity for this prohibitory provision, and an absence of less onerous alternatives.

The legislature itself has not expressed any perceived public necessity for abolishing a cause of action for injuries occurring more than twelve years after the completion of improvements to real property. Overland suggests that several other states have adopted analogous limitations, 8 principally to counter a trend in the decisional law toward expanded liability for professional engineers, architects and contractors, and that the need for this type of statute is predicated on the difficulty of proof which naturally accompanies the passage of time.

We recognize the problems which inhere in exposing builders and related professionals to potential liability for an indefinite period of time after an improvement to real property has been completed. Undoubtedly, the passage of time does aggravate the difficulty of producing reliable evidence, and it is likely that advances in technology tend to push industry standards inexorably higher. The impact of these problems, however, is felt by all litigants. Moreover, the difficulties of proof would seem to fall at least as heavily on injured plaintiffs, who must generally carry the initial burden of establishing that the defendant was negligent. In any event, these problems are not unique to the construction industry, and they are not sufficiently compelling to justify the enactment of legislation which, without providing an alternative means of redress, totally abolishes an injured person's cause of action. The legislation impermissibly benefits only one class of defendants, at the expense of an injured party's right to sue, and in violation of our constitutional guarantee of access to courts.

This analysis of section 95.11(3)(c) naturally calls for an explanation of our recent decision in Bauld v. J. A. Jones...

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