Owens-Corning Fiberglass Corp. v. Corcoran

Decision Date17 July 1996
Docket NumberOWENS-CORNING,No. 94-1931,94-1931
Citation679 So.2d 291
CourtFlorida District Court of Appeals
Parties21 Fla. L. Weekly D1629, Prod.Liab.Rep. (CCH) P 14,699 FIBERGLASS CORPORATION, Appellant, v. James CORCORAN, et al., Appellees.

Blaire & Cole, Coral Gables; Berger & Chafetz and Steven R. Berger Miami, for appellant.

Ferraro & Associates; Podhurst, Orseck, Josefsberg, Eaton, Meadow, Miami, Olin & Perwin and Joel S. Perwin, Miami, for appellees.

Stephens, Lynn, Klein & McNicholas and Louise H. McMurray, Miami, for Pittsburgh Corning Corporation, as amicus curiae.

Before BARKDULL, NESBITT and COPE, JJ.

NESBITT, Judge.

Robert Galotti, decedent of James Corcoran et al., was exposed to asbestos-containing products between 1966 and 1972. The legislature enacted Section 95.031(2), Florida Statutes in 1975, imposing a twelve-year limitation on product liability actions. That twelve-year period, as applicable to products to which Galotti was exposed, expired in 1984. The statute was repealed in 1986. Galotti sued in December 1993, alleging injury because of his exposure to asbestos. Defendant Owens-Corning Fiberglass Corp. (Owens-Corning) moved for summary judgment based upon the statute of repose. 1 The trial court denied the motion on authority of Diamond v. E.R. Squibb & Sons, Inc., 397 So.2d 671 (Fla.1981). The case went to trial and judgment was ultimately awarded in plaintiffs' favor.

On direct appeal, Owens-Corning argues chiefly that on the instant facts, the statute of repose bars recovery. 2 Corcoran et al cross appeal, arguing that the calculations utilized by the trial court in entering the final judgment do not strictly comport with the formula adopted by the supreme court in Wells v. Tallahassee Memorial Regional Medical Ctr. Inc., 659 So.2d 249 (Fla.1995), decided after entry of the instant judgment. We affirm the judgment in plaintiffs' favor. However, because, as Owens Corning concedes, the calculations utilized by the trial court in entering the final judgment do not comport with the formula adopted in Wells, we reverse in part the trial court's order, and remand with instructions to recalculate the judgment.

Addressing the issue on direct appeal, the manufacturer cites to several recent supreme court cases applying the medical malpractice repose period. In each of these cases, the court unambiguously concluded that the plaintiff's cause of action was time-barred upon expiration of the repose period, without regard to the plaintiff's knowledge of injury or the nature of the injury alleged. See Kush v. Lloyd, 616 So.2d 415 (Fla.1992); Public Health Trust of Dade County v. Menendez, 584 So.2d 567, 568 (Fla.1991); University of Miami v. Bogorff, 583 So.2d 1000 (Fla.1991); Carr v. Broward County, 541 So.2d 92 (Fla.1989). 3

Appellees, on the other hand, argue that the trial court correctly concluded that application of the repose period to the instant facts would be unconstitutional, violating article I, section 21 of the Florida Constitution, 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."

Although the legislature may restrict access to the courts, it must first provide a reasonable alternative remedy or commensurate benefit or it must make a showing of overpowering public necessity justifying the restriction with a finding that there is no alternative method of meeting such public necessity. State Farm Mut. Auto. Ins. Co. v. Hassen, 650 So.2d 128, 140 (Fla. 2d DCA 1995), approved 674 So.2d 106 (Fla.1996), (citing Kluger v. White, 281 So.2d 1 (Fla.1973)).

Supporting the order under appeal, appellees point to the Diamond case, cited by the trial court, as well as two subsequent supreme court cases, Pullum v. Cincinnati, Inc., 476 So.2d 657 (Fla.1985) appeal dismissed, 475 U.S. 1114, 106 S.Ct. 1626, 90 L.Ed. 2d 174 (1986) and Conley v. Boyle Drug Co., 570 So.2d 275 (Fla.1990), both of which observe Diamond's continuing viability. Relying on these three cases, as well as Kluger, "the polestar decision for construction of article I section 21," Overland Constr. Co., Inc. v. Sirmons, 369 So.2d 572 (Fla.1979), we agree with the trial court's analysis.

In Diamond, a drug known as diethylstilbestrol (DES), was ingested during the plaintiff mother's pregnancy shortly after purchase of the drug between 1955 and 1956. The effects of the drug did not become manifest until after the plaintiff daughter reached puberty. The court concluded that under such circumstances application of the statute of repose would result in an unlawful denial of access to the courts. Thus, the statute was held not to bar the plaintiffs' recovery. At the time Diamond was decided, however, under Battilla v. Allis Chalmers Mfg. Co., 392 So.2d 874 (Fla.1980), the court had previously held that the repose statute, as applied, unconstitutionally denied plaintiffs' access to court. Thus, Diamond merely cited to existing case law, and contained no insight into the court's reasoning.

In Pullum, Richard Pullum was injured in 1977 by a machine delivered in 1966. He sued the manufacturer in 1980, past the repose period. In 1985, the supreme court affirmed the summary judgment that had been ordered in the manufacturer's favor. In doing so, the court receded from Battilla, and concluded that the legislature, in enacting section 95.031(2), had reasonably decided that perpetual liability placed an undue burden on manufacturers. 4 Pullum, 476 So.2d at 659.

Nonetheless, by footnote, the Pullum court maintained the exception earlier established in Diamond, stating:

Pullum also refers to Diamond v. E.R. Squibb & Sons, Inc., 397 So.2d 671 (Fla.1981), as being in accord with Battilla. In Diamond, we held that the operation of section 95.031(2) operated to bar a cause of action before it accrued and thereby denied the aggrieved plaintiff access to the courts. But Diamond presents an entirely different factual context than existed in either Battilla or the present case where the product first inflicted injury many years after its sale. In Diamond, the defective product, a drug known as diethylstilbestrol produced by Squibb, was ingested during plaintiff mother's pregnancy shortly after purchase of the drug between 1955-1956. The drug's effects, however, did not become manifest until after plaintiff daughter reached puberty. Under these circumstances, if the statute applied, plaintiffs' claim would have been barred even though the injury caused by the product did not become evident until over twelve years after the product had been ingested. The legislature, no doubt, did not contemplate the application of this statute to the facts in Diamond. Were it applicable, there certainly would have been a denial of access to the courts.

476 So.2d at 659, n. *.

No Supreme Court case post Pullum reverses or recedes from Diamond. In 1990, the court again affirmed Diamond 's viability in Conley v. Boyle Drug Co., another DES case, stating:

We have recognized that because of the delay between the mother's ingestion of the drug and the manifestation of injury to the plaintiff, DES cases must be accorded different treatment than other products liability actions for statute of repose purposes.

Conley, 570 So.2d at 283. (Citations to Pullum and Diamond omitted.) Because we find the instant facts directly analogous to those in Diamond, supported by our judgment that this is a correct application of Kluger, we conclude that the trial court properly held the instant claim not to be time-barred. See Vilardebo v. Keene Corp., 431 So.2d 620 (Fla. 3d DCA), appeal dismissed, 438 So.2d 831(Fla.1983).

Admittedly, the Supreme Court has not elaborated on Diamond 's analytical underpinning, thus leaving the district courts to speculate on that case's continued viability and the breadth of the exception established therein. 5 Also, we acknowledge that the court has strongly and repeatedly reaffirmed the application of the repose statute, section 95.11(4)(b), to bar plaintiffs' actions in the medical malpractice context, regardless of their knowledge of injury within the repose period. 6

The exposure to asbestos is very much like the ingestion of DES. Other than the actual chemical involved, the method of human absorption and the nature of the resulting physical reaction, the facts are alike.

Therefore, we conclude as did Justice McDonald in his concurrence in Diamond:

[the plaintiff] had an accrued cause of action but it was not recognizable, through no fault of [his], because the injury had not manifested itself. This is different from a situation where the injury is not inflicted for more than twelve years from the sale of the product. When an injury has occurred but a cause of action cannot be pursued because the results of the injury could not be discovered, a statute of limitation barring the action ... bar[s] access to the courts and is constitutionally impermissive.

Diamond, 397 So.2d at 672. Interestingly, it was Justice McDonald's dissent in Battilla, that was subsequently adopted by the majority in Pullum. This reinforces our conclusion that his view of the statute's nonapplicability to the type of injury alleged herein is correct. Employing his analysis, we believe that applying the statute of repose to the instant facts would result in an unconstitutional denial of access to the court.

It is important to stress that our decision today in no way refers to or affects application of the medical malpractice statute of repose. The overriding public necessity of its operation has been acknowledged and is set out in Carr v. Broward County, 541 So.2d 92, 95 (Fla.1989) (holding "section 95.11(4)(b) was properly grounded on an announced public necessity and no less stringent measure would obviate the problems the legislature sought to address, and thus the statute does not violate the access-to-courts provision.")...

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