Small v. Niagara Mach. & Tool Works

• Decision Date: 20 January 1987
• Docket Number: No. 86-1161,86-1161
• Citation: 12 Fla. L. Weekly 366,502 So.2d 943
• Parties: 12 Fla. L. Weekly 366 Katherine SMALL and Charles Small, Appellants, v. NIAGARA MACHINE & TOOL WORKS, Appellee.
• Court: Florida District Court of Appeals

Page 943

502 So.2d 943

12 Fla. L. Weekly 366

Katherine SMALL and Charles Small, Appellants, v. NIAGARA MACHINE & TOOL WORKS, Appellee.

No. 86-1161.

District Court of Appeal of Florida,

Second District.

Jan. 20, 1987.

Rehearing Denied Feb. 23, 1987.

James E. Deakyne, Jr., St. Petersburg, for appellants.

Thomas J. Roehn and Robert M. Daisley of Annis, Mitchell, Cockey, Edwards & Roehn, P.A., Tampa, for appellee.

SANDERLIN, Judge.

In this case, plaintiffs (the Smalls) appeal the trial court's order granting final summary judgment in favor of the defendant (Niagara). For the reasons stated below, we affirm.

FACTS

In 1950, Niagara manufactured a punch press and delivered it to its initial purchaser. Thereafter, the punch press was sold to Modern Tool and Die Company, Mrs. Small's employer in Pinellas County.

On June 26, 1981, Mrs. Small was operating the punch press when she sustained a serious injury to her right hand. She lost two fingers.

On April 20, 1983, Mrs. Small and her husband filed a lawsuit against Niagara. The four count complaint alleged: (1) manufacturer's breach of implied warranty; (2) manufacturer's negligence; (3) manufacturer's strict liability; and (4) a derivative claim brought by Mr. Small seeking damages for loss of affection, society, services, consortium, and companionship. The timeliness of the lawsuit was governed by various sections of chapter 95 which prescribe limitations of actions. The preamble to section 95.031, Florida Statutes (1979), states:

Computation of time.--Except as provided in subsection 95.051(2) and elsewhere in these statutes, the time within which an action shall be begun under any statute of limitations runs from the time the cause of action accrues.

Thus, under the statute, Mrs. Small's cause of action, unless otherwise barred, accrued on June 26, 1981.

Under section 95.11 entitled "Limitations other than for the recovery of real property," the following provisions applied to the suit:

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

....

(3) WITHIN FOUR YEARS.--

(a) An action founded on negligence.

....

§ 95.11(3)(a), Fla.Stat. (1979). Count II of the complaint alleged negligence. Since the remainder of the complaint did not deal with specific causes of actions listed under subsection 3, Mrs. Small's remaining counts were governed by subsection 3(p) which allowed four years for "[a]ny action not specifically provided for in these statutes." § 95.11(3)(p), Fla.Stat. (1979).

At the core of our analysis is section 95.031(2), a statute of repose, which provided:

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 ... regardless of the date the defect in the product ... was or should have been discovered.

§ 95.031(2), Fla.Stat. (1979) (Emphasis added.).

We conclude that, unless otherwise barred, Mrs. Small was obligated to bring her suit within four years from the date of her injury, i.e., by June 25, 1985. This assumes the statute of repose was inoperative at the time of injury. See Battilla v. Allis Chalmers Manufacturing Co., 392 So.2d 874 (Fla.1980). However, when we include the statute of repose in our analysis, we find that since the punch press was delivered in 1950, Mrs. Small, or any other person injured by the punch press, was obliged to bring suit by 1962, if the suit was to be brought against the original manufacturer, in this case, Niagara.

On June 3, 1983, Niagara filed its answer denying all allegations of the complaint and asserted two affirmative defenses: (1) contributory negligence on the part of Mrs. Small and (2) Mrs. Small's receipt of full or partial payment for the loss or injury. Niagara also filed a motion to dismiss citing the Smalls' failure to allege existence of a sale, failure of notice, and failure to allege breach of implied warranty.

On June 5, 1985, the cause was set for trial, but on September 23, 1985, Niagara moved for leave to amend its answer and to raise the twelve-year statute of repose. On that same day, Niagara also filed a motion for summary judgment on the basis of the statute of repose. Attached to the motion was the affidavit of H. Stanton Cheyney. Cheyney attested that he was the vice president of marketing for Niagara Machine; that he had personal knowledge of all the matters involved in the lawsuit; and, most important, he attested that the punch press described in the complaint was "delivered, in completed form, to its initial purchaser in 1950." (Emphasis supplied.) Niagara also amended its answer incorporating the statute of repose as its third affirmative defense. The Smalls moved to strike this defense, but the motion was denied.

On December 9, 1985, the trial court rendered its order of final summary judgment, which cited Pullum v. Cincinnati, Inc., 476 So.2d 657 (Fla.1985), and found that the twelve-year statute of repose was valid at the time of injury and effectively barred the Smalls' lawsuit.

On May 7, 1986, the Smalls filed their notice of appeal, and soon thereafter, on July 1, 1986, the Florida Legislature amended chapter 95 by deleting the twelve-year statute of repose. See Ch. 86-272, Laws of Fla.

Chapter 86-272 is entitled:

An act relating to limitations of actions; amending s. 95.11, F.S.; reducing the time within which actions for libel and slander must be commenced; amending s. 95.031, F.S.; deleting a limitation upon the initiation of actions for products liability; providing an effective date.

The pertinent sections of the amendment provide:

Section 2. Subsection (2) of section 95.031, Florida Statutes, is amended to read:

95.031 Computation of time.--Except as provided in subsection (2) and in s. 95.051 and elsewhere in these statutes, the time within which an action shall be begun under any statute of limitations runs from the time the cause of action accrues.

(2) 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 an action for fraud under s. 95.11(3) must be begun within 12 years after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered.

Section 3. Section 1 of this act shall take effect October 1, 1986, and shall apply to causes of action accruing after that date, and Section 2 of this act shall take effect July 1, 1986.

Approved by the Governor July 9, 1986.

Filed in Office Secretary of State July 9, 1986. [Emphasis in original.]

Essentially, the amendment repealed the twelve-year repose provision for products liability, but retained a twelve-year provision for fraud.

THE ISSUE OF RETROACTIVE APPLICATION

The Smalls' primary argument on appeal urges us to apply retroactively the revision of chapter 95 and its repeal of the statute of repose. They argue that the deletion of the twelve-year statute of repose should operate to breathe life into their complaint, even though the legislature made the deletion after final summary judgment was entered below and after the notice of appeal was filed. Niagara, to the contrary, argues that the repeal should not apply retroactively. To resolve this issue, we look no further than Justice Drew's opinion in Foley v. Morris, 339 So.2d 215 (Fla.1976).

Foley involved a medical malpractice action in which three years had elapsed between the accrual of the cause of action and the filing of the complaint. When the cause of action accrued, the plaintiff was subject to a four-year statute of limitations. But, within the three years spanning the accrual of the cause of action and the filing of the complaint, the legislature had reduced the statute of limitations to two years. The defendants moved for dismissal and asked the court to apply the two-year statute retroactively. Agreeing, the trial court granted the motion and entered a final order of dismissal. The plaintiff appealed to this court and we affirmed, holding that the statute applied retroactively. See Foley v. Morris, 325 So.2d 37 (Fla. 2d DCA 1976). The plaintiff turned to the supreme court, which granted review. In his opinion, Justice Drew noted that the amended statute clearly applied to medical malpractice actions and clearly barred those actions if they were not filed within two years. Foley, 339 So.2d at 216. Most telling, however, was section two of the amended statute which stated: "This act shall take effect on July 1, 1972." Foley, 339 So.2d at 217. Following this quotation of the amendment, the court observed:

Nothing in the language of the act manifests an intention by the legislature to do otherwise than prospectively apply the new two year statute of limitations.

Id. (emphasis supplied). According to the court, the statute, which would have benefited the defendant immensely, could not apply retroactively, since the plaintiff's cause of action, when it accrued, was entitled to a four-year statute of limitations. In reaching its result, the supreme court held:

In most jurisdictions, in the absence of a clear manifestation of legislative intent to the contrary, statutes of limitation are construed as prospective and not retrospective in their operation, and the presumption is against any intent on the part of the legislature to make such a statute retroactive. Thus, rights accrued, claims arising, proceedings instituted, orders made under the...