Times Publishing Co. v. W.R. Grace & Co.-Conn.

• Citation: 552 So.2d 314,14 Fla. L. Weekly 2683
• Decision Date: 17 November 1989
• Docket Number: No. 89-00013,COMPANY--CONN,89-00013
• Court: Court of Appeal of Florida (US)
• Parties: 14 Fla. L. Weekly 2683, Prod.Liab.Rep. (CCH) P 12,301 TIMES PUBLISHING COMPANY, Appellant, v. W.R. GRACE &, a foreign corporation, Appellee.

Page 314

552 So.2d 314

14 Fla. L. Weekly 2683, Prod.Liab.Rep. (CCH) P 12,301

TIMES PUBLISHING COMPANY, Appellant, v. W.R. GRACE & COMPANY--CONN., a foreign corporation, Appellee.

No. 89-00013.

District Court of Appeal of Florida,

Second District.

Nov. 17, 1989.

William C. Ballard and Anthony J. Russo of Fisher & Sauls, P.A., St. Petersburg, for appellant.

Lawrence A. Farese and Cathy S. Reiman of Cummings & Lockwood, Naples, and Marjorie Cooke and Walter F. Maroney of Goodwin, Proctor & Hoar, Boston, MA, for appellee.

FRANK, Acting Chief Judge.

The Times Publishing Company sued W.R. Grace & Co. as the result of a substance containing asbestos which was sold by W.R. Grace to a contractor who affixed it to structural aspects of a building Times Publishing constructed in 1969. After learning of the presence of the asbestos, Times Publishing commenced the instant action in 1985. W.R. Grace was successful in procuring a summary judgment from the trial court based upon section 95.031(2), Florida Statutes (1983), the products liability statute of repose.

There is no dispute that Times Publishing commenced its action some 16 years after the asbestos-containing material was sprayed upon the building's superstructure. Thus, the 12 year statute of repose forecloses the product liability claim. Times Publishing, however, recognizing the effect of section 95.031(2) urges that we adopt and follow the exception expressed in Diamond v. E.R. Squibb & Sons, Inc., 397 So.2d 671 (Fla.1981). We decline the invitation to extend Diamond beyond its factual boundaries.

In Diamond our supreme court reversed the district court's affirmance of a summary judgment favoring Squibb in a products liability action initiated after expiration of the statutory 12 year period. There, a child and her parents sued Squibb, the manufacturer of a drug known as Stilbetin. The child's mother had been administered the drug during her pregnancy. Subsequently, it was found that the drug caused cancer in female children that could not be detected until the child reached puberty, a time when the claim would be in repose. Squibb obtained a summary judgment based upon section 95.031(2). The supreme court quashed the district court's affirmance of the summary judgment concluding that the repose statute barred the cause of action before it ever accrued thereby denying access to a judicial forum in violation of rights guaranteed under Article I, Section 21, of the Florida Constitution.

The...