Walker v. Beech Aircraft Corp., 74-1652

• Decision Date: 14 October 1975
• Docket Number: No. 74-1652,74-1652
• Citation: 320 So.2d 418
• Parties: Susan WALKER, as Widow of Charles M. Walker, Deceased, Appellant, v. BEECH AIRCRAFT CORPORATION, a Foreign Corporation, et al., Appellees.
• Court: Florida District Court of Appeals

Page 418

320 So.2d 418

Susan WALKER, as Widow of Charles M. Walker, Deceased, Appellant, v. BEECH AIRCRAFT CORPORATION, a Foreign Corporation, et al., Appellees.

No. 74-1652.

District Court of Appeal of Florida, Third District.

Oct. 14, 1975.

Rehearing Denied Nov. 3, 1975.

Carl H. Hoffman, Miami, for appellant.

Walton, Lantaff, Schroeder, Carson & Wahl and Calvin F. David and Richard J. Thornton, Miami, for appellees.

Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.

HENDRY, Judge.

Appellant, plaintiff and cross-plaintiff in the trial court, brings this appeal from an adverse summary final judgment in which the trial court held that a wrongful death claim brought by her, as widow of the decedent, was barred by the two year statute of limitations.

Appellant's basic contention on appeal is that her wrongful death claim brought pursuant to § 768.01, Fla.Stat., F.S.A., is not barred by the two year statute of limitations on such actions set forth in § 95.11(6), Fla.Stat., F.S.A. As grounds for her contention, appellant submits that her claim was not barred because the statute of limitations did not begin to run until she discovered or should have discovered the engineering defect which gave rise to her cause of action against appellee, Beech Aircraft Corporation, and that Beech waived the statute of limitations by filing an indemnity cross claim against her. This latter ground, for purposes of this appeal, was abandoned based upon this Court's ruling in the case of Horace Mann Insurance Co. v. DeMirza, Fla.App.1975, 312 So.2d 501, decided subsequent to the date this appeal was filed.

Appellees contend that the trial court did not err in entering its summary final judgment and holding as a matter of law that appellant's cause of action was barred by the statute of limitations.

On January 18, 1970, Elliot M. Griffin, J. Paul Keen, Robert Fitton, and Charles M. Walker, appellant's husband, were all killed when the aircraft, manufactured by Beech, in which they were flying crashed into the ground. At the time of the crash, Walker was pilot of the aircraft. Timely complaints were filed pursuant to the wrongful death statute, §§ 768.01-768.04, Fla.Stat., F.S.A., against Beech on behalf of all persons having the right to sue, with the sole exception of appellant.

Prior to these suits being filed, appellant retained counsel for the express purpose of filing a complaint against Beech. However, based upon her counsel's evaluation of such cause of action, appellant did not file a complaint.

As a result of the litigation by Griffin, Beech, in November, 1973, filed an indemnity cross claim against appellant as administratrix of her husband's estate. After this cross-claim was filed, appellant became active in the Griffin litigation, and on December 13, 1973, she filed her answer to Beech's cross-claim. Included in this answer was a cross claim by appellant for the wrongful death of her husband.

The Griffin trial was held in February, 1974. Although all cross-claims were severed for separate trial, appellant was present as a defendant. After one week of trial, the Griffin litigation was settled. However, during the trial, appellant learned that a design error had been made by Beech...