Walker v. Miller Elec. Mfg. Co.

• Decision Date: 14 August 1991
• Docket Number: No. 90-1253,90-1253
• Parties: Margaret E. WALKER, as Personal Representative of the Estate of Julian Walker, Deceased, Appellant, v. MILLER ELECTRIC MANUFACTURING COMPANY, a foreign corporation, Air Products and Chemicals, Inc., a foreign corporation, Appellees. 591 So.2d 242, 16 Fla. L. Week. D2148
• Court: Florida District Court of Appeals

Page 242

591 So.2d 242

Margaret E. WALKER, as Personal Representative of the Estate of Julian Walker, Deceased, Appellant, v. MILLER ELECTRIC MANUFACTURING COMPANY, a foreign

corporation, Air Products and Chemicals, Inc., a

foreign corporation, Appellees.

No. 90-1253.

591 So.2d 242, 16 Fla. L. Week. D2148

District Court of Appeal of Florida,

Fourth District.

Aug. 14, 1991.

Larry Klein of Klein & Walsh, P.A., West Palm Beach, and Robert Jordan of Grevior & Jordan, Fort Lauderdale, for appellant.

Love Phipps of Corlett, Killian, Ober, Hardeman & Levi, P.A., Miami, for appellee-Miller Elec. Mfg. Co.

Joseph M. Loughren and Richard B. Doyle, Jr., of Loughren and Doyle, P.A., Fort Lauderdale, for appellee-Air Products and Chemicals, Inc.

ON MOTION FOR REHEARING AND CERTIFICATION

GARRETT, Judge.

We grant appellant's motion for rehearing and certification for the limited purpose of certifying a question to be of great public importance and to certify that this opinion is in direct conflict with Acosta v. Firestone Tire & Rubber Co., 592 So.2d 1102 (Fla. 3d DCA 1991). We substitute the following opinion to reflect the foregoing:

The trial court dismissed appellant Margaret Walker's complaint because the cause of action was barred by the statute of repose. We affirm.

Appellant, as personal representative, sued appellees Miller Electric Manufacturing Co. and Air Products and Chemicals, Inc. She alleged that in July of 1988 a defective machine manufactured by Miller Electric and delivered by Air Products accidentally caused the decedent's death. The machine was manufactured and delivered in 1971. Appellees moved for summary judgment on the grounds that the statute of repose, section 95.031(2) of the Florida Statutes, barred the action. That section, originally enacted in 1985, read:

Actions for product liability ... must be begun within the period prescribed in this chapter, ... 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.

(Emphasis added). In July of 1986, the legislature repealed the statute of repose and replaced it with a statute of limitation. The new statute, in effect at the time of the accident, read:

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.

Sec. 95.031(2), Fla.Stat. (Supp.1988) (emphasis added).

The trial court held that the 1985 statute of repose barred appellant's cause of action and entered summary judgment in favor of appellees.

Appellant argues that because Florida's statute of repose was repealed in 1986 it could not be a bar to an action based on an accident that occurred in 1988. Thus, the summary judgment should be reversed. Appellant contends the statute of limitations in effect at the time the "action accrued" should control.

Appellees, on the other hand, argue that once the statute of repose operated to bar any action, they gained a vested substantive right to not have suit brought against them. Thus, any subsequent enactment could not divest appellees of the rights acquired under the statute of repose.

Appellee Miller Electric's supplemental authority consists of a persuasive circuit court opinion which is factually indistinguishable, Acosta v. Firestone Tire & Rubber Co., Nos. 87-53150 and 89-37110 CA(11) (Fla. 11th Cir. Aug. 14, 1990), reversed, 592 So.2d 1102 (Fla. 3d DCA 1991). ¹ The circuit court held that where a 12 year period for bringing a product-liability cause of action expired during the time that the statute of repose was in effect, plaintiff's cause of action was barred even though a new statute of limitation existed when the action accrued. Although Acosta is not binding on this court, the reasoning therein is thorough and persuasive. The opinion focused on the fact that the statute of repose expired when the statute of repose was still in force and effect and constitutional. ² In Acosta and here the statute of repose ran, then section 95.031(2) was repealed and amended through the enactment of a statute of limitation, then the cause of action accrued.

Acosta relied upon Melendez v. Dreis & Krump Mfg. Co., 515 So.2d 735, 736 (Fla.1987) wherein the court held that a statute of repose cuts off a right of action within a specified time limit after the delivery of a product, regardless of when the cause of action accrues. Also, Acosta, as well as appellees, cited Lamb By and Through Donaldson v. Volkswagenwerk Aktiengesellschaft, 631 F.Supp. 1144, 1147 (S.D.Fla.1986), affirmed by, Eddings on behalf of Eddings v. Volkswagenwerk, 835 F.2d 1369 (11th Cir.), cert. denied, 488 U.S. 822, 109 S.Ct. 68, 102 L.Ed.2d 44 (1988):

Simply stated, a statute of repose is triggered once the product is delivered to its first purchaser. If an injury results from the product after the authorized period has elapsed, the victim is without recourse to the manufacturer of the product. A statute of repose '... does not bar a cause of action; its effect, rather, is to prevent what might otherwise be a cause of action from ever arising.' Rosenberg v. Tower of North Bergen, 61 N.J. 190, 293 A.2d 662, 667 (1972). Thus under the Florida statute of repose an injury caused by a product which has reached its original purchaser more than twelve years prior forms no basis for recovery because the statute prevents the accrual of a right of action. 'The injured party literally has no cause of action. The harm that has been done is damnum absque injuria--a wrong for which the law affords no redress.' Id. The effect of the statute of repose may be to bar the cause of action before it has accrued.

In Bauld v. J.A. Jones Construction Co., 357 So.2d 401, 402 (Fla.1978), upon which Volkswagenwerk relied, our supreme court discussed a statute of repose:

Rather than establishing a time limit within which an action must be brought, measured from the time of accrual of the cause of action, these provisions cut off the right of action after a specified time measured from delivery of a product or the completion of work. They do so regardless of the time of the accrual of the cause of action or of notice of the invasion of a legal right.

See also Universal Engineering Corp. v. Perez, 451 So.2d 463, 465 (Fla.1984) (statute of repose cuts off a right of action after a certain time regardless of when the cause of action accrued).

Noting that there is no case law determining what effect, if any, the 1986 amendment has with respect to defendant's statutorily granted right of repose, Acosta turned to analogous Florida case law for reasoning. In Walter Denson and Son v Nelson, 88 So.2d 120, 122 (Fla.1956) the court in deciding whether an amendment to a statute of limitation lengthened the period allowed under a prior statute reasoned:

Here, again, it appears to us that the better-reasoned rule is that if the period allowed by existing statute has not run when the amending statute takes effect, then if the amending statute lengthens the period allowed, it will be applicable to a pending case.

* * * * * *

The Legislature has the power to increase a prescribed period of limitation and to make it applicable to existing causes of action provided the change in the law is effective before the cause of action is extinguished by the force of a pre-existing statute.

(Emphasis added). Applying the reasoning of Nelson to the instant facts, although the statute there amended a statute of limitation, we conclude that the repeal of the statute of repose sub judice could not affect appellees' vested right to not be sued.

Finally, as Acosta noted, the wording of section...