Analyzing the Statute of Limitations and the Statute of Repose
1. Analyzing the statute of limitations
Most products liability claims in Florida are subject to a four year statute of limitations. Fla. Stat. § 95.11(3)(a), (e), (k), (p) (2011) (providing a four year statute of limitations for actions based upon negligence, strict liability, and warranties not founded on a written instrument). Other potential statutes of limitations include the two year wrongful death statute and the five year statute applicable to claims based upon a warranty contained in a written instrument. Fla. Stat. § 95.11(4)(d) (2011); Fla. Stat. § 95.11(2)(b) (2011). Where there are multiple legal theories and accompanying statutes of limitations which apply to one case, our office works within the framework of the statute which expires the soonest in order to avoid losing out on a potential theory of recovery for our client.
The legislature codified the discovery rule as it applies to products liability actions brought under Section 95.11(3). Fla. Stat. § 95.031(2)(a). In such cases, “the accrual of the causes of action is delayed until the plaintiff either knows or should know that the last element of the cause of action occurred.” Davis v. Monahan, 832 So. 2d 708, 709 (Fla. 2002).
The application of the discovery rule varies depending upon the type of injuries at issue. For instance, in the case of a “latent” or “creeping” disease, “the cause of action accrues when the accumulated effects of the deleterious substance manifest themselves to the claimant in a way which supplies some evidence of a causal relationship to the manufactured product.” Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d 932, 934 (Fla. 2000); see also Am. Optical Corp. v. Spiewak, 73 So. 3d 120, 126 (Fla. 2011) (“With regard to asbestos-related diseases, we have held that an action accrues when the accumulated effects of the substance manifest in a way which supplies some evidence of the causal relationship to the manufactured product.”). The determination of when the statute of limitations begins to run in such cases is generally a question of fact. Carter, 778 So. 2d at 937. The Third District Court of Appeal recently provided significant guidance regarding the type of evidence that is properly admissible on this issue as well as the type of jury instructions that should be given in Frazier v. Philip Morris USA Inc., 89 So. 3d 937 (Fla. 3d DCA 2012), reh’g denied (June 8, 2012).
2. Analyzing the Statute of Repose
Florida applies a twelve year statute of repose to any products liability claim based upon injuries or death caused by a product with an expected useful life of ten years or less. Fla. Stat. § 95.031(2)(b) (2011). There is also a conclusive statutory presumption that all products have an expected useful life of ten years or less, except for: certain aircraft; vessels weighing more than 100 gross tons; certain types of railroad equipment; and improvements to real property, including elevators and escalators. Fla. Stat. § 95.031(2)(b)1. (2011). With the exception of escalators, elevators, and improvements to real property, a twenty year statute of repose applies to claims based upon products that are not subject to the ten year expected useful life presumption. Fla. Stat. § 95.031(2)(b)3. (2011).
There are several exceptions to the statute of repose. First, the repose period will be adjusted to reflect a manufacturer’s specific warranty that the product will have a useful life beyond that provided by the statute. Fla. Stat. § 95.031(2)(b)2.-3. (2011). Second, the repose period does not apply where the plaintiff was exposed to or used the product during the repose period but the injury does not manifest itself until after the repose period has expired. Fla. Stat. § 95.031(2)(c) (2011). Third, the repose period is tolled where the defendant took affirmative steps to conceal a defect of which it had actual knowledge. Fla. Stat. § 95.031(2)(d) (2011).
It’s also important to analyze how the statute of repose applies to your case. The current statute of repose states that “[u]nder no circumstances may a claimant commence an action for products liability, including a wrongful death action . . . if the harm was caused by exposure to or use of the product more than 12 years after delivery of the product to its first purchaser or lessee . . . .” Fla. Stat. § 95.031(2)(b) (2012). As such, the wording of the current statute of repose differs significantly from the previous statute of repose that was repealed in 1986 which provided that “[a]ctions for products liability . . . must be begun . . . within 12 years after the date of delivery of the completed product . . . .” Firestone Tire & Rubber Co. v. Acosta, 612 So. 2d 1361, 1362 n. 1 (Fla. 1992) (quoting Section 95.031(2), Florida Statutes (1975)).
While no Florida state appellate court has addressed the significance of the difference in wording between the current and former versions of the statute of repose, Judge Jordan of the Southern District expressly addressed this issue in Kravitz v. Evans Med. Ltd., 741 F. Supp. 2d 1299 (S.D. Fla. 2010). The plaintiff in Kravitz suffered harmed caused by a vaccine within the twelve years following the sale of that vaccine to his doctor but filed suit after those twelve years had passed. Id. at 1303-05. Judge Jordan rejected the defendants’ argument that the suit was barred by the statute of repose, reasoning that the statute contained “the critical qualifying language—‘if the harm was caused by the product more than 12 years after delivery of the product to its first purchaser.” Id. at 1304. Judge Jordan further reasoned that “the defendants’ reading of § 95.031(2)(b) would make irrelevant or superfluous the phrase ‘if the harm was caused.’” Id.
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