One of the very first determinations that must be made in any products liability investigation is whether the claim is time-barred. Determining the applicable time restrictions is necessary at the outset in order to make informed decisions regarding the viability of the claim and the amount of time available for pre-suit investigation.There are generally two distinct time barriers that must be analyzed: the statute of limitations and the statute of repose.
Analyzing the Statute of Limitations
As will be covered in later posts in this series, there are a variety of theories that can support recovery in a products liability action. The applicable statute of limitations depends upon the theory or theories that apply to the case. 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.
Knowing the statute of limitations is only part of the analysis. The other part is determining how that statute applies to the case. This means, in other words, determining when that statute of limitations begins to run. Generally,“the time within which an action shall be begun under any statute of limitations runs from the time the cause of action accrues,” and “[a] cause of action accrues when the last element constituting the cause of action occurs.” Fla. Stat. § 95.031(1) (2011).However,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) (2011). 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 alsoAm. 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).
Analyzing the Statute of Repose
The Florida Supreme Court has recognized a “fundamental difference” between statutes of repose and statutes of limitations, reasoning that statutes of repose “cut off the right of action after a specified time . . . regardless of the time of the accrual of the cause of action or of notice of the invasion of a legal right.” Bauld v. J. A. Jones Const. Co., 357 So. 2d 401, 402 (Fla. 1978).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, therepose 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).
The Applicability of Other Jurisdictions’ Statutes of Limitations and Statutes of Repose
The analysis can become further complicated when the factual circumstances indicate that another jurisdiction’s laws may apply to the case. Florida’s borrowing statute provides that “[w]hen the cause of action arose in another state or territory of the United States, or in a foreign country, and its laws forbid the maintenance of the action because of lapse of time, no action shall be maintained in this state.” Fla. Stat. § 95.10 (2011).Under this statute, the applicability of another jurisdiction’s statute of limitations or statute of repose depends upon whether there “are significant relationships which establish that the cause of action arose in another state.” Celotex Corp. v. Meehan, 523 So. 2d 141, 144 (Fla. 1988). In applying the significant relationships tests, courts analyze:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil [sic], residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
Id. (citations and quotations omitted).