Last months article dealt with Florida’s new Government Rules Defense which was enacted as part of the 1999 Tort Reform Act. This article will deal with another feature of the 1999 Florida Tort Reform Act, the Statute of Repose. The Statute of Repose is codified at Fla. Stat. 95.031(2). This Statute bars products liability actions 12 years after a product with an “expected useful life” of 10 years or less is first purchased by a consumer.
Under the Statute, all products have an “expected useful life” of 10 years except for a few products that are specifically enumerated in the Statute. The products that are not included in the 10 year useful life provision are commercial aircrafts, trains and 100 ton or heavier vessels. These products have an “expected useful life” of 20 years. Products with specific warranties longer than the period prescribed by the Statute have an “expected useful life” equal to the warranty period.
This Statute of Repose went into effect July 1, 1999 for all actions commenced after that date, with one exception. Note 1 to Fla. Stat. 95.031(2) creates a saving period until July 1, 2003 for all cases that could have been commenced under the law as it existed before the Statute was enacted. The Statute of Repose creates an absolute 12 year cut-off for filing products liability claims and exceptions to the Statute are very few. First, the Statute may also be tolled if the manufacturer knew of, and concealed, a defect. Second, the Statute may be tolled if an injury was caused by the defect within the 12 year period but the injury was not discovered (and would not reasonably have been discovered) until the repose period has expired.
History of the Products Liability Statute of Repose
Statutes of repose for products liability claims have a long history in Florida, dating back to the time the first one was adopted by the Florida Legislature in 1974. The 1974 Statute of Repose barred products liability claims that were brought more than twelve years after the date of delivery of the completed product to the original purchaser, regardless of the date the defect in the product was or should have been discovered. In 1980, in the case of Battilla v. Allis Chalmers Mfg. Co., 392 So.2d 874 (Fla.1980), the Florida Supreme Court held that the statute of repose was unconstitutional as applied in that case because it denied access to courts under article I, section 21 of the Florida Constitution. Battilla at 874. The critical fact in Batilla was that the Statute of Repose extinguished the Plaintiff’s cause of action before it had even accrued. The Florida Supreme Court later receded from Battilla and held that the 1974 Statute of Repose was constitutional. See, Pullum v. Cincinnati, Inc., 476 So.2d 657 (Fla.1985), appeal dismissed, 475 U.S. 1114, 106 S.Ct. 1626, 90 L.Ed.2d 174 (1986).
In 1986, after the Florida Supreme Court’s 1985 decision in Pullum, the Florida Legislature repealed the Statute of Repose for products liability actions. 1 Ch. 86-272, 2, Laws of Fla. Thus, from 1974 until 1980, the 1974 Statute of Repose was in effect. Between 1980 and 1985, (that is the period between Batilla and Pullum) the statute was deemed unconstitutional and therefore was not in effect. During the short period after the Supreme Court reversed itself in Pullum, and before the Legislature repealed it, the Statute was again in effect. The statute was not in effect between the date it was repealed in 1986 and the time it was resurrected as part of the 1999 Tort Reform Act.
The “on again, off again” history of the Statute of Repose for products liability claims created a nightmare for attorneys trying to sort out whether or not potential actions were barred by the Statute. A number of additional cases went to the Florida Supreme Court for clarification. One issue that was raised, for example, was whether the statute was tolled during the periods when the Statute was either deemed unconstitutional or repealed. In Melendez v. Dreis & Krump Manufacturing Co., 515 So.2d 735 (Fla.1987), the Supreme Court held that Pullum, which had upheld the Statute, applied retroactively to cut off a plaintiff’s right of action arising during the statute’s period of unconstitutionality, where the twelve- year statute of repose had already expired by the time the plaintiff’s injury occurred.
A second issue raised was whether a party who, in reliance on holding of unconstitutionality in Battilla, did not file his products liability actions within the twelve- year period, was barred from bringing his action after the Statute was revived by Pullum. In the 1990 case of Frazier v. Baker Material Handling, Inc., 559 So.2d 1091 (Fla.1990), the Florida Supreme Court held that a “reliance exception” would operate to save the claims of such parties. Thus, a claimant with a viable cause who had relied on the decision in Battilla was entitled to rely on the existing law which provided him access to the court and his action was not later barred by Pullum. Frazier, 559 So.2d at 1093.
These cases hardly answered all the different problems caused by the on again, off again Statute of Repose. For example, when the Legislature repealed the statute in 1986, were actions previously extinguished by the statute revived? That question was raised in Firestone Tire & Rubber Co. v. Acosta, 612 So.2d 1361 (Fla.1992), in which the Supreme Court held that the legislative repeal of the statute of repose in 1986 did not reestablish causes of action previously extinguished by operation of the statute. Acosta, 612 So.2d at 1363. The plaintiffs’ respective causes of action in Acosta arose in 1987, twenty-one years after delivery of the product, and in 1988, seventeen years after delivery of the product. According to the Court, the plaintiffs in Acosta could not claim that they had relied on the legislative repeal of the statute as the justification for filing their actions outside the twelve-year repose period because they never had a viable cause of action under the statute to revive. However, products liability claims that accrued during the Statute of Repose’s period of unconstitutionality, where the cause of action arose within twelve years of the delivery of the product, would still be preserved by the “reliance exception”.
Issues Raised by the Current Statute of Repose
The resurrection of the Statute of Repose for products liability actions is certain to result in additional challenges and judicial interpretations. One issue that is certain to surface is which causes of action are entitled to the benefit of the saving clause and which are not. Secondly, it is inevitable that the Statute will be subjected to additional constitutional challenges.
The current statute of repose reads:
An action for products liability under s. 95.11(3) must be begun within the period prescribed in this chapter, with the period running from the date that the facts giving rise to the cause of action were discovered, or should have been discovered with the exercise of due diligence, rather than running from any other date prescribed elsewhere in s. 95.11(3), except as provided within this subsection. Under no circumstances may a claimant commence an action for products liability, including a wrongful death action or any other claim arising from personal injury or property damage caused by a product, to recover for harm allegedly caused by a product with an expected useful life of 10 years or less, 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 who was not engaged in the business of selling or leasing the product or of using the product as a component in the manufacture of another product. All products, except those included within subparagraph 1. or subparagraph 2., are conclusively presumed to have an expected useful life of 10 years or less.
The Saving Clause reads:
The amendments to section 95.031(2), Florida Statutes, made by this act shall apply to any action commenced on or after the effective date of that section, regardless of when the cause of action accrued, except that any action for products liability which would not have been barred under section 95.031(2), Florida Statutes, prior to the amendments to that section made by this act may be commenced before July 1, 2003, and, if it is not commenced by that date and is barred by the amendments to section 95.031(2), Florida Statutes, made by this act, it shall be barred.
(Ch. 99-225 Laws of Florida Sec. 12, Note 1) (Emphasis added).
The Savings Clause
The saving clause in the current Statute of Repose is sure to raise issues similar to the issues raised in the cases discussed above about what claims are and are not subject to the Statute, depending upon when the cause arose. Cases are already pending throughout the state that will require interpretation of the parameters of the Saving Clause. In a case pending in my office, General Motors Corporation recently filed a motion to dismiss on the basis that a product liability action which was filed after July 1, 1999 but before July 1, 2003 (the end of the saving period) was barred by the Statute. Adams v. General Motors, Case No. 03 CA 6077 (Circuit Court for the Ninth Judicial Circuit, Orange County, pending). This case involved a car crash that occurred on January 2003 and GM took the position that the only cases that fell within the Saving Clause were claims that arose prior to July 1, 1999, the date the Statute went into effect.
The following arguments were made, successfully, in the Adams case and may be useful for other cases in which similar arguments are being made. First, the plain language of the Florida Legislature in 99-225 Laws of Florida indicates that, in order to determine whether a cause of action was intended to be preserved until July 1, 2003, the end of the saving period, it is necessary to find out whether that action would or “would not have been barred under section 95.031(2), Florida Statutes, prior to the amendments to that section”. If an action would have been barred before the 1999 amendments to 95.031(2), it is barred after the amendments. If it would not have been barred before the 1999 amendments, it is preserved through the saving period.
To find out whether an action would have been barred before the 1999 amendments to 95.031, it is necessary to read the version of 95.031 in effect before the 1999 amendments. Prior to the 1999 amendments, 95.031(2) reads as follows:
Actions for products liability and fraud under s. 95.11(3) [the four year statute of limitations for negligence and fraud actions] 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.
Laws of Florida, s. 2, Chapter 90-10. Before the 1999 amendments, Fla. Stat. 95.031 made a clear distinction between products liability cases and fraud cases. While the Statute imposed a four year Statute of Limitations for both products liability and fraud cases, the Statute singled out only fraud cases for a 12 year Statute of Repose.
Thus, prior to the 1999 amendments to Fla. Stat. 95.031, the only limitation on a Plaintiff’s claim would have been the four year Statute of Limitations for negligence actions. Since the Plaintiff’s claim in the Adams v. General Motors case accrued on January 14, 2003, the date of the accident, and was filed six months later on June 28, 2003, it was not barred by the four year Statute of Limitations and therefore, it would NOT have been barred by Fla. Stat. 95.031 prior to the 1999 amendments.
Secondly, we also argued in Adams that the rules of statutory construction favor preservation of actions by the Saving Clause. The words provided by the Florida Legislature regarding what actions should fall within the saving provision of Fla. Stat. 95.031 are “ANY action for products liability which would not have been barred under section 95.031(2), Florida Statutes, prior to the amendments”.
The most basic rule of statutory construction is, of course, that when a statute is plain on its face its meaning should not be expanded by judicial interpretation. St. Petersburg Bank and Trust Co. v. Hamm, 414 So.2d 1071 (Fla. 1982). A court is not authorized to depart from the plain meaning of a statute that is unambiguous. Id. In interpreting legislation, it is a fair inference that the Legislature understood the difference in meanings between words and accorded the words in the statute their natural meaning. Florida Game and Fresh Water Fish Commission v. Blancett, 521 So.2d 244 (Fla. 1st DCA 1988), citing, 2A Sutherland Statutory Construction ‘ 57.03 (4th Ed. 1984). Statutes of Limitation mandate a strict or conservative construction rather than a liberal construction. Cassoutt v. Cessna Aircraft Co., 742 So.2d 493 (Fla. 1st DCA 1999), citing, Barber Greene co., v. Urbantes, 517 So.2d 768 (Fla. 4th DCA 1988).
Considering that the words chosen by the Florida Legislature in drafting the Saving Clause are “any actions that would not have been barred”, it is fair to infer that by “any” the Florida Legislature meant “any”. Interpretation of the word “any” to mean “any products liability action, so long as it accrued before July 1, 1999,” as the GM argued in Adams, would have required an improper judicial expansion of the statute.
The “Conclusive Presumption” Regarding Useful Life Denies Access to Courts in Violation of the Florida Constitution.
A more fundamental issue that should and will be raised by plaintiffs’ attorneys whenever manufacturers try to rely on the Statute of Repose is whether the Statute is unconstitutional Article 1, Section 21, of The Constitution of the State of Florida provides: “Access to courts.–The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay. Article 1, Section 9 provides, in pertinent part: ADue ProcessB no person shall be deprived of life, liberty or property without due process of law . . .” The underlying basis for the twelve year Statute of Repose in Florida Statute ‘95.031(2), is the presumption, expressly intended to be a conclusive presumption, that most products have “an expected useful life of 10 years or less”. This presumption is conclusive and it cuts off the access to courts right of any person injured by a product more than 12 years after the product is first put into service. When a constitutionally protected right or privilege is in issue, the test for the validity of an conclusive or irrebuttable presumption is the one set forth in Bass v. General Development Corp., 374 So.2d 479 (Fla. 1979). In Bass, the Court stated:
When a constitutionally preferred right or privilege is in issue . . . the irrebuttable presumption is deemed invalid “when (it) is not necessarily or universally true in fact, and when the State has reasonable alternative means of making the crucial determination”@
Bass, quoting, Vlandis v. Kline, 412 U.S. 441, 452, 93 S.Ct. 2232, 2236, 37 L.Ed.2d 63 (1973). Thus, unless it is necessarily or universally true that the useful life of a product is ten years, and unless the State has no reasonable alternative means of determining the useful lives of particular products on a case by case basis, the presumption created by Florida Statutes 95.031(2) is invalid.
Vehicles are one example of products with presumed “expected useful lives” of 10 years under the Statue but which, in reality, are used by consumers much longer than 10 years.According to the United States Department of Transportation, Federal Highway Administration, the average age of all automobiles in the United States vehicle fleet increased steadily between 1970 and 2000, with the average age in 2000 being nine years old. Further, according to a 1998 United States Environmental Protection Agency study, the percentage of light duty gasoline vehicles registered in 1996 that were more than 10 years of age, was 32.82 %. Report “Update of Fleet Characterization Data for Use in MOBILE6-Final Report”, Table 4-6. Given these facts, it can hardly be said that it is “necessarily or universally true” that the useful life of a vehicle is ten years. Thus, according to test provided by the Florida Supreme Court in Bass, the irrebuttable presumption created by Florida Statutes 95.031(2) is unconstitutional and invalid.
In a 1996 decision on the validity of the Medicaid Third BParty Liability Act, the Florida Supreme Court stated: . . . where a right of access to the courts has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such a right has become a part of the common law of the State pursuant to Fla. Stat. ‘2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.
Agency for Health Care Administration v. Associated Industries of Florida, Inc., 678 So.2d 1239, (Fla. 1996), quoting Kluger v. White, 281 So.2d 1, 4 (Fla. 1973). The Court in the Agency for Health Care v. Associated Industries case held that a paragraph of the Medicaid Third-Party Liability Act that allowed the State to proceed without identifying each individual recipient of Medicaid payments violated procedural due process. Quoting its earlier decision in Straughn v. K & K Land Management, Inc., 326 So.2d 421, 424 (Fla. 1976), the Court stated: The test for the constitutionality of statutory presumptions is twofold. First, there must be a rational connection between the fact proved and the ultimate fact presumed. Second, there must be a right to rebut in a fair manner. (Emphasis in original).
Associated Industries, p. 1254. The statutory presumption created by Florida Statute 95.031(2) does not meet the constitutional test established by the Florida Supreme Court in Straughn. Given the prevalence of vehicles over ten years of age registered and in use, there is no rational connection between the actual facts (the actual useful life of automobiles) and the ultimate fact presumed (the presumed useful life under Fla. Stat. 95.031). Secondly, Fla. Stat. 95.031 does not provide a right to rebut in a fair manner.
For other cases in which Florida Courts have found irrebuttable statutory presumptions to be unconstitutional, see Recchi America v. Hall, 692 So.2d 153 (Fla. 1997)(workers compensation statute that created an irrebuttable presumption that a claimants injury was caused primarily by claimants intoxication if the claimant had positive confirmation of drug or alcohol use at the time of the injury was unconstitutional); State v. Green, 355 So.2d 789 (Fla. 1978)(statutory bifurcated trial system for the adjudication of guild and insanity raised an irrebuttable presumption of intent which is contrary to due process of law); Lidsky v. Florida Dept. of Insurance, 643 So.2d 631 (Fla. 1st DCA 1994)(statutory presumption that a person with actual knowledge of delinquency proceeding is deemed not to have acted in good faith in accepting transfer of assets could only meet both tests set forth in Straughn decision if construed to allow presumed fact to be rebutted).
In the Adams case in which GM raised the Statute of Repose in a motion to dismiss, the Orange County Circuit Court ruled that the cause of action was within the Saving Period and therefore, not barred by the Statue. The trial court held that it was not necessary to rule on the issue of whether the Statute was unconstitutional and so did not opine on that issue. As of this publication, this writer was unable to identify any other cases in which the new Statute of Repose has been argued or interpreted by any other trial court other than in our Adams v. GM case. However, as cases that are affected by the Statute of Repose find their way before trial court judges during the coming months, plaintiff attorneys must aggressively challenge the constitutionality of the statute. The manufacturers will be zealous in their attempts to use the Statute to defeat legitimate cases involving defective products; plaintiffs and their attorneys must be equally zealous in challenging this new law and having the courts recognize that the Statute is unconstitutional.
1 Florida Statutes Sec. 95.031 remained in effect for fraud actions.
If you have questions or comments, please feel free to contact us.
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