For Whom the Statute Tolls: An Analytical Look at the Tolling Provision in Florida's Product Liability Statute of Repose.

AuthorBlackwell, Donald A.

Aconsiderable amount of commentator and jurisprudential ink has been spilled on Florida's product liability statute of repose through the years. The statute was first enacted in 1974, held unconstitutional by the Florida Supreme Court in 1980, declared constitutional again in 1985, repealed by the legislature in 1986, and later re-enacted in 1999. (1) This "on again, off again" history made it incredibly difficult for attorneys litigating product liability claims to know with any degree of certainty whether their actions were barred by the statute of repose and, as a result, a considerable amount of litigation arose out of this confusion. However, surprisingly little attention has been paid to the multi-faceted and often complex issues that arise in interpreting and applying the statute's tolling provision.

F.S. [section]95.031(2)(d) reads:

The repose period prescribed within paragraph (b) is tolled for any period during which the manufacturer through its officers, directors, partners, or managing agents had actual knowledge that the product was defective in the manner alleged by the claimant and took affirmative steps to conceal the defect. Any claim of concealment under this section shall be made with specificity and must be based upon substantial factual and legal support. The issues that have been litigated include 1) what qualifies as actual knowledge that a product is defective; 2) who falls within the ambit of a manufacturer's "officers, directors, partners, or managing agents"; 3) what constitutes affirmative steps to conceal; 4) what degree of specificity and substantial factual and legal support are required to trigger the tolling provision; 5) who bears the burden of proving the requisite elements; and 6) whether the applicability of the tolling provision is an issue of fact to be decided by a jury or a question of law that the court should decide before trial.

Perhaps unsurprisingly, the answers to most of these questions are considerably less clear than litigants might prefer. Nonetheless, the authors hope that a review of the provision's plain language and the state and federal decisions that have interpreted and applied it, will make the statute more manageable for the Florida product liability practitioner. (2)

The 1999 Amendment to [section]95.031

In 1999, the Florida Legislature resuscitated the state's statute of repose, which it had repealed in 1985. (3) As amended, F.S. [section]95.031(2)(b) provides as follows:

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. (4) There are only two exceptions to the rule. The first is when a claimant is exposed to or uses the product within the repose period, but an injury caused by that exposure or use does not manifest itself until after expiration of the repose period. (5) The second is where a manufacturer specifically warrants, through express representation or labeling, that its product has an expected useful life exceeding 10 years. (6) Thus, absent application of the tolling provision, [section]95.031(2)(b) operates as a time bar to virtually all product liability claims where the harm occurs more than 12 years from the date of its delivery to the first retail purchaser or lessee.

A Primer on Florida Courts' Application of the Statute

Historically, when the tolling provision is not implicated, Florida state and federal courts have not hesitated to apply the statute of repose to summarily dispose of claims where a manufacturer proffers undisputed record evidence affirmatively and conclusively demonstrating that the product at issue was manufactured and delivered to an initial purchaser or lessee more than 12 years prior to the date on which the product allegedly caused injury to the plaintiff. Lamb By and Through Donaldson v. Volkswagenwerk Aktiengesellshaft, 631 F. Supp. 1144 (S.D. Fla. 1986), aff'd sub. nom. Eddings on Behalf of Eddings v. Volkswagenwerk, A.G., 835 F. 2d 1369 (11th Cir. 1988), cert. den., 488 U.S. 822 (1988), for instance, involved a summary judgment entered in favor of the defendant car manufacturer and against a plaintiff who was rendered a quadriplegic 12 years and eight days after the vehicle in which he was a passenger was delivered to its first customer. Similarly, Lebowitz v. Toyota Motor Sales, U.S.A., Inc., No. 11-21798-CIV, 2011 WL 13223745 (S.D. Fla. Sept. 7, 2011), (7) involved a summary final judgment entered against the owner of a vehicle who allegedly was injured due to the failure of the vehicle's air bag to deploy 12 years and 11 months after it was leased to its first customer. (8)

Even when the tolling provision is raised, some Florida courts have granted manufacturers summary relief where the plaintiff fails to show that the statute's tolling provision should apply--usually because it was not established that the defendant had actual knowledge of a particular defect. Theobald v. Piper Aircraft, Inc., 309 F. Supp. 3d 1253 (S.D. Fla. 2018), appeal dismissed, 18-11839-D, 2018 WL 5734220 (11th Cir. Aug. 9, 2018), and appeal dismissed, 18-14764-DD, 2019 WL 948799 (11th Cir. Jan. 10, 2019), for example, arose out of a May 24, 2013, crash of a 1978 aircraft resulting in the deaths of plaintiffs' decedents. They, in turn, sued Piper, who responded with a motion for summary judgment based on Florida's statute of repose. (9) Plaintiffs opposed the motion based on evidence (i.e., affidavits from their own experts), which they claimed established that the defendant "should have known" that its stabilator-equipped aircraft were susceptible to in-flight breakups. (10) The district court granted the motion. In doing so, it emphasized that "evidence of what [defendant] should have known or what [defendant] could have concluded based on testing," does not amount to evidence that Piper had "actual knowledge of any defect with its aircrafts." (11) The court went on to hold that, in addition to the lack of evidence of actual knowledge, plaintiff also presented no evidence of affirmative steps taken by Piper to conceal the alleged defect, and no evidence that any of its officers, directors, partners, or managing agents had actual knowledge that the product was defective and took affirmative steps to conceal it, as required for the statute of repose to be tolled. (12)

The court in Competitor Liaison Bureau, Inc. v. Cessna Aircraft Co., No. 6:08-cv-2165, 2011 WL 1344455 (M.D. Fla. Apr. 8, 2011) aff'd, 454 Fed. App'x 792 (11th Cir. 2011), reached a similar result. That was a subrogation case arising out of a July 10, 2007, inflight electrical fire that caused a 1978 aircraft to crash into a neighborhood resulting in the deaths of all onboard, as well as personal injury and property damage on the ground. (13) The gravamen of the plaintiff insurer's claim was that the aircraft was defective, unreasonably dangerous by virtue of Cessna's use of PVC-insulated wire in the cockpit, when it knew or should have known that the wire was not flame resistant and would create dangerous quantities of toxic fumes and smoke when ignited. (14) Cessna moved for summary judgment based, in part, on Florida's statute of repose, and the district court granted the motion. (15) In reaching its decision, the court noted that plaintiffs' proffer of evidence, to wit: an excerpt from the deposition of a Cessna engineer referencing studies from the carpet industry in the mid-1980s, which ostensibly led to general knowledge that PVC could off-gas chlorine when ignited, was insufficient to establish that Cessna knew that wires insulated by PVC and installed in its planes would pose the same risk. (16) The court further concluded that there was no evidence that Cessna received any reports or complaints related to the toxicity of burning PVC-insulated wiring prior to the lawsuit. (17)

Other courts, however, have been considerably less inclined to apply the statute...

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