STUYVESANT INSURANCE COMPANY, APPELLANT, ARKIN CONSTRUCTION COMPANY, INC., CROSS-APPELLANT,
v.
SQUARE D. COMPANY, COOK, SLOAN & LOWE ENGINEERS A/K/A COOK, SLOAN ASSOCIATES, INC., APPELLEES

Fla. 3d DCA | 1981-06-23
No. 79-2164
Before HENDRY, NESBITT and BAS-KIN, JJ.
399 So. 2d 1102 Florida District Court of Appeal, Third District (1981)

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Stuyvesant Insurance Company, which paid fire damage claims at an apartment complex and was subrogated to the owners' rights, sued the manufacturer and engineer involved in the electrical system that caused the fire. The trial court granted summary judgment for both defendants, but the appellate court reversed, finding that genuine issues of material fact existed and that the statute of limitations claim was improper.


Holding

The statute of limitations claim fails because the 1975 revision to section 95.11(4)(a) was not retroactive and does not apply to causes of action arising before its effective date; the applicable twelve-year limitation period for actions against professional engineers under the 1973 statute applies, and Stuyvesant's 1977 suit was timely. Genuine issues of material fact exist concerning whether aluminum was appropriate for bus ducts, whether Square D adequately warned of product limitations, and whether Cook fell below the standard of care in specifying aluminum ducts, precluding summary judgment.


Headnotes

[1] Revisions to statutes of limitations are not retroactive unless the legislature clearly expresses such intent.

[2] A statute of limitations that shortens a limitations period does not apply to causes of action that arose before its effective date.

Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“A shortening of any statute of limitations is given retroactive effect only upon an express showing of clear intent by the legislature.”

Establishes the principle that shortened statutes of limitations are not retroactively applied without explicit legislative intent, defeating the defendants' statute of limitations defense.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

A fire occurred on September 22, 1973, at Ocean Pavillion, an apartment complex built in 1969, caused by electrical equipment in an aluminum bus ducti…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
HENDRY, Judge.

HENDRY, Judge.

Stuyvesant Insurance Company, plaintiff in the trial court, appeals from summary final judgments entered in favor of appel-lees Square D. Company (Square D), and Cook, Sloan & Lowe Engineers (Cook). We reverse.

Appellant Stuyvesant issued a fire insurance policy on Ocean Pavillion, an apartment complex built in 1969.

On September 22, 1973, during the policy period, a fire occurred at the Pavillion which was traced to electrical equipment in the aluminum bus ducting system. Stuyvesant paid the Pavil-lion owners $275,000 and became subrogat-ed to the owners’ rights vis-a-vis third parties. In 1976 Stuyvesant filed a complaint1 against Square D, the manufacturer of the electrical bus ducting installed in the Pavil-lion, alleging negligence, breach of implied warranties of merchantability and fitness, and strict liability.

On September 21,1977, Stuyvesant filed suit against Cook, electrical engineer for Pavillion, charging it with negligence. Appellees Square D and Cook moved for summary judgment on the basis that no genuine issues of material fact existed. In addition, appellee Cook raised the affirmative defense of the statute of limitations.

The trial court entered summary final judgment for both appellees. From those judgments Stuyvesant has appealed.2

Two issues are presented for our determination by this appeal: (a) whether appellant’s cause of action against Cook is barred by the statute of limitations; and (b) whether genuine issues of material fact exist precluding the grant of summary judgment.

Stuyvesant’s cause of action against Cook arose on September 22, 1973, the date of the fire. On that date, the applicable statute of limitations was section 95.11(10), Florida Statutes (1973), which established a twelve-year limit from the completion date of construction of improvements to real property within which to bring suit against architects and professional engineers. Appellee Cook’s reliance upon the two-year limitation period set forth in section 95.11(4)(a); Florida Statutes (1975) is untenable since the 1975 revisions of section 95.11 are not retroactive. Salcedo v. Asociacion Cubana, Inc., 368 So. 2d 1337 (Fla. 3d DCA 1979); Brooks v. Cerrato, 355 So. 2d 119 (Fla. 4th DCA), cert. denied, 361 So. 2d 831 (Fla.1978).

A shortening of any statute of limitations is given retroactive effect only upon an express showing of clear intent by the legislature. Carpenter v. Florida Central Credit Union, 369 So. 2d 935 (Fla.1979); Foley v. Morris, 339 So. 2d 215 (Fla.1976); Garofalo v. Community Hospital of South Broward, 382 So. 2d 722 (Fla. 4th DCA 1980).

This intent is completely absent from the 1975 statutes.

Furthermore, when a cause of action arises from an occurrence which predates the effective date of a statute of limitations, that statute does not apply. Dade County v. Ferro, 384 So. 2d 1283 (Fla.1980); McGlynn v. Rosen, 387 So. 2d 468 (Fla. 3d DCA 1980). Here, the fire predated the effective date of the 1975 statute, precluding application of that provision.

Accordingly, we hold that section 95.11(10), Florida Statutes (1973), pertaining to actions against professional engineers and architects, governs appellant’s cause of action against Cook. Since the building was completed in 1969 and suit was filed in 1977, appellant’s suit against Cook is timely.

Addressing the merits of appellant’s claims against Square D and Cook, it is our opinion that summary final judgment was erroneously entered as there were genuine issues of material fact left unresolved by the trial court. Holl v. Talcott, 191 So. 2d 40 (Fla.1966); Mathis v. National Laboratories, 355 So. 2d 117 (Fla. 3d DCA 1978). Among the various issues which remain are whether aluminum was a proper metal for use in construction of the bus ducts; whether Square D complied with its duty to warn of the product’s limitations and maintenance requirements; and whether Cook fell below the standard of care and good engineering design by specifying aluminum ducts and the placement thereof. These issues are questions of fact, properly determinable by a jury and not by way of summary judgment.

The final summary judgments under review on appeal and cross-appeal are hereby reversed and remanded for further proceedings.

Reversed and remanded.

. The complaint also named Arkin Construction Company, general contractor for Pavillion, and Kammer & Wood, Inc., electrical contractors, as defendants. The suits against Arkin and Kammer are still pending.

. Arkin Construction Company has cross-appealed from the summary final judgments granted to Square D and Cook, and has joined in Stuyvesant’s brief.

Other
NESBITT, Judge

NESBITT, Judge

(concurring in part, dissenting in part):

I agree with the majority that Stuyvesant’s action against Cook was not barred by limitations.

I would affirm the remaining summary judgment because the bus ducting supplied by the manufacturer was precisely in accordance with the plans and specifications drawn by the electrical engineers which were in accordance with the building code. Moreover, the only evidence of any negligence occurred through the malfunctioning of the duct which was due to its improper maintenance or improper design. Consequently, I dissent with the majority view to reverse that aspect of the summary final judgment.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw