Understanding the Updated Statute of Repose Florida: Navigating New Timelines for Construction Defect Claims

This case is relevant  because it discusses the application of Florida’s statute of repose to a construction defect case. However, the case does not address product liability or medical malpractice, which are also part of the research request.

“Kellie A. Caggiano, Lauren M. Eliopoulos, Alexander R. Allred, and Randell H. Rowe, IV, of Moyer Law Group, St. Petersburg, for Appellee Lawson Industries, Inc. Carol M. Rooney of Butler Weihmuller Katz Craig LLP, Tampa, for Appellee Hugh MacDonald Construction, Inc. Geoffrey Lutz and Corey Etcheverry of Resnick &Louis, P.C., Orlando, for Appellee Sorcorp Painting Inc. Diane H. Tutt of Conroy Simberg, Hollywood, for Appellee Sutton Contracting Solutions, Inc. No appearance for remaining Appellees. CASANUEVA, JUDGE The issue in this appeal involves the interpretation and application of Florida’s statute of repose as set forth in section 95.11(3)(c), Florida Statutes (2018). Specifically, this court is asked to determine when the statute of repose began to run in this case.”

“DISCUSSION We begin our analysis by examining the purpose and operational function of a statute of repose. “A statute of repose . . . eliminates the underlying legal right; it ‘precludes a right of action after a specified time . . . rather than establishing a time period within which the action must be brought measured from the point in time when the cause of action accrued.’ “Nat’l Auto Serv. Ctrs., Inc. v. F/R 550, LLC, 192 So.3d 498, 509 (Fla. 2d DCA 2016) (quoting Univ. of Miami v. Bogorff, 583 So.2d 1000, 1003 (Fla. 1991), modified on other grounds by Tanner v. Hartog, 618 So.2d 177, 181 (Fla. 1993)).”

“Section 95.11(3)(c) provides that any action founded on the design, planning, or construction of an improvement to real property . . . must be commenced within 10 years after the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion of the contract or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest. (Emphasis added.)”

This case discusses the distinction between statutes of limitations and statutes of repose, and specifically addresses the application of the statute of repose to fraud claims in Florida. While it does not specifically mention construction defects, product liability, or medical malpractice, it may be useful as background information or as an analogy.

“Johnston v. Hudlett, 32 So.3d 700, 704 (Fla. 4th DCA 2010) (quoting Doe v. Hillsborough Cnty. Hosp. Auth., 816 So.2d 262, 264 (Fla. 2d DCA 2002)); see alsoFla.”

“Merkle v. Robinson, 737 So.2d 540, 542 n. 6 (Fla.1999); see also Bauld v. J.A. Jones Constr. Co., 357 So.2d 401, 402 (Fla.1978).”

“On the other hand, statutes of repose “bar actions by setting a time limit within which an action must be filed as measured from a specified act, after which time the cause of action is extinguished.””

“Damiano v. McDaniel, 689 So.2d 1059, 1060 (Fla.1997). “[S]tatutes of repose are a valid legislative means to restrict or limit causes of action in order to achieve certain public interests.” Carr, 541 So.2d at 95.”

“Nehme, 863 So.2d at 205 (citing Black’s Law Dictionary 670 (7th ed. 1999)).”

The case is relevant because it discusses the application of the statute of repose to construction defects in Florida, specifically addressing the question of when an “action” is considered to have commenced for the purposes of the statute. However, the case does not address the statute’s application to product liability or medical malpractice.

“Upon consideration of the statute of repose for actions founded upon the improvement of real property, we find that Homeowners commenced an action before the expiration of the statute of repose when they provided the requisite pre-suit notice of defect to Centex, pursuant to section 558.004, Florida Statutes (2014).”

“From this date, the statute of repose, section 95.11(3)(c), Florida Statutes (2014), began to run as to any construction defect, the expiration of which was ten years later.”

“The outcome of this appeal hinges on whether the pre-suit notice required by Chapter 558 qualifies as “an action,” as the term is defined in the statute of repose, sections 95.011 and 95.11(3)(c).”

“We agree with Homeowners that Chapter 558 lays out a series of mandatory steps that must be complied with before judicial action is to be taken, and therefore, the pre-suit notice constitutes an “action” for purposes of the statute of repose.”

“However, in Musculoskeletal Institute Chartered v. Parham, 745 So.2d 946 (Fla. 1999), the Florida Supreme Court held that, in the context of medical malpractice, compliance with the statutory pre-suit notice and investigation requirements of sections 766.104(1) and 766.106(4), Florida Statutes (1989), constituted commencement of an “action” for purposes of the statute of repose.”

This case is relevant because it discusses the constitutionality of a Florida statute of repose as it applies to product liability. However, the case does not specifically address construction defects or medical malpractice, and it is from 1985, so it may not reflect the most current understanding of the law.

“We review the decision of the District Court of Appeal, First District, in Pullum v. Cincinnati, 458 So.2d 1136 (Fla. 1984), wherein the district court certified the following question as being of great public importance: Does section 95.031(2), Florida Statutes, deny equal protection of the laws to persons such as appellant [petitioner] who are injured by products delivered to the original purchaser between eight and twelve years prior to the injury?”

“This statute of repose provides: (2) Actions for products liability and fraud under s. 95.11(3) 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 within 12 years after the date of delivery of the completed product to its original purchaser or within 12 years after the date of the commission of the alleged fraud, regardless of the date the defect in the product or the fraud was or should have been discovered. The district court affirmed.”

“The legislature, in enacting this statute of repose, reasonably decided that perpetual liability places an undue burden on manufacturers, and it decided that twelve years from the date of sale is a reasonable time for exposure to liability for manufacturing of a product. Justice McDonald, in maintaining the constitutional validity of section 95.031(2) in his dissenting opinion in Battilla, correctly reasoned as follows: Until the decision of Matthews v. Lawnlite Co., 88 So.2d 299 (Fla. 1956), Florida recognized the early common law rule which inhibited recovery where there was no privity of contract.”

This case is relevant to the research request because it discusses the application of the statute of repose in Florida to a construction defect case. However, the case does not address the statute’s application to product liability or medical malpractice.

“Thereafter, the appellees moved for summary judgment under the fifteen-year statute of repose, Section 95.11(3)(c), which was reenacted in 1980. This statute establishes a four-year statute of limitations period for actions involving property construction. Where the action involves a latent defect, the limitations period begins to run from the time the defect is discovered or should have been discovered.”

“As explained by the Florida Supreme Court in Bauld v. J.A. Jones Constr. Co., 357 So.2d 401, 402 (Fla. 1978): Statutes of repose are used in a variety of contexts as “a valid legislative means to restrict or limit causes of action in order to achieve certain public interests.” See Carr v. Broward County, 541 So.2d 92, 95 (Fla. 1989).”

This case is relevant because it discusses the application of the statute of repose to medical malpractice claims in Florida. However, it does not address construction defects or product liability, which are also part of the research request.

“Accordingly, on that date the Statute of Repose’s time period commenced and the Plaintiffs were required to file their suit on or before January 29, 1995. It is also undisputed that suit was not filed as to Defendants, GENE A. BALIS, M.D. and MUSCULOSKELETAL INSTITUTE, CHARTERED, until July 20, 1995.”

“Accordingly, Plaintiffs’ contention that the repose time period was extended or tolled by their petition pursuant to Florida Statutes § 766.104 or their service of a “Notice of Intent to Initiate Litigation” as required by Florida Statute § 766.106, cannot be sustained.”

“We conclude that these statutes must be brought into symmetry so that the mandatory presuit screening and investigation requirements do not impede a claimant’s access to the courts during the four years in which an action may be commenced in accord with the statute of repose.”

“Accordingly, we hold that a medical malpractice action is “commenced” for the purposes of the statute of repose in section 95.11(4)(b) when the prospective claimant files for the automatic ninety-day extension of the statute of limitations under section 766.104(2) in order to comply with the requirement to conduct a “reasonable investigation” of possible medical malpractice under section 766.106(1), or serves a notice of intent to initiate litigation pursuant to section 766.106(4).”

This case discusses the application of the fraud statute of repose in Florida, which is relevant to the research request as it provides background information on the concept of a statute of repose in the state. However, the case does not specifically address construction defects, product liability, or medical malpractice, which are the specific applications requested.

“The law firm moved to dismiss the complaint based on the fraud statute of repose. In its motion, and at the hearing on the motion, the law firm argued it had no contact with the plaintiffs after delivering the opinion letter on October 8, 2002.”

“The plaintiffs conceded the lack of contact after October 8, 2002, but suggested the law firm should have been in contact with them because it owed them a continuing duty to disclose errors in its opinion and relationship with the co-conspirators.”

“Hess , 175 So.3d at 695 (citation omitted). Florida’s fraud statute of repose provides in part: [I]n 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. § 95.031(2)(a), Fla. Stat. (2017).”

This case discusses the application of the statute of repose in a medical malpractice case in Florida. However, the case does not address the statute’s application to construction defects or product liability.

“I suggest that the legislature look at this and determine whether it agrees with the majority’s holding. If it does not, then it should enact corrective legislation.”

“The statutory language clearly was designed to address delayed discovery.”

“Id. But the same statutory language simply does not address the problem of delayed injury.”

“”Delayed discovery” simply means that an injury already has occurred but has not been discovered, as exemplified in Carr v. Broward County, 505 So.2d 568 (Fla. 4th DCA 1987) (involving injury occurring at birth but not discovered until later), approved, 541 So.2d 92 (Fla. 1989).”

This case discusses the application of Florida’s statute of repose to a medical malpractice case. However, the case does not address construction defects or product liability specifically.

“As stated by McGovern in his study on statutes of repose: Francis E. McGovern, The Variety, Policy and Constitutionality of Product Liability Statutes of Repose, 30 Am.U.L.Rev. 579, 581 (1980-81); see, e.g., 1 Stuart M. Speiser, Charles F. Krause, Alfred W. Gans, The American Law of Torts § 5:25 (1983); Kathleen M. O’Connor, The Product Liability Statute of Repose: A Case of Premature Burial, The Florida Bar Journal, April 1992, at 9. Francis E. McGovern, Id. at 581.”

“Florida’s statute of repose, applicable here, was “triggered” by the incident occurring in 1983, that incident being Whigham’s receipt of AIDS-tainted blood.”

“A statute of repose, however, limits the time within which an action may be brought and is not related to the accrual of any cause of action; the injury need not have occurred, much less have been discovered.”

“The Florida Supreme Court in University of Miami v. Bogorff, 583 So.2d 1000, 1003-1004 (Fla. 1991), ruled that section 95.11(4)(b), the statute here in question, did not violate article I, section 21, of the Florida Constitution, holding: [A] statute of repose precludes a right of action after a specified time which is measured from the incident of malpractice, sale of a product, or completion of improvements, rather than establishing a time period within which the action must be brought measured from the point in time when the cause of action accrued. . . . . . . . In Carr v. Broward County, 541 So.2d 92 (Fla. 1989), we held that the statutory repose period for medical malpractice actions does not violate the constitutional mandate of access to courts, even when applied to a cause of action which did not accrue until after the period had expired.”

“Johnston v. Hudlett, 32 So.3d 700, 704 (Fla. 4th DCA 2010) (quoting Doe v. Hillsborough Cnty. Hosp. Auth., 816 So.2d 262, 264 (Fla. 2d DCA 2002) ); see also Fla. R. Civ. P. 1.110(d) (listing “statute of limitations” as an affirmative defense as well as “any other matter constituting an avoidance or affirmative defense”).”

“Merkle v. Robinson, 737 So.2d 540, 542 n. 6 (Fla.1999) ; see also Bauld v. J.A. Jones Constr. Co., 357 So.2d 401, 402 (Fla.1978).”

“Merkle, 737 So.2d at 542 n. 6 (citing Kush, 616 So.2d at 418 ); see also Carr v. Broward Cnty., 505 So.2d 568, 570 (Fla. 4th DCA 1987) (“The period of time established by a statute of repose commences to run from the date of an event specified in the statute…. At the end of the time period the cause of action ceases to exist.”), approved, 541 So.2d 92 (Fla.1989). “[T]he statute of repose may be constitutionally applied to bar claims even when the cause of action does not accrue until after the period of repose has expired.””

“See Kush, 616 So.2d at 421–22.”

“Nehme, 863 So.2d at 205 (citing Black’s Law Dictionary 670 (7th ed. 1999)).”

“[In contrast to statutes of limitation], statutes of repose “bar actions by setting a time limit within which an action must be filed as measured from a specified act, after which time the cause of action extinguished.” Merkle [ v. Robinson ], 737 So. 2d [540,] 542 n. 6 [(Fla. 1999)] (citing Kush [ v. Lloyd ], 616 So. 2d [415,] 418 [(Fla. 1992)] ; see also Carr v. Broward Cnty ., 505 So. 2d 568, 570 (Fla. 4th DCA 1987) (“The period of time established by a statute of repose commences to run from the date of an event specified in the statute. … At the end of the time period the cause of action ceases to exist.”), approved , 541 So. 2d 92 (Fla. 1989). “[T]he statute of repose may be constitutionally applied to bar claims even when the cause of action does not accrue until after the period of repose has expired.” Damiano v. McDaniel , 689 So. 2d 1059, 1060 (Fla. 1997).”

“FULMER, J., Concurring. I concur with the majority only because I agree that the trial court erred by rejecting our opinion in Moore, 579 So.2d 188.”

“It is my view that the statute of repose in 95.11(4) (b) is neither extended nor tolled by the provisions of sections 766.104 and 766.106.”

“See Holly v. Auld, 450 So.2d 217 (Fla. 1984).”

“In Kush v. Lloyd, 616 So.2d 415, 421-22 (Fla. 1992), the supreme court stated that: [T]he medical malpractice statute of repose represents a legislative determination that there must be an outer limit beyond which medical malpractice suits may not be instituted.”

“Categorizing the statute of repose as an outer time limit is inconsistent with a conclusion that this time limit is automatically extended or tolled by the circumstances which extend or toll the statute of limitation.”

“KAHN, Judge. In this medical malpractice action we must reject appellant’s contention that section 95.11(4)(b), Florida Statutes (1983), the medical malpractice statute of repose, is an unconstitutional denial of access to courts because appellants neither knew nor could have reasonably known of an injury before the expiration of the repose period. Kush v. Lloyd, 616 So.2d 415 (Fla. 1992); Whigham v. Shands Teaching Hospital Clinics, Inc., 613 So.2d 110 (Fla. 1st”

“In Diamond, the supreme court held unconstitutional the product liability statute of repose as applied to facts showing that from July 27, 1955 until April 1, 1956, Nina Diamond, while yet unborn, received a drug known as diethylstilbestrol (DES) by way of administration orally to her pregnant mother.”

“”A statute of repose `. . . does not bar a cause of action; its effect, rather, is to prevent what might otherwise be a cause of action from ever arising.'”

“In Public Health Trust of Dade County v. Menendez, 584 So.2d 567, 568 (Fla. 1991), the supreme court stated that the repose period “bars any and all claims brought more than four years after the actual incident, even for acts of negligence that could not reasonably have been discovered within this period of time.””

“An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued, except that this 4-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday. . . . In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred. . . . § 95.11(4)(b), Fla. Stat. (1993) (emphasis added).”

“Section 95.11(4)(b) provides litigants with a maximum period of seven years from the date of the injury to commence a medical malpractice case. The statute bars actions filed outside that time period even if the malpractice was not timely discovered due to fraud or concealment. Carr v. Broward County, 541 So.2d 92 (Fla. 1989) (holding that parents’ medical malpractice action was barred because it was filed outside the statute of repose even though the parents claimed that they could not have discovered earlier that the medical care could have caused their child’s severe mental retardation); Univ. of Miami v. Bogorff, 583 So.2d 1000 (Fla. 1991) (holding that the statute of repose barred parents’ suit for negligent administration of cancer treatment even though the doctor fraudulently told them that their son’s coma and paralysis resulted from other causes).”

“Barnes v. Clark Sand Co., 721 So.2d 329, 333 (Fla. 1st DCA 1998). We have jurisdiction. See art.”

“Section 95.031, Florida Statutes (1975), providing for a twelve-year statute of repose for products liability actions, became effective January 1, 1975, and was later repealed on July 1, 1986. See § 95.031, Fla. Stat. (1975), repealed by ch. 86-272, Laws of Fla. However, the Court held in Firestone Tire Rubber Co. v. Acosta, 612 So.2d 1361 (Fla. 1992), that the products liability statute of repose gave manufacturers a “vested right” not to be sued for an accident that occurred after the statute of repose was repealed if the completed product was delivered to the actual purchaser prior to the date the statute was repealed.”

“In reversing the trial court’s ruling, the First District Court of Appeal relied upon this Court’s decision in Diamond, which prevents the statute of repose from extinguishing a products liability cause of action where the plaintiff’s injuries are latent and undiscoverable within the repose period.”

“As an affirmative defense, petitioners allege that UCF’s cause of action was barred by the statute of limitations. The applicable four-year statute of limitations reads as follows: An action founded on the design, planning, or construction of an improvement to real property, with the time running from the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his employer, whichever date is latest; except that, when the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence. . . . § 95.11(3)(c), Fla. Stat. (1989) (emphasis added).”

“The purpose of a statute of repose is to cut off the right of action after a specified time measured, from the delivery of a product or the completion of work, regardless of the time of the accrual of the cause of action or the notice of the invasion of a legal right. Firestone Tire Rubber Co. v. Acosta, 612 So.2d 1361, 1363 (Fla. 1992).”

“The trial court concluded that the correct measuring point for the commencement of the repose period under the statute’s fourth prong was the latest date that any of the following entities completed or terminated their contract — the professional engineer, registered architect, or licensed contractor.”

“In Diamond, the Florida Supreme Court held that the twelve year statute of repose applicable at that time in products liability actions was unconstitutional as applied to bar an action for injuries which manifested long after they occurred and long after the statute of repose had run. The question here is whether the failure to extend that exception to the instant fraud claim amounts to an unconstitutional denial of court access. We conclude it does not. Diamond’s continued applicability to products liability actions was recently reconfirmed in Pulmosan Safety Equipment Corp. v. Barnes, 752 So.2d 556, 559 (Fla. 2000).”

“Sections 95.031(2)(c) and (d) provide: (c) The repose period prescribed in paragraph (b)[addressing product liability claims] does not apply if the claimant was exposed to or used the product within the repose period, but an injury caused by such exposure or use did not manifest itself until after expiration of the repose period. (d)”

“OVERTON, Justice. This cause is before the Court on petition for review of the Fourth District Court of Appeal’s decision in Carr v. Broward County, 505 So.2d 568 (Fla. 4th DCA 1987). The Fourth District found Carr’s medical malpractice action, filed more than nine years after the alleged incident causing brain damage to her newborn child, was barred by the statute of repose provisions contained in section 95.11(4)(b), Florida Statutes (1975). In so holding, the district court acknowledged conflict with Phelan v. Hanft, 471 So.2d 648 (Fla. 3d DCA 1985), appeal dismissed, 488 So.2d 531 (Fla. 1986). We have jurisdiction. Art.”

“This statutory section prescribes (1) a statute of limitations of two years; (2) a statute of repose of four years absent fraud or intentional misconduct; and (3) a statute of repose of seven years where there is an allegation that fraud, concealment, or intentional misrepresentation of fact prevented discovery of the negligent conduct.”

“We held that statute did not unconstitutionally violate the access-to-courts provision of article I, section 21, of the Florida Constitution, or the principles enunciated in Kluger, noting: The legislature, in enacting this statute of repose, reasonably decided that perpetual liability places an undue burden on manufacturers, and it decided that twelve years from the date of sale is a reasonable time for exposure to liability for manufacturing of a product. 476 So.2d at 659.”

“We have jurisdiction under article V, section 3(b)(4) of the Florida Constitution.”

“The Fourth District Court of Appeal affirmed the summary judgment but certified the foregoing question to this Court.”

“Section 95.11(4)(b), Florida Statutes (1989), states in relevant part: An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued. . . . In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury within the 4-year period, the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred. (Emphasis added.)”

“Id. at 94. We also pointed out that the running of the statute of repose begins with the incident of malpractice.”

“While the Damianos’ cause of action for purposes of the statute of limitations would not have accrued until they learned that Ms. Damiano was HIV-positive, their suit was nevertheless barred by operation of the statute of repose, which began to run with the alleged incident of malpractice.”

“We hold that where the record does not conclusively show that the alleged medical malpractice was or should have been discovered within four years of its commission, the plaintiff’s action, although brought after the expiration of the four-year statute of repose, is not barred as a matter of law.”

“In entering judgment for the defendant, the trial court found that as a matter of law, Ms. Phelan knew or with the exercise of reasonable diligence should have known of the existence of her cause of action within four years of August 14, 1976, the date of the incident.”

“See Universal Engineering Corp. v. Perez, 451 So.2d 463 (Fla. 1984); Diamond v. E.R. Squibb and Sons, Inc., 397 So.2d 671 (Fla. 1981); Overland Construction Co. v. Sirmons, 369 So.2d 572 (Fla. 1979).”

“See Cates v. Graham, 451 So.2d 475 (Fla. 1984); Cobb v. Maldonado, 451 So.2d 482 (Fla. 4th DCA 1984) (on rehearing).”

“If the fact-finder shall ultimately determine that Ms. Phelan discovered or should have discovered her cause of action within four years of August 14, 1976, then her action would likely be barred by the four-year statute of repose under the reasoning of Cates v. Graham, 451 So.2d 475, and Cobb v. Maldonado, 451 So.2d 482.”

“We substitute the following opinion to reflect the foregoing: The trial court dismissed appellant Margaret Walker’s complaint because the cause of action was barred by the statute of repose. We affirm.”

“Appellees moved for summary judgment on the grounds that the statute of repose, section 95.031(2) of the Florida Statutes, barred the action. That section, originally enacted in 1985, read: Actions for product liability . . . must be begun within the period prescribed in this chapter, . . . but in any event within 12 years after the date of delivery of the completed product to its original purchaser . . . regardless of the date the defect in the product . . . was or should have been discovered. (Emphasis added).”

“The new statute, in effect at the time of the accident, read: Actions for products liability and fraud under s. 95.11(3) 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. § 95.031(2), Fla. Stat. (Supp. 1988) (emphasis added).”

“Acosta relied upon Melendez v. Dreis Krump Mfg. Co., 515 So.2d 735, 736 (Fla. 1987) wherein the court held that a statute of repose cuts off a right of action within a specified time limit after the delivery of a product, regardless of when the cause of action accrues.”

“Although the lawsuit may have been timely as to the roofing contractor, roofing supplier, the architect and other defendants, § 95.11(3)(c), Fla. Stat. (1983), it is well established that a suit on a common law performance bond is an action on a “contract, obligation, or liability founded on a written instrument.” § 95.11(2)(b).”

“This statute provides for a four year statute of limitation for “An action founded on the design, planning, or construction of an improvement to real property, with the time running from the date of actual possession by the owner, the date of issuance of a certificate of occupancy the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his employer, whichever date is latest; except that, when the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence.””

“There is no comparable deferral of accrual of a cause of action for latent undiscovered defects in section 95.11(2)(b), unlike the four year statute of limitations found in section 95.11(3)(c). Therefore, whether the statute of limitations began to run when the bond was executed or when the certificate of completion was accepted by the Board in 1975, in any event, it had run in this case.”

“Because we base our decision on application of the statute of limitations we do not reach the additional issue raised by the parties as to whether latent defects are covered under a performance bond after the building is substantially completed.”

“F/R’s argument thus presents two threshold matters: (1) whether section 726.110(1) is a statute of limitations or a statute of repose; and (2) if a statute of repose, whether its application is subject to a claimant’s assertion of equitable estoppel. These are pure questions of law for which our review is de novo.”

“A. We turn first to the categorization of section 726.110(1) as either a statute of limitations or a statute of repose.”

“Nehme v. Smithkline Beecham Clinical Labs., Inc., 863 So.2d 201, 208 (Fla.2003) ; see also Merkle, 737 So.2d at 542 n. 6 (explaining that after the expiration of a repose period, “the cause of action is extinguished”); Carr v. Broward Cty., 505 So.2d 568, 570 (Fla. 4th DCA 1987) (“At the end of the [repose] period the cause of action ceases to exist.”).”

“The introductory clause of the statute provides that “[a] cause of action with respect to a fraudulent transfer … is extinguished unless action is brought” within the time periods provided in subsections (1) through (3). § 726.110 (emphasis added).”

“The Todds filed their original complaint on January 17, 2006, within two years of learning of Dr. Johnson’s original failure to apprise them of the portentous x-ray, but more than four (and less than seven) years after Dr. Johnson had, they alleged, learned (or should be deemed to have known) of the x-ray himself.”

“The Todds argued below, as they argue here, that Dr. Johnson’s failure to tell them about the x-ray amounted not only to actionable malpractice, but also to “concealment” that tolled the limitations period and extended the repose period. See Mangoni v. Temkin, 679 So.2d 1286, 1287 (Fla. 4th DCA 1996) (holding that nondisclosure may both be actionable itself and operate to “extend the statute of repose”).”

“Whether the filing was timely turns on whether “it can be shown [or, at this stage of the proceedings, has been adequately pleaded] that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury.” § 95.11(4)(b), Fla. Stat. (2004).”

“Id. at 209. The trial court’s order granting motion to dismiss second amended complaint did not cite case authority, but its order granting defendant’s motion to dismiss first amended complaint with leave to amend cited ” Nehme v. Smithkline, 863 So.2d 201[sic], Carlton v. Ridings, 422 So.2d 1067 (Fla. 1st”

“PALMER, J. Timothy Busch (Homeowner) appeals the trial court’s order dismissing his complaint with prejudice based on the expiration of the ten-year statute of repose applicable to construction defect claims. See § 95.11(3)(c), Fla. Stat. (2015).”

“Relying on section 95.11(3)(c), Florida’s statute of repose, Builder filed a motion to dismiss the complaint.”

“In any event, the action must be commenced within 10 years after the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest. § 95.11(3)(c) (emphasis added).”

“If a potential medical malpractice litigant files suit prematurely, the case is subject to dismissal; however, if a claimant asserting a construction defect files suit prematurely, the lawsuit is simply stayed. See § 558.003.”

“Section 95.031(2), Florida Statutes (1983), was a statute of repose which precluded actions based on products liability if they were brought more than twelve years after the product was sold. A statute of repose cuts off a right of action within a specified time limit after the delivery of a product or the completion of an improvement, regardless of when the cause of action actually accrues.”

“As noted in the first certified question, the legislature amended section 95.031(2) in 1986 so as to repeal the statute of repose in products liability actions.”

“Since there was no clear manifestation of retroactive effect, the subsequent elimination of the statute of repose cannot save the plaintiff’s suit.”

“All of the district courts of appeal that have considered the question have ruled that Pullum has retrospective application.”

“EHRLICH, Justice. We have for review Phlieger v. Nissan Motor Co. 487 So.2d 1096 (Fla. 5th DCA 1986), because of apparent conflict with several decisions of this Court. We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and approve the decision below.”

“Nissan filed a motion for summary judgment relying on section 95.031(2), Florida Statutes (1983), the twelve-year products liability statute of repose. Nissan argued that since the truck had been originally purchased on February 13, 1970, its exposure to liability ended on February 13, 1982, pursuant to section 95.031(2).”

“Section 95.031(2) dealing with computation of time under chapter 95 provides: Actions for products liability and fraud under s. 95.11(3) 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 within 12 years after the date of delivery of the completed product to its original purchaser or within 12 years after the date of the commission of the alleged fraud, regardless of the date the defect in the product or the fraud was or should have been discovered.”

“The limitation period for an action founded on the design or construction of an improvement to real property is four years from the date of actual possession or completion of the contract, whichever is later, except that, when the action involves a latent defect, the time runs from when the defect is discovered or should have been discovered with the exercise of due diligence. Section 95.11(3)(c), Florida Statutes.”

“In order to succeed on a motion for summary judgment based upon the Statute of Limitations, the movants in the case at issue were required to conclusively show that there exists no disputed issue of fact with respect to the date of commencement of the limitations period, specifically, that the defect which forms the basis of the cause of action was discovered, or should have been discovered with exercise of due diligence, more than four years before the suit was filed (i.e. prior to August 21, 1977).”

“Perez v. Universal Engineering Corporation, 413 So.2d 75 (Fla. 3d DCA 1982); First Federal Savings Loan Association of Wisconsin v. Dade Federal Savings Loan Association, 403 So.2d 1097 (Fla. 5th DCA 1981); Tobin v. Dannheisser, 372 So.2d 970 (Fla. 1st”

“After reviewing the entire record, we conclude that at the time of the hearing on the motions for summary judgment there existed a genuine issue regarding whether the college had discovered, or by diligence should have discovered, the corroded pipes which are the basis of its cause of action more than four years before the filing of its complaint.”

“However, as previously noted, section 95.11(4)(b) also contains what is referred to as a four-year statute of repose for bringing such an action. Thus, assuming the applicability of the statute of repose, Ramsay’s initial complaint against South Lake was filed within four years.”

“The statute of repose contained in section 95.11(4)(b) reflects the “legislative determination that there must be an outer limit beyond which medical malpractice suits may not be instituted.” Kush v. Lloyd, 616 So.2d 415, 421 (Fla. 1992). It is unnecessary for this court to describe these various chapter 766 presuit requirements because Ramsay has not argued that she complied with them, nor could she.”

“A little more than two years later, on June 10, 2015, S.S. served her written notice of claim pursuant to section 768.28(6), Florida Statutes (2015), on the School Board.”

“The School Board moved for summary judgment, arguing that under section 768.28(14), Florida Statutes (2016), S.S.’s lawsuit was barred by the four-year statute of limitations governing actions against sovereign immune defendants. S.S. countered that, although the School Board is generally protected by sovereign immunity for tort actions, her claims are more properly characterized as those related to a sexual battery offense against a minor; thus, there is no time limit to file them under section 95.11(9), Florida Statutes (2016).”

“Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of the employee’s office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act…. …. (14) Every claim against the state or one of its agencies or subdivisions for damages for a negligent or wrongful act or omission pursuant to this section shall be forever barred unless the civil action is commenced by filing a complaint in the court of appropriate jurisdiction within 4 years after such claim accrues; except that an action for contribution must be commenced within the limitations provided in s. 768.31(4), and an action for damages arising from medical malpractice or wrongful death must be commenced within the limitations for such actions in s. 95.11(4). S.S. argues that because her civil claim against the School Board “relates to” the sexual battery one of its employees allegedly inflicted upon H.H., S.S. could bring her lawsuit at any time under section 95.11(9).”

“BASKIN, Judge (dissenting).”

“The issue involved is whether the five months between discovery of appellant’s injury and the absolute four-year bar to bringing suit under section 95.11(4)(b) constituted a reasonable time under the Florida Constitution for commencement of a medical malpractice claim. Section 95.11(4)(b), Florida Statutes (1979), in relevant part, provides: An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued. According to the facts presented, “the date of the incident or occurrence out of which the cause of action accrued” was July 4, 1975, the last date of the allegedly negligent medical treatment. According to the four-year final repose provision contained in section 95.11(4)(b), Cates’ action became barred on July 4, 1979.”