KELLY TRACTOR COMPANY, APPELLANT,
v.
DONALD GURGIOLO, APPELLEE
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Florida appellate court reversed judgment for breach of express warranty, holding that plaintiff's claim was barred by the four-year statute of limitations because the cause of action accrued more than four years before suit was filed.
A cause of action for breach of express warranty accrues when the breach is discovered or should have been discovered, and a suit filed more than four years after that discovery is barred by Florida's four-year statute of limitations.
[1] A cause of action for breach of express warranty accrues when the breach is discovered or reasonably should have been discovered, and the four-year statute of limitations…
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Join FLexlaw to unlock all legal intelligencePlaintiff purchased two engines from defendant Kelly Tractor Company for a charter boat in October 1968 and experienced significant mechanical difficu…
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PER CURIAM.
The final judgment appealed from is reversed and the cause remanded to the trial court with directions to dismiss the plaintiff Donald Gurgiolo’s complaint against the defendant Kelly Tractor Company on the ground that the cause of action sued upon was barred by the applicable four year statute of limitations under Section 672.2-725(1), (2), Florida Statutes (1967).
The plaintiff brought suit against the defendant in this cause, and thereafter obtained a final judgment entered upon a jury verdict, for breach of express warranty involving future performance of two engines purchased by the plaintiff from the defendant for a certain charter boat. Significant mechanical difficulties were experienced by the plaintiff upon delivery of the above engines in October 1968. Such difficulties extended continuously over a period in excess of llh years until the plaintiff finally filed suit on June 30, 1976.
In our view, the cause of action sued upon accrued long before June 30, 1972, which thereby places the action outside the four year statute of limitations. Indeed, by June 1972, the plaintiff had experienced over 3V2 years of chronic mechanical breakdown involving these two boat engines and by that time had discovered, or should have discovered, that the defendant had breached its express warranties with reference to the future performance of the above engines. As such, the action herein was clearly barred by the four year statute of limitations. § 672.2-725(1), (2), Fla.Stat. (1967); Creviston v. General Motors Corp., 225 So. 2d 331 (Fla.1969); City of Miami v. Brooks, 70 So. 2d 306 (Fla.1954).
Reversed.
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Citator
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R.A. Jones & Sons, Inc. v. Holman, 470 So. 2d 60 (Fla. 3d DCA 1985)…discover the existence of the defect in the engines constituting a breach of warranty before December 31, 1975, are therefore not limitations-barred.11 See Creviston v. General Motors Corp., 225 So. 2d 331 (Fla.1969); Kelly Tractor Co. v. Gurgiolo, 369 So. 2d 992 (Fla. 3d DCA 1979). Cf. Smith v. Continental Insurance Co., 326 So. 2d 189 (Fla. 2d DCA 1976) (in action based on breach of implied warranty, statute of limitations starts running from time buyer first discovers or reasonably should discover defect…1 / 2
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First Fed. Sav. & Loan Ass'n OF Wis. v. Dade Fed. Sav. & Loan Ass'n, 403 So. 2d 1097 (Fla. 5th DCA 1981)…ged or modified. The statute of limitations for causes of action based on breach of an express warranty begins to run when plaintiff discovers or should have discovered, the breach of the express warranty. See, e. g., Kelly Tractor Co. v. Gurgiolo, 369 So. 2d 992 (Fla. 3d DCA 1979); Rowell v. All, 352 So. 2d 905 (Fla. 1st DCA 1977). This indicates that the analysis previously discussed applies and appellee’s failure to disclose the date of the waiver agreement, in response to appellant’s request on April 3,…
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Dade Cnty. v. Rohr Indus., Inc., 826 F.2d 983 (11th Cir. 1987)…. For instance, in a warranty suit over a leaking roof, the statute of limitations begins to run when the owner has noticed the first leak. Kelley v. School Board of Seminole County, 435 So. 2d 804, 806 (Fla.1983). In Kelly Tractor Co. v. Gurgiolo, 369 So. 2d 992 (Fla. 3d D.C.A.1979), the court applied the repealed § 672.725 to a breach of express warranty action. Gurgiolo purchased from Kelley Tractor two engines covered by an express warranty for future performance. Kelley Tractor delivered the engines in…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- City of Miami v. Brooks, 70 So. 2d 306 (Fla. 1954)
- Creviston v. Gen. Motors Corp. & J. W. Whitesides, 225 So. 2d 331 (Fla. 1969)