TIMES PUBLISHING COMPANY, APPELLANT,
v.
W.R. GRACE & COMPANY-CONN., A FOREIGN CORPORATION, APPELLEE

Fla. 2d DCA | 1989-11-17
No. 89-00013
PARKER and ALTENBERND, JJ., concur.
552 So. 2d 314 Florida District Court of Appeal, Second District (1989)

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

Times Publishing sued W.R. Grace for selling asbestos-containing material used in a building constructed in 1969, but filed suit in 1985—16 years later. The trial court granted summary judgment based on Florida's 12-year products liability statute of repose, and the appellate court affirmed, declining to extend the Diamond exception to cases where the injury could have been discovered within the repose period.


Holding

The statute of repose bars Times Publishing's claim because the Diamond exception does not apply. Unlike the situation in Diamond, where the injurious effect of the product could not have been discovered until years after exposure, Times Publishing could have discovered the presence of asbestos within the 12-year repose period.


Headnotes

[1] A products liability statute of repose bars a claim commenced more than 12 years after the product was first used, absent a recognized exception.

[2] The statute of repose exception recognized in Diamond v. …

Previewing 2 of 4 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

“the 12 year statute of repose forecloses the product liability claim”

Establishes that the statutory deadline had passed and bars the claim as a matter of law.

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

W.R. Grace sold asbestos-containing material to a contractor who affixed it to structural aspects of a building Times Publishing constructed in 1969. …

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
FRANK, Acting Chief Judge.

FRANK, Acting Chief Judge.

The Times Publishing Company sued W.R. Grace & Co. as the result of a substance containing asbestos which was sold by W.R. Grace to a contractor who affixed it to structural aspects of a building Times Publishing constructed in 1969. After learning of the presence of the asbestos, Times Publishing commenced the instant action in 1985. W.R. Grace was successful in procuring a summary judgment from the trial court based upon section 95.031(2), Florida Statutes (1983), the products liability statute of repose.

There is no dispute that Times Publishing commenced its action some 16 years after the asbestos-containing material was sprayed upon the building’s superstructure. Thus, the 12 year statute of repose forecloses the product liability claim. Times Publishing, however, recognizing the effect of section 95.031(2) urges that we adopt and follow the exception expressed in Diamond v. E.R. Squibb & Sons, Inc., 397 So. 2d 671 (Fla.1981). We decline the invitation to extend Diamond beyond its factual boundaries.

In Diamond our supreme court reversed the district court’s affirmance of a summary judgment favoring Squibb in a products liability action initiated after expiration of the statutory 12 year period. There, a child and her parents sued Squibb, the manufacturer of a drug known as Stilbetin. The child’s mother had been administered the drug during her pregnancy. Subsequently, it was found that the drug caused cancer in female children that could not be detected until the child reached puberty, a time when the claim would be in repose. Squibb obtained a summary judgment based upon section 95.031(2). The supreme court quashed the district court’s affirmance of the summary judgment concluding that the repose statute barred the cause of action before it ever accrued thereby denying access to a judicial forum in violation of rights guaranteed under Article I, Section 21, of the Florida Constitution.

The critical element in Diamond, distinguishing it from the present matter, was the fact that the injurious effect of Squibb’s product would not have been manifested in the child until many years following its ingestion by the mother. Indeed, there was no medical technique or means by which the mother or the child could have become aware-of the jeopardy occasioned by the drug within the period preceding repose. Here, however, it cannot be said that Times Publishing could not have discovered the presence of asbestos in its premises prior to the expiration of 12 years.

Finally, notwithstanding the excellent manner in which Times Publishing has presented its contentions to us, we are unwilling to expand the narrow Diamond exception to include the Times Publishing claim against W.R. Grace. The result we express is wholly consistent with that reached by this court in American Liberty Ins. Co. v. West and Conyers, 491 So. 2d 573 (Fla. 2d DCA 1986).

Affirmed.

PARKER and ALTENBERND, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw