Overland Construction Co. v. Sirmons

In this proceeding we are called upon to review the constitutionality of section 95.-ll(3)(c), Florida Statutes (1975), insofar as it absolutely bars the right to bring suit for certain injuries incurred on real property unless the lawsuit is commenced within twelve years after the completion of the improvements which produced the injury. The relevant portion of the statute, which limits actions “founded on the design, planning, or construction of an improvement to real property,” states:

In any event the action must be commenced within 12 years after the date of actual possession by the owner, 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.

In 1961, Overland and another company completed construction of a building in West Palm Beach. In 1975, more than twelve years after Overland’s completion of construction, Jerry Sirmons was injured in the building in the course of his employment. He sued both the owner of the building and its builders. When Overland moved for a summary judgment based on the statutory twelve year ban on lawsuits, the quoted portion of section 95.11(3)(c) was declared unconstitutional by the trial court, thereby allowing Sirmons and the other respondents to proceed with the lawsuit notwithstanding the seeming bar of the statute. Overland has now sought to have the ruling reversed here, pursuant to article V, section 3(b)(3), Florida Constitution, and Burnsed v. Seaboard Coastline Railroad Co., 290 So.2d 13 (Fla.1974).

The trial court held the statute unconstitutional as violative of article I, section 21 of the Florida Constitution, which provides:

The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.

This constitutional mandate, which has appeared in every revision of the state constitution since 1838, has no counterpart in the federal constitution and derives its scope and meaning solely from Florida case law. The polestar decision for the construction of this provision is Kluger v. White, 281 So.2d 1, 4 (Fla.1973), in which we held:

[W]here a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla.Stat. § 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.

Based on Kluger, then, we must first decide whether the legislature, without providing any reasonable alternative, has abolished a statutory or common law right of action protected by article I, section 21, and if so, whether that action is grounded both on an overpowering public necessity and an absence of any less onerous alternative means of meeting that need.

It is undisputed that a cause of action of the type asserted by Sirmons in this case— the right of an injured person to bring suit against a building contractor with whom he is not in privity for damages suffered as a result of alleged negligence in construction even after the owner has accepted the completed building — is one for which a right of redress is guaranteed by article I, section •21. This common law right, though not expressly recognized by statute until 1975, was acknowledged as extant by this Court in 1959. When the “access to courts” provision of the constitution was re-adopted in 1968, there existed a right of redress against contractors for the type of injury Sirmons suffered, provided, of course, that suit was commenced within four years after the cause of action accrued by the occurrence of the injury.

Section 95.11(3)(c), insofar as is relevant to this proceeding, creates absolute immunity from suit for certain professionals and contractors connected with the construction of improvements to real property after the expiration of twelve years from the completion of the building. It unquestionably abolished Jerry Sirmons’ right to sue Overland for his injuries and provided no alternative form of redress. The only remaining issue under Kluger, therefore, is whether the legislature has shown an overpowering public necessity for this prohibitory provision, and an absence of less onerous alternatives.

The legislature itself has not expressed any perceived public necessity for abolishing a cause of action for injuries occurring more than twelve years after the completion of improvements to real property. Overland suggests that several other states have adopted analogous limitations, principally to counter a trend in the decisional law toward expanded liability for professional engineers, architects and contractors, and that the need for this type of statute is predicated on the difficulty of proof which naturally accompanies the passage of time.

We recognize the problems which inhere in exposing builders and related professionals to potential liability for an indefinite period of time after an improvement to real property has been completed. Undoubtedly, the passage of time does aggravate the difficulty of producing reliable evidence, and it is likely that advances in technology tend to push industry standards inexorably higher. The impact of these problems, however, is felt by all litigants. Moreover, the difficulties of proof would seem to fall at least as heavily on injured plaintiffs, who must generally carry the initial burden of establishing that the defendant was negligent. In any event, these problems are not unique to the construction industry, and they are not sufficiently compelling to justify the enactment of legislation which, without providing an alternative means of redress, totally abolishes an injured person’s •cause of action. The legislation impermissi-bly benefits only one class of defendants, at the expense of an injured party’s right to sue, and in violation of our constitutional guarantee of access to courts.

This analysis of section 95.11(3)(c) naturally calls for an explanation of our recent decision in Bauld v. J. A. Jones Construction Co., 357 So.2d 401 (Fla.1978), where we sustained this very provision in the face of a constitutional challenge by one whose cause of action was curtailed, rather than wholly barred, by the effect of section 95.-11(3)(e). In Bauld, unlike the present case, the injury occurred prior to the enactment of section 95.11(3)(c), at a time when the applicable statute of limitations provided only that suit must be commenced within four years. When section 95.11(3)(c) took effect in 1975, two and one-half years of that period had elapsed, during which time an action could have been filed. Moreover, the savings clause of section 95.022 extended the deadline for instituting existing causes of action which would otherwise have been terminated by the new twelve year limitation for an additional year. Consequently, the absolute twelve year prohibitory provision did not operate to abolish Pearl Bauld’s cause of action, but merely abbreviated the period within which suit could be commenced from four to three and one-half years. Although shortened, the time for bringing suit was found to be ample and reasonable; it was not forestalled altogether.

By contrast, Sirmons’ cause of action was already barred by the twelve year limitation when it first accrued — that is, when his injuries occurred. No judicial forum would ever have been available to Sirmons if the twelve year prohibitory portion of the statute were given effect. Obviously, our decision as to the validity of the statute vis-a-vis Pearl Bauld would not operate to bar our declaring the same statute invalid vis-a-vis Jerry Sirmons.

Some mention should be made of decisions from other jurisdictions concerning similar statutes. In several cases relied on by Overland the courts reviewed statutory provisions similar to section 95.11(3)(c) under a much less exacting standard than our own constitution and decisional law require. The courts in those states essentially determined that their laws constituted a reasonable exercise of the police power, unrelated to any “access to courts” provision in their organic law or a subservient Kluger standard.

A foreign decision which we do find persuasive, however, is Saylor v. Hall, 497 S.W.2d 218 (Ky.1973), in which a like statute was tested against a constitutional provision guaranteeing a right of access to courts similar to our own. The Kentucky court recognized that a majority of other jurisdictions considering the issue had upheld the validity of such statutes against due process and equal protection attacks, but it nonetheless held that

the application of purported limitation statutes in such manner as to destroy a cause of action before it legally exists cannot be permissible if it accomplishes destruction of a constitutionally protected right of action.

We similarly conclude that in Florida, as in Kentucky, the unique restriction imposed by our constitutional guarantee of a right of access to courts makes it irrelevant that this “statute of repose” may be valid under state or federal due process or equal protection clauses.

We hold that, insofar as section 95.-ll(3)(c), Florida Statutes (1975), provides an absolute bar to lawsuits brought more than twelve years after events connected with the construction of improvements to real property, it violates article I, section 21 of the Florida Constitution. The order of the trial court is, therefore, affirmed.

It is so ordered.

ADKINS, SUNDBERG and HATCHETT, JJ., concur.

ALDERMAN, J., dissents with an opinion, with which BOYD and OVERTON, JJ., concur.

. The trial court also invalidated the statute on other constitutional grounds, but our disposition of this case makes it unnecessary to address those issues.

. G. B. B. Investments, Inc. v. Hinterkopf, 343 So.2d 899, 901 (Fla. 3d DCA 1977).

. See, for example, Carter v. Sparkman, 335 So.2d 802 (Fla.1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 740, 50 L.Ed.2d 753 (1977); Sun-span Eng’r & Const. Co. v. Spring-Lock Scaffolding Co., 310 So.2d 4 (Fla.1975); Scholastic Systems, Inc. v. LeLoup, 307 So.2d 166 (Fla. 1974); Kluger v. White, 281 So.2d 1 (Fla.1973); Flood v. State ex rel. Homeland Co., 95 Fla. 1003, 117 So. 385 (1928).

. § 2.01, Fla.Stat. (1975), provided that “[t]he common and statute laws of England which are of a general and not a local nature . down to the 4th day of July, 1776, are declared to be of force in this state . . The common law principles as adopted by section 2.01, however, have not been confined as of 1776, but have been held to be “designed for application to new conditions and circumstances.” State ex rel. Burr v. Jacksonville Terminal Co., 90 Fla. 721, 744, 106 So. 576, 584 (1925).

. Ch. 74-382, § 7, Laws of Fla., codified as § 95.11(3)(c), Fla.Stat. (Supp.1974) (effective January 1, 1975).

. Slavin v. Kay, 108 So.2d 462, 465-67 (Fla.1959). While the common law rule in effect in 1776 had severely limited a contractor’s liability, a more expansive view was developed by our courts over the years as exceptions to the general rule. For a discussion of the evolution of contractor liability in Florida, see Slavin, and see generally, W. Prosser, Torts § 104, at 680-82 (4th ed. 1971).

. § 95.11(4), Fla.Stat. (1967).

. See, for example, Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970), appeal dismissed, 401 U.S. 901, 91 S.Ct. 868, 27 L.Ed.2d 800 (1971); Josephs v. Burns, 260 Or. 493, 491 P.2d 203 (1971).

. § 95.11(4), Fla.Stat. (1971).

.Under section 95.022, any action barred by the new statute that would not have been barred under prior law could still be commenced at any time before January 1, 1976. Of course, this provision is of no benefit to Sir-mons, or others similarly situated, whose right of action had not arisen prior to January 1, 1975.

. Several state statutes are identified in Comment, Limitation of Action Statutes for Architects and Builders — Blueprints for Non-action, 18 Catholic U.L.Rev. 361 (1969).

. Section 14 of the Constitution of Kentucky provides:

All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.

.497 S.W.2d at 225.