Cowan v. TurchinCowan v. Turchin
Irving COWAN et al., Appellants,
v.
Rоbert L. TURCHIN, a Florida Corporation, et al., Appellees.
District Court of Appeal of Florida, Fourth District.
Michael B. Davis, of Walton, Lantaff, Schroeder, Carson & Wahl, West Palm Beach, for appellants.
Richard P. Kenney, of Williams, Salomon & Kenney, Miami, for appellee Melvin Grossman.
Allen Eugene Greenfield, Miami, for appellee Kovner.
Mannheimer, Greenfield & Cutler, Miami, for appellee Robert L. Turchin, а Florida corporation.
Kay Phillips Jones and Robert D. McIntosh, of Kirsch, DiGiulian, Druck & Spellacy, Fort Lauderdale, for appellee Dublin Co.
MAGER, Judge.
Plaintiffs appeal a summаry final judgment entered in behalf of defendants. The *450 summary final judgment was premised primarily upon the trial court's determination that the statute of limitations as set forth in F.S. Sections 95.11(3)[1] and 95.11(4)[2], F.S.A., bars any relief to the plaintiffs.
The suit arose as a result of the bursting of plastic сondenser piping used as a substitute for iron piping in an air-conditioning system installed in an apartment building owned by plaintiffs. The suit below was filed against the architect, the general contractor and the air-conditioning subcontractor and contained three counts: Count I charged the defendants with negligence in installing or allоwing the installation of a plastic condenser water piping labeled PR-160 PVC; Count III was directed solely against the defendant Turchin and alleged breach of contract; Count II was based upon an implied warranty flowing from the defendants to the plaintiff in that the pipe was fit for the purpose intended. The plastic piрing which was substituted for iron piping was installed in the latter part of 1964; the condenser burst during the summer of 1969, and the suit was instituted on September 23, 1970. It was the view of the trial court that the statute of limitations began to run in late 1964 when the pipе was installed at which time plaintiff was put on notice of such installation so that the four or five year limitations set forth in Sections 95.11(3) and 95.11(4) barred the suit (the suit was brought over six years after the date of installation).
It is our view that this appeal is controlled by the decision of the Supreme Court of Florida in Creviston v. General Motors Cоrporation, Fla. 1969,
"... [W]e conclude in an action on implied warranty for personal injury under the facts of this case, the three-year statute of limitations, F.S. Section 95.11(5)(e), F.S.A., begins to run from the time Petitioner first discovered, or reasonably should have discovered the defect constituting the breach of warranty. ..." (Emphasis added.)
The trial court's reference to "F.S. § 95.11(3)" or "§ 95.11(4)" would have application only to Counts I and III relating to negligent installation and breach of contract. The statute of limitations applicable to Count II based upon a breach of implied warranty would be governed by Sectiоn 95.11(5)(e). Creviston v. General Motors Corporation, supra. See also Hendon v. Stanley Home Products, Fla.Aрp. 1969,
With respect to Counts I and III, the limitations of time set forth in Sections 95.11(3) and 95.11(4) would stand as a bar to such claims. See 2765 South Bayshore Drive Corp. v. Fred Howland, Inc., Fla. App. 1968,
Plaintiff contends that the alleged unfitness for use did not come to light until the summer of 1969, when the substitute piping began to burst; defendants cоntend in essence that plaintiff was put on notice in 1964 that a substitute pipe was being installed at which time defеndants also allege a water pressure test of the pipe was conducted.
While there may be uncertainties as to the sufficiency of the notice of invasion of plaintiffs' rights, it is clear to this court that a gеnuine issue of material fact exists with respect to the time when plaintiff first discovered or reasonably shоuld have discovered the alleged defect in the plastic piping. The existence of a genuine issue of material fact precludes the entry of summary judgment. Ham v. Heintzelman's Ford, Inc., Fla.App. 1972,
Accordingly, thе final summary judgment with respect to Count II is reversed and affirmed as to Counts I and III and the cause remanded for furthеr proceedings consistent herewith.
Reversed, in part; affirmed, in part.
WALDEN and OWEN, JJ., concur.
NOTES
Notes
[1] "95.11 Limitations upon actions other than for the recovery of real property. Actions other than those for the recovery of real property can only be commenced as follows:
"...
"(3) Within five years. An action upon any contract, obligation or liability founded upon an instrument of writing not under seal."
[2] "(4) Within four years. Any action for relief not specifically provided for in this chapter."
[3] "(5) Within three years.
"...
"(e) And an action upon a contract, obligation or liability not founded upon an instrument of writing, including an action for goods, wares and merchandise sold and delivered, and on store accounts."
[4] Sections 95.11(3) and 95.11(4) provide respectively for a 5- and a 4-year limitation; as it appears that claims I and III were instituted six years after the time of the alleged defective installation or breach such claims would be barred.