Cаrrie Hargis ROBINSON, an infant under the age of eighteen years who sues by her mother and next friend, Shirley HARGIS, Appellants, v. Leroy H. MERKLE, Jr., as personal representative of the Estate of Carmelо L. Terlizzi, M.D., deceased, Appellee.
No. 95-05178
District Court of Appeal of Florida, Second District
September 19, 1997
700 So. 2d 723
QUINCE, Judge.
Marie A. Borland of Hill, Ward & Henderson, P.A., Tampa, for appellee.
QUINCE, Judge.
Carrie Hargis Robinson, by and through her mother and next friend, Shirley Hargis,
Rоbinson, a West Virginia resident, filed suit in Pinellas County, Florida, against the estate of Dr. Carmelo Terlizzi to recover damages for injuries allegedly caused by Dr. Terlizzi‘s medical negligence during her delivery and birth on May 12, 1977.2 On May 12, 1977, Shirley Hargis was admitted to Cabell Huntington Hospital, in Cabell County, West Virginia, under the care of Dr. Terlizzi. Mrs. Hargis was provided pre-natal obstetrical care by Dr. Terlizzi prior to this hospital admission. It is alleged that Robinson was born with perinatal asphyxia, hypoxia, and a seizure disorder as a result of Dr. Terlizzi‘s medical negligence. Dr. Terlizzi practiсed medicine in West Virginia but retired to Florida, where he died in 1987.
Robinson argues the West Virginia statute of limitations applies to this action because the negligent conduct which gavе rise to the cause of action occurred in West Virginia and because the parties were West Virginia residents at the time of the occurrence. We agree but note that our decision conflicts with a decision from the Third District on the same issue. See Rodriguez v. Pacific Scientific Co., 536 So. 2d 270 (Fla. 3d DCA 1988), review denied, 545 So. 2d 1368 (1989).
Robinson alleges, and it is not disputed, that her cause of action for medical malpracticе is not barred under the West Virginia statute of limitations. She argues that
In Bishop v. Florida Specialty Paint Co., 389 So. 2d 999 (Fla. 1980), the supreme court adopted the analysis set forth in the Restatement (Second) of Conflict of Laws, section 145 (1971), for the purpose of settling conflicts of law involving substantive issues. Section 145 provides:
THE GENERAL PRINCIPLE
(1) The rights and liabilities оf the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the ocсurrence and the parties under the principles stated in s 6.
(2) Contacts to be taken into account in applying the principles of s 6 to determine the law applicаble to an issue include:
(a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of incorporation and рlace of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
The plaintiffs in Bishop were Florida residents, who were injured in a plаne crash in South Carolina. They brought suit in Florida alleging negligent operation of the aircraft. The plaintiffs argued in favor of applying Florida law, which allows recovery under аn ordinary negligence standard. Conversely, South Carolina‘s guest aviation statute required a showing of intentional misconduct or recklessness. The trial court granted summary judgment in favor of the defendants, holding that conflicts of substantive law would be settled in favor of the state where the injury occurred—a principle commonly referred to as the lex loci delicti rule. The district court affirmed but certified the question to the Florida Supreme Court.
The supreme court reversed and adopted the significant relationships test for determining substаntive law conflicts, reasoning that, “Other factors may combine to outweigh the place of injury as a controlling consideration, making the determination of applicable law a less mechanical, and more rational, process.” Id. at 1001. Applying the test, the court held that Florida would govern the action because all relevant partiеs were Florida residents, the trip was to begin and end in Florida, and the host-guest relationship between the parties arose in Florida.
The principles set forth in Restatement section 145 were later applied by the supreme court in the context of a procedural conflict of law in Bates v. Cook, 509 So. 2d 1112 (Fla. 1987). The plaintiff in Bates filed an action in a Florida state court alleging theft of trade secrets based on an oral agreement to evaluate and market medical devices. The oral agreement was entered into in Clearwater, Florida. The dеfendant, an Indiana corporation, removed the action to federal district court and moved for summary judgment on the ground that Indiana‘s statute of limitations had expired. The defendant relied on Florida‘s borrowing statute,
For the purpose of applying Florida‘s limitations of actions “borrowing” statute., is the determination whether a cause of action for theft of trade secrets has arisen in a state other than Florida to be mаde solely with reference to the state in which the “last act necessary to establish liability” occurred, ... or with reference to the “significant relationships” that the respеctive states have to the cause of action?
Bates v. Cook, Inc., 791 F.2d 1525 (11th Cir. 1986). In answering the certified question, the court held that the significant relationship test should be applied when making conflict of law determinations involving statutes of limitations. Bates, 509 So. 2d at 1114. The court abandoned the conventional practice of justifying the use of a different analysis for making conflict of law determinаtions involving statutes of limitation based on their classification as procedural, rather than substantive.
Although Bates involved the application of Florida‘s borrowing statute,
Because our holding conflicts with that of our sister court in Rodriguez v. Pacific Scientific Co., we certify the following question to the Florida Suрreme Court:
DOES THE SIGNIFICANT RELATIONSHIP TEST ADOPTED IN BATES V. COOK, 509 So. 2d 1112 (Fla. 1987), FOR USE IN APPLYING FLORIDA‘S BORROWING STATUTE, SECTION 95.10, FLORIDA STATUTES, ALSO APPLY TO CASES INVOLVING FLORIDA‘S STATUTE OF LIMITATIONS, SECTION 95.11, FLORIDA STATUTES?
We reverse the trial court‘s order dismissing the cause of action and certify the question stated above.
FRANK, A.C.J., and PATTERSON, J., concur.