← Back to all articles

What if an old and defective product hurts me?

By Adam J. Langino, Esq.

This article discusses the statute of repose in Florida. Florida’s statute of repose says that in most cases, you cannot sue a product manufacturer – even if it is defective – if the product is over twelve years old. Many states have statutes of repose, but some do not.

Introduction

What is Florida’s Statute of Repose?

Florida’s statute of repose for product liability actions is found in section 95.031(2)(b), Florida Statutes, and provides, in part, that “[u]nder no circumstances may a claimant commence an action for products liability, including a wrongful death action or any other claim arising from personal injury or property damage caused by a product, to recover for harm allegedly caused by a product with an expected useful life of 10 years or less, if the harm was caused by exposure to or use of the product more than 12 years after delivery of the product to its first purchaser or lessee who was not engaged in the business of selling or leasing the product or of using the product as a component in the manufacture of another product.”

Are there Exceptions to Florida’s Statute of Repose?

With limited exception, all products, including motor vehicles, are conclusively presumed to have an expected useful life of ten years or less. Id. However, “[a]ircraft used in commercial or contract carrying of passengers or freight, vessels of more than 100 gross tons, railroad equipment used in commercial or contract carrying of passengers or freight, and improvements to real property, including elevators and escalators” are not subject to the statute of repose. See § 95.031(2)(b)(1), Fla. Stat. For these products, “except for escalators, elevators, and improvements to real property, no action for products liability may be brought more than 20 years after delivery of the product to its first purchaser or lessor who was not engaged in the business of selling or leasing the product or of using the product as a component in the manufacture of another product. However, if the manufacturer specifically warranted, through express representation or labeling, that the product has an expected useful life exceeding 20 years, the repose period shall be the time period warranted in representations or label.” See § 95.031(2)(b)(3), Fla. Stat.

Another exception to the useful life presumption of ten years or less is when “the manufacturer specifically warranted, through express representation or labeling, as having an expected useful life exceeding ten years, [then the product] has an expected useful life commensurate with the time period indicated by the warranty or label.” See § 95.031(2)(b)(2), Fla. Stat. However, “[u]nder such circumstances, no action for products liability may be brought after the expected useful life of the product, or more than 12 years after delivery of the product to its first purchaser or lessee who was not engaged in the business of selling or leasing the product or of using the product as a component in the manufacture of another product, whichever is later.” Id.

Finally, the repose period for products does not apply when a plaintiff “was exposed to or used the product within the repose period, but an injury caused by such exposure or use did not manifest itself until after expiration of the repose period.” See § 95.031(2)(c). And it is tolled “for any period during which the manufacturer through its officers, directors, partners, or managing agents had actual knowledge that the product was defective in the manner alleged by the claimant and took affirmative steps to conceal the defect.” § 95.031(2)(d).

Is Florida’s Statute of Repose Fair to Consumers?

Before Florida House Bill 775, which took effect July 1, 1999, and included an amendment to 95.031, as well as numerous other tort reform measures, Florida did not have a statute of repose that restricted lawsuits for injuries caused by defective products. See Fla. House of Rep. Staff Analysis, H.B. 99-775 (Feb. 12, 1999). It was at that time that the “useful life” qualification found in 95.031(2)(b) - which implicitly includes motor vehicles as products presumed to have a useful life of fewer than ten years - subjected motor vehicles for the first time to a 12-year statute of repose in Florida. The purpose of adding the repose period in H.B. 775 was to limit the rights of Florida residents to bring product liability claims to court. Id. Yet, in his explanation of the Conference Committee Report to the House in Session on April 30, 1999, Judiciary Chairman Johnnie B. Byrd rationalized that H.B. 775 was necessary for reasons including, but not limited to, “enhancing substantial fairness by reducing payments by innocent parties.” Fla. House of Rep. Staff Analysis, H.B. 99-775 (June 2, 1999).

Almost twenty years later, is H.B. 775 and, by extension, 95.031(2)(b), Fla. Stat., living up to its promise of enhancing the substantial fairness of those Floridians who have been injured by defective automobiles? Is it protecting innocent Floridians by reducing payments to them? Arguably, not.

Data collected from the Office of Highway Policy Information of the Federal Highway Administration shows a marked increase in the number of vehicles on Florida roadways between 1999 to 2015, nearing nearly 17 million, up from 11.5 million. https://www.fhwa.dot.gov/policyinformation (last accessed August 28, 2018). According to a July 29, 2015, report, the average age of vehicles on the road in the U.S. is rising, and by 2015 the typical car on the road in the U.S. was 11.5 years old. Bomey, Nathan, Average age of vehicles on U.S. roads breaks record, USA Today, July 29, 2015, available at https://www.usatoday.com/story/money/2015/07/29/new-car-sales-soaring-but-cars-getting-older-too/30821191 (last accessed August 28, 2018). Simply put, consumers are driving their vehicles longer. This is well recognized by consumers, auto manufacturers, and the Insurance Institute of Highway Safety. Id. Citing the Institute for Highway Safety, that same report showed that in 2015 about 14 million vehicles on the road were at least 25 years old, up from 8 million in 2002, and 44 million cars were between 16 to 24 years old, up from 26 million in 2002. Id. USA Today’s report mirrors that of the Federal Bureau of Transportation Statistics May 23, 2017 report, which showed that the average age of vehicles on the roadway increased from 8.8 years in 1999 to 11.4 years in 2014. https://www.bts.gov/archive/publications/national_transportation_statistics/table_01_26 (last accessed August 28, 2018). And the U.S. Energy Information Administration reported on August 21, 2018, that households with lower incomes tend to hold onto their vehicles the longest. https://www.eia.gov/todayinenergy/detail.php?id=36914 (last accessed August 29, 2018). Homes with yearly incomes less than $25,000.00 had cars on average 13.0 years old compared to those with incomes greater than $100,000.00, whose vehicles averaged 8.9 years old. Id. It reported the average age of pick-up trucks on the road to be 13.6 years old. Finally, Statista, a consumer data research company, estimates that by 2019 the average age of vehicles on the roadway is expected to be around 11.8 years old. https://www.statista.com/statistics/738667/us-vehicles-projected-age/ (last accessed August 28, 2018).

When H.B. 775 took effect in 1999, the average age of vehicles on Florida’s roadways was 8.98 years—a few years below the newly enacted statute of repose. https://www.bts.gov/archive/publications/national_transportation_statistics/table_01_26 (last accessed August 28, 2018). Today, however, as Floridians continue to keep their vehicles longer, their average age will soon fall past Florida’s 12-year statute of repose. What does this mean to Floridians? In a motor vehicle accident, if a catastrophic injury or death occurs because of a defective design, manufacturing process, or failure to warn in a vehicle older than 12 years, that claim cannot be brought.

Floridians will not be protected from manufacturers who have failed to use reasonable care in their vehicles' design, manufacture, or warnings. And if a manufacturer has failed to use proper care, can it be considered an “innocent” party? None of the major auto manufacturers have assembly or manufacturing plants in Florida. These corporations are simply benefiting from a law that protects them at the expense of our safety. To the extent that 95.031(2)(b), Fla. Stat. ever achieved its proposed purpose of “enhancing the substantial fairness” for all Floridians by “reducing payments by innocent parties,” it certainly isn’t now. To that end, the obvious should be recognized - that motor vehicles have a useful life of more than ten years – contrary to the presumption found in 95.031(2)(b) - and those that use them should be afforded the same level of protection as those who use other modes of transportation, which is a 20-year statute of repose. It is time for the Florida legislature to reexamine 95.031(2)(b), Fla. Stat.

Conclusion

I am sorry if you are reading this because you or someone you love was killed or catastrophically injured by the negligent acts of another. Over my career, I have handled many wrongful death claims and catastrophic injury claims. I am licensed to practice law in Florida and North Carolina and co-counsel claims in other states. If you would like to learn more about me or my practice, click here. If you want to request a free consultation, click here. As always, stay safe and stay well.