Third District Court of Appeal
State of Florida
Opinion filed May 31, 2023.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-1143
Lower Tribunal No. 21-11582
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American Automobile Insurance Company, et al.,
Appellants,
vs.
FDH Infrastructure Services, LLC,
Appellee.
An appeal from the Circuit Court for Miami-Dade County, Mark
Blumstein, Judge.
The Jones Law Firm, P.C., and Robert E. Jones (Jacksonville), for
appellants.
Mitrani, Rynor, Adamsky & Toland, P.A., Steven R. Adamsky
(Weston), and Loren H. Cohen, for appellee.
Before LOGUE, MILLER, and BOKOR, JJ.
MILLER, J.
In this appeal, we are called upon to determine which of two dueling
statutes of limitation applies to subrogation claims arising out of a
construction accident that claimed the lives of three workers during an
antenna installation on a 952-foot tower in Miami Gardens, Florida.
Appellants, American Automobile Insurance Company and Associated
Indemnity Corporation (collectively the “Insurers”), challenge a final
summary judgment finding their claims time-barred by the two-year
professional malpractice limitation imposed in section 95.11(4)(a), Florida
Statutes (2022). On appeal, the Insurers contend the claim is more properly
governed by the four-year time limit set forth in section 95.11(3)(c), Florida
Statutes (2022), because theirs is “[a]n action founded on the design,
planning, or construction of an improvement to real property.” We find the
latter statute more specifically applicable to the facts of this case.
BACKGROUND
Tower King II, a Texas-based specialty construction contractor, was
charged with installing an upgraded antenna on an existing television tower.
In anticipation of the installation, Tower King retained appellee, FDH
Infrastructure Services, LLC, an engineering firm, to perform a structural
analysis as to the stability and weight-bearing capacity of the tower. FDH
was contractually obligated to assess the proposed rigging plan, which
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included the use of a large wooden contraption, known as a “gin pole,” to lift
the loads necessary to construct the antenna.
FDH furnished Tower King with a “Qualified Engineering Review
Letter,” which contained a spreadsheet setting forth the requested
calculations. The installation commenced, and shortly thereafter, the rigging
components failed. Three workers fell to their deaths, two nearby workers
witnessed the tragedy, and construction equipment sustained damage.
Confronted with a series of claims, the Insurers paid out benefits under their
respective policies.
The Insurers then filed suit against FDH, seeking equitable and
contractual subrogation on the theory that erroneous load calculations
precipitated the underlying insurance claims. FDH sought summary
judgment, alleging, among other grounds, the action was barred by the two-
year professional malpractice statute of limitations contained in section
95.11(4)(a). The trial court granted the motion, and the instant appeal
ensued.
STANDARD OF REVIEW
We conduct a de novo review of an order granting summary judgment.
Volusia County v. Aberdeen at Ormond Beach, L.P.,
760 So. 2d 126, 130
(Fla. 2000). Under Florida’s new standard, which mirrors its federal
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counterpart, “summary judgment is appropriate where ‘there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.’” Feldman v. Schocket, 47 Fla. L. Weekly D1930–31 (Fla. 3d
DCA Sept. 21, 2022) (quoting Fla. R. Civ. P. 1.510(a) (2022)). Thus, “the
correct test for the existence of a genuine factual dispute is whether ‘the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.’” In re Amends. to Fla. Rule of Civ. Proc. 1.510,
317 So.
3d 72, 75 (Fla. 2021) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242,
248 (1986)).
ANALYSIS
The resolution of this appeal requires us to examine two competing
statutes of limitation. The first statute, section 95.11(4)(a), imposes a two-
year limitation on actions for professional malpractice by privity claimants,
whether founded on contract or tort. See Baskerville-Donovan Eng’rs, Inc.
v. Pensacola Exec. House Condo. Ass’n,
581 So. 2d 1301, 1301–02 (Fla.
1991). The second statute, section 95.11(3)(c), sets forth a four-year
limitation on “[a]n action founded on the design, planning, or construction of
an improvement to real property.” Consistent with its plain language, the
latter statute has been universally construed as extending to “any” and “all”
actions “founded on the design, planning, or construction of an improvement
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to real property.” See State, Dep’t of Transp. v. Echeverri,
736 So. 2d 791,
792 (Fla. 3d DCA 1999) (“[Section 95.11(3)(c)] applies to all actions ‘founded
on the design, planning, or construction of an improvement to real
property.’”); Dubin v. Dow Corning Corp.,
478 So. 2d 71, 72 (Fla. 2d DCA
1985) (“We read this language [in Section 95.11(3)(c)] to mean ‘any’ action
arising out of improvements to real property, whether founded on contract or
on negligence.”). Such a claim accrues on “the date of completion of the
contract or termination of the contract between the professional engineer,
registered architect, or licensed contractor and his or her employer.” §
95.11(3)(c), Fla. Stat.
When a cause of action is ostensibly subject to competing statutes of
limitation, three well-entrenched tenets of statutory construction guide our
analysis: (1) a specific statute preempts a more general statute; (2) a later
statute is given effect over an earlier statute; and (3) if a doubt arises, the
longer period of limitations should ordinarily prevail. See Carcaise v. Durden,
382 So. 2d 1236, 1237 (Fla. 5th DCA 1980) (“Generally speaking, a special
statute of limitations which addresses itself to specific matters will take
precedence over a general statute.”); McKendry v. State,
641 So. 2d 45, 46
(Fla. 1994) (“[W]hen two statutes are in conflict, the later promulgated statute
should prevail as the last expression of legislative intent.”); 51 Am. Jur. 2d
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Limitation of Actions § 76 (footnote omitted) (“If two or more statutes of
limitation within a jurisdiction may apply to a cause of action, generally the
statute providing the longest limitation period is preferred and will be
applied.”).
In determining which statute of limitation is more specifically applicable
to the particular case, courts have looked to the nature of action and the type
of injury sustained. Here, the Insurers seek relief in subrogation for claims
they paid as the result of the structural failure of the rigging equipment.
Section 95.11(3) applies narrowly to only construction-based claims.
This provision stands in contrast to section 95.11(4), which encompasses
any “professional malpractice” action. Consistent with this distinction, in
Kelley v. School Board of Seminole County,
435 So. 2d 804 (Fla. 1983), the
Florida Supreme Court approved the application of section 95.11(3) in a case
of professional negligence associated with the provision of architectural
services.
Id. at 805, n.2 (“Both the trial court and the [F]ifth [D]istrict found
the 4-year statute applicable, and we agree with the district court that the
language of (3)(c), rather than (4)(a), is more specifically applicable to this
case.”). The same view has been adopted by several other courts. See
Havatampa Corp. v. McElvy, Jennewein, Stefany & Howard,
Architects/Planners, Inc.,
417 So. 2d 703, 704 (Fla. 2d DCA 1982) (applying
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section 95.11(3)(c) to an action by building owner against architect,
contractor, subcontractor, materialmen, and bonding company utilized in
design and construction of new manufacturing facility); Hotels of Deerfield,
LLC v. Studio 78, LLC, No. 21-60980-CIV,
2022 WL 1666976, at *4 (S.D.
Fla. Mar. 7, 2022) (“[B]ecause [section] 95.11(3)(c) is more specific than
95.11(4)(a) regarding claims against design professionals arising out of
designs or improvements to real property, the former should control because
more specific statutes preempt more general statutes as a matter of law.”);
see also Luis Prat & Cary Wright, Rights and Liabilities of Architects and
Engineers, in Florida Construction Law and Practice ch. 3.5 (10th ed. 2022)
(quoting § 95.11(3)(c), Fla. Stat.) (“Actions for professional malpractice by
privity claimants against the design professional, other than those actions
arising out of the ‘design, planning, or construction of an improvement to real
property,’ must be commenced within two years . . . .”); cf. Lillibridge Health
Care Servs., Inc. v. Hunton Brady Architects, P.A., No. 6:08-CV-1028,
2010
WL 3788859, at *18 (M.D. Fla. Sept. 24, 2010) (footnote omitted) (rejecting
defendant’s contention that section 95.11(4)(a) was more specific statute in
action by owner of medical office building against architect and engineering
firm for problems arising during construction of building and observing
“Florida courts—to which this [c]ourt must defer on issues of state law—have
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repeatedly applied paragraph (3)(c) rather than (4)(a) in suits against
architects and engineers”).
Analogizing this case to Manney v. MBV Engineering, Inc.,
273 So. 3d
214, 216 (Fla. 5th DCA 2019), however, FDH contends the two-year statute
is more suitable. We find Manney inapposite. In Manney, MBV, an
engineering firm, was hired to review construction drawings and inspect a
newly constructed home for structural defects.
Id. at 215. The Fifth District
Court of Appeal held that section 95.11(3)(c) was inapplicable.
Id. at 216.
The court reasoned that “while the inspection may have required the
observation of completed ‘construction,’ this [did] not transform the claim into
one founded on the ‘construction’ of an improvement to real property, as that
term is commonly understood.”
Id. at 217 (emphasis added).
In contrast, in the instant case, FDH was contractually obligated to
assess the structural integrity of the tower and rigging plan prior to the
commencement of construction. Performing the calculations necessary to
enable the construction of the new antenna on the existing building was part
and parcel of that task. Given the parameters of the contract, the summary
judgment record established the subrogation “action[s] [were] founded on the
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. . . planning . . . of an improvement to real property.”1 § 95.11(3)(c), Fla.
Stat. Consequently, we find this action falls within the ambit of the four-year
limitation.
Turning to the remaining issues on appeal, we summarily affirm the
grant of summary judgment on the worker’s compensation claims. See
Lincoln Nat. Health & Cas. Ins. Co. v. Mitsubishi Motor Sales of Am., Inc.,
666 So. 2d 159, 161 (Fla. 5th DCA 1995) (“The insurer, as subrogee, stands
in the shoes of its insured with respect to the insured’s tort claim against the
tortfeasor.”); Reynolds v. State Farm Mut. Auto. Ins. Co.,
611 So. 2d 1294,
1296 (Fla. 4th DCA 1992) (“[T]he impact rule stands for the proposition that
before a plaintiff can recover damages for emotional distress caused by the
negligence of another, the emotional distress suffered must flow from
physical injuries the plaintiff sustained in an impact.”); Garcia v. San Antonio
Hous. Auth.,
859 S.W.2d 78, 81 (Tex. App. 1993) (promulgating Texas
standard in actions for recovery due to bystander mental anguish caused by
negligence of another and barring such actions unless bystander is closely
related to physically injured party). But, adopting the sagacious reasoning
set forth by our sister court in Tank Tech, Inc. v. Valley Tank Testing, LLC,
1
It is true that section 95.11(3)(c) is typically applied to cases involving latent
construction defects. It is equally true, however, that the plain statutory
language does not lend itself to a restrictive interpretation.
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334 So. 3d 658 (Fla. 2d DCA 2021), we reject the notion that a release is
always a prerequisite to maintaining an equitable subrogation action. Id. at
662 (quoting Kala Invs., Inc. v. Sklar,
538 So. 2d 909, 917 (Fla. 3d DCA
1989)) (“[T]he propriety of a claim for equitable subrogation ‘depends on the
facts and circumstances in each case’ and there is ‘no general rule or test
for its invocation.’”). Here, the facts allow for the advancement of the claim
without a release. Accordingly, we affirm in part, reverse in part, and remand
for further proceedings.
Affirmed in part, reversed in part, and remanded.
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