Dominguez v. Bucyrus-Erie Company

503 So. 2d 364 (1987)

Juan DOMINGUEZ and Gracela Dominguez, Appellants,
v.
BUCYRUS-ERIE COMPANY, Appellee.

No. 86-1025.

District Court of Appeal of Florida, Third District.

February 11, 1987.

Lisa Bennett, Robert F. Weiner, Coral Gables, for appellants.

Pyszka, Kessler, Massey, Weldon, Catri, Holton & Douberley, Cooper, Wolfe & Bolotin and Maureen E. Lefebvre and Marc Cooper, Miami, for appellee.

Before BARKDULL, NESBITT and FERGUSON, JJ.

PER CURIAM.

Affirmed on authority of Shaw v. General Motors Corp., 503 So. 2d 362 (Fla. 3d DCA 1987). We certify the same questions:

(1) Whether the legislative amendment of section 95.031(2), Florida Statutes (1983), abolishing the statute of repose in product liability actions, should be construed to operate retrospectively as to a cause of action which accrued before the effective date of the amendment.

(2) If not, whether the decision of Pullum v. Cincinnati, Inc., 476 So. 2d 657 (Fla. 1985), appeal dismissed, ___ U.S. ___, 106 S. Ct. 1626, 90 L. Ed. 2d 174 (1986), which overruled Battilla v. Allis Chalmers Mfg. Co., 392 So. 2d 874 (Fla. 1980), applies so as to bar a cause of action that accrued after the Battilla decision but before the Pullum decision.

FERGUSON, Judge, specially concurring.

Affirmance is required by Shaw; otherwise I would dissent. The reason for giving the revised section 95.031(2), Florida Statutes (Supp. 1986), retrospective application is most compelling.

The Florida Constitution, article I, section 21, provides that "[t]he courts shall be open to every person for redress of any injury." This provision was adopted to give constitutional vitality to the maxim that for every wrong there is a remedy. Holland ex rel. Williams v. Mayes, 155 Fla. 129, 19 So. 2d 709 (1944).

Pullum v. Cincinnati, Inc., 476 So. 2d 657 (Fla. 1985), appeal dismissed, ___ U.S. ___, 106 S. Ct. 1626, 90 L. Ed. 2d 174 (1986), effectively shut the courthouse door on a cause of action in certain product liability cases even before the cause of action accrued, leaving a person injured by another private person without a remedy. The 1986 revision to section 95.031(2) was a prompt legislative overruling of Pullum.

We are not paralyzed, by policy or precedent, from giving the corrective legislation retrospective application to a case which was sandwiched between Battilla and Pullman, so that substantial justice and right shall prevail as contemplated by the constitution. Our duty as an appellate court in construing a statute is first to reconcile it with constitutional mandates. See Biggs v. Smith, 134 Fla. 569, 184 So. 106 (1938).