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Fla. L. Weekly D1085bTop of Form
Fla. L. Weekly D1085bTop of Form
Insurance
— Subrogation — Limitation of actions — In subrogation action by insurer
against defendant alleging that defendant negligently repaired insured’s roof,
resulting in water damage, limitations period commenced at time of the water
damage, rather than at the time of the negligent repair — Subrogation action
filed within 4 years of date water damage occurred was timely — Trial court
erred in dismissing action as barred by statute of limitations
— Subrogation — Limitation of actions — In subrogation action by insurer
against defendant alleging that defendant negligently repaired insured’s roof,
resulting in water damage, limitations period commenced at time of the water
damage, rather than at the time of the negligent repair — Subrogation action
filed within 4 years of date water damage occurred was timely — Trial court
erred in dismissing action as barred by statute of limitations
COMPANION PROPERTY AND CASUALTY
GROUP, Appellant, v. BUILT TOPS BUILDING SERVICES, INC., Appellee. 3rd
District. Case No. 3D16-2044. L.T. Case No. 16-3100. May 10, 2017. An Appeal
from the Circuit Court for Miami-Dade County, Rosa I. Rodriguez, Judge.
Counsel: Wadsworth Law, LLLP, Orlando J. Romero and Christopher W. Wadsworth,
for appellant. Ludovici & Ludovici, P.A. and Susan M. Ludovici, for
appellee.
GROUP, Appellant, v. BUILT TOPS BUILDING SERVICES, INC., Appellee. 3rd
District. Case No. 3D16-2044. L.T. Case No. 16-3100. May 10, 2017. An Appeal
from the Circuit Court for Miami-Dade County, Rosa I. Rodriguez, Judge.
Counsel: Wadsworth Law, LLLP, Orlando J. Romero and Christopher W. Wadsworth,
for appellant. Ludovici & Ludovici, P.A. and Susan M. Ludovici, for
appellee.
(Before SALTER, EMAS and FERNANDEZ,
JJ.)
JJ.)
(FERNANDEZ, J.) Companion Property
& Casualty Group appeals the trial court’s final order dismissing with
prejudice Companion’s Amended Complaint due to the expiration of the statute of
limitations in section 95.11(3)(c), Fla Stat. (2012). We reverse because the
trial court erred in finding that Companion’s action was time-barred and thus
erred in dismissing it.
& Casualty Group appeals the trial court’s final order dismissing with
prejudice Companion’s Amended Complaint due to the expiration of the statute of
limitations in section 95.11(3)(c), Fla Stat. (2012). We reverse because the
trial court erred in finding that Companion’s action was time-barred and thus
erred in dismissing it.
On February 8, 2016, Companion filed
its subrogation action with the trial court. In its initial complaint,
Companion, as the insurer for the property allegedly damaged by the
appellee/Built Tops Building Services, Inc., asserted its subrogation claim
against Built Tops. Companion pled in Paragraph 5 of its complaint that Built
Tops performed the negligent repairs on the insured/subrogor’s roof on or about
November 21, 2006. In paragraph 6 of its complaint, Companion pled that as the
result of Built Tops’ faulty repairs, the insured condominium building was
damaged by water that permeated through the insured’s roof on February 9, 2012.
Companion paid its insured $31,937.87 in proceeds under its insurance policy.
On February 8, 2016, Companion filed its complaint against Built Tops.
its subrogation action with the trial court. In its initial complaint,
Companion, as the insurer for the property allegedly damaged by the
appellee/Built Tops Building Services, Inc., asserted its subrogation claim
against Built Tops. Companion pled in Paragraph 5 of its complaint that Built
Tops performed the negligent repairs on the insured/subrogor’s roof on or about
November 21, 2006. In paragraph 6 of its complaint, Companion pled that as the
result of Built Tops’ faulty repairs, the insured condominium building was
damaged by water that permeated through the insured’s roof on February 9, 2012.
Companion paid its insured $31,937.87 in proceeds under its insurance policy.
On February 8, 2016, Companion filed its complaint against Built Tops.
On June 24, 2016, Companion filed an
amended complaint with the trial court, as Built Tops did not file a responsive
pleading to the initial complaint. In its amended complaint asserting its
subrogation rights, Companion again contended that Built Tops performed the
negligent repairs on the insured roof on or about November 21, 2006 and further
pled, as a result of the faulty repairs, that the insured condominium building
suffered a water loss on February 9, 20121.
amended complaint with the trial court, as Built Tops did not file a responsive
pleading to the initial complaint. In its amended complaint asserting its
subrogation rights, Companion again contended that Built Tops performed the
negligent repairs on the insured roof on or about November 21, 2006 and further
pled, as a result of the faulty repairs, that the insured condominium building
suffered a water loss on February 9, 20121.
On July 8, 2016, Built Tops moved to
dismiss the amended complaint. Built Tops asserted that the applicable four-year
statute of limitations had run on the filing of Companion’s complaint four
years after the date of the negligent repairs performed by Built Tops and not
four years after the date of the injury, which was the water loss, that
triggered Companion’s obligation to issue payment to its insured. Built Tops
argued that Companion’s claim was time-barred and should be dismissed with
prejudice.
dismiss the amended complaint. Built Tops asserted that the applicable four-year
statute of limitations had run on the filing of Companion’s complaint four
years after the date of the negligent repairs performed by Built Tops and not
four years after the date of the injury, which was the water loss, that
triggered Companion’s obligation to issue payment to its insured. Built Tops
argued that Companion’s claim was time-barred and should be dismissed with
prejudice.
On August 1, 2016, the parties
appeared before the trial court on Built Tops’ motion to dismiss. At the
hearing, Companion contended that the matter was a subrogation action for which
the statute of limitations began to run on the date that the “injury” occurred.
Companion asserted that the subject injury was sustained by the insured (and by
way of subrogation, Companion) on the date of the water loss, which was
February 9, 2012. Therefore, the initial complaint filed by Companion on
February 8, 2016, was timely filed. Built Tops argued, in response, that the
statute of limitations instead began to run on the exact date of the negligent
repairs as pled by Companion — November 21, 2006 — although the pleadings
were devoid of any allegations that Companion or its insured had any knowledge
of the defect in the subject roof at that time. The trial court granted Built
Tops’ motion to dismiss on the basis that the applicable statute of limitations
had run for the filing of Companion’s complaint.
appeared before the trial court on Built Tops’ motion to dismiss. At the
hearing, Companion contended that the matter was a subrogation action for which
the statute of limitations began to run on the date that the “injury” occurred.
Companion asserted that the subject injury was sustained by the insured (and by
way of subrogation, Companion) on the date of the water loss, which was
February 9, 2012. Therefore, the initial complaint filed by Companion on
February 8, 2016, was timely filed. Built Tops argued, in response, that the
statute of limitations instead began to run on the exact date of the negligent
repairs as pled by Companion — November 21, 2006 — although the pleadings
were devoid of any allegations that Companion or its insured had any knowledge
of the defect in the subject roof at that time. The trial court granted Built
Tops’ motion to dismiss on the basis that the applicable statute of limitations
had run for the filing of Companion’s complaint.
Companion moved for
rehearing/reconsideration. The trial court denied Companion’s motion and
dismissed Companion’s complaint.
rehearing/reconsideration. The trial court denied Companion’s motion and
dismissed Companion’s complaint.
On appeal, Companion contends that
the trial court erred in deciding that its negligence action was time-barred
because the statute of limitations had run. Companion asserts that according to
section 95.11(3)(c), Fla. Stat. (2012), the statute of limitations began to run
on February 9, 2012, the date the water damage occurred, rather than on
November 21, 2006, the date when Built Tops performed the negligent repairs.
the trial court erred in deciding that its negligence action was time-barred
because the statute of limitations had run. Companion asserts that according to
section 95.11(3)(c), Fla. Stat. (2012), the statute of limitations began to run
on February 9, 2012, the date the water damage occurred, rather than on
November 21, 2006, the date when Built Tops performed the negligent repairs.
We review the trial court’s order
granting the motion to dismiss de novo. Grove Isle Ass’n, Inc. v.
Grove Isle Assoc., LLP, 137 So. 3d 1081, 1089 (Fla. 3d DCA 2014). We
agree with Companion that the trial court improperly dismissed Companion’s
subrogation action stemming from a roof leak caused by negligent repairs
performed by Built Tops on the insured premises.
granting the motion to dismiss de novo. Grove Isle Ass’n, Inc. v.
Grove Isle Assoc., LLP, 137 So. 3d 1081, 1089 (Fla. 3d DCA 2014). We
agree with Companion that the trial court improperly dismissed Companion’s
subrogation action stemming from a roof leak caused by negligent repairs
performed by Built Tops on the insured premises.
According to section 95.11(3)(a),
Fla. Stat. (2012), an action for negligence must be commenced within four years
after the cause of action accrues. Furthermore, an action for negligence does
not accrue until the plaintiff suffers an actual loss or damages. Med. Data
Sys., Inc. v. Coastal Ins. Group, Inc., 139 So. 3d 394, 395 (Fla. 4th DCA
2014). With regard to roof leaks on real property, the statute of limitations
begins to run from the time the defect is discovered or should have been discovered.
Kelley v. School Board of Seminole County, 435 So. 2d 804 (Fla. 1983)(in
the context of roof leaks on real property, the statute of limitations begins
to run from the time the defect is discovered or should have been discovered)2; see also Travel Indemnity
Company of Connecticut a/a/o Camilo Office Furniture v. CentiMark Corp. d/b/a
CentiMark Roofing Systems, 746 F. Supp. 2d 1284 (S.D. Fla. 2010) (involving
a subrogation action emanating from a roof leak in which the Southern District
of Florida determined that the applicable statute of limitations began to run
when the subrogee’s insured first discovered the roof leak on the subject
premises rather than at the exact time of the negligent roof repairs).
Fla. Stat. (2012), an action for negligence must be commenced within four years
after the cause of action accrues. Furthermore, an action for negligence does
not accrue until the plaintiff suffers an actual loss or damages. Med. Data
Sys., Inc. v. Coastal Ins. Group, Inc., 139 So. 3d 394, 395 (Fla. 4th DCA
2014). With regard to roof leaks on real property, the statute of limitations
begins to run from the time the defect is discovered or should have been discovered.
Kelley v. School Board of Seminole County, 435 So. 2d 804 (Fla. 1983)(in
the context of roof leaks on real property, the statute of limitations begins
to run from the time the defect is discovered or should have been discovered)2; see also Travel Indemnity
Company of Connecticut a/a/o Camilo Office Furniture v. CentiMark Corp. d/b/a
CentiMark Roofing Systems, 746 F. Supp. 2d 1284 (S.D. Fla. 2010) (involving
a subrogation action emanating from a roof leak in which the Southern District
of Florida determined that the applicable statute of limitations began to run
when the subrogee’s insured first discovered the roof leak on the subject
premises rather than at the exact time of the negligent roof repairs).
The critical date of loss here was
February 9, 2012, the date on which the insured property was alleged to have
been damaged. The initial complaint for negligence was filed on February 8,
2016, within four years of the date of the subject injury, thus on this record
and at this stage of the litigation, the statute of limitations had not
expired. Consequently, the trial court erred in determining that the statute of
limitations had run and that Companion’s claim was time-barred. Riverwalk at
Sunrise Homeowners Ass’n, Inc. v. Biscayne Painting Corp., 199 So. 3d 348
(Fla. 4th DCA 2016).
February 9, 2012, the date on which the insured property was alleged to have
been damaged. The initial complaint for negligence was filed on February 8,
2016, within four years of the date of the subject injury, thus on this record
and at this stage of the litigation, the statute of limitations had not
expired. Consequently, the trial court erred in determining that the statute of
limitations had run and that Companion’s claim was time-barred. Riverwalk at
Sunrise Homeowners Ass’n, Inc. v. Biscayne Painting Corp., 199 So. 3d 348
(Fla. 4th DCA 2016).
Furthermore, Companion cites to
section 95.11(3)(c) in its brief, which deals with an “action founded on the
design, planning, or construction of an improvement to real property,. . .”
However, Companion sued Built Tops for negligence due to a simple repair of the
subrogor’s roof. The correct portion of section 95.11 that is applicable here is
(3)(a), not (3)(c), because Companion alleged an action founded on negligence.
As we stated in Dominguez v. Hayward Industries, Inc., 201 So. 3d 100
(Fla. 3d DCA 2015):
section 95.11(3)(c) in its brief, which deals with an “action founded on the
design, planning, or construction of an improvement to real property,. . .”
However, Companion sued Built Tops for negligence due to a simple repair of the
subrogor’s roof. The correct portion of section 95.11 that is applicable here is
(3)(a), not (3)(c), because Companion alleged an action founded on negligence.
As we stated in Dominguez v. Hayward Industries, Inc., 201 So. 3d 100
(Fla. 3d DCA 2015):
The Florida Supreme Court in Hillsboro defined
“improvement,” as contained in Black’s Law Dictionary, 890 (4th ed. rev.
1969), as follows:
“improvement,” as contained in Black’s Law Dictionary, 890 (4th ed. rev.
1969), as follows:
A valuable
addition made to property (usually real estate) or an amelioration in its
condition, amounting to more than mere repairs or replacement of waste, costing
labor or capital, and intended to enhance its value, beauty or utility or to
adapt it for new or further purposes.
addition made to property (usually real estate) or an amelioration in its
condition, amounting to more than mere repairs or replacement of waste, costing
labor or capital, and intended to enhance its value, beauty or utility or to
adapt it for new or further purposes.
Hillsboro, 263 So.2d at 213. See also Bernard Schoninger Shopping
Ctrs., Ltd. v. J.P.S. Elastomerics, Corp., 102 F.3d 1173, 1177 (11th Cir.
1997)(relying on Hillsboro and Black’s Law Dictionary‘s
definition of “improvement” to conclude that the replacement of a shopping
center’s entire roof was an “improvement to real property.”). In Pinnacle
Port Community Association, Inc. v. Orenstein, 952 F.2d 375 (11th Cir.
1992), for example, the issue was whether to apply the five-year statute of
limitations for actions on breach of contract, or the four-year statute of
limitations for actions “founded on the design, planning or construction of
improvement. . . .”. The court held that the “repairs were intended not to
enhance the assumed value of the property but to restore the walls to their
original watertight state.” Id. at 378. These constituted repairs rather
than improvements. Id.
Ctrs., Ltd. v. J.P.S. Elastomerics, Corp., 102 F.3d 1173, 1177 (11th Cir.
1997)(relying on Hillsboro and Black’s Law Dictionary‘s
definition of “improvement” to conclude that the replacement of a shopping
center’s entire roof was an “improvement to real property.”). In Pinnacle
Port Community Association, Inc. v. Orenstein, 952 F.2d 375 (11th Cir.
1992), for example, the issue was whether to apply the five-year statute of
limitations for actions on breach of contract, or the four-year statute of
limitations for actions “founded on the design, planning or construction of
improvement. . . .”. The court held that the “repairs were intended not to
enhance the assumed value of the property but to restore the walls to their
original watertight state.” Id. at 378. These constituted repairs rather
than improvements. Id.
Dominguez, 201 So. 3d at 102.
Accordingly, we reverse the trial
court’s order dismissing Companion’s action and remand to the trial court so
that the action can proceed on its merits.
court’s order dismissing Companion’s action and remand to the trial court so
that the action can proceed on its merits.
Reversed and remanded for further
proceedings.
proceedings.
__________________
1We base
our decision in this case on the date of loss alleged in the operative
complaint, as the trial court is limited to the four corners of the complaint
in deciding whether to grant or deny the motion to dismiss. By our decision, we
do not foreclose the application of any other evidence that may later develop
relating to the date of loss.
our decision in this case on the date of loss alleged in the operative
complaint, as the trial court is limited to the four corners of the complaint
in deciding whether to grant or deny the motion to dismiss. By our decision, we
do not foreclose the application of any other evidence that may later develop
relating to the date of loss.
2We
recognize that Kelley involves section 95.11(3)(c). However, even in
that case, the Florida Supreme Court found that the statute of limitations
begins to run “when there has been notice of an invasion of legal rights or a
person has been put on notice of his right to a cause of action.” Kelley,
435 So. 2d at 806.
recognize that Kelley involves section 95.11(3)(c). However, even in
that case, the Florida Supreme Court found that the statute of limitations
begins to run “when there has been notice of an invasion of legal rights or a
person has been put on notice of his right to a cause of action.” Kelley,
435 So. 2d at 806.
* * *