The School Board of Seminole County appeals from adverse summary judgments in three suits which asserted against Kelley liability for improperly designing or supervising the construction of roofs for three schools in Seminole County. The three schools, Idyllwilde Elementary, Forest City Elementary, and Teague Middle School, were all designed by Kelley and had the same basic roof design. They were built in the same two-year time span (1969-1971), and the roofs of all three schools required extensive repairs and eventual replacement.
The lower court ruled that the four-year statute of limitations
In order to sustain a summary judgment holding that a cause of action is barred by a statute of limitations, such as section 95.11(3)(c), the record must conclusively demonstrate that the appellant discovered or should have discovered the injury or the negligent act of the appellee giving rise to the injury. First Federal Savings and Loan Association of Wisconsin v. Dade Federal Savings and Loan Association., 403 So.2d 1097 (Fla. 5th DCA 1981); Mott v. Fort Pierce Memorial Hospital, 375 So.2d 360 (Fla. 4th DCA 1979); Tobin v. Dannheisser, 372 So.2d 970 (Fla. 1st DCA 1979). Further, the reviewing court must draw every possible inference in favor of the party against whom the summary judgment is made. Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla. 1977).
In these cases the record established that Kelley was the architect and designer for a number of schools in Seminole County before and after the three included in these law suits. Idyllwilde, Forest City and Teague were designed and supervised in their construction by Kelley and they all had a "round" open-school plan developed by Kelley. All three developed roof leaks during the first two years following completion of construction. These repairs were made by the contractors, under the two-year construction warranties.
In 1973 the warranty period had expired on Idyllwilde, because it was built first, and
Kelley's failure to design proper expansion joints in the roof systems was one of the School Board's alleged reasons for the roof "failures" at the three schools. Other correspondence from Mr. Carlton and the admissions in his depositions show he was aware in early 1973 that the roofs on all three schools had severe leaking problems, and he was concerned as to whether or not the defects were covered by the GAF bond on the roofs.
However, from the beginning of the leaks through 1975, the School Board called upon Kelley to handle, coordinate and devise plans to repair the roofs. Repairs were made repeatedly, without cost to the School Board. The record is replete with correspondence during 1973 and 1974 from the School Board to Kelley reporting leaks and problems, and correspondence from Kelley assuring the School Board that the roof problems were being handled and "permanent repairs" were being made under his direction, together with the roof bonding company.
By the end of 1974, the leaks became "critical" and in 1975, School Board employees concluded the roofs required extensive repairs or replacement. More repairs by Kelley and GAF were attempted, but in March of 1976 GAF refused to make any further repairs because GAF claimed the problem was "structural" or design related, and not covered under its bond.
The School Board claimed it was not told by Kelley or GAF that the roof leaks really were caused by "design" or "structural" defects not covered by the bond until March of 1976, although Mr. Carlton admitted he may have been so informed by a GAF representative in 1975. Kelley admitted he knew GAF's position in 1974. He also admitted he realized the School Board was relying on his expertise, knowledge and capacity to resolve the roof problems until 1976. The School Board witnesses also confirmed they had relied on Kelley during that time to determine the cause of the leaks and to repair them. During 1973 and 1974 they were told many possible theories as to why the roofs were leaking.
Under the circumstances as established in this record, where a "client" is relying on a "professional" to resolve and cure a problem within the ambit of their professional relationship, and where the professional continuously works on the
FRANK D. UPCHURCH, Jr., J., concurs and concurs specially with opinion.
COWART, J., dissents with opinion.
FRANK D. UPCHURCH, Jr., Judge, concurring specially.
While I concur with Judge Sharp, I would go further and recognize the "continuing treatment" doctrine. It is unrealistic to expect a potential claimant, who has engaged a professional, to immediately consider suit when he first discovers an error, omission, or unexpected result, especially, as here, when the professional makes every effort to have the condition corrected. To expect the School Board here to sue their architect on whose judgment and advice they had relied when he was diligently working to have the defective roofs repaired is unrealistic.
These circumstances, in my opinion, are far different from those where the injury or damage is apparent, permanent and unrepairable, although the cause may be uncertain. Aware that his rights have been invaded, it is not unrealistic to impose the burden on the claimant to inquire who, how, and what caused the damage.
COWART, Judge, dissenting:
I respectfully dissent. In Florida the applicable statute of limitations has always been deemed to have commenced to run from the date the cause of action arises. This means the date the plaintiff can first sue for the legal wrong involved. That event can often, if not usually, be identified and determined as a matter of law without the resolution of any genuine issue of fact and, hence, is often properly the subject of a summary judgment.
No rule of law requires that defects resulting from negligence be permanent or non-repairable in order to be actionable. Whether or not a construction deficiency is covered by a bond does not affect the accrual of a cause of action against a negligent party. Likewise, such accrual is not deferred until the party with the cause of action is told about it by the negligent party or the negligence confessed. A leaky roof is not a "latent defect." § 95.11(3)(c), Fla. Stat. (1981). When a newly finished roof leaks it is not only apparent, but obvious, that someone is at fault: the architect, if the design is defective; the roofing contractor, if the installation is defective; the roofing material supplier, if the roofing material is defective, or some combination of them.
The notion that a cause of action against a professional does not accrue so long as the
If more than a leaky roof is necessary to suggest to the landowner that it may have a cause of action against someone for a construction defect and, as the majority apparently holds, the statute of limitations does not run against a professional until the client subjectively realizes that the injury was caused by the professional rather than some other possible source, then in this case the memorandum from the school's head of maintenance, Mr. Muse, in 1973 serves that purpose when it states that "there were no provisions made in the roof itself to prevent the material from cracking due to expansion." This is a clear reference to the architect's failure to design proper expansion joints in the roof and is, in my opinion, sufficient to sustain the summary judgment. I would affirm.
On April 5, 1973 —
On October 30, 1973 —
On February 11, 1974 —
On April 11, 1974 —
On July 16, 1974 —
On December 3, 1974 —