Third District Court of Appeal
State of Florida
Opinion filed May 10, 2017.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D16-2044
Lower Tribunal No. 16-3100
________________
Companion Property and Casualty Group,
Appellant,
vs.
Built Tops Building Services, Inc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Rosa I.
Rodriguez, Judge.
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.
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.
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.
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.
2
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.
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
1 We 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.
3
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.
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.
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.
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
4
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.
2 We 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.
5
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):
The Florida Supreme Court in Hillsboro defined “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.
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,
6
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.
Reversed and remanded for further proceedings.
7