Senate Bill sb2568c1
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Florida Senate - 2005 CS for SB 2568
By the Committee on Judiciary; and Senators Webster and Clary
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1 A bill to be entitled
2 An act relating to liability for products;
3 creating s. 768.1259, F.S.; defining terms;
4 providing that a seller of a product
5 manufactured in the United States may be
6 dismissed from an action for strict liability
7 for harm caused by a product; providing
8 exceptions; providing procedures related to
9 dismissal; requiring an affidavit to accompany
10 a motion to dismiss; prescribing the contents
11 of the affidavit; providing for discovery and a
12 hearing on the motion to dismiss; providing
13 conditions under which a seller may be held
14 liable as a manufacturer; providing an
15 effective date.
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17 Be It Enacted by the Legislature of the State of Florida:
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19 Section 1. Section 768.1259, Florida Statutes, is
20 created to read:
21 768.1259 Liability of sellers; dismissal of action.--
22 (1) As used in this section, the term:
23 (a) "Seller" means a person who sells a product as a
24 retailer, distributor, or wholesaler, or who otherwise
25 transfers a product to another for compensation.
26 (b) "Sealed container" means a box, container,
27 package, wrapping, encasement, or housing of any nature which
28 covers a product so that it would be unreasonable to expect a
29 seller to detect or discover the existence of a dangerous or
30 defective condition in the product.
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Florida Senate - 2005 CS for SB 2568
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1 (2) A seller in an action for strict liability for
2 harm caused by a product, whose liability is based solely on
3 the status of a seller, may be dismissed from the action as
4 provided in this section.
5 (3) This section shall apply to any product liability
6 claim in which another defendant, including the manufacturer,
7 is properly before the court, and from whom total recovery may
8 be had for the plaintiff's claim.
9 (4) In the absence of an express warranty to the
10 contrary, a seller may be dismissed in circumstances where the
11 seller acquires the product in a sealed container and sells
12 the product in the same sealed container, unless:
13 (a) The seller had knowledge or reason to know of a
14 defect or dangerous condition in the product;
15 (b) The seller altered, modified, or installed the
16 product;
17 (c) The seller provided the plans or specifications
18 for the manufacturer for preparation of the product;
19 (d) The seller is a subsidiary of the manufacturer, or
20 the manufacturer is a subsidiary of the seller;
21 (e) The seller sold the product after the expiration
22 date placed on the product or its package by the manufacturer;
23 (f) The seller sold the product at a time when the
24 product was under a safety recall; or
25 (g) The product was manufactured, in whole or in part,
26 outside the United States.
27 (5) A defendant seller may move for dismissal under
28 this section within the time for filing an answer or other
29 responsive pleading unless permitted by the court at a later
30 time for good cause shown. The motion shall be accompanied by
31 an affidavit stating that:
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Florida Senate - 2005 CS for SB 2568
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1 (a) The product was manufactured, in whole or in part,
2 in the United States;
3 (b) The seller received, stored, displayed, and sold
4 the product in a sealed container and had no reasonable
5 opportunity to inspect the product for defects;
6 (c) The seller had no knowledge or reason to know of a
7 defect or dangerous condition in the product;
8 (d) The seller did not alter, modify, or install the
9 product;
10 (e) The seller did not provide the plans or
11 specifications for the manufacturer for preparation of the
12 product;
13 (f) The seller is not a subsidiary of the manufacturer
14 and the manufacturer is not a subsidiary of the seller;
15 (g) The seller sold the product before the expiration
16 date placed on the product or its package by the manufacturer;
17 and
18 (h) The seller is aware of no fact or circumstance
19 upon which a verdict might be reached against him or her.
20 (6) The parties shall have 60 days in which to conduct
21 discovery on the issues raised in the motion and affidavit.
22 The court, for good cause shown, may extend the time for
23 discovery, and may enter a protective order pursuant to the
24 rules of civil procedure regarding the scope of discovery on
25 other issues.
26 (7) Any party may move for a hearing on a motion to
27 dismiss under this section. If the requirements of this
28 section are met, and no party comes forward at such a hearing
29 with evidence of facts that would render the defendant seeking
30 dismissal under the section liable on some basis other than
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Florida Senate - 2005 CS for SB 2568
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1 his or her status as a seller, the court shall dismiss without
2 prejudice the claim as to that defendant.
3 (8) Notwithstanding the provisions of this section, a
4 product seller may be liable as a manufacturer if:
5 (a) The manufacturer has no identifiable agent,
6 facility, or other presence in the United States;
7 (b) The manufacturer is not subject to service of
8 process in any state in which the action could have been
9 brought and service cannot be secured by a Florida long-arm
10 statute; or
11 (c) The manufacturer is otherwise immune from suit.
12 Section 2. This act shall take effect July 1, 2005,
13 and applies to causes of action accruing on or after that
14 date.
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 Senate Bill 2568
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4 This committee substitute:
5 -- Defines the term "sealed container";
6 -- Limits a seller's immunity from liability to that of
strict liability and requires that the seller bought and
7 sold the product in the same sealed container;
8 -- Expands instances in which a seller may still be liable,
to include where the seller knew or had reason to know of
9 a dangerous defect, the seller installed the product, the
seller provided plans or specifications for manufacture
10 of the product, the seller and the manufacturer are in a
subsidiary relationship, the seller sold the product
11 after its listed expiration date or after it was under a
recall, or the product was manufactured at least
12 partially outside of the United States;
13 -- Requires the seller to attach an affidavit containing
specific representations to a motion to dismiss;
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-- Provides for 60 days of discovery, extendable upon good
15 cause, and provides for dismissal;
16 -- Additionally specifies that the seller remains subject to
liability where the manufacturer does not have an
17 identifiable agent in the United States or is otherwise
immune from suit; and
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-- Clarifies that the effective date applies to all causes
19 of action accruing after that date.
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