Florida/Georgia Personal Injury & Workers Compensation

...of great public interest. F.A.R. 4.5(c) (6); further, Ordered that the question certified is as as follows: "Do implied warranties of fitness and merchantability extend to the purchasers of new condominium homes from builder-sellers." NOTES [1] Sec. 672.316(2), F.S....

...1970, 262 A.2d 461. Washington — House v. Thornton, 1969, 76 Wash.2d 428, 457 P.2d 199. [6] Ch. 672.314, F.S. 1969, F.S.A. and Ch. 672.315, F.S. 1969, F.S.A. 672.314 Implied warranty: merchantability; usage of trade "(1) Unless excluded or modified (§ 672.316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind......

...First, chapter 69-157 has nothing to do with either medical malpractice or the statute of limitations. Rather, it created a "blood shield" statute within Florida's Uniform Commercial Code for the purpose of eliminating actions for strict liability against blood banks. See § 672.316(5), Fla. Stat. (1989). Section 672.316(5) was enacted to limit the Uniform Commercial Code warranties in the context of the sale of blood by declaring such a sale to be a "service." [3] There is no evidence to suggest that the legislature intended this legal fiction (that...

...titution. [2] We also note that all the testing and processing by the blood bank is performed on the donated blood. Thus, the testing and processing is performed on someone else's blood, not on the ultimate recipient or on the recipient's blood. [3] Section 672.316(5), Florida Statutes (1989), provides: The procurement, processing, storage, distribution, or use of whole blood, plasma, blood products, and blood derivatives for the purpose of injecting or transfusing the same, or any of them, into...

...If the property covered by this contract is a new motor vehicle, Seller hereby confirms its written warranty against defective materials or workmanship, where such warranty has been made by the Seller." This language must be examined in the light of the requirements contained in Fla. Stat. § 672.316(2), F.S.A., Exclusion or Modification of Warranties....

...ovisions of the contract, was not in bold type and did not comply with the provisions in the statute. The Third District, in the recent case of Orange Motors of Coral Gables v. Dade Co. Dairies, Fla.App. 1972, 258 So.2d 319, said at page 320: "Under § 672.316(2), Fla....

...The disclaimer in the instant case was in the same color and size of type used for other provisions of the contract." (Citations omitted.) This question has been answered and requires no further elaboration. Brooks-Massey urges that the reasoning behind Fla. Stat. § 672.316 was not violated in that purchaser was not surprised at the exclusion of the warranties because he stated on deposition that he had read the contract, including the disclaimer clause....

...ion. We, therefore, hold that the lower court erred in granting judgment on the pleadings as to the dealer Brooks-Massey. The disclaimer clause in the retail installment contract is ineffective because it does not meet the requirements of Fla. Stat. § 672.316(2), F.S.A....

...Chrysler Corporation has urged that a manufacturer may disclaim the warranties of merchantability and fitness, and that their warranties are limited to replacement of defective parts and correction of defective workmanship. We do not agree. *456 Fla. Stat. § 672.316, F.S.A....

...express or implied warranties and personal injuries claims; this warranty is given in lieu of all warranties, conditions and liabilities whatsoever given by BMH (USA) Inc., its servants or agents or implied by common law statute or otherwise." Under § 672.316(2), Fla....

...leases of equipment may be "transactions in goods" within the definition in section 672.101 for the purpose of applying section 672.302, Capital Associates, Inc. v. Hudgens, 455 So.2d 651 (Fla. 4th DCA 1984) (unconscionable contracts), and applying section 672.316, Xerographic Supplies Corp....

...Plaintiffs argue that the first question is controlled by the Uniform Commercial Code (U.C.C.), Section 672.314, Florida Statutes; that the second question is answered by the common law of implied warranties. Section 672.314, Florida Statutes provides: (1) Unless excluded or modified (§ 672.316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind....

...unit and among all units involved; and (e) Are adequately contained, packaged, and labeled as the agreement may require; and (f) Conform to the promises or affirmations of fact made on the container or label if any. (3) Unless excluded or modified (§ 672.316) other implied warranties may arise from course of dealing or usage of trade....

...In both cases the court also found that the limitation or exclusion of warranty was not conspicious. The Rehurek court found that the disclaimer clause appeared in small print in paragraph six on the back page of the contract and did not comply with § 672.316(2), Fla....

...Plaintiffs' inability to identify the specific defendant that manufactured the contaminated Factor VIII which allegedly infected the Ray boys with the AIDS virus renders Counts I, II, IV, and V of Plaintiffs' Third Amended Complaint inapplicable. Similarly, Counts III and VI, which allege a claim under Florida Statutes Section 672.316(5), must also fail....

...the remedies available. [8] Council Bros., Inc. v. Ray Burner Co., 473 *1319 F.2d 400, 406 (5th Cir.1973) [9] (holding that written warranty may limit a remedy to repair or replacement of parts so long as limitation is clearly expressed); Fla. Stat. § 672.316 ("Remedies for breach of warranty can be limited in accordance with the provisions of this chapter on liquidation or limitation of damages and on contractual modification of remedy."); Fla....

...lternative UCC remedies may be available. Fla. Stat. § 672.719; Griffis v. Leisure Tyme RV, Inc., 884 So.2d 241, 243 (Fla.Dist.Ct.App.2004); see also Pinellas Suncoast Transit Authority v. Mincom, Inc., 2007 WL 1222595 (M.D.Fla. 2007) (holding that § 672.316 and § 672.719 stand for the principle that parties to a contract may properly limit the remedies for a breach-of-warranty to repair and replacement when such limitations are reasonable, but noting that the limitation is not valid when the limitation causes the product to fail of its essential purpose)....

...Accordingly, we apply the Florida Uniform Commercial Code ("UCC"). It is clear under Florida law that "[t]he [UCC] contemplates that a seller may disclaim warranties as long as the buyer reasonably understands this is being done." Knipp v. Weinbaum, 351 So.2d 1081, 1084-85 (Fla. 3d DCA 1977). Section 672.316(2), Florida Statutes (1999), instructs that, "to exclude or modify the implied warranty of merchantability or any part of it, the language must mention merchantability and in case of a writing must be conspicuous; and to exclude or mo...

...N OF THE BOAT TO BE MADE OR HAS BEEN GRANTED SUFFICIENT TIME TO HAVE SUCH A SURVEY MADE AND HAS WAIVED SUCH SURVEY AND, THEREFORE, RELIES ENTIRELY ON SUCH SURVEY OR UPON HIS OWN INSPECTION OF BOAT AND PURCHASES THE BOAT "AS-IS". Relevant portions of section 672.316, Florida Statutes (1981), provide: 1) Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate a limit warranty shall be construed wherever reasonable as consistent with each other; but s...

...rchant with respect to goods of that kind. Sec. 672.314, Fla. Stat. The warranty disclaimer as to a new boat effectively excludes the implied warranty of merchantability, as it contains the word "merchantability" and is set forth conspicuously. Sec. 672.316, Fla....

...ular purpose. Under Florida and Code law, all implied warranties, whether of merchantability or fitness for a purpose, are excluded, unless the circumstances indicate otherwise, by any language making it plain that there is no implied warranty. Sec. 672.316(3)(a), Fla....

...1984), nor does it create a contractual obligation which can serve as a basis for a buyer's later revocation of acceptance. Should we hold otherwise, an automobile dealer would effectively be precluded from disclaiming responsibility for the warranties of the manufacturer, despite the fact that section 672.316, Florida Statutes, authorizes a dealer to do so....

...f $18,970.17, which included his down payment of $2,066.25. [4] An "as is" disclaimer means that goods are sold "with all faults" and has the effect of excluding all implied warranties, but not express warranties created in the same transaction. See § 672.316(3)(a), Fla....

...Heitner & Rosenfeld and Allan Stein and Mindy Rodney, North Miami Beach, for appellee. Before BARKDULL, SCHWARTZ and NESBITT, JJ. NESBITT, Judge. The issue presented by this appeal is whether a disclaimer of warranty was conspicuous as defined by Section 671.201(10), Florida Statutes (1979) and therefore effective under Section 672.316, Florida Statutes (1979) to exclude or modify an implied warranty of fitness. We find that the disclaimer is conspicuous. The pertinent provisions of Section 672.316, supra, provide: 672.316 Exclusion or modification of warranties....

...express or implied warranties. Rehurek v. Chrysler Credit Corporation, 262 So.2d 452 (Fla. 2d DCA), cert. denied, 267 So.2d 833 (Fla. 1972). The only question is whether the manner of communicating this disclaimer makes it conspicuous as required by Section 672.316, supra, and defined by Section 671.201(10), supra....

...The reference on the front of the document to terms and conditions stated on the back, when coupled with the separate paragraph titled, "Disclaimer of Warranties," and the contrasting type, clearly causes this disclaimer to fall within the requirements of 672.316, supra....

...The appellee undoubtedly breached an implied warranty that the radio equipment it supplied the appellants was fit for the purpose intended. The trial judge presumably held, however, that the warranty was effectively excluded by a written disclaimer. The court agrees with this conclusion. I cannot. Under Section 672.316, Fla....

...On appeal, the District Court of Appeal affirmed per curiam without opinion. We are aware of the fact that the law in most jurisdictions is that the handling of blood is a service not subject to strict liability as opposed to a sale. This has also become the law in Florida with the passage of Florida Statutes § 672.316(5), F.S.A....

...the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose. Section 672.316(3)(b), Florida Statutes (1989) provides for the exclusion of the implied warranty: When the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goo...

...ticular glasses. Although aware they lacked a headstrap or similar device to prevent their slippage, Light found the glasses satisfactory. Accordingly, the implied warranty of fitness for a particular purpose (assuming it did arise), was excluded by section 672.316(3)(b)....

...or a particular purpose [3] , allow their exclusion or modification if certain requirements are met. The language rejecting implied warranties of merchantability must mention merchantability and, if it is in writing, the writing must be conspicuous. § 672.316(2), Fla.Stat. (1977). An implied warranty of fitness for a particular purpose may be rejected by conspicuous writing. § 672.316(2), Fla.Stat....

...ir requirements protect the implied warranties as well as provide for their waiver. The exclusions in all four contracts are effective. *827 Florida also allows contracts to limit damages recoverable for breach of warranty and breach of contracts. §§ 672.316(4) and 672.719, Fla.Stat....

...The Uniform Commercial Code provides that to exclude an implied warranty of merchantability, a writing must be conspicuous and must mention merchantability. To exclude an implied warranty of fitness, the exclusion must be in writing and conspicuous. U.C.C. § 2-316; § 672.316, Fla....

...mmercial Code because the disclaimer appeared in a document executed after delivery of the bulldozer, and was not a part of the bargain between the parties. The trial court disagreed, finding that the disclaimer was conspicuous within the meaning of section 672.316, Florida Statutes (1985), and effectively removed the property from the implied warranty provisions of the Florida Uniform Commercial Code....

...ble. § 672.314(1), Fla. Stat. (1985). However, a seller may limit his liability exposure by disclaiming the implied warranty of merchantability, provided the disclaimer mentions merchantability, and in the case of a writing, that it be conspicuous. § 672.316(2)....

...3rd DCA 1981), and Monsanto Agr. Products Co. v. Edenfield, 426 So.2d 574 (Fla. 1st DCA 1982), it fails to mention "merchantability." The issue, then, is whether this omission renders the attempted disclaimer ineffective. We conclude that it does. We are not unmindful of section 672.316(3)(a), which provides: "Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like `as is,' or `with all faults,' or other language which in common understanding calls the buyer's attention to...

...there is no implied warranty... ." At first blush, it might appear that under this section the *654 clause found in the contract was sufficient to disclaim all implied warranties because the language "makes plain that there is no implied warranty." § 672.316(3)(a). However, to permit a disclaimer couched in the terms used here to negate the implied warranty of merchantability would effect a literal rewriting of section 672.316(2) to exclude the requirement that the disclaimer mention "merchantability." In Rehurek v....

...RRANTIES EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN USUAL FACTORY WARRANTIES MADE BY THE MANUFACTURER. Xerographic contends that this disclaimer was in compliance with requirements of Section 672.316(2) and 671.201(10), Florida Statutes (1975), and therefore should have been given effect....

...[2] The trial court, however, held that the disclaimer of warranties in the Xerographic/Kenworthy contract was "ineffective as a matter of law under the circumstances involved in this case." We find this to be error and reverse. Having complied with the requirements of Section 672.316(2), Florida Statutes (1975), Xerographic had effectively disclaimed all warranties for the copier in its contract of sale with Kenworthy....

...based on a theory that Xerographic breached certain warranties. The final judgment on the cross-claim must be and is reversed. NOTES [1] Mr. Kenworthy, not a party to this appeal, was the user of the copier and plaintiff in the main claim below. [2] Section 672.316(2) sets forth the language that must be included in any valid disclaimer as well as the requirement that the disclaimer be conspicuous....

...eld that it was liable under the implied warranty doctrine. Holding that the transaction was a sale and not a service, the court in Benitez observed that the transaction giving rise to the claim occurred prior to the enactment of Chapter 69-157, now Section 672.316(5), Florida Statutes....

...ess and merchantability if the breach is accompanied by the failure to exercise reasonable care in detecting or removing a defect in the blood by the use of reasonable scientific procedures or techniques. Accordingly, we hold that the application of Section 672.316(5), Florida Statutes, provides that a plaintiff may maintain an action for damages on the ground of breach of implied warranty of fitness or merchantability only if he alleges and proves that the defect of which he complains is detectable or removable by the use of reasonable scientific procedures or techniques....

...B. The treating doctors made entries in the hospital records indicating the transfused blood was the source of the virus. Appellant sued appellee as well as the hospital. Originally, appellants alleged negligence and breach of implied warranty under section 672.316(5), Florida Statutes (1989); however, appellants dropped the allegation of negligence....

...any consideration is given therefor; and the implied warranties of merchantability and fitness for a particular purpose are not applicable as to a defect that cannot be detected or removed by a reasonable use of scientific procedures or techniques. § 672.316(5), Fla....

...We reject appellee's position, accepted by the trial court, that it was necessary for appellants to show appellee was negligent in its testing. To us, the hybrid statute is clear on that issue. The Florida Supreme Court has held that the law of this state prior to the enactment of section 672.316(5) was that blood suppliers were strictly liable for defects in blood, under breach of implied warranties, even when the defect was undetectable. Rostocki v. Southwest Florida Blood Bank, Inc., 276 So.2d 475 (Fla.1973). Section 672.316(5) was clearly an effort by the legislature to limit implied warranty actions against blood suppliers....

...ded unless the statute is explicit in this regard. 30 Fla. Jur. Statute, Sec. 130. Carlile v. Game & Fresh Water Fish Comm'n, 354 So.2d 362, 364 (Fla.1977). The only limitation on implied warranty cause of actions specified and plainly pronounced in section 672.316(5) is that they "are not applicable as to a defect that cannot be detected or removed by a reasonable use *1016 of scientific procedures or techniques." [1] The statute does not specify or state that the plaintiff must allege and prov...

...ct or remove, while maintaining liability for defects that can be detected or removed. We agree with the actual holding in Williamson v. Memorial Hospital of Bay County, 307 So.2d 199 (Fla. 1st DCA 1975): Accordingly, we hold that the application of Section 672.316(5), Florida Statutes, provides that a plaintiff may maintain an action for damages on the ground of breach of implied warranty of fitness or merchantability only if he alleges and proves that the defect of which he complains is detectable or removable by the use of reasonable scientific procedures or techniques....

...t that the seed was defective. Therefore, it is immaterial whether the seed tags may have created an express warranty, because Pennington breached its implied warranties of merchantability and fitness. We reject Pennington's theory based on Sections 672.316 and 672.719, that the "warranty" printed on each bag disclaimed any implied warranties or limited the recoverable damages to the value of the seeds....

...We find the disclaimer ineffective under the circumstances of this case because it amounted to a post-contract, unbargained-for unilateral attempt to limit Pennington's obligations under the contract. We agree in principle with the Kansas Supreme Court which, upon examining that state's statute similar to Florida's Section 672.316, stated: The very purpose of the statutory requirement is that any limitation be brought to the attention of the buyer at the time the contract is made....

...151, 281 N.W.2d 536 (1979), or if the farmers knew of such non-warranty at the time the sale was made, with proof of knowledge being either direct or indirect through evidence of trade custom or course of dealing. [1] See Klein, et al. v. Asgrow Seed Company, et al., 246 Cal. App.2d 87, 54 Cal. Rptr. 609 (3d DCA 1966); Section 672.316(3)(d)....

...ost. Furthermore, "[w]hen the buyer before entering into the contract has examined the goods ... as fully as he desired ... there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him." § 672.316(3)(b), Fla....

...ability statute of limitation, Fla.Stat. § 95.11(3)(e), but is instead Florida's four-year negligence statute of limitation, Fla.Stat. § 95.11(3)(a). Armour reaches this conclusion because it claims that Florida's "blood-shield" statute, Fla.Stat. § 672.316(5), precludes strict products liability and warranty actions relating to the processing and distribution of blood derivatives....

...to Jason's personal injury cause of action. A. The Applicable Statute of Limitation Relying primarily upon Silva v. Southwest Florida Blood Bank, Inc., 601 So.2d 1184, 1188 (Fla.1992), Armour claims that Florida's "blood-shield" statute, Fla. Stat. § 672.316(5), precludes strict products liability and warranty actions relating to the processing and distribution of blood derivatives....

...deration is given therefor; and the implied warranties of merchantability and fitness for a particular purpose are not applicable as to a defect that cannot be detected or removed by a reasonable use of scientific procedures or techniques. Fla.Stat. § 672.316(5)....

...he statute of limitations. Rather, it created a `blood shield' statute within Florida's Uniform Commercial Code for the purpose of eliminating actions for strict liability against blood banks." Silva, 601 So.2d at 1188. The court further stated that § 672.316(5) "was enacted to limit the Uniform Commercial Code ["U.C.C."] warranties in the context of the sale of blood by declaring such a sale to be a `service'." Id....

...egal fiction (that selling blood is a `service' rather than a `sale') to apply in any other context." Id. In discussing the legislative purpose of Florida's "blood-shield" statute, the Supreme Court of Florida in Silva thus stated unequivocally that § 672.316(5) was enacted to eliminate actions for strict liability against blood banks and to limit U.C.C....

...The Florida legislature undoubtedly had specific public policy reasons for taking these actions to protect blood banks that were supplying blood at a time when they presumably had no way of knowing whether the blood contained a defect. The Supreme Court of Florida clearly did not state that § 672.316(5) was also enacted, as Armour maintains, to convert failure-to-warn products liability claims against pharmaceutical manufacturers into ordinary negligence claims. As I noted in my January 19, 1993, bench ruling on this issue, to uphold Armour's claim that § 672.316(5) eliminated such products liability claims would be applying the "legal fiction" that selling blood is a "service" rather than a "sale" in a totally unrelated context. To do so would be to act contrary to the legislative purpose of § 672.316(5), as specifically stated by the Supreme Court of Florida in Silva. This I decline to do. Neither the plain meaning of the statutory language of Florida's "blood-shield" statute, § 672.316(5), nor the Supreme Court of Florida's discussion in Silva of this statute's legislative purpose lends any credence to Armour's position that § 672.316(5) limits failure-to-warn products liability claims against pharmaceutical companies. Moreover, the other cases that Armour cites do not support this position. [3] The Florida appellate court's discussion of the statutory purpose of § 672.316(5) in Sicuranza v....

...The appellate court reversed, holding that plaintiff did not have to prove that the defect in the blood was detectable or removable by reasonable scientific procedures or techniques to recover in tort. The Sicuranza court based its holding on its statutory interpretation that § 672.316(5) "does not, on its face, apply to tort actions such as negligence" (emphasis added). Instead, by its own terms, § 672.316(5) pertains " only to allegations of breach of implied warranties of fitness and merchantability" (emphasis added). *1474 Sicuranza, 582 So.2d at 55-56. [4] In the case presently before me, plaintiff brought a failure-to-warn products liability claim, not a claim for breach of an implied warranty of fitness or merchantability. I conclude that Fla.Stat. § 672.316(5), Florida's "blood-shield" statute, has not in any way limited plaintiff's ability to bring such a claim nor converted such a claim into a pure negligence action....

...denied, 386 So.2d 633 (Fla.1980), in which the court refused to apply the medical malpractice statute of limitations to an action by a donor against a blood bank. See also Rostocki v. Southwest Florida Blood Bank, Inc., 276 So.2d 475 (Fla.1973), in which the court held that, where the action arose before passage of § 672.316(5), the sale of blood constituted sale of a product, and defendant blood bank was subject to strict liability. See also Williamson v. Memorial Hospital of Bay County, 307 So.2d 199 (Fla. 1st DCA 1975), in which the court held that, under § 672.316(5), a plaintiff could maintain an action on the theory of implied warranty against the hospital and physicians who sold and administered infected blood to her only if she alleged and proved that the defect was detectable or removable by the use of reasonable scientific procedures or techniques....

...See also Doe v. American Nat'l Red Cross, 798 F.Supp. 301 (E.D.N.C.1992) (applying North Carolina law) and Kaiser v. Memorial Blood Center, Inc., 486 N.W.2d 762 (Minn.1992) (applying Minnesota law), in which the courts did not rule on the purpose of Fla.Stat. § 672.316(5), since that issue was not before them....

...n in Williamson v. Memorial Hospital of Bay County, 307 So.2d 199 (Fla. 1st DCA 1975). In Sicuranza, the court, while clarifying a possible ambiguity in its earlier decision, reiterated that Williamson, "when read in its entirety, properly construes section 672.316(5) as pertaining only to allegations of breach of implied warranties of fitness and merchantability." Sicuranza, 582 So.2d at 56 (emphasis added)....

...Nor has either of the parties called our attention to a statute indisputably doing so. We do know from other statutes that when the legislature wants to require specific contractual provisions waiving civil remedies, they know how to do so. See, e.g., § 672.316(2), Fla....

...hout merit because all implied warranties were effectively waived. A seller may exclude implied warranties by an express and conspicuous provision referring to either the implied warranty of merchantability or implied warranty of fitness. Fla. Stat. § 672.316(2)....

...ty. Fla. Stat. § 672.607. Furthermore, when a buyer has examined goods before entering into the contract or has refused to examine the goods, there is no implied warranty with respect to defects that the examination should have revealed. Fla. Stat. § 672.316(3)(b)....

...vide treatment for those who receive their blood. Consequently, as we will explain later, we disagree with Durden and therefore reject Silva's reliance on that case. In the enacting provision of what has come to be known as the blood shield statute, § 672.316(5), Fla....

...In summary, we believe that Motor Homes did not issue or adopt any written warranty which would subject it to the provision of the Act allegedly violated. Furthermore, there was no basis for an implied warranty claim since the sales contract between Motor Homes and the O'Donnells contained an adequate disclaimer. § 672.316, Fla....

...lied by the appellee containing the human immunodeficiency virus (HIV). Three of the four counts sought recovery on warranty theories; the other, count I, alleged negligence. The trial court granted summary judgment in favor of the appellee based on section 672.316(5), Florida Statutes....

...are applicable to blood banks at the time of the events alleged by plaintiff to have injured her. Therefore, if screening procedures are " scientific procedures or techniques " for the detection of the human immunodeficiency virus as contemplated by Section 672.316(5), Florida Statutes, the court would deny the motion for summary judgment....

...1st DCA 1975), the court finds that the defendant cannot be held responsible for its failure to detect the presence of the human immunodeficiency virus in a blood donation.... (Emphasis supplied.) Appellant takes issue with the summary judgment only as it relates to the negligence count. Section 672.316(5) provides as follows: The procurement, processing, storage, distribution, or use of whole blood, plasma, blood products, and blood derivatives, for the purpose of injecting or transfusing the same, or any of them, into the human bod...

...In Williamson, this court was asked to answer the certified question of whether a plaintiff may maintain an action on a theory of implied warranty against the hospital and physicians who administered blood contaminated with serum hepatitis. In answering this question, this court observed that prior to the enactment of section 672.316(5), a blood bank could be held for breach of an implied warranty but a hospital could not. [1] However, by virtue of section 672.316(5), a cause of action for breach of implied warranty against a blood bank could no longer be asserted in its traditional form....

...nion preceding the sentence at issue. We concede that the use of the phrase "or negligence" in the sentence above creates some ambiguity as to *56 the meaning of this particular passage, but the opinion, when read in its entirety, properly construes section 672.316(5) as pertaining only to allegations of breach of implied warranties of fitness and merchantability....

...time the tainted blood was drawn and administered to the appellant. [2] Because issues of material fact remain, and because we find that the trial court was incorrect in its assumption that a plaintiff alleging negligence would have to prove, under section 672.316(5), that a defect was detectable or removable by reasonable scientific procedures or techniques, summary judgment was improperly rendered....

...In its analysis, the supreme court decided that the words "diagnosis," "treatment," and "care" were unambiguous and, because the blood bank did not deal with patients, it was merely "the supplier of a product." Id. at 1187. The supreme court referred to section 672.316(5), Florida Statutes (1981), acknowledging that the Legislature, in one context, declared the sale of blood to be a service; however, it further posited: "There is no evidence to suggest that the legislature intended this legal fictio...

...iency Syndrome (AIDS) virus as a result of their use of plasma products manufactured by Defendants. Plaintiffs have raised claims of negligent manufacture, negligent failure to warn, and breach *1125 of implied warranty pursuant to Florida Statutes, Section 672.316(5)....

...As a result, the Court finds that Plaintiffs are unable to prove the proximate cause requisite to establishing a cause of action in negligence. In Counts III and VI of Plaintiffs' Third Amended Complaint, Plaintiffs allege a claim under Florida Statutes Section 672.316(5)....

...rvice and does not constitute a sale ... and the implied warranties of merchantability and fitness for a particular purpose are not applicable as to a defect that cannot be detected or removed by a reasonable use of scientific procedures or techniques. 672.316(5) Fla.Stat....

...ufactured the plasma product that infected the Ray boys. Since Plaintiffs cannot prove an injury proximately caused by Defendants' alleged failure to detect or remove the AIDS virus from the plasma products, a cause of action under Florida Statutes, Section 672.316(5) cannot be sustained....

...liability cause of action where two parties are in privity of contract. [3] That warranty is found in § 2-314 of the Uniform Commercial Code, and is codified in Fla. Stat. § 672.314, in pertinent part as follows: "(1) Unless excluded or modified (s.672.316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind....

...However, the opinion was primarily concerned with the lack of any warranty in the first place. [5] Celebrity has also argued that, even under Florida law, Bird's claim must fail because the parties' contract effectively disclaims all warranties. This Order does not address the sufficiency of the disclaimer under Fla. Stat. § 672.316....

...Melroe Manufacturing Co., 238 So.2d 142 (Fla. 1st DCA 1970); Royal v. Black & Decker Manufacturing Co., 205 So.2d 307 (Fla. 3d DCA 1968), cert. denied, 211 So.2d 214 (Fla.1968); Wisner v. Goodyear Tire & Rubber Co., 167 So.2d 254 (Fla. 2d DCA 1964). Section 672.316(3)(b), Florida Statutes (1989).

...Smith, 610 So.2d 597, 599 (Fla. 1st DCA 1992) (holding that “[WJhere a dealer has properly disclaimed all warranties, the delivering, presenting, or explaining of a manufacturer’s warranty, without more, does not render the dealer a co-warrantor by adoption.”); § 672.316, Fla....

...There seems no dispute below that appellant is a merchant with respect to this type of machinery, or that the defect rendered the grader unmerchantable. Thus, appellant breached the implied warranty of merchantability unless some other provision negates the warranty. Section 672.316(3)(b), Florida Statutes (1979), provides: When the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is *1301 no implied warranty wit...

...lied warranties of merchantability and fitness for a particular purpose. See McCormick Machinery, Inc. v. Johnson & Sons, Inc., 523 So.2d 651 (Fla. 1st DCA 1988); Rudy’s Glass Constr. Co. v. E.F. Johnson Co., 404 So.2d 1087 (Fla. 3d DCA 1981). Section 672.316(2), Florida Statutes (1997), provides that in order to exclude the warranty of merchantability, the language must mention merchantability and the writing must be conspicuous....