Florida/Georgia Personal Injury & Workers Compensation

...clude any breach of warranty claims. As a condition precedent to recovery for breach of warranty, a buyer must notify the seller of the breach “within a reasonable time after he discovers or should have discovered any breach .... ” Fla.Stat.Ann. § 672.607....

...problems. These complaints related to the alleged express warranties regarding useful life and maintenance costs and were “sufficient to let the seller know that the transaction [was] still troublesome and [needed to] be watched.” Fla.Stat.Ann. § 672.607, Official Comment 4....

...ich the goods were purchased by the buyer and that the buyer relied on the seller’s judgment in providing suit *1231 able goods. Section 672.315, Florida Statutes; (4) Facts in respect to the breach of the warranty; (5) Notice to seller of breach. Section 672.607(3)(a), Florida Statutes; (6) The injuries sustained by the buyer as a result of the breach of warranty....

...the seller have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty. Fla. Stat. 672.313. [5] Section 672.607(3), Florida Statutes, provides in relevant part that "[w]here a tender has been accepted: (a) The buyer must within a reasonable time after he or she discovers or should have discovered any breach notify the seller of breach or be bar...

...[6] The complaint makes no allegations one way or the other, and thus must be viewed as deficient. The defendant also asserts that the complaint is deficient because it fails to allege notice to the seller of breach, again citing Dunham-Bush, supra . According to Dunham-Bush, this requirement flows from § 672.607(3)(a), which provides that a buyer who has accepted a tender of goods must notify the seller within a "reasonable time" after he discovers or should have discovered a breach, or he will be barred from remedy. While the applicability of this provision is straightforward in cases, such as Dunham-Bush, in which the buyer claims that the goods tendered by the seller are defective and seeks to avoid the contract price, no Florida case has decided whether § 672.607(3)(a) is applicable to products liability actions....

...ters, see Official Comment 5 to § 672.2-607, 19A Fla.Stat.Ann. 407 (1966), the Court will *64 adopt it, and hold that if either of the plaintiffs is the "buyer", within the meaning of § 672.103(1)(a), then the complaint must allege compliance with § 672.607(3)(a) if it is to state a cause of action for breach of implied warranty....

...Atlanta Coca-Cola Bottling Company, 127 Ga.App. 619, 194 S.E.2d 513 (1972). [7] Accordingly, if neither of the plaintiffs had privity of contract with American Honda in the sale of the subject motorcycle, the complaint need not allege compliance with § 672.607(3)(a)....

...e cattle. Rather, they sought damages for non-conformity as provided in §~ 672.714 and 672.715. Thus, the section on revocation of acceptance, even if it required a substantial non-conformity, 15 is simply inapplicable to this case. In this regard, § 672.607, which relates to rejection of tendered goods (which, although permissible in broader circumstances than revocation of acceptance, is similar in effect to revocation) is relevant and provides that "......

...r requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; 10 .Section 672.714(1) provides: Where the buyer has accepted goods and given notification (§ 672.607(3)) he may recover as damages for any non-conformity of tender the loss resulting in the ordinary course of events from the seller’s breach as determined in any manner which is reasonable....

...The pertinent statutes read as follows: "672.606 What constitutes acceptance of goods (1) Acceptance of goods occurs when the buyer: * * * * * * (b) Fails to make an effective rejection (§ 672.602(1)), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or ... "672.607 Effect of acceptance; notice of breach; burden of establishing breach after acceptance; notice of claim or litigation to person answerable over * * * * * * (3) Where a tender has been accepted: (a) The buyer must within a reasonable time afte...

...scovers or should have discovered any breach notify the seller of breach or be barred from any remedy; and * * * * * * "672.714 Buyer's damages for breach in regard to accepted goods *22 (1) Where the buyer has accepted goods and given notification (§ 672.607(3)) he may recover as damages for any nonconformity of tender the loss resulting in the ordinary course of events from the seller's breach as determined in any manner which is reasonable....

...suit for breach of warranty." A contractual provision permitting the buyer to have thirty days within which to inspect and reject the delivery of materials cannot be construed to be such a term. Following the acceptance of a tender under Fla. Stat. § 672.607(3)(a), the buyer is required to notify the seller of a breach within a reasonable time after he discovers or should have discovered it....

...r which the goods were purchased by the buyer and that the buyer relied on the seller's judgment in providing suitable goods. Section 672.315, Florida Statutes (1975); 4) Facts in respect to the breach of the warranty; 5) Notice to seller of breach. Section 672.607(3)(a), Florida Statutes (1975); 6) The injuries sustained by the buyer as a result of the breach of warranty....

...On appeal York contends that the judgment should have compensated it for the full amount of its assumed obligation to Country Club. Paramount cross-appeals and argues that because neither Country Club nor York gave notice of the alleged breach until after destruction of the goods, York is barred from any remedy under Section 672.607(3)(a), Florida Statutes (1979) (U.C.C. § 2-607[3][a] [1972 version]). We address the cross-appeal first because our disposition of it obviates discussion of the merits of York's appeal. Section 672.607(3)(a), Florida Statutes (1979), provides that "[t]he buyer must within a reasonable time after he discovers or should *1264 have discovered any breach notify the seller of breach or be barred from any remedy." This notice requirement is a valid precondition of imposing liability on a seller of goods....

...t in the latter part of July 1977. The first notice of the alleged breach to either Paramount or Suncoast was an August 1 letter from the president of York to Dingfelder of Paramount. There are several important reasons for the notice requirement of Section 672.607(3)(a)....

...ntrol of the other for the purpose of ascertaining the facts and preserving the evidence. See Owen v. Sears, Roebuck & Co., 273 F.2d 140 (9th Cir.1959). [3] York contends that notice after destruction of the goods constituted reasonable notice under Section 672.607(3)(a)....

...It also impaired Paramount's ability to determine if the goods were, in fact, marketable and, consequently, hindered it in preparing its defense. [5] Accordingly, York's failure to notify Paramount of the alleged breach prior to destruction ran counter to the purposes of Section 672.607(3)(a), Florida Statutes (1979), and barred York from any remedy for the alleged breach....

...For a discussion of the applicability of the notice provision under those circumstances, see J. White & R. Summers Uniform Commercial Code § 11-9 at 345 (1972). [3] Owen applied the notice provision of the Oregon Uniform Sales Act, Or. Rev. Stat. § 75.490. This section is identical to Section 672.607(3)(a), Florida Statutes (1979)....

...en “within a reasonable time after the [buyers] discovered or should have discovered [the breach].” The court’s instruction is a full and correct statement of the law tracking the statutory provision on proper notice of a breach. Fla.Stat.Ann. § 672.607(3) and official comment 4....

...at the complaint fails to allege the privity of contract required by Florida substantive law. They also assert that Plaintiffs gave the Defendants no "notice" of the alleged breach within a reasonable time after discovery as is required by Fla.Stat. § 672.607(3)(a) (1985)....

...gainst a product manufacturer by a foreseeable user of that product in the absence of privity." Kramer v. Piper Aircraft Corporation, 801 F.2d 1279, 1282 (11th Cir.1986). [*] Regarding the absence of notice to the Defendants as required by Fla.Stat. § 672.607(3)(a), the Florida courts have uniformly held that the notice requirements of § 672.607(3)(a) need not be complied with if Plaintiffs are merely warranty beneficiaries rather than buyers....

...Hilliard, 329 So.2d 44 (Fla.1st DCA 1976); Frank v. McCafferty Ford Company, 192 Pa.Super. 435, 161 A.2d 896 (Pa.Super. 1960). The facts reflect that appellee protected his right to damages by notifying the seller of the breach one month after purchase. See Section 672.607, Fla....

...Under the Code "it is the obligation of the seller to transfer and deliver and the obligation of the buyer to accept and pay in accordance with the contract." Fla. Stat. § 672.301 (2001). A buyer's failure to pay for goods "accepted" constitutes a breach of a sales contract. See Fla. Stat. § 672.607(1) ("The buyer must pay at the contract price for any goods accepted."); see also Fla....

...on (s.672.602(1)), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or (c) Does any act inconsistent with the seller's ownership. Fla. Stat. § 672.606(1). As to goods that are accepted, Fla. Stat. § 672.607 provides that: (1) The buyer must pay at the contract rate for any goods accepted....

...f $3,069. Appellant does not contest the finding that the aluminum shipment was not Coilzak but argues that appellee accepted the shipment and therefore was liable to pay for it. It does appear that appellee accepted the shipment and that thus under Section 672.607(1), Florida Statutes (1979), it was liable for the contract price. However, it notified appellant of the nonconforming use within a reasonable time after discovery according to the requirements of Section 672.607(3)(a), Florida Statutes (1979)....

...Therefore, defendant's motion to dismiss the complaint for breach of implied warranty is denied. The defendant also urges that plaintiffs have failed to give defendant notice of the alleged breach within a reasonable time after discovery as required by Florida Statute § 672.607(3)(a)....

...rs" of the product in question, but are rather warranty beneficiaries under Florida Statute § 672.318. Taylor v. American Honda Motor Co., 555 F.Supp. 59 (M.D. Fla.1982). Therefore, the Court finds that plaintiff was not bound under Florida statute § 672.607(3)(a), and his failure to give notice does not support a motion to dismiss....

...Plaintiff's breach of contract claims under Counts I, II, III and V of the Amended Complaint are grounded in Article 2 of the Uniform Commercial Code ("UCC") as adopted in Florida. See Fla. Stat. § 672.102. Specifically, Plaintiff cites to Fla. Stat. § 672.607(1), which provides, "[t]he buyer must pay at the contract rate for any goods accepted." Goods are considered accepted where the buyer, after having a reasonable opportunity to inspect the goods, fails to make an effective rejection of the goods as required under Fla....

...Defendants also accepted the beef that Plaintiff delivered to Venezuela in June 2008 under Contract 757 and did not reject the beef as non-conforming or for late delivery. Defendants *1237 are thus barred from now claiming a breach. See Fla. Stat. § 672.607(3)(a) (providing that, upon acceptance, a buyer must give notice of breach or be barred from any remedy); Nebula Glass Int'l Inc....

...To the extent this raises a disputed fact, it is non-material when Defendants proceeded to accept all the shipments under these Contracts without objection and without ever placing Plaintiff on notice of breach. Upon acceptance, a buyer must give notice of breach or be barred from any remedy. Fla. Stat. § 672.607(3)(a); Nebula Glass Int'l Inc....

...nty; (4) notice to seller of the breach; and (5) the injuries sustained by the buyer as a result of the breach. Dunham-Bush, Inc. v. Thermo-Air Serv., Inc. , 351 So.2d 351 , 353 (Fla. 4th DCA 1977). The notice requirement is found in Florida Statute § 672.607(3)(a), which provides that "the buyer must within a reasonable time after he or she discovers or should have discovered any breach notify the seller of breach or be barred from any remedy ...." Fla. Stat. § 672.607 (3)....

...gues that the setoff defense was dependent on whether or not it waived the requirement of full delivery of the 103 doors, which it most emphatically did not. We agree. Ordinarily, acceptance of the 55 doors would make Shreve liable for payment under section 672.607(1), Florida Statutes (1979). However, since Shreve notified both Pac-Dor and J & D of the nonconformity within a reasonable time as required by section 672.607(3)(a), Florida Statutes (1979), it was entitled to deduct all or any part of the damages from the price of the 55 doors under section 672.717, Florida Statutes (1979)....

...kept the delivered goods, used them as the mall's decorations and, at most, wanted a lower price because of their alleged nonconformity. Thus B.P. "accepted" the goods within the meaning of the code. Once goods are accepted, the buyer must pay at the contract rate for any goods accepted. § 672.607(1), Fla....

...mity; or if the buyer fails to make an effective rejection after having a reasonable opportunity to inspect the goods. Fla. Stat. § 672.606. An acceptance with knowledge of a nonconformity cannot be revoked because of that nonconformity. Fla. Stat. § 672.607....

...the seller have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty. Fla. Stat. 672.313. [4] Section 672.607(3), Florida Statutes, provides in relevant part that "[w]here a tender has been accepted: (a) The buyer must within a reasonable time after he or she discovers or should have discovered any breach notify the seller of breach or be bar...

...4th DCA 2005) (“As to standing, in order to recover for the breach of a warranty either express or implied, the plaintiff must be in privity of contract with the defendant”); Dunham-Bush, Inc. v. Thermo-Air Service, Inc., 351 So.2d 351, 353 (Fla. 4th DCA 1977) (pursuant to Fla. Stat. § 672.607 (3)(a), breach of warranty claim must allege notice to seller of breach)....

...Further, a review of the appropriate provisions of the Uniform Commercial Code as applicable in the State of Florida, which law governs this transaction, demonstrates that the burden of proof under these circumstances in establishing any defect is on the buyer (here the debtor). Section 672.607(4), Florida Statutes, provides that the burden is on the buyer to establish a breach with respect to goods accepted....

...The evidence established that the goods were delivered, the debtor had an opportunity to inspect the goods and the debtor failed to notify the seller of any defect within a reasonable time. Having accepted the tender, the burden of proof on establishing any defect was on the debtor pursuant to Section 672.607(4). Further, another consequence flows from a failure of the buyer to notify the seller of any breach. Section 672.607(3)(a) provides that where there has been acceptance of a tender of delivery, the buyer "must within a reasonable time after he discovers or should have discovered any breach notify the seller of the breach or be barred from any remedy....

...The Court finds in the instant case that the debtor accepted the goods, had sufficient time to discover any breach with respect to the goods, and to the extent that there were any defects, failed to notify Health Foods within a reasonable time of any alleged defect. Pursuant to the terms of 672.607(3)(a), Florida Statutes, the debtor is barred from any remedy....

...In these circumstances, we find as a matter of law that the buyer did not give the notice to the seller of the alleged breach "within a reasonable time after [it] discover[ed] or should have discovered any breach," as is required to permit a recovery for breach of warranty under section 672.607(3)(a), Florida Statutes (1979)....

...he entire putative class.” (See D.E. 115 at 6.) As the Magistrate Judge correctly noted, each putative class member must demonstrate that he or she gave the required notice of the breach to Defendant within a reasonable time pursuant to Fla. Stat. Section 672.607; clearly, this is an individualized factual inquiry, as some potential class members may have provided timely notice, while others may have provided untimely notice of Defendant’s alleged breach or no notice at all....

...The notice requirement also creates individualized questions of fact. The buyer must notify the seller that the goods are nonconforming in order to recover damages for breach of either an express or implied warranty. The notice requirement is contained in Fla. Stat. § 672.607 (3)(a) which provides that “[wjhen a tender has been accepted the buyer must within a reasonable time after he or she discovers or should have discovered any breach notify the seller of breach or be barred from any remedy....” “[T]he...

PER CURIAM. The final judgment under review is affirmed in all respects, Helman v. Seaboard Coastline Railroad Co., 349 So.2d 1187, 1189 (Fla.1977); § 672.607(1), Fla.Stat....

...Service, Sales and Bulk Transfers, § 7.01[4]; Lucas v. Firestone Tire and Rubber Co., 458 F.2d 495 (5th Cir. 1972); McCarthy v. Florida Ladder Co., 295 So.2d 707 (Fla. 2d DCA 1974). By virtue of an express provision of the UCC, as adopted in this State, Fla. Stat. § 672.607 (4), the burden is on the buyer to establish any breach with respect to the goods accepted....

...Lastly, it is equally clear that the buyer who asserts a claim for breach of implied warranty must, within a reasonable time after he has discovered or should have discovered the breach, notify the seller of the breach, otherwise he is barred from any remedy. Fla.Stat. § 672.607(3)(a)....

...no evidence to establish that it was caused by inherent defects in manufacturing or below standard quality of the fabric. Most importantly, however, it is clear that the Vincents did not notify Maas within a reasonable time as required by Fla.Stat. § 672.607(3) and contrary to the contention, this Court concludes that there was no complaint lodged with Maas concerning the quality of the carpeting and draperies until a year and a half after the purchase and this is certainly not a reasonable time....

obligated to pay the contract rate for the same. § 672.607(1), Fla.Stat. (1993). Accordingly, we find that

...§ 672.313 (1)(a). Even if Rigby had met its burden of establishing an express warranty, it would have had to give proper notice to Eagle of a breach of warranty in order to recover. The Statute governing the requirement to give notice reads as follows: Fla. Stat. § 672.607 Effect of acceptance; notice of breach; burden of establishing breach after acceptance; notice of claim or litigation to person answerable over (2) Acceptance of goods by the buyer precludes rejection of the goods accepted and if made with...

...It is contended by the Debtor that it was led to believe that the non-conformity of the machine would be cured; therefore, it was not required to notify Eagle that the machine failed to produce at the rate required by the Debtor, relying on Fla. Stat. § 672.607 (2)....

...he complaint fails to allege the privity of contract required by Florida substantive law. They also assert that Plaintiffs gave the Defendants no “notice” of the alleged breach within a reasonable time after discovery as is required by Fla.Stat. § 672.607(3)(a) (1985)....

...gainst a product manufacturer by a foreseeable user of that product in the absence of privity.” Kramer v. Piper Aircraft Corporation, 801 F.2d 1279, 1282 (11th Cir.1986). * Regarding the absence of notice to the Defendants as required by Fla.Stat. § 672.607(3)(a), the Florida courts have uniformly held that the notice requirements of § 672.607(3)(a) need not be complied with if Plaintiffs are merely warranty beneficiaries rather than buyers....

...This is erroneous in view of the fact that Lake was not a party to that action and, therefore, is not bound by that judgment or any implication arising therefrom. Forman v. Florida Land Holding Corp., 102 So.2d 596 (Fla.1958). The only other matter argued to support the judgment is that Lake had been “vouched in” under Section 672.607(5)(a), Florida Statutes (1975) and, thus, was bound by the prior determination....