Be direct with your notice

FLORIDA LAW WEEKLY

VOLUME 50, NUMBER 30

CASES FROM THE WEEK OF AUGUST 1, 2025

TRIAL COURT CORRECTLY GRANTED SUMMARY JUDGMENT ON WRONGFUL DEATH CLAIM AGAINST SCHOOL DISTRICT — PLAINTIFFS FAILED TO GIVE SCHOOL BOARD TIMELY AND SUFFICIENT PRE-SUIT NOTICE IN ACCORDANCE WITH SECTION 768.28

Anderson v. School Board of Escambia County, 50 Fla. L. Weekly D1581 (Fla. 1st DCA July 23, 2025):

A 4-year-old special needs student at a Pensacola elementary school sadly choked on his food while eating lunch on September 19, 2017. The child died 4 days later. His parents sued the school board for wrongful death and also made a claim under the survival statute.

While the child was hospitalized, his mother retained a Louisiana attorney who mailed a certified letter to the school’s principal advising of his representation and requesting access to any available video surveillance footage.

The principal forwarded the letter to the school district’s assistant superintendent and the school district’s risk management director also recalled seeing the letter, prompting him to assign the school district attorney to handle the matter. The school district’s attorney got in touch with the plaintiff’s attorney prompting a series of emails between them. The tenor of the emails was to try to resolve without litigation, but that plaintiff was willing to litigate if need be.

The father then engaged his own attorney. After continuing communications back and forth, a new attorney sent a formal notice of claim to the Department of Financial Services on June 26, 2018. The attorney finally sent a certified return receipt requested notice of claim letter to the school board but did not do so until a month after filing suit.

The trial court granted summary judgment based on the plaintiffs’ failure to give timely presuit notice of the claim to the school district, as required under section 768.28(6).

Paragraph (6)(a) imposes a clear condition that regardless of the type of claim, an action may not be instituted on a claim unless the claimant presents the claim in writing to the appropriate agency. The statute then requires additional notice to the Department of Financial Services within 3 years of accrual for any claim (that is not against a municipality, county, or the Florida Space Authority).

Those two requirements are separated by the phrase “and also” which signifies that they are independent conditions.

Based on the plain language of the statute, the court held that section 768.28 required the plaintiffs to provide the school board as the appropriate agency with presuit notice before filing their wrongful death claim.

Once the court concluded that section 768.28(6)(a) did require presuit notice to the school board, it then turned to whether the communications between the plaintiff’s attorneys and the school board were enough to satisfy that condition precedent.

The plaintiffs maintained that they provided the required notice to the school district through a combination of the letters from the lawyers and the parents’ communications.

The court agreed that the school board was certainly aware of the potential for a lawsuit, but the correspondence itself made no claim. There was no demand for compensation or any notice of an imminent claim.

While the school district may have known of the “potential,” section 768.28(6)(a) requires written notice and the opportunity to investigate and respond. Here, the school board lacked the formal opportunity to do either, which buttressed the affirmance of the final judgment against the plaintiffs.

A CLIENT’S MERE ACCEPTANCE OF A SETTLEMENT IN THE UNDERLYING CASE DOES NOT AUTOMATICALLY FORECLOSE THE CLIENT FROM BRINGING A LEGAL MALPRACTICE CLAIM

Aviation Performance Solutions v. Hinshaw & Culbertson LLP, 50 Fla. L. Weekly D1591 (Fla. 4th DCA July 23, 2025):

The trial court dismissed the plaintiff’s legal malpractice claim, concluding that the plaintiff had abandoned any legal malpractice action when it settled the underlying action and dismissed an appeal of a fee judgment against it also allegedly resulting from the attorney’s malpractice.

The court reversed because the record did not show that pursuing the claims would have “cured the malpractice” or that all of the plaintiff’s damages would have been cured through further judicial proceedings.

The law firm had admitted malpractice for the purposes of the motion for summary judgment, leaving the main issue on appeal as whether the plaintiff had suffered redressable harm as a result.

Under Florida law, a client’s mere acceptance of a settlement in a prior case does not automatically foreclose the client from bringing a malpractice action against the attorney who handled the case. Settlement of underlying or related litigation and the consequent failure to complete appellate review, does not bar a claim for attorney malpractice where the existence of redressable harm does not depend on the outcome of the litigation. For example, a legal malpractice action may still exist where the plaintiff claims that the lawsuit that was settled, was settled for far less than the case was worth due to negligent advice of counsel.

Florida has not adopted a strict rule regarding whether a settlement or failure to appeal constitutes an abandonment of a legal malpractice claim. Simply put, it depends on the circumstances.

In this case, the defendant lawyers argued that if the plaintiff had gone through the new arbitration proceeding and pursued the fee judgment appeal it could have cured any legal malpractice. However, the law firm failed to explain how all the plaintiff’s damages could have been cured by the continuation of the underlying arbitration and fee appeal.

For the new arbitration hearing to have been considered a cure for the legal malpractice, the attorney had to show that the attorney’s curable nonprejudicial mistake would in all likelihood have been corrected in the subsequent proceedings.

Here, because there were certain fees that would never be recovered irrespective of the continued pursuit, the court reversed the final summary judgment on the legal malpractice claim.