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The Week In Torts – Cases from February 23, 2024
That’s not what the legislature said.
FLORIDA LAW WEEKLY
VOLUME 49, NUMBER 8
CASES FROM THE WEEK OF FEBRUARY 23, 2024
NO ERROR IN DISMISSING WRONGFUL DEATH ACTION FILED AGAINST HOSPITAL DISTRICT PROTECTED BY SOVEREIGN IMMUNITY – – PLAINTIFF FAILED TO COMPLY WITH TWO YEAR TIME LIMIT FOR NOTIFYING DEPARTMENT OF FINANCIAL SERVICES.
Fagan v. Jackson County Hospital District, 49 Fla. L. Weekly D383 (Fla. 1st DCA Feb. 14, 2024):
Under §768.28(6)(a)2, a claimant victim must present a claim against a state agency or subdivision to the Florida Department of Financial Services within two years after the claim accrues.
Although the plaintiff conceded he did not notify the Florida Department of Financial Services within that time limit, he argued that because Chapter 766 establishes pre-suit investigation requirements that apply to claims against both non-immune defendants and immune defendants like the hospital district, fairness and equity dictated that tolling provisions in Chapter 766 should apply equally in actions under §768.28.
The plaintiff argued that the two-year limit for notifying DFS under §768.28(6)(a)2 should be extended in the same way.
The court noted that it is true that claimants and defendants alike (even immune defendants) are subject to pre-suit investigation requirements under the medical malpractice Chapter §766.203(2) and §766.106(3). It is also true that §766.106(4) authorizes tolling of statutes of limitations for filing suits during such pre-suit investigations.
The court observed that on its face, the section tolls deadlines for filing notice, but not for giving statutory notice to state agencies.
Chapter 766 addresses notices to state agencies separately. It requires claimants to give notice of their claims to the state agencies with potential regulatory authority over medical malpractice. Such notices in cases subject to Chapter 766 are not due until after pre-suit investigations end and a suit is filed.
Unlike §766.106, §768.28 uniquely embodies and restricts the state’s limited waiver of sovereign immunity in tort actions. Thus, unlike Chapter 766, §768.28 does not allow for delayed notice to the Department of Financial Services.
The court rejected the plaintiff’s “fairness and equity” argument because statutory interpretation arguments are not based on what a litigant thinks the Florida legislature should have said but did not, and courts are not there to amend what the legislature did say.
Established precedent says that the statutory agency notice requirement in §768.28 applies to medical malpractice actions. The plaintiff’s argument that the agency had indirect notice of the claim that the defendant was estopped from raising timeliness because it had participated in the litigation for years without raising the notice defect was not persuasive, and the court upheld the dismissal of the suit.
AN ASSIGNMENT THAT FAILS TO COMPLY WITH ANY OF THE PROVISIONS OF §627.7152(2) IS INVALID AND UNENFORCEABLE.
Gail Force Roofing v. American Integrity Insurance, 49 Fla. L. Weekly D387 (Fla. 2nd DCA Feb. 16, 2024):
Section 627.715(2) establishes mandatory requirements which an assignment of benefits must include to be enforceable. When those terms are not met, the assignment is invalid and unenforceable.
COURT STRIKES NOTICE OF SUPPLEMENTAL AUTHORITY.
The Walsh Group v. Zion Jacksonville LLC, 49 Fla. L. Weekly D391 (Fla. 5th DCA Feb. 16, 2024):
Following an oral argument, the appellee filed a notice of supplemental authority from a case that was decided two years before the oral argument.
The court admonished that notices of supplemental authority are reserved for extraordinary circumstances or situations where a new case or legal authority has just been published that might impact a fully briefed, but not yet decided appeal.
Additionally, the decision the appellee cited was not precedential and for those reasons the court struck the notice as unauthorized.