Wednesday, April 8, 2009

Dismissal Without Prejudice for Failure to Comply with Presuit Notice if Statute of Limitation Has Not Run

Today, the Fourth DCA issued its opinion in Villa Maria Nursing and Rehabilitation Center, Inc. v. South Broward Hospital District (4D07-4433). The opinion discusses (among other things) whether a complaint should be dismissed with or without prejudice when the plaintiff fails to comply with a statutory presuit notice provision. The court reversed the circuit court and held that if the statute of limitations has run, it should be with prejudice. The relevant portion of the opinion is below:

Next, the hospital contends that the nursing home failed to comply with section 768.28(6)(a), Florida Statutes (2007), by failing to present its claim in writing to the Department of Financial Services within three years after the claim arose. At the summary judgment hearing, counsel for the nursing home requested a n opportunity to cure the notice problem by providing notice to the Department of Insurance.

Compliance with the notice requirement of section 768.28 was a condition precedent to this lawsuit against the hospital. See Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010, 1022-23 (Fla. 1979); Lindberg v. Hosp. Corp. of Am., 545 So. 2d 1384, 1387 (Fla. 4th DCA 1989) (citing Commercial Carrier). The notice is a “temporary procedural bar to a lawsuit against the State or one of its subdivisions.” Widmer v. Caldwell, 714 So. 2d 1128, 1129 (Fla. 1st DCA 1998). In Lee v. S. Broward Hosp. Dist., 473 So. 2d 1322 (Fla. 4th DCA 1985), this court permitted the amendment of a complaint to allege compliance with section 768.28(6) where notice to governmental agencies was given subsequent to the filing of the lawsuit but within the statute of limitations period. Another appropriate response to a motion raising a plaintiff’s failure to comply with the statute is to dismiss the case without prejudice, where the applicable statute of limitations has not run at the time of dismissal and it is therefore possible to give the statutory notice prior to the case being barred by the statute of limitations. See Wemett v. Duval County, 485 So. 2d 892 (Fla. 1st DCA 1986); Von Drasek v. City of St. Petersburg, 777 So. 2d 989, 991 (Fla. 2d DCA 2000).


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