LESTER C. STILLWELL, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF RUTH C. STILLWELL, DECEASED, APPELLANT,
v.
JACK B. THIGPEN, JR., M.D., INDIVIDUALLY, FREDDIE MCRAE, M.D., INDIVIDUALLY, M. FUNDERBURK, M.D., INDIVIDUALLY, E.D. STAPLES, M.D., INDIVIDUALLY, AND FLORIDA PHYSICIANS' INSURANCE RECIPROCAL, A CORPORATION, APPELLEES
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The court reversed a summary judgment dismissing a medical negligence wrongful death action against state physicians, holding that a statute restricting liability for state employees cannot be retroactively applied to causes of action that accrued before the statute's effective date, as doing so would violate due process.
The statute may not constitutionally be applied to this cause of action because retroactive application violates due process. Constitutional considerations of due process preclude the retroactive application of § 768.28(9)(a) to causes of action that accrued prior to July 1, 1980, even though the action was filed after that date.
[1] A statute may not be constitutionally applied retroactively to a cause of action that accrued prior to the statute's effective date, even if the action was filed after th…
[2] Due process considerations preclude the retroactive application of a statute that abrogates a plaintiff's right to full tort recovery.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Section 768.28(9)(a), Florida Statutes (1980), precludes appellant's medical negligence action. We conclude that the statute may not constitutionally be applied to this cause of action which accrued prior to the effective date of the statute”
Establishes the core holding that retroactive application of the statute violates due process
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Join FLexlaw to unlock all legal intelligenceRuth C. Stillwell died, and Lester C. Stillwell filed a wrongful death action against several physicians and an insurance reciprocal. The complaint al…
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WENTWORTH, Judge.
Appellant seeks review of an order granting summary judgment in favor of appellees. In entering this order the trial court ruled that § 768.28(9)(a), Florida Statutes (1980), precludes appellant’s medical negligence action. We conclude that the statute may not constitutionally be ap plied to this cause of action which accrued prior to the effective date of the statute, and we therefore reverse the order appealed.
Section 768.28(9)(a), Florida Statutes (1980), provides that:
No officer, employee, or agent of the state or its subdivision shall be held personally liable in tort or named as a party defendant in any action for any injuries or damages suffered as a result of any act, event, or omission of action in the scope of his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.
The act became law on July 1, 1980, and is expressly made applicable to all actions pending or filed after July 1, 1980. See Laws of Florida, Chapter 80-271, § 4. The complaint in the present case alleges simple negligence, and the action was filed after July 1,1980, but relates to a cause of action which accrued prior to July 1, 1980. In these circumstances constitutional considerations of due process preclude the retroactive application of § 768.28(9)(a). Cf., State Department of Transportation v. Knowles, 402 So. 2d 1155 (Fla.1981); Bryant v. School Board of Duval County, 399 So. 2d 417 (Fla. 1st DCA 1981); also cf., Kirkland v. State, 424 So. 2d 925 (Fla. 1st DCA 1983). While none of these cases involved a wrongful death action, which was unknown at common law, this circumstance does not impact Knowles’ due process rationale. Knowles indicates that the relevant considerations are:
1) The strength of the public interest served by the statute;
2) The extent to which the right affected is abrogated; and
3) The nature of the right affected.
Noting that the statute “effects an abrogation of [plaintiff’s] right to his full tort recovery, not merely a procedural adjustment of his remedies” [footnotes omitted], Knowles determined that the balancing of these factors weighed in favor of prohibiting retroactive application of the statute. That the present cause of action was one unknown at common law does not substantially alter this balancing process, and due process considerations thus preclude retroactive application of the statute in this instance. Accord, Galbreath v. Shortle, 416 So. 2d 37 (Fla. 4th DCA 1982).
Appellee has suggested that the present action is also precluded, under § 768.28(6), Florida Statutes, by appellant’s failure to present the claim in writing “to the appropriate agency.” However, by its literal terms § 768.28(6) applies only to actions “instituted on a claim against the state or one of its agencies or subdivisions .... ” The present action does not involve such a claim and § 768.28(6) is therefore inapplicable in this case.
Accordingly, the order appealed is reversed and the cause remanded for further proceedings.
SHIVERS and JOANOS, JJ., concur.
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City OF N. BAY Vill. & Officer J. Ort v. Bart David Braelow, 469 So. 2d 869 (Fla. 3d DCA 1985)…instructions the three criminal statutes, and that the verdict was excessive. Initially, we note that the date of the incident controls the determination of which of the several different versions of section 768.28(9) applies. Stillwell v. Thigpen, 426 So. 2d 1267 (Fla. 1st DCA 1983); Kirkland v. State, Department of Health & Rehabilitative Services, 424 So. 2d 925 (Fla. 1st DCA 1983); Galbreath v. Shortle, 416 So. 2d 37 (Fla. 4th DCA 1982). As the incident complained of occurred on November 29, 1979, the app…
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Arney v. Dep't OF Natural Res., 448 So. 2d 1041 (Fla. 1st DCA 1983)…*1045] Section 768.28(9)(a) was subject to that provision. The trial court apparently agreed and granted summary judgment for DNR on Counts I and II based on Rupp v. Bryant. The trial court, however, did not have the benefit of Stillwell v. Thigpen, 426 So. 2d 1267 (Fla. 1st DCA 1983), decided after summary judgment was granted in this case. In Stillwell, we held, based on due process considerations, that Section 768.-28(9)(a) does not apply to causes of action accruing before the effective date of that provi…
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Rice v. LEE, 477 So. 2d 1009 (Fla. 1st DCA 1985)…State Department of Transportation v. Knowles, 402 So. 2d 1155 (Fla.1981), as well as on the decisions of this court in Kirkland v. State Department of Health and Rehabilitative Services, 424 So. 2d 925 (Fla. 1st DCA 1983) and Stillwell v. Thigpen, 426 So. 2d 1267 (Fla. 1st DCA 1983). The rules of law enunciated in these cases are inapplicable here. The causes of action sued upon in Rupp and Knowles accrued prior to June 6, 1979, the effective date of the 1979 amendments to § 768.28(9), Fla. Stat. Section 768…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Knowles, 402 So. 2d 1155 (Fla. 1981)
- Bryant v. The Sch. Bd. OF Duval Cnty., 399 So. 2d 417 (Fla. 1st DCA 1981)
- Hal Gentry and Michael B. Swindle v. Mattair, 424 So. 2d 925 (Fla. 1st DCA 1982)
- Galbreath v. Cyril Michael Shortle, 416 So. 2d 37 (Fla. 4th DCA 1982)