LAWANA BURKETT AND JANICE MADDOX, APPELLANTS,
v.
CALHOUN COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, APPELLEE
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The court held that the notice provision of Section 768.28(6), Florida Statutes, applies to suits against a county even if the county has secured liability insurance.
[1] Compliance with the notice provision of Section 768.28(6), Florida Statutes, is required for claims against a political subdivision, even if the subdivision has secured l…
[2] Section 768.28, Florida Statutes, represents a comprehensive legislative overhaul of sovereign immunity law.
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Join FLexlaw to unlock all legal intelligencePlaintiffs were injured in a car accident and sued Calhoun County for negligent maintenance of a right-of-way. The county moved to dismiss, arguing th…
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MILLS, Judge.
Burkett and Maddox appeal the trial court’s order dismissing their negligence complaint against Calhoun County for failure to comply with the notice provision contained in Section 768.28(6), Florida Statutes (1981). We affirm.
On 29 May 1978, at an intersection in Calhoun County, a vehicle in which Lawana Burkett was a passenger collided with another vehicle which was being driven by Janice Maddox. Both Burkett and Maddox were injured in the accident.
They filed a complaint against Calhoun County on 26 May 1982, alleging that the County negligently maintained the right-of-way at the intersection and that its negligence was the proximate cause of their injuries. Calhoun County filed a motion to dismiss the complaint, contending that the plaintiffs did not notify the Department of Insurance of their claim within three years of the date of the accident as required by Section 768.28(6), Florida Statutes (1981). The trial court granted the motion. Burkett and Maddox contend on appeal that the notice provision of Section 768.-28(6) does not apply to their suit because Calhoun County had waived its sovereign immunity by securing liability insurance as authorized by Section 286.28, Florida Statutes (1981). We cannot agree with that contention.
Section 286.28 authorizes political subdivisions of the State to secure liability insurance, and that section goes on to provide that the sovereign immunity of those subdivisions is waived to the extent of the coverage. Section 768.28(10) evidences a legislative intent not to repeal Section 286.28. Nevertheless, Section 768.28 represents a complete overhaul of the area of sovereign immunity law in Florida. Dade County School Board v. Ingraham, 428 So. 2d 283 (Fla. 3d DCA 1983). Section 768.28(1) waives sovereign immunity “only to the extent specified in this act.” Therefore, we believe that it was the intent of the legislature to require compliance with the notice provision of Section 768.28(6) whether or not the political subdivision elected to carry liability insurance.
AFFIRMED.
SHIVERS and ZEHMER, JJ., concur,
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Pub. Health Tr. OF Dade Cnty. v. The Honorable Francis X. Knuck, 495 So. 2d 834 (Fla. 3d DCA 1986)…Dukanauskas, 378 So. 2d at 76. Because sovereign immunity is waived only to the extent specified in section 768.28, once the limitations period expires, plaintiff loses the opportunity to provide the omitted requirements. Burkett v. Calhoun County, 441 So. 2d 1108 (Fla. 1st DCA 1983); Dukanauskas; see Halpin v. Short, 490 So. 2d 1271 (Fla. 2d DCA 1986); cf. Wemett v. Duval County, 485 So. 2d 892 (Fla. 1st DCA 1986) (dismissal of complaint with prejudice error where plaintiff could comply with § 768.-28(6)(a)…
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Mrowczynski v. Vizenthal, 445 So. 2d 1099 (Fla. 4th DCA 1984)…the dichotomy between governmental and proprietary functions. Without further plumbing the problems inherent in construing that statute, for purposes of the decision in this case we believe reference to the recent case of Burkett v. Calhoun County, 441 So. 2d 1108 (Fla. 1st DCA 1983), fully answers [*1101] appellant’s arguments in point one. Burkett points out: As Burkett and Maddox contend on appeal that the notice provision of Section 768.-28(6) does not apply to their suit because Calhoun County had waive…
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Jozwiak v. Leonard, 504 So. 2d 1260 (Fla. 1st DCA 1986)…under such contract. We agree with appellee that compliance with the notice requirements of section 768.28(6) is required regardless of whether the appellant is covered by liability insurance. The same issue was raised in Burkett v. Calhoun County, 441 So. 2d 1108 (Fla. 1st DCA 1983) with respect to liability insurance secured under section 286.28, Florida Statutes (1981). Section 286.28 is similar to section 30.55, except that it authorizes political subdivisions of the State to secure liability insurance, a…1 / 2
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dade Cnty. Sch. Bd. v. Bernadette Ingraham, 428 So. 2d 283 (Fla. 3d DCA 1983)