CECELIA MILES WRIGHT, AS PARENT AND NATURAL GUARDIAN OF LORI WRIGHT, A MINOR, APPELLANT,
v.
POLK COUNTY PUBLIC HEALTH UNIT, APPELLEE
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A parent sued Polk County Public Health Unit for alleged medical malpractice related to negligent prenatal care. The trial court dismissed the case with prejudice for failure to comply with notice requirements under Florida's Sovereign Immunity Act, but the appellate court reversed, holding that dismissal with prejudice was improper when it could not be determined from the complaint whether compliance was possible.
Dismissal with prejudice was improper because it could not be determined from the face of the complaint when the cause of action accrued or whether statutory compliance was possible. The tolling of the limitations period governing malpractice actions has no effect on the separate limitations period for notice under the Sovereign Immunity Act. Dismissal with prejudice is appropriate only when it is apparent from the complaint that the plaintiff cannot fulfill the statutory requirement.
[1] A complaint against a state agency must specifically allege that timely written notice has been given to the Department of Insurance to state a cause of action.
[2] Dismissal of a case is appropriate where a complaint fails to allege statutory compliance with notice requirements.
Previewing 2 of 5 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“An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, ... presents such claim in writing to the Department of Insurance, within 3 years after such claim accrues.”
Establishes the statutory notice requirement under the Sovereign Immunity Act that must be alleged in complaints against state agencies.
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Join FLexlaw to unlock all legal intelligenceCecelia Miles Wright brought a medical malpractice action on behalf of her infant daughter, alleging she received negligent prenatal care from Polk Co…
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HALL, Judge.
The appellant, Cecelia Miles Wright, challenges a final order dismissing her medical malpractice action against the appellee, Polk County Public Health Unit (Polk County).
Wright contends the trial court erred in relying upon matters outside the four corners of the complaint as a basis for its dismissal of the case with prejudice. Wright further contends that the tolling of the statute of limitations pertaining to malpractice suits extends the time period within which notice of suit must be given to the Department of Insurance pursuant to the Sovereign Immunity Act. While we agree with Polk County’s argument that the tolling of the limitations period governing malpractice actions has no effect on the limitations period enunciated in the Sovereign Immunity Act, we find the case was improperly dismissed with prejudice.
Wright brought this action against Polk County alleging she received negligent prenatal care from Polk County personnel, which resulted in permanent injury to her infant daughter at birth. The complaint further alleged “[pjlaintiffs have complied with all conditions precedent to the bringing of this action.”
Section 768.28(6)(a), Florida Statutes (1987), a provision of the Sovereign Immunity Act, provides:
An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, ... presents such claim in writing to the Department of Insurance, within 3 years after such claim accrues....
Thus, in order to state a cause of action against a state agency, a complaint must specifically allege that timely written notice has been given to the Department of Insurance in compliance with section 768.-28(6)(a).
See Menendez v. North Broward Hospital District, 537 So. 2d 89 (Fla.1988); Levine v. Dade County School Board, 442 So. 2d 210 (Fla.1983); Commercial Carrier v. Indian River County, 371 So. 2d 1010 (Fla.1979).
Where a complaint fails to state such statutory compliance, dismissal of the case is appropriate. Dismissal of the case with prejudice, however, is appropriate only if “it is apparent that the plaintiff cannot fulfill the requirement.” Levine v. Dade County School Board; Menendez v. North Broward Hospital. Where it cannot be determined from the face of the complaint itself whether the complaint could indeed be amended to aver statutory compliance, dismissal with prejudice is erroneous. See Countryside Christian Center v. City of Clearwater, 542 So. 2d 1037 (Fla. 2d DCA 1989); Crews v. Ellis, 531 So. 2d 1372 (Fla. 1st DCA 1988); E. Naples Water Sys., Inc. v. Bd. of County Comm’rs of Collier County, 457 So. 2d 1057 (Fla. 2d DCA 1984).
The complaint in the instant case failed to specifically allege that timely written notice had been given to the Department of Insurance. Thus, dismissal of the case was proper. Since, however, it could not be determined from the face of the complaint when Wright’s cause of action accrued and whether statutory compliance was even possible, dismissal of the case with prejudice was improper. We therefore reverse the trial court’s order dismissing the case with prejudice and remand for further proceedings consistent with this opinion.
RYDER, A.C.J., and SCHOONOVER, J., concur.
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Meyers v. The City OF Jacksonville, 754 So. 2d 198 (Fla. 1st DCA 2000)…ss the complaint for failure specifically to allege compliance with the requirements of section 768.28, Florida Statutes (1997). See Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010 (Fla.1979); Wright v. Polk County Pub. Health Unit, 601 So. 2d 1318 (Fla. 2d DCA 1992). The City amended its motion to dismiss and alleged that Appellants had styled their complaint as a negligence action grafted onto an Americans With Disabilities Act action, to circumvent both Congressional intent and the case law…
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Fagan v. Jackson Cnty. Hosp. Dist., 379 So. 3d 1213 (Fla. 1st DCA 2024)
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Lane v. Eckert, 652 So. 2d 1257 (Fla. 2d DCA 1995)…ed his complaint. Since, however, the statute of limitations had not yet run at the time of dismissal, the appellant shall have the opportunity to file an amended complaint after compliance with the statute. Wright v. Polk County Public Health Unit, 601 So. 2d 1318 (Fla. 2d DCA 1992); Hamide v. State, Dep’t of Corrections, 548 So. 2d 877 (Fla. 1st DCA 1989); Wemett v. Duval County, 485 So. 2d 892 (Fla. 1st DCA 1986). We therefore affirm the dismissal of the complaint and remand for further proceedings. SCHOO…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Commercial Carrier Corp. v. Indian River Cnty., 371 So. 2d 1010 (Fla. 1979)
- Levine v. Dade Cnty. Sch. Bd., 442 So. 2d 210 (Fla. 1983)
- Menendez v. N. Broward Hosp. Dist., 537 So. 2d 89 (Fla. 1988)
- Fuller Crews, Sr. v. Ellis, 531 So. 2d 1372 (Fla. 1st DCA 1988)
- Countryside Christian Ctr., Inc. v. City OF Clearwater, 542 So. 2d 1037 (Fla. 2d DCA 1989)
- E. Naples Water Sys., Inc. v. The Bd. OF Cnty. Comm'rs OF Collier Cnty., 457 So. 2d 1057 (Fla. 2d DCA 1984)