ELECTA SMART, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF KENNETH SMART, APPELLANT,
v.
GEOFFREY MONGE, IN HIS OFFICIAL CAPACITY AS SHERIFF OF SARASOTA COUNTY, APPELLEE
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The court held that a letter requesting documents did not satisfy the statutory notice-of-claim requirement because it did not contain language asserting a claim or demanding compensation.
[1] A written notification to a government agency must contain language asserting a claim or a demand for compensation for an injury to satisfy the section 768.28(6), Florida…
[2] A letter requesting documents from a government agency, without asserting a claim or demand for compensation, does not satisfy the statutory notice-of-claim requirement.
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Join FLexlaw to unlock all legal intelligenceElecta Smart's son died in jail after an asthma attack. Smart sued the Sheriff, alleging failure to comply with the statutory notice-of-claim requirem…
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PARKER, Acting Chief Judge.
Electa Smart appeals the trial court’s order dismissing with prejudice her complaint against Geoffrey Monge, in his capacity as Sheriff of Sarasota County (the Sheriff), specifically arguing that the trial court erred in dismissing the complaint on the ground that Smart failed to comply with the section 768.28(6), Florida Statutes (1991), notice-of-elaim requirement. We affirm because Smart’s attorney failed to comply with that statute.
In 1990 Smart’s son, a chronic asthmatic, was arrested for a probation violation and incarcerated in the Sarasota County Jail. Following a severe asthmatic attack at the jail, he died en route to the hospital. Smart filed a complaint against the Sheriff, individually, and in his official capacity, and against the Sarasota County Board of County Commissioners.1 The Sheriff filed a motion to dismiss the complaint with prejudice contending that Smart failed to comply with the section 768.28(6) notice requirement. At the hearing on the motion to dismiss, Smart argued, as she does in this appeal, that a June 8, 1993, letter her attorney2 sent to the Sheriffs legal advisor satisfies the section 768.28(6) notice requirement. The trial court held that the letter did not satisfy the statutory notice requirement and dismissed Smart’s complaint against the Sheriff with prejudice.
Section 768.28(6) provides, in pertinent part, as follows:
(6)(a) 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 and the Department of Insurance or the appropriate agency denies the claim in writing; ....
The statute does not specify what is required to present a notice of claim beyond that it be in writing. Pearlstein v. Malunney, 500 So. 2d 585 (Fla. 2d DCA 1986), review denied, 511 So. 2d 299 (Fla.1987). In Pearlstein, this court, citing Whitney v. Marion County Hospital District, 416 So. 2d 500 (Fla. 5th DCA 1982), noted that, in the context of sovereign immunity, it has been held that any manner of written notice that satisfactorily describes or identifies the occurrence underlying the claim should suffice.
The June 8, 1993, letter at issue here provides as follows:
June 8,1993
Tom Scanlan, Esquire
Legal Advisor
Sarasota County Sheriffs Office
P.O. Box 4115
Sarasota, FL 34230
Re: Kenneth Smart
Date of Death: 4/5/91
Dear Mr. Scanlan:
It was a pleasure speaking with you in the above referenced matter. Please be advised that I have been retained by Mr.. Smart’s mother, Electa Smart. On her behalf I would like to make a formal request for all available documents concern-mg Mr. Smart including any investigation into Ms death.
Should you require anything further from me in order to provide this information please advise. Thank you for your assistance and cooperation.
Relying on Whitney, Smart contends that the June 8,1993, letter satisfies the statutory notice requirement because it sufficiently identifies the occurrence so that the agency could investigate it. We disagree.
While the letter identifies the incident, it does not in any way state a claim or demand against the Sheriff. Although the statute lacks specificity as to what is required to present a notice of claim, we conclude, at a minimum, the written notification must contain language notifying the-agency of a claim; that is, a demand for compensation for an injury. See Mrowczynski v. Vizenthal, 445 So. 2d 1099 (Fla. 4th DCA 1984). Because section 768.28 is a statutory waiver of sovereign immumty, it must be strictly construed. Levine v. Dade County Sch. Bd., 442 So. 2d 210 (Fla.1983).
When the June 8th letter to the Sheriffs Office is compared to the letter Smart’s attorney sent to the Chairman of the Sarasota County Board of County Commissioners notifying the Commissioners of her intent to file a claim, it becomes obvious that the June 8th letter lacks any language asserting a claim. In the letter to the Commissioners, the attorney, in part, stated:
You are hereby notified that Electa Smart, the natural mother of Kenneth Smart, on her behalf, and on behalf of the heirs of Kenneth Smart, intends to file a Tort Claims Action for money damages against the Florida Department of Corrections and Sarasota County under the Florida Tort Claims Act, Section 768.28, Florida Statutes 1991. The Claimant has employed tMs law firm to represent her m pursing this claim. All eommumcations and notices should be directed to me, as Claimant’s attorney....
That language, if directed to the Sheriff in writing, would have satisfied the statute. Instead, the June 8th letter to the Sheriff appears to be nothing more than a formal request for documents prepared by the Sheriffs Office relating to the son’s death.
Affirmed.
BLUE and FULMER, JJ., concur. . Smart voluntarily dismissed with prejudice her complaint against Geoffrey Monge, individually.
. The author of the letter is not the attorney representing Smart in this appeal.
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LaRIVIERE v. S. Broward Hosp. Dist., 889 So. 2d 972 (Fla. 4th DCA 2004)…otice of the claim to the agency involved that sufficiently describes or identifies the occurrence so that the agency may investigate it, satisfies the statute.” Franklin v. Palm Beach County, 534 So. 2d 828, 830 (Fla. 4th DCA 1988); Smart v. Monge, 667 So. 2d 957 (Fla. 2d DCA 1996). Nevertheless, the notice, in any form, must be sufficiently direct and specific to reasonably put the department on notice of the existence of the claim and demand. The notice must advise the department that a claim is made again…
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Fannye Wilson v. City OF Tampa, 209 So. 3d 646 (Fla. 2d DCA 2017)…the statute requires that written notice of a claim be given. This court has held that “at a minimum, the written notification must contain language notifying the agency of a claim; that is, a demand for compensation for an injury.” Smart v. Monge, 667 So. 2d 957, 959 (Fla. 2d DCA 1996). Here, the notice does not lack a claim for compensation nor does the City assert the same is lacking. This court also noted in Smart that “the statute lacks specificity as to what is required to present a notice of claim.”…
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Brower v. State Dep't of Natural Res., 698 So. 2d 568 (Fla. 2d DCA 1997)…to supplement prior oral/written notice to you and your insured, Department of Natural Resources, as to the occrrenee (sic) of Mr. [*570] Bower’s (sic) injuries and his claim therefor. * * * * cc: Department of Natural Resources. In Smart v. Monge, 667 So. 2d 957 (Fla. 2d DCA 1996), we examined whether a letter to a lawyer for the Sarasota County Sheriffs Office was sufficient to put the sheriff on notice of a potential claim. We held that the letter, while describing the incident, did not state a claim or d…
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
- Levine v. Dade Cnty. Sch. Bd., 442 So. 2d 210 (Fla. 1983)
- Leslie Pearlstein, M.D. v. Malunney, 500 So. 2d 585 (Fla. 2d DCA 1986)
- Whitney v. Marion Cnty. Hosp. Dist., 416 So. 2d 500 (Fla. 5th DCA 1982)
- Mrowczynski v. Vizenthal, 445 So. 2d 1099 (Fla. 4th DCA 1984)