BROWARD COUNTY SCHOOL BOARD, A POLITICAL SUBDIVISION, PETITIONER,
v.
JIMMY JOSEPH, RESPONDENT
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The Florida Fourth District Court of Appeal granted a school board's petition for certiorari, holding that a personal injury plaintiff's failure to strictly comply with statutory pre-suit notice requirements under section 768.28(6), Florida Statutes, is fatal to any claim against a governmental entity and cannot be waived.
Strict compliance with section 768.28(6) is required as a condition precedent to maintaining an action against a governmental entity. Failure to provide notice to the Department of Insurance is fatal to the claim because the statutory notice requirements cannot be waived, and Joseph can never satisfy the conditions precedent to filing suit against the School Board.
[1] An action against a state agency or subdivision may not be instituted unless the claimant presents the claim in writing to the appropriate agency and the Department of In…
[2] Failure to provide notice to the Department of Insurance within the statutory period is fatal to a claim against a state agency or subdivision.
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(6), Florida Statutes, is part of a statutory waiver of sovereign immunity, and therefore, strict compliance is required.”
Establishes the governing legal standard that strict compliance with statutory notice requirements is mandatory for suits against governmental entities.
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Join FLexlaw to unlock all legal intelligenceJimmy Joseph filed a personal injury complaint against Broward County School Board on June 29, 1999, alleging injuries from a school fight on June 24,…
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PER CURIAM.
Broward County School Board petitions for a writ of certiorari from an order denying its motion to dismiss with prejudice a personal injury lawsuit brought against it by Jimmy Joseph.
Joseph filed a complaint against the School Board on or about June 29, 1999, alleging that he was injured during a school fight on June 24, 1996. The School Board moved to dismiss the lawsuit for failure to allege compliance with the pre-suit notice requirements of section 768.28, Florida Statutes (1995). Joseph admitted that he did not strictly comply with section 768.28, Florida Statutes, by not notifying the Department of Insurance within the statutory period.
Section 768.28(6)(a), Florida Statutes, provides in pertinent part:
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....
Section 768.28(6)(b), Florida Statutes, provides in pertinent part:
For the purposes of this section, the requirements of notice to the agency and denial of the claim pursuant to paragraph (a) are conditions precedent to maintaining an action but shall not be deemed to be elements of the cause of action and shall not affect the date on which the cause of action accrues.
Section 768.28(6), Florida Statutes, is part of a statutory waiver of sover eign immunity, and therefore, strict compliance is required. See Levine v. Dade County Sch. Bd., 442 So. 2d 210 (Fla.1983). Failure to provide notice to the Department of Insurance is fatal to Joseph’s claim because he can never satisfy the conditions precedent to filing suit against the School Board. Id.; see also Menendez v. North Broward Hosp. Dist., 537 So. 2d 89 (Fla.1988)(concluding that in a tort action brought against a governmental agency where the Department of Insurance is not made a party, the statutory requirement of notice to the Department contained in section 768.28(6) cannot be waived by conduct of the defending agency); Wall v. Palm Beach County, 743 So. 2d 44 (Fla. 4th DCA 1999)(affirming a summary judgment in favor of the county on the grounds of failure of the claimant to give notice of intent to sue to the Department of Insurance pursuant to section 768.28(6), Florida Statutes (1997)).
Accordingly, we grant the School Board’s petition for certiorari, quash the order denying the motion to dismiss, and remand for entry of order granting the motion to dismiss with prejudice.
CERTIORARI GRANTED.
DELL, POLEN and GROSS, JJ., concur.
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LaRIVIERE v. S. Broward Hosp. Dist., 889 So. 2d 972 (Fla. 4th DCA 2004)…equires notice to the department as a condition precedent to a cause of action when there is a claim for damages against a state agency or subdivision. See Levine v. Dade County Sch. Bd., 442 So. 2d 210 (Fla.1983); Broward County Sch. Bd. v. Joseph, 756 So. 2d 1077 (Fla. 4th DCA 2000); Lecuyer v. Fla. Dep’t of Transp., 535 So. 2d 720 (Fla. 4th DCA 1989). Here, although the failure to notify the department is usually curable, the failure to notify the department before the three-year statute of limitations peri…
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Simmons v. Pub. Health Tr. of Miami-Dade Cnty., 338 So. 3d 1057 (Fla. 3d DCA 2022)…tly construed.” Levine, 442 So. 2d at 212; Menendez v. North Broward Hosp. Dist., 537 So. 2d 89, 91 (Fla. 1988). Proper notice under section 768.28(6) is a condition precedent to bring suit against a municipality. Broward Cty. Sch. Bd. v. Joseph, 756 So. 2d 1077 (Fla. 4th DCA 2000). Also, the notice requirement of section 768.28(6) cannot be waived unless expressly authorized by statute. Dukanauskas v. Metro. Dade Cty., 378 So. 2d 74, 76 (Fla. 3d DCA 1979). In Levine, the Florida Supreme Court held that…
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Fagan v. Jackson Cnty. Hosp. Dist., 379 So. 3d 1213 (Fla. 1st DCA 2024)
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
- Levine v. Dade Cnty. Sch. Bd., 442 So. 2d 210 (Fla. 1983)
- Menendez v. N. Broward Hosp. Dist., 537 So. 2d 89 (Fla. 1988)
- Wall v. Palm Beach Cnty., 743 So. 2d 44 (Fla. 4th DCA 1999)