WILLIAM AIREY, APPELLANT,
v.
WAL-MART/SEDGWICK, APPELLEES
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In this workers' compensation appeal, the court reversed the dismissal of a timely-filed petition for benefits, holding that a properly drafted petition tolls the statute of limitations as long as it remains pending, regardless of how much time passes.
A properly drafted petition for benefits tolls the statute of limitations as long as it remains pending. The mere passage of time does not terminate the pendency of a proceeding or bar a timely-filed petition. The petition could only be dismissed for lack of prosecution under section 440.25(4)(i) if a motion for such dismissal was filed and no activity occurred within the previous 12 months.
[1] A properly filed petition for benefits tolls the statute of limitations as long as it remains pending.
[2] A petition for benefits remains pending until withdrawn by claimant, acted upon, or dismissed upon motion; passage of time does not itself terminate the pendency of a pro…
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Join FLexlaw to unlock all legal intelligence“A properly drafted petition for benefits tolls the statute of limitations as long as it remains pending.”
Establishes the core holding that tolling continues during pendency
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Join FLexlaw to unlock all legal intelligenceClaimant William Airey filed a petition for benefits on February 15, 2007. The petition met all statutory requirements and was timely filed. The petit…
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In this workers’ compensation case, claimant seeks review of a final order dismissing his petition for benefits filed on February 15, 2007, as time-barred pursuant to section 440.19, Florida Statutes (2003). Because we conclude that the judge of compensation claims erred as a matter of law in dismissing the petition as time-barred, we reverse.
The pertinent facts are undisputed. Hence, the issue is one purely of law, subject to de novo review. See McBride v. Pratt & Whitney, 909 So.2d 386, 387 (Fla. 1st DCA 2005).
It is undisputed that the petition for benefits was timely filed. While not entirely clear from the final order, it appears that the decision was based on the conclusion that the petition had been pending for too long—i.e., that it should have been resolved at some earlier time. This was error.
A properly drafted petition for benefits tolls the statute of limitations as long as it remains pending. See § 440.19(3), Fla. Stat. (2003). Accord Rice v. Reedy Creek Improvement Dist., 924 So.2d 882, 885 (Fla. 1st DCA 2006); McWilliams v. Americana Dutch Hotel, 595 So.2d 253, 254 (Fla. 1st DCA 1992); John Ringling Towers v. Klein, 573 So.2d 154, 155 (Fla. 1st DCA 1991). It is undisputed that the petition in this case met the statutory requirements. Moreover, once filed, a petition for benefits remains “pending until withdrawn by claimant, or acted upon, or dismissed upon motion.... ‘Passage of time does not itself terminate the pen-dency of a proceeding.’ ” Turner v. Keller Kitchen Cabinets, S., Inc., 247 So.2d 35, 40 (Fla.1971) (quoting from Munsinger v. Edge, 1 F.C.R. 103, cert. denied, 85 So.2d 757 (Fla.1955)). Accord Strack v. Executive Motors, Inc., 500 So.2d 703, 704 (Fla. 1st DCA 1987) (citing Turner). There is, likewise, no dispute about the fact that the petition remained pending, and that claimant had not received the benefits sought. Accordingly, as a matter of law, the statute of limitations remained tolled.
To the extent the judge of compensation claims dismissed the petition based on his belief that it had been pending too long, the proper procedure would be to invoke section 440.25(4)(i), Florida Statutes (2008). That provision permits a judge of compensation claims to “dismiss a petition for lack of prosecution if a petition, response, motion, order, request for hearing, or notice of deposition has not been filed during the previous 12 months unless good cause is shown.” However, such action may only be taken in response to a motion by a party or the judge. Dismissal for lack of prosecution would not have been appropriate here, because no motion was filed requesting such action, and motions had been filed, hearings held and depositions taken in the 12 months prior to the order of dismissal. See Sherertz v. Key West Oceanside Marina, 477 So.2d 70, 71 (Fla. 1st DCA 1985) (holding that a claim may not be dismissed for lack of prosecution if record activity has occurred within the time specified by the statute).
*1266Because the petition for benefits was timely filed and remained pending, it was error to conclude that it was barred by section 440.19. Accordingly, we reverse, and remand for further proceedings consistent with this opinion.
REVERSED and REMANDED, with directions.
PADOVANO and ROWE, JJ., concur.
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Fortune v. Gulf Coast Tree Care Inc./Florida Citrus Bus. & Indus., 148 So. 3d 827 (Fla. 1st DCA 2014)…The JCC did so because Claimant failed to request this medical care, or any medical care, from either the Employer or the Carrier. When the facts are not in dispute, the application of law to those facts is reviewed de novo. See Airey v. Wal-Mart, 24 So. 3d 1264, 1265 (Fla. 1st DCA 2009) (noting that when “[t]he pertinent facts are undisputed ... the issue is one purely of law, subject to de novo review”). To the extent resolution of an issue requires statutory interpretation, review is de novo. See Lombard…
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Wendler v. City OF ST. Augustine, 108 So. 3d 1141 (Fla. 5th DCA 2013)…order dismissing a complaint with prejudice. GLK, L.P. v. Four Seasons Hotel Ltd., 22 So. 3d 635, 636 (Fla. 3d DCA 2009); Extraordinary Title Servs., LLC v. Fla. Power & Light Co., 1 So. 3d 400, 402 (Fla. 3d DCA 2009); see Airey v. WalMart/Sedgwick, 24 So. 3d 1264, 1265 (Fla. 1st DCA 2009) (reiterating that where pertinent facts are undisputed, issue is one purely of law, subject to de novo review).3 [*1144] The Harris Act, enacted in 1995, created a new cause of action allowing property owners who suffer ino…
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Longley v. Miami-Dade Cnty. Sch. Bd. & Gallagher Bassett Svcs., 82 So. 3d 1098 (Fla. 1st DCA 2012)…ers scheduled to be heard at that time have been resolved by the parties”). Because Louis and Bednañk are distinguishable on their facts, the JCC erred in analogizing the instant case to them. More apt analogy is made to Airey v. Wal-Mart/Sedgwick, 24 So. 3d 1264 (Fla. 1st DCA 2009), John Ringling Towers v. Klein, 573 So. 2d 154 (Fla. 1st DCA 1991), and Gilman v. South Florida Water Management District, 584 So. 2d 591 (Fla. 1st DCA 1991). In Airey, this court held the timely filed PFB, because it remained pe…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McBRIDE v. Pratt & Whitney & Ace USA, 909 So. 2d 386 (Fla. 1st DCA 2005)
- Joffre E. Turner v. Keller Kitchen Cabinets, 247 So. 2d 35 (Fla. 1971)
- Strack v. Executive Motors, Inc., 500 So. 2d 703 (Fla. 1st DCA 1987)
- Copcutt v. State, 477 So. 2d 70 (Fla. 1st DCA 1985)
- Towers v. Klein, 573 So. 2d 154 (Fla. 1st DCA 1991)
- Gunter v. Green, 85 So. 2d 757 (Fla. 1955)
- McWILLIAMS v. Americana Dutch Hotel & Cigna Ins. Co., 595 So. 2d 253 (Fla. 1st DCA 1992)
- Rice v. Reedy Creek Improvement Dist. & Unisource Administrators, Inc., 924 So. 2d 882 (Fla. 1st DCA 2006)