PATRICIA CALHOUN, APPELLANT,
v.
ALVIN NIENHUIS, ETC., APPELLEE
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Patricia Calhoun, a pre-trial detainee injured in jail, sued Sheriff Nienhuis for negligence under Florida's waiver of sovereign immunity statute. The trial court applied a one-year statute of limitations for prisoner claims, but the appellate court reversed, holding that the four-year limitations period in the sovereign immunity waiver statute applies instead.
The four-year statute of limitations in section 768.28(14) applies to negligence claims against government entities brought under the sovereign immunity waiver statute, not the one-year prisoner claims limitation in section 95.11(5)(g).
[1] The statute of limitations for claims against the state or its subdivisions for negligent acts or omissions under section 768.28, Florida Statutes, is four years from the…
[2] Section 95.011, Florida Statutes, provides that if a different statute prescribes a different time limitation, the time prescribed elsewhere in the statutes controls over…
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Join FLexlaw to unlock all legal intelligence“Every claim against the state or one of its agencies or subdivisions for damages for a negligent or wrongful act or omission pursuant to this section shall be forever barred unless the civil action is commenced by filing a complaint in the court of appropriate jurisdiction within k years after such claim accrues”
This establishes the four-year statute of limitations under section 768.28(14) that applies to claims against government entities under the sovereign immunity waiver statute.
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Join FLexlaw to unlock all legal intelligenceCalhoun was injured while incarcerated as a pre-trial detainee in Hernando County Jail due to alleged negligence by jail employees. She complied with …
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Patricia Calhoun appeals the summary judgment entered against her in her negligence lawsuit against Alvin Nienhuis, in his official capacity as the Sheriff of Her-nando County (Sheriff). Determining that the trial court applied the wrong statute of limitations to Calhoun’s lawsuit, we reverse.
Calhoun sued the Sheriff for negligence. The complaint alleged that, while she was incarcerated as a pre-trial detainee in the Hernando County Jail, Calhoun was injured as a result of the negligence of jail employees. The complaint also alleged that, before filing suit, Calhoun complied with all pre-suit conditions of the waiver-of-sovereign-immunity statute, section 768.28, Florida Statutes (2010).
The Sheriff moved for summary judgment. He argued that Calhoun’s lawsuit was barred by the one-year statute of limitations for prisoner claims, section 95.11(5)(g), because she filed her complaint more than one year after the act of alleged negligence occurred. Calhoun responded that the applicable statute of limitations was the four-year limit for claims based on waiver of sovereign immunity, section 768.28(14). The trial court granted the Sheriffs motion, concluding that section 95.11(5)(g) controlled.
Calhoun appeals, arguing that the applicable statute of limitations is section 786.28(14), not section 95.11(5)(g). We agree.
The Legislature has waived the State’s sovereign immunity from liability for torts, “subject to the limitations specified in [section 768.28].” § 768.28(1). That statute requires a plaintiff to, among other things, provide pre-suit notice to the defendant within three years after the claim accrues. § 768.28(6)(a)-(b). The statute also imposes the following statute of limitations:
768.28 Waiver of sovereign immunity in tort actions; ... statute of limitations ...
(14) Every claim against the state or one of its agencies or subdivisions for damages for a negligent or wrongful act or omission pursuant to this section shall be forever barred unless the civil action is commenced by filing a complaint in the court of appropriate jurisdiction within k years after such claim accrues; except that an action for contribution must be commenced within the limitations provided in s. 768.81(4) [the statute of limitations in the Uniform Contribution Among Tortfeasors Act], and an action for damages arising from medical malpractice must be commenced within the limitations for such an action in s. 95.11(4) [the ordinary statute of limitations for medical malpractice].
§ 768.28(14) (emphasis added).
In contrast, section 95.11(5)(g) was enacted as part of a bill to reform procedures for inmate lawsuits. See Ch. 96-106, Laws of Fla. (1996). That section provides:
95.11 Limitations other than for the recovery of real property
Actions other than for recovery of real property shall be commenced as follows:
(5) Within one year.—
(g) Except for actions described in subsection (8) [challenging prison disciplinary proceedings], an action brought by or on behalf of a prisoner, as defined in s. 57.085, relating to the conditions of the prisoner’s confinement.
*26We conclude that section 768.28(14), rather than section 95.11(5)(g), applies in this case for several reasons.
First, chapter 95 contains an exception clause that provides that its limitation periods are superseded by other statutes: “A civil action or proceeding ... shall be barred unless begun within the time prescribed in this chapter or, if a different time is prescribed elsewhere in these statutes, within the time prescribed elsewhere.” § 95.011. Based on this clause, the Florida Supreme Court held, in a suit against a government health care provider, that section 768.28’s statute of limitations superseded section 95.11’s statutes of limitations and repose for medical malpractice actions. Pub. Health Trust v. Menendez, 584 So.2d 567 (Fla.1991).1 The Court explained that the exception clause “clearly provides that the periods of time provided in chapter 95 do not apply if a different period is provided elsewhere in the statutes .... [T]he language of [the clause] is plain: If a different statute prescribes a different time, then the periods of time in chapter 95 have no applicability.” Id. at 569.
Second, even absent chapter 95’s exception clause, section 768.28’s statute of limitations supersedes other statutes in suits against government entities. In Beard v. Hambrick, 396 So.2d 708 (Fla.1981), a decedent’s estate sued a sheriff for wrongful death. Our Supreme Court rejected the sheriffs argument that section 95.11’s statute of limitations for wrongful death applied, holding that section 768.28’s statute applied instead. The Court reasoned: “We believe that the legislature intended that there be one limitation period for all actions brought under section 768.28. We base this belief on the prerequisite notice provisions of this section and the need to have a uniform period for actions against governmental entities.” Id. at 712. See also Fla. Dep’t of Health & Rehab. Servs. v. S.A.P., 835 So.2d 1091, 1096 (Fla.2002) (“Time limitations on legal actions in Florida ordinarily are governed by the statutes of limitation set forth in chapter 95, but ... time limitations on chapter 768 actions are controlled by section 768.28( [14]).” (footnote omitted)); Horn v. State, Dep’t of Transp., 665 So.2d 1122, 1124-25 (Fla. 1st DCA 1996) (interpreting Beard as holding that 768.28’s statute of limitations “was intended to apply to all actions permitted by the limited waiver of immunity, notwithstanding the fact that a different statute of limitations might apply had the action been brought against a private defendant”).
Third, the Legislature has created express exceptions to the applicability of section 768.28’s statute of limitations, and prisoner claims under section 95.11(5)(g) are not one of those exceptions. Specifically, section 768.28(14) excepts claims for contribution and medical malpractice, providing that their respective statutes of limitations apply. Thus, under the maxim inclusio unius est exclusio alterius, 2 prisoner claims within section 95.11(5)(g) should not be construed as being an exception to section 768.28(14).
In arguing that section 95.11(5)(g) applies here, the Sheriff relies on this court’s decision in Nicarry v. Eslinger, 990 So.2d *27661 (Fla. 5th DCA 2008). However, Ni-carry does not control, because it did not address the applicability of section 768.28. Cf. Public Health, 584 So.2d at 569 (distinguishing earlier Florida Supreme Court opinion that applied one of section 95.11⅛ statutes of limitations because that opinion did not address applicability of section 768.28).
Accordingly, we reverse the trial court’s summary judgment because Calhoun’s action was timely filed within section 768.28(14)’s four-year limitation period.
REVERSED and REMANDED.
LAWSON and COHEN, JJ., concur.
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Green v. Cottrell, 204 So. 3d 22 (Fla. 2016)…LABARGA, C.J. Petitioner Eric Green seeks review of the decision of the First District Court of Appeal in Green v. Cottrell, 172 So. 3d 1009 (Fla. 1st DCA 2015), on the basis that it expressly and directly conflicts with Calhoun v. Nienhuis, 110 So. 3d 24 (Fla. 5th DCA 2013), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons discussed below, we quash the decision in Green and approve the holding in Calhoun, but not the analysis of the Fifth District in tha…1 / 2
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Green v. Cottrell, 172 So. 3d 1009 (Fla. 1st DCA 2015)…m the trial court’s application of the one-year statute ■ of limitations period pursuant to section 95.11(5)(g). However, we write to address our reasoning on the statute of limitations issue and to express our disagreement with Calhoun v. Nienhuis, 110 So. 3d 24 (Fla. 5th DCA 2013), in .which the Fifth District Court of Appeal held that the four-year statute of limitations period set forth in section 768.28(14), Florida Statutes, applied to a prisoner’s negligence action against the county sheriff rather th…1 / 3
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S. S. v. THE Sch. Bd. of Sarasota Cnty., 48 Fla. L. Weekly D142 (Fla. 2d DCA 2023)…5.11(5)(g), not section 768.28(14), governed the prisoner's claim because section 95.11(5)(g) was the more recently enacted statute. Id. at 26. In so holding, the First District disagreed with a case out of the Fifth District, Calhoun v. Nienhuis, 110 So. 3d 24 (Fla. 5th DCA 2013). Id. Calhoun had interpreted section 95.011, Menendez, and the medical malpractice and contribution amendment to section 768.28(14) to mean that section 768.28(14), not section 95.11(5)(g), applied to a prisoner's negligence cl…
Authorities Cited
- Fla. Dep't of Health & Rehabilitative Servs. v. S.A.P., 835 So. 2d 1091 (Fla. 2002)
- Beard v. Hambrick, 396 So. 2d 708 (Fla. 1981)
- Elmo H. GAY v. Singletary, 700 So. 2d 1220 (Fla. 1997)
- Pub. Health Tr. OF Dade Cnty. v. Magda Menendez, 584 So. 2d 567 (Fla. 1991)
- Nicarry v. Eslinger, 990 So. 2d 661 (Fla. 5th DCA 2008)
- Horn v. State, 665 So. 2d 1122 (Fla. 1st DCA 1996)