Florida’s Limited Sovereign Immunity Waiver Requires Proof That Notice of Pre-Trial Statutory Claim Was Actually Received Within Statute of Limitations | rumberger | Church

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Sovereign immunity represents the long-standing premise that the government cannot be sued without its consent. Immunity applies to the State of Florida and all subdivisions of the state, including counties, municipalities, districts, school boards, and other governmental entities. Like the federal government and other states, Florida has adopted a limit waiver of immunity that allows individuals injured by public agencies or a subdivision of the state to pursue civil remedies for harm caused by government employees. The Florida Limited Waiver contains several requirements and conditions that must be strictly enforced, and failure to comply with its terms may preclude prosecution entirely. The Third District Court of Appeals recently considered one such condition: compliance with the pre-notice provision.[1]

In most cases, Florida’s mandatory notice clause requires three things: (1) the plaintiff must submit a written claim to the agency to be sued; (2) the applicant must submit a written request to the Department of Financial Services; and (3) the claim must be brought within three years after the cause of action arises. An abundance of authority provides that if a plaintiff does not strictly comply with the pretrial notice requirement within the three-year statute of limitations, the lawsuit will be dismissed with prejudice and the plaintiff will be unable to recover anything. Despite much litigation on these issues, no Florida court had ever analyzed what it meant to “bring” a claim, in the context of Florida’s limited waiver of sovereign immunity. the Simmons The Court decided this issue on first impression, holding that the evidence that the pre-trial notice had been has received is necessary to establish compliance with the law. Proof of punctuality mailing of the notice is insufficient in law and does not meet the mandatory notice requirements.

In Simmons, the Court considered a case in which a plaintiff mailed the pre-suit notice to the requested agencies on the last day of the three-year statute of limitations. Although the notices were received, they were received after the expiry of the limitation period. In analyzing the timeliness of notices, the Court analyzed what it means to “bring” a claim. The Court reviewed the Federal Court’s interpretation of the Federal Torts Claims Act, upon which Florida’s waiver is based, as well as other Florida statutes where the term “present” has been interpreted. These cases concluded that in order to “bring” a claim, the actual receipt of the notice and that the mere sending or mailing of the notice was insufficient to satisfy the requirement of strict pre-trial interpretation. Accordingly, in all tort claims against Florida government agencies, the mandatory pre-trial notice must be received by the statutorily designated agencies before the expiration of the three-year statute of limitations, or else the lawsuit may be dismissed with prejudice.

Many view the pre-trial notice process as a mere formality, a technical requirement that receives little scrutiny. However, agency heads, risk managers and litigators should carefully review compliance with notification requirements and not do so at their own risk. Failure to promptly analyze the compliance of the pre-trial notice and assert the appropriate defenses may result in a waiver of the ability to seek summary judgment on a compelling defence. Simmons has statewide implications. Unless or until another Florida District Court of Appeals renders a different decision, all Florida trial courts are bound by its decision. Agencies and their attorneys must pay close attention to this mandatory pre-trial condition or risk inadvertently waiving a compelling defense.


[1] Simmons v Public Health Trust of Miami-Dade County2022 WL 1397454 (May 4, 2022) (pending final publication, currently subject to revision or withdrawal).

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