39 Fla. L. Weekly D165a
Torts — Automobile accident involving police car —
Municipal corporations — Sovereign immunity — Limitation of actions — Letter
to city describing accident, plaintiff’s injuries, and the amount of plaintiff’s
medical bills and stating that a demand was being made was sufficient to satisfy
statutory notice requirement — Amended complaints which added language that
plaintiff had satisfied notice requirement and which dropped police officer as
party to action related back to date of original pleading, which was filed
within four-year limitations period — Trial court erred in entering summary
judgment in favor of city on bases that plaintiff failed to comply with
statutory notice requirements and that statute of limitations had expired
Municipal corporations — Sovereign immunity — Limitation of actions — Letter
to city describing accident, plaintiff’s injuries, and the amount of plaintiff’s
medical bills and stating that a demand was being made was sufficient to satisfy
statutory notice requirement — Amended complaints which added language that
plaintiff had satisfied notice requirement and which dropped police officer as
party to action related back to date of original pleading, which was filed
within four-year limitations period — Trial court erred in entering summary
judgment in favor of city on bases that plaintiff failed to comply with
statutory notice requirements and that statute of limitations had expired
RUTH VARGAS, Appellant, v. CITY OF FORT MYERS, FLORIDA, Appellee. 2nd
District. Case No. 2D12-2485. Opinion filed January 17, 2014. Appeal from the
Circuit Court for Lee County; J. Frank Porter, Judge. Counsel: Victor M. Arias
of Arias Law Firm, P.A., Cape Coral, for Appellant. Mark S. Moriarty, Assistant
City Attorney, Fort Myers, for Appellee.
District. Case No. 2D12-2485. Opinion filed January 17, 2014. Appeal from the
Circuit Court for Lee County; J. Frank Porter, Judge. Counsel: Victor M. Arias
of Arias Law Firm, P.A., Cape Coral, for Appellant. Mark S. Moriarty, Assistant
City Attorney, Fort Myers, for Appellee.
(SLEET, Judge.) Ruth Vargas appeals the summary judgment entered in favor of
the City of Fort Myers (Fort Myers) on the bases that Vargas failed to comply
with section 768.28, Florida Statutes (2005), and the statute of limitations
expired. We disagree. Accordingly, we reverse.
the City of Fort Myers (Fort Myers) on the bases that Vargas failed to comply
with section 768.28, Florida Statutes (2005), and the statute of limitations
expired. We disagree. Accordingly, we reverse.
I. Background
On March 3, 2005, Vargas was injured in a traffic accident involving a Fort
Myers police car. On May 13, 2005, Vargas’s attorney sent Fort Myers a letter
informing it of the accident, requesting insurance information, and informing it
that Vargas was represented by an attorney. On May 16, 2005, Fort Myers
responded to the letter and disclosed that it was self-insured and outlined its
liability limits of coverage. On March 9, 2007, Vargas provided Fort Myers with
another letter in which she described the accident, her injuries, the cost of
her medical bills, and a demand for the full policy limits. On September 29,
2008, Fort Myers sent a letter to Vargas in which it reiterated that it was
self-insured and included its limits of coverage. Vargas followed up with
another demand letter on November 17, 2008, and informed Fort Myers that she had
complied with the statutory requirements set forth in section 768.28(6)(a). On
November 20, 2008, Fort Myers sent a letter to Vargas acknowledging that it had
received the November 17, 2008, letter and that the three-year notice period in
section 768.28(6)(a) had expired.
Myers police car. On May 13, 2005, Vargas’s attorney sent Fort Myers a letter
informing it of the accident, requesting insurance information, and informing it
that Vargas was represented by an attorney. On May 16, 2005, Fort Myers
responded to the letter and disclosed that it was self-insured and outlined its
liability limits of coverage. On March 9, 2007, Vargas provided Fort Myers with
another letter in which she described the accident, her injuries, the cost of
her medical bills, and a demand for the full policy limits. On September 29,
2008, Fort Myers sent a letter to Vargas in which it reiterated that it was
self-insured and included its limits of coverage. Vargas followed up with
another demand letter on November 17, 2008, and informed Fort Myers that she had
complied with the statutory requirements set forth in section 768.28(6)(a). On
November 20, 2008, Fort Myers sent a letter to Vargas acknowledging that it had
received the November 17, 2008, letter and that the three-year notice period in
section 768.28(6)(a) had expired.
On December 22, 2008, Vargas filed her complaint for negligence against Fort
Myers and the police officer who drove the police car. On March 17, 2010, Vargas
filed an amended complaint and attached the March 9, 2007, demand letter. On
March 22, 2010, the trial court granted Fort Myers’ motion to dismiss with
prejudice as to the officer and without prejudice as to Fort Myers and granted
Vargas twenty days to file an amended complaint. On April 3, 2010, Vargas filed
an amended complaint, in which she stated that she had sent notice to Fort
Myers. On August 16, 2010, the trial court denied Fort Myers’ second motion to
dismiss based on the running of the statute of limitations, sovereign immunity
(notice) pursuant to section 768.28(6)(a), and sovereign immunity (pleadings)
pursuant to section 768.28(6)(b). On December 16, 2011, Fort Myers filed a
motion for summary judgment, again arguing that Vargas failed to comply with the
notice requirement set forth in 768.28(6)(a). On March 23, 2012, the trial court
granted Fort Myers’ motion for summary judgment on the basis that “[p]laintiff
failed to comply with Florida Statutes §768.28” and “the Statute of Limitations
expired.” This appeal ensued.
Myers and the police officer who drove the police car. On March 17, 2010, Vargas
filed an amended complaint and attached the March 9, 2007, demand letter. On
March 22, 2010, the trial court granted Fort Myers’ motion to dismiss with
prejudice as to the officer and without prejudice as to Fort Myers and granted
Vargas twenty days to file an amended complaint. On April 3, 2010, Vargas filed
an amended complaint, in which she stated that she had sent notice to Fort
Myers. On August 16, 2010, the trial court denied Fort Myers’ second motion to
dismiss based on the running of the statute of limitations, sovereign immunity
(notice) pursuant to section 768.28(6)(a), and sovereign immunity (pleadings)
pursuant to section 768.28(6)(b). On December 16, 2011, Fort Myers filed a
motion for summary judgment, again arguing that Vargas failed to comply with the
notice requirement set forth in 768.28(6)(a). On March 23, 2012, the trial court
granted Fort Myers’ motion for summary judgment on the basis that “[p]laintiff
failed to comply with Florida Statutes §768.28” and “the Statute of Limitations
expired.” This appeal ensued.
II. Analysis
This court reviews a trial court’s order on a motion for summary judgment de
novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126,
130 (Fla. 2000). “The underlying purpose of a motion for summary judgment ‘is to
determine whether any genuine issues of material fact exist for resolution by
the trier of fact.’ ” Coral v. Garrard Crane Serv., Inc., 62 So. 3d 1270,
1273 (Fla. 2d DCA 2011) (quoting CSX Transp., Inc. v. Pasco Cnty., 660
So. 2d 757, 758 (Fla. 2d DCA 1995)). “If the record reflects the existence of
any genuine issue of material fact, or the possibility of an issue, or if the
record raises even the slightest doubt that an issue might exist, summary
judgment is improper.” Christian v. Overstreet Paving Co., 679 So. 2d
839, 840 (Fla. 2d DCA 1996). Courts should be cautious when granting motions for
summary judgment in negligence suits. Moore v. Morris, 475 So. 2d 666,
668 (Fla. 1985).
novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126,
130 (Fla. 2000). “The underlying purpose of a motion for summary judgment ‘is to
determine whether any genuine issues of material fact exist for resolution by
the trier of fact.’ ” Coral v. Garrard Crane Serv., Inc., 62 So. 3d 1270,
1273 (Fla. 2d DCA 2011) (quoting CSX Transp., Inc. v. Pasco Cnty., 660
So. 2d 757, 758 (Fla. 2d DCA 1995)). “If the record reflects the existence of
any genuine issue of material fact, or the possibility of an issue, or if the
record raises even the slightest doubt that an issue might exist, summary
judgment is improper.” Christian v. Overstreet Paving Co., 679 So. 2d
839, 840 (Fla. 2d DCA 1996). Courts should be cautious when granting motions for
summary judgment in negligence suits. Moore v. Morris, 475 So. 2d 666,
668 (Fla. 1985).
According to section 768.28(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, except as to any claim against a
municipality or the Florida Space Authority, presents such claim in writing to
the Department of Financial Services, within 3 years after such claim accrues
and the Department of Financial Services or the appropriate agency denies the
claim in writing . . . .
The notice requirement is a condition precedent to maintaining an action. §
768.28(6)(b). “[T]he purpose of the notice requirement is to provide the State
and its agencies sufficient notice of claims filed against them and time to
investigate and respond to those claims.” Aitcheson v. Fla. Dep’t of Highway
Safety & Motor Vehicles, 117 So. 3d 854, 856 (Fla. 4th DCA 2013)
(quoting Cunningham v. Fla. Dep’t of Children & Families, 782 So. 2d
913, 915 (Fla. 1st DCA 2001)). The notice “must be sufficiently direct and
specific to reasonably put the department on notice of the existence of the
claim and demand.” LaRiviere v. S. Broward Hosp. Dist., 889 So. 2d 972,
974 (Fla. 4th DCA 2004). Moreover, it must be written and “sufficiently
describe[ ] or identif[y] the occurrence so that the agency may investigate it.”
Aitcheson, 117 So. 3d at 856 (alteration in original) (quoting
LaRiviere, 889 So. 2d at 974). While strict compliance with the section
is required, “the form of the notice is not specified.” Id. at 856. The
cases to date yield no talismanic rule as to the specificity of the notice.
Here, the letter sent on March 9, 2007, described the accident, Vargas’s
injuries, the amount of her medical bills, and that a demand was being made.
Fort Myers was placed on adequate notice and was able to investigate the claim
based on the information provided in the letter. As such, Vargas’s letter
satisfied the notice requirement set forth in section 768.28(6)(a).1
768.28(6)(b). “[T]he purpose of the notice requirement is to provide the State
and its agencies sufficient notice of claims filed against them and time to
investigate and respond to those claims.” Aitcheson v. Fla. Dep’t of Highway
Safety & Motor Vehicles, 117 So. 3d 854, 856 (Fla. 4th DCA 2013)
(quoting Cunningham v. Fla. Dep’t of Children & Families, 782 So. 2d
913, 915 (Fla. 1st DCA 2001)). The notice “must be sufficiently direct and
specific to reasonably put the department on notice of the existence of the
claim and demand.” LaRiviere v. S. Broward Hosp. Dist., 889 So. 2d 972,
974 (Fla. 4th DCA 2004). Moreover, it must be written and “sufficiently
describe[ ] or identif[y] the occurrence so that the agency may investigate it.”
Aitcheson, 117 So. 3d at 856 (alteration in original) (quoting
LaRiviere, 889 So. 2d at 974). While strict compliance with the section
is required, “the form of the notice is not specified.” Id. at 856. The
cases to date yield no talismanic rule as to the specificity of the notice.
Here, the letter sent on March 9, 2007, described the accident, Vargas’s
injuries, the amount of her medical bills, and that a demand was being made.
Fort Myers was placed on adequate notice and was able to investigate the claim
based on the information provided in the letter. As such, Vargas’s letter
satisfied the notice requirement set forth in section 768.28(6)(a).1
The trial court also erred in granting summary judgment in favor of Fort
Myers on the basis that the statute of limitations expired. Vargas had four
years from the date of the accident to bring an action founded in negligence.
See § 95.11(3)(a), Fla. Stat. (2005). The record demonstrates that she
filed her original complaint on December 22, 2008, which is well within the
four-year limitation. Vargas’s subsequent amended complaints merely added the
language that she had satisfied the notice requirement and dropped the police
officer as a party to the action. Because the amended complaints related back to
the date of the original pleading, Vargas did not file outside of the statute of
limitations. See Fla. R. Civ. P. 1.190(c); see also C.H. v.
Whitney, 987 So. 2d 96, 99 (Fla. 5th DCA 2008) (“The relation back doctrine
is to be applied liberally.”).
Myers on the basis that the statute of limitations expired. Vargas had four
years from the date of the accident to bring an action founded in negligence.
See § 95.11(3)(a), Fla. Stat. (2005). The record demonstrates that she
filed her original complaint on December 22, 2008, which is well within the
four-year limitation. Vargas’s subsequent amended complaints merely added the
language that she had satisfied the notice requirement and dropped the police
officer as a party to the action. Because the amended complaints related back to
the date of the original pleading, Vargas did not file outside of the statute of
limitations. See Fla. R. Civ. P. 1.190(c); see also C.H. v.
Whitney, 987 So. 2d 96, 99 (Fla. 5th DCA 2008) (“The relation back doctrine
is to be applied liberally.”).
Because Vargas satisfied the requirements set forth in section 768.28 and
because she filed her complaint within the statute of limitations, we reverse.
because she filed her complaint within the statute of limitations, we reverse.
Reversed and remanded. (NORTHCUTT and LaROSE, JJ., Concur.)
__________________
1To the extent that the March 9, 2007,
letter does not contain Vargas’s date and place of birth and social security
number, providing this information is not necessary in the notice. See
Williams v. Henderson, 687 So. 2d 838, 839 (Fla. 2d DCA 1996).
letter does not contain Vargas’s date and place of birth and social security
number, providing this information is not necessary in the notice. See
Williams v. Henderson, 687 So. 2d 838, 839 (Fla. 2d DCA 1996).