Angrand v. Fox

• Decision Date: 12 September 1989
• Docket Number: 88-1115,Nos. 88-468,s. 88-468
• Citation: 14 Fla. L. Weekly 2135,552 So.2d 1113
• Parties: 14 Fla. L. Weekly 2135 Roland Pierre ANGRAND, et al., Appellants, v. Morry FOX, D.O., et al., Appellees.
• Court: Florida District Court of Appeals

Page 1113

552 So.2d 1113

14 Fla. L. Weekly 2135

Roland Pierre ANGRAND, et al., Appellants, v.Morry FOX, D.O., et al., Appellees.

Nos. 88-468, 88-1115.

District Court of Appeal of Florida Third District.

Sept. 12, 1989.

Rehearing Denied Dec. 8, 1989.

Horton, Perse & Ginsberg and Arnold Ginsberg, Cohen & Cohen, for appellants.

Womack, Lombana & Bass and Judy Bass, Stephens, Lynn, Klein & McNicholas and Debra J. Snow, for appellees.

Before SCHWARTZ, C.J., and NESBITT and LEVY, JJ.

SCHWARTZ, Chief Judge.

Roland Pierre Angrand, as personal representative of his wife's estate, brings these consolidated appeals from two orders dismissing separate but identical actions in a medical malpractice wrongful death case.The grounds assigned were respectively that (a) the first complaint was prematurely filed prior to the expiration of the ninety-day screening and investigation period provided by section 768.57(3)(a), Florida Statutes(1987), and (b) the subsequently filed second complaint was barred by the statute of limitations.We reverse both orders.¹

Carolyn Angrand died on June 19, 1985, allegedly as a result of the medical malpractice of the defendants-appellees, Drs. Fox, Key, and Harari and Diskin, Porter, Blumenthal & Brown, a partnership formerly known as Emergency Medical Specialists of South Florida, Inc.On June 11, 1987, with eight days remaining in the two-year limitations period, § 95.11(4)(d),Fla.Stat.(1987), the plaintiff secured an "automatic 90-day extension," or tolling of the statute of limitations pursuant to section 768.495(2), Florida Statutes(1987).²Approximately a month later, on July 17, 1987, Angrand served ninety-day notices of intent on the defendants under section 768.57(3)(a), Florida Statutes(1987).³,⁴

Less than ninety days thereafter, on September 8, 1987, Angrand filed the first of his two lawsuits (Angrand I) in the Dade County circuit court.On November 5, 1987, as to one defendant, and on January 27, 1988, as to the others, the trial court pronounced the lawsuit a "nullity" and dismissed the action with prejudice ⁵ because it had been commenced prior to the conclusion of the ninety-day period under section 768.57(3)(a).The appeal from that ruling is before us as Case no. 88-468.

Meanwhile, the plaintiff refiled the complaint (Angrand II) on December 16, 1987.This cause was then itself dismissed on the ground that the tolling of the statute of limitations, which began on June 11, 1987, was extended only for ninety days from the filing of the notices of intent, or from July 17, 1987, until October 17, 1987.Thus, according to the defendants and the trial court, it terminated on October 25, 1987, when the eight days remaining in the statutory period expired.The plaintiffs appeal from this order in Case No. 88-1115.

I

We first hold that Angrand I, which was at worst filed prematurely, was not for that reason a nullity and could not properly have been dismissed.It is important to note that prior to its filing on September 8, 1987, due notice had been given to the defendants⁶ as required by section 768.57(3)(a); moreover, there is not even a claim that, at that point, the limitations period had run.Thus, the only alleged defect in the complaint was that it was brought too soon.⁷Mere prematurity, which is by definition curable simply by the passage of time is, however, not a proper basis for the outright dismissal of an action.Such a determination has no other effect than to require a refiling which benefits only the clerk by the payment of additional fees.Instead, the proper remedy is an abatement or stay of the claim for the period necessary for its maturation under the law.⁸1 Am.Jur.2d Abatement, Survival, and Revival, § 4(1962)("As a rule, an action cannot be maintained if it is commenced before the accrual of the cause of action which is sought to be enforced, and such premature commencement is a ground for the abatement of the action, even though the cause of action accrues before the trial.");1 Fla.Jur.2dActions§ 64, at 281(1977)("Another ground for abatement of an action is that it is prematurely commenced, that is, that it has been commenced before the accrual of the cause of action, as where, for example, action is commenced on an insurance policy before the expiration of the time allowed by the policy to the insurance company to exercise its option to repair the damage or pay the loss.");seeHomestead Fire Ins. Co. v. Andian Corp., 121 Fla. 356, 164 So. 187(1935);see alsoLindberg v. Hospital Corp. of America, 545 So.2d 1384(Fla. 4th DCA1989)(abatement pending compliance with notice provisions of § 768.57);Solimando v. International Medical Centers, 544 So.2d 1031(Fla. 2d DCA1989)(same).ComparePublic Health Trust v. Knuck, 495 So.2d 834(Fla. 3d DCA1986)(abatement not permissible when notice could not be filed within limitations period).See generallyKhouzam, A Review of the Pre-Suit Screening Provisions of the Comprehensive Medical Malpractice Reform Act and Its Interpretation and Application by Florida Courts, 8 Trial Advoc.Q. 85(July, 1989).As demonstrated also by other analogous cases, there is simply nothing to support the conclusion below that a premature filing is entirely void and may be accorded no legal effect whatever.SeeWilliams v. State, 324 So.2d 74(Fla.1975)(notice of appeal prematurely filed before reviewable final judgment deemed to hold over and attach to later judgment);Allied Fidelity Ins. Co. v. State, 384 So.2d 727(Fla. 3d DCA1980)(same);Holding Electric, Inc. v. Roberts, 530 So.2d 301(Fla.1988)(permitting abatement pending amendment of mechanic's lien complaint filed without statutory prerequisite of contractor's affidavit).Thus, abatement for the remainder of the ninety-day period was the only appropriate remedy below.In this case, however, even that period had run by the time that the trial court ruled on the motion to dismiss.It could therefore do nothing at that stage but to deny the motion, seeDhondy v. Schimpeler, 528 So.2d 403(Fla. 3d DCA1988), review denied, 534 So.2d 401(Fla.1988), and reversibly erred by failing to do so.

II

We also find error in the trial judge's termination of Angrand II on limitations grounds.As we have seen, the sole basis of the conclusion that the period had expired is the determination that, although the appellant had secured a ninety-day tolling period under section 768.495(2) on June 11, 1987, a new ninety-day period commenced with the section 768.57 notices on July 17, 1987, so that the latter tolling period ran concurrently with the former one until the latter expired on October 17, 1987.We disagree with this conclusion, for which we find no support in the applicable statutes.Instead, we believe that an independent ninety-day tolling period is provided by each of the two statutes, which are to be added together to yield a total of 180 days.Under this calculation, the limitations period was extended until December 19, 1987, after the filing of Angrand II on December 16.

It is well established that a limitations defense is not favored.O'Malley v. Sims, 51 Ariz. 155, 75 P.2d 50(1938);Southern Pacific R.R. v. Gonzalez, 48 Ariz. 260, 61 P.2d 377(1936), and that therefore, any substantial doubt on the question should be resolved by choosing the longer rather than the shorter possible statutory period.Payne v. Ostrus, 50 F.2d 1039(8th Cir.1931);Hughes v. Reed, 46 F.2d 435(10th Cir.1931).See generally51 Am.Jur.2dLimitation of Actions§ 63, at 642(1970).Even without resorting to these rules of construction, however, we reach the indicated result merely by applying the clear terms of the respective statutes.

(a) With respect to section 768.57(3)(a), the second district noted, in Nash v. Humana Sun Bay Community Hosp., Inc., 526 So.2d 1036, 1038(Fla. 2d DCA1988), review denied, 531 So.2d 1354(Fla.1988), that:

As we stated in Castro, section 768.57(3)(a), Florida Statutes(1985), merely operates to insulate the prospective defendant from a civil action for ninety days after the notice of intent is served and, pursuant to section 768.57(4), Florida Statutes(1985), tolls the statute of limitations for at least ninety days if the notice is timely served within the time limits set forth in section 95.11, Florida Statutes(1985).Clearly, the serving of a notice of intent to initiate litigation does not shorten the regular statute of limitations.[e.s.]

AccordCastro v. Davis, 527 So.2d 250(Fla. 2d DCA1988).

(b) Even more plainly, section 768.495(2) provides on its face both for the ninety-day tolling period in question and that "[t]his period shall be in addition to other tolling periods," obviously including the one contained in 768.57(3)(a).In the notable absence of any provision, as the defendants argue, for a simultaneous or concurrent running of the two statutory tolling periods, we must apply their unambiguous language and give them each independent, noncumulative significance.The total of 180 days thus provided renders Angrand II within the limitations period.

For these reasons, we reverse both orders under review and remand for further proceedings consistent herewith.

Reversed.

1While we understand that the reversal of either order of dismissal would moot the necessity of determining the other one, we deem it appropriate, in the interest of completely disposing of the issues before us, to consider the merits of both appeals.SeeWoods v. Interstate Realty Corp., 337 U.S. 535, 69 S.Ct. 1235, 93 L.Ed. 1524(1949);Clemons v. Flagler Hospital, Inc., 385...