Foley v. Morris, 48876

CourtUnited States State Supreme Court of Florida
Writing for the CourtDREW; OVERTON
Citation339 So.2d 215
PartiesJames M. FOLEY, Petitioner, v. George A. MORRIS, M.D., and the Hartford Accident & Indemnity Company, Respondents.
Docket NumberNo. 48876,48876
Decision Date04 November 1976

Page 215

339 So.2d 215
James M. FOLEY, Petitioner,
v.
George A. MORRIS, M.D., and the Hartford Accident & Indemnity Company, Respondents.
No. 48876.
Supreme Court of Florida.
Nov. 4, 1976.

Edward A. Perse, of Horton, Perse & Ginsberg, Miami, and Muscarella, Perenich & Carroll, Clearwater, for petitioner.

Stephen L. Rosen and Paul F. Crames, of Marlow, Mitzel, Ortmayer & Shofi, Miami, for respondents.

DREW, Justice (Retired).

We have for review the decision of the District Court of Appeal, Second District, in Foley v. Morris, 325 So.2d 37 (Fla.2d DCA, 1976), which conflicts with Maltempo v.

Page 216

Cuthbert, 288 So.2d 517 (Fla.2d DCA, 1974), certiorari denied 297 So.2d 569 (Fla.1974), and DeLuca v. Mathews, 297 So.2d 854 (Fla.4th DCA, 1974), thereby vesting jurisdiction in this Court. Article V, Section 3(b)(3), Florida Constitution.

On September 17, 1974, petitioner filed his complaint against Dr. Morris and his insurer, Hartford, alleging the respondent physician left a rubber drain in his body during surgery performed on April 14, 1971; that said drain was removed on September 11, 1971, by Dr. William E. Kilgore when he performed further surgery on petitioner necessitated by respondent Morris' original negligence; that on November 13, 1972, Dr. Kilgore performed additional surgery allegedly made necessary by the negligence involved in the first operation. Respondents sought dismissal on basis that petitioner's cause of action was barred by the two-year statute of limitations, Fla.Stat. § 95.11(6) (1973), effective July 1, 1972, rather than the four-year statute of limitations, Section 95.11(4), Florida Statutes, in effect when the cause of action accrued. The trial court granted the motion and entered a final order of dismissal from which the plaintiff appealed. Concluding petitioner's cause was governed by the new two-year statute of limitations, the District Court of Appeal affirmed the final order of dismissal.

The questions posited for our determination are (1) whether petitioner's cause of action accrued on September 11, 1971, when the drain was discovered or on November 13, 1972, at which time petitioner underwent additional surgery and (2) whether petitioner's cause of action is governed by the four-year statute of limitations, Section 95.11(4), Florida Statutes, or by the new two-year statute of limitations, Section 95.11(6), Florida Statutes, which became effective July 1, 1972.

We agree with the District Court that petitioner's cause of action accrued on September 11, 1971, 1 at which time the rubber drain was removed. 2 However, we do not concur with the District Court's determination that the new two-year statute of limitations should apply sub judice. In...

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52 practice notes
  • Bogorff By and Through Bogorff v. Koch, Nos. 86-2550
    • United States
    • Court of Appeal of Florida (US)
    • April 18, 1989
    ...for any actions not specifically provided for in Chapter 95. 5 See Dade County v. Ferro, 384 So.2d 1283 (Fla.1980); Foley v. Morris, 339 So.2d 215 (Fla.1976); Hellinger v. Fike, 503 So.2d 905 (Fla. 5th DCA 1986), review denied, 508 So.2d 14 (Fla.1987). In malpractice lawsuits governed by th......
  • Fitchner v. Lifesouth Cmty. Blood Ctrs., Inc., No. 1D10–2019.
    • United States
    • Court of Appeal of Florida (US)
    • May 30, 2012
    ...of reasonable doubt.” See Trustees of Tufts College v. Triple R. Ranch, Inc., 275 So.2d 521, 524 (Fla.1973); see also Foley v. Morris, 339 So.2d 215, 216–17 (Fla.1976). The part of the legislation that addresses the intended application of the 2003 amendment to the medical malpractice statu......
  • Kotval v. Gridley, No. 82-1355
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 18, 1983
    ...36 Colo.App. 439, 543 P.2d 108, 110 (1975); Valenzuela v. Mercy Hospital, 34 Colo.App. 5, 521 P.2d 1287, 1289 (1974); Foley v. Morris, 339 So.2d 215, 217 (Fla.1976); Martin v. Clements, Page 348 8 Idaho 906, 575 P.2d 885, 887 (1978); Miller v. Fallon, 134 Me. 145, 183 A. 416, 417-19 (1936);......
  • Fitchner v. Lifesouth Cmty. Blood Ctrs., Inc., CASE NO. 1D10-2019
    • United States
    • Court of Appeal of Florida (US)
    • April 13, 2012
    ...of reasonable doubt." See Trustees of Tufts College v. Triple R. Ranch, Inc., 275 So. 2d 521, 524 (Fla. 1973); see also Foley v. Morris, 339 So. 2d 215, 216-17 (Fla. 1976). The part of the legislation that addresses the intended application of the 2003 amendment to the medical malpractice s......
  • Request a trial to view additional results
52 cases
  • Bogorff By and Through Bogorff v. Koch, Nos. 86-2550
    • United States
    • Court of Appeal of Florida (US)
    • April 18, 1989
    ...for any actions not specifically provided for in Chapter 95. 5 See Dade County v. Ferro, 384 So.2d 1283 (Fla.1980); Foley v. Morris, 339 So.2d 215 (Fla.1976); Hellinger v. Fike, 503 So.2d 905 (Fla. 5th DCA 1986), review denied, 508 So.2d 14 (Fla.1987). In malpractice lawsuits governed by th......
  • Fitchner v. Lifesouth Cmty. Blood Ctrs., Inc., No. 1D10–2019.
    • United States
    • Court of Appeal of Florida (US)
    • May 30, 2012
    ...of reasonable doubt.” See Trustees of Tufts College v. Triple R. Ranch, Inc., 275 So.2d 521, 524 (Fla.1973); see also Foley v. Morris, 339 So.2d 215, 216–17 (Fla.1976). The part of the legislation that addresses the intended application of the 2003 amendment to the medical malpractice statu......
  • Kotval v. Gridley, No. 82-1355
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 18, 1983
    ...36 Colo.App. 439, 543 P.2d 108, 110 (1975); Valenzuela v. Mercy Hospital, 34 Colo.App. 5, 521 P.2d 1287, 1289 (1974); Foley v. Morris, 339 So.2d 215, 217 (Fla.1976); Martin v. Clements, Page 348 8 Idaho 906, 575 P.2d 885, 887 (1978); Miller v. Fallon, 134 Me. 145, 183 A. 416, 417-19 (1936);......
  • Fitchner v. Lifesouth Cmty. Blood Ctrs., Inc., CASE NO. 1D10-2019
    • United States
    • Court of Appeal of Florida (US)
    • April 13, 2012
    ...of reasonable doubt." See Trustees of Tufts College v. Triple R. Ranch, Inc., 275 So. 2d 521, 524 (Fla. 1973); see also Foley v. Morris, 339 So. 2d 215, 216-17 (Fla. 1976). The part of the legislation that addresses the intended application of the 2003 amendment to the medical malpractice s......
  • Request a trial to view additional results

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