Glass v. Camara, KK-343

• Citation: 369 So.2d 625
• Decision Date: 20 March 1979
• Docket Number: No. KK-343,KK-343
• Parties: Olivene G. GLASS, Individually and as personal representative of the Estate of Gilbert M. Glass, Jr., Deceased, Appellant, v. J. A. CAMARA, Appellee.
• Court: Court of Appeal of Florida (US)

Page 625

369 So.2d 625

Olivene G. GLASS, Individually and as personal representative of the Estate of Gilbert M. Glass, Jr., Deceased, Appellant, v. J. A. CAMARA, Appellee.

No. KK-343.

District Court of Appeal of Florida, First District.

March 20, 1979.

Rehearing Denied May 4, 1979.

Edwin A. Green, II, Tallahassee, for appellant.

Ray L. Wilson, Jacksonville, for appellee.

SMITH, Judge.

Plaintiff appeals from a final summary judgment for the defendant physician. The trial court held that plaintiff's action for the wrongful death of her husband, allegedly the result of inadequate medical diagnosis of his cancer, was barred by the two-year statute of limitations. Section 95.11(4), Florida Statutes. If the two-year limitation period began to run on the date of death, May 29, 1974, the action was barred when filed on July 25, 1977. In the interim plaintiff lost the benefit of tolling the running of the statute by medical mediation proceedings, because the action was not filed within 60 days after termination of the mediation panel's jurisdiction. Section 768.44(4), Florida Statutes (1977); Perkins v. Pare, 352 So.2d 65 (Fla. 4th DCA 1977).

Construing Section 95.11(6), Florida Statutes (1973), this court held that the two-year limitation period on a wrongful death action for medical malpractice runs from the date of death although in case of injury only the period does not begin until plaintiff discovers or reasonably should discover the injury. Fletcher v. Dozier, 314 So.2d 241 (Fla. 1st DCA 1975). Fletcher's construction of Section 95.11(6), Florida Statutes (1973), was hinged to that statute's clear distinction between actions for wrongful death and actions for "injuries to the person."

An amendment to Section 95.11(4) in 1974 partially removed the language on which Fletcher was based. No longer did Section 95.11(4)(a) confine the benefit of a postponed limitation period, in case of excusable ignorance, to claims for "injuries to the person" by malpractice. The 1974 amendment of Section 95.11(4)(a) seemingly extended that benefit to all persons having an undiscovered cause of action for professional malpractice, although Section 95.11(4)(d) continued to provide separately, without qualification, for a two-year limitation on "(a)n action for wrongful death." Whatever would be the proper construction of the 1974 legislation, comprehensive 1975 amendments to Section 95.11(4) ¹ made clear that the two-year statute does not begin to run on any action for medical malpractice, whether resulting in injury or in death, until "the cause of action is discovered or should have been discovered with the exercise of due diligence." The 1975 amendments provide a four-year limit on undiscovered causes of action in the absence of fraud, concealment, or misrepresentation, providing that "in no event shall the action be commenced later than four years from the date of the incident or occurrence out of which the cause of action accrued." Plaintiff urges that the 1975 statute be applied retrospectively to preserve her cause of action which accrued May 29, 1974, but was not sued on until July 25, 1977. Plaintiff's husband had not been dead two years when the 1975 legislation became effective to postpone the running of the limitation period on undiscovered causes of action for wrongful death by medical malpractice. We have held that a legislative lengthening of the period of limitations inures to the benefit of a claimant whose pre-existing claim is not yet barred by the former, shorter limitation period. Mazda Motors of America, Inc. v. S. C. Henderson & Sons, Inc., 364 So.2d 107 (Fla. 1st DCA 1978).

There is good reason for extending the benefit of Mazda to medical malpractice claimants, who are deterred in suing within two years after accrual of the cause of action by 1975 legislation making medical mediation a condition precedent. Section 768.133, Florida Statutes (1975); Section 768.44, Florida Statutes (1977). In compliance with the medical mediation statute, plaintiff filed a complaint for medical mediation on May 26, 1976, within two years of her husband's death. If plaintiff had been privileged to maintain this action without first demanding mediation, the filing of this action on May 26, 1976, would have been timely by any reading of Section 95.11(4). Because plaintiff's pre-existing cause of action was thus burdened with conditions precedent to suit imposed by the 1975 Legislature, it is appropriate also to extend to her all beneficial extensions of the time for suit, including postponement of the limitation period until the cause of action is reasonably discoverable, which were enacted by the same session law. Chapter 75-9, Sections 5, 7, Fla.Laws.

This record contains no pleading or evidence suggesting when plaintiff discovered or should have discovered her asserted cause of action for her husband's death on May 29, 1974. The issue is therefore whether, on this appeal from a defendant's summary judgment, the consequences of a silent record should be visited upon the plaintiff or the defendant.

A record that is silent on a determinative issue of fact forecloses summary judgment, for the movant's burden is to "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fla.R.Civ.P. 1.510(c). One would expect to find the "material" facts, concerning which all issues must be dispelled, in the pleadings whose office it is to make issues. In this case the pleadings are silent. Defendant affirmatively pleaded the bar of the statute of limitation in language even more conclusory and imprecise than that countenanced by Fla.R.Civ.P. form 1.965 ²; defendant simply invoked the asserted bar of Section 95.11 and did not aver either that the action was filed more than two years after the cause of action accrued or that the action was filed more than two years after plaintiff discovered or should have discovered the asserted cause of action. Nor did plaintiff by reply seek to avoid the affirmative defense; she did not allege that she was excusably ignorant of the cause of action until within two years of filing. Fla.R.Civ.P. 1.100(a). Plaintiff interposed a wholly superfluous denial of the affirmative defense. See Trawick, Florida Practice and Procedure, section 11-6 (1978). In these circumstances the record's silence was no impediment to a summary judgment for defendant if plaintiff's knowledge or excusable ignorance of her cause of action was "immaterial" because not pleaded by plaintiff. But the summary judgment was improper if proof of plaintiff's knowledge of the cause of action, or her means of knowledge, was essential to defendant's establishment of the affirmative defense.

We hold that a defendant invoking the two-year limitation period prescribed by Section 95.11(4)(b) for medical malpractice actions must demonstrate that the action was commenced beyond two years after "the time the cause of action (was) discovered or should have been discovered with the exercise of due diligence." Section 95.11(4)(a). So holding, we distinguish a line of Florida cases holding that the waiver or tolling of a statute of limitation, otherwise running continuously from the time the cause of action accrued, is a matter of avoidance which plaintiff must plead by reply to the affirmative defense. Tuggle v. Maddox, 60 So.2d 158 (Fla.1952); Proctor v. Schomberg, 63 So.2d 68 (Fla.1953); Akin v. City of Miami, 65 So.2d 54 (Fla.1953); A & G Aircraft Service, Inc. v. Johnson, 192 So.2d 74 (Fla. 4th DCA 1966); Young v. Williamson, 169 So.2d 856 (Fla. 2d DCA 1964). See also Trawick Op. cit. supra, Sections 11-6 and 11-7; Bullen and Leake, Precedents of Pleadings at 631 et seq. (7th ed. 1915); and 54 C.J.S. Limitations of Actions §§ 375-77. Those authorities yet govern the pleading and proof of such matters as fraud, concealment, incompetency, absence from the state of the person to be sued, and recent acknowledgment of a debt otherwise barred; ³ and a plaintiff seeking to avoid a statute of limitations in whole or part on one of those grounds must reply to avoid the affirmative defense, in order to set up a paper issue to which defendant's motion for summary judgment may be addressed.

Our decision is supported by Cowan v. Turchin, 270 So.2d 449 (Fla....