Levine v. Dade County School Bd., 81-2352
| Decision Date | 28 September 1982 |
| Docket Number | No. 81-2352,81-2352 |
| Citation | 419 So.2d 808 |
| Parties | 6 Ed. Law Rep. 1213 Robert LEVINE, Appellant, v. DADE COUNTY SCHOOL BOARD, etc., Appellee. |
| Court | Florida District Court of Appeals |
Arthur W. Tifford and Peter Clemente, Miami, for appellant.
Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs and Nancy Schleifer and Donna S. Catoe, Miami, for appellee.
Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
Appellant instituted an action to recover damages for an injury he sustained when he was assaulted on school premises. His appeal challenges the trial court's ruling that his action was precluded by his failure to present written notice of claim to the Department of Insurance, even though he served timely notice upon the School Board and upon Dade County. He contends that he satisfied the requirements of section 768.28(6), Florida Statutes (1977).
According to section 768.28(6), Florida Statutes (1977):
An action shall 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, presents such claim in writing to the Department of Insurance, within three years after such claim accrues and the Department of Insurance or the appropriate agency denies the claim in writing. The failure of the Department of Insurance or the appropriate agency to make final disposition of a claim within six months after it is filed shall be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted by counterclaim pursuant to s. 768.14.
In our opinion, the failure to serve notice of claim upon the Department of Insurance should not preclude appellant from maintaining this action. By serving timely notice upon the real parties in interest, appellant complied with statutory requirements. The Department of Insurance has neither a financial interest nor an investigative concern in the proceedings and can show no prejudice from the lack of notice. Its sole function in this instance is to report the number of claims. The affidavit of the Administrator of General Liability Insurance, Michael Rinehart, establishes the mere formality of the required notice:
5. The Department of Insurance has no financial interest in any claim made against a school board for any political subdivision of the State of Florida, including each and all of the counties constituting and comprising the State of Florida.
6. The Department of Insurance has no investigative or substantive interest in any claim made against any county school board within the State of Florida; the Department of Insurance does not participate in any investigation of a claim or the disposition thereof; that is to say the Department of Insurance does not participate in the investigation of any claim made against any county school board and does not participate in any decision...
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Levine v. Dade County School Bd.
...This cause is before the Court on petition for review of the decision of the district court of appeal in Levine v. Dade County School Board, 419 So.2d 808 (Fla.3d DCA 1982). The district court certified that the dispositive issue it passed upon is one of great public importance. Therefore, ......