Levine v. Dade County School Bd.
| Decision Date | 08 December 1983 |
| Docket Number | No. 62804,62804 |
| Citation | 442 So.2d 210 |
| Parties | 15 Ed. Law Rep. 437 Robert LEVINE, Petitioner, v. DADE COUNTY SCHOOL BOARD, Respondent. |
| Court | Florida Supreme Court |
Arthur W. Tifford, Miami, for petitioner.
Donna S. Catoe of Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs, Miami, for respondent.
Jim Smith, Atty. Gen. and Joseph A. Linnehan, Asst. Atty. Gen., Tallahassee, for State of Fla., amicus curiae.
Robert A. Ginsburg, Dade County Atty. and James A. Jurkowski, Asst. County Atty., Miami, for Metropolitan Dade County, amicus curiae.
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, we have jurisdiction. Art. V, § 3(b)(4), Fla. Const.
Robert Levine brought an action against the Dade County School Board alleging that on March 27, 1977, when he was a public high school student, he was the victim of a severe beating at the hands of other students during school hours and on school grounds. The complaint alleged that the incident was caused by the negligent failure of school district employees to maintain order and supervise the activities of students. The complaint alleged severe personal injuries.
Prior to filing his lawsuit, Levine provided written notice of his claim to the school board. However, he did not notify the State Department of Insurance within three years of the accrual of the cause of action as is required by section 768.28(6), Florida Statutes (1977). Section 768.28 is the statutory waiver of sovereign immunity for the state, its agencies, and its subdivisions. On motion of the school district, the trial court dismissed the complaint for failure to allege notice to the Department of Insurance.
Having failed to give the required notice within three years of the incident, Levine was unable to amend his complaint to allege that the notice had been timely given. Instead he filed an amended complaint which made clear that such notice had not been given, but he attached the affidavit of an official of the Department of Insurance to the effect that the department had no financial interest in the outcome of the suit and no role or function in the defense of claims against school districts. According to the affidavit, the department's role in cases such as this is limited to gathering information and keeping records about such claims and reporting the information to the legislature from time to time. The trial court dismissed the complaint with prejudice.
On appeal the district court found merit in Levine's argument that the notice provisions should not be deemed a strict condition precedent to filing suit, but affirmed the trial court's ruling on the authority of Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979), where this Court held that the notice requirements of section 768.28(6) are conditions precedent to maintaining a suit. The district court certified the following question:
May a plaintiff maintain an action to recover damages from a state agency or subdivision, pursuant to section 768.28(6), Florida Statutes (1977), if he notified the appropriate agency but failed to present a written notice of claim to the Department of Insurance, which has no interest or role in the proceedings other than to report claims to the legislature, and no prejudice resulted?
419 So.2d at 809. We are compelled to answer the question in the negative and approve the decision of the district court of appeal.
Section 768.28(6) reads as follows:
(6) 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 3 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 6 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.
There is some support in this statute for the suggestion that the notice requirement in question should only apply to cases in which the Department of Insurance has some official role or interest. For example, the statute makes reference to "the Department of Insurance or the appropriate agency" denying the claim and making "final disposition of a claim." It can be inferred that the statute contemplates some role for the department in responding to claims against the state. One can speculate that the department may have such a role in lawsuits against departments and agencies of the executive branch of state government. The provision in section 768.28(6) excepting suits against municipalities from the requirement of notice to the Department of Insurance, together with the affidavit negating any role or...
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City of Gainesville v. STATE, DOT
...court has held that facts on which a waiver of sovereign immunity depends must be pleaded in the complaint. Levine v. Dade County Sch. Bd., 442 So.2d 210, 213 (Fla.1983); Arnold v. Shumpert, 217 So.2d 116, 120 (Fla.1968) (holding that in "suing a county a plaintiff must allege in his compla......
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Smith v. Rainey
...a plaintiff must allege in the complaint that he complied with the notice provisions of Section 768.28(6). See Levine v. Dade County Sch. Bd., 442 So.2d 210, 212–13 (Fla.1983). Although the Amended Complaint does not expressly cite § 768.28(6)(a), it alleges that “[a]ll conditions precedent......
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Rowe v. City of Fort Lauderdale
...alone requires the dismissal of Counts VI and VII for failure to seek a timely waiver of sovereign immunity. See Levine v. Dade County Sch. Bd., 442 So.2d 210 (Fla.1983); Hansen v. State of Florida, 503 So.2d 1324 (Fla. 1st DCA 1987); Halpin v. Short, 490 So.2d 1271 (Fla. 2nd DCA 1986). The......
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Woodburn v. Fla. Dep't of Children & Family Servs.
...the notice be given before a suit may be maintained, but also the complaint must contain an allegation of notice.” Levine v. Dade Cnty. Sch. Bd., 442 So.2d 210, 213 (Fla.1983) (citing Commercial Carrier Corp. v. Indian River Cnty., 371 So.2d 1010 (Fla.1979)); see also Bloom v. Miami–Dade Cn......