Maltempo v. Cuthbert

• Decision Date: 18 January 1974
• Docket Number: No. 73--732,73--732
• Parties: Michael John MALTEMPO, as administrator of the Estate of Michael John Maltempo, II, Plaintiff, v. Richard C. CUTHBERT and Liberty Mutual Insurance Company, Defendants.
• Court: Florida District Court of Appeals

Page 517

288 So.2d 517

Michael John MALTEMPO, as administrator of the Estate of Michael John Maltempo, II, Plaintiff, v. Richard C. CUTHBERT and Liberty Mutual Insurance Company, Defendants.

No. 73--732.

District Court of Appeal of Florida, Second District.

Jan. 18, 1974.

Rehearing Denied Feb. 11, 1974.

John A. Lloyd, Jr., St. Petersburg, for plaintiff.

James C. Delesie, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for defendants.

GRIMES, Judge.

This case comes to us by certified question.

The certificate succinctly sets forth the issue to be decided, to-wit:

'STATEMENT OF FACTS

The Plaintiff, MICHAEL JOHN MALTEMPO, as administrator of the Estate of Michael John Maltempo, II, heretofore, on March 2, 1973, filed his complaint in this court against the Defendants for injuries and damages sustained by Plaintiff's decedent on February 4 and 5, 1970, alleging that such injuries and damages were caused by the Defendant's, DR. RICHARD C. CUTHBERT, M.D., negligent failure to treat the decedent, MICHAEL JOHN MALTEMPO, II. MICHAEL JOHN MALTEMPO, II, died on February 5, 1970.

On February 5, 1970, there was no explicitly applicable statute of limitations for medical malpractice actions and, therefore, actions for medical malpractice came within Section 95.11(4) of Florida Statutes, F.S.A., which provided a four-year statute of limitations for any action for relief not specifically provided for within Chapter 95 of Florida Statutes, F.S.A. On June 23, 1971, the Legislature of the State of Florida amended Florida Statutes, Section 95.11(6), F.S.A., creating a specific two-year statute of limitations for medical malpractice causes of action. This bill was approved by the Governor on June 23, 1971, and filed in the office of Secretary of State on June 24, 1971. This bill provided that this amendment would take effect on July 1, 1972. The Plaintiff in filing suit on March 2, 1973, came within the general four-year statute of limitations which existed prior to July 1, 1972, but, said filing was outside of the two-year statute of limitations of Section 95.11(6), Florida Statutes, F.S.A. which came into effect on July 1, 1972.

QUESTION

Does section 95.11(6), Florida Statutes, as amended by Chapter 71--254, Laws of Florida, providing a statute of limitations of two years on actions arising out of medical malpractice, apply to an alleged act of malpractice that occurred more than two years prior to effective date of Chapter 71--254, Laws of Florida?'

The plaintiff concedes that the Legislature has the authority to adopt a statute which retroactively shortens a period of limitation, providing those having existing causes of action are given a reasonable time within which to file suit. H.K.L. Realty Corporation v. Kirtley, Fla.1954, 74 So.2d 876; Buck v. Triplett, 159 Fla. 772, 32 So.2d 753 (1947); Campbell v. Horne, 147 Fla. 523, 3 So.2d 125 (1941). The plaintiff's position is that under established rules of statutory construction ¹ it cannot be said that by merely deferring the effective date of the act the Legislature demonstrated a clear intent to give the statute retroactive application.

The defendants agree that before a statute which shortens a limitation period can be given retroactive effect, it must give those persons with existing causes of action a reasonable time within which to file suit. The defendants urge that this reasonable time was provided by the Legislature when it specified that the act should not become effective until more than a year after it was passed. No one suggests that a year is not a reasonable time for the prosecution of a cause of action where a limitation period has been shortened.

There is no controlling precedent in Florida. ² The closest case in point is Robinson v. Johnson, Fla.App. 1959, 110 So.2d 68. In that case, one of the questions was whether or not a person whose workmen's compensation claim was subject to a three year statute of limitation lost her right to prosecute the claim when the Legislature reduced the limitation period to two years. Her claim had accrued more than two but less than three years prior to the effective date of the act. It was argued that since the act was filed in the Governor's office on May 24 and the effective date was not until July 1, this indicated a legislative intent to make the act retroactive to causes of action accruing prior to its effective date. In holding that the statute did not have retroactive effect, the court rejected this contention without discussion. Therefore, it cannot be determined whether the court was saying that a statute cannot be given retroactive effect through the vehicle of deferring the effective date or simply felt that five weeks and two days was an unreasonably short time within which to bring a suit.

We cannot tell from reading the title to Chapter 71--254 whether the Legislature intended the statute to have retroactive effect. One might reasonably conclude that the Legislature delayed the effective date of the statute so as to protect persons with existing causes of action, thereby manifesting an intent that the statute should be applied retroactively. However, there can be other reasons for deferring the effective date of a statute, and we have been referred to nothing in the legislative history of this law which provides any insight.

Our conclusion is that where...