Menendez v. North Broward Hosp. Dist.
| Decision Date | 15 December 1988 |
| Docket Number | No. 71725,71725 |
| Citation | 537 So.2d 89,13 Fla. L. Weekly 717 |
| Parties | 13 Fla. L. Weekly 717 Daniel MENENDEZ, etc., et al., Petitioners, v. NORTH BROWARD HOSPITAL DISTRICT, etc., Respondent. |
| Court | Florida Supreme Court |
Edna L. Caruso of Edna L. Caruso, P.A., and Montgomery, Searcy & Denney, P.A., West Palm Beach, for petitioners.
William Zei of Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham & Lane, and Ellen Mills Gibbs of Gibbs & Sliverberg, Fort Lauderdale, for respondent.
We have for review Menendez v. North Broward Hospital District, 515 So.2d 1377 (Fla. 4th DCA 1987), to answer a certified question. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We approve the district court's decision.
This case presents the issue of whether the defense of failure to give notice to the Department of Insurance (Department), under subsection 768.28(6), Florida Statutes (1977), can be waived by the conduct of the defending agency. We conclude that under the facts presented here it cannot.
In April 1980, the parents of Daniel Menendez filed a medical malpractice claim against Broward General Medical Center and North Broward Hospital District alleging that while their newborn son was a patient in the hospital's neonatal unit in 1978 he contracted meningitis and as a result suffered permanent brain damage. Four years later, in April 1984, the hospital filed a notice to dismiss on the grounds that the Menendezes had failed to follow the notice requirements in subsection 768.28(6), Florida Statutes (1977), which provides that:
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.
In their amended complaint, the Menendezes assert that the hospital was directly notified via certified mail and the Department received constructive notice of the claim through the Florida Board of Medical Examiners and the Department of Health and Rehabilitative Services. They further allege that the hospital failed to raise the defense of statutory notice and participated in mediation and settlement negotiations during the four-year period that the case was pending in court.
The trial court dismissed the claim with prejudice, finding that: 1) the Menendezes had failed to allege in their complaint compliance with the notice requirements; 2) the Menendezes had failed in fact to comply with the requirements; and 3) compliance is a condition precedent to the filing of suit. The district court, in its affirmance, concluded that while the hospital may have waived its right to notice by waiting four years to raise the issue, no authority existed permitting the hospital to waive notice to the Department. The court then certified the following question:
IN A TORT ACTION BROUGHT AGAINST A GOVERNMENTAL AGENCY WHERE THE DEPARTMENT OF INSURANCE IS NOT MADE A PARTY, CAN THE STATUTORY REQUIREMENT OF NOTICE TO THE DEPARTMENT CONTAINED IN SECTION 768.28(6) BE WAIVED BY CONDUCT OF THE DEFENDING AGENCY Menendez, 515 So.2d at 1379. Under the facts presented here, we answer this question in the negative for the following reasons.
Subsection 768.28(6) requires three things prior to instituting an action against a state agency. First, the claimant must present the claim to the agency in writing. Second, the claimant must present the claim to the Department of Insurance in writing. Third, the claim proffered to the Department must be presented within three years after it accrues and the agency or the Department denies the claim in writing. The Menendezes concede that they failed to notify the Department, and that the time for notification has passed. They assert, however, that the hospital, by its actions, waived the notice...
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...to maintaining this suit, and the requirement is to be strictly construed. Fla. Stat. § 768.28(b). See Menendez v. North Broward Hospital Dist., 537 So.2d 89, 91 (Fla. 1989) (per curiam). If a negligence claim is raised, theseprerequisites must be met. Plaintiff's explanation, claiming the ......
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...such claim accrues ...." Fla. Stat. § 768.28(6)(a). A complaint must allege compliance with this requirement, Menendez v. N. Broward Hosp. Dist., 537 So.2d 89, 91 (Fla.1988), but the allegation need only be general, Glace v. Lower Fla. Keys Hosp. Dist., 481 So.2d 509, 509 (Fla.1985). A comp......
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...excused by waiver or estoppel, neither is present here. See Ingersoll v. Hoffman, 589 So.2d 223, 224 (Fla.1991); Menendez v. N. Broward Hosp. Dist., 537 So.2d 89, 91 (Fla.1988); City of Pembroke Pines v. Atlas, 474 So.2d 237, 238 (Fla. 4th DCA 1985); Prestige Dev. Group, Inc. v. Russell, 61......
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