Platt By and Through Platt v. Florida Dept. of Health and Rehabilitative Services

• Decision Date: 28 August 1995
• Docket Number: 94-2981,Nos. 94-2980,s. 94-2980
• Parties: 20 Fla. L. Weekly D1991 Roncell PLATT, a minor, By and Through her legal guardian, Samuel PLATT, and Samuel Platt, individually, Appellants, v. FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee. Sharonda PLATT, a minor, By and Through her legal guardian, Samuel PLATT, and Samuel Platt, individually, Appellants, v. FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
• Court: Florida District Court of Appeals

Page 1251

659 So.2d 1251

20 Fla. L. Weekly D1991

Roncell PLATT, a minor, By and Through her legal guardian, Samuel PLATT, and Samuel Platt, individually, Appellants, v. FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.

Sharonda PLATT, a minor, By and Through her legal guardian, Samuel PLATT, and Samuel Platt, individually, Appellants, v. FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.

Nos. 94-2980, 94-2981.

District Court of Appeal of Florida,

First District.

Aug. 28, 1995.

John C. Taylor, Jr., and Christopher P. Boyd, Jacksonville, for appellants.

Robert A. Butterworth, Attorney General; Laura Rush, Assistant Attorney General, Tallahassee, for appellee.

GENERAL DIVISION EN BANC

WEBSTER, Judge.

In these two consolidated appeals, appellants challenge orders dismissing their initial negligence complaints without prejudice for failure timely to comply with the service requirement of Florida Rule of Civil Procedure 1.070(i), and their amended complaints with prejudice, as barred by the limitation provision set forth in section 768.28(12), Florida Statutes (1989). We conclude that neither the dismissal of the initial complaints nor the dismissal of the amended complaints was appropriate. Accordingly, we reverse.

Appellants' initial complaints alleged negligence on the part of appellee (HRS) resulting in injury to the minor appellants, Roncell and Sharonda, while they were in its care and custody. The complaints sought damages on behalf of the minors for their injuries, and also asserted a derivative claim on behalf of their adoptive father. HRS filed motions to dismiss, asserting (among other things) that appellants had failed timely to comply with the provisions of Florida Rule of Civil Procedure 1.070(i), relating to service of process because, although HRS had been timely served, the Department of Insurance (Department) had not. In response to the motions, appellants served the Department, as required by section 768.28(7), Florida Statutes (1993). The trial court eventually granted the motions to dismiss, with leave to amend, for failure to comply with rule 1.070(i).

Appellants filed amended complaints, again alleging negligence on the part of HRS, and again making claims on behalf of both the minors and their adoptive father. HRS again filed motions to dismiss, asserting (among other things) that, because more than four years had elapsed between the accrual of appellants' causes of action and the filing of the amended complaints, those actions were barred by section 768.28(12), Florida Statutes (1989), and, therefore, must be dismissed with prejudice. The trial court agreed that all of the causes of action asserted in the amended complaints were barred by section 768.28(12) and, accordingly, dismissed the actions with prejudice. Appellants now challenge both the dismissals of their initial complaints for failure timely to comply with rule 1.070(i) as to service on the Department, and the dismissals of their amended complaints with prejudice based upon the applicable limitation provision.

Dismissal of the initial complaints for failure timely to comply with rule 1.070(i) as to service on the Department was mandated by this court's decision in Austin v. Gaylord, 603 So.2d 66 (Fla. 1st DCA 1992). However, in Turner v. Gallagher, 640 So.2d 120 (Fla. 5th DCA 1994), the Fifth District Court of Appeal reached a contrary result, certifying conflict with Austin. Upon reflection, we conclude that Turner was correctly decided, and that Austin was not. Accordingly, we recede from Austin, and adopt the reasoning employed, and the result reached, in Turner.

As noted by the Turner court, rule 1.070(i) addresses only the failure to serve defendants within the prescribed time. Because the Department is not a defendant, rule 1.070(i) is not implicated by failure to serve it. To quote from Turner:

Rule 1.070(i) should be applied literally--that is to say, dismissal is authorized only in those cases where a defendant has not been served within 120 days. Here, the only defendant in the lawsuit was timely served. Even if the term "party" has a fluid meaning ..., the term "defendant" unambiguously means a party named in a lawsuit against whom some type of relief or recovery is sought or who claims an interest adverse to the plaintiff.... The [D]epartment does not appear in these cases [i.e., those filed against the state or its agencies or subdivisions pursuant to section 768.28, Florida Statutes], and no judgment could be obtained by the [plaintiff] against the [D]epartment. A plaintiff's failure to comply with the provisions of section 768.28(7) [requiring service of process upon both the head of the agency being sued and the Department] might warrant abatement of the lawsuit until the statutory requirement of section 768.28(7) has been complied with, but Rule 1.070(i) is simply inapplicable.

640 So.2d at 121 (citations omitted). We note that, as the Austin opinion reflects, the plaintiff/appell...