Rabinowitz v. Town of Bay Harbor Islands

• Decision Date: 30 June 1965
• Docket Number: Nos. 34009,34005,s. 34009
• Citation: 178 So.2d 9
• Parties: William RABINOWITZ et al., Petitioners, v. TOWN OF BAY HARBOR ISLANDS, a municipality, Respondent. Joseph INDZELL and Frances Indzell, Petitioners, v. TOWN OF BAY HARBOR ISLANDS, a municipal corporation, Respondent.
• Court: Florida Supreme Court

Page 9

178 So.2d 9

William RABINOWITZ et al., Petitioners, v. TOWN OF BAY HARBOR ISLANDS, a municipality, Respondent.

Joseph INDZELL and Frances Indzell, Petitioners, v. TOWN OF BAY HARBOR ISLANDS, a municipal corporation, Respondent.

Nos. 34009, 34005.

Supreme Court of Florida.

June 30, 1965.

Rehearing Denied Sept. 13, 1965.

Leff & Pesetsky, N. Miami Beach, for William Rabinowitz and others.

Frates, Fay & Floyd, Miami, for Joseph Indzell and Frances Indzell.

Broad & Cassel and Lewis Horwitz, Miami Beach, for respondents.

THORNAL, Justice.

By two petitions for writs of certiorari we are requested to review a decision of the District Court of Appeal, Third District, which allegedly conflicts with prior decisions of this Court and another District Court on the same point of law. Rabinowitz, et al. v. Town of Bay Harbor Islands, 168 So.2d 583.

We must decide whether the respondent municipality, by action of its agents, is estopped to assert as a defense, the failure of claimants to file a notice of a tort claim as required by the Town Charter.

In July 17, 1962, Petitioner William Rabinowitz, Sr. was the driver and his son William, Jr. and the Indzells were passengers in an automobile which struck a partially open city-owned draw bridge. Property damages and personal injuries ensued. A City police officer arrived on the scene shortly after the accident. He made a detailed investigation and submitted a written report to the Town manager. The next day an investigator, representing the Town's insurance carrier, made a further investigation and filed his report with the insurer's attorneys. Subsequently, the same investigator and the Town manager jointly viewed the scene. The Town manager reported the accident to the Town Council, advising that the attorneys for the Town's insurer were handling the matter. The Town attorney was present at this meeting.

During the early investigation the Town's insurance investigator informed the plaintiffs that the bridge was not owned by the Town but, rather, was owned by a private corporation. Relying on this information the plaintiffs, through their then attorney, negotiated with the insurer's attorney, in an effort to reach a settlement. After several months of negotiations, the plaintiffs ultimately learned that the bridge was owned by the Town. Thereupon, they filed a claim notice required by the Town Charter.

Section 78 of the Town's Charter provided in part as follows:

'No suit shall be maintained against the Town for damages * * * unless it shall be made to appear that the damage alleged is attributable to negligence of the Town, and that written notice of such damage, within 30 days after receiving the injury alleged, was given to the Town attorney with such reasonable specifications as to the time and place and witnesses, as would enable the Town officials to investigate the matter; * * *' Ch. 28899, Laws of Florida, 1953.

The Town gave no indication of its insistence upon the notice requirements until the injured parties filed suit. The trial judge granted the Town's summary judgment motion on the ground that the quoted charter provision had not been met. The Court of Appeal, Third District, affirmed.

We are requested to review the subject decision because of alleged conflicts with the decisions of this Court in Tillman v. City of Pompano Beach, Fla., 100 So.2d 53, 65 A.L.R.2d 1273, and City of Gainesville v. Kirkland, 116 Fla. 319, 156 So. 601. Additionally, conflict is alleged with a decision of the Court of Appeal, Second District, in Carpenter v. City of St. Petersburg, Fla.App., 167 So.2d 772. We find the presence of a jurisdictional conflict between the decision at hand and the decision in Carpenter.

In both cases responsible agents and officers of the City had actual knowledge of the occurrence. In both, the City's insurance adjuster made an immediate investigation and prompt report to the City officials. In both, the claimant was informed by the adjuster that the claim was being processed and settlement negotiations were conducted. In both cases the claimant relied on the representations of the City's agent--its insurance adjuster. In both cases the City officials were supplied with detailed, comprehensive reports of the happening. In Carpenter the City was held to be estopped by the conduct and representation of its adjuster and the secretary of the City attorney. In the instant case, it was held that the City was not estopped by the substantially identical conduct of its adjuster, the Town manager and the attorneys for its insurance carrier. In both cases the claimants relied upon the representation and conduct of the City's agents and did not file the claim notice until after the statutory deadline.

We find that a jurisdictional conflict of decisions appears from an analysis of the two opinions. The controlling facts are substantially the same. On these facts the two District Courts arrived at diametrically opposite legal conclusions. Nielsen v. City of Sarasota, Fla., 117 So.2d 731. Having detected the conflict on the face of the two opinions we proceed to a consideration of the record on the merits. Kincaid v. World Insurance Company, Fla., 157 So.2d 517.

Despite the enactment of a general law on the subject, Section 95.241, Florida Statutes, F.S.A., we have consistently upheld similar local acts which require notice of damages claims. McCann v. City of Lake Wales, Fla., 144 So.2d 505. Justification is grounded on the proposition that a city is entitled to a reasonable notice of a pending claim in order to enable it to make a prompt, thorough investigation, leading to an early decision on the question of municipal liability, if any. We have, however, decided that the claim statutes should not be burdened with strained constructions that would hamper the...