Walker v. Virginia Ins. Reciprocal

• Decision Date: 20 March 2003
• Docket Number: No. SC00-1710.,SC00-1710.
• Citation: 842 So.2d 804
• Parties: Frank C. WALKER, Jr., etc., et al., Petitioners, v. VIRGINIA INSURANCE RECIPROCAL, etc., et al., Respondents.
• Court: Florida Supreme Court

842 So.2d 804

Frank C. WALKER, Jr., etc., et al., Petitioners, v. VIRGINIA INSURANCE RECIPROCAL, etc., et al., Respondents.

No. SC00-1710.

Supreme Court of Florida.

March 20, 2003.

Craig A. Dennis and William T. Jackson of Dennis & Bowman, P.A., Tallahassee, FL, for Petitioners.

Michael T. Callahan of Callahan & Martinez, Saint Petersburg, FL, for Respondents.

QUINCE, J.

We have for review the decision in Virginia Insurance Reciprocal v. Walker, 765 So.2d 229 (Fla. 1st DCA 2000), which certified conflict with the decision in Wendel v. Hauser, 726 So.2d 378 (Fla. 4th DCA 1999). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we approve the decision of the First District Court of Appeal in Virginia Insurance Reciprocal.

FACTUAL AND PROCEDURAL BACKGROUND

Emily Aumon was transferred to Scottish Rite Children's Medical Center, Inc., in Atlanta, Georgia, on June 4, 1991, the day after she was born. After Emily was discharged from Scottish Rite on June 14, 1991, Dr. Frank C. Walker assumed Emily's care in Tallahassee, Florida. Approximately eleven months later, Emily's parents, Ann and Robert Aumon, sought a second opinion from Dr. Larry Deeb, who diagnosed Emily with a condition known as congenital hypothyroidism. This condition can be detected by routine metabolic testing and can be treated effectively if the diagnosis is made soon after birth. However, neither the physicians at Scottish Rite Children's Medical Center nor Dr. Walker conducted the testing required to diagnose hypothyroidism.

Following Dr. Deeb's diagnosis, the Aumons filed a medical malpractice suit against Scottish Rite and the physicians who treated Emily in Georgia, alleging that Emily was injured because of their failure to test her for hypothyroidism. The Aumons claimed Scottish Rite failed to test Emily for hypothyroidism within one week of her birth as required by Georgia public health laws and failed to determine if the hospital where she was born had done so. The suit further alleged that this failure to diagnose Emily's condition left her with permanent physical impairments and mental retardation.

Virginia Insurance Reciprocal, Inc. (Virginia Insurance), Scottish Rite's insurer, settled with the Aumons for $1.65 million on June 11, 1997. Virginia Insurance also prepared to assert a contribution claim against Dr. Walker (Walker) and his professional association, on the grounds that Walker had also negligently failed to diagnose Emily's condition and this negligence was the partial cause of the loss for which Virginia Insurance had compensated the Aumons. Because the contribution claim was based on a claim of medical malpractice, Virginia Insurance complied with the medical malpractice presuit screening requirements of sections 766.104¹ and 766.203,² Florida Statutes (1997).

On May 14, 1998, Virginia Insurance served an "intent to litigate" against Walker, as provided in section 766.106(2), Florida Statutes (Supp.1998).³ When the claim was not resolved during the presuit screening process, Virginia Insurance filed a complaint for contribution against Walker in circuit court on November 13, 1998, contending it was entitled to contribution because it had paid more than its pro rata share of the common liability of those released in the underlying suit. See § 768.31(2), Fla. Stat. (1997). Walker answered the complaint by denying the allegations and moving for summary judgment on the ground that Virginia Insurance's contribution claim was barred by the statute of limitations in section 768.31(4). Virginia Insurance did not dispute that the complaint had been filed more than one calendar year after it had settled the claim on behalf of Scottish Rite, but argued that the statute of limitations was tolled during the presuit screening procedure and thus the complaint was timely filed. Walker responded that the presuit screening requirements were inapplicable to contribution claims and thus any effort to comply with the requirements had no effect on the statute of limitations in this case.

The circuit court granted Walker's motion for summary judgment, concluding that the statute of limitations in section 768.31(4)(d) had not been tolled during the time that Virginia Insurance was attempting to comply with the presuit screening procedure in section 766.106 and thus the complaint for contribution was not timely. The circuit court based its ruling on the decision in Wendel v. Hauser, 726 So.2d 378 (Fla. 4th DCA 1999). On appeal, the First District disagreed with the Fourth District's reasoning in Wendel, reversed the summary judgment, and certified conflict with the decision in Wendel.

In Wendel, the Fourth District concluded that the plain language of section 766.106, which defines those claims subject to the presuit screening procedure, does not encompass claims for contribution. 726 So.2d at 380. Thus, the Fourth District held that "the presuit screening procedures initiated by [the plaintiff] did not toll the time for filing [the] action for contribution." Id. The Fourth District also rejected the plaintiff's argument that the district court's previous decision in Walt Disney World Co. v. Memorial Hospital, 363 So.2d 598 (Fla. 4th DCA 1978), also applied to the presuit screening process in chapter 766, Florida Statutes. In Walt Disney, the Fourth District concluded that Disney World's claim for contribution against Memorial Hospital was subject to the medical malpractice mediation requirements. Id. at 599-600. In Wendel, however, the Fourth District concluded that section 766.106 "more narrowly defines those claims subject to presuit screening procedures than did its predecessor [statute which was at issue in Walt Disney]." Wendel, 726 So.2d at 380.

This Court accepted review to resolve the conflict between Wendel and Virginia Insurance Reciprocal on this issue.

DISCUSSION

The conflict issue involves the intersection of statutory provisions of the Uniform Contribution Among Tortfeasors Act and the Florida Medical Malpractice Act when an action for contribution is based on medical malpractice. Section 768.31, the Uniform Contribution Among Tortfeasors Act, governs the procedure to be followed by petitioners who file contribution claims based on an injury to person or property or a wrongful death. Section 768.31(4)(d)2 specifically provides that an action for contribution is barred unless the tortfeasor seeking contribution commences the action for contribution within one year after paying an agreement for liability. Chapter 766 sets out a complex presuit investigation procedure that both the claimant and the defendant must follow before a medical negligence claim may be brought in court. The Legislature has unambiguously dictated:

No action shall be filed for personal injury or wrongful death arising out of medical negligence, whether in tort or contract, unless the attorney filing the action has made a reasonable investigation as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.

§ 766.104(1), Fla. Stat. (1997). Even after satisfying this prerequisite, a potential claimant must follow the procedures outlined in section 766.106, Florida Statutes (Supp.1998), before filing a medical malpractice action. Section 766.106(2) requires notice to all prospective defendants of the claimant's intent to initiate litigation for medical malpractice; section 766.106(3) provides that the suit may not be filed for ninety days after this notice is mailed to the prospective defendants; and section 766.106(4) tolls the statute of limitations during this ninety-day period as to all potential defendants.⁴ The certified conflict requires us to determine which statutory provision controls when there is a question concerning the applicable statute of limitations for a contribution action based on an underlying medical malpractice claim. More specifically, we must determine whether the one-year statute of limitations outlined in section 768.31(4)(d)2 relating to contribution actions was tolled during compliance with the presuit screening procedure in chapter 766. In order to make this determination, we must first examine the legislative intent in enacting these provisions.

Legislative intent must be determined primarily from the language of the statute. See Aetna Cas. & Sur. Co. v. Huntington Nat'l Bank, 609 So.2d 1315, 1317 (Fla.1992). Section 766.106(1)(a), which outlines the presuit procedures for medical malpractice actions, defines a claim for medical malpractice as "a claim arising out of the rendering of, or the failure to render, medical care or services." Section 768.31(2)(a) provides that a right to contribution occurs where "two or more persons become jointly or severally liable in tort for the same injury to person or property, or for the same wrongful death." Further, "there is a right of contribution among [the tortfeasors] even though judgment has not been recovered against all or any of them." Id. While neither statute explicitly references the other, the language of each statute implicitly refers to the other. For instance, the "injury" referred to in section 768.31(2)(a) can arise in any number of tortious contexts, including medical malpractice. See, e.g., Florida Patient's Comp. Fund v. St. Paul Fire & Marine Ins. Co., 559 So.2d 195 (Fla.1990) (involving an action for contribution and subrogation brought by an insurer against its insured's employer and the employer's insurer after settlement of a medical malpractice action); Canal Ins. Co. v. Insurance Co. of North America, 424 So.2d 749 (Fla.1982) (involving an action for contribution by an insurer against a predecessor insurer that did not file a policy expiration); Florida Farm Bureau Ins. Co. v. Government Employees Ins. Co., 387 So.2d 932 (Fla.1980) (involving an action for contribution by a vehicle passenger against the...