Brown v. State, Dept. of Corrections
701 So. 2d 1211, 1997 WL 732125 (1997)
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Rule of Law:
A government agency may waive or be estopped from asserting the statutory pre-suit notice requirement as a defense if its officials investigate the claim and then engage in a course of action that would reasonably lead a claimant to conclude formal notice is unnecessary, causing the claimant to fail to act to their detriment.
Facts:
- On May 22, 1992, Kelly Curry, an inmate in the custody of the Department of Corrections (Department), was injured while working at the 'Levy Forestry Camp'.
- Curry's initial attorney, David M. Shenkman, sent a letter on July 20, 1992, to the Department of Corrections, stating it was a notice of claim under Florida Statute 768.28.
- Shenkman's letter was forwarded to the state's Department of Insurance.
- The Department of Insurance sent a letter back to Shenkman acknowledging receipt of his 'letters of notice' and stating it was conducting a review of the incident.
- The Department of Insurance then sent another letter to Shenkman requesting more specific information regarding Curry's claim.
- Curry subsequently retained attorneys Jeff M. Brown and Kenneth J. Ronan, who later terminated their representation of Curry before a lawsuit was filed on her behalf.
Procedural Posture:
- Kelly Curry filed a legal malpractice suit against her former attorneys, Jeff M. Brown, Kenneth J. Ronan, and their firm (Appellants), in Sarasota County Circuit Court.
- The malpractice action was stayed pending resolution of the underlying negligence claim.
- Curry then filed a negligence suit against the Department of Corrections (Appellee) and Levy County in Levy County Circuit Court (trial court).
- Appellants moved to intervene in Curry's negligence suit on the issues of notice and waiver.
- The trial court granted the motion to intervene.
- The Department of Corrections filed a motion to dismiss for failure to comply with the statutory notice requirements.
- The trial court granted the Department's motion and dismissed Curry's suit against it with prejudice.
- The Appellants (intervenors) appealed the dismissal to the District Court of Appeal of Florida, First District; Curry did not appeal.
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Issue:
Did the trial court abuse its discretion by dismissing a complaint with prejudice for failure to comply with statutory pre-suit notice requirements, where the plaintiff could potentially amend the complaint to properly allege waiver or estoppel by the government agency?
Opinions:
Majority - Van Nortwick, J.
Yes. It was an abuse of the trial court's discretion to dismiss the complaint with prejudice because the intervenors may yet be able to state a basis for waiver and estoppel. The court extended the principles of waiver and estoppel from Rabinowitz v. Town of Bay Harbor Islands, which applied to municipal notice requirements, to the statewide statutory notice requirement in section 768.28(6)(a). Under this standard, waiver can occur if an agency investigates a claim and then acts in a way that reasonably leads the claimant to believe formal notice is not required, causing the claimant to fail to act to their injury. Although the intervenors' complaint made only general allegations of waiver, the possibility that they could amend it to plead specific facts meeting the Rabinowitz standard meant that a dismissal without leave to amend was improper.
Concurring - Wolf, J.
Concurred with the majority opinion.
Dissenting - Booth, J.
Dissented without a written opinion.
Analysis:
This decision is significant because it formally applies the common law doctrines of waiver and estoppel, as articulated in Rabinowitz for municipalities, to the statewide sovereign immunity notice statute, § 768.28(6)(a). It tempers the harshness of the strict statutory notice requirement, preventing the government from using it as a shield after its own conduct may have misled a claimant. The ruling provides a critical pathway for plaintiffs to survive a motion to dismiss by pleading specific facts that show the government's actions lulled them into a false sense of security regarding notice. This precedent requires courts to look beyond mere technical compliance and consider the fairness implications of the government's post-claim conduct.
