Public Health Trust of Miami-Dade County v. Acanda
36 Fla. L. Weekly Supp. 289, 71 So. 3d 782, 2011 Fla. LEXIS 1423 (2011)
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Rule of Law:
Under Florida's sovereign immunity statute, a plaintiff's failure to serve process on the Department of Financial Services is a curable procedural defect, not a condition precedent or an element of the cause of action that would mandate dismissal if not completed before the close of the plaintiff's case.
Facts:
- In February 2005, Odette Acanda's son, Ryan, was born nearly two months premature at Jackson Memorial Hospital, which is governed by the Public Health Trust of Miami-Dade County.
- Ryan was immediately placed in the hospital’s neonatal intensive care unit.
- While in the neonatal intensive care unit, Ryan contracted a severe bacterial infection.
- Five days after his birth, Ryan died as a result of the infection.
Procedural Posture:
- In 2006, Odette Acanda, as representative of her son's estate, filed a negligence complaint against the Public Health Trust in a Florida trial court.
- Public Health Trust's answer included an affirmative defense that Acanda had failed to serve process on the Department of Financial Services (DFS) as required by statute.
- The case proceeded to trial in August 2007 without any pretrial motions on the service issue.
- At trial, after Acanda's last witness testified, Public Health Trust moved for a directed verdict based on the failure to serve DFS.
- Acanda served process on DFS the following morning, and the trial court subsequently denied the motion for a directed verdict.
- Public Health Trust, as appellant, appealed the judgment to the Third District Court of Appeal.
- The Third District Court of Appeal, with Acanda as appellee, affirmed the trial court's judgment.
- Public Health Trust then sought review from the Supreme Court of Florida.
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Issue:
Does a plaintiff's failure to serve process on the Florida Department of Financial Services (DFS) as required by section 768.28(7), Florida Statutes, before the defendant moves for a directed verdict, require the dismissal of their negligence action against a state agency?
Opinions:
Majority - Labarga, J.
No. The timing of a plaintiff's service of process on the DFS is not fatal to a negligence claim against a state agency. Service on DFS under section 768.28(7) is neither a condition precedent to maintaining the action nor an element of the plaintiff's burden of proof. The court's reasoning is based on statutory construction; the preceding subsection, 768.28(6), explicitly labels its pre-suit notice requirements as 'conditions precedent,' while subsection (7) lacks such language. The legislature’s omission is instructive. Furthermore, since even the 'conditions precedent' in subsection (6) are expressly declared not to be elements of the cause of action, the procedural service requirement in subsection (7) cannot be considered an element. The court condemned the defendant's use of this procedural issue as a 'gotcha' tactic at trial, stating that such defenses must be raised with specificity in a pretrial motion and that the defendant failed to show any prejudice from the delayed service.
Concurring - Polston, J.
Concurred in result only, without a separate written opinion.
Analysis:
This decision clarifies a key procedural requirement in tort claims against Florida state agencies, distinguishing mandatory, jurisdictional 'conditions precedent' from curable procedural steps. It significantly curtails the ability of government defendants to use a last-minute procedural argument as a 'gotcha' tactic to defeat a case on non-substantive grounds. The ruling reinforces a judicial preference for deciding cases on their merits and requires defendants to raise such procedural defenses specifically and in pretrial motions, rather than waiting to ambush a plaintiff at trial. The decision protects potentially meritorious claims from being dismissed due to procedural errors that do not prejudice the defendant.
