VonDrasek v. City of St. Petersburg
777 So. 2d 989, 25 Fla. L. Weekly Fed. D 2123 (2000)
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Rule of Law:
A governmental entity waives the defense of a defective presuit notice when it fails to deny the plaintiff's allegation of compliance with conditions precedent "specifically and with particularity" in its answer. Furthermore, a defective notice may be cured if the plaintiff provides detailed, written information about the claim to the entity through discovery responses within the statutory notice period.
Facts:
- On December 17, 1993, Neil VonDrasek sustained bodily injuries when he tripped and fell on a sidewalk maintained by the City of St. Petersburg while jogging.
- On August 10, 1994, Neil VonDrasek submitted a written presuit notice of his claim for his injuries to the City, as required by statute.
- This presuit notice did not include any reference to a potential loss of consortium claim by his wife, Linda VonDrasek.
Procedural Posture:
- The City of St. Petersburg denied Neil VonDrasek's presuit claim.
- On June 20, 1996, Neil and Linda VonDrasek jointly filed a lawsuit in a Florida trial court against the City for personal injury and loss of consortium, respectively.
- The VonDraseks' complaint alleged that all conditions precedent, including the notice requirement, had been met or waived.
- The City filed an answer stating it was 'without knowledge' if the attached notice complied with the statute, and served interrogatories specifically addressing the consortium claim.
- The VonDraseks provided written answers to the consortium interrogatories in August 1996.
- Twenty months later, after the statutory period for providing notice had expired, the City filed a motion to dismiss Linda VonDrasek's consortium claim for failure to provide adequate presuit notice.
- The trial court granted the City's motion, dismissing the consortium claim.
- The VonDraseks, as appellants, appealed the trial court's dismissal to the District Court of Appeal of Florida, Second District, with the City as the appellee.
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Issue:
Does a governmental entity waive its defense of a defective presuit notice for a consortium claim by filing an evasive answer and later engaging in discovery related to that claim before moving for dismissal after the notice period has expired?
Opinions:
Majority - Altenbernd, J.
Yes. A governmental entity waives its right to complain about a defective presuit notice when it fails to specifically and particularly deny the plaintiff's allegation of compliance with conditions precedent and instead files an evasive answer. The court reasoned that under Florida Rule of Civil Procedure 1.120(c), a defendant must deny compliance with conditions precedent specifically. The City's answer, stating it was "without knowledge" as to the legal sufficiency of the notice, was an improper and evasive response that failed to raise the defense. By waiting twenty months to raise the defect, after the notice period had expired, the City prejudiced the VonDraseks and effectively sandbagged them. Additionally, the court found that any defect was cured when the City served consortium interrogatories and received Mrs. VonDrasek's detailed, written answers, which provided the City with all the information a formal notice would have, well within the claim period.
Analysis:
This decision reinforces that presuit notice requirements for suing governmental entities are conditions precedent, not jurisdictional bars, and are therefore subject to waiver. It prevents governmental defendants from using evasive pleadings to lie in wait until the notice period expires before raising a curable defect, a tactic the court described as a "gotcha." The ruling clarifies that a defendant's failure to deny compliance with conditions precedent with specificity and particularity, as required by procedural rules, constitutes a waiver of that defense. This holding protects plaintiffs from unfair procedural traps and emphasizes the notice statute's purpose: to allow for timely investigation and settlement, not to dismiss meritorious claims on technicalities.
