PERSONAL INJURY CORNER
Presuit Notice Tolling Statute of Limitations
TED BABBITT
The Supreme Court of Florida just unanimously decided Boyle v . Samotin SC 20-1399 . Decided April 1 , 2022 .
A Notice of Intent to initiate litigation in a malpractice case must be filed prior to initiating litigation . That notice tolls the statute of limitation 90 days or longer if agreed by the parties . In the case under discussion the Notice of Intent was mailed by certified mail one day prior to the running of the statute of limitations but the physician to whom it was directed did not receive the notice until four days later , after the statute of limitations had run . In Boyle v . Samotin , 313 So . 3d 673 ( Fla . 2d DCA 2020 ) the Second District Court of Appeals , adhering to it ’ s earlier decision in Bove v . Naples HMA , LLC , 196 So . 3d 411 ( Fla . 2d DCA 2016 ), held that under similar circumstances a medical negligence complaint was untimely because the presuit notice was not received by a Defendant within the statute of limitations . The second District took the position that the statute of limitations period is not tolled until receipt of the notice . This decision was in direct conflict to decisions of the fourth and fifth District Court of Appeals in Zacker v . Croft 609 So . 2d 140 ( Fla . 4th DCA 1992 ) and the 5th District Court of Appeals decision in Baxter v . Northrup 128 So . 3d 908 ( Fla . 5th DCA 2013 ) both of which held that the limitations period is tolled upon the mailing of the Notice of Intent not it ’ s receipt by the Defendant . The case came before the Supreme Court based upon certification of conflict among the districts .
The Supreme Court recognized that there is an inconsistency within both the statute and the rule that could lead a court to conclude that it is the receipt rather than the mailing that governs when the statute of limitations is tolled , but ultimately concluded that it is the date of mailing rather than the date of the receipt which governs the tolling period .
At page 2 of the opinion the Court concluded “ We agree with Judge Smith ’ s concurring specially in result opinion below that the Second District ’ s earlier decision in Bove that the relevant statute and rule only require a claimant to timely mail the presuit notice to trigger tolling of the applicable limitations period . This conclusion , as Petitioner correctly argued , is consistent with what the Court has previously said in Boyd v .
Becker , 627 So . 2d 481 ( Fla . 1993 ) and in Patry v . Capps 633 So . 2d 9 Fla . 1994 ). Accordingly , we quashed the Second District ’ s decision in Boyle and approve the certified conflict cases of Zacker and Baxter to the extent they are consistent with this opinion .”
This rare unanimous decision of The Supreme Court puts to rest the issue of
when the statute of limitations is tolled with regard to mailing or the receipt of a Notice of Intent and is consistent with the rules of judicial administration that it is the mailing rather than the receipt that determines when a statute of limitations is tolled with respect to the service of any document . See Florida Rule General Practice of Judicial Administration Fla . R . Gem . Prac .* Jud . Admin . 2.516 ( b ) 2 .
PBCBA BAR BULLETIN 14