PERSONAL INJURY CORNER
WHEN IS A NOTICE OF INTENT SERVED ?
TED BABBITT
This author served on the Governor ’ s Task Force on medical malpractice in 1985 that gave birth to the notice of intent in medical malpractice cases and resulted in the passage of Florida Statute 766.106 . The commission was composed of lawyers , doctors , hospital administrators , and businessmen , and the intent of the procedure was to foster settlement during the 90 day period following service of the notice of intent to avoid litigation by settling cases with merit early on and , thus , avoid the cost , expense , and delay of litigation for all parties .
The adoption of the statute was followed by the Rule of Civil Procedure Committee recommendation to the Supreme Court of Rule 1.650 which was intended to flush out the procedure for serving notices of intent . I served on the Rules Committee that created that rule .
Both the statute and the rule were supposed to be designed to streamline and relax the presuit procedure and not to act as a trap for unwitting plaintiffs who did not follow every detail of the statute and rule . Sadly , the opposite has occurred with respect to notices of intent in malpractice cases and the 90-day period is utilized more for delay than a real effort to resolve even the most meritorious of cases . In addition , the advance sheets are filled with cases interpreting every aspect of both the rule and statute which more often than not results in destroying causes of action because of technical interpretations .
The district courts are now wrestling with the issue of when a notice of intent is served to determine whether that service has been accomplished prior to the running of the applicable statute of limitations . For reasons that are hard to understand , there have been many plaintiffs who have waited until the very last day before the expiration of the statute of limitations to mail by certified mail the notice of intent . More often than not when this occurs the return receipt , which is required by the rule , is not signed until after the statute has run . The question then arises as to whether the statute has run because of the untimely receipt of the notice or whether the date of mailing applies thus avoiding the limitation period .
Rule 1.650 ( d ) is equivocal on this question .
Subsection ( 1 ) of that section provides : “ The notice of intent to initiate litigation shall be served by certified mail , return receipt requested , prior to the expiration of any applicable statute of limitations or statute of repose …”
( emphasis supplied )
Subsection ( 2 ) provides : “ The action may not be filed against any defendant until 90 days after the notice of intent to initiate litigation was mailed to that party . The action may be filed against any party at any time after the notice of intent to initiate litigation has been mailed after the claimant has received a written rejection of the claim from that party .”
( emphasis supplied )
Subsection ( 3 ) provides : “ To avoid being barred by the applicable statute of limitations , an action must be filed within 60 days or within the remainder of the time of the statute of limitations after the notice of intent to initiate litigation was received , whichever is longer , after the earliest of the following :
( A ) The expiration of 90 days after the date of receipt of the notice of intent to initiate litigation .
( B ) The expiration of 180 days after mailing of the notice of intent to initiate litigation if the claim is controlled by section 768.28 ( 6 )( a ), Florida Statutes .
C ) Receipt by claimant of a written rejection of the claim .
( D ) The expiration of any extension of the 90-day presuit screening period stipulated to by the parties in accordance with section 766.106 ( 4 ), Florida Statutes .”
( emphasis supplied )
So , is the notice of intent served when the notice is mailed or when it is received ? There have been numerous appellate courts who have answered this question with less than unanimity . The Fourth District Court of Appeal decided Zacker v . Croft , 609 So . 2d 140 ( Fla . 4th DCA 1992 ) wherein the Fourth District relying on the Supreme Court case of Boyd v . Becker , 627 So . 2d 481 ( Fla . 1993 ) held that the 90-day tolling of the statute of limitations period occurs from the date of mailing of the notice of intent and specifically held :
“ The purpose of the notice requirement is to notify prospective defendants of medical malpractice claims to promote the settlement of such claims , when appropriate and not to function as a trap for medical malpractice claimants .”
The Fifth District Court of Appeal also held that the date of mailing controls in Baxter v . Northrup , 128 So . 3d 908 ( Fla . 5th DCA 2013 ). The First District Court of Appeal also agreed that the date of mailing controls in Bay County Board of County Commissioners v . Seeley , 217 So . 3d 228 ( Fla . 1st DCA 2017 ).
The Second District Court of Appeal has decided this issue 180 degrees differently than the above-cited cases . In Bove v . Naples HMA LLC , 196 So . 3d 411 ( Fla . 2nd DCA 2016 ), the Second District affirmed a summary judgment holding that the statute of limitations has expired when the notice of intent was mailed one day prior to the running of the statute but the return receipt was not signed until a few days after the statute had run . The same issue arose before the Second District in the recent decision of Boyle v . Myles Rubin Samotin , M . D ., P . A ., 45 Fla . L . Weekly D1577 ( 2nd DCA July 1 , 2020 ). The plaintiff in Boyle also waited until the last day to mail the notice of intent and just like in Bove , the return receipt was not signed until days after the statute had run and the case was dismissed because the statute of limitations had run .
The conflict between the districts was certified by the Second District to the Supreme Court and hopefully a decision will be reached determining when the calculation of the statute of limitations runs . In the meantime , it would behoove every plaintiff mailing a notice of intent not to wait until the last minute to send out that notice . The problem arising from these multiple district court opinions would be eliminated if plaintiffs would simply diary their calendars to assure that the notice is mailed by certified mail , return receipt requested , at least two weeks before the statute expires .
PBCBA BAR BULLETIN 13