Florida Senate - 2011 CS for CS for SB 594 By the Committees on Community Affairs; and Judiciary; and Senator Hays 578-04258-11 2011594c2 1 A bill to be entitled 2 An act relating to sovereign immunity; amending s. 3 768.28, F.S.; requiring that a claim in a wrongful 4 death case be presented to the Department of Financial 5 Services within 2 years after the claim accrues; 6 providing that failure of the Department of Financial 7 Services or the appropriate agency to make final 8 disposition of a claim for wrongful death within 90 9 days after it is filed is deemed to be a final denial 10 of the claim; tolling the statute of limitations for 11 the period of time taken by the Department of 12 Financial Services or other agency to deny a medical 13 malpractice or wrongful death claim; providing that 14 actions for wrongful death against the state or one of 15 its agencies or subdivisions must be brought within 16 the period applicable to actions brought against other 17 defendants; specifying applicability to workers’ 18 compensation claims; providing for the application of 19 the act to causes of action accruing on or after the 20 effective date; providing an effective date. 21 22 Be It Enacted by the Legislature of the State of Florida: 23 24 Section 1. Paragraphs (a) and (d) of subsection (6) and 25 subsection (14) of section 768.28, Florida Statutes, are 26 amended, and subsection (21) is added to that section, to read: 27 768.28 Waiver of sovereign immunity in tort actions; 28 recovery limits; limitation on attorney fees; statute of 29 limitations; exclusions; indemnification; risk management 30 programs.— 31 (6)(a) An action may not be instituted on a claim against 32 the state or one of its agencies or subdivisions unless the 33 claimant presents the claim in writing to the appropriate 34 agency, and also, except as to any claim against a municipality 35 or the Florida Space Authority, presents such claim in writing 36 to the Department of Financial Services, within 3 years after 37 such claim accrues and the Department of Financial Services or 38 the appropriate agency denies the claim in writing; except that, 39 if: 40 1. Such claim is for contribution pursuant to s. 768.31, it 41 must be so presented within 6 months after the judgment against 42 the tortfeasor seeking contribution has become final by lapse of 43 time for appeal or after appellate review or, if there is no 44 such judgment, within 6 months after the tortfeasor seeking 45 contribution has either discharged the common liability by 46 payment or agreed, while the action is pending against her or 47 him, to discharge the common liability; or 48 2. Such action is for wrongful death, the claimant must 49 present the claim in writing to the Department of Financial 50 Services within 2 years after the claim accrues. 51 (d) For purposes of this section, complete, accurate, and 52 timely compliance with the requirements of paragraph (c) shall 53 occur prior to settlement payment, close of discovery or 54 commencement of trial, whichever is sooner; provided the ability 55 to plead setoff is not precluded by the delay. This setoff shall 56 apply only against that part of the settlement or judgment 57 payable to the claimant, minus claimant’s reasonable attorney’s 58 fees and costs. Incomplete or inaccurate disclosure of unpaid 59 adjudicated claims due the state, its agency, officer, or 60 subdivision, may be excused by the court upon a showing by the 61 preponderance of the evidence of the claimant’s lack of 62 knowledge of an adjudicated claim and reasonable inquiry by, or 63 on behalf of, the claimant to obtain the information from public 64 records. Unless the appropriate agency had actual notice of the 65 information required to be disclosed by paragraph (c) in time to 66 assert a setoff, an unexcused failure to disclose shall, upon 67 hearing and order of court, cause the claimant to be liable for 68 double the original undisclosed judgment and, upon further 69 motion, the court shall enter judgment for the agency in that 70 amount. Except as provided otherwise in this subsection, the 71 failure of the Department of Financial Services or the 72 appropriate agency to make final disposition of a claim within 6 73 months after it is filed shall be deemed a final denial of the 74 claim for purposes of this section. For purposes of this 75 subsection, in medical malpractice actions and in wrongful death 76 actions, the failure of the Department of Financial Services or 77 the appropriate agency to make final disposition of a claim 78 within 90 days after it is filed shall be deemed a final denial 79 of the claim. The statute of limitations for medical malpractice 80 actions and wrongful death actions is tolled for the period of 81 time taken by the Department of Financial Services or the 82 appropriate agency to deny the claim. The provisions of this 83 subsection do not apply to such claims as may be asserted by 84 counterclaim pursuant to s. 768.14. 85 (14) Every claim against the state or one of its agencies 86 or subdivisions for damages for a negligent or wrongful act or 87 omission pursuant to this section shall be forever barred unless 88 the civil action is commenced by filing a complaint in the court 89 of appropriate jurisdiction within 4 years after such claim 90 accrues; except that an action for contribution must be 91 commenced within the limitations provided in s. 768.31(4), and 92 an action for damages arising from medical malpractice or 93 wrongful death must be commenced within the limitations for such 94 actionsan actionin s. 95.11(4). 95 (21) No provision of this section, or any other provision 96 of state law, waives the immunity of the state or any of its 97 agencies with regard to claims brought under s. 440.205. Claims 98 brought against the state or any of its agencies pursuant to s. 99 440.205 must be brought in compliance with this section. 100 Section 2. This act shall take effect July 1, 2011, and 101 applies to causes of action accruing on or after that date.