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  actions an action in 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.