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