CODING: Words stricken are deletions; words underlined are additions.





                                                  SENATE AMENDMENT

    Bill No. CS for SB 2150

    Amendment No.    

                            CHAMBER ACTION
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11  Senator Harris moved the following amendment:

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13         Senate Amendment (with title amendment) 

14         On page 2, between lines 26 and 27,

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16  insert:

17         Section 3.  Effective July 1, 1998, subsection (1) of

18  section 95.051, Florida Statutes, is amended to read:

19         95.051  When limitations tolled.--

20         (1)  The running of the time under any statute of

21  limitations except ss. 95.281, 95.35, and 95.36 is tolled by:

22         (a)  Absence from the state of the person to be sued.

23         (b)  Use by the person to be sued of a false name that

24  is unknown to the person entitled to sue so that process

25  cannot be served on the person to be sued.

26         (c)  Concealment in the state of the person to be sued

27  so that process cannot be served on him or her.

28         (d)  Fraudulent concealment of a cause of action or the

29  identity of a person to be sued.

30         (e)(d)  The adjudicated incapacity, before the cause of

31  action accrued, of the person entitled to sue.  In any event,

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 2150

    Amendment No.    





 1  the action must be begun within 7 years after the act, event,

 2  or occurrence giving rise to the cause of action.

 3         (f)(e)  Voluntary payments by the alleged father of the

 4  child in paternity actions during the time of the payments.

 5         (g)(f)  The payment of any part of the principal or

 6  interest of any obligation or liability founded on a written

 7  instrument.

 8         (h)(g)  The pendency of any arbitral proceeding

 9  pertaining to a dispute that is the subject of the action.

10         (i)(h)  The minority or previously adjudicated

11  incapacity of the person entitled to sue during any period of

12  time in which a parent, guardian, or guardian ad litem does

13  not exist, has an interest adverse to the minor or

14  incapacitated person, or is adjudicated to be incapacitated to

15  sue; except with respect to the statute of limitations for a

16  claim for medical malpractice as provided in s. 95.11.  In any

17  event, the action must be begun within 7 years after the act,

18  event, or occurrence giving rise to the cause of action.

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20  Paragraphs (a)-(c) shall not apply if service of process or

21  service by publication can be made in a manner sufficient to

22  confer jurisdiction to grant the relief sought. This section

23  shall not be construed to limit the ability of any person to

24  initiate an action within 30 days of the lifting of an

25  automatic stay issued in a bankruptcy action as is provided in

26  11 U.S.C. s. 108(c).

27         Section 4.  It is the intent of the Legislature that

28  the amendment of section 95.051, Florida Statutes, by section

29  1 of this act as it relates to the fraudulent concealment of a

30  cause of action is remedial in nature and is intended to

31  clarify existing law and shall apply to all actions in which

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 2150

    Amendment No.    





 1  there was a fraudulent concealment of a cause of action or of

 2  the identity of a person to be sued, regardless of whether

 3  such acts of fraudulent concealment occurred before or after

 4  that date.

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 6  (Redesignate subsequent sections.)

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 9  ================ T I T L E   A M E N D M E N T ===============

10  And the title is amended as follows:

11         On page 1, lines 9 and 10, delete those lines

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13  and insert:

14         or the Statewide Prosecutor; amending s.

15         95.051, F.S.; providing that the fraudulent

16         concealment of the cause of action or the

17         identity of the person to be sued tolls the

18         statute; providing legislative intent;

19         providing effective dates.

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21         WHEREAS, it is a recognized rule of construction that

22  the Legislature is deemed to know the existing law, and

23         WHEREAS, the courts of this state have long recognized

24  the doctrine that the fraudulent concealment of a cause of

25  action by a tortfeasor tolls the statute of limitations until

26  the date the action is discovered or the date on which,

27  through the exercise of ordinary diligence, it might have been

28  discovered, Proctor v. Schomberg, 63 So.2d 68 (Fla. 1953), and

29         WHEREAS, the Legislature, in enacting a statute of

30  repose in medical malpractice actions expressly recognized and

31  recited this doctrine of tolling the statute of limitations in

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 2150

    Amendment No.    





 1  cases of fraudulent concealment of the cause of action, and

 2         WHEREAS, the Florida Supreme Court, in Fulton County

 3  Administration v. Sullivan, 22 Fla. Law Weekly, S578 (Fla.

 4  1997), held that "the plain language of s. 95.091 does not

 5  provide for the tolling of the statute of limitation in cases

 6  in which the tortfeasor fraudulently conceals his or her

 7  identity," and

 8         WHEREAS, the Florida Supreme Court in Fulton County

 9  Administration v. Sullivan made the recommendation "that the

10  Legislature examine this issue and, should it agree, enact an

11  amendment to the statute to avoid such an unfair result," and

12         WHEREAS, similarly, as a result of the reasoning of the

13  Florida Supreme Court in Fulton County Administration v.

14  Sullivan, there may be a question of whether the fraudulent

15  concealment of a cause of action tolls the statute of

16  limitation, and

17         WHEREAS, it is the intent of the Legislature by this

18  act to clarify once and for all its continued recognition of

19  the "court-made" tolling provision for fraudulent concealment

20  of a cause of action and to avoid the unfair result of not

21  tolling the statute of limitations where the tortfeasor

22  fraudulently conceals his or her identity, and

23         WHEREAS, the Legislature deems the provisions of this

24  act to be curative and remedial in effect and to operate as if

25  there was never any question of the Legislature's recognition

26  of the judicially created tolling exception for fraudulent

27  concealment of a cause of action, NOW, THEREFORE,

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