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





                                                  SENATE AMENDMENT

    Bill No. CS/CS/HB 3657

    Amendment No.    

                            CHAMBER ACTION
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11  Senators Harris, Dudley and Campbell moved the following

12  amendment:

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14         Senate Amendment (with title amendment) 

15         On page 2, between lines 26 and 27,

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17  insert:

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

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

20         95.051  When limitations tolled.--

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

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

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

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

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

26  cannot be served on the person to be sued.

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

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

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

30  identity of a person to be sued.

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

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                                                  SENATE AMENDMENT

    Bill No. CS/CS/HB 3657

    Amendment No.    





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

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

 3  or occurrence giving rise to the cause of action.

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

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

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

 7  interest of any obligation or liability founded on a written

 8  instrument.

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

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

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

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

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

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

15  incapacitated person, or is adjudicated to be incapacitated to

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

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

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

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

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

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

23  confer jurisdiction to grant the relief sought. This section

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

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

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

27  11 U.S.C. s. 108(c).

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

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

30  1 of this act as it relates to the fraudulent concealment of a

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

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                                                  SENATE AMENDMENT

    Bill No. CS/CS/HB 3657

    Amendment No.    





 1  clarify existing law.

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 3  (Redesignate subsequent sections.)

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

 7  And the title is amended as follows:

 8         On page 1, lines 1-10, delete those lines

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10  and insert:

11                      A bill to be entitled

12         An act relating to civil actions; providing

13         definitions; specifying conditions for

14         committing culpable negligence causing public

15         financial injury; providing penalties;

16         requiring certain contracts to provide notice

17         of such conditions; providing construction;

18         providing for prosecution by a state attorney

19         or the Statewide Prosecutor; amending s.

20         95.051, F.S.; providing that the fraudulent

21         concealment of the cause of action or the

22         identity of the person to be sued tolls the

23         statute; providing legislative intent;

24         providing effective dates.

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26         WHEREAS, it is a recognized rule of construction that

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

28         WHEREAS, the courts of this state have long recognized

29  the doctrine that the fraudulent concealment of a cause of

30  action by a tortfeasor tolls the statute of limitations until

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

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                                                  SENATE AMENDMENT

    Bill No. CS/CS/HB 3657

    Amendment No.    





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

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

 3         WHEREAS, the Legislature, in enacting a statute of

 4  repose in medical malpractice actions expressly recognized and

 5  recited this doctrine of tolling the statute of limitations in

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

 7         WHEREAS, the Florida Supreme Court, in Fulton County

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

 9  1997), held that "the plain language of s. 95.091 does not

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

11  in which the tortfeasor fraudulently conceals his or her

12  identity," and

13         WHEREAS, the Florida Supreme Court in Fulton County

14  Administration v. Sullivan made the recommendation "that the

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

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

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

18  Florida Supreme Court in Fulton County Administration v.

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

20  concealment of a cause of action tolls the statute of

21  limitation, and

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

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

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

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

26  tolling the statute of limitations where the tortfeasor

27  fraudulently conceals his or her identity, and

28         WHEREAS, the Legislature deems the provisions of this

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

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

31  of the judicially created tolling exception for fraudulent

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                                                  SENATE AMENDMENT

    Bill No. CS/CS/HB 3657

    Amendment No.    





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

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