Senate Bill 1480

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



    Florida Senate - 1999                                  SB 1480

    By Senator Mitchell





    4-1233A-99

  1                      A bill to be entitled

  2         An act relating to statute of limitations;

  3         amending s. 95.051, F.S.; providing that the

  4         fraudulent concealment of the cause of action

  5         or the identity of the person to be sued tolls

  6         the statute; providing legislative intent;

  7         providing effective dates.

  8

  9         WHEREAS, it is a recognized rule of construction that

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

11         WHEREAS, the courts of this state have long recognized

12  the doctrine that the fraudulent concealment of a cause of

13  action by a tortfeasor tolls the statute of limitations until

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

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

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

17         WHEREAS, the Legislature, in enacting a statute of

18  repose in medical malpractice actions expressly recognized and

19  recited this doctrine of tolling the statute of limitations in

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

21         WHEREAS, the Florida Supreme Court, in Fulton County

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

23  1997), held that "the plain language of s. 95.091 does not

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

25  in which the tortfeasor fraudulently conceals his or her

26  identity," and

27         WHEREAS, the Florida Supreme Court in Fulton County

28  Administration v. Sullivan made the recommendation "that the

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

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

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    Florida Senate - 1999                                  SB 1480
    4-1233A-99




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

  2  Florida Supreme Court in Fulton County Administration v.

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

  4  concealment of a cause of action tolls the statute of

  5  limitation, and

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

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

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

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

10  tolling the statute of limitations where the tortfeasor

11  fraudulently conceals his or her identity, and

12         WHEREAS, the Legislature deems the provisions of this

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

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

15  of the judicially created tolling exception for fraudulent

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

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18  Be It Enacted by the Legislature of the State of Florida:

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20         Section 1.  Effective July 1, 1999, subsection (1) of

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

22         95.051  When limitations tolled.--

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

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

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

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

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

28  cannot be served on the person to be sued.

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

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

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    Florida Senate - 1999                                  SB 1480
    4-1233A-99




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

  2  identity of a person to be sued.

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

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

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

  6  or occurrence giving rise to the cause of action.

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

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

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

10  interest of any obligation or liability founded on a written

11  instrument.

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

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

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

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

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

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

18  incapacitated person, or is adjudicated to be incapacitated to

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

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

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

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

23

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

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

26  confer jurisdiction to grant the relief sought. This section

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

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

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

30  11 U.S.C. s. 108(c).

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    Florida Senate - 1999                                  SB 1480
    4-1233A-99




  1         Section 2.  It is the intent of the Legislature that

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

  3  1 of this act as it relates to the fraudulent concealment of a

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

  5  clarify existing law.

  6         Section 3.  This act shall take effect July 1, 1999.

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  9                          SENATE SUMMARY

10    Provides for the tolling of a statute of limitations when
      a cause of action or the identity of a tortfeasor is
11    fraudulently concealed from the person entitled to sue.

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