Rick Staly, as Sheriff of Flagler County, Florida v. Nina Izotova

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D2023-0531

LT Case No. 2021-CA-000411

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RICK STALY, as SHERIFF of

FLAGLER COUNTY, FLORIDA,

Appellant,

v.

NINA IZOTOVA,

Appellee.

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On appeal from the Circuit Court for Flagler County.

Christopher A. France, Judge.

William J. McFarlane, III and Joseph Clancy, of McFarlane Law,

McFarlane, Dolan & Prince, Coral Springs, for Appellant.

Edward S. Rue and Roman Diveev, of Rue & Ziffra, Port Orange,

for Appellee.

December 20, 2024

WALLIS, J.

Rick Staly (Appellant) appeals a non-final order denying his

motion for summary judgment based on the finding that he was

not entitled to sovereign immunity. Because Nina Izotova

(Appellee) failed to comply with the requirements of section

768.28(6), Florida Statutes (2021), and the time for compliance has

passed, we reverse the order and remand for the entry of summary

judgment in favor of Appellant.

On January 8, 2019, Appellee was involved in a car accident

with an on-duty Flagler County Sheriff’s Deputy. Appellee filed a

one-count amended complaint against Appellant for negligence

based on vicarious liability. The amended complaint alleged that

all conditions precedent to filing the action had been performed,

including specifically, and without limitation, providing notice of

claims required by section 768.28.

The evidence shows that Appellee sent notices by certified

mail to: the Florida Sheriff’s Risk Management Fund, the City of

Palm Coast, the City of Bunnell, Flagler County, and the State of

Florida, Bureau of Consumer Assistance.

Appellant filed his answer and affirmative defenses, which

included his defense that he was exempt from liability under

sovereign immunity except to the extent that it was waived by

section 768.28, and that Appellee had failed to satisfy all

conditions precedent under section 768.28(6). Appellant later filed

a motion for final summary judgment specifying that Appellee had

failed to serve him or the Flagler County Sheriff’s Office with

notice of her claim as required by section 768.28. Appellant

attached an affidavit from John LeMaster, General Counsel to the

Sheriff’s Office, swearing that neither Appellant nor his office had

received proper notice of Appellee’s claim.

In her response in opposition to the motion for summary

judgment, Appellee argued that she had fulfilled all conditions

precedent to filing the lawsuit, including the notice of claim as

required by section 768.28(6). She attached, in part, emails from

an employee of her attorney’s firm to the Sheriff’s Office, which

were sent approximately one week after the accident. The first

email stated as follows:

Good afternoon,

I was looking for a report

Incident happened 1/8/2019

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Our client – Nina Izotova

Accident occurred on SR 100 when a Flagler

[Sheriff] Ran a red light and t-boned the client.

Don’t have much information I have attached

the authorization with no case number, I am

sorry I don’t have that information.

The second email stated as follows:

Good afternoon,

I was advised by Ms. Cochran to contact you in

regards to a client of ours, she was involved in

a[n] accident with a Flagler Sheriffs, Sheriff on

1/8/2019

Our client: Nina Izotova

Accidented [sic] occurred on SR 100 when a

Flagler Sheriff Ran a red light and t-boned the

client.

I have the incident report, not the crash report.

My question is who do I send the LOR to, who

handles the auto insurance for your Sheriffs?

Ultimately the trial court issued an Amended Order Denying

Summary Judgment, finding that Appellee had satisfied the

requirement of pre-suit notice pursuant to section 768.28(6)(a) by

sending notices to various entities as well as the two emails to the

Office of the Flagler County Sheriff, which contained detailed facts

of the claim, affidavits, and other attachments. The court found

that the communications sent to the Flagler County Sheriff’s Office

were sufficiently direct and specific to reasonably put the agency

on notice of the existence of the claim and demand.

Section 768.28(6) states:

(6)(a) An action may not be instituted on a

claim against the state or one of its

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agencies or subdivisions unless the

claimant presents the claim in

writing to the appropriate agency,

and also, except as to any claim against a

municipality, county, or the Florida Space

Authority, presents such claim in

writing to the Department of

Financial Services, within 3 years

after such claim accrues and the

Department of Financial Services or

the appropriate agency denies the

claim in writing; except that, if:

....

(b) For purposes of this section, the

requirements of notice to the agency

and denial of the claim pursuant to

paragraph (a) are conditions

precedent to maintaining an action

but shall not be deemed to be elements of

the cause of action and shall not affect the

date on which the cause of action accrues.

(c) The claimant shall also provide to the

agency the claimant’s date of birth and

social security number if the claimant is

an individual . . . . The claimant shall also

state the case style, tribunal, the nature

and amount of all adjudicated penalties,

fines, fees, victim restitution fund, and

other judgments in excess of $200,

whether imposed by a civil, criminal, or

administrative tribunal, owed by the

claimant to the state, its agency, officer or

subdivision. If there exists no prior

adjudicated unpaid claim in excess of

$200, the claimant shall so state.

(Emphasis added). The Florida Supreme Court has held that

section 768.28 applies “to sheriffs as a separate entity or agency of

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a political subdivision.” Beard v. Hambrick, 396 So. 2d 708, 711

(Fla. 1981); see also Pirez v. Brescher, 584 So. 2d 993, 995 (Fla.

1991) (confirming that section 768.28 applies to sheriffs).

“To waive sovereign immunity, the State must receive notice

of each claim against it.” Cunningham v. Fla. Dep’t of Child. &

Fams., 782 So. 2d 913, 915 (Fla. 1st DCA 2001). “The purpose of

the notice requirement is to provide the State and its agencies

sufficient notice of claims filed against them and time to

investigate and respond to those claims.” Id. A claimant may not

institute a claim against the State or one of its agencies unless he

first presents the claim in writing to the appropriate agency. Id.

Thus, the notice requirement in section 768.28(6) does not affect a

court’s jurisdiction but, instead, is a condition precedent to the

lawsuit. See § 768.28(6)(b), Fla. Stat.; VonDrasek v. City of St.

Petersburg, 777 So. 2d 989, 991 (Fla. 2d DCA 2000). Furthermore,

because section 768.28(6) is part of the statutory waiver of

sovereign immunity, it must be strictly construed. Levine v. Dade

Cnty. Sch. Bd., 442 So. 2d 210, 212 (Fla. 1983); see also Fagan v.

Jackson Cnty. Hosp. Dist., 379 So. 3d 1213, 1215 (Fla. 1st DCA

2024). In order to strictly comply with section 768.28(6)(a), the

claim must be in writing and it must assert a claim for

compensation. See Wilson v. City of Tampa, 209 So. 3d 646, 649

(Fla. 2d DCA 2017); Smart v. Monge, 667 So. 2d 957, 959 (Fla. 2d

DCA 1996).

We find the case at bar to be similar to Smart v. Monge.

There, the Second District Court of Appeal found that a letter that

identified the incident, but did not in any way state a claim or

demand against the Sheriff, was insufficient to meet the notice

requirements of section 768.28(6). Similarly, here, the two emails

Appellee’s lawyer’s office sent to the Sheriff’s Office identified

Appellee, the date of the accident, and some other relevant

information related to the accident, but did not notify Appellant

that Appellee planned to file a claim against the Sheriff’s Office or

demand compensation for her injuries. Like the letter that was

sent in Smart, the emails in the instant case appear to be nothing

more than a request for information about the accident and the

relevant automobile insurance provider. Consequently, they did

not meet the requirements of section 768.28(6).

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Moreover, the letters sent by Appellee to various other

entities did not satisfy the requirements of section 768.28(6).

When considering this issue, City of Jacksonville v. Boman, 320

So. 3d 931 (Fla. 1st DCA 2021), is instructive. The Boman court

explained that:

The relevant key phrase in section

768.28(6)(a) requires notice be presented

to “the appropriate agency:” “An action

may not be instituted on a claim against

the state or one of its agencies or

subdivisions unless the claimant presents

the claim in writing to the appropriate

agency . . . .” (emphasis added). In context,

the phrase “appropriate agency:” refers to

the governmental entity whose employee's

alleged negligence, wrongful act, or

omission caused the plaintiff's alleged

injuries or loss.

....

The “appropriate agency” is the entity that

would be liable for its employees’

negligence or wrongdoing, and thus the

proper named defendant in the

contemplated tort action.

320 So. 3d at 936.

Based on Boman, “the appropriate agency” in this case

would be Appellant (the Flagler County Sheriff’s Office) because it

was his employee’s alleged negligence that caused the injuries in

the car accident. Thus, based on the plain language of section

768.28(6)(a), Appellee was required to present the claim in writing

to Appellant. She did not do so. Instead, she sent notices to the

Florida Sheriff’s Risk Management Fund, the City of Palm Coast,

the City of Bunnell, Flagler County, and the State of Florida,

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Bureau of Consumer Assistance. Therefore, Appellee failed to

comply with the requirements of section 768.28(6)(a). 1

We also find that Appellee failed to comply with the statute

because she did not serve a notice on the Department of Financial

Services (“DFS”). Appellee argues that her notice to the Bureau of

Consumer Assistance satisfies section 768.28(6) because it is a

subdivision of DFS. Notwithstanding this argument, nothing in

the record establishes that the Bureau of Consumer Assistance is

a subdivision of DFS or that their mailing addresses are the same.

Additionally, Appellee cites no case law supporting her claims that

notice to a subdivision of DFS qualifies as notice to DFS for

purposes of section 768.28(6)(a). Because we must strictly

construe this statute, Appellee’s alleged notice to the Bureau of

Consumer Assistance was insufficient to meet the requirements of

section 768.28(6).

Because Appellee did not strictly comply with the notice

requirements set forth in section 768.28(6), Appellant’s sovereign

immunity had not been waived. Additionally, because the time for

compliance with the statute has passed, the trial court should have

granted Appellant’s Motion for Summary Judgment. See Lederer

v. Orlando Utils. Comm’n, 981 So. 2d 521, 526 (Fla. 5th DCA 2008)

(affirming summary judgment in favor of appellee where appellant

failed to provide notice of claim to DFS within three years after the

accident occurred as required by section 768.28(6)); see also

Broward Cnty. Sch. Bd. v. Joseph, 756 So. 2d 1077, 1078 (Fla. 4th

DCA 2000) (explaining that failure to provide notice as required in

section 768.28(6) was fatal to Joseph’s claim because statutory

time for notice had passed and he could never satisfy conditions

precedent to filing suit against School Board). Therefore, we

reverse and remand with instructions that the trial court enter

summary judgment in favor of Appellant.

1 We reject without comment Appellee’s argument that notice

to the Florida Sheriff’s Risk Management Fund was notice to

Appellant.

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REVERSED and REMANDED with instructions.

MAKAR and HARRIS, JJ., concur.

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Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

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