rejecting argument that Florida Department of Insurance had constructive notice of claim from other sources, and holding that under section 768.28(6), failure to give direct notice was fatal to complaint
How later courts described this case
- rejecting argument that Florida Department of Insurance had constructive notice of claim from other sources, and holding that under section 768.28(6), failure to give direct notice was fatal to complaint
- noting “there is little room for substantial compliance”
Written by the judges who cited it.
The opinion
FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D2022-1588
_____________________________
JORDAN M. ANDERSON and
LINDSAY C. HALL, individually,
and ROSS C. EVANS, as personal
representative of the estate of
AUDI J. ANDERSON,
Appellants,
v.
SCHOOL BOARD OF ESCAMBIA
COUNTY,
Appellee.
_____________________________
On appeal from the Circuit Court for Escambia County.
Thomas H. Williams, Judge.
July 23, 2025
NORDBY, J.
This case arose following the death of a child. Four-year old
Audi Anderson was a special needs student at Sherwood
Elementary School in Pensacola. While eating lunch at school,
Audi choked on his food and suffocated. He died at the hospital
four days later. Following Audi’s death, the Appellants—his
parents, Jordan M. Anderson and Lindsay C. Hall, as well as the
estate’s personal representative, Ross Evans—sued the School
Board of Escambia County. Count I alleged wrongful death under
Florida’s Wrongful Death Act, section 768.16, Florida Statutes,
and Count II alleged negligence under Florida’s Survival Statute,
section 46.021, Florida Statutes.
The School Board moved for summary judgment on both
counts, which the trial court ultimately granted. For Count I, the
trial court found that the Appellants had failed to give the School
Board pre-suit notice of the wrongful death claim in accordance
with section 768.28, Florida Statutes. And for Count II, the trial
court concluded that the “abatement clause” in Florida’s Wrongful
Death Act precluded the Appellants’ negligence/survival action.
This timely appeal followed the trial court’s entry of final judgment
for the School Board.
The Appellants challenge the trial court’s summary judgment
rulings on several grounds. We affirm the final judgment, but we
write to address two issues concerning the Appellants’ wrongful
death claim: (1) whether pre-suit notice to the School Board was
required under section 768.28, Florida Statutes, and (2) if such
statutory pre-suit notice was required, whether various
communications with the School Board satisfied that condition
precedent.
I.
The choking incident at school occurred on September 19,
2017, and Audi died in the hospital four days later. While Audi was
hospitalized, his mother, Lindsay Hall, retained Louisiana
attorney Timothy Upton to represent her. Upton is licensed to
practice law in Louisiana but has never been admitted to any other
state. Upton promptly mailed a letter via certified mail to the
school’s principal on September 20th. In it, Upton introduced
himself as representing both Hall and Audi and requested access
to any available video surveillance footage.
Upon receiving the letter, the principal forwarded a copy to
the School District’s Assistant Superintendent. The School
District’s Director of Risk Management also recalled seeing the
letter, which prompted him to assign School District Attorney
Steven Baker to handle the matter. So, Baker called Upton and
told him that he represented the School Board. Baker also emailed
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a response to Upton’s letter on September 28, 2017, prompting a
series of emails between Baker and Upton.
In his October 2, 2017, email, Upton requested again to see
the video footage. He also requested information about insurance
and media coverage. He then made two references to avoiding
formal litigation. First, Upton wrote, “I assume you and your client
would much prefer to handle this matter without court interaction,
as would we. Thus, I currently have no subpoena power and am
relying solely on you and your client’s professionalism, courtesy
and cooperation.” Second, he wrote,
Not to put the cart before the horse, but would you be
interested in sitting down for some coffee and a
meaningful discussion on how we might be able to work
something out and nip this one in the bud, if at all
possible. Lindsay, Audi’s mother, would benefit
tremendously from something accomplished without
having to relive this nightmare over and over again
through the normal litigation procedures. In doing my
due diligence, I must admit that I’ve enlisted the services
of a Florida trial lawyer to assist me, should your client
choose to take any position contrary to the best interests
of my clients, which you’ve given me no indication will be
occurring. Of course, he’s ready to proceed, but I often
find an informal, reasonable discussion over coffee, one
truly in good faith, often leads to nearly identical results
to those often achieved through years of expensive
litigation. I’m game if you are.
The next day, Upton sent a follow-up email to Baker to schedule a
time to review the video footage. Upton also stated that he was
aware of and taking care of the “notice requirements.”
A couple of days later, Upton sent another email about the
video footage. In this email, Upton included internet links to
multiple statutes and again referenced the notice requirements:
“Here is the actual waiver of sovereign immunity statute. Which
also talks about the notice requirement as well.” Upton and Baker
exchanged several more emails to schedule a time to review the
footage in Pensacola. All told, during the month following Audi’s
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death, Upton and Baker communicated via email and telephone
more than fifteen times and met in person for Upton to view the
video footage. Upton’s last contact with Baker, or anyone
associated with the School Board, was through email on October
19, 2017. In the email to Baker, Upton shared his “preliminary
opinion as to liability” after reviewing the video footage. Upton
declared that Audi’s death was “one of the most extreme case[s] of
gross negligence that [he had] witnessed in [his] 17 years of
practicing injury law.” As a “professional courtesy,” Upton notified
Baker “that I’ll be providing a follow up statement to the media at
their request relative to my opinion as to liability.”
During this same window of time, Audi’s father, Jordan M.
Anderson, engaged Florida attorney Harry Harper to represent
him. In October 2017, Harper requested school records, audio and
video recordings of Audi, any school personnel communications
regarding Audi, and any school personnel communications about
the choking incident. The Superintendent’s Office forwarded
Harper’s letter to Risk Management and the School Board’s
General Counsel. Audi’s father sent a follow-up letter in December
2017 repeating the request for these records.
After realizing that the case was “not going to resolve quickly,”
Upton engaged the services of Florida attorney Jeffrey Monroe to
file a lawsuit. On June 26, 2018, Monroe sent a formal Notice of
Claim to the Department of Financial Services (DFS):
Please be advised that the undersigned attorney has been
retained to represent Lindsay Hall (“Ms. Hall”). Ms.
Hall’s son, Audi Anderson, was injured in a choking
incident at Sherwood Elementary, located at 501
Cherokee Trail, Pensacola, Florida 32506, on or about
September 1, 2017.
This letter is formal notice under Section 768.28, Fla.
Stat., of the intent of Ms. Hall to file civil tort claims
against the County of Escambia.
Pursuant to Section 768.28(6)(c), Fla. Stat., the following
information is provided:
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(1) Claimant: Lindsay Hall on behalf of Audi
Anderson;
(2) Claimant’s date and place of birth and social
security number:
a. Audi Anderson, born January 7,
2013, in Pensacola Florida, [redacted]
and
(3) There exist no prior adjudicated, unpaid
claims in excess of $200.00, owed by any of the
foregoing claimants to the state, its agencies,
officers, or subdivisions.
If you or your legal representatives have any questions
about the contents of this notice, or if you allege that this
notice is in any way defective under Section 768.28, Fla.
Stat., please notify me immediately.
The Appellants ultimately filed suit against the School Board
for wrongful death and negligence on September 19, 2019. Over a
month later, on October 22, 2019, Monroe mailed a certified,
return-receipt-requested Notice of Claim letter to the School
Board, which stated that it was a “notice of tort claim under
Section 768.28, Florida Statutes.” This post-suit Notice of Claim
provided details about the claim and stated, “This letter is formal
notice under Section 768.28, Fla. Stat., of the intent to file civil tort
claims against the School Board of Escambia County Pursuant to
Section 768.28(6)(c), Fla. Stat . . .”
As mentioned above, the trial court granted summary
judgment on both counts and entered final judgment for the School
Board. For Count I, the trial court concluded that the Appellants
failed to give the School Board the statutorily required pre-suit
notice of the wrongful death claim. We now explain why the trial
court was correct.
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II.
To begin, we note that the new summary judgment standard
applies to this case. Within the past few years, the Florida
Supreme Court amended Florida Rule of Civil Procedure 1.510 to
align Florida’s standard with Rule 56 of the Federal Rules of Civil
Procedure. In re Amends. to Fla. R. of Civ. P. 1.510, 317 So. 3d 72,
77 (Fla. 2021). Because this case was adjudicated after the new
standard’s effective date of May 1, 2021, we view this case through
the lens of the new rule. Id. (providing that the new rule “govern[s]
the adjudication of any summary judgment motion decided on or
after that date, including in pending cases”).
To obtain summary judgment under this standard, a moving
party must show that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.” Fla. R. Civ. P. 1.510. The test for the existence of a genuine
factual dispute is whether “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” In re Amends.
to Fla. R. of Civ. P. 1.510, 317 So. 3d at 75 (citing Anderson v.
Liberty Lobby, 477 U.S. 242, 248 (1986)). A movant is not required
to disprove the opposing party’s claims. Id. Instead,
[A] movant can satisfy its initial burden of production in
either of two ways: “[I]f the nonmoving party must prove
X to prevail [at trial], the moving party at summary
judgment can either produce evidence that X is not so or
point out that the nonmoving party lacks the evidence to
prove X.”
Id. (citing Bedford v. Doe, 880 F.3d 993, 996–97 (8th Cir. 2018)).
For the statutory interpretation issue presented, our review is
de novo. Fagan v. Jackson Cnty. Hosp. Dist., 379 So. 3d 1213, 1215
(Fla. 1st DCA 2024).
A.
This case turns on whether the Appellants failed to give
timely and sufficient pre-suit notice to the School Board. There is
no dispute that the Appellants provided pre-suit notice to DFS. But
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there is a good bit of dispute over whether the Appellants also had
to provide pre-suit notice to the School Board.
We begin with section 768.28(6), Florida Statutes, and
whether it required pre-suit notice to the School Board.
Section 768.28(6) provides:
(a) 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, 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:
...
2. Such action is for wrongful death, the
claimant must present the claim in writing to
the Department of Financial Services within 2
years after the claim accrues.
(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.
§ 768.28(6)(a)-(b), Fla. Stat.
Because this statute is part of Florida’s statutory waiver of
sovereign immunity, we strictly construe it. City of Jacksonville v.
Boman, 320 So. 3d 931, 934–35 (Fla. 1st DCA 2021) (citing Barnett
v. Dep’t of Fin. Servs., 303 So. 3d 508, 510, 513 (Fla. 2020)
(recognizing “this Court’s long-standing precedent that strictly
construes Florida law waiving sovereign immunity,” and requiring
7
any waiver of immunity to be construed narrowly and in favor of
the government); Menendez v. N. Broward Hosp. Dist., 537 So. 2d
89, 91 (Fla. 1988) (rejecting argument that Florida Department of
Insurance had constructive notice of claim from other sources, and
holding that under section 768.28(6), failure to give direct notice
was fatal to complaint); Maynard v. State, Dep’t of Corr., 864 So.
2d 1232, 1234 (Fla. 1st DCA 2004) (noting “there is little room for
substantial compliance”)).
Under the plain language of section 768.28(6), we conclude
that the School Board was entitled to pre-suit notice of the
Appellant’s wrongful death claim. Paragraph (a) imposes the clear
condition that—regardless of the type of claim—an action “may not
be instituted on a claim . . . unless the claimant presents the claim
in writing to the appropriate agency.” § 768.28(6)(a), Fla. Stat. The
statute then requires additional notice to DFS within three years
of accrual for any claim that is not “against a municipality, county,
or the Florida Space Authority.” § 768.28(6)(a), Fla. Stat. These
two requirements are separated by the phrase “and also,” which
signifies that they are independent conditions. § 768.28(6)(a), Fla.
Stat. The statute then sets out two exceptions to the second rule
about notice to DFS. Relevant here, the second exception states
that when an action is for wrongful death, “the claimant must
present the claim in writing” to DFS within two years of the claim’s
accrual. § 768.28(6)(a)2., Fla. Stat. This last provision neither
disturbs nor displaces the primary (and separate) requirement
that claimants provide pre-suit notice to the appropriate agency.
Several nearby provisions confirm this reading. Paragraph (b)
reiterates that “the requirements of notice to the agency and denial
of the claim pursuant to paragraph (a) are conditions precedent to
maintaining an action.” § 768.28(6)(b), Fla. Stat. And paragraph
(d) provides that “in wrongful death actions,” the failure of DFS or
the appropriate agency to “make final disposition of a claim within
90 days after it is filed shall be deemed a final denial of the claim.”
§ 768.28(6)(d), Fla. Stat. Moreover, “[t]he statute of limitations for
. . . wrongful death actions is tolled for the period of time taken by
the Department of Financial Services or the appropriate agency to
deny the claim.” Id. If notice was required only to DFS in wrongful
death claims, the references to “the agency” and “the appropriate
agency” in these provisions would make no sense. Instead, our
8
reading of 768.28(6) accounts for the Legislature’s inclusion of the
terms “agency” and “appropriate agency” in these provisions and
avoids rendering them superfluous. See Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 174 (2012)
(“If possible, every word and every provision is to be given effect
(verba cum effectu sunt accipienda). None should be ignored. None
should needlessly be given an interpretation that causes it to
duplicate another provision or to have no consequence.” (footnote
omitted)).
Based on the plain language of the statute, we hold that
section 768.28, Florida Statutes, required the Appellants to
provide the School Board—as the “appropriate agency”—with
pre-suit notice before filing their wrongful death claim.
B.
Next, having concluded that section 768.28(6) required pre-
suit notice to the School Board, we turn to whether the
communications between the Appellants’ attorneys and the School
Board were enough to satisfy this condition precedent.
The Appellants maintain that any required notice to the
School Board was provided through a combination of Upton’s,
Harper’s, and Audi’s father’s communications with the School
Board. To be fair, these documents confirm that the School Board
was aware of the incident and the potential for a lawsuit. Still, the
correspondence makes no claim. There was no demand for
compensation nor any notice of an imminent claim. Both Mr.
Anderson’s and Harper’s communications related to requests for
records. Upton’s correspondence was more extensive, but his
writing suggested that he was trying to avoid litigation. While the
School Board may have known of the potential for a lawsuit,
section 768.28(6) requires written notice and the opportunity to
investigate and respond. Here, it does not appear that the School
Board had the formal opportunity to do so. The Appellants
eventually provided the School Board with formal notice, but it
was after the lawsuit’s filing. On the record before us, the written
communications provided to the School Board fail to satisfy the
notice requirements of section 768.28(6).
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Given all this, we affirm the final judgment.
AFFIRMED.
ROBERTS and WINOKUR, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Dwight O. Slater of Guilday Law, P.A., Tallahassee, for Appellants.
Steven J. Baker of Steven J. Baker, P.A., Pensacola, for Appellee.
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