Fagan v. Jackson County Hospital District, Jackson Hospital

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D2023-0724

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THEODORE FAGAN, as

Personal Representative of the

Estate of LaShan Fagan,

Appellant,

v.

JACKSON COUNTY HOSPITAL

DISTRICT d/b/a JACKSON

HOSPITAL, a/k/a JACKSON

COUNTY HOSPITAL FOUNDATION,

INC.,

Appellee.

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On appeal from the Circuit Court for Jackson County.

Ana Maria Garcia, Judge.

February 14, 2024

KELSEY, J.

The final judgment on appeal dismissed Appellant’s wrongful-

death lawsuit against Appellee, a hospital district protected by

sovereign immunity. See § 768.28(2), Fla. Stat. (2017) (defining

“state agencies or subdivisions” as including “the independent

establishments of the state, including state university boards of

trustees; counties and municipalities; and corporations primarily

acting as instrumentalities or agencies of the state, counties, or

municipalities”). We affirm the judgment of dismissal.

The trial court ruled that dismissal was required because—as

is undisputed—Appellant failed to comply with the statutory two-

year time limit for notifying the Florida Department of Financial

Services of the claim under section 768.28(6)(a)2. of the Florida

Statutes. This section provides as follows:

[If] [s]uch 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.

§ 768.28(6)(a)2., Fla. Stat. (2017); see § 95.11(4)(d), Fla. Stat.

(establishing two-year statute of limitations following accrual of an

action for wrongful death).

Although conceding he did not notify DFS within that time

limit, Appellant argues instead that, because chapter 766

establishes presuit investigation requirements that apply to

claims against both non-immune defendants and immune

defendants like Appellee, fairness and equity dictate that tolling

provisions in chapter 766 should apply equally in actions under

section 768.28. Appellant argues that if that were the case, the

strict two-year time limit for notifying DFS under section

768.28(6)(a)2. should be extended as well, making the notice to

DFS timely in this case.

Dual dichotomies are critically important here: immune

versus non-immune defendants, and notices to defendants versus

notices to statutorily designated state agencies. It is true that

claimants and defendants alike (even immune defendants) are

subject to presuit investigation requirements. See § 766.203(2),

Fla. Stat. (applying requirements to claimants); § 766.106(3)

(applying them to defendants). And it is true that section

766.106(4) authorizes tolling of statutes of limitations for filing

suit during such presuit investigations:

The notice of intent to initiate litigation shall be

served within the time limits set forth in s. 95.11.

However, during the 90-day period, the statute of

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limitations is tolled as to all potential defendants. Upon

stipulation by the parties, the 90-day period may be

extended and the statute of limitations is tolled during

any such extension. Upon receiving notice of termination

of negotiations in an extended period, the claimant shall

have 60 days or the remainder of the period of the statute

of limitations, whichever is greater, within which to file

suit.

§ 766.106(4), Fla. Stat. (2017) (emphasis added). As is facially

obvious, this section tolls deadlines for filing lawsuits, not for

giving statutory notice to state agencies. These parties agreed to

the extensions contemplated in section 766.106(4)—as to filing of

a lawsuit. The parties never agreed to an extension for notifying

DFS under section 768.28(6)(a)2.—nor could they have validly

done so.

Chapter 766 addresses notice to state agencies separately. It

requires claimants to give notice of their claims to the state

agencies with potential regulatory authority over medical

malpractice. Such notices in cases subject to chapter 766 are not

due until after presuit investigations end and after a suit is filed:

Following the initiation of a suit alleging medical

negligence with a court of competent jurisdiction, and

service of the complaint upon a defendant, the claimant

shall provide a copy of the complaint to the Department

of Health and, if the complaint involves a facility licensed

under chapter 395, the Agency for Health Care

Administration.

§ 766.106(2)(b), Fla. Stat. (2017).

Unlike section 766.106, section 768.28 uniquely embodies and

restricts the state’s limited waiver of sovereign immunity in tort

actions. The Florida Legislature expressly and specifically made

these actions “subject to the limitations specified in this act.”

§ 768.28(1), Fla. Stat. (2017). In cases subject to section 768.28,

“the claimant must present the claim in writing to the Department

of Financial Services within 2 years after the claim accrues.”

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§ 768.28(6)(a)2., Fla. Stat. (2017). Unlike chapter 766, section

768.28 does not allow for delayed notice to DFS.

Appellant nevertheless argues that we should interpret

section 768.28 as allowing delayed notice to DFS after the tolling

contemplated in chapter 766, because that would more “fairly and

equitably” allow more time for presuit investigation in cases

involving immune defendants. Appellant argues that the strict

limitations in section 768.28(6) “conflict with the purpose of

Chapter 766 presuit provisions.”

As a threshold matter, we observe that any statutory

interpretation argument based on what a litigant thinks the

Florida Legislature “should” have said but did not say, and asking

us to say it instead, stands on extremely unstable ground. Our

standard of review for statutory interpretation is de novo, but “[w]e

are not at liberty to add words to statutes that were not placed

there by the Legislature.” Hayes v. State, 750 So. 2d 1, 4 (Fla.

1999). If a statute is “‘clear, unambiguous, and addresses the

matter in issue,’ then our task is at an end.” Advisory Op. to

Governor re Implementation of Amend. 4, the Voting Restoration

Amend., 288 So. 3d 1070, 1078 (Fla. 2020) (quoting Graham v.

Haridopolos, 108 So. 3d 597, 603 (Fla. 2013)). Courts are “‘without

power to construe an unambiguous statute in a way which would

extend, modify, or limit, its express terms or its reasonable and

obvious implications. To do so would be an abrogation of legislative

power.’” Holly v. Auld, 450 So. 2d 217, 219 (Fla.1984) (emphasis

removed) (quoting Am. Bankers Life Ins. Co. of Fla. v. Williams.

212 So. 2d 777, 778 (Fla. 1st DCA 1968). These limits apply with

greater force in the context of section 768.28, which, as a limited

waiver of the state’s sovereign immunity, must be “strictly

construed, with strict compliance being required.” Maynard v.

State Dep’t of Corr., 864 So. 2d 1232, 1234 (Fla. 1st DCA 2004).

Established precedent requires affirmance. In Menendez v.

North Broward Hospital District, 537 So. 2d 89 (Fla. 1988), the

defendant in a malpractice action was a hospital district, as is the

defendant here. Significantly, the court expressly noted that its

analysis was governed by the requirement that the statutory

waiver of sovereign immunity must be strictly construed. Id. at 91.

The statutory agency-notice requirement of section 768.28 applied

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(though what is now DFS was then called the Department of

Insurance and the limit was three years). Id. at 90–91. The lawsuit

was filed and had been pending for four years before the defendant

moved to dismiss on the grounds that the plaintiffs had failed to

notify DOI timely. Id. at 90. The plaintiffs argued that the agency

had indirect notice of the claim and that the defendant was

estopped from raising timeliness because it had participated in the

litigation for years without raising the notice defect. Id. The

defendant prevailed before the trial court and on appeal, and the

Florida Supreme Court affirmed on a certified question. The

supreme court, in addition to honoring the requirement of strictly

construing section 768.28, emphasized that timely notice to the

agency is “an essential element of the cause of action,” making the

plaintiffs’ failure to comply “fatal to their complaint.” Id. at 91.

The Menendez court relied on Levine v. Dade County School

Board, 442 So. 2d 210 (Fla. 1983), which required strict

construction of the agency-notice deadline in section 768.28(6).

Menendez, 537 So. 2d at 91 (citing Levine, 442 So. 2d at 212–13).

In Levine, the plaintiff argued that the agency-notice requirement

was non-substantive, and that the failure to give such notice

should be excused because it did not create any prejudice. Levine,

442 So. 2d at 211. The plaintiff even got an affidavit from DOI

saying the agency had no financial interest or function in such

claims. Id. Nevertheless, the Florida Supreme Court rejected the

plaintiff’s arguments. The court recognized that it was required to

give effect to the plain language of the statute, and held that as

part of the statutory waiver of sovereign immunity, it must be

strictly construed. Id. at 212 (first citing Manatee Cnty. v. Town of

Longboat Key, 365 So. 2d 143 (Fla.1978); and then citing Spangler

v. Fla. State Tpk. Auth., 106 So. 2d 421 (Fla.1958)). The court

summed up the statutory-interpretation restrictions as follows:

In the face of such a clear legislative requirement, it

would be inappropriate for this Court to give relief to the

petitioner based on his or our own beliefs about the

intended function of the Department of Insurance in the

defense of suits against school districts. Our views about

the wisdom or propriety of the notice requirement are

irrelevant because the requirement is so clearly set forth

in the statute. . . . Consideration of the efficacy of or need

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for the notice requirement is a matter wholly within the

legislative domain.

. . . Where the time for such notice has expired so

that it is apparent that the plaintiff cannot fulfill the

requirement, the trial court has no alternative but to

dismiss the complaint with prejudice.

Levine, 442 So. 2d at 212–13.

Appellant attempts to distinguish Menendez and Levine on

the grounds that they did not address his equitable argument. This

bootstrapping is contrary to numerous additional cases. The same

presuit tolling argument was rejected on the same grounds in

Wright v. Polk County Public Health Unit, 601 So. 2d 1318 (Fla. 2d

DCA 1992). The court there held that the complaint was properly

dismissed for failure to allege timely notice to the agency, but could

not be dismissed with prejudice because the record did not

demonstrate whether timely compliance was still possible. Id. at

1319. There as here, the plaintiff argued that the statutory tolling

for presuit investigation requirements should apply to chapter 768

as well. Id. The court rejected the tolling argument, citing

Menendez and Levine. Id. at 1023. To similar effect is Goldberg v.

Belkins Moving and Storage Company, 423 So. 2d 491, 491 (Fla.

1st DCA 1982), where the tolling of the statute of limitations under

the Soldiers and Sailors Civil Relief Act was held not to toll time

for giving notice to DOI under section 768.28(6).

Furthermore, the trial court judge originally assigned to this

case below thoroughly explained the problem with Appellant’s

argument, in an early order denying on procedural grounds the

hospital’s pre-answer motion to dismiss:

Again and again, Florida courts have reiterated that

the failure of a claimant to timely notify DFS can cripple

an otherwise viable claim. See Maynard [v. State, Dept. of

Corr.], 864 So. 2d [1232,] 1234 [(Fla. 1st DCA 2004)]

(holding that appellant’s complete failure to timely notify

the department was fatal to the claim); see also, Broward

County School Board v. Joseph, 756 So. 2d 1077 (Fla. 4th

[DCA] 2000) (holding that plaintiff’s suit was due to be

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dismissed because of his failure to satisfy conditions

precedent by not notifying the department within the

mandated time frame); Wall v. Palm Beach County, 743

So. 2d 44 (Fla. 4th DCA 1999) (affirming summary

judgment in favor of county on the grounds of failure of

the claimant to give notice of claim to the department);

Wagatha v. City of Satellite Beach, 865 So. 2d 620 (Fla.

5th DCA 2004) (affirming dismissal of complaint with

prejudice because appellant did not provide timely notice

of claim under § 768.28(6)(a)); Pirez v. Brescher, 584 So.

2d 993, 995 (Fla. 1991) (“[Plaintiff] failed to give proper

notice of his claim and thus failed to comply with a

condition precedent to the waiver of sovereign immunity.

This necessarily results in the dismissal of his claim.”);

Burkett v. Calhoun County, 441 So. 2d 1108 (Fla. 1st DCA

1983) (affirming dismissal of complaint against the

county where plaintiffs did not notify the department of

insurance within three years as required by § 768.28(6)).

A blind eye cannot be given to such case law.

Despite this weight of authority and clear warning from the

trial court, Appellant pursued and continues to pursue his in pari

materia argument by citing Maggio v. Florida Department of Labor

& Employment Security, 899 So. 2d 1074, 1076–77 (Fla. 2005). He

claims Maggio is “controlling,” and argues that the supreme court

in Maggio “harmonized” the Florida Civil Rights Act (FCRA) with

the sovereign immunity statute to excuse a claimant’s failure to

notify DFS within three years as then required by section

768.28(6).

Maggio is inapposite. Contrary to Appellant’s argument, the

court there clearly distinguished between the two statutory

schemes. In Maggio, the issue was whether, as the defendant state

agency argued, a state employee’s employment discrimination

claim should be treated as a tort claim and made subject to the

separate tort notice requirements of section 768.28(6). 899 So. 2d

at 1076. The legislature did not reference the tort immunity

provisions of section 768.28(6) anywhere in the FCRA. The

supreme court rejected the agency’s argument, holding that the

two statutory schemes—civil rights on the one hand and tort

claims against the state on the other hand—are independent. 899

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So. 2d at 1080. The other cases Appellant cites for this argument

are likewise inapposite, as they do not involve the two statutes at

issue here or apply the strict limits for interpreting the state’s

limited waiver of sovereign immunity in section 768.28.

We have carefully considered all of Appellant’s arguments and

authorities, and find them without merit. In light of the

overwhelming weight of controlling authority, we affirm the trial

court’s dismissal of Appellant’s lawsuit.

AFFIRMED.

LEWIS and RAY, 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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Joseph D. Lane and John Givens of The Cochran Firm – Dothan,

P.C., Dothan, Alabama, for Appellant.

Jaken E. Roane of Guilday Law, P.A., Tallahassee, for Appellee.

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