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Levine v. Dade County School Bd.

Supreme Court of Florida
Dec 8, 1983
442 So. 2d 210 (Fla. 1983)

Summary

holding that waiver of sovereign immunity statutes must be strictly construed since sovereign immunity is wholly within the legislative domain; where the time for notice has expired, the trial court has no alternative but to dismiss the case

Summary of this case from Public Health Trust v. Acanda

Opinion

No. 62804.

December 8, 1983.

Petition for review from the District Court of Appeal.

Arthur W. Tifford, Miami, for petitioner.

Donna S. Catoe of Peters, Pickle, Flynn, Niemoeller, Stieglitz Downs, Miami, for respondent.

Jim Smith, Atty. Gen. and Joseph A. Linnehan, Asst. Atty. Gen., Tallahassee, for State of Fla., amicus curiae.

Robert A. Ginsburg, Dade County Atty. and James A. Jurkowski, Asst. County Atty., Miami, for Metropolitan Dade County, amicus curiae.


This cause is before the Court on petition for review of the decision of the district court of appeal in Levine v. Dade County School Board, 419 So.2d 808 (Fla.3d DCA 1982). The district court certified that the dispositive issue it passed upon is one of great public importance. Therefore, we have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Robert Levine brought an action against the Dade County School Board alleging that on March 27, 1977, when he was a public high school student, he was the victim of a severe beating at the hands of other students during school hours and on school grounds. The complaint alleged that the incident was caused by the negligent failure of school district employees to maintain order and supervise the activities of students. The complaint alleged severe personal injuries.

Prior to filing his lawsuit, Levine provided written notice of his claim to the school board. However, he did not notify the State Department of Insurance within three years of the accrual of the cause of action as is required by section 768.28(6), Florida Statutes (1977). Section 768.28 is the statutory waiver of sovereign immunity for the state, its agencies, and its subdivisions. On motion of the school district, the trial court dismissed the complaint for failure to allege notice to the Department of Insurance.

Having failed to give the required notice within three years of the incident, Levine was unable to amend his complaint to allege that the notice had been timely given. Instead he filed an amended complaint which made clear that such notice had not been given, but he attached the affidavit of an official of the Department of Insurance to the effect that the department had no financial interest in the outcome of the suit and no role or function in the defense of claims against school districts. According to the affidavit, the department's role in cases such as this is limited to gathering information and keeping records about such claims and reporting the information to the legislature from time to time. The trial court dismissed the complaint with prejudice.

On appeal the district court found merit in Levine's argument that the notice provisions should not be deemed a strict condition precedent to filing suit, but affirmed the trial court's ruling on the authority of Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979), where this Court held that the notice requirements of section 768.28(6) are conditions precedent to maintaining a suit. The district court certified the following question:

May a plaintiff maintain an action to recover damages from a state agency or subdivision, pursuant to section 768.28(6), Florida Statutes (1977), if he notified the appropriate agency but failed to present a written notice of claim to the Department of Insurance, which has no interest or role in the proceedings other than to report claims to the legislature, and no prejudice resulted?

419 So.2d at 809. We are compelled to answer the question in the negative and approve the decision of the district court of appeal.

Section 768.28(6) reads as follows:

(6) An action shall 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, presents such claim in writing to the Department of Insurance, within 3 years after such claim accrues and the Department of Insurance or the appropriate agency denies the claim in writing. The failure of the Department of Insurance or the appropriate agency to make final disposition of a claim within 6 months after it is filed shall be deemed a final denial of the claim for purposes of this section. The provisions of this subsection shall not apply to such claims as may be asserted by counterclaim pursuant to s. 768.14.

There is some support in this statute for the suggestion that the notice requirement in question should only apply to cases in which the Department of Insurance has some official role or interest. For example, the statute makes reference to "the Department of Insurance or the appropriate agency" denying the claim and making "final disposition of a claim." It can be inferred that the statute contemplates some role for the department in responding to claims against the state. One can speculate that the department may have such a role in lawsuits against departments and agencies of the executive branch of state government. The provision in section 768.28(6) excepting suits against municipalities from the requirement of notice to the Department of Insurance, together with the affidavit negating any role or function for the department in suits against school districts, gives rise to further speculation that the failure to also except county school districts from the statutory notice requirement was inadvertent.

See also § 768.28(3), Fla. Stat. (1977), which provides:
(3) Except for a municipality, the affected agency or subdivision may, at its discretion, request the assistance of the Department of Insurance in the consideration, adjustment, and settlement of any claim under this act.
See also § 768.28(7), which provides:
(7) In actions brought pursuant to this section, process shall be served upon the head of the agency concerned and also, except as to a defendant municipality, upon the Department of Insurance, and the department or the agency concerned shall have 30 days within which to plead thereto.

Such speculation, however, does not authorize us to ignore the plain language of the statute. Section 768.28(6) clearly requires written notice to the department within three years of the accrual of the claim before suit may be filed against any state agency or subdivision except a municipality. Because this subsection is part of the statutory waiver of sovereign immunity, it must be strictly construed. Manatee County v. Town of Longboat Key, 365 So.2d 143 (Fla. 1978); Spangler v. Florida State Turnpike Authority, 106 So.2d 421 (Fla. 1958). 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. Richman v. Shevin, 354 So.2d 1200 (Fla. 1977), cert. denied, 439 U.S. 953, 99 S.Ct. 348, 58 L.Ed.2d 343 (1978); Stern v. Miller, 348 So.2d 303 (Fla. 1977). Consideration of the efficacy of or need for the notice requirement is a matter wholly within the legislative domain.

Under section 768.28(6), not only must the notice be given before a suit may be maintained, but also the complaint must contain an allegation of such notice. Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979). 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. Dukanauskas v. Metropolitan Dade County, 378 So.2d 74 (Fla.3d DCA 1979). Therefore the district court's affirmance of the order of dismissal was correct.

The decision of the district court of appeal is approved. We answer the question in the negative.

It is so ordered.

ALDERMAN, C.J., and ADKINS, OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.


Summaries of

Levine v. Dade County School Bd.

Supreme Court of Florida
Dec 8, 1983
442 So. 2d 210 (Fla. 1983)

holding that waiver of sovereign immunity statutes must be strictly construed since sovereign immunity is wholly within the legislative domain; where the time for notice has expired, the trial court has no alternative but to dismiss the case

Summary of this case from Public Health Trust v. Acanda

holding that complaint against school board was properly dismissed with prejudice where plaintiff failed to provide statutory written notice to Department of Insurance and time for compliance expired

Summary of this case from Progressive v. Menendez

holding that under section 768.28 a plaintiff may not maintain an action against a state agency unless he presents written notice of a claim to the DOI despite the DOI having "no interest or role in the proceedings other than to report claims to the legislature."

Summary of this case from Mack v. Broward County

holding that the complaint against the school board was properly dismissed because the plaintiff failed to provide written notice of the claim to the insurance department as required by section 768.28

Summary of this case from Motor v. Citrus Cty. School Bd.

holding that complaint against school board was properly dismissed with prejudice where plaintiff failed to provide written notice to Department of Insurance required by section 768.28, and time for compliance expired

Summary of this case from City of Coconut Crk. v. Deerfield

finding complaint against governmental entity properly dismissed with prejudice where claimant failed to file section 768.28 notice to Department of Insurance and time for provision of notice had expired

Summary of this case from City of Coconut Crk. v. Deerfield

requiring strict construction of Section 768.28 and noting that "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."

Summary of this case from Hodge v. Orlando Utilities Commission

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.

Summary of this case from Fagan v. Jackson Cnty. Hosp. Dist.

stating that dismissal with prejudice is appropriate when plaintiff has not provided the notice required under section 768.28 and the time for such notice has expired

Summary of this case from Scullock v. Gee

In Levine v. Dade County School Board, 442 So.2d 210 (Fla. 1983), the supreme court could find no explanation. The court noted that an official of the Department of Insurance had supplied an affidavit swearing that the department had no financial interest in such suits and no role or other function in the defense of such claims.

Summary of this case from Turner v. Gallagher

In Levine v. Dade County School Board, 442 So.2d 210 (Fla. 1983), the Florida Supreme Court emphasized that the language in section 768.28(6) is clear and must be strictly construed "[b]ecause this subsection is part of the statutory waiver of sovereign immunity...."

Summary of this case from Hamide v. State, Dept. of Corrections

In Levine, appellant provided written notice of his claim to the school board prior to filing suit, but failed to notify the Department of Insurance within the three year limitation period, as required by section 768.28(6), Florida Statutes.

Summary of this case from Hamide v. State Dept. of Corrections

In Levine v. Dade County School Board, 442 So.2d 210 (Fla. 1983), it was contended by the claimant that, since the Department of Insurance had no financial interest in the outcome of such litigation, the failure to give it notice as required by statute was of no consequence where the offending agency was properly notified.

Summary of this case from Menendez v. N. Broward Hosp. Dist

In Levine, no notice of the claim was sent to the Department of Insurance, whereas in this case the notice of the claim was sent to the Department of Insurance within three years, but not by the plaintiff.

Summary of this case from Franklin v. Department of Health

In Levine, the supreme court held that a trial court had no alternative but to dismiss the plaintiff's complaint with prejudice for failing to comply with the notice requirement of section 768.28(6) because the time for filing such notice had expired.

Summary of this case from Hardcastle v. Mohr
Case details for

Levine v. Dade County School Bd.

Case Details

Full title:ROBERT LEVINE, PETITIONER, v. DADE COUNTY SCHOOL BOARD, RESPONDENT

Court:Supreme Court of Florida

Date published: Dec 8, 1983

Citations

442 So. 2d 210 (Fla. 1983)

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