Opinion
No. 90-2278.
December 3, 1991. Rehearing Denied January 3, 1992.
Appeal from the Circuit Court, Dade County, Henry G. Ferro, J.
Spence Payne Masington Needle Eversole, and Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin Perwin, and Joel S. Perwin, for appellant.
Lee, Schulte, Murphy Eaton, and Thomas J. Schulte, and Rebecca Greer Tanner, for appellees.
Before HUBBART, BASKIN and GERSTEN, JJ.
Appellant, Christine Vellanti (Vellanti), appeals a final summary judgment in favor of appellees, Ralph Maercks and Ralph Maercks, M.D., P.A. (Dr. Maercks). We reverse and remand.
Vellanti sued her psychiatrist, Dr. Maercks, on December 11, 1987, alleging medical malpractice. The trial court found that the two year statute of limitations began to run as of April 5, 1985, because on that date Vellanti signed a writing purporting to release Dr. Maercks from all liability arising out of the treatment. The trial court reasoned that Vellanti must have had actual knowledge of her cause of action when she signed the release and entered summary judgment for Dr. Maercks.
Summary judgment is improper where the pleadings and record reflect conflicting issues of material fact. Holl v. Talcott, 191 So.2d 40 (Fla. 1966); Levey v. Getelman, 408 So.2d 663 (Fla. 3d DCA 1981).
Vellanti's signing of the purported release may prove that she had actual knowledge of her cause of action. However, Vellanti also presented evidence possibly indicating that she did not know of her cause of action against her psychiatrist until later.
Therefore, there is a genuine issue of material fact regarding whether the action was brought within the two year statute of limitations. See § 95.11(4)(b), Fla. Stat. (1985). Accordingly, we reverse and remand.