Opinion
No. 95-3056.
February 7, 1996.
An appeal from the Circuit Court for Alachua County; James L. Tomlinson, Judge.
Robert J. Denson, Gainesville, and Richard B. Davis, Jr., Gainesville, for appellant.
Robert A. Butterworth, Attorney General, and Laura Rush, Assistant Attorney General, Tallahassee, for appellee.
Bound by our decision in Austin v. Gaylord, 603 So.2d 66 (Fla. 1st DCA 1992), the trial court dismissed appellant's complaint against the Department of Health and Rehabilitative Services for failure to serve the Department of Insurance, as required by section 768.28(7), Florida Statutes (1993), within the 120 days allotted by Florida Rule of Civil Procedure 1.070(i). Shortly after rendition of the trial court's order, this court receded from Austin in Platt v. Florida Department of Health Rehabilitative Services, 659 So.2d 1251 (Fla. 1st DCA 1995), and held that Rule 1.070(i) is not implicated in actions against a state agency pursuant to section 768.28, Florida Statutes, by failure to serve the Department of Insurance within the time prescribed by that rule. Platt controls disposition of this appeal, and in accordance therewith, we reverse the order of dismissal and remand this cause to the trial court for further proceedings.
REVERSED and REMANDED for further proceedings.
BOOTH, JOANOS and VAN NORTWICK, JJ., concur.