Bill Text: FL S0594 | 2011 | Regular Session | Comm Sub

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Sovereign Immunity

Spectrum: Slight Partisan Bill (? 2-1)

Status: (Introduced - Dead) 2011-04-29 - Read 2nd time -SJ 593 [S0594 Detail]

Download: Florida-2011-S0594-Comm_Sub.html

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       Florida Senate - 2011                              CS for SB 594
       
       
       
       By the Committee on Judiciary; and Senator Hays
       
       
       
       
       590-02272-11                                           2011594c1
    1                        A bill to be entitled                      
    2         An act relating to sovereign immunity; amending s.
    3         768.28, F.S.; requiring that a claim in a wrongful
    4         death case be presented to the Department of Financial
    5         Services within 2 years after the claim accrues;
    6         providing that failure of the Department of Financial
    7         Services or the appropriate agency to make final
    8         disposition of a claim for wrongful death within 90
    9         days after it is filed is deemed to be a final denial
   10         of the claim; tolling the statute of limitations for
   11         the period of time taken by the Department of
   12         Financial Services or other agency to deny a medical
   13         malpractice or wrongful death claim; providing that
   14         actions for wrongful death against the state or one of
   15         its agencies or subdivisions must be brought within
   16         the period applicable to actions brought against other
   17         defendants; providing for the application of the act
   18         to causes of action accruing on or after the effective
   19         date; providing an effective date.
   20  
   21  Be It Enacted by the Legislature of the State of Florida:
   22  
   23         Section 1. Paragraphs (a) and (d) of subsection (6) and
   24  subsection (14) of section 768.28, Florida Statutes, are amended
   25  to read:
   26         768.28 Waiver of sovereign immunity in tort actions;
   27  recovery limits; limitation on attorney fees; statute of
   28  limitations; exclusions; indemnification; risk management
   29  programs.—
   30         (6)(a) An action may not be instituted on a claim against
   31  the state or one of its agencies or subdivisions unless the
   32  claimant presents the claim in writing to the appropriate
   33  agency, and also, except as to any claim against a municipality
   34  or the Florida Space Authority, presents such claim in writing
   35  to the Department of Financial Services, within 3 years after
   36  such claim accrues and the Department of Financial Services or
   37  the appropriate agency denies the claim in writing; except that,
   38  if:
   39         1. Such claim is for contribution pursuant to s. 768.31, it
   40  must be so presented within 6 months after the judgment against
   41  the tortfeasor seeking contribution has become final by lapse of
   42  time for appeal or after appellate review or, if there is no
   43  such judgment, within 6 months after the tortfeasor seeking
   44  contribution has either discharged the common liability by
   45  payment or agreed, while the action is pending against her or
   46  him, to discharge the common liability; or
   47         2. Such action is for wrongful death, the claimant must
   48  present the claim in writing to the Department of Financial
   49  Services within 2 years after the claim accrues.
   50         (d) For purposes of this section, complete, accurate, and
   51  timely compliance with the requirements of paragraph (c) shall
   52  occur prior to settlement payment, close of discovery or
   53  commencement of trial, whichever is sooner; provided the ability
   54  to plead setoff is not precluded by the delay. This setoff shall
   55  apply only against that part of the settlement or judgment
   56  payable to the claimant, minus claimant’s reasonable attorney’s
   57  fees and costs. Incomplete or inaccurate disclosure of unpaid
   58  adjudicated claims due the state, its agency, officer, or
   59  subdivision, may be excused by the court upon a showing by the
   60  preponderance of the evidence of the claimant’s lack of
   61  knowledge of an adjudicated claim and reasonable inquiry by, or
   62  on behalf of, the claimant to obtain the information from public
   63  records. Unless the appropriate agency had actual notice of the
   64  information required to be disclosed by paragraph (c) in time to
   65  assert a setoff, an unexcused failure to disclose shall, upon
   66  hearing and order of court, cause the claimant to be liable for
   67  double the original undisclosed judgment and, upon further
   68  motion, the court shall enter judgment for the agency in that
   69  amount. Except as provided otherwise in this subsection, the
   70  failure of the Department of Financial Services or the
   71  appropriate agency to make final disposition of a claim within 6
   72  months after it is filed shall be deemed a final denial of the
   73  claim for purposes of this section. For purposes of this
   74  subsection, in medical malpractice actions and in wrongful death
   75  actions, the failure of the Department of Financial Services or
   76  the appropriate agency to make final disposition of a claim
   77  within 90 days after it is filed shall be deemed a final denial
   78  of the claim. The statute of limitations for medical malpractice
   79  actions and wrongful death actions is tolled for the period of
   80  time taken by the Department of Financial Services or the
   81  appropriate agency to deny the claim. The provisions of this
   82  subsection do not apply to such claims as may be asserted by
   83  counterclaim pursuant to s. 768.14.
   84         (14) Every claim against the state or one of its agencies
   85  or subdivisions for damages for a negligent or wrongful act or
   86  omission pursuant to this section shall be forever barred unless
   87  the civil action is commenced by filing a complaint in the court
   88  of appropriate jurisdiction within 4 years after such claim
   89  accrues; except that an action for contribution must be
   90  commenced within the limitations provided in s. 768.31(4), and
   91  an action for damages arising from medical malpractice or
   92  wrongful death must be commenced within the limitations for such
   93  actions an action in s. 95.11(4).
   94         Section 2. This act shall take effect July 1, 2011, and
   95  applies to causes of action accruing on or after that date.