Cabral v. City of Miami Beach
76 So. 3d 324
Fla. Dist. Ct. App.2011Background
- Ms. Cabral was involved in a November 2, 2004 car accident with a City of Miami Beach employee.
- Pre-suit notices were sent by Ms. Cabral’s counsel on November 8, 2004 and December 21, 2004, within the 3-year window.
- The City acknowledged receipt of the 2004 notices in a March 1, 2005, letter.
- A later notice was sent November 2, 2007, by Federal Express, allegedly within the pre-suit window, but the complaint attached the 2007 notice without referencing prior notices.
- Ms. Cabral filed suit on October 31, 2008, alleging negligence and satisfying pre-suit notice requirements.
- The City moved to dismiss under section 768.28(6)(a) arguing the 2007 notice was outside 3 years; the trial court dismissed with prejudice, not considering earlier timely notices.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was notice under 768.28(6)(a) properly pled? | Cabral adequately pled that timely notices were given. | City contends notices were not timely under the three-year limit. | Yes; notice pled adequately and burden shifts to City to prove lack of timely notices. |
| Did the trial court err by ignoring prior timely notices when dismissing on timeliness grounds? | Two earlier timely notices within 3 years exist and were acknowledged by the City. | Only the 2007 notice matters if timely; priority of notices is unclear. | Yes; reversed and remanded to reinstate the complaint. |
Key Cases Cited
- Glace v. Lower Fla. Keys Hosp. Dist., 481 So.2d 509 (Fla. 3d DCA 1985) (pleading performance of conditions precedent may be alleged generally; burden shifts to defendant)
- Kash N'Karry Wholesale Supermarkets, Inc. v. Garcia, 221 So.2d 786 (Fla. 2d DCA 1969) (excusable neglect can be basis to consider late-filed motions under proper procedure)
- Knowles v. JP Morgan Chase Bank, N.A., 994 So.2d 1218 (Fla. 2d DCA 2008) (excusable neglect considerations when reopening matters)
- Anderson v. Emro Mktg. Co., 550 So.2d 531 (Fla. 1st DCA 1989) (statute of limitations defenses should be pleaded or raised on appropriate postured motion)