Campagnulo v. WilliamsCampagnulo v. Williams
- Reporters:
- ,
- Before:
- Polen, Dell, Walden
In November 1986 appellant commenced an action in circuit court against appellee for dental malpractice. Appellant alleged that the malpractice occurred in December 1984. Appellee moved to dismiss the complaint in January 1987 on the grounds that the notice requirement of
In April 1989, prior to trial, appellee moved for summary judgment on the ground that appellant failed to comply with the pre-filing notice requirements established by
After oral argument, this court ordered the parties to brief two additional issues concerning the constitutionality of
In Lindberg v. Hospital Corp. of America, 545 So.2d 1384 (Fla. 4th DCA 1989), this court upheld the constitutionality of
We further concluded that the statute did not violate the “access to the courts” provision of
In this appeal, Campagnulo argues that
If a statute governs a substantive right or sets the bounds of a substantive right, then the statute is within the power of the legislature and therefore constitutional. VanBibber v. Hartford Accident and Indemnity Insurance Co., 439 So.2d 880 (Fla. 1983). In VanBibber, the supreme court determined that
We also conclude that the appellant‘s vested rights are not affected by the pre-suit requirements of the statute and therefore not subject to retroactive impairment. See, e.g., In Re Will of Martell, 457 So.2d 1064 (Fla. 2d DCA 1984) (right must be more than a mere expectancy for it to be vested and not subject to retroactive impairment). The notice requirement did not
In MacRae v. Cessna Aircraft Co., 457 So.2d 1093 (Fla. 1st DCA 1984), review denied, 467 So.2d 1000 (Fla. 1985), the district court addressed the constitutionality of a statute of limitations which retroactively shortened the time allowed by statute within which to file suit. The court upheld the constitutionality of the statute because there was reasonable and ample time within which the plaintiff could bring suit.
We find MacRae dispositive since appellant had over fourteen months from the effective date of the statute within which to comply with
Appellant‘s second point on appeal has merit. In his supplemental brief, Campagnulo contends that this court‘s decision in Lindberg mandates that the trial court must allow him to amend his complaint to allege compliance even though there was no compliance at the time the lawsuit was filed.
Appellee responds citing Public Health Trust of Dade Co. v. Knuck, 495 So.2d 834 (Fla. 3d DCA 1986), and Lynn v. Miller, 498 So.2d 1011 (Fla. 2d DCA 1986), for the proposition that abatement is not permissible after the statute of limitations has run. Appellee cites Lindberg for the same support.
On one hand, appellant reads the Lindberg decision too broadly. On the other hand, a close reading of Knuck indicates that it stands for the proposition that abatement is not permissible when notice could not be filed within the limitations period. In the instant case, notice could have been filed within the limitations period but for the fact that the motion to dismiss was not heard until after the period of limitations had run.
Recently, the Third District agreed with this court‘s Lindberg decision in Angrand v. Fox, D.O., 552 So.2d 1113 n. 7 (Fla. 3d DCA 1989). Angrand involved a case where plaintiff filed his suit prematurely prior to the running of the ninety day notice period. The court stated:
It should be noted that the recent, and we think correctly decided cases, hold that a malpractice complaint brought within the statute of limitations is maintainable upon proper amendment even when no notice has been given prior to its commencement and should be abated pending notice and procedures provided by section 768.57(3)(a). (Citations omitted.)
It is clear that if the trial court abated the action and allowed appellant to allege compliance, then the statute of limitations would have been tolled for ninety days in order to encourage the resolution of the claim. Moreover, if the parties extended the ninety day period, as provided by the statute, they could have extended the statute of limitations by 180 days. Rhodes v. S.W. Florida Regional Medical Center, 554 So.2d 1188 (Fla. 2d DCA 1989); Nash v. Humana Sun Bay Hospital, Inc., 526 So.2d 1036 (Fla. 2d DCA 1988), review denied, 531 So.2d 1354 (Fla. 1988). Therefore, on remand the trial court should allow appellant to amend his complaint in order to allege compliance with
Finally, we reject appellant‘s argument that
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
DELL and WALDEN, JJ., concur.