782 So. 2d 913
Fla. Dist. Ct. App.
2001

Lead Opinion

BROWNING, J.

Appellant appeals the circuit court’s dismissal of his wrongful death survivor’s claim, with prejudice. The claim was dismissed on grounds that it was time-barred because Appellant failed to give the State proper notice of his claim. Appellant argues that, pursuant to the wrongful death statute, only the personal representative of an estate may bring suit and give notice of claims, and that the original personal representative, and Appellant’s predecessor in interest, timely filed the initial complaint and gave the State timely notice of the survivor’s claims. Accordingly, Appellant argues, the notice given by the original personal representative should be imputed to Appellant under the doctrines of relation back and substitution of parties, and Appellant’s claim should be considered timely. We agree and reverse.

The deceased, Calesha Cunningham (Ca-lesha) was born on October 2, 1990, during the marriage of Appellant and Gwendolyn Cunningham (Calesha’s mother). On December 9, 1992, Calesha was killed by one of her mother’s boyfriends. After Cale-sha’s death, Ricky Love (Love), a boyfriend of Calesha’s mother, was thought to be Calesha’s natural father. Consequently, Nakia Williams (Williams), Love’s sister, was appointed personal representative of Calesha’s estate.

On October 11, 1995, as personal representative of Calesha’s estate and pursuant to Chapter 768, Florida Statutes (1991), Williams gave timely notice to Appellee of the wrongful death claim against it by Love, as father and next friend of Calesha. On November 24, 1996, Williams filed the complaint. Appellee moved to dismiss the complaint and, in its answer brief, admitted it moved to dismiss on the ground that Calesha was born during her mother’s marriage to Appellant, thus creating the assumption that Appellant was Calesha’s father. On March 18,1998, Appellant filed a motion to be substituted as plaintiff on the ground that he was Calesha’s lawful father because he was married to Cale-sha’s mother at the time of Calesha’s birth, and his name appears on Calesha’s birth certificate. On December 18, 1998, Appellant’s motion for substitution in the wrongful death action was granted, and upon Appellant’s petition to the probate court, Williams was removed as personal representative, and Appellant was substituted.

On January 16, 1999, Appellant filed his first amended complaint, realleging the wrongful death action which had been timely filed by Williams, and substituting himself as the natural father and sole survivor claimant. Appellee moved to dismiss asserting Appellant’s survivor claim was barred by sovereign immunity, and time-barred pursuant to section 768.28(6), Florida Statutes (1991), because Appellant failed to give notice of the claim within three years after its accrual. The trial court dismissed Appellant’s survivor claim with prejudice, and in so doing, erred.

The legislative intent of the Wrongful Death Act (the Act) is to “shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer.” See § 768.17, Fla. Stat. (1991). The Act is “remedial and shall be liberally construed.” See id. The statutory mechanism for bringing a wrongful death action requires a single cause of action be brought by the personal representative, claiming each survivor’s damages as well as the expenses incurred by the estate. See § 768.20, Fla. Stat. (1991); see also Talan v. Murphy, 443 So.2d 207 (Fla. 3d DCA 1983). To waive sovereign immunity, the State must receive notice of each claim against it. See § 768.28(6), Fla. Stat. (1991); see also Metropolitan Dade County v. Reyes, 688 So.2d 311, 313 (Fla.1996). The purpose of the notice requirement is to provide the State and its agencies sufficient notice of claims filed against them and time to investigate and respond to those claims. See Reyes, 688 So.2d at 313; see also Kuper v. Perry, 718 So.2d 859, 860 (Fla. 5th DCA 1998). An action may not .be instituted on a claim against the State or one of its agencies unless the claimant presents the claim in writing to the appropriate agency. See § 768.28(6)(a), Fla. Stat. (1991). However, where notice effectively describes the occurrence giving rise to the distinct cause of action, plaintiffs not specifically named in the written notice are not precluded from maintaining an action. See L.S.T. Inc. v. Crow, 884 F.Supp. 1355, 1359 (M.D.Fla.1993), citing Metropolitan Dade County v. Coats, 559 So.2d 71, 72-73 (Fla. 3d DCA 1990). Such notice is sufficient for maintaining an additional claim brought by subsequent amendment after the statute of limitations has run, and such amendment relates back to the filing of the original complaint. See City of Miami v. Cisneros, 662 So.2d 1272, 1274 (Fla. 3d DCA 1995) (under relation back approach, trial court properly permitted amendment of complaint to add parents as plaintiffs on morning of trial, though statute of limitations otherwise barred the claim; sole purpose of the amendment was to claim medical expenses incurred as a result of minor son’s injuries, and city had been aware of such medical expenses for a significant period of time)..

Similarly, when letters of administration are granted, they relate back to the intestate’s or testator’s death. See Griffin v. Workman, 73 So.2d 844, 846 (Fla.1954). If a personal representative was improperly appointed, the subsequent appointment of a substituted personal representative relates back to the filing of the original wrongful death complaint, and the substituted personal representative is entitled to go forward with the action. See Estate of Retzel v. CSX Transportation, Inc., 586 So.2d 1247, 1252 (Fla. 1st DCA 1991). “It follows, from the fact that the plaintiff can amend to reflect his capacity as personal representative, that claims for damages which are properly recoverable by the personal representative under section 768.21(6), Florida Statutes (1981) will also relate back.” Talan, 443 So.2d at 209 (claim was not time-barred where father brought wrongful death action without being appointed personal representative and, after statute of limitations ran, was appointed executor and amended the complaint also to assert claims for damages sustained by mother and estate damages not raised in the initial complaint); see also Handley v. Anclote Manor Foundation, 253 So.2d 501 (Fla. 2nd DCA 1971);1 see also Fla.R.Civ.P. 1.190(c).

The Florida Supreme Court, in Griffin, supra, noted that “[wjhether the substitution of a party plaintiff, having capacity to bring the suit, in the stead of the original plaintiff who filed the action without capacity to bring the suit, is a change in the original cause of action depends entirely upon the allegations in the amended complaint.” Griffin, 73 So.2d at 847. “The mere substitution of parties plaintiff, without substantial or material changes from claims of the original petition, does not of itself constitute setting forth a new cause of action in the amended petition.” Id. The Griffin court noted that an amendment that corrects the allegations in a complaint with respect to a plaintiffs capacity to sue relates to the “right of action,” as distinguished from the “cause of action.” See id. The Griffin court went on to explain that “[a] ‘right of action’ is remedial, while a ‘cause of action’ is substantive, and an amendment of the former does not affect the substance of the latter,” and does not prevent an amended complaint from relating back to the date of the filing of the original complaint for purposes of the statute of limitations. See id.

Here, the notice given by Williams described the occurrence giving rise to the wrongful death action, and Williams’ notice to Appellee included the father’s survivor’s claim. Appellee was on notice that Appellant could bring a survivor’s claim, because it initially defended against the earlier survivor’s claim by arguing Appellant was Calesha’s presumptive father. Thus, Appellee received sufficient notice to maintain Appellant’s amended survivor’s claim substituting himself as father. See Cisneros, 662 So.2d at 1274. When Appellant was subsequently substituted as personal representative, his appointment related back to the original wrongful death complaint timely filed by Williams. See Griffin, supra; see also Retzel, supra. Because Appellant’s amendment seeking survivor’s benefits was recoverable only by the personal representative, that claim also related back. See Talan, supra. That Appellant substituted himself as the plaintiff and father having the capacity to sue, in the stead of Love, who lacked capacity to sue, did not constitute a change in the original cause of action. The amendment corrected only the allegations in the complaint with respect to Appellant’s capacity to sue, and thus corrected only the “right of action.” See Griffin, 73 So.2d at 847. Accordingly, the amendment related back to the filing of the original complaint for purposes of the statute of limitations. See id.

The trial court’s dismissal of Appellant’s survivor’s claim is REVERSED, AND the cause REMANDED for further proceedings consistent with this opinion.

LEWIS, J., concurs and PADOVANO, J., concurs with opinion.

Notes

. In Handley, supra, the Administrator brought a wrongful death action on behalf of the estate, and later attempted to add the guardian of the decedent’s son as a survivor. The court held the amendment related back, noting that Fla. R. Civ. P. 1.190(c) requires a liberal interpretation of the relation back rule. The court held the defendants were not prejudiced because they knew upon the filing of the original wrongful death claim that the decedent had a surviving child who might claim under the wrongful death statute.



Concurrence Opinion

PADOVANO, J.,

concurring.

Although I agree that the complaint was timely, I believe that it is barred, in any event, by judicial immunity. I join in the decision to reverse only because the appellant has not yet been afforded an opportunity to avoid the judicial immunity issue by amending the complaint.

The essence of the appellant’s claim is that the Department of Children and Family Services was negligent in allowing the court to transfer custody of the child to her natural mother. This claim is stated in paragraph 15 of the first amended complaint in the following language:

15. The Defendant formerly HRS, permitted: without objection, the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, to enter an Order Changing Temporary legal Custody, which Order granted to the natural mother, GWENDOLYN CUNNINGHAM, the care custody and control of the decedent, CALESHA D. CUNNINGHAM, even though TONEY DAVIS was known to still reside with the natural mother.

The appellant explained in paragraph 17 that the Department was negligent in allowing the change of custody because it knew or should have known that Toney Davis had violent propensities.

These allegations led us to question whether the Department or any of its case workers could ever be liable for the consequences of a custody order entered by a judge. We asked the parties to file supplemental briefs on the applicability of judicial immunity, and they have now fully addressed the issue. When we requested supplemental briefing, we considered the possibility that the order dismissing the complaint might be affirmed for a reason other than that given by the trial judge.

Judges have absolute immunity from suits for damages for actions performed in their official capacities unless they have acted in the clear absence of all jurisdiction. See Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Johnson v. Harris, 645 So.2d 96 (Fla. 5th DCA 1994); Salfi v. Ising, 464 So.2d 687 (Fla. 5th DCA 1985). A judge cannot be sued for making a decision on the ground that the decision was unwise or even on the ground that it was made recklessly or maliciously. See Sparkman. The purpose of affording judges immunity for acts performed in their official capacities is to protect the independence of the judiciary in the decision making process. See Limehouse v. Whittemore, 773 So.2d 86 (Fla. 2d DCA 2000).

The policies that justify a grant of absolute immunity for judges apply as well to non-judicial officers who perform judicial functions. See Office of the State Attorney, Fourth Judicial Circuit v. Parrotino, 628 So.2d 1097 (Fla.1993). Hence, the immunity that is afforded to a judge extends to a person who acts as an arm of the court by performing a task that is essential to the judicial process. See Andrews v. Florida Parole Comm’n, 768 So.2d 1257 (Fla. 1st DCA 2000) (holding that the parole commission acted within the scope of its quasi-judicial duties and therefore had judicial immunity when it placed an inmate on conditional release); Boczar v. Glendening, 555 So.2d 1286 (Fla. 2d DCA 1990) (noting that a physician enjoyed judicial immunity from a claim of medical negligence in examining a child victim because the examination was made in the course of a judicial proceeding); Zock v. Miller, 505 So.2d 18 (Fla. 3d DCA 1987) (holding that a court-appointed psychiatrist enjoys quasi-judicial immunity).

Social workers perform some duties that are essential to the judicial function and are therefore protected by judicial immunity. For example, a parent cannot maintain a suit against a social worker for initiating a child dependency petition, even if the petition proves to be unfounded. In this context, the filing of a dependency petition is like the filing of a criminal charge. A social worker who acts on behalf of the state is in the same position as a prosecutor, and is entitled to the same kind of immunity for performing a quasi-judicial function. See Coverdell v. Department of Soc. and Health Servs., State of Washington, 834 F.2d 758 (9th Cir.1987) (holding that social workers are entitled to absolute immunity in performing quasi-prosecutorial functions in the filing and pursuit of child dependency petitions); Mazor v. Shelton, 637 F.Supp. 330 (N.D.Cal.1986) (noting that the role of a social worker is sufficiently analogous to the role of a prosecutor to warrant absolute immunity). These decisions make it clear that the Department cannot be liable to the appellant merely because it “permitted” the court to enter the custody order that led to the child’s death.

Nor can the Department be liable to the appellant on the ground that its case workers sought to enforce the custody order. As the court explained in Coverdell, judicial immunity extends to a social services worker who executes an order to transfer custody. This view has been accepted by other courts addressing the issue. See H.B. v. State of Indiana-Elkhart Div. of Family & Children, 713 N.E.2d 300 (Ind.Ct.App.1999) (holding that social workers were immune from suit because they acted pursuant to a custody order); Adams v. Arizona, 185 Ariz. 440, 916 P.2d 1156 (Ct.App.1995) (acknowledging that adoption case workers would have been entitled to judicial immunity had they acted pursuant to a court order in transferring custody).

In the suit filed here, the appellant seeks to hold the Department responsible for a decision made by the court. Stripped of its conclusory language, the amended complaint merely alleges that the Department agreed to a transfer of custody and then sought to enforce the custody order once it had been entered. In these actions, the Department and its case workers are protected by absolute judicial immunity. It would make little sense to hold that social workers can be responsible for the consequences of a custody order they are bound to enforce when the judge who entered the order is absolutely immune from liability. If a judge cannot be held liable for injury caused by an order transferring custody, then surely a social worker cannot be liable for requesting the order or carrying it out. In fact, a good argument could be made that the Department and its case workers might be liable for failing to carry out the order.

The amended complaint does allege in paragraph 19 that the Department negligently supervised the new custody arrangement, but this statement is merely a conclusion unsupported by any allegation of fact. Rule 1.110(b)(2) of the Florida Rules of Civil Procedure provides that a complaint must include “a short and plain statement of the ultimate facts showing that the pleader is entitled to relief It is not enough merely to advise the defendant of the theory of the action. Here, the amended complaint does no more than to repeat the phrase “negligent supervision.”

In summary, I believe that the appellant’s claim as presently alleged is barred by judicial immunity. I join in the reversal of the order only because the dismissal was with prejudice and the appellant has not yet been afforded an opportunity to address the judicial immunity issue at the trial level.