John INGERSOLL, et ux., Petitioners,
v.
Warren HOFFMAN, D.D.S., Respondent.
Supreme Court of Florida.
Kenneth P. Liroff, Fort Lauderdale, Brian Hersh, Miami, and Larry Klein of Klein & Walsh, P.A., West Palm Beach, for petitioners.
G. Bart Billbrough and Geoffrey B. Marks of Walton, Lantaff, Schroeder & Carson, Miami, for respondent.
GRIMES, Justice.
We review Ingersoll v. Hoffman,
DOES THE FAILURE TO COMPLY WITH THE PRELITIGATION NOTICE REQUIREMENTS OF SECTION 768.57 DEPRIVE THE TRIAL COURT OF SUBJECT MATTER JURISDICTION OF A DENTAL MALPRACTICE ACTION, OR MAY THE LACK OF SUCH NOTICE BE EXCUSED BY A SHOWING OF ESTOPPEL OR WAIVER?
Id. at 325 n. 1. We have jurisdiction under article V, section 3(b)(4) of the Florida Constitution.
The Ingersolls filed a dental malpractice suit against Howard Hoffman, D.D.S. The following day, they amended the complaint to join as a defendant Howard's brother, Warren Hoffman, D.D.S., and ultimately dismissed Howard Hoffman from the suit. On the day of the trial, Warren Hoffman filed a motion to dismiss, alleging that he had not been served with a notice of intent *224 to initiate litigation for medical malpractice as required by section 768.57, Florida Statutes (1987). At the hearing, it was developed that the only notice of intent had been sent to Howard Hoffman. Warren Hoffman testified that he worked as an associate of his brother at a dental corporation known as Hoffman Dental Studio. The Ingersolls argued that under the circumstances adequate notice had been given to Warren Hoffman. The Ingersolls' attorney pointed out that prior to filing the complaint he had received correspondence from an insurance claims representative on behalf of "Hoffman Dental Studio/Warren Hoffman," acknowledging that a claim had been made and requesting discovery information under section 768.57. The day after suit was filed, the claims representative advised him that Warren Hoffman, rather than Howard Hoffman, was the treating dentist.
The trial court dismissed the suit for failure to provide the notice of intent required by section 768.57. Relying on its previous decisions that the notice requirement of section 768.57 is jurisdictional, the district court of appeal affirmed. The court also noted that no certificate of good faith had ever been supplied with respect to Warren Hoffman as required by section 768.495(1), Florida Statutes (1987).
The certified question was partially answered by this Court's recent decision in Hospital Corp. of America v. Lindberg,
There remains the question of whether there was an estoppel or waiver in this case. The presuit notice and screening requirements of section 768.57 represent more than mere technicalities. The legislature has established a comprehensive procedure designed to facilitate the amicable resolution of medical malpractice claims. To suggest that the requirements of the statute may be easily circumvented would be to thwart the legislative will.
While it is clear that Warren Hoffman and his insurance carrier were aware that the Ingersolls were making a claim against him, mere knowledge of a potential claim cannot constitute a waiver or estoppel. We do not have to decide whether the exchange of correspondence between the claims representative and the Ingersolls' attorney could suffice for this purpose, because we conclude that Warren Hoffman waived the Ingersolls' failure to comply with section 768.57 by failing to timely raise the issue in his pleadings.
The amended complaint contained a specific allegation that the Ingersolls had complied with all conditions precedent to the filing of the suit. It is clear that compliance with the requirements of section 768.57 was a condition precedent. See Commercial Carrier Corp. v. Indian River County,
(c) Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.
A general denial is not one "made specifically and with particularity."
In Hodusa Corp. v. Abray Construction Co.,
Abray's omission, however, does not mandate dismissal of its lawsuit or reversal of the judgment in its favor. Although the furnishing of the affidavit is a condition precedent to bringing an action to foreclose a mechanic's lien, failure to do so does not create a jurisdictional defect. Holding Electric, Inc. v. Roberts,530 So.2d 301 (Fla. 1988). Thus, Hodusa was required under rule 1.120, Florida Rules of Civil Procedure, to plead nonperformance of the condition precedent "specifically and with particularity." See Davie Westview Developers, Inc. v. BobLin, Inc.,533 So.2d 879 (Fla. 4th DCA 1988). Hodusa's second affirmative defense, captioned "Breach of Contract," asserting that Abray had not fulfilled conditions of the contract in which the contractor's affidavit is merely mentioned does not satisfy the standard prescribed in rule 1.120. Thus, Hodusa has waived this argument.
Id. at 1101. The Fourth District Court of Appeal reached a similar conclusion in Davie Westview Developers, Inc. v. Bob-Lin, Inc.,
Federal Rule of Civil Procedure 9(c) is the same as Florida Rule of Civil Procedure 1.120(c). In Jackson v. Seaboard Coast Line Railroad Co.,
If ... the defendant does not deny the satisfaction of the preconditions specifically and with particularity, then the plaintiff's allegations are assumed admitted, and the defendant cannot later assert that a condition precedent has not been met.
Id. at 1010.
We do not suggest that under appropriate circumstances a defendant could not amend the answer so as to specifically deny the performance of a condition precedent. The test as to whether an amendment to a pleading should be allowed is whether the amendment will prejudice the other side. Horacio O. Ferrea N. Am. Div., Inc. v. Moroso Performance Prods., Inc.,
We quash the decision below and remand for further proceedings.
It is so ordered.
SHAW, C.J., and OVERTON, McDONALD, BARKETT, KOGAN and HARDING, JJ., concur.