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Florida First DCA rules that date of mailing of statutory notice of intent to initiate medical negligence litigation determines timeliness of notice under statute of limitations analysis

On April 24, 2017, in Bay County Board of County Commissioners v. Seeley, No. 1D16-2829, the Florida First DCA ruled that the date of mailing of a statutory notice of intent to initiate litigation (NIIL) of a medical negligence claim determined the timeliness of the NIIL for statute of limitations purposes. The defendant had argued that the claim was time barred because the NIIL was received by the defendant after the expiration of the statute of limitations period. The First DCA noted a potential conflict between the Fifth DCA’s decision in Baxter v. Northrup, 128 So. 3d 908, 912 (Fla. 5th DCA 2013), which found that the date of mailing rather than the date of receipt determined the timeliness of the NIIL for statute of limitations purposes, and the Second DCA’s decision in Bove v. Naples HMA, LLC, 196 So. 3d 411, 415 (Fla. 2d DCA 2016), reh’g denied (July 29, 2016), which found that for purposes of computing the subsequent 90 day presuit tolling period, the date of the defendant’s receipt of the NIIL applied. The First DCA concluded that the decisions were not in fact inconsistent and could be harmonized by the application of both rules.

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