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Florida Third DCA holds that “mailbox rule” does not apply to statutory pre-suit notice to governmental entity under Fla. Stat. § 768.28(6); notice must be received “in hand” within three-year period

On May 4, 2022, in Simmons v. Public Health Trust of Miami-Dade County, et al. No. 3D21-1388, the Florida Third DCA affirmed a summary judgment for the defendant, finding that the plaintiff failed to comply with the mandatory pre-suit notice requirements of Fla. Stat.§ 768.28(6) applicable to claims against governmental entities and that the three-year deadline for such a filing had already expired. The plaintiff alleged in his complaint that while he was a resident of Jackson Memorial Hospital’s psychiatric facility, he was beaten by another resident who was supposed to be under the control and supervision of Jackson’s staff. He mailed his statutory notice to the facility exactly three years after the incident, but it was not received by Jackson until six days later. Strictly construing the three-year deadline imposed by § 768.28(6), which requires that a claimant must “present” a claim to the agency being sued within the statutory period, the Third DCA held that the mailbox rule does not apply in the context of sovereign immunity cases and the notice must have been received “in hand” by the agency within the prescribed period. The Third DCA further stated that the notice requirement cannot be waived by the conduct of the defending agency, citing Menendez v. North Broward Hosp. Dist., 537 So. 2d 89, 90 (Fla. 1988). As an alternative ground for affirmance, the Third DCA noted that the plaintiff had presented the notice to Jackson after he filed his complaint, contrary to the requirements of § 768.28(6).