section 768.28(6) presuit notice requirements in Florida

2009See Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1022-23 (Fla.1979); Lindberg v. Hosp.

1983On appeal the district court found merit in Levine's argument that the notice provisions should not be deemed a strict condition precedent to filing suit, but affirmed the trial court's ruling on the authority of Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979), where this Court held that the notice requirements of section 768.28(6) are conditions *212 precedent to maintaining a suit.

2010In this case, we review the decision of the Fifth District Court of Appeal in Bifulco v. Patient Business & Financial Services, Inc., 997 So.2d 1257 (Fla. 5th DCA 2009), on the ground that it expressly and directly conflicts with the decision of the First District Court of Appeal in Kelley v. Jackson County Tax Collector, 745 So.2d 1040 (Fla. 1st DCA 1999), and the decision of the Third District Court of Appeal in Osten v. City of Homestead, 757 So.2d 1243 (Fla. 3d DCA 2000). 1 The issue is whether workers’ compensation retaliation claims brought against the State under section 440.205, Florid

2007The supreme court observed that this court and the third district have resolved that issue in the affirmative, at least so far as the presuit notice requirements of section 768.28(6) are concerned, see Osten v. City of Homestead, 757 So.2d 1243 (Fla. 3d DCA 2000); Kelley v. Jackson County Tax Collector, 745 So.2d 1040 (Fla. 1st DCA 1999), but the supreme court declined to "determine the correctness of these decisions" because that question was not before the court for decision.

2024In Maggio, the issue was whether, as the defendant state agency argued, a state employee’s employment discrimination claim should be treated as a tort claim and made subject to the separate tort notice requirements of section 768.28(6). 899 So. 2d at 1076 .

2008We are guided in our decision here by Maggio v. Florida Department of Labor and Employment Security, 899 So.2d 1074 (Fla.2005), in which the supreme court held that the presuit notice requirements of section 768.28(6) have no application to a cause of action under the FCRA.

2014See Hamide v. State, Dep’t of Corr., 548 So. 2d 877, 879-80 (Fla. 1st DCA 1989).

2014See Hamide v. State, Dep’t of Carr., 548 So.2d 877, 879-80 (Fla. 1st DCA 1989).

2010Scott v. Otis Elevator Co., 524 So.2d 642 (Fla.1988) (holding that retaliatory discharge is tortious in nature).” Kelley, 745 So.2d at 1040-41 .

2000In concluding that claims for retaliatory discharge were governed by the four-year statute of limitations, the Florida Supreme Court in Scott v. Otis Elevator Co., 524 So.2d 642, 643 (Fla.1988), observed that "[r]etaliatory discharge is tortious in nature." Recently, citing to Scott , the first district squarely held that an action for retaliatory discharge under section 440.205 is clearly a tort within the meaning of section 768.28 and that pre-suit notice is therefore required.

2010In this case, we review the decision of the Fifth District Court of Appeal in Bifulco v. Patient Business & Financial Services, Inc., 997 So.2d 1257 (Fla. 5th DCA 2009), on the ground that it expressly and directly conflicts with the decision of the First District Court of Appeal in Kelley v. Jackson County Tax Collector, 745 So.2d 1040 (Fla. 1st DCA 1999), and the decision of the Third District Court of Appeal in Osten v. City of Homestead, 757 So.2d 1243 (Fla. 3d DCA 2000). 1 The issue is whether workers’ compensation retaliation claims brought against the State under section 440.205, Florid

2007The supreme court observed that this court and the third district have resolved that issue in the affirmative, at least so far as the presuit notice requirements of section 768.28(6) are concerned, see Osten v. City of Homestead, 757 So.2d 1243 (Fla. 3d DCA 2000); Kelley v. Jackson County Tax Collector, 745 So.2d 1040 (Fla. 1st DCA 1999), but the supreme court declined to "determine the correctness of these decisions" because that question was not before the court for decision.

2024Bd., 442 So. 2d 210, 212-13 (Fla. 1983) (section 768.28(6)’s notice requirements are conditions precedent to maintaining suit against school district); Turner v. Charter Schs.

1984Levine v. Dade County School Board, 442 So.2d 210 (Fla. 1983). *1102 Finally, appellant contends that summary judgment should not have been entered in favor of the driver Carollo because he cannot raise the notice requirement of Section 768.28(6) as a defense.

1989See § 768.57Í3). 1 In Meli v. Dade County School Board, 490 So.2d 120 (Fla. 3d DCA), review denied, 500 So.2d 543 (Fla.1986), our court held that the pre-suit notice requirement of section 768.28(6) could be waived by the conduct of the defendant.

1986Since the notice requirement in section 768.28(6) is neither jurisdictional nor an essential element of the cause of action, failure to give the requisite notice may be waived by the hospital authority. *871 Meli v. Dade County School Board, 490 So.2d 120 (Fla. 3d DCA 1986); City of Pembroke Pines v. Atlas, 474 So.2d 237 (Fla. 4th DCA 1985), rev. denied, 486 So.2d 595 (Fla. 1986).

2024Id. at 90-91.

2024Bd. of Hillsborough Cnty., 731 F. Supp. 2d 1309, 1321 (M.D.

2003See id.

2000See § 768.28(6)(b), Fla. Stat. (1993); Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1022 (Fla.1979); Drax Int'l, Ltd. v. Division of Admin., State of Fla. Dep't of Transp., 573 So.2d 105, 106 (Fla. 4th DCA 1991).

1999See Mancini v. Personalized Air Conditioning & Heating, Inc., 702 So.2d 1376 (Fla. 4th DCA 1997). [5] Of course, section 95.11(4)(b) also contains a seven-year statute of repose which is implicated when "it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury within the 4-year period." However, for purposes of this opinion, we will only consider the four-year repose period because no allegation of fraudulent concealment has been raised in this case. [6] Section 766.201(2) provides that "[p]resuit investigation shall be mandatory a

1998Williams v. Henderson, 687 So.2d 838, 839 (Fla. 2d DCA 1996).

1989Accord McSwain v. Dussia, 499 So.2d 868, 870 (Fla. 1st DCA 1986), review denied, 511 So.2d 298 (Fla.1987).