"Florida Petition Extend Statute - PDF"
SUMMARY OF ARGUMENT s Respondent’ arguments that §766.106(4) refers to “the time limit set forth in s. 95.11”, and not “the statute of limitations” along with its argument that if this statute did not extend the statute of repose, then the pre-suit notice requirements of Florida Statutes would inadvertently shorten the statute of repose will not save respondent. Even if these arguments are correct, they do not apply to §766.104(2). Only the §766.104(2) petition was filed in time to extend the statute of repose. If it does not have that effect, then the effect of §766.106(4) is irrelevant. Respondent still loses. 1 ARGUMENT THE EXTENSIONS OF THE STATUTE OF LIMITATIONS ALLOWED BY SECTIONS 766.104(2) and 766.106(4), FLORIDA STATUTES (1989) DO NOT ALSO EXTEND THE STATUTE OF REPOSE CONTAINED IN SECTION 95.11(4)(b), FLORIDA STATUTES (1989). In his answer brief, respondent Parham argues that §766.106(4), Fla. Stat. (1989) uses the terminology “within the time limit set forth in s. 95.11”, not the terminology “the statute of limitations”. (Brief of Respondent, p. 15) He suggests that this leaves that statute open to the interpretation that it extends both the statute of limitations and the statute of repose. Petitioner also argues that if this statute does not extend the statute of repose, then the pre-suit notice of intent provisions have the unintended effect of shortening the statute of repose. That is, if notice of intent is given 2 within 90 days of the end of the statute of repose, then the plaintiff cannot sue before the statute expires and the notice of intent, having not extended the statue of repose, has thus shortened the period during which plaintiff can sue. The former may be true and the latter is certainly true. That is, it can be argued that the terminology of §766.106(4) could be interpreted to include the statute of repose. If it is not interpreted to include the statute of repose, then a shortening of the statute of repose can occur as postulated by respondent. Unfortunately for respondent, even if he is right his arguments will not save him. By contrast to §766.106(4), §766.104(2) specifically uses the terminology “statute of limitations” when it speaks of the automatic 90 day extension. By logical extension from s respondent’ own argument, the difference between these two 3 statutes can only be interpreted to mean that §766.104(2) specifically did not intend the inclusion of the statute of repose. Furthermore, §766.104(2) cannot affect or shorten the statute of repose. It is simply a privilege granted to the plaintiff to get an additional 90 days on the statute of limitations within which to do a good faith investigation. There is nothing about §766.104(2) that in any way shortens or reduces the rights of plaintiffs. If a petition for extension of the statute of limitations under §766.104(2) does not extend the statute of repose, respondent loses, regardless of the effect of §766.106(4). This is because the notice of intent under §766.106(4) was not sent in this case until long after the statute of repose would have expired if it had not been extended. The statute of repose would have expired on January 29, 1995. The only thing filed before that was a petition for extension which was filed on December 16, 1994. If the petition for extension did not 4 extend the statute of repose, the fact that a notice of intent was served on petitioner Balis on March 17, 1995 will not save this case. Respondent only wins if both statutes extend the statute of repose. It is noteworthy that respondent has not even attempted to defend s the Second District Court of Appeal’ assertion that the statute of repose is subsumed in the statute of limitations. Probably this is because that assertion is indefensible. For the reasons set forth in their initial brief and in this reply brief, the statute of repose was not extended in this case and the trial s court correctly dismissed respondent’ complaint with prejudice. 5 CONCLUSION This Honorable Court should answer the certified question in the negative, at least with respect to §766.104(2), Fla. Stat. (1989). The decision of the Second District Court of Appeal should be reversed and this case should be returned to the trial court reinstating its dismissal with prejudice. 6 I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to WILLIAM J. TERRY, Barnett Plaza, #2560, 101 E. Kennedy Blvd., Tampa, FL 33602, THOMAS M. HOELER and GLENN M. BURTON, P.O. Box 2378, Tampa, FL 33601-2378 and MARTIN B. UNGER and BRIAN D. STOKES, P.O. Box 4909, Orlando, FL 32802-4909, by U.S. Mail, this 8th day of June, 1998. SOMERS & ASSOCIATES _____________________________ CLIFFORD L. SOMERS 3242 Henderson Blvd., #301 Tampa, FL 33609-3056 813/872-7322 Fax 872-8614 Florida Bar #105967 Attorneys for Petitioner, Gene A. Balis, M.D. 7