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Florida Second DCA rules that date of defendant’s receipt of plaintiff’s notice of intent to initiate medical negligence litigation, rather than date of mailing, controls for statute of limitations purposes, certifies conflict with First, Fourth and Fifth DCAs

On July 1, 2020, in Boyle v. Samotin, et al., No. 2D18-2932, the Florida Second DCA affirmed the dismissal by the trial court of a medical negligence case based on statute of limitations grounds.  The plaintiff had served a Notice of Intent to Initiate Litigation as required under Florida’s medical negligence pre-suit statute one day before the expiration of the limitations period, but the defendant did not sign the return receipt until after the statute of limitations period had expired.  In the previous case of Bove v. Naples HMA, LLC, 196 So. 3d 411 (Fla. 2d DCA 2016), the Second DCA ruled that a plaintiff must serve the notice of intent via certified mail, return receipt requested, and ensure the prospective defendant receives the notice of intent prior to the expiration of the limitations period under section 95.11(4)(b) in order to trigger the tolling of the statute of limitations under section 766.106(4), Florida Statutes.  The Court declined to recede from its holding in Cove: “[b]ecause the facts presented in the instant case are indistinguishable from those in Bove, we are constrained by the doctrine of stare decisis to apply Bove.”  The Court certified that that this position conflicts with decisions from other DCAs holding that the date of mailing is controlling for statute of limitations purposes.  See Zacker v. Croft, 609 So. 2d 140 (Fla. 4th DCA 1992), Baxter v. Northrup, 128 So. 3d 908 (Fla. 5th DCA 2013), and Bay County Board of County Commissioners v. Seeley, 217 So. 3d 228 (Fla. 1st DCA 2017).