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Florida First DCA rules that premises liability plaintiff’s failure to properly identify “appropriate agency” in presuit notice under Fla. Stat. § 768.28(6) constituted valid basis for summary judgment and reverses trial court’s denial of defendants’ summary judgment motions

On May 12, 2021, in City of Jacksonville, et al. v. Boman, No. 1D20-658. The Florida First DCA reversed a trial court order which had denied the defendants’ motion for summary judgment in a premises liability case filed by a plaintiff who injured herself by falling into a manhole. The defendants, the City of Jacksonville and the Jacksonville Electric Authority (JEA), had moved for summary judgment on the basis that the plaintiff had allegedly failed to properly comply with the three-year presuit notice requirement under § 768.28(6)(a) applicable to claims against the state or one of its agencies or subdivisions. The plaintiff had in fact sent out a presuit notice to the City of Jacksonville (five of them in fact), but only the first three were presented before the three-year statutory notice deadline and only the last of the five correctly named JEA as the responsible authority (the “appropriate agency” under the statute). The defendants argued that this was a sufficient basis for a summary judgment in their favor, but the trial court reasoned that the plaintiff’s notice of claim was legally sufficient when sent to the City before the three-year deadline, because the City and JEA share a risk management group. The trial court concluded that JEA had constructive notice of the claim through Plaintiff’s communications with a claims adjuster, and that JEA was estopped from denying sufficient notice for the same reasons. The First DCA disagreed, noting that the only presuit notice identifying JEA as the allegedly responsible entity was untimely and that the plaintiff had also failed to timely notify the Department of Financial Services that JEA was the responsible entity. The First DCA cited, intern alia, Barnett v. Dep’t of Fin. Servs., 303 So. 3d 508, 510, 513 (Fla. 2020) (recognizing “this Court’s long-standing precedent that strictly construes Florida law waiving sovereign immunity,” and requiring any waiver of immunity to be construed narrowly and in favor of the government); and Menendez v. N. Broward Hosp. Dist., 537 So. 2d 89, 91 (Fla. 1988) (rejecting argument that Florida Department of Insurance had constructive notice of claim from other sources, and holding that under section 768.28(6), failure to give direct notice was fatal to complaint).

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