Facts
- Neil VonDrasek was injured when he tripped and fell while jogging on a city sidewalk on December 17, 1993.
- He sent the City a written presuit claim notice on August 10, 1994 under section 768.28(6), Florida Statutes (1993), but the notice did not mention a loss-of-consortium claim for his wife, Linda.
- After the City denied the claim, Neil and Linda sued on June 20, 1996 for personal injury damages and Linda’s loss of consortium.
- The complaint alleged compliance with section 768.28 and that all conditions precedent were met or waived; the presuit notice was attached as an exhibit.
- The City’s answer asserted multiple affirmative defenses but did not plead noncompliance with section 768.28(6) and did not specifically deny the conditions-precedent allegation.
- With its answer, the City served interrogatories directed only to Linda’s consortium claim; she provided written answers during the litigation.
- Nearly two years later, after the time to file a presuit notice had expired, the City moved to dismiss Linda’s consortium claim due to the omission from the presuit notice, and the trial court dismissed that claim.
Issues
- Whether the City could obtain dismissal for a presuit-notice omission when it did not specifically deny the complaint’s allegation that all conditions precedent were satisfied and raised the defect only after the notice period expired.
- Whether the City received sufficient and timely notice of the consortium claim through discovery (consortium interrogatories and answers) such that any defect in the original presuit notice was cured.
Decision
- The appellate court reversed the order dismissing Linda VonDrasek’s loss-of-consortium claim and remanded.
- The City could not rely on an alleged presuit-notice defect after failing to specifically deny noncompliance with conditions precedent and waiting until the statutory notice period had run.
- Linda’s interrogatory answers provided sufficient and timely notice of the consortium claim, curing any defect in the earlier presuit notice.
Legal Principles
- When a plaintiff pleads generally that all conditions precedent have been performed or waived, a defendant must specifically deny the alleged nonperformance to preserve the issue under Florida Rule of Civil Procedure 1.120(c).
- A governmental defendant that does not timely and specifically contest compliance with section 768.28(6) may waive reliance on a claimed notice deficiency, particularly when the challenge is raised only after the time to give notice has expired.
- Actual, timely notice of a claim obtained during litigation (including through discovery responses addressing the claim) can cure an omission in the presuit notice where the statutory purpose of notice is satisfied.
Conclusion
The court reinstated the loss-of-consortium claim because the City failed to properly plead and timely raise the presuit-notice defect, and in any event had timely actual notice of the consortium claim through discovery that cured the earlier omission.