[CLC-Discussion] Chapter 558 and the Statute of Repose

[Matthew Belcastro]

Since the statute of repose is contained in the same statutory provision as the statute of limitations, I think both would be tolled.  Otherwise, you'd have to file suit, then have the suit stayed/abated while you proceed with the 558 provisions and that seems like a waste.

From: clc-discussion-bounces at lists.flabarrpptl.org [mailto:clc-discussion-bounces at lists.flabarrpptl.org] On Behalf Of John Trawick
Sent: Sunday, August 17, 2014 3:42 PM
To: 'clc-discussion at lists.flabarrpptl.org'
Subject: [CLC-Discussion] Chapter 558 and the Statute of Repose

Fellow Committee Members,

Has anyone argued the issue of whether a 558 Defect Notice tolls the Statute of Repose or not?  If so, how did your argument turn out?  As many of you know, the 558 statute states that a proper notice under 558 tolls rung of the Statute of Limitations but the statute is silent with regard to the tolling of Statute of Repose.  There is no case law at all on this particular issue but the Florida Supreme Court addressed this question within the context of the medical malpractice pre-suit notice statute in 1999.  In that opinion (the Musculoskeletal case), the Supreme Court ruled that even though the medical malpractice pre-suit notice statute only contained language tolling the statute of limitations (and the statute was silent as to whether the statute the of repose was also tolled by service of the pre-suit notice), the statute of repose was also tolled by a plaintiff's service of a proper pre-suit notice of a pending medical malpractice claim.

I have this issue currently pending (and, in fairness, I should point out that fellow CLC member, Bruce Partington, is on the other side of the argument).  Bruce and I had a spirited discussion last week about the issue but neither of us won over the other.  So I am very curious to know if anyone has actually argued this issue to a trial court and, if so, I would appreciate you telling me how it came out.  Also, even if you haven't argued the issue but you have some thoughts on the matter, I would welcome those as well.

Thank you in advance.

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Matthew Belcastro
Attorney at Law
Henderson, Franklin, Starnes & Holt, P.A.
1715 Monroe Street
P.O. Box 280
Fort Myers, FL 33902
Direct Dial:  239.344.1205
Direct Fax: 239.344.1524
Matthew.Belcastro at henlaw.com
http://www.henlaw.com
 
 
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