Starting a New Claim
I send notice to all potentially at fault parties at the beginning of a new claim, and it must be done right. If more defendants are discovered later on they get sent notices too. In most cases, my letter briefly explains the type of incident, where, and when it happened. It is sent to all having some share of the responsiblity. They are requested to forward my letter to their insurance company or attorney for further handling. Within a week or two I will get a call from an adjuster confirming insurance coverage for the incident requesting more details. Believe me, a person getting a letter threatening suit does not ignore it.
The statute of limitations should be kept in mind when a case comes in to avoid letting the statute run while an investigation is pending.
The initial letter is not sufficient to toll or stop the running of a statute of limitations. A suit must be filed to stop the statute from running.
There are different presuit statutory requirements regarding certain classes of defendants or types of lawsuits.
- Statutes like FS 768.28(6)(a) require presuit notice to the state of Florida or one of its agencies, like the City of Palm Coast, Flagler County, a County School Board, Sheriff's office, or a special taxing district like Halifax Hospital Medical Center, with a copy to the Department of Financial Services.
- Suits against the Federal government for negligence of employees (like a mailman) require yet another notice under the Federal Tort Claim Act. .
- Suits for nursing home negligence (FS 400.0233(2)) and medical negligence (FS 766.106(2)(a)) also require a presuit notice. If a statute is not strictly complied with, the Court will dismiss (throw out) a case when it is filed. If the statute of limitations has already run, the dismissal could be fatal. There is a two year statute on professional negligence and in wrongful death cases, so the clock has to be watched. The presuit notice prohibits filing a suit on medical negligence cases for 90 days after the defense has been notified, effectively tolling the statute of limitations and granting at least 60 days to file suit after presuit ends. A party can obtain an automatic 90 day clerk's extension to make up for the loss of time to complete a med-mal presuit investigation when the statute of limitations is about to run.
At trial the defendants will often use the "empty chair argument" if one or more at fault parties are not present. Florida also has the Fabre rule, and both rules need to be considered even at early stages of representation to assure a tactical advantage is not given to the Defense. A jury will often take the easy way out in a trial by putting the entire blame on the defendant who should be sitting in the empty chair, but who is not a party to the lawsuit.
Although starting a claim may seem simple, there are lots of "gotchas" to be aware of. Using an experienced attorney can be critical even at the earliest stages of representation.
