Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-658 _____________________________ CITY OF JACKSONVILLE and CORRECTED PAGE: pg 8 JACKSONVILLE ELECTRIC CORRECTION IS UNDERLINED IN RED AUTHORITY, MAILED: May 13, 2021 BY: FTA Appellants, v. TAMERE BOMAN, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Bruce Anderson, Judge. May 12, 2021 KELSEY, J. This case turns on the sufficiency of presuit notice under section 768.28(6)(a), Florida Statutes (2013), which requires notice within three years after an action accrues. Although Appellee (Plaintiff), through counsel, timely notified the City of Jacksonville of a potential claim, it is undisputed that she failed to timely notify the right defendant—the Jacksonville Electric Authority (JEA). The trial court concluded that notice to the City was sufficient because of an agency relationship between the City and JEA. We reject the trial court’s reasoning, reverse the order on appeal, and remand for entry of summary judgment in favor of both the City and JEA. I. Facts. A. The Accident. On December 5, 2013, in Jacksonville, Plaintiff fell with her left leg down in a manhole and her right knee on the ground beside it. The manhole cover rotated on its axis, either before Plaintiff stepped into the hole or as a result of her stepping onto the cover. Plaintiff sustained personal injuries consisting of a left knee sprain, right knee strain and torn meniscus, and multiple bruises to her lower extremities. The three-year presuit notice limit of section 768.28(6)(a) expired on December 5, 2016. B. The Five Presuit Notices. Plaintiff retained counsel, who sent out five presuit notices between the date of accident and March of 2017. Only the first three were timely. The first notice on December 26, 2013, was addressed to the City and identified the Jacksonville Transit Authority (apparently a misnomer for the Jacksonville Transportation Authority) as the responsible entity. This notice also went to the State Division of Risk Management and the State Department of Financial Services (DFS). The second notice was just a copy of the first one, sent to the City and dated January 22, 2014. The third notice, dated August 30, 2016, identified the Florida Department of Transportation (FDOT) as responsible, and was copied to the State Division of Risk Management. The fourth and fifth presuit notices were presented after the statutory three-year deadline. The fourth notice, dated January 17, 2017, was the first to mention JEA. It was addressed to JEA, but first stated it was a claim against the FDOT, and then later stated that JEA was the agency involved. This notice was not furnished to DFS. The fifth notice, dated March 21, 2017, reverted to identifying the Jacksonville “Transit” Authority as responsible. This notice went to DFS and the City’s Office of General Counsel. 2 C. The Lawsuit. Plaintiff sued the City and JEA, alleging satisfaction of conditions precedent including presuit notice under section 768.28(6) and the parallel City of Jacksonville Ordinance, which like the statute, imposes notice requirements as conditions precedent to the waiver of sovereign immunity. The amended complaint alleged the City owned JEA and that JEA was the City’s managing agent in charge of operating and maintaining the municipal utility system. The City and JEA moved to dismiss the amended complaint for Plaintiff’s failure to provide timely and legally sufficient presuit notice. The trial court denied the motions. The City and JEA answered the amended complaint, again asserting failure of conditions precedent and sovereign immunity. The parties engaged in discovery, after which both the City and JEA moved for summary judgment. D. Summary Judgment Arguments. The City argued that it had no direct responsibility or liability for the manhole cover, and that it is not liable for any alleged negligence of JEA because JEA is an independent entity. The City also asserted the legally insufficient presuit notice as a bar to the lawsuit. JEA argued it was entitled to summary judgment because of Plaintiff’s failure to give timely and sufficient presuit notice to JEA, and to DFS as to JEA’s alleged liability. JEA also argued that notice to the City was not notice to JEA, because the two are separate and distinct legal entities. In opposition to the motions for summary judgment, Plaintiff argued that the City is vicariously liable for JEA’s negligence because JEA is the City’s agent. Plaintiff argued that such an agency relationship meant the original timely presuit notice to the City constituted notice to JEA. Plaintiff also relied in part on a statement attributed to JEA’s website directing people with claims to contact the City’s Risk 3 Management Division. Plaintiff argued that her counsel’s presuit e-mail correspondence with a claims adjuster in the City’s Risk Management Division estopped the City from denying an agency relationship with JEA. The 2016 e-mails, exchanged before the presuit notice deadline expired, all related to potential claims against the City or the FDOT, never mentioning JEA. In other e-mails exchanged in January 2017, after the three- year limit of section 768.28(6) had already passed, a paralegal for Plaintiff’s counsel asked whether the claims adjuster would handle a claim against FDOT. The adjuster responded that he represented the City, not FDOT. The paralegal then asserted the claim was against “the City (JEA).” This was the first time JEA was mentioned in any notice, and this occurred after the three-year deadline. The adjuster said he also handled claims against JEA and would reopen the claim file. Plaintiff’s counsel then stepped into the e-mail thread and asked for confirmation that the adjuster’s office also handled claims against JEA. The adjuster said he did, but again stated that based on his investigation, the manhole was FDOT’s and neither the City’s nor JEA’s. Plaintiff’s counsel followed up with FDOT and determined that the manhole actually was a JEA manhole, which the City and JEA ultimately did not dispute. E. Trial Court Ruling. After hearing argument at a non-evidentiary hearing, the trial court denied the City’s and JEA’s motions for summary judgment. The court reasoned that 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 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. II. Analysis. We have jurisdiction to review the trial court’s non-final order denying sovereign immunity. See Fla. R. App. P. 9.130(a)(3)(F)(iii). We review de novo the trial court’s ruling on a motion for summary 4 judgment in which there is no genuine issue of material fact. Va. Ins. Reciprocal v. Walker, 765 So. 2d 229, 231 (Fla. 1st DCA 2000). Section 768.28 partially waives sovereign immunity as to tort claims against the State and its subdivisions. § 768.28(1), Fla. Stat. (2016) (“In accordance with s. 13, Art. X of the State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act.”) (emphasis added). The statute imposes conditions on that waiver, including the presuit notice requirement at issue here, which provides as follows: An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality, county, or the Florida Space Authority, presents such claim in writing to the Department of Financial Services, within 3 years after such claim accrues . . . . § 768.28(6)(a), Fla. Stat. This notice requirement is a condition precedent to suit. § 768.28(6)(b), Fla. Stat. (“For purposes of this section, the requirements of notice to the agency and denial of the claim pursuant to paragraph (a) are conditions precedent to maintaining an action . . . .”). The Jacksonville Ordinance Code also requires service on the City’s General Counsel, including notices under section 768.28. § 112.204, Jacksonville Ord. Code. Courts must strictly construe and require strict compliance with the presuit notice requirement. See 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); see also 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); Maynard v. State, Dep’t of Corr., 864 5 So. 2d 1232, 1234 (Fla. 1st DCA 2004) (noting “there is little room for substantial compliance”). Applying this well-settled law to the facts before us, we hold that Plaintiff failed to give timely and sufficient notice to the appropriate agency, which was JEA. First, Plaintiff’s only notice identifying JEA as the allegedly negligent entity was legally insufficient because it was untimely and did not provide notice to DFS. Second, Plaintiff’s timely notices were legally insufficient because they failed to identify JEA as the allegedly negligent entity. We reject Plaintiff’s arguments and the trial court’s ruling that notice to the City constituted valid notice to JEA. A. JEA Notice Legally Insufficient. Two fatal flaws defeated Plaintiff’s only presuit notice identifying JEA as the allegedly responsible entity. First, this notice was late, because it was dated January 17, 2017, after the three-year deadline established in section 768.28(6)(a). Second, this notice also failed to notify DFS of the claim against JEA. See id. (requiring claimants to “present[] such claim in writing to the Department of Financial Services”); see also LaRiviere v. S. Broward Hosp. Dist., 889 So. 2d 972, 973–74 (Fla. 4th DCA 2004) (rejecting claim for failure to notify DFS as to specific defendant). No notice ever informed DFS that JEA was allegedly liable for Plaintiff’s claims. Either flaw is enough to render this notice invalid under the statute. B. City Notice Legally Insufficient. Conceding the legal insufficiency of her only notice identifying JEA as the allegedly responsible entity, Plaintiff relies instead on her timely notice to the City. She first argues that notice to the City constitutes notice to JEA as a matter of agency law. Alternatively, she argues estoppel based on JEA’s use of the City’s Risk Management Department and the resulting communications between Plaintiff’s counsel and a claims adjuster. Both arguments fail as a matter of law. 6 1. No Agency Relationship. Under the current and governing Charter of the City of Jacksonville, JEA is independent of the City and is its own body politic and corporate. §§ 18.07(d), 21.01, Charter of the City of Jacksonville (Charter); see also § 18.07(a), (d), Charter (defining the City’s consolidated city/county government as separate from independent agencies such as JEA). JEA “is authorized to own, manage and operate a utilities system within and without the City of Jacksonville”; it has “plenary authority with respect to electric, water, sewer, natural gas and such other utility systems as may be under its control now or in the future,” and has “all powers with respect to electric, water, sewer, natural gas and such other utilities which are now, in the future could be, or could have been but for this article, exercised by the City of Jacksonville.” § 21.01, Charter; see also §§ 21.04–.05, Charter (listing specific powers and stating construction shall be liberally in favor of JEA’s power). These provisions establish that JEA is a legal entity independent of the City. The City has no control over JEA’s powers with respect to utilities, nor over JEA employees. § 21.08, Charter. JEA has independent status in litigation. § 21.04(g), Charter. Because JEA is independent of the City, and is independently responsible for all utility functions and employees, the City is not vicariously liable for JEA’s alleged negligence. No authority has held otherwise. 2. No Estoppel Occurred. Despite failing to provide direct notice to JEA as the appropriate agency, and failing to establish a principal/agent or other vicarious-liability relationship between the City and JEA, Plaintiff nevertheless argues that she satisfied the statutory requirement of notifying the “appropriate agency” because she provided notice to the “appropriate investigating agency.” By this she means that because her counsel was communicating with a claims adjuster in the City’s Risk Management Division after first presenting notice to the City, and the City’s claims adjusters could also investigate claims against JEA, she is deemed to have notified JEA, or that the City and JEA are estopped to argue otherwise. We reject this argument. 7 The relevant key phrase in section 768.28(6)(a) requires notice be presented to “the appropriate agency:” “An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency . . . .” (emphasis added). In context, the phrase “appropriate agency” refers to the governmental entity whose employee’s alleged negligence, wrongful act, or omission caused the plaintiff’s alleged injuries or loss. This is foundational to the limited waiver of sovereign immunity set forth in section 768.28(1), as follows: Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of the employee’s office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act. § 768.28(1), Fla. Stat. (emphasis added). The “appropriate agency” is the entity that would be liable for its employees’ negligence or wrongdoing, and thus the proper named defendant in the contemplated tort action. See Cunningham v. Fla. Dep’t of Child. & Fams., 782 So. 2d 913, 915 (Fla. 1st DCA 2001) (“The purpose of the notice requirement is to provide the State and its agencies sufficient notice of claims filed against them and time to investigate and respond to those claims.”) (emphasis added); see also Ryan v. Heinrich, 501 So. 2d 185, 186– 87 (Fla. 2d DCA 1987) (holding notice of claim must be presented to and identify the potential defendant entity, and notice to sheriff was insufficient notice to a separate county board although the sheriff served as director of the board). In this case, the appropriate agency was JEA, as the prospective defendant and allegedly liable entity whose agent or employee allegedly committed negligence with respect to the 8 manhole cover. JEA employees are legally distinct from City employees. See § 21.08, Charter (making all utility system workers employees of JEA). Only JEA employees would have any responsibility for a manhole cover. “Appropriate agency” means the potentially liable entity itself, not the person or group of people who evaluate claims made. Under the statute, the City’s Risk Management Division and claims adjusters cannot be, or stand in the place of, the “appropriate agency” entitled to presuit notice. Further, section 768.28(6)(a) requires that a claimant present presuit notices to the appropriate agency: “An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency . . . .” (emphasis added). Plaintiff as the claimant had to present her claim to JEA. Although certainly her retained legal counsel could present notice for her, no theory exists under which a claims adjuster investigating another claim somehow becomes a “claimant” under the statute and “presents” a claim against another agency/defendant. The statute places that burden solely on the claimant. It makes no difference that the City claims adjuster could also investigate claims presented against JEA. The claimant would have to first present the claim to the appropriate agency, as section 768.28(6)(a) requires, before investigation would commence on that claim against that agency. Investigation of a claim already noticed under section 768.28 does not create, or substitute for, any claim not already noticed in compliance with the statute. Plaintiff’s communications with the claims adjuster resulted from her early notice to the City. Plaintiff never gave notice of a claim against JEA—the sole “appropriate agency” under section 768.28(6)(a)—while communicating with the claims adjuster during the three-year period for presuit notice allowed under that section. These communications by no means waived Plaintiff’s separate obligation to present her claim to JEA, nor created any estoppel against JEA. The trial court erred in holding to the contrary. 9 III. Conclusion. We reverse the trial court’s order denying the City’s and JEA’s motions for summary judgment, and remand for entry of final summary judgment in their favor. REVERSED and REMANDED with instructions. ROBERTS and ROWE, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Sonya Harrell, Assistant General Counsel, City of Jacksonville, Office of General Counsel, Jacksonville, for Appellants. Jason T. Ellis of Rudolph, Israel, Tucker & Ellis, P.A., Jacksonville, for Appellee. 10