Author: David Lipman, Esq., Chief Legal Officer, Kanner & Pintaluga

For several decades, although used infrequently, Florida courts have excused plaintiffs who are unaware of the cause of their injuries from timely filing suit. The doctrine is known as equitable tolling or previously referred to as blameless ignorance. In a Florida Supreme Court case from 1954, the Court decided to follow the views expressed by the Missouri Supreme Court in a case decided five years prior when they emphasized that there is a distinction between the notice of a negligent act and the notice of its consequences. The Court held that a dismissal of the plaintiff’s case based on the statute of limitations was unjust because the plaintiff was unaware of the cause of the injuries.

Since the ruling by the Florida Supreme Court, many cases have been decided upon the broadly adopted discovery principle which maintains that the statute of limitations does not begin to run until a person has been put on notice of his or her right to a cause of action. The discovery principle has been applied in cases ranging from negligence, professional malpractice, breach of contract and retaliation claims. As the Supreme Court put it, equitable tolling, which involves no misconduct on the part of the defendant, may delay the running of the limitations period based on the plaintiff’s blameless ignorance and the lack of prejudice to the defendant.

In 2009, the 11th Circuit examined equitable tolling under Florida law and essentially confirmed that the Florida Supreme Court had gotten it right. Equitable tolling is a doctrine to prevent injustice and it exists apart from statutory law. The 11th Circuit held that the accrual of a cause of action and, therefore, to the running of a statute of limitations is not new to Florida law. That the standard is simple – limitations start running when a party discovers, or reasonably should have discovered, facts alerting him or her of the existence of the cause of action. Until then, equitable tolling delays the running of the limitations period.

Equitable tolling is a little used doctrine, even perhaps forgotten, but it remains valid. In appropriate cases and with the correct facts, Florida courts should toll the statute of limitations for claims brought by one party injured by another. It’s important to consider the doctrine when presented with a case that may appear on its face is precluded by the statute of limitations and perhaps a potentially stale claim can be resuscitated. While the burden is steep, it’s not insurmountable and we owe each client a fighting chance to pursue what they deserve.

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Founded in 2003, Kanner & Pintaluga is a NLJ500 and Mid-Market Pro 50 law firm that has recovered over $1 billion for property damage and personal injury clients nationwide. With nearly 100 lawyers and more than 30 offices throughout the Central and Southeastern United States, our primary goal is to achieve the most favorable outcome for our clients, who have the absolute right to receive the maximum compensation for their damages. If we can assist you or if you’d simply like to speak to an attorney about getting the help you need, please do not hesitate to contact us. Our team is always available to discuss your rights and make certain that you and your family are protected.