Philip J. Fairman (Fort Myers, FL) (Governmental Law) obtained a Final Summary Judgment in Lee County, Florida. The Plaintiffs claimed that the child passenger on the School Board’s school bus was blinded when he was struck in the eye by an unsecured seat belt after the bus braked suddenly.
Between July 2018 and July 2021, the Plaintiffs retained a series of different attorneys to represent them in their claim against the School Board. Each of those retained attorneys served the School Board with separate pre-suit notices of their claim. In total 5 pre-suit notices were served on the School Board.
The School Board’s Motion for Summary Judgment asserted that all of the five pre-suit notices were deficient and failed to comply with the pre-suit notice requirements of Florida Statutes Section 768.28. Plaintiff’s attorney in his response to the School Board’s Motion for Summary Judgment did not address the notices prepared by the prior attorneys. The trial court agreed with the School Board’s position that the plaintiff waived any arguments as to notices filed by any previous attorneys and held that the School Board was entitled to Summary Judgment as to the notices served by the plaintiff’s previous attorneys. With respect to the notice that the Plaintiff’s current attorney served, the School Board asserted in a supporting affidavit that it had never received that notice. During discovery Plaintiff’s attorney was unable to produce the green mailing card showing receipt in hand by the School Board of the pre-suit notice, however, Plaintiff’s attorney filed his affidavit stating his office mailed the pre-suit notice in the usual course of business to the School Board. The trial court agreed with the School Board’s argument that the mailbox rule did not apply to sovereign immunity cases and held in the absence of a (green) mailing card showing receipt of the letter, the School Board was entitled to Summary Judgment.