Schiano v. City of Hollywood / Employers Mutual

Willam H. Rogner, appeal, Andrew R. Borah, trial

Fla. 1st DCA (8-21-19)Statute of Limitations/Estoppel The DCA affirmed the JCC’s finding that the claim was barred by the Statute of Limitations (SOL) and that estoppel did not apply. On 8/30/2017, the claimant attorney faxed a letter to the E/C requesting a replacement neurologist, and a one-time change in orthopedist. The next day, the claimant filed a PFB seeking the same benefits. On 9/1/17, the E/C attorney emailed the claimant attorney, stating that Dr. Brown would be authorized as the 1x change, and providing the name of the new adjuster. On 9/6/17, the E/C filed a response to the PFB, indicating no benefits would be provided as the SOL had run. At the Merit Hearing, the claimant argued the E/C’s 9/1 email was an initial response to PFB, and as it failed to assert SOL, waived the SOL defense. Alternatively, they argued the promise to provide the benefits in the email revived the SOL. The JCC accepted the E/C arguments that the email responded only to the fax, and the 9/6 response to the PFB appropriately invoked the SOL. The JCC found the statute was not revived, as the statement that care would be provided was not provision of a benefit or an acceptance of responsibility, as in agreeing to pay a bill for services rendered. The DCA examined SOL case law (finding the parties agreed the time had run) and the claimant’s avoidance theories that the E/C failed to assert the SOL in their initial response, and estoppel. Noting that estoppel requires a misrepresentation of a material fact, reliance on that misrepresentation, and a change in position to the detriment of the party, the DCA stated it could affirm based on CSE alone, as the claimant never alleged reliance upon the 9/1 email. To the contrary, the claimant filed the PFB prior to receipt of the email. The DCA also rejected claimant’s argument that the E/C’s assertion of the SOL ran contrary to the legislative intent of the pre-suit resolution process, the claimant only raised that argument on appeal, and thus did not properly preserve it for review.
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