Summary
In Kelley, our sister court affirmed the dismissal of a complaint for retaliatory discharge under section 440.205 because the plaintiff had failed to comply with the presuit notice requirements of section 768.28.
Summary of this case from Bifulco v. Patient BusinessOpinion
No. 99-194.
Opinion filed October 25, 1999.
An appeal from the Circuit Court for Jackson County, Judy M. Pittman, Judge.
Marie A. Mattox of Mattox Hood, P.A., Tallahassee, for Appellants.
Michael K. Grogan and Robert T. Devine of Coffman, Coleman, Andrews Grogan, P.A., Jacksonville, for Appellee.
Janice Kelley and Sherry Williams (appellants) seek review of the trial court's order dismissing their complaint with prejudice for retaliatory discharge under section 440.205, Florida Statutes (1997). It was undisputed that appellants failed to provide presuit notice as required by section 768.28, Florida Statutes (1997). The dismissal was with prejudice because the time for curing the defect had expired when the order of dismissal was entered. We affirm.
Appellants argue that the presuit notice under section 768.28, Florida Statutes (1997), was not required because section 440.205, Florida Statutes (1997), contains an implicit waiver of the notice requirement. We disagree. Section 440.205 contains no language which lends any significant support to appellants' argument. An action for retaliatory discharge under section 440.205 is clearly a "tort" within the meaning of section 768.28 and presuit notice is therefore required. Scott v. Otis Elevator Co., 524 So.2d 642 (Fla. 1988) (holding that retaliatory discharge is tortious in nature). Accordingly, we affirm the trial court's order dismissing the appellants' complaint with prejudice.
AFFIRMED.
JOANOS and VAN NORTWICK, JJ., CONCUR.