To litigate a Florida personal injury lawsuit, the action must be filed within the prescribed period set by statute and in the correct forum. The time period may differ, depending on the type of negligence action, and can potentially be changed by a contractual agreement between the parties to the case. Likewise, certain criteria set by statute must be met to file an action in state or federal court, and these can be limited even further by contractual agreement. The federal Eleventh Circuit Court of Appeals in Chang vs. Carnival Corp. (Case #: 14-13228) addresses these limits, reviewing whether or not the injured passenger attempted to file suit within the contractually agreed upon parameters set by her cruise ticket.
The injured passenger slipped and fell while on a cruise on December 9, 2012. The injured person’s ticket included a forum selection clause, which limited the time to file suit to one year and required the suit to be filed in the Southern District of Florida federal court, as long as subject matter jurisdiction requirements were met. If those weren’t met, the forum selection clause then limited any state court filings to occur in Miami-Dade County, Florida. The injured passenger initially hired an attorney based in California. The attorney was twice notified by the cruise line that it would not waive the forum-selection clause on September 4, 2013 and October 22, 2013. The injured passenger then hired counsel in Florida, who filed suit on December 4 or 6, 2013 in state court instead of federal court, as required by the forum selection clause. The cruise line moved to dismiss the state court action. While the motion to dismiss the state action was still pending, the injured passenger’s counsel then filed suit in federal court, nearly three months after the one-year limitation had already passed.
The cruise line filed for summary judgment in the federal court action, again pointing to the failure to file within the prescribed deadline at the correct location. The injured passenger argued that the limitation had equitably tolled, and the case should not be dismissed, since she tried to meet the requirements of the forum selection clause. On appeal, the injured passenger pointed to another, similar case in which the federal court allowed a different injured passenger to continue with his negligence action, despite filing after the one-year deadline and in state court. (See Booth v. Carnival Corporation, 522 F.3d 1148 (11th Cir. 2008).) The circuit court acknowledged they did find in favor of the injured passenger in that case, noting that equitable tolling occurs when four things happen. First, the state court must possess subject matter jurisdiction concurrently with the federal court. Second, the state lawsuit must have been dismissed solely on the ground of improper venue. Third, the defendant must have been aware prior to the expiration of the limitation period that the injured person intended to file suit. Fourth, the injured passenger must be entitled to believe that his state filing might be sufficient, since defendants are able to, and often do, waive the defense of improper venue.
The Circuit Court of Appeals ruled that the distinction in the present case hinged on the fourth factor. The defendant cruise line gave notice twice to the original attorney that they were not going to waive the venue defense. The injured passenger was unable to provide evidence to the federal district court that the attorney had no knowledge of the defendant’s refusal to waive it, despite two notices. Even though the other three elements were present, the knowledge that the defendant cruise line would not waive the venue requirement precluded any equitable tolling. The lower court’s ruling was affirmed, and the injured passenger was unable to proceed with her negligence claim.
When an injury happens on a business’ property, it is important to quickly retain a knowledgeable Florida premises liability lawyer. The attorneys at Donaldson & Weston have the experience needed to quickly determine which action must be taken to move forward with your negligence case. For a free, confidential consultation, contact our office today at 772-266-5555 or 561-299-3999.
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Florida District Court of Appeal Reviews Drunk Driver Motorcycle Accident Case, South Florida Injury Lawyer Blog, August 4, 2016
Wrongful Death Appeal Discusses Statutory Requirements for Expert Witnesses in Florida, South Florida Injury Lawyer Blog, July 13, 201