JANICE F. KELLEY AND SHERRY C. WILLIAMS, APPELLANTS,
v.
JACKSON COUNTY TAX COLLECTOR, APPELLEE
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LAWRENCE, J.
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 tor- tious in nature). Accordingly, we affirm the trial court’s order dismissing the appellants’ complaint with prejudice.
AFFIRMED.
JOANOS and VAN NORTWICK, JJ., CONCUR.
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Maggio v. Fla. Dep't OF Labor & Emp. Sec., 899 So. 2d 1074 (Fla. 2005)…ht pursuant to section 440.205 is tortious in nature under Scott I, it is subject to the presuit notice requirements of section 768.28. See Osten v. City of Homestead, 757 So. 2d 1243, 1244 (Fla. 3d DCA 2000); Kelley v. Jackson County Tax Collector, 745 So. 2d 1040, 1040-41 (Fla. 1st DCA 1999). We do not determine the correctness of these decisions because that issue is not before us. . We also reject as inapposite Menendez v. North Broward Hospital District, 537 So. 2d 89 (Fla.1988), on which the DLES relies…
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Bifulco v. Patient Bus. & Fin. Servs., Inc., 39 So. 3d 1255 (Fla. 2010)…in Bifulco v. Patient Business & Financial Services, Inc., 997 So. 2d 1257 (Fla. 5th DCA 2009), on the ground that it expressly and directly conflicts with the decision of the First District Court of Appeal in Kelley v. Jackson County Tax Collector, 745 So. 2d 1040 (Fla. 1st DCA 1999), and the decision of the Third District Court of Appeal in Osten v. City of Homestead, 757 So. 2d 1243 (Fla. 3d DCA 2000).1 The issue is whether workers’ compensation retaliation claims brought against the State under section 440…
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Osten v. City OF Homestead, 757 So. 2d 1243 (Fla. 3d DCA 2000)…Scott, the first district squarely held that an action for retaliatory discharge under section 440.205 is clearly a tort within the meaning of section 768.28 and that pre-suit notice is therefore required. See Kelley v. Jackson County Tax Collector, 745 So. 2d 1040 (Fla. 1st DCA 1999). We agree and affirm the trial court’s dismissal of the count for retaliatory discharge where no statutory notice of the claim was provided pursuant to section 768.28. As for the remaining count for breach of covenant of good fa…
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- Scott v. Otis Elevator Co., 524 So. 2d 642 (Fla. 1988)