Jelenc v. Draper, 678 So.2d 917 (Fla. App. 1996)

Student Contributor: Ross Eisenberg

FL: Underlying Personal Injury

Facts: Plaintiffs retained the Defendant law firm for a personal injury action. The partner gave the case to his associate to handle. The associate misrepresented to the Plaintiff that he had commenced legal proceedings. Plaintiff made phone calls to Defendant that were never returned. Finally, defendant told plaintiff that his associate had been discharged from the firm and entered an alcoholics rehabilitation program. Plaintiffs appeal the order dismissing their complaint and claim that it  is not time barred.

Issue: Whether the malpractice action fell outside of the SOL and should be dismissed.

Rule: No, the SOL does not bar this action. Paragraph 95.11(4)(a), Florida Statutes (1995) provides a two year statute of limitation for professional malpractice actions, with the period of limitation running "from the time the cause of action is discovered or should have been discovered with the exercise of due diligence."  
The fact that the Plaintiff found out in December, 1992, that the Defendant had discharged his associate does not demonstrate when the Plaintiffs knew or should have known the associate had acted negligently with respect to their case, nor does it provide a date from which it could be determined that the Plaintiffs either knew or should have known that the Defendant had negligently supervised his associate. The associate could have been discharged for any number of reasons. Knowledge of the associate’s discharge is not synonymous with knowledge of a cause of action for professional malpractice.

Lesson: The Defendant can raise the SOL defense in his answer if the complaint does not indicate that the applicable SOL bars the action. But the discovery rule would seem to bar the defense here.