Statute of Limitations For Negligence Claims: Appointment of GAL in Dependency Case Should Not Extinguish Children’s Causes of Action

D.H. by and through R.H. v. Adept Community Services, Inc., 2017 WL 1277741 (Fla. 2d DCA)

The children were born to a developmentally disabled mother. The mother received in-home support under a Medicaid program. The services were intended to help her live on her own and care for the children. The services failed to meet their objectives and the children were found dependent and placed with their maternal grandparents. After the mother failed to comply with her case plan, the court appointed the grandparents as permanent guardians for the children.

Three and a half years after entry of the permanent guardianship, the grandparents filed a claim of negligence against the mother’s in-home support providers claiming they knew the mother required 24 hour assistance to safely care for the children but allowed her to be alone with them. The mother’s lack of appropriate care caused the physical, mental and emotional injuries to the children.

The Defendants’ motion for summary judgment was granted because the lawsuit was initiated outside the four year statute of limitations and the grandparents appealed. The Second DCA affirmed the summary judgement in favor of the Defendant’s based on the following.

The Second DCA examined two questions to determine whether the suit was timely: 1) whether the claims accrued more than four years before the complaint was filed, and 2) if they accrued earlier, whether the limitation period was tolled. To begin, the court held that the children’s cause of action accrued when the last injury to the children occurred. The court held the action was outside of the statute of limitations as the last injury to the
children occurred more than four years before the suit was filed. The court noted that the grandparents could have sued on behalf of the children as next friend, pursuant to Fl.R.Civ.P. 1.210(b), as early as the date the children were sheltered since they were aware at that time of the children’s injuries.

Next, the grandparents argued that the statute of limitations was tolled pursuant to section 95.051(1)(h), F.S., (which provides for tolling during any period of time in which a parent, guardian, or guardian ad litem does not exist, has an interest adverse to the minor or incapacitated person, or is adjudicated to be incapacitated to sue) until they were appointed permanent guardians. They contended that the children’s mother had adverse interests to them by virtue of the dependency court proceedings through which her parental rights were in jeopardy and the fact that the twins’ negligence claims are based on her inability to care for them; that they had no guardian until the grandparents were appointed; and that the guardian ad litem was unaware of the twins’ injuries and therefore did not request services to address those needs. The court held that the fact that the GAL did not know of the injuries was irrelevant to whether the statute applies; the limitations period is not tolled when a GAL exists, except when the GAL has interests adverse to the minor or has been adjudicated incapacitated. As such, tolling in this case was not afforded by the statute.

PRACTICE TIP: Although not specifically ruled on in the opinion because the issue was not raised, the concurring opinion stated “The guardian ad litem in this case was appointed by the dependency court to represent the best interests of the twins in the dependency case. The guardian ad litem did not have plenary powers over the twins for any other matter. Cf. § 39.820(1), Fla. Stat. (2006) (providing for the guardian ad litem to be appointed to represent the best interests of the child in that proceeding).” The implication is that the appointment of a GAL should not prohibit tolling of the statute of limitations. (Even though this is contrary to the statute) The litigation for GAL in dependency is specific to dependency proceedings.

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