Sullivan v. Fulton County Adm'r

662 So. 2d 706, 1995 WL 540280
CourtDistrict Court of Appeal of Florida
DecidedSeptember 13, 1995
Docket94-2137
StatusPublished
Cited by6 cases

This text of 662 So. 2d 706 (Sullivan v. Fulton County Adm'r) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sullivan v. Fulton County Adm'r, 662 So. 2d 706, 1995 WL 540280 (Fla. Ct. App. 1995).

Opinion

662 So.2d 706 (1995)

James Vincent SULLIVAN, Appellant,
v.
The FULTON COUNTY ADMINISTRATOR, as administrator of the Estate of Lita McClinton Sullivan, Appellee.

No. 94-2137.

District Court of Appeal of Florida, Fourth District.

September 13, 1995.
Rehearing Denied and Mandate Stayed Pending Review November 29, 1995.

Lawrence R. Heller and Randall Nordlund of Gilbride, Heller & Brown, P.A., Miami, for appellant/cross-appellee.

Richard A. Kupfer of Richard A. Kupfer, P.A., and John B. Moores of John B. Moores, P.A., West Palm Beach, and David W. Boone of David W. Boone, P.C., Atlanta, for appellee/cross-appellant.

Rehearing Denied and Mandate Stayed Pending Supreme Court Review November 29, 1995.

KLEIN, Judge.

Appellant, James Sullivan, was found in this civil action to have arranged the murder of his wife, and to have fraudulently concealed his involvement, so that her parents did not have grounds for bringing this wrongful death action against him until after the statute of limitations had run. The trial court submitted the case to the jury, which awarded $3.5 million in compensatory damages and $500,000 in punitive damages, and Sullivan appeals, arguing that fraudulent concealment of the identity of a tortfeasor does not toll the statute of limitations. We reluctantly reverse because this is presently the law in Florida, but certify the issue as one of great public importance.

On January 16, 1987, while Sullivan and his wife were involved in a bitter divorce action, an unknown man shot and killed Lita Sullivan as she answered the door to her home in Atlanta, Georgia. Decedent's parents brought this wrongful death action against Sullivan on December 23, 1991, alleging his complicity, and Sullivan defended on the ground that the 2-year period of limitations for bringing wrongful death actions, section *707 95.11(4)(d), Florida Statutes (1987), had expired. Plaintiffs asserted that the statute of limitations was tolled because Sullivan had fraudulently concealed his involvement in the crime.

Sullivan does not argue that the evidence was insufficient to support the jury finding that he had arranged his wife's contract murder, and accordingly an analysis of that evidence is unnecessary. He does argue that there was no evidence from which the jury could have found fraudulent concealment.

The evidence regarding fraudulent concealment consisted of Sullivan's denial of his involvement, Sullivan's advising the police that his wife had been involved in drug dealing and that her murder was probably a "drug hit," and Sullivan's suggestions to the police that they should investigate 3 different men, particularly one who was dating the decedent and allegedly had mob connections. Although Sullivan was a suspect from the beginning, the facts uncovered by the law enforcement agencies during their investigations were kept confidential and were not available to the plaintiffs. It was not until 1990 that Sullivan's involvement became known to plaintiffs. That was when Sullivan's new wife told police that Sullivan had admitted his guilt to her and when a prisoner, with whom Sullivan was incarcerated on another matter, also told police that Sullivan had confessed to the murder. We conclude that this evidence was sufficient to support a finding that Sullivan had fraudulently concealed his involvement. The more troubling issue is whether this fraudulent concealment tolls the statute of limitations.

Although this cause of action arose in Georgia, Florida follows the well-established rule that the statute of limitations of the forum state is applicable except where there is a shorter limitations period in the state where the tort occurred. Rodriguez v. Pacific Scientific Co., 536 So.2d 270, 271 (Fla. 3d DCA), rev. denied, 545 So.2d 1368 (Fla. 1989) and the Restatement (Second) of Conflict of Laws, section 142. Since Georgia also has a 2-year period of limitations for bringing wrongful death actions, section 9-3-51, Georgia Code (1995), the Florida statute applies.

The doctrine of fraudulent concealment appears to have first been extensively discussed in Florida in Proctor v. Schomberg, 63 So.2d 68 (Fla. 1953), a case in which a dentist failed to inform his patient that he had left a piece of a broken metal instrument in her jaw. Our supreme court adopted the doctrine of fraudulent concealment, quoting from 34 Am. Jur. p. 188, sec. 231, as follows:

According to the majority rule, however, fraudulent concealment of a cause of action from the one in whom it resides, by the one against whom it lies, constitutes an implied exception to the statute of limitations, postponing the commencement of the running of the statute until discovery or reasonable opportunity of discovery of the fact by the owner of the cause of action; under this rule, one who wrongfully conceals material facts and thereby prevents discovery of his wrong or the fact that a cause of action has accrued against him is not permitted to assert the statute of limitations as a bar to an action against him, thus taking advantage of his own wrong, until the expiration of the full statutory period from the time when the facts were discovered or should, with reasonable diligence, have been discovered.

Subsequently, in Nardone v. Reynolds, 333 So.2d 25, 37 (Fla. 1976), which also involved medical malpractice, the Florida Supreme Court stated in dicta:

Generally, two elements are required before the equitable principle of fraudulent concealment will be utilized to toll the statute of limitations, to-wit: plaintiff must show both successful concealment of the cause of action and fraudulent means to achieve that concealment.

In the present case there was no concealment of the existence of the cause of action. Appellees knew immediately that their daughter had been murdered; however, they were unable to determine the identity of the perpetrator in order to timely file a wrongful death action. The precise issue presented by this case — whether the concealment of the identity of the tortfeasor tolls the statute of limitations — has not been decided by the Florida Supreme Court. This court, *708 however, has concluded that concealment of identity does not toll the statute.

In International Brotherhood of Carpenters and Joiners of America v. United Association of Journeymen and Apprentices, 341 So.2d 1005 (Fla. 4th DCA 1976), which inexplicably has not been cited in the briefs, plaintiff's building was deliberately blown up, but plaintiff was unable to determine who the wrongdoers were because they fraudulently concealed their identity until after the period of limitations had run. Observing that we were following the "unanimity of authority elsewhere," we concluded that fraudulent concealment of the identity of a party liable is not the same as fraudulent concealment of a cause of action. We recognized that our holding rewarded "those who by criminal skill not only stealthfully destroy another's property but avoid detection during the statutory period," but felt that we had no alternative but to follow the universal rule.

Sullivan does cite Walker v. Beech Aircraft Corporation, 320 So.2d 418 (Fla. 3d DCA 1975), in which the plaintiff in a wrongful death action alleged that her husband was killed as a result of a design error in an aircraft which crashed, and that the manufacturer had fraudulently concealed the defect until after the wrongful death statute of limitations had run.

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Bluebook (online)
662 So. 2d 706, 1995 WL 540280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sullivan-v-fulton-county-admr-fladistctapp-1995.