West v. State, Department of Health & Rehabilitative Services

District Court of Appeal of Florida

West v. State, Department of Health & Rehabilitative Services

667 So. 2d 919, 1996 Fla. App. LEXIS 852, 1996 WL 47735

District Court of Appeal of Florida·Decided February 7, 1996·No. No. 95-3056·Published

Opinion

PER CURIAM.

Bound by our decision in Austin v. Gaylord, 603 So.2d 66 (Fla. 1st DCA 1992), the trial court dismissed appellant’s complaint against the Department of Health and Rehabilitative Services for failure to serve the Department of Insurance, as required by section 768.28(7), Florida Statutes (1993), within the 120 days allotted by Florida Rule of Civil Procedure 1.070(i). Shortly after rendition of the trial court’s order, this court receded from Austin in Platt v. Florida Department of Health & Rehabilitative Services, 659 So.2d 1251 (Fla. 1st DCA 1995), and held that Rule 1.070(i) is not implicated in actions against a state agency pursuant to section 768.28, Florida Statutes, by failure to serve the Department of Insurance within the time prescribed by that rule. Platt controls disposition of this appeal, and in accordance therewith, we reverse the order of dismissal and remand this cause to the trial court for further proceedings.

REVERSED and REMANDED for further proceedings.

BOOTH, JOANOS and VAN NORTWICK, JJ., concur.

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PER CURIAM.

Bound by our decision in Austin v. Gaylord, 603 So.2d 66 (Fla. 1st DCA 1992), the trial court dismissed appellant’s complaint against the Department of Health and Rehabilitative Services for failure to serve the Department of Insurance, as required by section 768.28(7), Florida Statutes (1993), within the 120 days allotted by Florida Rule of Civil Procedure 1.070(i). Shortly after rendition of the trial court’s order, this court receded from Austin in Platt v. Florida Department of Health & Rehabilitative Services, 659 So.2d 1251 (Fla. 1st DCA 1995), and held that Rule 1.070(i) is not implicated in actions against a state agency pursuant to section 768.28, Florida Statutes, by failure to serve the Department of Insurance within the time prescribed by that rule. Platt controls disposition of this appeal, and in accordance therewith, we reverse the order of dismissal and remand this cause to the trial court for further proceedings.

REVERSED and REMANDED for further proceedings.

BOOTH, JOANOS and VAN NORTWICK, JJ., concur.

West v. State, Department of Health & Rehabilitative Services, 667 So. 2d 919, 1996 Fla. App. LEXIS 852, 1996 WL 47735 (Fla. Ct. App. 1996).

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