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Florida Bar Journal

Applying Commercial Litigation Principles to the Evaluation of Civil Sexual Abuse Claims

Featured Article

One out of every six women in Florida has been raped at some point in their lives, and one out of every five men has been victimized by some form of sexual violence other than rape.1 These statistics are sobering to say the least.

While a sexual abuse2  victim3 can report the abuse, the decision to criminally charge and prosecute the abuser is solely within the discretion of the state or county’s prosecuting attorney.4 Moreover, even if the alleged abuser is prosecuted and convicted, the criminal justice system’s ability to compensate the abused is limited5 a nd is subject to the discretion of the criminal judge.6 This is because “[u]nlike a civil claim for damages, the purpose of restitution” is not only “to compensate the victim,” but also “to serve the rehabilitative, deterrent, and retributive goals of the criminal justice system,” and the latter consideration is within the exclusive purview of the judiciary.7 Accordingly, sexual abuse victims who are not fully compensated via restitution are left to decide whether to rehash the horrifying details of their abuse in civil court8 in hopes of being compensated there.9

This life-changing decision should be made in much the same way parties to a failed commercial transaction decide whether a civil suit is an economically feasible response to a mortgage default or a contract breach. Specifically, the decision should be based largely on the probability of obtaining a collectable judgment. A lawyer can help a sexual abuse victim in this regard by gathering information about and examining the seven potential obstacles to civil recovery discussed in this article.

On the surface, it may seem callous or simplistic to reduce what may be the most traumatic event in the victim’s life to this sterile analysis. An attorney who conducts such an evaluation, however, demonstrates more compassion and provides more value to the victim than an attorney who submits to a victim’s emotional demand to file suit. As the process of litigating a sexual abuse suit necessarily exposes the victim to a great deal of stress, it would be cruel to subject a victim to those stresses without first ascertaining whether there is a reasonable possibility of obtaining a collectable judgment.

Obstacle One: Lack of Evidence to Establish Civil Liability
The lawyer’s evaluation of a potential civil suit necessarily involves identifying not only who can, but who should be sued. The abuser is obviously a potential defendant. So too, under the right circumstances, are the abuser’s supervisor, employer, and employer’s board of directors.10 But the process of whittling potential defendants down to actual defendants is often dictated by the amount and quality of evidence available. A dearth of evidence can be an obstacle to obtaining a collectable judgment because, quite simply, a claim without evidence to support it is worthless. Therefore, the lawyer should conduct a presuit investigation to determine what evidence is available and how it affects who can be sued and under what legal theories.

The investigation should include everything from visiting the scene of the abuse to reviewing potential defendants’ and witnesses’ social media sites to requesting police reports, medical records, and surveillance videos. The investigation should critically analyze the victim’s version of the facts to determine whether it is corroborated by the available evidence.

In sum, the investigation must be thorough enough to ensure the suit is not frivolous, in which case the consequences can range from disciplinary action from The Florida Bar11 to court-awarded sanctions against both the lawyer and his or her client.12 But the lawyer must also tread lightly because discussing the abuse with the abuser’s family, employers, or customers may expose the lawyer and his or her client to claims for defamation or tortious interference with the abuser’s business should a court later rule that no abuse occurred. While the attorney may be able to rely on the litigation privilege to provide legal immunity for communications that occur after the suit is filed,13 the privilege does not apply to statements that “do not have any functional tie to a judicial proceeding,” such as those made during a press conference or on a website.14

Finally, preservation letters should be sent to all potential defendants and witnesses. The “intentional destruction, mutilation, alteration, or concealment of evidence” constitutes “spoliation.”15 If a victim cannot prove his or her case because the critical evidence is unavailable due to spoliation, then the court is authorized to impose a wide variety of sanctions ranging from the imposition of an adverse inference16 to entering a default on the issue of liability.17 “Spoliation is established by proving (i) the evidence existed at one time, (ii) the alleged spoliator had a duty to preserve the evidence, and (iii) the evidence was crucial to the movant’s prima facie case or defense.”18 Therefore, preservation letters are critical because they ensure that the duty to preserve has been triggered.19

Obstacle Two: Lack of Evidence to Seek Punitive Damages
Once punitive damages are in play, the dynamics of a lawsuit can shift rapidly. The desire to avoid the liability and negative press associated with being on the wrong end of a punitive damage award is often sufficient motivation for a previously defiant defendant to commence settlement discussions. Thus, a significant part of the presuit analysis is determining whether evidence exists that could persuade the court to grant a punitive damage amendment.

Punitive damages cannot be awarded unless demanded in the complaint, and they cannot be demanded without permission from the court.20 A sexual abuse victim can obtain this permission by making a reasonable showing via evidence in the record or by proffer that he or she will be able to establish that the abuser is “personally guilty of intentional misconduct or gross negligence,”21 where the terms “intentional misconduct” and “gross negligence” are statutorily defined.22 If punitive damages are sought against the abuser’s employer, then the victim must also show that the employer “(1) actively and knowingly participated in the conduct; (2) knowingly condoned or ratified the conduct; or (3) by its gross negligence, contributed to the [victim’s] damages.”23 Once pleaded, the victim’s entitlement to punitive damages must be established by “clear and convincing evidence” and the amount must be established by “the greater weight of the evidence.”24

A creative attorney can find evidence to support these heavy evidentiary burdens anywhere. Some avenues worth exploring include the abuser’s social media account (e.g., bragging), text messages from the abuser to the victim ( e.g., threatening to continue the abuse or to harm the victim if he or she attempts to report the abuse), and online articles addressing past abuse involving the abuser ( e.g., demonstrating the officers and directors knew or should have known about the abuser’s past behavior). The victim’s legal costs can be minimized by printing or otherwise preserving this information before the abuser deletes it, thus, eliminating the time and expense of having to subpoena the social media site operator or telephone carrier later.

Obstacle Three: Related Criminal Proceedings
The existence and status of any criminal prosecution stemming from the abuse can also be an obstacle to obtaining a collectable judgment. Specifically, if the abuser or any other potential defendant or witness has not been criminally prosecuted or if the prosecution is ongoing, then they will likely invoke their Fifth Amendment right not to testify against themselves during the civil suit. The Fifth Amendment permits a person to refuse to answer questions that may constitute a link in a chain of evidence leading to his or her conviction in a criminal case.25 If a defendant or critical witness can avoid answering questions under oath, then that may make it more difficult for the sexual abuse victim to prove his or her civil claims.

A defendant or witness cannot, however, refuse to testify on Fifth Amendment grounds if he or she is not at risk of further criminal charges for the alleged sexual abuse that is the subject of the trial.26 This would be the case if “jeopardy” already attached, which occurs when the first witness is sworn in a nonjury trial or when the jury is empaneled in a jury trial where the testifying defendant or witness is being criminally prosecuted.27 At that point, the outcome of the criminal prosecution is typically not relevant to the “double jeopardy” analysis.28 The abuser also cannot refuse to testify if he or she files a counterclaim in the civil action.29

If the related criminal prosecution against the abuser or any other potential defendant or witness has concluded, then evidence of a prior guilty plea can be introduced in a subsequent civil case as an admission against interest,30 though evidence of a criminal conviction cannot.31 Both guilty pleas and criminal convictions, however, may be used to impeach ( i.e., discredit the veracity of) a party or witness in a civil case.32

Obstacle Four: Judgment-proof Defendants
A sexual abuse victim, like any other client, should be advised of the differences between the process of obtaining a civil judgment and collecting it. A judgment is not worth the paper it is printed on if the judgment debtor does not have sufficient, nonexempt assets to satisfy it.

Determining the collectability of a potential defendant is more of an art than a science. Though often quite expensive, asset searches and personal investigators typically provide the most exhaustive results. For those unable or unwilling to incur this expense, the Internet can provide a great deal of information to those motivated enough to track down the information themselves. For example, determining whether a potential defendant owns real property and whether it is exempt from collection under Florida’s homestead exemption33 can be accomplished by searching property appraisers’ websites, which are organized by county. Determining whether a potential defendant owns a car that can be levied on or a corporation that can be garnished can be determined by searching the websites of the Department of Motor Vehicles and the Division of Corporations, respectively. If the defendant is a publicly traded company, then it would be prudent to review its SEC filings including, but not limited to, Forms 10-Q, 10-K, and 8-K. With some creativity and elbow grease, plenty of other relevant information ( i.e., whether a potential defendant is married, the head of household, etc.) can be unearthed.

Of course, the fact that a potential defendant possesses collectable assets at the beginning of a suit does not mean that those assets will still be available to satisfy a judgment entered months or years later. then the assets may have been liquidated to finance the potential defendant’s legal defense or to satisfy other existing debts ( e.g., mortgages, student loans, etc.). While a potential defendant cannot be prevented from conveying assets, if that conveyance is made without receiving a reasonably equivalent value in return in an attempt to become “uncollectable,” then the conveyance may be deemed fraudulent regardless of whether a civil judgment had been entered when the transfer was made.34 Fraudulent transfers can be set aside;35 the assets can be attached;36 and the recipient of the assets can be enjoined from further transferring them.37 Of course, these remedies are worthless without 1) knowing what assets the potential defendant has; 2) monitoring the disposition of those assets throughout the suit; and 3) seeking relief under the fraudulent transfer statutes before those rights are extinguished by the passage of time.38

Obstacle Five: Defendants with a War Chest or Insurance
An uncollectable defendant can be just as big an obstacle as one with deep-pockets if the latter has a large war chest to finance the defense costs. The same rationale may apply, depending on the amount of the deductible, if the legal expenses will be paid by an insurance company. Defendants with a war chest or insurance may be less willing to offer to settle early unless the evidence is so overwhelming that it would be more prudent for the defendant to settle or its insurance carrier to tender the cost of defense.

A defendant generally cannot be required to respond to discovery concerning his, her, or its finances until a punitive damage claim is pleaded39 or a judgment is entered against it.40 Therefore, presuit financial information should be gathered using the techniques discussed in obstacle four.

Information about any applicable insurance policies can be obtained presuit by serving a statutorily authorized insurance information request on each potential defendant who, in turn, is obligated to serve the notice on each of its insurers that “does or may provide liability insurance coverage to pay all or a portion of any claim.”41 taking this step, the complaint can be strategically crafted to trigger or avoid triggering coverage, whichever is deemed advantageous. If the potential defendant’s insurance carrier does not provide the statutorily required information, then not only may the carrier be fined,42 but if the victim obtains a judgment against the carrier’s insured, then the victim can also bring an action against the carrier stemming from its failure to provide the insurance information.43 This is critical because insurance carriers that fail to comply with the statutory requirement to satisfy judgments against them within 60 days of entry can have their certificate of authority to transact insurance in Florida revoked.44

Obstacle Six: Personal Service Requirements
The strongest claims against the most collectable defendants are worthless if the defendants cannot be personally served. Due process requires that an individual “be personally served in order to obtain a money judgment against him or her.”45 Yet it is not unusual for the abuser and his or her supervisor to flee or be transferred out of Florida. If the defendant now resides outside of the United States, then the service must also comport with the time-consuming and expensive requirements46 of The Hague Convention47 as well as the Florida Statutes.48 As a result, the cost of locating and personally serving a particular defendant may result in abandoning an otherwise viable claim.

Obstacle Seven: Time-barred Claims
Denial, shame, anger, fear of reprisal from the abuser, and a reluctance to rehash the abuse in open court are just a few reasons why sexual abuse is not always timely reported to authorities.49  Therefore, it is understandable that a victim of such abuse would not react by immediately heading down to the courthouse to interject his or her private life into the public records by filing a civil suit. But while these are all reportedly natural psychological reactions to sexual trauma, statutes of repose and limitation can preclude victims from recovering civil damages stemming from that trauma if they do not timely pursue their rights.

A cause of action accrues when the last element necessary to complete it occurs.50 A statute of repose does not limit the time for bringing an action but rather establishes that, after the statutory date, the cause of action no longer exists.51 Statutes of repose are substantive in nature because they provide the substantive right to be free from liability after the attached time period.52 Therefore, statutes of repose cannot be tolled.53 Statutes of repose do not begin to run from the accrual of the cause of action, but rather from an established or fixed event ( i.e., a sexual assault, a real estate closing, etc.) even if the cause of action does not fully accrue until after that event occurs.54 Accordingly, a statute of repose can prevent a victim from ever pursuing a civil claim if the final element necessary for its accrual occurs after the statute of repose has extinguished the claim.55 F or example, an action for fraud or fraudulent concealment must commence within 12 years after the date of the commission of the alleged fraud, regardless of the date the fraudulent activity occurred or should have been discovered.56 To that end, at least one court has interpreted F.S. §95.051(1)(i) as establishing “a seven-year period of repose” that could bar claims stemming from sexual abuse that occurred while the victim is a minor.57

A statute of limitation, being procedural in nature, prevents the enforcement of a cause of action that has already accrued.58 If the suit is not filed before the statute of limitation runs, then the defendant may raise the limitation period as an affirmative defense, which can result in dismissal of the claim with prejudice.59 This defense is waived if not specifically pled in the defendant’s affirmative defense.60

A statute of limitation period, unlike a statute of repose, can be extended.61 One form of extension, called “tolling,” pauses a limitation clock that has begun ticking due to the accrual of the claim.62 For example, the limitation period on a sexual abuse claim is tolled if the victim is a minor when the cause of action accrues.63 Other examples include when the abuser is 1) transferred out of or leaves the state;64 2 ) concealed within the state to avoid being served with process;65 or 3) either caused or induced the victim to refrain from filing within the limitation period, or lulled the victim into a disadvantageous legal position.66

The latter circumstance, commonly referred to as the doctrine of equitable estoppel, applies where it can be shown that the abuser or his or her employer’s engagement in some sort of wrongdoings ( i.e., fraud, concealment, etc.) prejudiced the victim’s ability to pursue his or her civil claims.67 For example, allegations that the abuser or the abuser’s employer falsified government reports or obstructed a law enforcement investigation have been held to be sufficient;68 w hereas allegations that the victim’s employer withheld information that some of its employees abused others have been held to be insufficient.69

Other doctrines apply to prevent the limitation period on sexual abuse claims from beginning to tick until a later date. For example, while the statute of limitation for an intentional tort claim involving abuse is typically triggered on the date the tortious act is committed, the continuing tort doctrine applies when the acts are continuing or repeated.70 Specifically, it operates to prevent the limitation period from beginning to tick until the continually occurring tortious acts ( i.e., the abusive behavior) finally cease.71 It does not apply, however, when the victim merely suffers continuing effects from an original, completed act.72 Based on this distinction, this doctrine was held not to apply when there was a gap between the alleged sexual abuse that occurred while the victim lived with the abuser and the abuse that occurred after the victim moved out.73

Similarly, the statutorily based delayed discovery doctrine74 prevents the limitation period for claims based on fraud or intentional torts based on abuse from accruing until the victim either knows or should know that the final element occurred.75 The rationale is predicated on the overwhelming recognition “that the shock and confusion resultant from childhood molestation, often coupled with authoritative adult demands and threats for secrecy, may lead a child to deny or suppress such abuse from his or her consciousness.”76 To successfully invoke this doctrine, the victim must file suit within four years of the date he or she specifically alleges having realized the final element occurred.

Finally, traumatic amnesia is a judicially created extension of the delayed discovery doctrine that delays the accrual of intentional tort claims based on sexual abuse where the victim alleges that the delay in filing the suit stems from “traumatic amnesia” he or she suffered as a result of the abuse.77 It is also applicable to intentional tort claims against the abuser’s employer under a vicarious liability theory.78 Of course, a sexual abuse victim alleging to have sustained traumatic amnesia should at least have a good faith basis to make it, which likely requires having a professional or other qualified expert witness prepared to testify that the victim does, in fact, suffer from this condition.79

It is critical for an attorney to take the time to explore the motive behind his or her client’s desire to pursue his or her civil claims. Since a civil court has neither the authority to imprison the abuser nor the ability to reverse psychological harm, clients looking for these forms of relief will likely be disappointed regardless of the quality of lawyering provided. But if a victim is simply seeking money damages, then a civil suit may be appropriate. The role of the victim’s attorney in that determination is to gather information and apply it to the aforementioned emotion-free, cost-benefit analysis.

This is not to say that emotions have no place in a civil sexual abuse lawsuit. Once the trial begins, it can be cathartic for the victim to take the stand or listen to opening and closing arguments. Reason, however, is what should govern whether the suit is filed in the first place. If there is no reasonable expectation of securing a collectable judgment, then exposing the victim to the stresses of confronting the abuser in court or being subjected to cross-examination from the abuser’s employer unnecessarily exposes the victim to yet another traumatic experience.

1 M.C. Black, K.C. Basile, M.J. Breiding, S.G. Smith, M.L. Walters, M.T. Merrick, J. Chen & M.R. Stevens, National Center for Injury Prevention and Control, Centers for Disease Control and Prevention, National Intimate Partner and Sexual Violence Survey, 2010 Summary Report (Nov. 2011), available at (defining “rape” as “completed forced penetration, attempted forced penetration, or alcohol/drug facilitated forced penetration” and defining “sexual violence other than rape” as “unwanted sexual experiences involving touch, but not sexual penetration”).

2 Sexual abuse takes many forms and does not require penetration. For example, Florida Statutes permit the imposition of criminal punishment for engaging in a variety of activities, including the following: assault (Fla. Stat. §784.011); battery via fluid ( Fla. Stat. §784.085); luring a child into a home (Fla. Stat. §787.025); sexual battery (Fla. Stat. §794.011); lewd or lascivious battery (Fla. Stat. §800.04(4)); lewd or lascivious molestation (Fla. Stat. §800.04(5)); child abuse (Fla. Stat. §827.03); and sexual performance by a child (Fla. Stat. §827.071).

3 While this article refers to those who have experienced sexual abuse as “victims,” it is worth noting that some prefer to be referred to as “survivors.”

4 State v. Greaux, 977 So. 2d 614, 615 (Fla. 4th DCA 2008).

5 See, e.g., Schneider v. State, 972 So. 2d 1079, 1080 (Fla. 5th DCA 2008) (limiting a criminal court’s authority to award restitution under Fla. Stat. §775.089 to those “damages or losses which flow from the defendant’s criminal activity”).

6 Banks v. State, 732 So. 2d 1065, 1069 (Fla. 1999) (“While the victim’s wishes concerning restitution are relevant, they are not dispositive — it is the judge, not the victim, who must weigh society’s competing needs.”).

7 Kirby v. State, 863 So. 2d 238, 244 (Fla. 2003).

8 A victim’s receipt of an order of restitution does not bar the victim’s ability to pursue or obtain “any subsequent civil remedy or recovery, but the amount of such restitution shall be set off against any subsequent independent civil recovery.” Fla. Stat. §775.089(8).

9 The Federal Victims of Crime Act of 1984 (VOCA) established a Crime Victim’s Fund to compensate victims of violence by financing state-operated programs that pay for medical expenses and lost wages attributable to physical injuries resulting from certain crimes. See 42 U.S.C. §§10601 and 10602(3)(b)(1). Florida’s Division of Victim Services receives a VOCA grant, which is used to compensate eligible victims. Accordingly, one alternative to filing a civil suit may be to complete the following claims form: Office of the Attorney General, Bureau of Victim Compensation Claim Form,

10 Iglesia Cristiana La Casa Del Senor, Inc. v. L.M., 783 So. 2d 353, 356 (Fla. 3d DCA 2001) (holding that while sexual assaults and batteries by employees are generally insufficient to impose vicarious liability on the employer, “an exception may exist where the tortfeasor was assisted in accomplishing the tort by virtue of the employer/employee relationship”); Hennagan v. Department of High. Saf. & Motor Veh. , 467 So. 2d 748, 751 (Fla. 1st DCA 1985) (same). See also & Through W.W. v. Gulf Ridge Council Boy Scouts of Am., Inc., 529 So. 2d 1248, 1248 (Fla. 2d DCA 1988) (analyzing negligent retention and supervision claims); Garcia v. Duffy, 492 So. 2d 435, 440-41 (Fla. 2d DCA 1986) (analyzing negligent hiring and negligent retention claims in nonsexual abuse claim context).

11 Fla. R. Prof. Conduct 4-3.1 and 4-8.4(a), (c).

12 Fla. Stat. §57.105.

13 Wolfe v. Foreman, 128 So. 3d 67, 70-71 (Fla. 3d DCA 2013); Fernandez v. Haber & Ganguzza, LLP, 30 So. 3d 644, 646-47 (Fla. 3d DCA 2010).

14 Ball v. D’Lites Enterprises, Inc., 65 So. 3d 637, 638-41 (Fla. 4th DCA 2011). But see Delmonico v. Traynor, 116 So. 3d 1205, 1208 (Fla. 2013) (holding that a qualified privilege applies “to ex-parte, out-of-court statements” made “in the course of investigating a pending lawsuit” “so long as the alleged defamatory statements bear some relation to or connection with the subject of inquiry in the underlying lawsuit”).

15 Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 780 (Fla. 4th DCA 2006). See also Se. Mech. Servs., Inc. v. Brody, 657 F. Supp. 2d 1293, 1299 (M.D. Fla. 2009) (defining spoliation as the “intentional destruction of evidence or the significant and meaningful alteration of a document or instrument”).

16 Golden Yachts, 920 So. 2d at 781.

17 Sponco Mfg., Inc. v. Alcover, 656 So. 2d 629, 630 (Fla. 3d DCA 1995).

18 Brody, 657 F. Supp. 2d at 1299. See also Golden Yachts, 920 So. 2d 777 at 781.

19 Osmulski v. Oldsmar Fine Wine, Inc. , 93 So. 3d 389, 392-93 (Fla. 2d DCA 2012); Golden Yachts, 920 So. 2d at 777.

20 Fla. R. Civ. P. 1.190(f); Fla. Stat. §768.72.

21 Royal Caribbean Cruises, Ltd. v. Doe, 44 So. 3d 230, 233 (Fla. 3d DCA 2010) (interpreting Fla. Stat. §768.72(2)).

22 Fla. Stat. §768.72(2).

23 Royal Caribbean, 44 So. 3d at 233. See also Coronado Condo. Ass’n, Inc. v. La Corte, 103 So. 3d 239, 240-41 (Fla. 3d DCA 2012) (interpreting Fla. Stat. §768.72(3)).

24 Fla. Stat. §§768.72 and 768.725.

25 Pillsbury Company v. Conboy, 459 U.S. 248, 287-88 (1983) (Stevens, J., concurring); Fischer v. E.F. Hutton & Co., Inc. , 463 So. 2d 289, 290-91 (Fla. 2d DCA 1984).

26 Conboy, 459 U.S. at 273 (“It is, of course, black-letter law that a witness cannot assert a Fifth Amendment privilege not to testify ‘if the testimony sought cannot possibly be used as a basis for, or in aid of, a criminal prosecution against the witness”’) (Blackmun, J., concurring). See also McDonald v. State, 321 So. 2d 453, 455 (Fla. 4th DCA 1975).

27 Willhauck v. Flanagan, 448 U.S. 1323, 1325-26 (1980); State v. Gaines, 770 So. 2d 1221, 1225 (Fla. 2000).

28 C.f. Turner v. State, 37 So. 3d 212, 221 (Fla. 2010) (holding that “if a mistrial is the product of ‘manifest necessity’ or is declared at the voluntary request of a defendant, a retrial will not violate the Double Jeopardy Clause”).

29 City of St. Petersburg v. Houghton, 362 So. 2d 681, 685 (Fla. 2d DCA 1978).

30 Nell v. Int’l Union of Operating Engineers, Local No. 675, 427 So. 2d 798, 800 (Fla. 4th DCA 1983).

31 Boshnack v. World Wide Rent-A-Car, Inc., 195 So. 2d 216, 219 (Fla. 1967).

32 State v. McFadden, 772 So. 2d 1209, 1216 (Fla. 2000) (interpreting Fla. Stat. §90.610).

33 Fla. Const. art. X, §4.

34 Fla. Stat. §§726.105, 726.106.

35 Fla. Stat. §726.108(1)(a).

36 Fla. Stat. §726.108(1)(b).

37 Fla. Stat. §726.108(1)(c)(1).

38 Fla. Stat. §726.110.

39 Fla. Stat. §768.72(1) (“No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted.”).

40 Fla. R. Civ. P. 1.560.

41 Fla. Stat. §627.4137.

42 Fla. Stat. §627.381(1).

43 Lucente v. State Farm Mut. Auto. Ins. Co. , 591 So. 2d 1126, 1128 (Fla. 4th DCA 1992) (interpreting §627.7264, which was renumbered to §627.4137 on October 1, 1992).

44 Fla. Stat. §§624.09(1), 627.427.

45 Lorie v. Calderon, 982 So. 2d 1199, 1202 (Fla. 3d DCA 2008).

46 Grupo Radio Centro S.A.B. de C.V. v. Am. Merch. Banking Grp., Inc., 71 So. 3d 151, 151 (Fla. 3d DCA 2011).

47 Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, 20 U.S.T. 361, T.I.A.S. No. 6638 (Feb. 10, 1969).

48 Fla. Stat. §48.195.

49 Hearndon v. Graham, 767 So. 2d 1179, 1186 (Fla. 2000).

50 Fla. Stat. §95.031(1).

51 Houck Corp. v. New River, Ltd., Pasco, 900 So. 2d 601, 603 (Fla. 2d DCA 2005).

52 Id.

53 Id.

54 Beach v. Great Western Bank, 692 So. 2d 146, 152 (Fla. 1997).

55 Houck Corp., 900 So. 2d at 603.

56 Fla. Stat. §95.031(2).

57 S.A.P. v. State, Dep’t of Health & Rehabilitative Servs., 704 So. 2d 583, 587 (Fla. 1st DCA 1997). C.f. Woodburn v. State of Fla. Dep’t of Children & Family Servs., 854 F. Supp. 2d 1184, 1198 (S.D. Fla. 2011) (interpreting Fla. Stat. §95.051(1)(i) as a tolling mechanism rather than a statute of repose).

58 Fla. Stat. §95.011; Houck Corp., 900 So. 2d at 603.

59 Fla. R. Civ. P. 1.110(d); Lobrillo v. Brokken, 837 So. 2d 1059, 1060 (Fla. 3d DCA 2002).

60 Lobrillo, 837 So. 2d 1059 at 1061; Hood v. Hood, 392 So. 2d 924, 926 (Fla. 2d DCA 1980).

61 See, e.g., Fla. Stat. §95.051.

62 Id. See also M.J.O. Holding Corp. v. Heller, 97 So. 3d 864, 865 (Fla. 4th DCA 2012).

63 Fla. Stat. §95.051(1)(i). See also Fla. Stat. §95.11(9) (imposing no time limitation on sexual battery claims raised by victims who were under the age of 16 at the time of the battery) .

64 Fla. Stat. §95.0519(1)(a) .

65 Fla. Stat. §95.0519(1)(c) .

66 Rubio v. Archdiocese of Miami, Inc., 114 So. 3d 279, 281 (Fla. 3d DCA 2013); c.f. Florida Dept. of Health & Rehabilitative Serv. v. S.A.P., 835 So. 2d 1091, 1096-97 (Fla. 2002).

67 S.A.P., 835 So. 2d at 1096-97.

68 Id. Rubio v. Archdiocese of Miami, Inc., 114 So. 3d 279, 281 (Fla. 3d DCA 2013).

69 Rubio, 114 So. 3d at 281; John Doe No. 23 v. Archdiocese of Miami, Inc., 965 So. 2d 1186, 1187 (Fla. 4th DCA 2007).

70 Seaboard Air Line R. Co. v. Holt, 92 So. 2d 169, 170 (Fla. 1956); Suarez v. City of Tampa, 987 So. 2d 681, 685 (Fla. 2d DCA 2008); Halkey-Roberts Corp. v. Mackal, 641 So. 2d 445, 447 (Fla. 2d DCA 1994).

71 Laney v. American Equity Inv. Life Ins. Co., 243 F. Supp. 2d 1347, 1357 (M.D. Fla. 2003) (using Florida law); Boyce v. Cluett, 672 So. 2d 858, 860 (Fla. 4th DCA 1996).

72 Black Diamond Properties, Inc. v. Haines, 69 So. 3d 1090, 1094 (Fla. 5th DCA 2011) ( citing Horvath v. Delida, 540 N.W.2d 760, 763 (Mich. Ct. App. 1995)).

73 Sylk v. Rosenberg, 754 So. 2d 836, 837 (Fla. 3d DCA 2000); Tobin v. Damian, 772 So. 2d 13, 16 (Fla. 4th DCA 2000).

74 Fla. Stat. §§95.031(2)(a), 95.11(7).

75 Davis v. Monahan, 832 So. 2d 708 at 709-710 (Fla. 2002) (also applies to claims for products liability as well as those based on professional and medical malpractice). See also Fla. Stat. §95.11(7).

76 Hearndon, 767 So. 2d at 1186.

77 Davis, 832 So. 2d 708 at 711-12; Hearndon, 767 So. 2d 1179 at 1186; Estate of Cisko v. Diocese of Steubenville, 123 So. 3d 83, 84-85 (Fla. 3d DCA 2013), rev. den., SC13-2216 (Fla. 2014); Doe v. St. John’s Episcopal Parish Day Sch., Inc., 2014 WL 585767 at *3-4 (M.D. Fla. Feb. 12, 2014) .

78 Cisko, 123 So. 3d at 84-85; St. John’s, 2014 WL 585767 at *4-5.

79 Fla. R. Prof. Conduct 4-3.1.

Thomas S. Ward is an appellate practitioner and commercial litigator with Rennert Vogel Mandler & Rodriguez, P.A., in Miami. He graduated, cum laude , from the University of Miami’s School of Law. He is a member of The Florida Bar’s Appellate Court Rules Committee.