Blameless Ignorance Under Florida Law — A “Peculiarly Local Doctrine”
Those who represent injured plaintiffs seldom invoke equitable tolling, but maybe they should reconsider.[1] For several decades, Florida courts have excused plaintiffs who are unaware of the cause of their injuries from timely filing suit.[2] As the Florida Supreme Court put it:
Equitable tolling, which involves no misconduct on the part of the defendant, may delay the running of the limitations period based on the plaintiff’s blameless ignorance and the lack of prejudice to the defendant.[3]
This doctrine is barely acknowledged but entirely viable.[4] Admittedly, those who assert blameless ignorance must still meet a steep burden.[5] It is also evident that Florida courts have muddied the water on this issue.[6] Still, occasionally imprecise language should not doom a doctrine that precedent amply supports.[7] If, as some may argue, equitable tolling should not be viable, the Florida Supreme Court — not an eager litigant — should be the one to bury this “peculiarly local doctrine.”[8]
The doctrine currently known as equitable tolling, and formerly referred to as blameless ignorance, traces its roots to an old, little-known asbestos case.[9] The Supreme Court once held that a plaintiff who did not know the cause of his silicosis had timely sued under FELA and the Boiler Inspection Act.[10] The defendant asserted that “each intake of duty breath [was] a fresh ‘cause of action’” that triggered limitations.[11] But the Supreme Court held otherwise:
We do not think the humane legislative plan intended such consequences to attach to blameless ignorance.. . . There is no suggestion that Urie should have known he had silicosis at any earlier date.. . . Accordingly we agree with the view expressed by the Missouri Supreme Court. . . that Urie’s claim, if otherwise maintainable, is not barred by the statute of limitations.[12]
Urie v. Thompson, 337 U.S. 163 (1949), made quite an impact. Five years later, the Florida Supreme Court adopted Urie and deemed a medical malpractice claim timely.[13] The court in City of Miami v. Brooks, 70 So. 2d 306 (Fla. 1954), emphasized that “[t]here is a distinction. . . between notice of the negligent act and notice of its consequences.”[14] Because the plaintiff was unaware of the cause of her injuries, the clock did not start running on her claim.[15] Indeed, the court found that dismissing the case based on limitations would have been unjust:
To hold otherwise, under circumstances of this kind, would indeed be a harsh rule and prevent relief to an injured party who was without notice during the statutory period of any negligent act that might cause injury.[16]
Florida courts, relying on Urie, “have broadly adopted the discovery principle, holding in a variety of legal contexts that the statute of limitations begins to run when a person has been put on notice of his right to a cause of action.”[17] Florida courts have applied this rule to negligence,[18] professional malpractice,[19] sexual abuse,[20] breach of warranty,[21] secured transaction,[22] breach of contract,[23] conversion,[24] and retaliation claims.[25]
In Machules v. Department of Administration, 523 So. 2d 1132 (Fla. 1988), the Florida Supreme Court applied equitable tolling to an administrative proceeding brought by a former state employee. The employee mistakenly filed a grievance rather than an appeal of his termination.[26] He argued “that he should be permitted to file a late appeal under the doctrine of equitable tolling.”[27] The First District disagreed “but certified the question as one of great public importance.”[28] On appeal, the Florida Supreme Court recognized equitable tolling and quashed that decision.[29]
The court observed that, although there was no Florida case on tolling in administrative proceedings, federal courts applied equitable tolling in several different contexts.[30] The court found equitable tolling applicable for two reasons: 1) The employee was “misled or lulled into inaction by his [e]mployer, and his appeal to [the Department of Administration] raised the identical issue raised in the original timely claim filed in the wrong forum;”[31] and 2) the court deemed it reasonable to excuse a layperson from plainly “understanding which avenue of review to pursue when the [e]mployer itself acquiesced in the procedure chosen.”[32]
Florida courts quickly and consistently applied Machules.[33] For example, in Stewart v. Department of Corrections, 561 So. 2d 15, 16 (Fla. 4th DCA 1990), the court applied equitable tolling and excused a notice of appeal that was filed a day too late. Similarly, in Phillip v. University of Florida, 680 So. 2d 508, 509 (Fla. 1st DCA 1996), the court equitably tolled the deadline for an untenured employee to challenge his termination.[34]
Florida courts have extended Machules to civil cases.[35] Twenty-three years after Machules, the Florida Supreme Court identified equitable tolling as a theory that can “deflect the statute of limitations.”[36] The court also observed that equitable tolling “may delay the running of the limitations period based on the plaintiff’s blameless ignorance and the lack of prejudice to the defendant.”[37] The court cited only one case for that rule: Machules.[38]
Major League Baseball v. Morsani, 790 So. 2d 1071 (Fla. 2001), is the Florida Supreme Court’s most recent examination of equitable tolling.[39] In 2009, the 11th Circuit cited Morsani and acknowledged equitable tolling.[40] Although this opinion is unpublished, “it is nonetheless persuasive authority indicating how the [11th] Circuit has interpreted ‘equitable tolling’ under Florida law.”[41] Like the Florida Supreme Court in Morsani, the 11th Circuit expressly distinguished between and recognized both tolling and equitable tolling.[42]
Applying the blameless ignorance doctrine “to the accrual of a cause of action and, therefore, to the running of a statute of limitation is not new to Florida law.”[43] The standard is simple.[44] Limitations start running when a party “discovers, or reasonably should have discovered, facts alerting him of the existence of his cause of action.”[45] Until then, equitable tolling “delay[s] the running of the limitations period.”[46]
Equitable tolling is a doctrine utilized to prevent injustice.[47] It is also a doctrine that exists apart from statutory law.[48] The Florida Supreme Court observed that, other than the statutory tolling provided by §95.031, “there is no other statutory basis for the delayed discovery rule.”[49] But the court did not say that common law tolling was unavailable.[50] Rather, the court held that the blameless ignorance doctrine applied to a claim of childhood sexual abuse.[51]
Further, Florida courts have held that statutory tolling does not preclude injured plaintiffs from asserting common law tolling.[52] One appellate court held that nothing in F.S. §95.031 abrogated the Florida Supreme Court’s opinion in Creviston v. General Motors Corp., 225 So. 2d 331 (Fla. 1969).[53] In Creviston, the court followed Urie and applied the blameless ignorance doctrine to a warranty claim.[54] Equitable tolling is alive and well in Florida.[55] But equitable tolling is, despite its long history, almost a dormant doctrine outside of administrative proceedings. One may wonder, why?
Perhaps, a defendant will point to R.R. v. New Life Community Church of CMA, Inc., 303 So. 3d 916 (Fla. 2020), in which the Florida Supreme Court held that minor plaintiffs did not qualify for equitable tolling.[56] Nothing in R.R., however, nullifies prior decisions on equitable tolling.[57] Indeed, the Florida Supreme Court chose not “to decide the continuing validity of Hearndon, because the petitioners here do not qualify for the rule of that case.”[58] Hearndon v. Graham, 767 So. 2d 1179, 1184 (Fla. 2000), and Creviston are good law; equitable tolling is viable.[59]
Perhaps, a defendant will argue that Machules applies to administrative proceedings, and not to civil claims.[60] Three federal courts in Florida have reached this conclusion.[61] However, “none of these cases [have] offered an in-depth analysis of the rationale that would justify the availability of the doctrine of equitable tolling in the context of an administrative law proceeding, but not in the context of a civil action.”[62] None of these cases mention the 11th Circuit’s opinion on equitable tolling.[63] Each of these cases is an Erie guess[64] regarding Florida law.[65] And the U.S. District Court for the Middle District of Florida later declined to follow each of these three cases.[66]
In HCA Health Servs. of Fla., Inc. v. Hillman, 906 So. 2d 1094, 1098 (Fla. 2d DCA 2004), one Florida appellate court decided “not to expand Machules beyond the administrative law context.” But “a careful reading of Hillman suggests that the Second District Court of Appeal did not intend its opinion to stand for the proposition that equitable tolling would be unavailable in any case, regardless of the specific facts presented.”[67] In any event, Hillman is in tension with the Florida Supreme Court’s favorable citation of Machules in Morsani.[68]
Equitable tolling is a forgotten but valid rule. In appropriate cases, and based on a proper factual record, Florida courts should toll limitations for claims brought by those harmed by another. For now, Florida courts should disallow parties and their attorneys from prematurely — and incorrectly — announcing the death of equitable tolling.[69]
[1] See H. Michael Muñiz, Tolling or Suspending the Florida Statutes of Limitations Pursuant to Applicable Law, 92 Fla. B. J. 25, 28 (2018) (“Accordingly, when necessary, Florida litigants should properly recognize the statutes of limitations tolling exceptions to the circumstances expressed by the legislature in F.S. §95.051. These exceptions include equitable tolling as expressed in Machules.”).
[2] Urie v. Thompson, 337 U.S. 163, 170-71 (1949); see also Major League Baseball v. Morsani, 790 So. 2d 1071, 1076-77 & n.11 (Fla. 2001); Machules v. Dep’t of Admin., 523 So. 2d 1132, 1135 (Fla. 1988).
[3] Morsani, 790 So. 2d at 1076-77 n.11 (emphasis added) (citing Machules, 523 So. 2d at 1132).
[4] See Muñiz, Tolling or Suspending at 28.
[5] See Affco New Zealand, Ltd. v. Am. Fine Foods Corp., 913 F. Supp. 2d 1331, 1338 (S.D. Fla. 2012). (Misconduct by a defendant is not required for equitable tolling to apply.) See, e.g., Lupola v. Lupola, 179 So. 3d 497, 500 (Fla. 1st DCA 2015).
[6] Butler Univ v. Bahssin, 892 So. 2d 1087, 1091 n.3 (Fla. 2d DCA 2004) (“The delayed discovery doctrine, sometimes called the ‘blameless ignorance’ doctrine, delays the accrual of a cause of action.”); see also Carroll v. Thestreet.com, Inc., No. 11-CV-81173, 2014 WL 5474061, at *6 n.3 (S.D. Fla. July 10, 2014) (“As explained above, considering courts’ fumbling of the doctrines of accrual, statutory tolling, equitable tolling, and equitable estoppel, the Court’s misstatement was not without reason.”).
[7] See Carroll, 2014 WL 5474061, at *8 ([T]he Court finds the application of equitable tolling is in the interests of justice, and holds that Carroll’s claim against Third Point is not barred by the statute of limitations.” (footnote omitted)); see also Starling v. R.J. Reynolds Tobacco Co., 845 F. Supp. 2d 1215, 1238-39 (M.D. Fla. 2011) (“[T]his Court’s close reading of Machules leads it to conclude that the Florida Supreme Court did not intend to limit the applicability of equitable tolling to administrative proceedings.”).
[8] Prather v. Neva Paperbacks, Inc., 446 F.2d 338, 340 (5th Cir. 1971). (In Prather, the Fifth Circuit upheld summary judgment because “the plaintiff did not allege facts which if true would justify tolling the statute of limitations.”) Id. at 341.
[9] I use the terms “blameless ignorance” and “equitable tolling” interchangeably. See Carroll, Inc., 2014 WL 5474061, at *4 (“[T]he blameless ignorance doctrine. . . is part of the doctrine of equitable tolling.”).
[10] Urie v. Thompson, 337 U.S. 163, 170-71 (1949).
[11] Id. at 170.
[12] Id. at 170-71 (emphasis added) (footnote omitted).
[13] City of Miami v. Brooks, 70 So. 2d 306, 308-09 (Fla. 1954).
[14] Id. at 308.
[15] Id. at 309.
[16] Id. (emphasis added); see also Salvaggio v. Austin, 336 So. 2d 1282, 1284 (Fla. 2d DCA 1976) (reversing summary judgment on limitations).
[17] Jones v. Childers, 18 F.3d 899, 906 (11th Cir. 1994) (footnote omitted).
[18] Lund v. Cook, 354 So. 2d 940, 942 (Fla. 1st DCA 1978); see also Hawkins v. Wa. Shores Sav. Bank, 509 So. 2d 1314, 1314-16 (Fla. 5th DCA 1987).
[19] Toledo Park Homes v. Grant, 447 So. 2d 343, 344 (Fla. 4th DCA 1984).
[20] Hearndon v. Graham, 767 So. 2d 1179, 1184 (Fla. 2000) (per curiam).
[21] Creviston v. General Motors Corp., 225 So. 2d 331, 332-33 (Fla. 1969).
[22] Miami Beach First Nat’l Bank v. Edgerly, 121 So. 2d 417, 418-19 (Fla. 1960).
[23] Drake v. Island Comm. Church, Inc., 462 So. 2d 1142, 1145 (Fla. 3d DCA 1984), overruled on other grounds, R.R. v. New Life Cmty. Church of CMA, 303 So. 3d 916, 918 (Fla. 2020).
[24] Branford St. Bank v. Hackney Tractor Co., 455 So. 2d 541, 542 (Fla. 1st DCA 1984) (per curiam); Senfeld v. Bank of Nova Scotia Tr. Co., 450 So. 2d 1157, 1163 (Fla. 3d DCA 1984).
[25] Harris v. Dist. Bd. of Trs. of Polk Comm. Coll., 9 F. Supp. 2d 1319, 1328 (M.D. Fla. 1998).
[26] Machules, 523 So. 2d at 1133.
[27] Id.
[28] Id.
[29] Id.
[30] Id. at 1134.
[31] Id.
[32] Id. at 1135 (footnote omitted); see also Ross Stafford Burnaman, Equitable Tolling in Florida Administrative Proceedings, 74 Fla. B. J. 60, 60-62 (2000) (discussing Machules and subsequent cases); Scott Shirley, In Search of a Clear Point of Entry, 68 Fla. B. J. 61, 64 (1994) (same).
[33] See Stewart v. Dep’t of Corrs., 561 So. 2d 15 (Fla. 4th DCA 1990) (per curiam).
[34] “Accordingly, the final order is set aside and the case is remanded.” But see Vantage Healthcare Corp. v. Agency for Health Care Admin., 687 So. 2d 306, 307 (Fla. 1st DCA 1997) (“The facts of this case do not present an appropriate case for the application of the doctrine of equitable tolling.”); Envtl. Res. Assocs. of Fla., Inc. v. State, Dep’t of Gen. Servs., 624 So. 2d 330, 331 (Fla. 1st DCA 1993) (“There is nothing extraordinary in the failure to timely file in this case.”).
[35] See Major League Baseball v. Morsani, 790 So. 2d 1071 (Fla. 2001).
[36] Id. at 1076.
[37] Id. at 1076-77 n.11 (emphasis added) (citing Machules, 523 So. 2d at 1132).
[38] Id. As one practitioner aptly noted, Machules “has been an undisturbed material part of Florida’s common law jurisprudence for 30 years.” See Muñiz, Tolling or Suspending at 28 (emphasis added).
[39] See Morsani, 790 So. 2d at 1071-80.
[40] Aruanno v. Martin County Sheriff, 343 F. App’x 535, 537 n.2 (11th Cir. 2009) (unpublished); see also In re: Engle Cases, 45 F. Supp. 3d 1351, 1364 (M.D. Fla. 2014) (“[T]his Court follows Judge Dalton’s reasoning in Starling and concludes that equitable tolling can apply in civil actions.”); Starling, 845 F. Supp. 2d at 1233 (“Accordingly, the Court finds that ‘equitable tolling’ saves Mrs. Starling’s claim.” (footnote omitted)); see List Indus., Inc. v. Wells Fargo Bank, N.A., Case No. 17-cv-61204-GAYLES, 2018 WL 4334876, at *3 (S.D. Fla. Sept. 11, 2018) (acknowledging that equitable tolling is viable in the 11th Circuit).
[41] Starling, 845 F. Supp. 2d at 1239 n.4 (order denying defendants’ motion for reconsideration of the court’s order denying judgment on the pleadings).
[42] Aruanno, 343 F. App’x at 537 n.2; see also Starling, 845 F. Supp. 2d at 1238 (noting that in Morsani, “the court included an explanatory footnote, describing how each distinctively operated to ‘toll’ the statute of limitations.”).
[43] Hearndon, 767 So. 2d at 1184 (emphasis added); see also Hawkins v. Wa. Shores Sav. Bank, 509 So. 2d 1314, 1315 (Fla. 5th DCA 1987) (acknowledging “[t]he well established discovery rule.”).
[44] See Jones, 18 F.3d at 906.
[45] Id.
[46] Morsani, 790 So. 2d at 1077 n.11.
[47] Carroll v. TheStreet.com, Inc., No. 11-CV-81173, 2014 WL 5474061, at *8 (S.D. Fla. July 10, 2014). (Put another way, “Florida courts have also tolled the statute of limitations when equity requires it.”). Affco New Zealand, Ltd., 913 F. Supp. 2d at 1338.
[48] E.g., Carroll, 2014 WL 5474061, at *6 (“The Florida Supreme Court has made it clear that equitable tolling is a legal theory that may operate to deflect the statute of limitations.”) (citing Morsani, 790 So. 2d at 1076).
[49] Davis v. Monahan, 832 So. 2d 708, 710 (Fla. 2002).
[50] See id.
[51] Id. (noting that “the [l]egislature did not specifically provide for delayed accrual.”).
[52] See, e.g., Lund, 354 So. 2d at 942; see Rowland v. Conyers, No. 4:10cv64-RH/GRJ, 2013 WL 704860, at *3 (N.D. Fla. Feb. 26, 2013) (stating that Machules “puts to rest the assertion that the statute’s list of tolling circumstances is exhaustive.”). Although the court in Rowland acknowledged equitable tolling, it also granted dismissal and concluded that “[t]his is a weak case for equitable tolling.” 2013 WL 704860, at *3.
[53] Lund, 354 So. 2d at 942 (analyzing the applicability of Creviston v. General Motors Corp., 225 So. 2d 331 (Fla. 1969)).
[54] Creviston, 225 So. 2d at 333.
[55] Id.; see also Davis, 832 So. 2d at 710; see Carroll, 2014 WL 5474061, at *8 (characterizing equitable tolling as an equitably remedy that “continue[s] to exist outside the purview of modern statutes.”). But see Wagner, Nugent, Johnson, Roth, Romano, Erikson & Kopfer, P.A. v. Flanagan, 629 So. 2d 113, 114 (Fla. 1993) (distinguishing Creviston “by its own terms” and declining to apply the blameless ignorance doctrine).
[56] R.R., 3030 So. 3d at 924-25.
[57] See id.
[58] Id. at 925 (emphasis added).
[59] See Creviston, 225 So. 2d at 333; see Venetia Condo. Ass’n, Inc. v. Westchester Surplus Lines Ins. Co., No. 22-23030-CIV-MARTINEZ, 2023 WL 2470897, at *5 (S.D. Fla. Feb. 28, 2023) (acknowledging the viability of equitable tolling, but concluding it did not apply in that case); Razor Capital, LLC v. CMAX Fin. LLC, No. 17-80388-CIV-MARRA, 2017 WL 3481761, at *4 n.8 (S.D. Fla. Aug. 14, 2017) (“[E]quitable tolling is available under Morsani.”); Washington v. Keitz, No. 2:14-CV-14470-ROSENBERG, 2015 WL 11251907, at **3-4 (S.D. Fla. June 30, 2015) (acknowledging the existence of equitable tolling but holding that Plaintiffs were not entitled to that “extraordinary remedy.”). In any event, the Florida Supreme Court neither silently nor secretly overrules precedent. See Greater Loretta Improvement Ass’n v. State ex rel. Boone, 234 So. 2d 665, 668 (Fla. 1970) (“We cannot declare the Bingo law unconstitutional unless we overrule Lee v. City of Miami, …and this would do violence to the time-honored doctrine of stare decisis.”); see Starling, 845 F. Supp. 2d at 1238 (“If the Florida Supreme Court intended to limit the doctrine of equitable tolling to the administrative law context, it could have so indicated.”).
[60] See Pierson v. Orlando Reg’l Healthcare Sys., Inc., No. 6:08-cv-466-Orl-28GJK, 2010 WL 1408391, at *15 n.18 (M.D. Fla. Apr. 6, 2010) (concluding that equitable tolling “does not apply outside the administrative setting.” (citation omitted)).
[61] Id.; see also Socas v. Northwestern Mut. Life Ins. Co., 829 F. Supp. 2d 1262, 1275 (S.D. Fla. 2011); Watson v. Paul Revere Life Ins. Co., No. 11-21492-CIV, 2011 WL 5025120, at *4 (S.D. Fla. Oct. 21, 2011).
[62] Starling, 845 F. Supp. 2d at 1236.
[63] Socas, 829 F. Supp. 2d at 1262-76; Watson, 2011 WL 5025120, at **1-5; Pierson, 2010 WL 1408391, at **1-29.
[64] Erie R.R. Co. v. Tompkins, 304 U.S. 64, 71-72 (1938).
[65] See Mosher v. Speedstar Div. of AMCA Int’l, Inc., 52 F.3d 913, 917 (11th Cir. 1995) (“While we could make an Erie guess as to the effect of Acosta on the reliance doctrine, we have determined that the better course is to submit the issue to the Florida Supreme Court.”).
[66] Starling, 845 F. Supp. 2d at 1236-40.
[67] Id. at 1237-38.
[68] See id.; see also Muñiz, Tolling or Suspending at 25-28.
[69] See re: Engle Cases, 45 F. Supp. 3d at 1364 (deeming arguments for and against equitable tolling “reasonable interpretations of the relevant statutory and caselaw,” and concluding “that equitable tolling can apply in civil actions”).
Michael M. Gallagher is a briefing attorney at Morgan & Morgan, P.A. A former federal law clerk, he focuses his practice on preparing motions and briefs for plaintiffs in product liability and personal injury cases in state and federal courts. He has published several articles in law reviews and law journals. He received his B.A. in 2000 from Georgetown University, and J.D. in 2003 from the University of Houston Law Center. Gallagher served as law clerk to Judge Richard A. Schell, U.S. District Court, Eastern District of Texas (2003-04). The views in this article are the author’s alone and are not the views of any affiliated lawyers, law firms, or clients.
This column is submitted on behalf of the Administrative Law Section, Marc Ito, chair, and Lyyli Van Whittle, editor.
