Moise v. Disney Pop Century Resort / WDW WC Department
William H. Rogner
Statute of Limitations/ Dismissal for Failure to Prosecute Bill Rogner (4-30-18) The DCA affirmed the JCC’s dismissal of PFBs filed after a Motion to Dismiss for failure to prosecute, but before the Order dismissing the prior PFBs. However the DCA wrote to clarify that a JCC need not find the subsequent PFB was filed with the intent to toll the Statute, as had been suggested in Akers v. State of Florida. Claimant filed PFBs on separate 2011 and 2013 claims. The claims were subsequently withdrawn following mediations in 2013 and 2015, with fees and costs reserved. The E/C subsequently filed Motions to Dismiss for failure to prosecute, but prior to the Order dismissing those PFBs, the claimant filed additional PFBs. The E/C asserted SOL as to these PFBs, and the JCC subsequently agreed those PFBs were barred by the SOL after the earlier fee/costs claims were dismissed for failure to prosecute. (claimant did not appeal that decision). However, the JCC noted the facts were similar to Akers, and found the later PFBs were filed with the intent to toll the SOL. The DCA rejected this reasoning, deeming the intent in filing the PFB irrelevant. Instead, they clarified that Limith v. Lenox on the Lake, 163 So. 3d 616 (Fla. 1st DCA 2015)(also a Bill Rogner/HRMCW case) controls. Once the JCC grants a motion to dismiss which extinguishes pending claims, and that ruling becomes final, the subsequent PFBs are retroactively barred by operation of the SOL, and are a nullity. The DCA noted that to accept claimant’s argument that subsequent PFBs may toll the SOL in this instance would allow a party to avoid dismissal in every case by filing a new PFB once the Motion to Dismiss is filed. They noted the lack of record activity and lack of good cause are contingencies within the claimant’s control.
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