Equitable Tolling – a Limited Exception to the Statute of Limitations
Equitable tolling is a judicially created legal doctrine that, if applicable, can save a plaintiff’s otherwise untimely claim from being dismissed. Courts have used several names to identify the doctrine, including the “blameless ignorance” doctrine or the “delayed discovery rule.” However, for purposes of this article the doctrine will be referred to as equitable tolling. A statute of limitations is a law that prevents the enforcement of a cause of action that has accrued once a certain amount of time has passed.
Florida’s Statute of Limitations, requires that injured plaintiffs bring their claims within a certain time frame and, if they do not, their ability to go to court over such claims is cut off. See Fla. Stat. § 95.11. For example, a breach of contract claim based on a written agreement must be brought within five years. See Fla. Stat. § 95.11(2)(b). “[T]he time within which an action shall be begun under any statute of limitations runs from the time the cause of action accrues.” Fla. Stat. § 95.031.
In most, but not all cases, “[a] cause of action accrues when the last element constituting the cause of action occurs.” Fla. Stat. § 95.031(1). Problems can arise when the injured party is not aware “the last element constituting the cause of action [has] occur[ed]” and thus is not aware the statute of limitations has begun to run. Nevertheless, claims that are brought past the applicable limitation period are ordinarily subject to dismissal. See Aquatic Plant Mgmt., Inc. v. Paramount Eng’g, Inc., 977 So. 2d 600, 604 (Fla. 4th DCA 2007).
The Equitable Tolling Doctrine
For several decades, Florida courts have applied the equitable tolling doctrine to excuse plaintiffs from timely filing suit where they were unaware of the cause of their injuries. There will likely be renewed interest in this doctrine because in 2023—in a massive give to insurance companies and other corporations—Florida’s Legislature amended the Statute of Limitations to severely shorten the deadlines for bringing certain claims. For example, claims based on negligence went from a four year limitation to a two year limitation. See Fla. Stat. § 95.11(4)(a).
Thus plaintiff attorneys may increasingly turn to the equitable tolling doctrine in an attempt to save their client’s otherwise untimely claim. As the Florida Supreme Court has stated, “[e]quitable 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.” Major League Baseball v. Morsani, 790 So. 2d 1071, 1076–77 & n.11 (Fla. 2001) (citation omitted).
Equitable tolling is a doctrine utilized to prevent injustice. See Carroll v. TheStreet.com, Inc., No. 11-CV-81173, 2014 WL 5474061, at *8 (S.D. Fla. July 10, 2014) (“Florida courts have also tolled the statute of limitations when equity requires it.”). It does this by “tolling” the statute of limitations. See Ramirez v. McCravy, 4 So. 3d 692, 694 (Fla. 3d DCA 2009) (“To toll means to suspend or interrupt.”). In other words, “[t]he delayed discovery doctrine, sometimes called the ‘blameless ignorance’ doctrine, delays the accrual of a cause of action.” Butler Univ. v. Bahssin, 892 So. 2d 1087, 1091 n.3 (Fla. 2d DCA 2004).
However, to be clear, establishing that equitable tolling applies to a particular case is a high burden. If it were not, the exception would shallow the rule and the statute of limitations would be rendered meaningless. So please, no calls about things that happened ten years ago. In such instances, it would be near impossible to establish that the defendant would not be prejudiced by allowing the claim.
For example, after ten years, memories fade, which will make it hard to determine what actually happened. Even worse, vital witnesses may have died in the interim. Rather, the equitable tolling doctrine is more likely to apply where the statute of limitations has only recently passed.
History and Development
The equitable tolling doctrine traces its roots to an obscure asbestos case decided by the United States Supreme Court. In Urie v. Thompson, 337 U.S. 163, 170–71 (1949), the Court held that a plaintiff who did not know the cause of his silicosis had timely sued under applicable Federal law. Several years later, in City of Miami v. Brooks, 70 So. 2d 306, 308–09 (Fla. 1954), the Florida Supreme Court adopted Urie and deemed a medical malpractice claim timely.
Since then, Florida courts, relying on Urie, “have broadly adopted [equitable tolling a/k/a] 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.” Jones v. Childers, 18 F.3d 899, 906 (11th Cir. 1994) (footnote omitted). Indeed, Florida courts have applied equitable tolling to several different types of claims.
For example, particularly relevant to 2023 amendment to the statute of limitations, equitable tolling has been applied to negligence claims. See Lund v. Cook, 354 So. 2d 940, 942 (Fla. 1st DCA 1978); Hawkins v. Wa. Shores Sav. Bank, 509 So. 2d 1314, 1314–16 (Fla. 5th DCA 1987). It has been applied to professional malpractice claims. See Toledo Park Homes v. Grant, 447 So. 2d 343, 344 (Fla. 4th DCA 1984). It has been applied to sexual abuse claims. See Hearndon v. Graham, 767 So. 2d 1179, 1184 (Fla. 2000) (per curiam); Davis v. Monahan, 832 So. 2d 708, 710 (Fla. 2002).
Equitable tolling has also been applied to breach of warranty claims. See Creviston v. General Motors Corp., 225 So. 2d 331, 332–33 (Fla. 1969). It has been applied to claims involving secured transactions. See Miami Beach First Nat’l Bank v. Edgerly, 121 So. 2d 417, 418–19 (Fla. 1960). It has been applied to retaliation claims. See Harris v. Dist. Bd. of Trs. of Polk Comm. Coll., 9 F. Supp. 2d 1319, 1328 (M.D. Fla. 1998).
Equitable tolling has been applied to breach of contract claims. See 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). It has also been applied to conversion claims. See 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).
In Machules v. Dep’t of Admin., 523 So. 2d 1132, 1135 (Fla. 1988), the Florida Supreme Court applied equitable tolling to an administrative proceeding brought by a former state employee. Since then, Florida courts have consistently applied Machules. For example, in Stewart v. Dep’t of Corrs., 561 So. 2d 15, 16 (Fla. 4th DCA 1990) (per curiam), the court applied equitable tolling and excused a notice of appeal that was filed a day too late. Similarly, in Phillip v. Univ. 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.
The Florida Supreme Court most recently examined equitable tolling in Major League Baseball v. Morsani, 790 So. 2d 1071 (Fla. 2001). In that case, the Court extended Machules to civil cases, identifying equitable tolling as a theory that can “deflect the statute of limitations.” Id. at 1076. 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.” Id. at 1076–77 n.11 (citing Machules, 523 So. 2d at 1132).
It has been noted that Machules “has been an undisturbed material part of Florida’s common law jurisprudence for 30 years.” H. Michael Muñiz, Tolling or Suspending the Florida Statutes of Limitations Pursuant to Applicable Law, 92 Fla. B. J. 25, 28 (2018). Applying the equitable tolling 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.” Hearndon v. Graham, 767 So. 2d 1179, 1184 (Fla. 2000).
Operation and Continued Validity of the Equitable Tolling Doctrine
“The Florida Supreme Court has made it clear that equitable tolling is a legal theory that may operate to deflect the statute of limitations.” Carroll, 2014 WL 5474061, at *6 (citing Morsani, 790 So. 2d at 1076). “Equitable tolling is a type of equitable modification which focuses on the plaintiff’s excusable ignorance of the limitations period and on the lack of prejudice to the defendant.” Lupola v. Lupola, 179 So. 3d 497, 500 (Fla. 1st DCA 2015).
“Generally, the tolling doctrine has been applied when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum.” Gonzalez v. Florida Dep’t of Fin. Servs., 60 So. 3d 469, 471 (Fla. 3d DCA 2011) (quotation omitted). See also, Whiting v. Florida Dep’t of Law Enforcement, 849 So. 2d 1149, 1151 (Fla. 5th DCA 2003) (same).
When it applies, the operation of equitable tolling is simple. Limitations start running when a party “discovers, or reasonably should have discovered, facts alerting him of the existence of his cause of action.” Jones, 18 F.3d at 906. Until then, equitable tolling “delay[s] the running of the limitations period.” Morsani, 790 So. 2d at 1077 n.11.
As noted, equitable tolling is a judicially created doctrine, which exists apart from statutory law. 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.”). This is relevant because that are some statutory exceptions that also toll the statute of limitations. See Fla. Stat. § 95.051.
Specifically, Fla. Stat. § 95.051 contains a list of circumstances that can toll the running of the statute of limitations. That Statute and those grounds are beyond the focus of this article. However, it does states, “[a] disability or other reason does not toll the running of any statute of limitations except those specified in this section … the Florida Probate Code, or the Florida Guardianship Law.” Fla. Stat. § 95.051(2) (emphasis added).
Do not expect corporate lawyers to go silently into that good night. They have argued that equitable tolling is a “other reason” for tolling the statute of limitations and since it is not listed in Fla. Stat. § 95.051 there is no authority for the doctrine. See Muñiz, Tolling or Suspending the Florida Statutes of Limitations Pursuant to Applicable Law, 92 Fla. B. J. at 28.
However, as one court noted, Machules “puts to rest the assertion that the statute’s list of tolling circumstances is exhaustive.” Rowland v. Conyers, No. 10-cv-64-RH/GRJ, 2013 WL 704860, at *3 (N.D. Fla. Feb. 26, 2013). Moreover, it is generally accepted that legislative inaction can be taken as an indication of the legislature’s acceptance of a court’s prior construction of a statute. See White v. Johnson, 59 So. 2d 532, 533 (Fla. 1952). Since Florida’s legislature has not amended Fla. Stat. § 95.051 to overrule Machules, issued over 35 years ago, equitable tolling remains a viable doctrine under Florida law.
In HCA Health Servs. of Fla., Inc. v. Hillman, 906 So. 2d 1094, 1098 (Fla. 2d DCA 2004), one Florida court decided “not to expand Machules beyond the administrative law context.” Relying on this decision, some have argued that equitable tolling, as explained in Machules, is limited to administrative proceedings only. However, “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.” Starling v. R.J. Reynolds Tobacco Co., 845 F. Supp. 2d 1215, 1237–38 (M.D. Fla. 2011).
Rather, “the 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.” Starling, 845 F. Supp. 2d at 1238–39. See also, In re: Engle Cases, 45 F. Supp. 3d 1351, 1364 (M.D. Fla. 2014) (“[T]his Court follows … [the] reasoning in Starling and concludes that equitable tolling can apply in civil actions.”). In any event, Hillman is in tension—if not in direct conflict—with the Florida Supreme Court’s favorable discussion of equitable tolling in Machules and Morsani. See Starling, 845 F. Supp. 2d at 1237–38. More importantly, “[i]f the Florida Supreme Court intended to limit the doctrine of equitable tolling to the administrative law context, it could have so indicated.” Id. at 1238.