Opinion
11-23-1987
Caster v. Hennessey
Before JOHNSON and EDMONDSON, Circuit Judges, and HOFFMAN, Senior District Judge. : Plaintiff-appellant, Paul Caster, appeals from a verdict directed in favor of the defendant-appellees in appellant's libel and slander action. FACTS Caster began work for the appellee, St. Mary's Hospital in West Palm Beach, Florida, on November 10, 1985. Caster was hired by appellee Thomas H. Hennessey, the chief executive officer at St. Mary's, as fiscal services director for the hospital. During the course of his employment, Caster supervised approximately one hundred people and was charged to develop more credibility with respect to financial reports and operating activities of the facility. Appellant's employment by St. Mary's Hospital was terminated on November 18, 1977. His re-employment efforts began shortly thereafter by responding to advertisements and submitting applications. Appellant testified that the resume which he distributed to potential employers listed his work at St. Mary's, and that he sometimes divulged to interviewers that Hennessey had been his immediate supervisor. It was estimated by the appellant that he submitted thousands of job applications between the fall of 1977 and sometime in 1981. After these numerous failures to secure employment, the appellant attempted to ascertain the reason why he was not being hired from people with whom he had applied for such positions, such as employment agencies. Caster never contacted the hospital concerning the matter. During a prior suit challenging his termination, which resulted in a directed verdict for the defendants, Caster v. Hennessey, CIV NO. 80-8148 (S. D. Fla.), aff'd, 727 F.2d 1075 (11th Cir. 1984), appellant first became aware of the alleged injurious act for which this suit was commenced. In that prior suit, appellant attempted to discover the contents of his personnel file, but the request was denied by the defendants. By order dated June 3, 1982, the district court granted the appellant's motion to compel. This personnel file contained a document title, "St. Mary's Hospital Employee Separation," bearing the date of March 2, 1978. The report stated that the reason for leaving was "[i]nsubordination and declining standard of performance," and made a reference to Caster being in below average health. There was also a printed question on the report which said "Hospital Property Returned?" under which the selection "No" was checked. Appellant testified that he first learned of the separation report after the motion to compel was granted. It was upon this report that the appellant brought this suit alleging libel and slander on November 30, 1982. An attempt to amend his complaint to include a count of "placement in false light" to prospective employers and others were made on April 22, 1985. Such motion was denied by the court for failure to specify the reason for delay in filing. A judgment was entered in favor of the appellee's under the four-year statute of limitations for libel and slander. Fla. Stat. Ann. § 95.11(3)(o)(1982), amended by Fla. Stat. Ann. § 95.11(4)(g)(Cum. Supp. 1987). The district court concluded that the appellant failed to show any publication after November 30, 1978, and therefore the cause was barred by the statute of limitations at the time of filing on November 30, 1982. Whether the statute of limitations did in fact bar the cause of action is the primary issue on appeal. Discussion The statute applicable to this case, Fla. Stat. Ann. § 95.11 (1982), amended by Fla. Stat. Ann. § 95.11(4)(g)(Cum. Supp. 1987), reads: (3) Within four years. -- (o) An action for libel, slander, assault, battery, false arrest, malicious prosecution, malicious interference, false imprisonment, or any other intentional tort, except as provided in subsection (5). A statute of limitations begins to run "from the time the cause of action accrues." Fla. Stat. Ann. § 95.031 (1982), amended by Fla. Stat. Ann. § 95.031 (Cum. Supp. 1987). Accrual of the cause of action occurs "when the last element constituting the cause of action occurs." Fla. Stat. Ann. § 95.031(1)(1982). Although this language may help to some degree, we must turn to the relevant case law to determine if the discovery rule is applicable to a libel and slander cause of action. Since there are no Florida decisions exactly on point, this court sitting in diversity must predict what the Supreme Court of Florida would hold when confronted with this issue. First National Life Insurance Co. v. Fidelity & Deposit Co., 525 F.2d 966, 968 (5th Cir. 1976). The district court relied on two Florida District Court of Appeal decisions in finding that the statute of limitations began to run upon publication. In Galizzi v. Williams, 218 So.2d 499 (Fla. 2d Dist. Ct. App. 1969), the appellate court affirmed the summary judgment of the defendant in a slander cause of action. Galizzi, however, is only a one paragraph opinion where the statute of limitations was found to begin to run upon publication. Id. at 500. Due to the brevity of this decision it is unclear whether or not the court considered a concealment question, and thus the case is far from controlling on the issue of the case at bar. The second case, Houston v. Florida-Georgia Television Co., 192 So.2d 540 (Fla. 1st Dist. Ct. App. 1966), involved the issue of when the limitations period begins to run in an invasion of privacy action -- from the time when the invasion was committed or from the point when the plaintiff first learned of the alleged invasion. Without the plaintiff's consent, the defendant television company had filmed the plaintiffs as they watched a moonshine raid on a nearby barn. This film was televised later in the day accompanied by narration describing the raid. The plaintiffs alleged that they first became aware of the telecast on a date within the four-year statute of limitations period, rather than at the time of the telecast which was beyond four years. Id. at 542. The Houston court relied on "37 Corpus Juris, Limitations of Actions, page 969, par. 350" for the proposition that ignorance of when the statute begins to run is no excuse for want of diligence. Houston, 192 So.2d at 543. Summary judgment for the defendant television company was affirmed by the court determining that the statute began to run upon publication. There was no concealment of the alleged invasion found by the court, but quite the opposite since this was televised over a public channel. Id. As with Galizzi, we feel that the Houston decision is improper precedent for this case. The Houston facts, where the alleged invasion is televised, are at the opposite end of the spectrum from this libel and slander action where the alleged injurious acts is concealed in a discharge report to which the plaintiff had no access. Furthermore, the same District Court of Appeal which decided Houston adopted a discovery rule in two subsequent cases. Branford State Bank v. Hackney Tractor Co., 455 So.2d 541 (Fla. 1st Dist. Ct. App. 1984) (statute of limitations did not begin to run at the time of the alleged conversion where there was no showing that the bank knew, or should have known, of an invasion of its legal rights); Lund v. Cook, 354 So.2d 940 (Fla. 1st Dist. Ct. App.) (statute of limitations began to run at the time the plaintiff knew or should have known of the existence of the defects, rather than at the time of the delivery of the survey and plat to the plaintiffs), cert. denied, 360 So.2d 1247 (Fla. 1978). Our primary reason for declining to follow Galizzi and Houston is that they precede the Supreme Court of Florida case of Creviston v. General Motors Corp., 225 So.2d 331 (Fla. 1969), which we conclude is controlling on this statute of limitations issue. Creviston was a breach of warranty action in which the door of a refrigerator injured the plaintiff when it fell off after the upper hinges came apart. The district court found that the three-year statute of limitations barred the action, because the accident occurred four years and ten months after the refrigerator was purchased. Id. at 331-32. The Supreme Court of Florida reversed the district court holding that the statute of limitations began to run when the plaintiff discovered or should have discovered the defect. After a thorough discussion of the applicable law, the court concluded: From the standpoint of legal principles, the holdings in the cases above discussed appear to crystallize in favor of application of the blameless ignorance doctrine in those instances where the injured plaintiff was unaware or had no reason to know that an invasion of his legal rights has occurred. In reality, such a doctrine is merely a recognition of the fundamental principle that regardless of the underlying nature of a cause of action, the accrual of the same must coincide with the aggrieved party's discovery or duty to discovery the act constituting an invasion of his legal rights. Id. at 334. Creviston's blameless ignorance doctrine, or discovery rule, has not only been followed in Branford and Lund, the two First District Court of Appeal cases subsequent to Houston, but in numerous other court of appeal decisions. Dubin v. Dow Corning Corp., 478 So.2d 71, (Fla. 2d Dist. Ct. App. 1985); R. A. Jones & Sons, Inc. v. Holman, 470 So.2d 60 (Fla. 3d Dist. Ct. App. 1985), rev. dismissed, 482 So.2d 348 (Fla. 1986); Meehan v. Celotex Corp., 466 So.2d 1100 (Fla. 3d Dist. Ct. App. 1985); Senfeld v. Bank of Nova Scotia Trust Co., 450 So.2d 1157 (Fla. 3d Dist. Ct. App. 1984); Kelly Tractor Co. v. Gurgiolo, 369 So.2d 992 (Fla. 3d Dist. Ct. App. 1979); Smith v. Continental Insurance Co., 326 So.2d 189 (Fla. 2d Dist. Ct. App. 1976); Cowan v. Turchin, 270 So.2d 449 (Fla. 4th Dist. Ct. App. 1972); Hendon v. Stanley Home Products, Inc., 225 So.2d 553 (Fla. 3d Dist. Ct. App. 1969). The Supreme Court of Florida reaffirmed its Creviston holding in AB CTC v. Morejon, 324 So.2d 625, 628 (Fla. 1975). In deciding Creviston the Supreme Court was not without its own precedent for applying the blameless ignorance doctrine. In City of Miami v. Brooks, 70 So.2d 306 (Fla. 1954), a plaintiff brought suit for burns sustained from negligent x-ray treatment. An overdose of x-ray therapy for the removal of warts from the plaintiff's left heel occurred at a hospital operated by the City of Miami. In 1944 the heel gave the appearance of being cured and in good condition. Not until 1949 did an ulcer develop resulting in the filing of the suit in 1950. Among other issues, the question of when the statute of limitations begins to run for giving notice to the city was addressed by the court. Id. at 307. Relying on Urie v. Thompson, 337 U.S. 163 (1949) (determining that the statute of limitations in a silicosis action did not begin to run until the plaintiff discovered the injury, in absence of any evidence showing that he should have known of the condition), the court held that the statute does not begin to run until the plaintiff is on notice of the invasion of his legal rights. In the instant case, at the time of the x-ray treatment there was nothing to indicate any injury or to put the plaintiff on notice of such, or that there had been an invasion of her legal rights. . . . 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. Brooks, 70 So.2d at 309. This blameless ignorance doctrine first established in Brooks and then expanded by Creviston applies very neatly to the case at bar. The appellant attempted to ascertain from the people from whom he was seeking employment as to why he was unsuccessful in obtaining a job. However, it was not until the appellee was compelled by court order to turn over Caster's personnel file that the separation report was discovered. How could the appellant have been more blamelessly ignorant to the contents of the separation report generated by his former employer three and one half months after he was fired? Absent the motion to compel, the appellant would have never known the contents of the allegedly slanderous report. As with the faulty hinge in Creviston and the overdose of x-ray therapy in Brooks, the cause of action was not discoverable at the time of the allegedly injurious act. Appellant cannot be held barred by the statute of limitations when he was unaware of the possible invasion of his legal rights. The Supreme Court of Florida was very clear in Creviston that the limitations period begins to run upon discovery or duty to discover "regardless of the underlying nature of a cause of action. . . ." Creviston, 225 So.2d at 334. Upon application of this principle to this libel and slander cause of action, we hold that the statute of limitations did not begin to run until the appellant discovered the report after the June 3, 1982, granting of the motion to compel. Appellee urges us to restrict the use of Creviston due to the court's statement: "Our holding is limited solely to the matter of the commencement of the running of the three years statute of limitations in the factual posture of this case and is not otherwise extended." Creviston, 224 So.2d at 334. Appellees' position is unfounded as they have taken this language out of context, because it appears at the end of a paragraph in which the court discusses its concerns that the decision should not preclude factual questions as to discoverability of defects prior to injury. Likewise, the court was emphasizing that the decision is not intended to limit the relevant inquiries into various defenses which might affect the discoverability issue. Id. When read in context, this language does not curtail the court's discussion of the blameless ignorance doctrine. An alternative available to this court would be to certify this statute of limitations question to the Supreme Court of Florida. Certification is allowed "whenever the answer is determinative of the cause and there is no controlling precedent of the Supreme Court of Florida." Fla. R. App. P. 9.150. Such decision as to whether or not to certify the question rests in the sound discretion of the federal court. Lehman Brothers v. Schein, 416 U.S. 386, 395 (1974). Two reasons are present for our decision not to certify this case. First, as discussed supra, there is adequate precedent to determine that Florida has adopted a discovery rule. Second, the answer must be determinative of the cause. If the Supreme Court of Florida were to decide that the discovery rule did not apply, then the cause of action would end. But, a decision in favor of the discovery rule would require a remand to the district court, with the issues of privilege and publication still potential problems. Since the question might not be determinative of the cause and there is adequate precedent to resolve the issue, certification is inappropriate. OTHER ISSUES Caster raises to additional points on appeal which we will discuss very briefly. He first claims that denial of his motion for leave to amend the complaint to include a count of "placement in false light" was an abuse of discretion by the district court. Such claim allegedly arises from Hennessey's alleged statement to prospective employers that he could not speak with them due to pending litigation. Caster's motion was denied for failure to specify the reason for delay in filing. We express no opinion as to whether there was an abuse of discretion, but we direct the district court to review its decision to the extent it was based on the statute of limitations. In Caster's point of contention he alleges an abuse of discretion by the district court in not granting a change of venue to transfer the case to another judge. We reject appellant's argument as he has made no showing of any bias whatsoever on the part of the district court in favor of the appellees. For the reasons stated herein the judgment is REVERSED and REMANDED to the district court.