Firestone v. Temple Beth Sholom , 2016 Fla. App. LEXIS 675 ( 2016 )

Third District Court of Appeal
State of Florida
Opinion filed January 20, 2016.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D14-2453
Lower Tribunal No. 13-20362
________________
Joyce Firestone,
Appellant,
vs.
Temple Beth Sholom,
Appellee.
An appeal from the Circuit Court for Miami-Dade County, David C. Miller,
Judge.
Weil, Quaranta, McGovern, P.A., and Ronald P. Weil and John M.
Quaranta, for appellant.
Gaebe, Mullen, Antonelli & DiMatteo, and Elaine D. Walter and Joseph M.
Winsby, for appellee.
Before SUAREZ, C.J., and LAGOA and LOGUE, JJ.
LOGUE, J.
Joyce Firestone seeks review of the final judgment entered in favor of
Temple Beth Sholom, which held her claims against the Temple were filed after
the statute of limitations had expired. Under the governing law, we are required to
affirm.
According to the complaint, in 1971 and 1972, while she was a minor and
student at the Temple, Ms. Firestone was sexually abused by Barak Yaron,1 a
teacher employed by the Temple. Approximately forty years later, in 2013, Ms.
Firestone sued the Temple under various theories, which were finally reduced to
two: (1) the Temple was vicariously liable for Yaron’s actions under the doctrine
of respondeat superior; and (2) the Temple violated its fiduciary duty to her. Such
tort claims are normally subject to the four-year limitations period found in section
95.11(3), Florida Statutes (2012). The complaint explains, however, that the delay
in filing her claim was due to the traumatic nature of the abuse inflicted upon her
which caused her to suffer repressed memory syndrome and, consequently, she had
no memory of the abuse until 2009, when it resurfaced.
Ms. Firestone first argues that the circumstance of her repressed memory
syndrome brings her within the provisions of section 95.11(7), which provides:
FOR INTENTIONAL TORTS BASED ON ABUSE. — An action
founded on alleged abuse, as defined in s. 39.01, s. 415.102, or s.
984.03, or incest, as defined in s. 826.04, may be commenced at any
time within 7 years after the age of majority, or within 4 years after
1 Barak Yaron is not a party to this appeal.
2
the injured person leaves the dependency of the abuser, or within 4
years from the time of discovery by the injured party of both the
injury and the causal relationship between the injury and the abuse,
whichever occurs later.
As a plain reading of this section indicates, the legislature has indeed
provided that the statute of limitations for certain claims of sexual abuse is tolled to
“4 years from the time of discovery by the injured party of both the injury and the
causal relationship between the injury and the abuse.” Id. By the express language
of the statute, however, this tolling is limited to “intentional torts,” and Ms.
Firestone’s theory of liability is not that the Temple committed an intentional tort,
but that the Temple is either vicariously liable or the Temple breached its fiduciary
duty. As we held in Cisko v. Diocese of Steubenville, 123 So. 3d 83, 85 (Fla. 3d
DCA 2013):
[I]n more than ten years since enacting section 95.11(7), the
legislature has not extended the limitations period to causes of action
other than intentional torts. Our holding today also accords with the
Fourth District Court of Appeal’s interpretation of section 95.11(7)
and Hearndon [v. Graham, 767 So. 2d 1179 (Fla. 2000)]. See Doe v.
Sinrod, 90 So. 3d 852, 854 (Fla. 4th DCA 2012) (declining to apply
tolling provisions under section 95.11(7), Fla. Stat. (2011), to
negligence action against school board based on alleged sexual abuse
by school board employee). Although the appellants make compelling
arguments, we conclude the requested relief is a matter for legislative
consideration.
(emphasis added). For this reason, the trial court was correct in finding that Ms.
Firestone’s claim did not come within section 95.11(7).
3
Ms. Firestone next argues that her claim comes within the provisions of
section 95.11(9), which provides:
SEXUAL BATTERY OFFENSES ON VICTIMS UNDER AGE
16.—An action related to an act constituting a violation of s. 794.011
involving a victim who was under the age of 16 at the time of the act
may be commenced at any time. This subsection applies to any such
action other than one which would have been time barred on or before
July 1, 2010.
(emphasis added). Without reaching the issue of whether this provision covers the
theories of liability relied upon by Ms. Firestone, we note that this provision does
not apply to causes of action that accrued and would be time barred on or before
July 1, 2010. Because Ms. Firestone’s claim would be so barred, the trial court was
correct in concluding that Ms. Firestone’s claims do not come within this
provision.
Affirmed.
4