FLORIDA SOVEREIGN IMMUNITY WAIVER

FLORIDA SOVEREIGN IMMUNITY WAIVER Florida Educational Risk Management Association July 22, 2011 Lisa J. Augspurger, Esq. Bush & Augspurger, P.A. Orlando/Tallahassee

Chapter 2010-26 C.S.S.B. No. 2060 TORTS--CLAIMS--SOVEREIGN IMMUNITY, LIABILITY, AND STATUTE OF LIMITATIONS An act relating to sovereign immunity; amending s. 768.28, F.S.; increasing the statutory limits on liability for tort claims against the state and its agencies and subdivisions; providing for application of the act to claims arising on or after the effective date; providing an effective date. Be It Enacted by the Legislature of the State of Florida: Section 1. Subsection (5) of section 768.28, Florida Statutes, is amended to read: 768.28. Waiver of sovereign immunity in tort actions; recovery limits; limitation on attorney fees; statute of limitations; exclusions; indemnification; risk management programs (5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period before judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum $100,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $200,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $200,000 $100,000 or $300,000 $200,000, as the case may be; and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature. Notwithstanding the limited waiver of sovereign immunity provided herein, the state or an agency or subdivision thereof may agree, within the limits of insurance coverage provided, to settle a claim made or a judgment rendered against it without further action by the Legislature, but the state or agency or subdivision thereof shall not be deemed to have waived any defense of sovereign immunity or to have increased the limits of its liability as a result of its obtaining insurance coverage for tortious acts in excess of the $ $100,000 or $ $200,000 waiver provided above. The limitations of liability set forth in this subsection shall apply to the state and its agencies and subdivisions whether or not the state or its agencies or subdivisions possessed sovereign immunity before July 1, 1974. Section 2. This act shall take effect October 1, 2011, and applies to claims arising on or after that date. Approved by the Governor April 27, 2010.

Sovereign immunity caps have not been changed since 1981 when the caps were raised from $50,000 per claim/$100,000 aggregate to $100,000 per claim/$200,000 aggregate.

98.7 % of all claims against state agencies for FY 2003-2004 were satisfied within the sovereign immunity limits. Senate Interim Project Report 2005-147: Sovereign Immunity and the Claim Bill Process (November 2004)

Number of claims bills filed in 2009 that were in excess of $200,000, but below $300,000: 1

2010 Legislative Session: 31 Claims Bills filed; 6 Claims Bills approved.

2011 Legislative Session: - 30 claims bills filed; - 3 claims bills approved.

ISHAM v. CITY OF FT. LAUDERDALE HB 185 $600,000.00 approved. ( the City of Ft. Lauderdale has sufficient funds in its Risk Management Fund available to pay this claim.

Harris and Williams v. North Broward Hospital District HB 609 $2 million The Hospital District has insurance that will satisfy the Consent Judgment if a claims bill is enacted, so payment of the bill will not impair the district s ability to provide services.

Solomon v. Jacksonville Transportation Authority, Mordecai, and Jax Transit HB 629 $1.05 million JTA to pay $350k annually for 3 years. The JTA has reserves in the amount of $1.8 million, so operations would not be affected if the bill were approved.

Section 768.28 (5), Fla. Stats. already allows the state, or an agency or a subdivision thereof to agree to pay, within the limits of insurance coverage provided, a claim made or an excess judgment rendered against it without further action by the legislature. Notwithstanding the limited waiver of sovereign immunity provided herein, the state or an agency or subdivision thereof may agree, within the limits of insurance coverage provided, to settle a claim made or a judgment rendered against it without further action by the Legislature, but the state or agency or subdivision thereof shall not be deemed to have waived any defense of sovereign immunity or to have increased the limits of its liability as a result of its obtaining insurance coverage for tortious acts in excess of the $100,00 or $200,000 waiver provided above.

For the $100,000 limitation on damages to be adjusted for inflation, the limit on damages in December 2004 would have been $204,287. For the $100,000 limitation on damages to be adjusted for the increased cost of medical care, the limit on damages in December 2004 would have been $366,702. Senate Interim Report (11/04)

POSSIBLE EFFECTS ON INSURANCE COVERAGE and RATES: The potential fiscal impact of increasing the liability limits of state and local governments to $200,000/$300,000 on October 1, 2011, will be contingent upon the number of claims filed that are greater than the current limits but lower than the limits proposed under the bill. Bill Analysis and Fiscal Impact Statement CS/SB 2060 3/21/10. Further, the state and its subdivisions may experience an increase in insurance premiums for liability coverage in response to the increase in liability limits. Bill Analysis and Fiscal Impact Statement CS/SB 2060 3/21/10.

2011 Legislative changes to Section 768.28

1006.24. Tort liability; liability insurance (1) Each district school board shall be liable for tort claims arising out of any incident or occurrence involving a school bus or other motor vehicle owned, maintained, operated, or used by the district school board to transport persons, to the same extent and in the same manner as the state or any of its agencies or subdivisions is liable for tort claims under s. 768.28, except that the total liability to persons being transported for all claims or judgments of such persons arising out of the same incident or occurrence shall not exceed an amount equal to $5,000 multiplied by the rated seating capacity of the school bus or other vehicle, as determined by rules of the State Board of Education, or $100,000, whichever is greater. The provisions of s. 768.28 apply to all claims or actions brought against district school boards, as authorized in this subsection.

Chapter 2011-219: Extends waiver of sovereign immunity to any Florida not-for-profit college or university that owns or operates an accredited medical school or any of its employees or agents that have agreed in an affiliation agreement or other contract to provide patient services as agents of a public teaching hospital.

1006.261. Use of school buses for public purposes (1)(a) Each district school board may enter into agreements with the governing body of a county or municipality in the school district or any state agency or agencies established or identified to assist in the provision of public transportation and other public purposes for the use of the school buses of the school district by departments, boards, commissions, or officers of such county or municipality or of the state for county, municipal, or state purposes, including, but not limited to, transportation of the transportation disadvantaged or other public purposes.

(2)(b) For purposes of liability for negligence, state agencies or subdivisions as defined in s. 768.28(2) shall be covered by s. 768.28. Every other corporation or organization shall provide liability insurance coverage in the minimum amounts of $100,000 on any claim or judgment and $200,000 on all claims and judgments arising from the same incident or occurrence.

Took effect on June 24, 2011; and applies to all claims accruing on or after that date.

Chapter 2011-113 : - 3 year statutory notice requirement in Section 768.28(6) is lowered to 2 years for a wrongful death claim:... 2. Such action is for wrongful death, the claimant must present the claim in writing to the Department of Financial Services within 2 years after the claim accrues.

- Addition of wrongful death claims to provision for DFS or the agency at issue to make final disposition of the claim within 90 days after it is filed is deemed a final denial of the claim.

Addition of: The statue of limitations for medical malpractice and wrongful death actions is tolled for the period of time taken by DFS or the agency at issue to deny the claim.

(Changes effective July 1, 2011; and applies to causes of action accruing on or after that date. )

Section 760.11(5), F.S. Florida Civil Rights Act claims capped at Section 768.28, F.S. limits. Though attorneys fees are available under the FCRA, the total recovery cannot exceed the caps.

There are no similar limitations on damages for Federal Civil Rights cases.

Williams v. City of Jacksonville -racial discrimination case filed in 2000; -March 2006 jury verdict of $203,546.96 for Plaintiffs as to both Federal Claim (Title VII) and FCRA; -attorneys fees claim for $467k X multiplier and costs of $51k. -Federal Court awarded $350k in fees and $35k for costs.

Pre-suit Notice provisions of Section 768.28, F.S. (6)(a): An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality or the Florida Space Authority, presents such claim in writing to the Department of Financial Services, within 3 years after such claim accrues and the Department of Financial Services or the appropriate agency denies the claim in writing;.

Plaintiffs who file claims pursuant to the Florida Civil Rights Act do not have to comply with the presuit provisions of Section 768.28(6)(a), F.S. Maggio v. Fla. Dept. of Labor and Employment Security

1) Waiver of sovereign immunity for civil rights claims derives from the Florida Civil Rights Act, not Section 768.28, F.S.; 2) the legislature included detailed pre-suit notice requirements in the Florida Civil Rights Act; and, 3) the Florida Civil Rights Act specifically references the caps in Section 768.28(5), but there is no reference to the pre-suit requirements in Section 768.28(6).

Plaintiffs who bring claims based on alleged workers compensation retaliation under Section 440.205, F.S. do not have to comply with the presuit notice requirements of Section768.28(6), F.S. Bifulco v. Patient Bus. & Fin. Serv., Inc., - decided on June 24, 2010 by Florida Supreme Court.

The sole purpose for the enactment of Section 768.28, F.S. was to waive sovereign immunity for breaches of common law torts..the condition precedent of pre-suit notice was only intended to apply to suits for which immunity was waive by enactment of the statute, to wit: common law torts. By enacting chapter 440, the Legislature waived sovereign immunity from workers compensation retaliation claims when the State and its subdivisions are acting as employers.

Florida Atlantic University Board of Trustees v. Lindsey; decided by appellate court on 12/22/10. - Scott Rubin, wrestling club president,(student?) named as party in negligence suit; -Scott Rubin was granted summary judgment by trial court (he was an agent of FAU); - appellate court reversed deciding it was up to a jury to decide if Scott Rubin was acting as an agent of FAU in his service as FAU wrestling coach.

1002.33 (12) (h), F.S.: For the purposes of tort liability, the governing body and employees of a charter school shall be governed by s. 768.28.

1002.34. Charter technical career centers. (17) Immunity.--For the purposes of tort liability, the governing body and employees of a center are governed by s. 768.28.

1002.37. The Florida Virtual School (2) The Florida Virtual School shall be governed by a board of trustees comprised of seven members appointed by the Governor to 4-year staggered terms. The board of trustees shall be a public agency entitled to sovereign immunity pursuant to s. 768.28, and board members shall be public officers who shall bear fiduciary responsibility for the Florida Virtual School.

1002.77. Florida Early Learning Advisory Council: (1) There is created the Florida Early Learning Advisory Council within the Agency for Workforce Innovation. (4)(c) For purposes of tort liability, each member of the advisory council shall be governed by s. 768.28.

Legislature can also place limits on its waiver of sovereign immunity: Brown v. City of Vero Beach, decided 6/29/11: Section 380.276, F.S. gives absolute immunity to state, state agencies, local and regional government entities or authorities, and their individual employees and agents for injuries or death caused by rip currents and other naturally occurring surf conditions regardless of whether safety flags are posted.