Florida Senate - 2009 SB 1922
By Senator Aronberg
27-01526-09 20091922__
1 A bill to be entitled
2 An act relating to sovereign immunity; amending s.
3 768.28, F.S.; providing that a subdivision of the
4 state may pay a judgment in excess of the specified
5 limits on the recovery of judgments from funds of the
6 subdivision without an act of the Legislature;
7 providing an effective date.
8
9 Be It Enacted by the Legislature of the State of Florida:
10
11 Section 1. Section 768.28, Florida Statutes, is amended to
12 read:
13 768.28 Waiver of sovereign immunity in tort actions;
14 recovery limits; limitation on attorney fees; statute of
15 limitations; exclusions; indemnification; risk management
16 programs.—
17 (1) In accordance with s. 13, Art. X of the State
18 Constitution, the state, for itself and for its agencies or
19 subdivisions, hereby waives sovereign immunity for liability for
20 torts, but only to the extent specified in this act. Actions at
21 law against the state or any of its agencies or subdivisions to
22 recover damages in tort for money damages against the state or
23 its agencies or subdivisions for injury or loss of property,
24 personal injury, or death caused by the negligent or wrongful
25 act or omission of any employee of the agency or subdivision
26 while acting within the scope of the employee's office or
27 employment under circumstances in which the state or such agency
28 or subdivision, if a private person, would be liable to the
29 claimant, in accordance with the general laws of this state, may
30 be prosecuted subject to the limitations specified in this act.
31 Any such action may be brought in the county where the property
32 in litigation is located or, if the affected agency or
33 subdivision has an office in such county for the transaction of
34 its customary business, where the cause of action accrued.
35 However, any such action against a state university board of
36 trustees shall be brought in the county in which that
37 university's main campus is located or in the county in which
38 the cause of action accrued if the university maintains therein
39 a substantial presence for the transaction of its customary
40 business.
41 (2) As used in this act, “state agencies or subdivisions”
42 include the executive departments, the Legislature, the judicial
43 branch (including public defenders), and the independent
44 establishments of the state, including state university boards
45 of trustees; counties and municipalities; and corporations
46 primarily acting as instrumentalities or agencies of the state,
47 counties, or municipalities, including the Florida Space
48 Authority.
49 (3) Except for a municipality and the Florida Space
50 Authority, the affected agency or subdivision may, at its
51 discretion, request the assistance of the Department of
52 Financial Services in the consideration, adjustment, and
53 settlement of any claim under this act.
54 (4) Subject to the provisions of this section, any state
55 agency or subdivision shall have the right to appeal any award,
56 compromise, settlement, or determination to the court of
57 appropriate jurisdiction.
58 (5)(a) The state and its agencies are and subdivisions
59 shall be liable for tort claims in the same manner and to the
60 same extent as a private individual under like circumstances;
61 except that, but liability may shall not include punitive
62 damages or interest for the period before judgment. Neither The
63 state and nor its agencies are not or subdivisions shall be
64 liable to pay a claim or a judgment by any one person which
65 exceeds the sum of $100,000 or any claim or judgment, or
66 portions thereof, which, when totaled with all other claims or
67 judgments paid by the state or its agencies or subdivisions
68 arising out of the same incident or occurrence, exceeds the sum
69 of $200,000. However, a judgment or judgments may be claimed and
70 rendered in excess of these amounts and may be settled and paid
71 pursuant to this act up to $100,000 or $200,000. The, as the
72 case may be; and that portion of the judgment which that exceeds
73 these amounts may be reported to the Legislature, but may be
74 paid in part or in whole only by further act of the Legislature.
75 Notwithstanding the limited waiver of sovereign immunity
76 provided in this paragraph herein, the state or an agency or
77 subdivision thereof may agree, within the limits of insurance
78 coverage provided, to settle a claim made or a judgment rendered
79 against it without further action by the Legislature, but the
80 state or agency or subdivision thereof does shall not waive be
81 deemed to have waived any defense of sovereign immunity or
82 increase to have increased the limits of its liability as a
83 result of its obtaining insurance coverage for tortious acts in
84 excess of the $100,000 or $200,000 waiver provided above. The
85 limitations of liability set forth in this subsection shall
86 apply to the state and its agencies and subdivisions whether or
87 not the state or its agencies or subdivisions possessed
88 sovereign immunity before July 1, 1974.
89 (b) Subdivisions of the state are liable for tort claims in
90 the same manner and to the same extent as a private individual
91 under like circumstances; except that liability may not include
92 punitive damages or interest for the period before judgment. A
93 subdivision of the state is not liable to pay a claim or a
94 judgment by any one person which exceeds the sum of $100,000 or
95 any claim or judgment, or portions thereof, which, when totaled
96 with all other claims or judgments paid by the subdivision
97 arising out of the same incident or occurrence, exceeds the sum
98 of $200,000. Notwithstanding the limits on liability provided in
99 this paragraph, a claim may be made and a judgment rendered in
100 excess of the limits. Such claim and judgment may be settled and
101 paid from insurance proceeds or otherwise available funds of the
102 subdivision, without further act of the Legislature. However, if
103 a subdivision does not pay the portion of a claim or judgment
104 which exceeds the liability limits, that portion of the claim or
105 judgment may be paid only upon an act of the Legislature. A
106 subdivision of the state does not waive a defense of sovereign
107 immunity or increase the limits of its liability as a result of
108 obtaining insurance coverage for tortious acts in excess of the
109 $100,000 or $200,000 waiver or as a result of an agreement to
110 pay a judgment in an amount exceeding the limits on liability.
111 (6)(a) An action may not be instituted on a claim against
112 the state or one of its agencies or subdivisions unless the
113 claimant presents the claim in writing to the appropriate
114 agency, and also, except as to any claim against a municipality
115 or the Florida Space Authority, presents such claim in writing
116 to the Department of Financial Services, within 3 years after
117 such claim accrues and the Department of Financial Services or
118 the appropriate agency denies the claim in writing; except that,
119 if such claim is for contribution pursuant to s. 768.31, it must
120 be so presented within 6 months after the judgment against the
121 tortfeasor seeking contribution has become final by lapse of
122 time for appeal or after appellate review or, if there is no
123 such judgment, within 6 months after the tortfeasor seeking
124 contribution has either discharged the common liability by
125 payment or agreed, while the action is pending against her or
126 him, to discharge the common liability.
127 (b) For purposes of this section, the requirements of
128 notice to the agency and denial of the claim pursuant to
129 paragraph (a) are conditions precedent to maintaining an action
130 but shall not be deemed to be elements of the cause of action
131 and shall not affect the date on which the cause of action
132 accrues.
133 (c) The claimant shall also provide to the agency the
134 claimant's date and place of birth and social security number if
135 the claimant is an individual, or a federal identification
136 number if the claimant is not an individual. The claimant shall
137 also state the case style, tribunal, the nature and amount of
138 all adjudicated penalties, fines, fees, victim restitution fund,
139 and other judgments in excess of $200, whether imposed by a
140 civil, criminal, or administrative tribunal, owed by the
141 claimant to the state, its agency, officer or subdivision. If
142 there exists no prior adjudicated unpaid claim in excess of
143 $200, the claimant shall so state.
144 (d) For purposes of this section, complete, accurate, and
145 timely compliance with the requirements of paragraph (c) shall
146 occur prior to settlement payment, close of discovery or
147 commencement of trial, whichever is sooner; provided the ability
148 to plead setoff is not precluded by the delay. This setoff shall
149 apply only against that part of the settlement or judgment
150 payable to the claimant, minus claimant's reasonable attorney's
151 fees and costs. Incomplete or inaccurate disclosure of unpaid
152 adjudicated claims due the state, its agency, officer, or
153 subdivision, may be excused by the court upon a showing by the
154 preponderance of the evidence of the claimant's lack of
155 knowledge of an adjudicated claim and reasonable inquiry by, or
156 on behalf of, the claimant to obtain the information from public
157 records. Unless the appropriate agency had actual notice of the
158 information required to be disclosed by paragraph (c) in time to
159 assert a setoff, an unexcused failure to disclose shall, upon
160 hearing and order of court, cause the claimant to be liable for
161 double the original undisclosed judgment and, upon further
162 motion, the court shall enter judgment for the agency in that
163 amount. The failure of the Department of Financial Services or
164 the appropriate agency to make final disposition of a claim
165 within 6 months after it is filed shall be deemed a final denial
166 of the claim for purposes of this section. For purposes of this
167 subsection, in medical malpractice actions, the failure of the
168 Department of Financial Services or the appropriate agency to
169 make final disposition of a claim within 90 days after it is
170 filed shall be deemed a final denial of the claim. The
171 provisions of this subsection do not apply to such claims as may
172 be asserted by counterclaim pursuant to s. 768.14.
173 (7) In actions brought pursuant to this section, process
174 shall be served upon the head of the agency concerned and also,
175 except as to a defendant municipality or the Florida Space
176 Authority, upon the Department of Financial Services; and the
177 department or the agency concerned shall have 30 days within
178 which to plead thereto.
179 (8) No attorney may charge, demand, receive, or collect,
180 for services rendered, fees in excess of 25 percent of any
181 judgment or settlement.
182 (9)(a) No officer, employee, or agent of the state or of
183 any of its subdivisions shall be held personally liable in tort
184 or named as a party defendant in any action for any injury or
185 damage suffered as a result of any act, event, or omission of
186 action in the scope of her or his employment or function, unless
187 such officer, employee, or agent acted in bad faith or with
188 malicious purpose or in a manner exhibiting wanton and willful
189 disregard of human rights, safety, or property. However, such
190 officer, employee, or agent shall be considered an adverse
191 witness in a tort action for any injury or damage suffered as a
192 result of any act, event, or omission of action in the scope of
193 her or his employment or function. The exclusive remedy for
194 injury or damage suffered as a result of an act, event, or
195 omission of an officer, employee, or agent of the state or any
196 of its subdivisions or constitutional officers shall be by
197 action against the governmental entity, or the head of such
198 entity in her or his official capacity, or the constitutional
199 officer of which the officer, employee, or agent is an employee,
200 unless such act or omission was committed in bad faith or with
201 malicious purpose or in a manner exhibiting wanton and willful
202 disregard of human rights, safety, or property. The state or its
203 subdivisions shall not be liable in tort for the acts or
204 omissions of an officer, employee, or agent committed while
205 acting outside the course and scope of her or his employment or
206 committed in bad faith or with malicious purpose or in a manner
207 exhibiting wanton and willful disregard of human rights, safety,
208 or property.
209 (b) As used in this subsection, the term:
210 1. “Employee” includes any volunteer firefighter.
211 2. “Officer, employee, or agent” includes, but is not
212 limited to, any health care provider when providing services
213 pursuant to s. 766.1115, any member of the Florida Health
214 Services Corps, as defined in s. 381.0302, who provides
215 uncompensated care to medically indigent persons referred by the
216 Department of Health, and any public defender or her or his
217 employee or agent, including, among others, an assistant public
218 defender and an investigator.
219 (c) For purposes of the waiver of sovereign immunity only,
220 a member of the Florida National Guard is not acting within the
221 scope of state employment when performing duty under the
222 provisions of Title 10 or Title 32 of the United States Code or
223 other applicable federal law; and neither the state nor any
224 individual may be named in any action under this chapter arising
225 from the performance of such federal duty.
226 (d) The employing agency of a law enforcement officer as
227 defined in s. 943.10 is not liable for injury, death, or
228 property damage effected or caused by a person fleeing from a
229 law enforcement officer in a motor vehicle if:
230 1. The pursuit is conducted in a manner that does not
231 involve conduct by the officer which is so reckless or wanting
232 in care as to constitute disregard of human life, human rights,
233 safety, or the property of another;
234 2. At the time the law enforcement officer initiates the
235 pursuit, the officer reasonably believes that the person fleeing
236 has committed a forcible felony as defined in s. 776.08; and
237 3. The pursuit is conducted by the officer pursuant to a
238 written policy governing high-speed pursuit adopted by the
239 employing agency. The policy must contain specific procedures
240 concerning the proper method to initiate and terminate high
241 speed pursuit. The law enforcement officer must have received
242 instructional training from the employing agency on the written
243 policy governing high-speed pursuit.
244 (10)(a) Health care providers or vendors, or any of their
245 employees or agents, that have contractually agreed to act as
246 agents of the Department of Corrections to provide health care
247 services to inmates of the state correctional system shall be
248 considered agents of the State of Florida, Department of
249 Corrections, for the purposes of this section, while acting
250 within the scope of and pursuant to guidelines established in
251 said contract or by rule. The contracts shall provide for the
252 indemnification of the state by the agent for any liabilities
253 incurred up to the limits set out in this chapter.
254 (b) This subsection shall not be construed as designating
255 persons providing contracted health care services to inmates as
256 employees or agents of the state for the purposes of chapter
257 440.
258 (c) For purposes of this section, regional poison control
259 centers created in accordance with s. 395.1027 and coordinated
260 and supervised under the Division of Children's Medical Services
261 Prevention and Intervention of the Department of Health, or any
262 of their employees or agents, shall be considered agents of the
263 State of Florida, Department of Health. Any contracts with
264 poison control centers must provide, to the extent permitted by
265 law, for the indemnification of the state by the agency for any
266 liabilities incurred up to the limits set out in this chapter.
267 (d) For the purposes of this section, operators,
268 dispatchers, and providers of security for rail services and
269 rail facility maintenance providers in the South Florida Rail
270 Corridor, or any of their employees or agents, performing such
271 services under contract with and on behalf of the South Florida
272 Regional Transportation Authority or the Department of
273 Transportation shall be considered agents of the state while
274 acting within the scope of and pursuant to guidelines
275 established in said contract or by rule.
276 (e) For purposes of this section, a professional firm that
277 provides monitoring and inspection services of the work required
278 for state roadway, bridge, or other transportation facility
279 construction projects, or any of the firm's employees performing
280 such services, shall be considered agents of the Department of
281 Transportation while acting within the scope of the firm's
282 contract with the Department of Transportation to ensure that
283 the project is constructed in conformity with the project's
284 plans, specifications, and contract provisions. Any contract
285 between the professional firm and the state, to the extent
286 permitted by law, shall provide for the indemnification of the
287 department for any liability, including reasonable attorney's
288 fees, incurred up to the limits set out in this chapter to the
289 extent caused by the negligence of the firm or its employees.
290 This paragraph shall not be construed as designating persons who
291 provide monitoring and inspection services as employees or
292 agents of the state for purposes of chapter 440. This paragraph
293 is not applicable to the professional firm or its employees if
294 involved in an accident while operating a motor vehicle. This
295 paragraph is not applicable to a firm engaged by the Department
296 of Transportation for the design or construction of a state
297 roadway, bridge, or other transportation facility construction
298 project or to its employees, agents, or subcontractors.
299 (11)(a) Providers or vendors, or any of their employees or
300 agents, that have contractually agreed to act on behalf of the
301 state as agents of the Department of Juvenile Justice to provide
302 services to children in need of services, families in need of
303 services, or juvenile offenders are, solely with respect to such
304 services, agents of the state for purposes of this section while
305 acting within the scope of and pursuant to guidelines
306 established in the contract or by rule. A contract must provide
307 for the indemnification of the state by the agent for any
308 liabilities incurred up to the limits set out in this chapter.
309 (b) This subsection does not designate a person who
310 provides contracted services to juvenile offenders as an
311 employee or agent of the state for purposes of chapter 440.
312 (12)(a) A health care practitioner, as defined in s.
313 456.001(4), who has contractually agreed to act as an agent of a
314 state university board of trustees to provide medical services
315 to a student athlete for participation in or as a result of
316 intercollegiate athletics, to include team practices, training,
317 and competitions, shall be considered an agent of the respective
318 state university board of trustees, for the purposes of this
319 section, while acting within the scope of and pursuant to
320 guidelines established in that contract. The contracts shall
321 provide for the indemnification of the state by the agent for
322 any liabilities incurred up to the limits set out in this
323 chapter.
324 (b) This subsection shall not be construed as designating
325 persons providing contracted health care services to athletes as
326 employees or agents of a state university board of trustees for
327 the purposes of chapter 440.
328 (13) Laws allowing the state or its agencies or
329 subdivisions to buy insurance are still in force and effect and
330 are not restricted in any way by the terms of this act.
331 (14) Every claim against the state or one of its agencies
332 or subdivisions for damages for a negligent or wrongful act or
333 omission pursuant to this section shall be forever barred unless
334 the civil action is commenced by filing a complaint in the court
335 of appropriate jurisdiction within 4 years after such claim
336 accrues; except that an action for contribution must be
337 commenced within the limitations provided in s. 768.31(4), and
338 an action for damages arising from medical malpractice must be
339 commenced within the limitations for such an action in s.
340 95.11(4).
341 (15) No action may be brought against the state or any of
342 its agencies or subdivisions by anyone who unlawfully
343 participates in a riot, unlawful assembly, public demonstration,
344 mob violence, or civil disobedience if the claim arises out of
345 such riot, unlawful assembly, public demonstration, mob
346 violence, or civil disobedience. Nothing in this act shall
347 abridge traditional immunities pertaining to statements made in
348 court.
349 (16)(a) The state and its agencies and subdivisions are
350 authorized to be self-insured, to enter into risk management
351 programs, or to purchase liability insurance for whatever
352 coverage they may choose, or to have any combination thereof, in
353 anticipation of any claim, judgment, and claims bill which they
354 may be liable to pay pursuant to this section. Agencies or
355 subdivisions, and sheriffs, that are subject to homogeneous
356 risks may purchase insurance jointly or may join together as
357 self-insurers to provide other means of protection against tort
358 claims, any charter provisions or laws to the contrary
359 notwithstanding.
360 (b) Claims files maintained by any risk management program
361 administered by the state, its agencies, and its subdivisions
362 are confidential and exempt from the provisions of s. 119.07(1)
363 and s. 24(a), Art. I of the State Constitution until termination
364 of all litigation and settlement of all claims arising out of
365 the same incident, although portions of the claims files may
366 remain exempt, as otherwise provided by law. Claims files
367 records may be released to other governmental agencies upon
368 written request and demonstration of need; such records held by
369 the receiving agency remain confidential and exempt as provided
370 for in this paragraph.
371 (c) Portions of meetings and proceedings conducted pursuant
372 to any risk management program administered by the state, its
373 agencies, or its subdivisions, which relate solely to the
374 evaluation of claims filed with the risk management program or
375 which relate solely to offers of compromise of claims filed with
376 the risk management program are exempt from the provisions of s.
377 286.011 and s. 24(b), Art. I of the State Constitution. Until
378 termination of all litigation and settlement of all claims
379 arising out of the same incident, persons privy to discussions
380 pertinent to the evaluation of a filed claim shall not be
381 subject to subpoena in any administrative or civil proceeding
382 with regard to the content of those discussions.
383 (d) Minutes of the meetings and proceedings of any risk
384 management program administered by the state, its agencies, or
385 its subdivisions, which relate solely to the evaluation of
386 claims filed with the risk management program or which relate
387 solely to offers of compromise of claims filed with the risk
388 management program are exempt from the provisions of s.
389 119.07(1) and s. 24(a), Art. I of the State Constitution until
390 termination of all litigation and settlement of all claims
391 arising out of the same incident.
392 (17) This section, as amended by chapter 81-317, Laws of
393 Florida, shall apply only to causes of actions which accrue on
394 or after October 1, 1981.
395 (18) No provision of this section, or of any other section
396 of the Florida Statutes, whether read separately or in
397 conjunction with any other provision, shall be construed to
398 waive the immunity of the state or any of its agencies from suit
399 in federal court, as such immunity is guaranteed by the Eleventh
400 Amendment to the Constitution of the United States, unless such
401 waiver is explicitly and definitely stated to be a waiver of the
402 immunity of the state and its agencies from suit in federal
403 court. This subsection shall not be construed to mean that the
404 state has at any time previously waived, by implication, its
405 immunity, or that of any of its agencies, from suit in federal
406 court through any statute in existence prior to June 24, 1984.
407 (19) Neither the state nor any agency or subdivision of the
408 state waives any defense of sovereign immunity, or increases the
409 limits of its liability, upon entering into a contractual
410 relationship with another agency or subdivision of the state.
411 Such a contract must not contain any provision that requires one
412 party to indemnify or insure the other party for the other
413 party's negligence or to assume any liability for the other
414 party's negligence. This does not preclude a party from
415 requiring a nongovernmental entity to provide such
416 indemnification or insurance. The restrictions of this
417 subsection do not prevent a regional water supply authority from
418 indemnifying and assuming the liabilities of its member
419 governments for obligations arising from past acts or omissions
420 at or with property acquired from a member government by the
421 authority and arising from the acts or omissions of the
422 authority in performing activities contemplated by an interlocal
423 agreement. Such indemnification may not be considered to
424 increase or otherwise waive the limits of liability to third
425 party claimants established by this section.
426 (20) Every municipality, and any agency thereof, is
427 authorized to undertake to indemnify those employees that are
428 exposed to personal liability pursuant to the Clean Air Act
429 Amendments of 1990, 42 U.S.C.A. ss. 7401 et seq., and all rules
430 and regulations adopted to implement that act, for acts
431 performed within the course and scope of their employment with
432 the municipality or its agency, including but not limited to
433 indemnification pertaining to the holding, transfer, or
434 disposition of allowances allocated to the municipality's or its
435 agency's electric generating units, and the monitoring,
436 submission, certification, and compliance with permits, permit
437 applications, records, compliance plans, and reports for those
438 units, when such acts are performed within the course and scope
439 of their employment with the municipality or its agency. The
440 authority to indemnify under this section covers every act by an
441 employee when such act is performed within the course and scope
442 of her or his employment with the municipality or its agency,
443 but does not cover any act of willful misconduct or any
444 intentional or knowing violation of any law by the employee. The
445 authority to indemnify under this section includes, but is not
446 limited to, the authority to pay any fine and provide legal
447 representation in any action.
448 Section 2. This act shall take effect July 1, 2009.