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11/21/12 It's The Law: Sovereign Immunity Protects The State

Question:

I read in the paper about someone trying to sue a county but, the county was claiming immunity under something called "sovereign immunity". Can you explain sovereign immunity?

Answer:

Sovereign Immunity is inherited from the Common Law of England. It emanates from the traditional concept that "the king can do no wrong." In 1957, Florida's Supreme Court explained that in applying the theory of sovereign immunity, Florida courts have transposed our democratic system with the concept that the sovereign is divine and that divinity is beyond reproach. The concept of sovereign immunity is recognized in Florida's Constitution, which at Article 10, Section 13 recognizes sovereign immunity of the State but provides that the Legislature may waive sovereign immunity by statute.

Sovereign immunity did not protect the government from all claims. It was limited for claims of negligence or wrongdoing. Florida courts have always allowed suit to enforce contracts as well as challenges to constitutionality of statutes or actions for taking private property.

In 1975, the Legislature accepted the constitutional invitation to waive sovereign immunity in tort actions. It adopted Section 768.28 of Florida Statutes, which is titled "Waiver of Sovereign Immunity in Tort Actions; Recovery Limits; Limitations of Attorney's Fees; Statute of Limitations". The Statute waives sovereign immunity for the State, its agencies and subdivisions, but only to the extent specified in the Statute.

The Statute makes the State, its agencies and subdivisions liable for tort claims in the same manner and to the same extent as private individuals under like circumstances, but does not allow recovery of punitive damages or interest for the period before judgment. The Statute also limits liability to $200,000.00 per claimant and caps the total available to all claimants at $300,000.00. Judgment is authorized to be entered for more than the statutory caps, but no payment from the State may exceed the cap without authorization of the Legislature.

The regular statutes of limitation under which claims must be timely filed or be barred apply to claims against the State. However, the Statute has pre-suit notice requirements under which the injured party must file a claim with Florida's Department of Financial Services in a short period of time and the claim has to be in writing. Failure to timely file a claim with Florida's Department of Financial Services is a bar to court action against the State. The Statute also places a cap on attorney's fees for representation of injured parties suing the State at 25% of any judgment or settlement.

Florida's statutory waiver, on its face, appears significantly broader than the parallel Federal Statute, known as the Federal Tort Claims Act. Under the Federal law, sovereign immunity is specifically retained for planning or judgmental functions of the government or its employees and the waiver is limited to operational activity. But, in the 1979 case of Commercial Carrier Corp. v. Indian River County, Florida's Supreme Court ruled that Florida's new statute did not waive sovereign immunity for governmental policy decisions and implementation of those decisions.

Florida's Statute is further limited by its own terms. It applies to injury or loss of property, personal injury or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of the employee's office or employment. That means the waiver does not apply to actions of an employee outside of the scope of employment. Other statutes and the waiver statute itself allow governmental entities to purchase insurance. If the insurance coverage is greater than the waiver of sovereign immunity, an injured person can recover up to the limits of insurance coverage as long as the governmental entity defendant agrees. Otherwise, the injured party must seek authorization for the excess payment through the Legislature.

Claims against the State are complicated. Determining if a claim is based on operational or planning action by the government can be tricky. Pre-suit notice requirements to the State add an additional layer of complexity. In these cases, a good attorney is essential.

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