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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
A bill to be entitled 1
An act relating to sovereign immunity; amending s. 2
768.28, F.S.; removing the statutory limits on 3
liability for tort claims against the state and its 4
agencies and subdivisions; revising requirements for a 5
government entity to settle a claim or judgment; 6
revising the timeframes within which a claim must be 7
presented and within which the appropriate agency must 8
make final disposition of a claim after it is filed to 9
prevent the claim from being deemed denied; revising 10
exceptions relating to instituting actions on claims 11
against the state or one of its agencies or 12
subdivisions and to the statute of limitations for 13
such claims; amending ss. 45.061, 111.071, 341.302, 14
373.1395, 381.0056, 403.0862, 760.11, 768.295, 944.713 15
and 961.06, F.S.; conforming provisions to changes 16
made by the act; reenacting ss. 110.504, 163.01, 17
190.043, 213.015, 252.51, 252.89, 252.944, 260.0125, 18
284.31, 284.38, 322.13, 337.19, 375.251, 393.075, 19
395.1055, 403.706, 409.993, 455.221, 455.32, 456.009, 20
456.076, 471.038, 472.006, 497.167, 513.11 8, 548.046, 21
556.106, 589.19, 723.0611, 766.1115, 766.112, 22
768.1355, 946.5026, 946.514, 1002.33, 1002.333, 23
1002.34, 1002.55, 1002.83, 1002.88, 1006.24, and 24
1006.261, F.S., to incorporate the amendments made to 25
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
s. 768.28, F.S., in references thereto; providi ng 26
applicability; providing an effective date. 27
28
Be It Enacted by the Legislature of the State of Florida: 29
30
Section 1. Subsection (5), paragraphs (a) and (d) of 31
subsection (6), and subsections (10), (11), (12), (14), and (19) 32
of section 768.28, Flor ida Statutes, are amended to read: 33
768.28 Waiver of sovereign immunity in tort actions; 34
recovery limits; civil liability for damages caused during a 35
riot; limitation on attorney fees; statute of limitations; 36
exclusions; indemnification; risk management p rograms.— 37
(5)(a) The state and its agencies and subdivisions shall 38
be liable for tort claims in the same manner and to the same 39
extent as a private individual under like circumstances ., but 40
liability shall not include punitive damages or interest for the 41
period before judgment. Neither the state nor its agencies or 42
subdivisions shall be liable to pay a claim or a judgment by any 43
one person which exceeds the sum of $200,000 or any claim or 44
judgment, or portions thereof, which, when totaled with all 45
other claims or judgments paid by the state or its agencies or 46
subdivisions arising out of the same incident or occurrence, 47
exceeds the sum of $300,000. However, a judgment or judgments 48
may be claimed and rendered in excess of these amounts and may 49
be settled and paid pursuant to this act up to $200,000 or 50
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$300,000, as the case may be; and that portion of the judgment 51
that exceeds these amounts may be reported to the Legislature, 52
but may be paid in part or in whole only by further act of the 53
Legislature. Notwith standing the limited waiver of sovereign 54
immunity provided herein, The state or an agency or subdivision 55
thereof may agree, within the limits of insurance coverage 56
provided, to settle a claim made or a judgment rendered against 57
it without further action by the Legislature, but the state or 58
agency or subdivision thereof shall not be deemed to have waived 59
any defense of sovereign immunity or to have increased the 60
limits of its liability as a result of its obtaining insurance 61
coverage for tortious acts in exce ss of the $200,000 or $300,000 62
waiver provided above. The limitations of liability set forth in 63
this subsection shall apply to the state and its agencies and 64
subdivisions whether or not the state or its agencies or 65
subdivisions possessed sovereign immunity before July 1, 1974. 66
(b) A municipality has a duty to allow the municipal law 67
enforcement agency to respond appropriately to protect persons 68
and property during a riot or an unlawful assembly based on the 69
availability of adequate equipment to its munici pal law 70
enforcement officers and relevant state and federal laws. If the 71
governing body of a municipality or a person authorized by the 72
governing body of the municipality breaches that duty, the 73
municipality is civilly liable for any damages, including 74
damages arising from personal injury, wrongful death, or 75
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property damages proximately caused by the municipality's breach 76
of duty. The sovereign immunity recovery limits in paragraph (a) 77
do not apply to an action under this paragraph. 78
(6)(a) An action may n ot be instituted on a claim against 79
the state or one of its agencies or subdivisions unless the 80
claimant presents the claim in writing to the appropriate 81
agency, and also, except as to any claim against a municipality, 82
county, or the Florida Space Authorit y, presents such claim in 83
writing to the Department of Financial Services, within 4 3 84
years after such claim accrues and the Department of Financial 85
Services or the appropriate agency denies the claim in writing; 86
except that, if: 87
1. Such claim is for con tribution pursuant to s. 768.31, 88
it must be so presented within 6 months after the judgment 89
against the tortfeasor seeking contribution has become final by 90
lapse of time for appeal or after appellate review or, if there 91
is no such judgment, within 6 months after the tortfeasor 92
seeking contribution has either discharged the common liability 93
by payment or agreed, while the action is pending against her or 94
him, to discharge the common liability; or 95
2. Such action is for wrongful death, the claimant must 96
present the claim in writing to the Department of Financial 97
Services within 2 years after the claim accrues ; or 98
3. Such action arises from a violation of s. 794.011 99
involving a victim who was younger than the age of 16 at the 100
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time of the act, the claimant ma y present the claim in writing 101
at any time pursuant to s. 95.11(9). T his subparagraph applies 102
to a claim accruing at any time but shall also be construed in 103
accordance with s. 95.11(9) to apply only to claims which would 104
not have been time barred on or bef ore July 1, 2010. 105
(d) For purposes of this section, complete, accurate, and 106
timely compliance with the requirements of paragraph (c) shall 107
occur prior to settlement payment, close of discovery or 108
commencement of trial, whichever is sooner; provided the a bility 109
to plead setoff is not precluded by the delay. This setoff shall 110
apply only against that part of the settlement or judgment 111
payable to the claimant, minus claimant's reasonable attorney's 112
fees and costs. Incomplete or inaccurate disclosure of unpaid 113
adjudicated claims due the state, its agency, officer, or 114
subdivision, may be excused by the court upon a showing by the 115
preponderance of the evidence of the claimant's lack of 116
knowledge of an adjudicated claim and reasonable inquiry by, or 117
on behalf of, the claimant to obtain the information from public 118
records. Unless the appropriate agency had actual notice of the 119
information required to be disclosed by paragraph (c) in time to 120
assert a setoff, an unexcused failure to disclose shall, upon 121
hearing and order of court, cause the claimant to be liable for 122
double the original undisclosed judgment and, upon further 123
motion, the court shall enter judgment for the agency in that 124
amount. Except as provided otherwise in this subsection, the 125
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failure of the Departmen t of Financial Services or the 126
appropriate agency to make final disposition of a claim within 3 127
6 months after it is filed shall be deemed a final denial of the 128
claim for purposes of this section. For purposes of this 129
subsection, in medical malpractice act ions and in wrongful death 130
actions, the failure of the Department of Financial Services or 131
the appropriate agency to make final disposition of a claim 132
within 90 days after it is filed shall be deemed a final denial 133
of the claim. The statute of limitations for medical malpractice 134
actions and wrongful death actions is tolled for the period of 135
time taken by the Department of Financial Services or the 136
appropriate agency to deny the claim. The provisions of this 137
subsection do not apply to such claims as may be a sserted by 138
counterclaim pursuant to s. 768.14. 139
(10)(a) Health care providers or vendors, or any of their 140
employees or agents, that have contractually agreed to act as 141
agents of the Department of Corrections to provide health care 142
services to inmates of t he state correctional system shall be 143
considered agents of the State of Florida, Department of 144
Corrections, for the purposes of this section, while acting 145
within the scope of and pursuant to guidelines established in 146
said contract or by rule. The contracts shall provide for the 147
indemnification of the state by the agent for any liabilities 148
incurred up to the limits set out in this chapter . 149
(b) This subsection shall not be construed as designating 150
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persons providing contracted health care services to inmates as 151
employees or agents of the state for the purposes of chapter 152
440. 153
(c) For purposes of this section, regional poison control 154
centers created in accordance with s. 395.1027 and coordinated 155
and supervised under the Division of Children's Medical Service s 156
Prevention and Intervention of the Department of Health, or any 157
of their employees or agents, shall be considered agents of the 158
State of Florida, Department of Health. Any contracts with 159
poison control centers must provide, to the extent permitted by 160
law, for the indemnification of the state by the agency for any 161
liabilities incurred up to the limits set out in this chapter . 162
(d) For the purposes of this section, operators, 163
dispatchers, and providers of security for rail services and 164
rail facility mainte nance providers in the South Florida Rail 165
Corridor, or any of their employees or agents, performing such 166
services under contract with and on behalf of the South Florida 167
Regional Transportation Authority or the Department of 168
Transportation shall be consider ed agents of the state while 169
acting within the scope of and pursuant to guidelines 170
established in said contract or by rule. 171
(e) For purposes of this section, a professional firm that 172
provides monitoring and inspection services of the work required 173
for state roadway, bridge, or other transportation facility 174
construction projects, or any of the firm's employees performing 175
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such services, shall be considered agents of the Department of 176
Transportation while acting within the scope of the firm's 177
contract with the Department of Transportation to ensure that 178
the project is constructed in conformity with the project's 179
plans, specifications, and contract provisions. Any contract 180
between the professional firm and the state, to the extent 181
permitted by law, shall provi de for the indemnification of the 182
department for any liability, including reasonable attorney's 183
fees, incurred up to the limits set out in this chapter to the 184
extent caused by the negligence of the firm or its employees. 185
This paragraph shall not be constru ed as designating persons who 186
provide monitoring and inspection services as employees or 187
agents of the state for purposes of chapter 440. This paragraph 188
is not applicable to the professional firm or its employees if 189
involved in an accident while operating a motor vehicle. This 190
paragraph is not applicable to a firm engaged by the Department 191
of Transportation for the design or construction of a state 192
roadway, bridge, or other transportation facility construction 193
project or to its employees, agents, or subcont ractors. 194
(f) For purposes of this section, any nonprofit 195
independent college or university located and chartered in this 196
state which owns or operates an accredited medical school, or 197
any of its employees or agents, and which has agreed in an 198
affiliation agreement or other contract to provide, or permit 199
its employees or agents to provide, patient services as agents 200
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of a teaching hospital, is considered an agent of the teaching 201
hospital while acting within the scope of and pursuant to 202
guidelines established in the affiliation agreement or other 203
contract. To the extent allowed by law, the contract must 204
provide for the indemnification of the teaching hospital , up to 205
the limits set out in this chapter, by the agent for any 206
liability incurred which was caused by the negligence of the 207
college or university or its employees or agents. The contract 208
must also provide that those limited portions of the college, 209
university, or medical school which are directly providing 210
services pursuant to the contract and which are c onsidered an 211
agent of the teaching hospital for purposes of this section are 212
deemed to be acting on behalf of a public agency as defined in 213
s. 119.011(2). 214
1. For purposes of this paragraph, the term: 215
a. "Employee or agent" means an officer, employee, a gent, 216
or servant of a nonprofit independent college or university 217
located and chartered in this state which owns or operates an 218
accredited medical school, including, but not limited to, the 219
faculty of the medical school, any health care practitioner or 220
licensee as defined in s. 456.001 for which the college or 221
university is vicariously liable, and the staff or 222
administrators of the medical school. 223
b. "Patient services" mean: 224
(I) Comprehensive health care services as defined in s. 225
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641.19, including any r elated administrative service, provided 226
to patients in a teaching hospital; 227
(II) Training and supervision of interns, residents, and 228
fellows providing patient services in a teaching hospital; or 229
(III) Training and supervision of medical students in a 230
teaching hospital. 231
c. "Teaching hospital" means a teaching hospital as 232
defined in s. 408.07 which is owned or operated by the state, a 233
county or municipality, a public health trust, a special taxing 234
district, a governmental entity having health care 235
responsibilities, or a not -for-profit entity that operates such 236
facility as an agent of the state, or a political subdivision of 237
the state, under a lease or other contract. 238
2. The teaching hospital or the medical school, or its 239
employees or agents, must provi de notice to each patient, or the 240
patient's legal representative, that the college or university 241
that owns or operates the medical school and the employees or 242
agents of that college or university are acting as agents of the 243
teaching hospital and that the e xclusive remedy for injury or 244
damage suffered as the result of any act or omission of the 245
teaching hospital, the college or university that owns or 246
operates the medical school, or the employees or agents of the 247
college or university, while acting within th e scope of duties 248
pursuant to the affiliation agreement or other contract with a 249
teaching hospital, is by commencement of an action pursuant to 250
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the provisions of this section. This notice requirement may be 251
met by posting the notice in a place conspicuous to all persons. 252
3. This paragraph does not designate any employee 253
providing contracted patient services in a teaching hospital as 254
an employee or agent of the state for purposes of chapter 440. 255
(g) For the purposes of this section, the executive 256
director of the Board of Nursing, when serving as the state 257
administrator of the Nurse Licensure Compact pursuant to s. 258
464.0095, and any administrator, officer, executive director, 259
employee, or representative of the Interstate Commission of 260
Nurse Licensure Compa ct Administrators, when acting within the 261
scope of their employment, duties, or responsibilities in this 262
state, are considered agents of the state. The commission shall 263
pay any claims or judgments pursuant to this section and may 264
maintain insurance coverag e to pay any such claims or judgments. 265
(h) For purposes of this section, the individual appointed 266
under s. 491.004(8) as the state's delegate on the Counseling 267
Compact Commission, when serving in that capacity pursuant to s. 268
491.017, and any administrato r, officer, executive director, 269
employee, or representative of the commission, when acting 270
within the scope of his or her employment, duties, or 271
responsibilities in this state, is considered an agent of the 272
state. The commission shall pay any claims or jud gments pursuant 273
to this section and may maintain insurance coverage to pay any 274
such claims or judgments. 275
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(11)(a) Providers or vendors, or any of their employees or 276
agents, that have contractually agreed to act on behalf of the 277
state as agents of the Depa rtment of Juvenile Justice to provide 278
services to children in need of services, families in need of 279
services, or juvenile offenders are, solely with respect to such 280
services, agents of the state for purposes of this section while 281
acting within the scope of and pursuant to guidelines 282
established in the contract or by rule. A contract must provide 283
for the indemnification of the state by the agent for any 284
liabilities incurred up to the limits set out in this chapter . 285
(b) This subsection does not designate a person who 286
provides contracted services to juvenile offenders as an 287
employee or agent of the state for purposes of chapter 440. 288
(12)(a) A health care practitioner, as defined in s. 289
456.001(4), who has contractually agreed to act as an agent of a 290
state university board of trustees to provide medical services 291
to a student athlete for participation in or as a result of 292
intercollegiate athletics, to include team practices, training, 293
and competitions, shall be considered an agent of the respective 294
state university board of trustees, for the purposes of this 295
section, while acting within the scope of and pursuant to 296
guidelines established in that contract. The contracts shall 297
provide for the indemnification of the state by the agent for 298
any liabilities incurred up to the limits set out in this 299
chapter. 300
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(b) This subsection shall not be construed as designating 301
persons providing contracted health care services to athletes as 302
employees or agents of a state university board of trustees for 303
the purposes of chapter 44 0. 304
(14) Every claim against the state or one of its agencies 305
or subdivisions for damages for a negligent or wrongful act or 306
omission pursuant to this section shall be forever barred unless 307
the civil action is commenced by filing a complaint in the court 308
of appropriate jurisdiction within 4 years after such claim 309
accrues,; except that: 310
(a) An action for contribution must be commenced within 311
the limitations provided in s. 768.31(4) ;, and 312
(b) An action for damages arising from medical malpractice 313
or wrongful death must be commenced within the limitations for 314
such actions in s. 95.11(4) ; and 315
(c) An action arising from any act constituting a 316
violation of s. 794.011 involving a victim who was younger than 317
the age of 16 at the time of the act may be commenced at any 318
time pursuant to s. 95.11(9). This paragraph applies to a claim 319
accruing at any time as long as such claim would not have been 320
time barred on or before July 1, 2010, under s. 95.11(9 ). 321
(19) Neither the state nor any agency or subdivision of 322
the state waives any defense of sovereign immunity , or increases 323
the limits of its liability, upon entering into a contractual 324
relationship with another agency or subdivision of the state. 325
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Such a contract must not contain any provision that requires one 326
party to indemnify or insure the other party for the other 327
party's negligence or to assume any liability for the other 328
party's negligence. This does not preclude a party from 329
requiring a nongovernm ental entity to provide such 330
indemnification or insurance. The restrictions of this 331
subsection do not prevent a regional water supply authority from 332
indemnifying and assuming the liabilities of its member 333
governments for obligations arising from past acts or omissions 334
at or with property acquired from a member government by the 335
authority and arising from the acts or omissions of the 336
authority in performing activities contemplated by an interlocal 337
agreement. Such indemnification may not be considered to 338
increase or otherwise waive the limits of liability to third -339
party claimants established by this section. 340
Section 2. Subsection (5) of section 45.061, Florida 341
Statutes, is amended to read: 342
45.061 Offers of settlement. — 343
(5) Sanctions authorized under th is section may be imposed 344
notwithstanding any limitation on recovery of costs or expenses 345
which may be provided by contract or in other provisions of 346
Florida law. This section shall not be construed to waive the 347
limits of sovereign immunity set forth in s. 768.28. 348
Section 3. Paragraph (a) of subsection (1) of section 349
111.071, Florida Statutes, is amended to read: 350
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111.071 Payment of judgments or settlements against 351
certain public officers or employees. — 352
(1) Any county, municipality, political subdivision, or 353
agency of the state which has been excluded from participation 354
in the Insurance Risk Management Trust Fund is authorized to 355
expend available funds to pay: 356
(a) Any final judgment, including damages, costs, and 357
attorney's fees, arising from a complaint for damages or injury 358
suffered as a result of any act or omission of action of any 359
officer, employee, or agent in a civil or civil rights lawsuit 360
described in s. 111.07. If the civil action arises under s. 361
768.28 as a tort claim, the limitations and provisions of s. 362
768.28 governing payment shall apply. If the action is a civil 363
rights action arising under 42 U.S.C. s. 1983, or similar 364
federal statutes, payments for the full amount of the judgment 365
may be made unless the officer, employee, or age nt has been 366
determined in the final judgment to have caused the harm 367
intentionally. 368
Section 4. Subsection (17) of section 341.302, Florida 369
Statutes, is amended to read: 370
341.302 Rail program; duties and responsibilities of the 371
department.—The department, in conjunction with other 372
governmental entities, including the rail enterprise and the 373
private sector, shall develop and implement a rail program of 374
statewide application designed to ensure the proper maintenance, 375
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safety, revitalization, and expansion of the rail system to 376
assure its continued and increased availability to respond to 377
statewide mobility needs. Within the resources provided pursuant 378
to chapter 216, and as authorized under federal law, the 379
department shall: 380
(17) In conjunction with the a cquisition, ownership, 381
construction, operation, maintenance, and management of a rail 382
corridor, have the authority to: 383
(a) Assume obligations pursuant to the following: 384
1.a. The department may assume the obligation by contract 385
to forever protect, defen d, indemnify, and hold harmless the 386
freight rail operator, or its successors, from whom the 387
department has acquired a real property interest in the rail 388
corridor, and that freight rail operator's officers, agents, and 389
employees, from and against any liabil ity, cost, and expense, 390
including, but not limited to, commuter rail passengers and rail 391
corridor invitees in the rail corridor, regardless of whether 392
the loss, damage, destruction, injury, or death giving rise to 393
any such liability, cost, or expense is ca used in whole or in 394
part, and to whatever nature or degree, by the fault, failure, 395
negligence, misconduct, nonfeasance, or misfeasance of such 396
freight rail operator, its successors, or its officers, agents, 397
and employees, or any other person or persons who msoever; or 398
b. The department may assume the obligation by contract to 399
forever protect, defend, indemnify, and hold harmless National 400
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Railroad Passenger Corporation, or its successors, and officers, 401
agents, and employees of National Railroad Passenger 402
Corporation, from and against any liability, cost, and expense, 403
including, but not limited to, commuter rail passengers and rail 404
corridor invitees in the rail corridor, regardless of whether 405
the loss, damage, destruction, injury, or death giving rise to 406
any such liability, cost, or expense is caused in whole or in 407
part, and to whatever nature or degree, by the fault, failure, 408
negligence, misconduct, nonfeasance, or misfeasance of National 409
Railroad Passenger Corporation, its successors, or its officers, 410
agents, and employees, or any other person or persons 411
whomsoever. 412
2. The assumption of liability of the department by 413
contract pursuant to sub -subparagraph 1.a. or sub -subparagraph 414
1.b. may not in any instance exceed the following parameters of 415
allocation of risk: 416
a. The department may be solely responsible for any loss, 417
injury, or damage to commuter rail passengers, or rail corridor 418
invitees, or trespassers, regardless of circumstances or cause, 419
subject to sub-subparagraph b. and subparagraphs 3., 4., 5., an d 420
6. 421
b.(I) In the event of a limited covered accident, the 422
authority of the department to protect, defend, and indemnify 423
the freight operator for all liability, cost, and expense, 424
including punitive or exemplary damages, in excess of the 425
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deductible or self-insurance retention fund established under 426
paragraph (b) and actually in force at the time of the limited 427
covered accident exists only if the freight operator agrees, 428
with respect to the limited covered accident, to protect, 429
defend, and indemnify the de partment for the amount of the 430
deductible or self-insurance retention fund established under 431
paragraph (b) and actually in force at the time of the limited 432
covered accident. 433
(II) In the event of a limited covered accident, the 434
authority of the department to protect, defend, and indemnify 435
National Railroad Passenger Corporation for all liability, cost, 436
and expense, including punitive or exemplary damages, in excess 437
of the deductible or self -insurance retention fund established 438
under paragraph (b) and actua lly in force at the time of the 439
limited covered accident exists only if National Railroad 440
Passenger Corporation agrees, with respect to the limited 441
covered accident, to protect, defend, and indemnify the 442
department for the amount of the deductible or self -insurance 443
retention fund established under paragraph (b) and actually in 444
force at the time of the limited covered accident. 445
3. When only one train is involved in an incident, the 446
department may be solely responsible for any loss, injury, or 447
damage if the train is a department train or other train 448
pursuant to subparagraph 4., but only if: 449
a. When an incident occurs with only a freight train 450
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involved, including incidents with trespassers or at grade 451
crossings, the freight rail operator is solely responsib le for 452
any loss, injury, or damage, except for commuter rail passengers 453
and rail corridor invitees; or 454
b. When an incident occurs with only a National Railroad 455
Passenger Corporation train involved, including incidents with 456
trespassers or at grade crossin gs, National Railroad Passenger 457
Corporation is solely responsible for any loss, injury, or 458
damage, except for commuter rail passengers and rail corridor 459
invitees. 460
4. For the purposes of this subsection: 461
a. Any train involved in an incident that is neit her the 462
department's train nor the freight rail operator's train, 463
hereinafter referred to in this subsection as an "other train," 464
may be treated as a department train, solely for purposes of any 465
allocation of liability between the department and the freigh t 466
rail operator only, but only if the department and the freight 467
rail operator share responsibility equally as to third parties 468
outside the rail corridor who incur loss, injury, or damage as a 469
result of any incident involving both a department train and a 470
freight rail operator train, and the allocation as between the 471
department and the freight rail operator, regardless of whether 472
the other train is treated as a department train, shall remain 473
one-half each as to third parties outside the rail corridor who 474
incur loss, injury, or damage as a result of the incident. The 475
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involvement of any other train shall not alter the sharing of 476
equal responsibility as to third parties outside the rail 477
corridor who incur loss, injury, or damage as a result of the 478
incident; or 479
b. Any train involved in an incident that is neither the 480
department's train nor the National Railroad Passenger 481
Corporation's train, hereinafter referred to in this subsection 482
as an "other train," may be treated as a department train, 483
solely for purposes of any allocation of liability between the 484
department and National Railroad Passenger Corporation only, but 485
only if the department and National Railroad Passenger 486
Corporation share responsibility equally as to third parties 487
outside the rail corridor who i ncur loss, injury, or damage as a 488
result of any incident involving both a department train and a 489
National Railroad Passenger Corporation train, and the 490
allocation as between the department and National Railroad 491
Passenger Corporation, regardless of whether the other train is 492
treated as a department train, shall remain one -half each as to 493
third parties outside the rail corridor who incur loss, injury, 494
or damage as a result of the incident. The involvement of any 495
other train shall not alter the sharing of equa l responsibility 496
as to third parties outside the rail corridor who incur loss, 497
injury, or damage as a result of the incident. 498
5. When more than one train is involved in an incident: 499
a.(I) If only a department train and freight rail 500
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operator's train, or only an other train as described in sub -501
subparagraph 4.a. and a freight rail operator's train, are 502
involved in an incident, the department may be responsible for 503
its property and all of its people, all commuter rail 504
passengers, and rail corridor invitees, but only if the freight 505
rail operator is responsible for its property and all of its 506
people, and the department and the freight rail operator each 507
share one-half responsibility as to trespassers or third parties 508
outside the rail corridor who incur loss, i njury, or damage as a 509
result of the incident; or 510
(II) If only a department train and a National Railroad 511
Passenger Corporation train, or only an other train as described 512
in sub-subparagraph 4.b. and a National Railroad Passenger 513
Corporation train, are in volved in an incident, the department 514
may be responsible for its property and all of its people, all 515
commuter rail passengers, and rail corridor invitees, but only 516
if National Railroad Passenger Corporation is responsible for 517
its property and all of its pe ople, all National Railroad 518
Passenger Corporation's rail passengers, and the department and 519
National Railroad Passenger Corporation each share one -half 520
responsibility as to trespassers or third parties outside the 521
rail corridor who incur loss, injury, or d amage as a result of 522
the incident. 523
b.(I) If a department train, a freight rail operator 524
train, and any other train are involved in an incident, the 525
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allocation of liability between the department and the freight 526
rail operator, regardless of whether the ot her train is treated 527
as a department train, shall remain one -half each as to third 528
parties outside the rail corridor who incur loss, injury, or 529
damage as a result of the incident; the involvement of any other 530
train shall not alter the sharing of equal resp onsibility as to 531
third parties outside the rail corridor who incur loss, injury, 532
or damage as a result of the incident; and, if the owner, 533
operator, or insurer of the other train makes any payment to 534
injured third parties outside the rail corridor who incu r loss, 535
injury, or damage as a result of the incident, the allocation of 536
credit between the department and the freight rail operator as 537
to such payment shall not in any case reduce the freight rail 538
operator's third-party-sharing allocation of one -half under this 539
paragraph to less than one -third of the total third party 540
liability; or 541
(II) If a department train, a National Railroad Passenger 542
Corporation train, and any other train are involved in an 543
incident, the allocation of liability between the departmen t and 544
National Railroad Passenger Corporation, regardless of whether 545
the other train is treated as a department train, shall remain 546
one-half each as to third parties outside the rail corridor who 547
incur loss, injury, or damage as a result of the incident; t he 548
involvement of any other train shall not alter the sharing of 549
equal responsibility as to third parties outside the rail 550
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corridor who incur loss, injury, or damage as a result of the 551
incident; and, if the owner, operator, or insurer of the other 552
train makes any payment to injured third parties outside the 553
rail corridor who incur loss, injury, or damage as a result of 554
the incident, the allocation of credit between the department 555
and National Railroad Passenger Corporation as to such payment 556
shall not in any case reduce National Railroad Passenger 557
Corporation's third-party-sharing allocation of one -half under 558
this sub-subparagraph to less than one -third of the total third 559
party liability. 560
6. Any such contractual duty to protect, defend, 561
indemnify, and hold harmless such a freight rail operator or 562
National Railroad Passenger Corporation shall expressly include 563
a specific cap on the amount of the contractual duty, which 564
amount shall not exceed $200 million without prior legislative 565
approval, and the departmen t to purchase liability insurance and 566
establish a self-insurance retention fund in the amount of the 567
specific cap established under this subparagraph, provided that: 568
a. No such contractual duty shall in any case be effective 569
nor otherwise extend the depa rtment's liability in scope and 570
effect beyond the contractual liability insurance and self -571
insurance retention fund required pursuant to this paragraph; 572
and 573
b.(I) The freight rail operator's compensation to the 574
department for future use of the department 's rail corridor 575
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shall include a monetary contribution to the cost of such 576
liability coverage for the sole benefit of the freight rail 577
operator. 578
(II) National Railroad Passenger Corporation's 579
compensation to the department for future use of the 580
department's rail corridor shall include a monetary contribution 581
to the cost of such liability coverage for the sole benefit of 582
National Railroad Passenger Corporation. 583
(b) Purchase liability insurance, which amount shall not 584
exceed $200 million, and establish a self-insurance retention 585
fund for the purpose of paying the deductible limit established 586
in the insurance policies it may obtain, including coverage for 587
the department, any freight rail operator as described in 588
paragraph (a), National Railroad Passenger Co rporation, commuter 589
rail service providers, governmental entities, or any ancillary 590
development, which self -insurance retention fund or deductible 591
shall not exceed $10 million. The insureds shall pay a 592
reasonable monetary contribution to the cost of such l iability 593
coverage for the sole benefit of the insured. Such insurance and 594
self-insurance retention fund may provide coverage for all 595
damages, including, but not limited to, compensatory, special, 596
and exemplary, and be maintained to provide an adequate fund to 597
cover claims and liabilities for loss, injury, or damage arising 598
out of or connected with the ownership, operation, maintenance, 599
and management of a rail corridor. 600
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(c) Incur expenses for the purchase of advertisements, 601
marketing, and promotional item s. 602
(d) Without altering any of the rights granted to the 603
department under this section, agree to assume the obligations 604
to indemnify and insure, pursuant to s. 343.545, freight rail 605
service, intercity passenger rail service, and commuter rail 606
service on a department-owned rail corridor, whether ownership 607
is in fee or by easement, or on a rail corridor where the 608
department has the right to operate. 609
610
Neither the assumption by contract to protect, defend, 611
indemnify, and hold harmless; the purchase of insuran ce; nor the 612
establishment of a self -insurance retention fund shall be deemed 613
to be a waiver of any defense of sovereign immunity for torts 614
nor deemed to increase the limits of the department's or the 615
governmental entity's liability for torts as provided in s. 616
768.28. The requirements of s. 287.022(1) shall not apply to the 617
purchase of any insurance under this subsection. The provisions 618
of this subsection shall apply and inure fully as to any other 619
governmental entity providing commuter rail service and 620
constructing, operating, maintaining, or managing a rail 621
corridor on publicly owned right -of-way under contract by the 622
governmental entity with the department or a governmental entity 623
designated by the department. Notwithstanding any law to the 624
contrary, procurement for the construction, operation, 625
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maintenance, and management of any rail corridor described in 626
this subsection, whether by the department, a governmental 627
entity under contract with the department, or a governmental 628
entity designated by the departmen t, shall be pursuant to s. 629
287.057 and shall include, but not be limited to, criteria for 630
the consideration of qualifications, technical aspects of the 631
proposal, and price. Further, any such contract for design -build 632
shall be procured pursuant to the crite ria in s. 337.11(7). 633
Section 5. Subsection (6) of section 373.1395, Florida 634
Statutes, is amended to read: 635
373.1395 Limitation on liability of water management 636
district with respect to areas made available to the public for 637
recreational purposes witho ut charge.— 638
(6) This section does not relieve any water management 639
district of any liability that would otherwise exist for gross 640
negligence or a deliberate, willful, or malicious injury to a 641
person or property. This section does not create or increase t he 642
liability of any water management district or person beyond that 643
which is authorized by s. 768.28. 644
Section 6. Subsection (9) of section 381.0056, Florida 645
Statutes, is amended to read: 646
381.0056 School health services program. — 647
(9) Any health care entity that provides school health 648
services under contract with the department pursuant to a school 649
health services plan developed under this section, and as part 650
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of a school nurse services public -private partnership, is deemed 651
to be a corporation acting primarily as an instrumentality of 652
the state solely for the purpose of s. 768.28 limiting liability 653
pursuant to s. 768.28(5) . The limitations on tort actions 654
contained in s. 768.28(5) shall apply to any action against the 655
entity with respect to the provisi on of school health services, 656
if the entity is acting within the scope of and pursuant to 657
guidelines established in the contract or by rule of the 658
department. The contract must require the entity, or the 659
partnership on behalf of the entity, to obtain gener al liability 660
insurance coverage, with any additional endorsement necessary to 661
insure the entity for liability assumed by its contract with the 662
department. The Legislature intends that insurance be purchased 663
by entities, or by partnerships on behalf of the entity, to 664
cover all liability claims, and under no circumstances shall the 665
state or the department be responsible for payment of any claims 666
or defense costs for claims brought against the entity or its 667
subcontractor for services performed under the contra ct with the 668
department. This subsection does not preclude consideration by 669
the Legislature for payment by the state of any claims bill 670
involving an entity contracting with the department pursuant to 671
this section. 672
Section 7. Subsection (4) of section 40 3.0862, Florida 673
Statutes, is amended to read: 674
403.0862 Discharge of waste from state groundwater cleanup 675
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operations to publicly owned treatment works. — 676
(4) The limitation on damages provided by s. 768.28(5) 677
shall not apply to any obligation or payment which may become 678
due under this section. 679
Section 8. Subsection (5) of section 760.11, Florida 680
Statutes, is amended to read: 681
760.11 Administrative and civil remedies; construction. — 682
(5) In any civil action brought under this section, the 683
court may issue an order prohibiting the discriminatory practice 684
and providing affirmative relief from the effects of the 685
practice, including back pay. The court may also award 686
compensatory damages, including, but not limited to, damages for 687
mental anguish, loss of d ignity, and any other intangible 688
injuries, and punitive damages. The provisions of ss. 768.72 and 689
768.73 do not apply to this section. The judgment for the total 690
amount of punitive damages awarded under this section to an 691
aggrieved person shall not exceed $100,000. In any action or 692
proceeding under this subsection, the court, in its discretion, 693
may allow the prevailing party a reasonable attorney's fee as 694
part of the costs. It is the intent of the Legislature that this 695
provision for attorney's fees be inter preted in a manner 696
consistent with federal case law involving a Title VII action. 697
The right to trial by jury is preserved in any such private 698
right of action in which the aggrieved person is seeking 699
compensatory or punitive damages, and any party may deman d a 700
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trial by jury. The commission's determination of reasonable 701
cause is not admissible into evidence in any civil proceeding, 702
including any hearing or trial, except to establish for the 703
court the right to maintain the private right of action. A civil 704
action brought under this section shall be commenced no later 705
than 1 year after the date of determination of reasonable cause 706
by the commission. The commencement of such action shall divest 707
the commission of jurisdiction of the complaint, except that the 708
commission may intervene in the civil action as a matter of 709
right. Notwithstanding the above, the state and its agencies and 710
subdivisions shall not be liable for punitive damages. The total 711
amount of recovery against the state and its agencies and 712
subdivisions shall not exceed the limitation as set forth in s. 713
768.28(5). 714
Section 9. Subsection (4) of section 768.295, Florida 715
Statutes, is amended to read: 716
768.295 Strategic Lawsuits Against Public Participation 717
(SLAPP) prohibited.— 718
(4) A person or entity su ed by a governmental entity or 719
another person in violation of this section has a right to an 720
expeditious resolution of a claim that the suit is in violation 721
of this section. A person or entity may move the court for an 722
order dismissing the action or granti ng final judgment in favor 723
of that person or entity. The person or entity may file a motion 724
for summary judgment, together with supplemental affidavits, 725
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seeking a determination that the claimant's or governmental 726
entity's lawsuit has been brought in violat ion of this section. 727
The claimant or governmental entity shall thereafter file a 728
response and any supplemental affidavits. As soon as 729
practicable, the court shall set a hearing on the motion, which 730
shall be held at the earliest possible time after the fili ng of 731
the claimant's or governmental entity's response. The court may 732
award, subject to the limitations in s. 768.28, the party sued 733
by a governmental entity actual damages arising from a 734
governmental entity's violation of this section. The court shall 735
award the prevailing party reasonable attorney fees and costs 736
incurred in connection with a claim that an action was filed in 737
violation of this section. 738
Section 10. Subsection (2) of section 944.713, Florida 739
Statutes, is amended to read: 740
944.713 Insurance against liability. — 741
(2) The contract shall provide for indemnification of the 742
state by the private vendor for any liabilities incurred up to 743
the limits provided under s. 768.28(5) . The contract shall 744
provide that the private vendor, or the insurer of the private 745
vendor, is liable to pay any claim or judgment for any one 746
person which does not exceed the sum of $100,000 or any claim or 747
judgment, or portions thereof, which, when totaled with all 748
other claims or judgments arising out of the same incident o r 749
occurrence, does not exceed the sum of $200,000. In addition, 750
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the contractor must agree to defend, hold harmless, and 751
indemnify the department against any and all actions, claims, 752
damages and losses, including costs and attorney's fees. 753
Section 11. Subsection (7) of section 961.06, Florida 754
Statutes, is amended to read: 755
961.06 Compensation for wrongful incarceration. — 756
(7) Any payment made under this act does not constitute a 757
waiver of any defense of sovereign immunity or an increase in 758
the limits of liability on behalf of the state or any person 759
subject to the provisions of s. 768.28 or other law. 760
Section 12. Sections 110.504, 163.01, 190.043, 213.015, 761
252.51, 252.89, 252.944, 260.0125, 284.31, 284.38, 322.13, 762
337.19, 375.251, 393.075, 395.1055, 403.706, 409.993, 455.221, 763
455.32, 456.009, 456.076, 471.038, 472.006, 497.167, 513.118, 764
548.046, 556.106, 589.19, 723.0611, 766.1115, 766.112, 768.1355, 765
946.5026, 946.514, 1002.33, 1002.333, 1002.34, 1002.55, 1002.83, 766
1002.88, 1006.24, and 1006.261, Flor ida Statutes, are reenacted 767
for the purpose of incorporating the amendments made by this act 768
to s. 768.28, Florida Statutes, in references thereto. 769
Section 13. Except as otherwise expressly provided herein, 770
this act applies to claims accruing on or aft er October 1, 2024. 771
Section 14. This act shall take effect October 1, 2024. 772