This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0401a.CJS
DATE: 2/10/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 401 Sovereign Immunity
SPONSOR(S): Civil Justice Subcommittee, Beltran
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice Subcommittee 13 Y, 4 N, As CS Mathews Jones
2) Appropriations Committee
3) Judiciary Committee
SUMMARY ANALYSIS
Sovereign immunity is a principle under which a government cannot be sued without its consent. Article X,
section 13 of the Florida Constitution allows the Legislature to waive this immunity. In turn, s. 768.28(1), F.S.,
allows for suits in tort against the state and its agencies and subdivisions for damages resulting from the
negligence of government employees acting in the scope of employment. This liability exists only where a
private person would be liable for the same conduct.
Section 768.28(5), F.S., caps tort recovery from a governmental entity at $200,000 per person and $300,000
per incident. Although a court may enter a judgment in excess of these caps, it is impossible, absent a claim
bill passed by the Legislature, for a claimant to collect more than the caps provide. Further, section 768.28(6),
F.S., imposes pre-suit requirements upon a claimant seeking to recover against a state or local government
entity, allowing a general six-month period for the government entity to review and dispose of a claim before
the claimant may file a lawsuit.
A state or local government entity may, without the need for a claim bill, settle a claim or pay a judgment
against it for an amount in excess of the caps in s. 768.28, F.S., if that amount is within the limits of its
insurance coverage.
CS/HB 401:
Increases the sovereign immunity caps for damages against state and local government entities to
$2,500,000 per person and $5,000,000 per incident.
Allows a subdivision of the state to settle a claim and pay the settled amount without the need for a
claim bill.
Eliminates any statute of limitations for filing a claim against a state or local government entity for
sexual battery actions involving a victim who was younger than 16 years old at the time of the incident.
However, the bill does not resuscitate any such claim which would have been time-barred as of July 1,
2010.
Increases the time limitation for filing a claim from three years to four years after the claim accrues.
Reduces from six months to three months the general pre-suit statutory time period for a government
entity to review and dispose of a claim.
The bill will likely have an indeterminate, significant negative fiscal impact on state and local governments. The
increased costs will affect the State Risk Management Trust Fund.
The bill provides an effective date of October 1, 2024. The bill applies to all claims accruing on or after that
date, except as otherwise provided within the bill. STORAGE NAME: h0401a.CJS PAGE: 2
DATE: 2/10/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Sovereign Immunity
Sovereign immunity is a principle under which a government cannot be sued without its consent.
1
Article X, section 13 of the Florida Constitution allows the Legislature to waive this immunity. In
accordance with article X, section 13 of the Florida Constitution, s. 768.28(1), F.S., allows for suits in
tort against the state and its agencies and subdivisions for damages resulting from the negligence of
government employees acting in the scope of employment. This liability exists only where a private
person would be liable for the same conduct. Section 768.28, F.S., applies only 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 ....”
2
Section 768.28(5), F.S., caps tort recovery from a governmental entity at $200,000 per person and
$300,000 per incident.
3
Although a court may enter an excess judgment, the statutory caps make it
impossible, absent a claim bill passed by the Legislature, for a claimant to collect more than the caps
provide.
4
Individual government employees, officers, or agents are immune from suit or liability for damages
caused by any action taken in the scope of employment, unless the damages result from the
employee’s acting in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful
disregard for human rights, safety, or property.
5
A government entity is not liable for any damages
resulting for actions by an employee outside the scope of his or her employment, and is not liable for
damages resulting from actions committed by the employee in bad faith, with malicious purpose, or in a
manner exhibiting wanton and willful disregard for human rights, safety, or property.
6
A law enforcement agency may be liable for injury, death, or property damage by a person fleeing one
of its law enforcement officers if the pursuit involves conduct by the officer so reckless as to constitute
disregard for human rights, the officer did not initiate pursuit under the reasonable belief that the fleeing
person had committed a forcible felony, and the pursuit was not conducted pursuant to a written
policy.
7
While s. 768.28(9)(a), F.S., grants individual state officers immunity from judgment and suit in
certain cases, s. 768.28(9)(d), F.S., only grants employing agencies immunity from judgment.
8
Presuit Procedures for a Claim Against the Government
Before a claimant files a lawsuit against a government entity, the claimant generally must present the
claim in writing to the government entity within the statute of limitations prescribed by law.
9
If the claim
is brought against the state, the claimant must also present the claim to the Department of Financial
Services (DFS). The government entity generally then has six months to review the claim. If the
government entity does not dispose of the claim within that six-month period, the claimant may
generally proceed with the lawsuit.
10
1
Sovereign immunity, Legal Information Institute, https://www.law.cornell.edu/wex/sovereign_immunity (last visited Feb. 1, 2023).
2
City of Pembroke Pines v. Corrections Corp. of America, Inc., 274 So. 3d 1105, 1112 (Fla. 4th DCA 2019) (quoting s. 768.28(1), F.S.)
(internal punctuation omitted).
3
S. 768.28(5), F.S.
4
Breaux v. City of Miami Beach, 899 So. 2d 1059 (Fla. 2005).
5
S. 768.28(9)(a), F.S.
6
Id.
7
S. 768.28(9)(d), F.S.
8
Ross v. City of Jacksonville, 274 So. 3d 1180, 1186 (Fla. 1st DCA 2019).
9
See s. 768.28(6)(a), F.S.
10
See s. 768.28(6)(d), F.S. STORAGE NAME: h0401a.CJS PAGE: 3
DATE: 2/10/2023
Damages
The liability caps in s. 768.28(5), F.S., apply to “all of the elements of the monetary award to a plaintiff
against a sovereignly immune entity.”
11
In other words, a plaintiff’s entire recovery, including damages,
back pay, attorney fees, and any other costs, are limited by the caps in s. 768.28, F.S.
Generally, damages are of two kinds: compensatory and punitive.
12
Compensatory damages are
awarded as compensation for the loss sustained to make the party whole, insofar as that is possible.
13
They arise from actual and indirect pecuniary loss.
14
Section 768.28, F.S., does not allow for the
recovery of punitive damages, but only for the recovery of compensatory damages.
Claim Bills
A plaintiff may recover an amount in excess of the caps described in s. 768.28(5), F.S., by way of a
claim bill. A claim bill is not an action at law, but rather is a legislative measure that directs the Chief
Financial Officer, or if appropriate, a unit of local government, to pay a specific sum of money to a
claimant to satisfy an equitable or moral obligation.
15
Such obligations typically arise from the
negligence of officers or employees of the State or a local governmental agency.
16
Legislative claim
bills are typically pursued after procurement of a judgment or settlement in an action at law.
17
The
amount awarded is based on the Legislature’s concept of fair treatment of a person who has been
injured or damaged but who is without a complete judicial remedy or who is not otherwise
compensable.
18
Unlike civil judgments, claim bills are not obtainable by right upon the claimant’s proof
of his entitlement; rather, they are granted as a matter of legislative grace.
19
Once a legislative claim bill is formally introduced, a special master usually conducts a quasi-judicial
hearing.
20
This hearing may resemble a trial during which the claimant offers testimony as well as
documentary and physical evidence necessary to establish the claim. Trial records may be substituted
for witness testimony. Testifying witnesses are sworn and subject to cross-examination.
21
A respondent
may present a defense to contest the claim, and the special master may then prepare a report with an
advisory recommendation to the Legislature if the bill is placed on an agenda.
22
Alternatively, a government entity may, without the need for a claim bill, settle a claim or pay a
judgment against it for an amount in excess of the caps in s. 768.28, F.S., if that amount is within the
limits of insurance coverage.
23
Statute of Limitations for Sexual Battery on a Person Under 16
Section 95.11, F.S., provides statutes of limitations for various types of civil actions. In 2010, the
Legislature amended s. 95.11 to remove any statute of limitations applying to a civil action for sexual
battery if the victim was under 16 at the time of the crime.
24
The Legislature provided, however, that this
amendment would not resuscitate any civil claims that were already barred by the statute of limitations
at the time.
25
11
Gallagher v. Manatee Cty., 927 So. 2d 914, 918 (Fla. 2d DCA 2006).
12
22 Am. Jur. 2d s. 1 at 13 (1965).
13
Fisher v. City of Miami, 172 So. 2d 455 (Fla. 1965).
14
Margaret Ann Supermarkets, Inc. v. Dent, 64 So. 2d 291 (Fla. 1953).
15
Wagner v. Orange Cty., 960 So. 2d 785, 788 (Fla. 5th DCA 2007)
16
Id.
17
City of Miami v. Valdez, 847 So. 2d 1005 (Fla. 3d DCA 2003).
18
Wagner, 960 So. 2d at 788 (citing Kahn, Legislative Claim Bills, Fla. B. Journal (April 1988)).
19
United Servs. Auto. Ass’n v. Phillips, 740 So. 2d 1205, 1209 (Fla. 2d DCA 1999).
20
Wagner, 960 So. 2d at 788 (citing Kahn at 26).
21
Id.
22
Id.
23
S. 768.28(5), F.S.
24
Ch. 2010-54, s. 1, Laws of Fla.; s. 95.11(9), F.S.
25
Id. (“This subsection applies to any such action other than one which would have been time barred on or before July 1, 2010”). STORAGE NAME: h0401a.CJS PAGE: 4
DATE: 2/10/2023
Effect of Proposed Changes
The bill amends s. 768.28, F.S., to increase the caps for tort damages against the state, its agencies,
and its subdivisions from $200,000 to $2,500,000 per person, and from $300,000 to $5,000,000 per
incident.
The bill also amends s. 768.28(6) and (14), F.S., to eliminate any statute of limitations for a civil claim
against the state or one of its subdivisions for sexual battery actions involving a victim who was
younger than 16 years old at the time of the incident. As such, a claimant in such situation would be
able to present his or her claim in writing at any time and commence the civil action at any time.
However, the bill does not resuscitate any such claims which would have been time-barred as of July 1,
2010. In making these changes, the bill aligns the provisions of s. 768.28, F.S., with the 2010
amendments to s. 95.11, F.S., involving a civil action where a plaintiff under 16 is the victim of sexual
battery. Under the bill, such victim of sexual battery would be able to bring his or her claim at any time
against a government entity, just as if the defendant were a private party.
The bill increases the amount of time for a claimant to file a claim from three years after the date of the
incident to four years. The bill also decreases from six months to three months the amount of time a
government entity has to make a final disposition of a claim during the pre-suit process within s.
768.28(6), F.S., after which time the plaintiff may bring a lawsuit.
The bill provides an effective date of October 1, 2024. The provisions of the bill apply to all claims
accruing on or after that date, except that the bill applies to claims relating to sexual battery on a
person under 16 that may have accrued at any time. However, the bill does not resuscitate any such
claims which would have been time-barred as of July 1, 2010.
B. SECTION DIRECTORY:
Section 1: Amends s. 768.28, F.S., relating to waiver of sovereign immunity in tort actions.
Section 2: Reenacts provisions within the Florida Statutes for the purpose of incorporating the
amendments made by the act.
Section 3: Provides that the act applies to claims accruing on or after the effective date, except as
otherwise provided.
Section 4: Provides an effective date of October 1, 2024.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
See Fiscal Comments.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
The bill has a negative fiscal impact on local governments. The amount of the cost resulting from
the change to the sovereign immunity limits and a local government’s ability to settle claims without STORAGE NAME: h0401a.CJS PAGE: 5
DATE: 2/10/2023
regard to any statutory limit on damages under s. 768.28, F.S., is indeterminate. However, local
government expenditures would likely increase for settlements, awards, and other legal costs.
See Fiscal Comments.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may enable more individuals who have tort claims against the state or one of its agencies or
subdivisions to receive larger payments without the need to pursue a claim bill. The ability to collect
larger settlements or judgments against government entities may also serve as an incentive for private
attorneys to represent claimants in these matters. However, the bill may reduce government services to
the public in proportion to additional amounts paid to satisfy tort claims.
D. FISCAL COMMENTS:
By increasing the sovereign immunity cap, the bill increases the possibility that the state and its
agencies and subdivisions will spend more of their resources to satisfy tort claims. The provision of
larger payments in satisfaction of tort claims, however, may also reduce the demand for other
government services that would have otherwise been necessary for claimants.
By reducing the pre-suit time period for a government entity or DFS to review and dispose of a claim
against the state, the bill may have an impact on the pre-suit settlement process.
Finally, the bill may reduce the workload of the Legislature by reducing the number of claim bills filed
but may also reduce the legislative oversight of claims against government entities.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
None.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On February 9, 2023, the Civil Justice Subcommittee adopted a strike-all amendment and reported the bill
favorably as a committee substitute. The committee substitute increased the existing sovereign immunity
caps for damages against state and local government entities to $2,500,000 per person and $5,000,000
per incident.
This analysis is drafted to the committee substitute as passed by the Civil Justice Subcommittee.