The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Governmental Oversight and Accountability
BILL: SB 472
INTRODUCER: Senator Brodeur
SUBJECT: Sovereign Immunity
DATE: January 26, 2023
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Harmsen McVaney GO Pre-meeting
2. AP
3. RC
I. Summary:
SB 472 increases the cap on the payment of judgments against government entities from
$200,000 to $400,000 per individual, and from $300,000 to $600,000 per instance. The bill
provides for the annual adjustment of the cap to reflect changes in the Consumer Price Index,
beginning on July 1, 2025.
The bill allows government entities to settle a claim in any amount without the approval of a
claim bill by the Legislature.
The bill removes the statute of limitations and statute of repose for civil actions against state
entities where the plaintiff in a sexual battery matter was younger than 16 years old at the time of
the injury.
The bill takes effect July 1, 2024, and applies to any claim that was not concluded by a final
judgment or settlement before then.
II. Present Situation:
Sovereign immunity is “[a] government’s immunity from being sued in its own courts without its
consent.”
1
The doctrine had its origin with the judge-made law of England. The basis of the
existence of the doctrine of sovereign immunity in the United States was explained as follows:
A sovereign is exempt from suit, not because of any formal conception or
obsolete theory, but on the logical and practical ground that there can be no legal
right as against the authority that makes the law on which the right depends.
2
1
BLACK’S LAW DICTIONARY (11th ed. 2019).
2
Cauley v. City of Jacksonville, 403 So. 2d 379, 381 (Fla. 1981) (quoting Kawananakoa v. Polyblank, 205 U.S. 349, 353
(1907)).
REVISED: BILL: SB 472 Page 2
Article X, s. 13 of the Florida Constitution authorizes the Legislature to enact laws that permit
suits against the state and its subdivisions, thereby waiving sovereign immunity. Currently,
Florida law allows tort lawsuits against the state and its subdivisions
3
for damages that result
from the negligence of government employees acting in the scope of their employment, but
limits payment of judgments to $200,000 per person and $300,000 per incident.
4
Harmed persons
who seek to recover amounts in excess of these limits may request that the Legislature enact a
claim bill to recover the remainder of their court-awarded judgment.
5
History of Florida Sovereign Immunity Law
Florida has adopted the common law of England as it existed on July 4, 1776.
6
This adoption of
English common law includes the doctrine of sovereign immunity. The doctrine of sovereign
immunity was in existence centuries before the Declaration of Independence.
7
The Legislature was first expressly authorized to waive the state’s sovereign immunity under
s. 19, Art. IV of the 1868 Florida Constitution.
8
When the Florida Constitution was amended in
1968, it again expressly authorized the Legislature to waive the state’s sovereign immunity under
s. 13, Art. X.
9
Although the first general waiver of the state’s sovereign immunity was not adopted until 1969,
“one . . . could always petition for legislative relief by means of a claims bill.”
10
The first claim
bill was passed by the Legislative Council of the Territory of Florida in 1833.
11
The claim bill
authorized payment to a person who supplied labor and building materials for the first permanent
capitol building.
12
The 1969 Legislature enacted s. 768.15, F.S., the state’s first general waiver of sovereign
immunity,
13
which expired after one year.
14
In 1973, the Legislature again adopted a law that
waived the state’s sovereign immunity.
15
The statute, s. 768.28, F.S., was modeled after the
Federal Tort Claims Act and remains substantially the same today.
3
Section 768.28(2), F.S., defines “state agencies or subdivisions” to include “executive departments, the Legislature, the
judicial branch (including public defenders), and the independent establishments of the state, including state university
boards of trustees; counties and municipalities; and corporations primarily acting as instrumentalities or agencies of the state,
counties, or municipalities, including the Florida Space Authority.”
4
Section 768.28, F.S.
5
Section 768.28(5)(a), F.S.
6
Section 2.01, F.S. English common law that is inconsistent with state or federal law is not included.
7
North Carolina Dept. of Transp. v. Davenport, 432 S.E.2d 303, 305 (N.C. 1993).
8
Section 19, Art. VI, State Const. (1868), states: “Provision may be made by general law for bringing suit against the State as
to all liabilities now existing or hereafter originating.”
9
FLA. CONST. Art. X, s.13 states: “Provision may be made by general law for bringing suit against the state as to all liabilities
now existing or hereafter originating.”
10
Cauley, 403 So. 2d at note 5.
11
D. Stephen Kahn, Legislative Claim Bills: A Practical Guide to a Potent(ial) Remedy, THE FLORIDA BAR JOURNAL, 23
(April, 1988).
12
Id.
13
Chapter 69-116, Laws of Fla.
14
Chapter 69-357, Laws of Fla.
15
Chapter 73-313, Laws of Fla. BILL: SB 472 Page 3
Under s. 768.28(5), F.S. (1973), the state’s ability to pay a tort judgment was limited to $50,000
per person and $100,000 per incident. In 1981, the Legislature increased the amount of damages
that could be paid to $100,000 per person and $200,000 per incident.
16
In 2010, the Legislature
increased the limits to $200,000 per person and $300,000 per incident.
17
Attorney fees have been
limited to 25 percent of the proceeds of judgments or settlements since 1979.
18
Statutory Waivers of Sovereign Immunity
Section 768.28(1), F.S., allows tort lawsuits to be filed 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 ....”
19
Section 768.28(5), F.S., caps tort recovery from a governmental entity at $200,000 per person
and $300,000 per accident. Although a court may award a judgment in excess of these statutory
limits, a claimant cannot collect more than provided for in statute without passage of a special
claim bill passed by the legislature.
20
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 bad faith, malicious purpose, or wanton and willful disregard from human rights,
safety, or property.
21
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.
22
Claim Bill Process
“A claim bill is not an action at law, but rather a legislative measure that directs the Chief
Financial Officer of Florida, 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.”
23
Persons who wish to seek the payment of claims in excess of the statutory cap must have a state
legislator introduce a claim bill in the Legislature, which must pass both houses. Once a claim
bill is filed, the presiding officer of each house of the Legislature may refer the bill to a Special
Master, as well as to one or more committees, for review. Senate and House Special Masters
16
Chapter 81-317, Laws of Fla.
17
Chapter 2010-26, Laws of Fla.
18
Section 768.28(8), F.S.
19
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.).
20
See, Breaux v. City of Miami Beach, 899 So. 2d 1059 (Fla. 2005).
21
Section 768.28(9)(a), F.S.
22
Id.
23
Wagner v. Orange Cty., 960 So. 2d 785, 788 (Fla. 5th DCA 2007). BILL: SB 472 Page 4
typically hold a quasi-judicial, de novo hearing to determine whether the elements of negligence
have been satisfied: duty, breach, causation, and damages.
24
The amount awarded by the Legislature in a claim bill 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.
25
“Unlike civil judgments, private relief
acts are not obtainable by right upon the claimant’s proof of his entitlement. Private relief acts
are granted strictly as a matter of legislative grace.”
26
The beneficiary of a claim bill recovers by its enactment, regardless of whether the governmental
tortfeasor purchased liability insurance to pay an excess judgment.
27
However, where the
governmental tortfeasor has liability insurance above the statutory cap, and the claimant receives
compensation above that statutory cap through a claim bill, the claim bill is paid with funds of
the insured, not general revenue.
28
The following table represents the annual summary of all claim bill activity in the Florida
Legislature from 2019-2023:
Session Year Total Claims
Filed
Number of
Claims that
Became Law
Total Dollar
Amount
Claimed
Total Dollar
Amount Paid
2019 19 5 $30,209,967 $4,000,000
2020 15 2 $59,555,928.40 $6,650,000
2021 13 2 $46,099,864 $2,800,000
2022 18 5 $43,305,151 $2,297,500
2023 16 8 $54,120,900 $20,112,000
Effect of Insurance Coverage on Damages Cap
A government entity may, without a claim bill, settle a claim against it for an amount above the
caps in s. 768.28, F.S., if that amount is within the limits of insurance coverage.
29
Cost of Florida’s Waiver of Sovereign Immunity
The exact cost of the state’s waiver of sovereign immunity under s. 768.28, F.S., is unknown. No
centralized location exists for local government entities, such as cities, counties, school boards,
sheriff’s offices, special districts, and other entities to record the value of the total claims paid
under the current sovereign immunity waiver. Information documenting the cost of the sovereign
24
See Fla. Senate R. 4.09(3) (2020-2024). See also, Florida Senate, Legislative Claim Bill Manual, 8-10 (Aug. 2023),
available at https://www.flsenate.gov/PublishedContent/ADMINISTRATIVEPUBLICATIONS/leg-claim-manual.pdf (last
visited Jan. 25, 2023).
25
Wagner, 960 So. 2d at 788 (citing Kahn, Legislative Claim Bills, Fla. B. Journal (April 1988)).
26
United Servs. Auto. Ass’n v. Phillips, 740 So. 2d 1205, 1209 (Fla. 2d DCA 1999).
27
Servs. Auto Ass'n v. Phillips, 740 So. 2d 1205 (Fla. 2d DCA 1999).
28
Fla. Mun. Ins. Trust v. Village of Golf, 850 So. 2d 544, 548 (Fla. 4th DCA 2003), citing Bonvento v. Bd. of Pub.
Instruction, 194 So.2d 605 (Fla. 1967).
29
Michigan Millers Mut. Ins. Co. v. Burke, 607 So. 2d 418, 421-22 (Fla. 1992); Section 768.28(5), F.S. BILL: SB 472 Page 5
immunity waiver to state government entities is available from the Division of Risk Management
(Division). The Division provides general liability insurance to state agencies up to the amount
of the sovereign immunity waiver.
30
The Division also settles and defends tort suits filed against
the agencies.
In Fiscal Year 2021-22, the Division paid $7,637,712 for the resolution of 2,080 general liability
claims.
31
Additionally, the Division provides auto liability insurance to state agencies for claims
arising out of the use of state vehicles. In Fiscal Year 2021-22, the Division paid $6,691,380 for
the resolution of 472 automobile liability claims.
32
Other Jurisdictions
At least 27 other state legislatures have placed monetary caps on recovery from actions in tort
against their state or political subdivisions:
Colorado: $350,000 per person; $990,000 per occurrence.
33
Georgia: $1 million per person; $3 million per occurrence.
34
Idaho: $500,000 per occurrence, regardless of the number of people, unless the government
is insured above the limit.
35
Illinois: $2,000,000.
36
Indiana: $700,000 per person; $5 million per occurrence.
37
Kanas: $500,000 per occurrence.
38
Louisiana: $500,000 per occurrence.
39
Maine: $400,000 per occurrence.
40
Maryland: $400,000 per person; $890,000 per occurrence.
41
Massachusetts: $100,000.
42
Minnesota: $500,000 per person; $1,500,000 per occurrence.
43
Mississippi: $500,000.
44
Missouri: $300,000 per person and $2 million per occurrence.
45
Montana: $750,000 per claim and $1.5 million per occurrence.
46
30
Section 284.30, F.S.
31
Department of Financial Services, Division of Risk Management, Fiscal Year 2022 Annual Report, 8-9 (2022), available at
https://www.myfloridacfo.com/docs-sf/risk-management-libraries/risk-documents/annual-reports/risk-mgmt-annual-report-
2022---final.pdf?sfvrsn=59248690_2 (last visited Jan. 25, 2023).
32
Id.
33
Colo. Rev. Stat. §24-10-114.
34
Ga. Code §50-21-29(a)-(b)(1).
35
Idaho Code §6-926.
36
Ill. Ann. Stat. ch. 705, §505/8.
37
Ind. Code §34-13-3-4.
38
Kan. Stat. Ann. §75-6105.
39
La. Rev. Stat. Ann. §13:5106.
40
Me. Rev. Stat. Ann. tit. 14, §8105.
41
Md. State Government Code Ann. §12-104(a)(2).
42
Mass. Gen. Laws Ann. ch. 258, §2.
43
Minn. Stat. Ann. §3.736(4).
44
Miss. Code Ann. 11-46-15.
45
Mo. Ann. Stat. §537.610.
46
Mont. Code. Ann. §2-9-108. BILL: SB 472 Page 6
New Hampshire: $475,000 per claimant and $3.75 million per occurrence.
47
New Mexico: $200,000 per claim of property damage; $300,000 per claim of medical
expenses; $400,000 for claims other than property damages or medical expenses; all claims
limited to $750,000 per occurrence.
48
North Carolina: $1 million per occurrence.
49
North Dakota: $375,000 per person; $1 million per occurrence.
50
Oklahoma: $125,000 per person, with higher limits for specific categories; $1 million per
occurrence.
51
Pennsylvania: $250,000 per person; $1 million per occurrence.
52
Rhode Island: $100,000.
53
South Carolina: $300,000 per person; $600,000 per occurrence.
54
Tennessee: $300,000 per person; $1 million per occurrence.
55
Texas: $250,000 per person; $500,000 per occurrence ($100,000 per claim of destruction of
personal property).
56
Utah: $233,600 for property damage; $583,900 for personal injury person; $3 million per
occurrence.
57
Vermont: $500,000 per person; $2 million per occurrence.
58
Virginia: $100,000.
59
III. Effect of Proposed Changes:
The bill amends s. 786.28, F.S., to increase the limits of the waiver of sovereign immunity for a
claim made against the state and its agencies and subdivisions from $200,000 to $400,000 per
person, and from $300,000 to $600,000 per incident. Beginning July 1, 2025, the bill provides
for the annual adjustment of the cap to reflect changes in the Consumer Price Index.
The bill allows the state and its agencies and subdivisions to settle a claim in any amount without
approval of a claim bill by the Legislature. Under current law, amounts that exceed the sovereign
immunity caps may be paid without approval of the Legislature only from the proceeds of an
insurance policy.
60
Otherwise, payment for claims against the state may only be made in excess
of the cap pursuant to an appropriation of funds from the State Treasury made as a result of a
claims bill process.
47
N.H. Rev. Stat. Ann. §541-B:14.
48
N.M. Stat. Ann. §41-4-19.
49
N.C. Gen. Stat. §143-299.2.
50
N.D. Cent. Code S32-12.2-02.
51
Okla. Stat. tit. 51, §154.
52
Pa. Cons. Stat. Ann. Tit. 42, §8528.
53
R.I. Gen. Laws §9-31-2.
54
S.C. Code Ann. §15-78-120.
55
Tenn. Code Ann. §9-8-307.
56
Tex. Civ. Prac. & Rem. Code Ann. §101.023.
57
Utah Code. Ann. §63G-7-604.
58
Vt. Stat. Ann. tit. 12, §5601.
59
Va. Code §8.01-195.3.
60
“No claims bill is necessary if excess insurance is purchased and the plaintiffs find it necessary to proceed directly against
the excess carrier.” Hillsborough Co. v. Star Ins. Co., 847 F.3d 1296, 1306 (2017). BILL: SB 472 Page 7
This provision therefore allows a local government to pay a settled amount in excess of the
sovereign immunity caps out of its own coffers, or through its insurance coverage. It is unclear
how this provision will apply to a state entity, which is limited in its ability to pay above the
sovereign immunity caps without a legislative appropriation,
61
despite the “notwithstanding”
language of the bill on line 62.
Additionally, the bill prohibits an insurance company from placing any conditions on the
payment of benefits on the enactment of a claim bill.
62
The bill removes the statute of limitations and statute of repose for civil actions against state
entities where the plaintiff in a sexual battery matter was younger than 16 years old at the time of
the injury.
The bill takes effect July 1, 2024, and applies to any claim that was not concluded by a final
judgment or settlement before then.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
Not applicable. The bill does not require counties and municipalities to spend funds,
reduce the counties’ or municipalities’ ability to raise revenue, or reduce the percentage
of state tax shared with counties or municipalities.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
Article VII, s. 1(d) of the State Constitution prohibits funds from being drawn from the
State Treasury except in pursuance of an appropriation made by law. Lines 62-67 of the
bill grant the state and its agencies the authority to settle a claim or a judgment without
further action by the legislature. If this grant of authority includes drawing fund from the
61
See discussion of FLA. CONST. art. VII, s. 1(d), infra.
62
This provision will likely prevent inclusion of contractual provisions that bar recovery for claimants pursuant to an
insurance policy by, e.g., requiring the claimant to first go through the Legislative Claims Bill process before the insurance
policy may be used for payment of a settlement. See, Martin v. Nat’l. Union Fire Ins. Co. of Pittsburgh, Pa, 616 So.2d 11433,
1145 (Fla. 4
th
DCA 1993). BILL: SB 472 Page 8
State Treasury to pay those settlements, then this provision may be in violation of the
constitutional requirement.
Article I, s. 10 of the State Constitution prohibits laws that impair the obligations of
existing contracts.
63
Because the bill bars insurance conditioned on the payment of a
claim bill, the Legislature should specify that this provision applies to insurance contracts
entered into or renewed on or after the effective date of the bill.
V. Fiscal Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
The bill may enable more individuals harmed by a state entity-tortfeasor to receive larger
payments without the need to pursue a claim bill. The capacity for a larger reward
without a claim bill may incentivize private attorneys to represent such claimants.
C. Government Sector Impact:
The increased cap on the payment of tort settlements and judgments by state entities
increases the likelihood that state entities will spend more of their resources to satisfy tort
claims. This may negatively impact funds for government services.
Additionally, the state and its subdivisions may experience an increase in insurance
premiums for liability coverage, or their cost for self-insurance.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 768.28 of the Florida Statutes.
The bill reenacts the following sections of the Florida Statutes: 29.0081, 39.8297, 45.061,
110.504, 111.071, 119.15, 125.01015, 163.01, 190.043, 213.015, 252.36, 252.51, 252.89,
252.944, 260.0125, 284.31, 284.38, 288.9625, 322.13, 324.022, 337.19, 341.302, 351.03,
373.1395, 375.251, 379.2293, 381.0056, 393.075, 394.9085, 395.1055, 395.50, 401.425,
403.0862, 403.706, 409.175, 409.993, 415.1103, 420.504, 420.507, 455.221, 455.32, 456.009,
456.048, 456.076, 458.320, 459.0085, 471.038, 472.006, 497.167, 513.118, 548.046, 556.106,
63
Searcy, Denny, Scarola, Barhnart & Shipley, etc. v. State, 209 So. 3d 1181, 1190 (Fla. 2017). BILL: SB 472 Page 9
589.19, 616.242, 624.461, 624.462, 627.733, 627.7491, 723.0611, 741.316, 760.11, 766.1115,
766.112, 766.203, 766.207, 768.1315, 768.1335, 768.135, 768.1355, 768.1382, 768.295,
944.713, 946.5026, 946.514, 961.06, 984.09, 985.037, 1002.33, 1002.333, 1002.34, 1002.351,
1002.37, 1002.451, 1002.55, 1002.83, 1002.88, 1004.41, 1004.43, 1004.447, 1006.23, 1006.24,
1006.261.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.