768.28 Below will be described for the state of Florida only, the recovery limits, the attorney fees limitations, the time frame for such immunity, risk management programs, exclusions, indemnifications, and the relinquishment of sovereign immunity.
(1) To an extent specified under the s.13, Art. X of the State Constitution, sovereign immunity is relinquished of liability for torts that were performed by the agencies, subdivisions, or the state. Prosecution of any agency, subdivision, or the state for any damages suffered by an employee or agency during the employee’s employment or agency office can be filed by the claimant who was injured by the governments wrongful of negligent omission or action that either caused the death, loss of property, or personal injury of the claimant only if laws of the state permit it and it follows the specifications of the limitations of the state. Wherever the incident took place to initiate a lawsuit, the county where the employee or government property who performed such action can be brought on by the claimant. The lawsuit shall be made at the main campus or at the location or county where the accident took place if the customary business is handled by the university at that location if the lawsuit is decided to be brought against the university board of trustees.
As described in this act, “state agencies or subdivision “is said to mean the following: the judicial branch (public defenders are included), executive departments, Legislative branch, state’s independent establishments: municipalities, counties, University of boards trustees; and the state’s, counties, or municipalities corporations that act as instruments or agencies for them. The Space Authority in Florida is included among that.
Assistance for any consideration, adjustment, or settlement that is being made for a claim can be requested of the Financial Services Department to aid any person or entity, except for a municipality or the Space Authority in Florida, who is affected by such lawsuit.
Any award, compromise, determination, or settlement that has been made can have an appeal filed for by the subdivision or state agency to the appropriate court of jurisdiction.
Liability for punitive damages or interest that is accumulated before the judgment cannot fall on the subdivisions, agencies, or the state, but they can be held liable in the same way as an individual can be a negligent act. The state, agency, and its subdivisions must not pay more than $200,000 in damages for one claim and no more than a total of $300,000 for all claims made for the same negligent action. Though a judgment or judgments can be made for more than the permitted amount and can be settled for more; the amount that exceeds the permitted amount under this act must be reported to the Legislature. In addition, the judgment made can be paid either in whole or in part, depending on the decision of the Legislature.
Regardless, the state, agencies, or subdivisions can agree to pay for, if it is within their insurance coverage limits, a settlement amount with the help of the Legislature, even if the sovereign immunity relinquishment limit has been provided the sovereign immunity waiver limited provided, but the agencies, subdivision, not the state should have the presence of having waived the defense of sovereign immunity for acts of liability that exceed $200,000 or $300,000. The state, its agencies, and any of its subdivisions have the application of liability regardless of whether sovereign immunity was present before July 1, 1974, or not.
(a) Unless the correct agency has received the claim in writing that was filed by the plaintiff, no lawsuit can be formed for a claim that was made against a subdivision, agency, or state. In addition, claims that are made towards the Space Authority in Florida or a municipality must be filed within three years of the incident to the Financial Services Department. If there is a denial of these claims in writing made by the Financial Services Department of the correct agency, unless if:
- The claim is contribution under the s.768.31, that the defendant is seeking a final decision on the contribution, must either be demonstrated through the elapsed time to file an appeal or by following the appellate review within 6 months preceding the judgment made against them; or if discharge or agreeing to pay for common liability of the defendant seeking contribution has been established within the 6-month period provided after no judgment has been made; or
- The Financial Services Department must receive the claim for any action surging from a wrongful death, with two years after the incident took place.
(b) As described in paragraph (a), the conditions required in the notice of a denial of a claim to be given to the agency, are not the elements required to have a cause to file the lawsuit, but are needed to maintain the lawsuit; the date that the negligence took place is not affected.
(c) In addition, the federal identification number must be provided by those who are not an individual, and if the plaintiff is an individual, then they must provide their details including the day they were born, where they were born, and their social security number. Also, the amount of all fees, fines, penalties, judgments over $200,000, and funds, nature of the injuries, tribunal, and case style must be stated by the plaintiff, whether it was imposed by an administrative, criminal, or civil tribunal, owed by the plaintiff to the agency, subdivision, or state. If there is no previous unpaid judged claim over $200,00, the plaintiff must also provide that information.
(d) Whichever one comes first, whether it is a discovery closing, trial, or payment of a settlement, the necessities in paragraph (c ) must be met in a prompt manner, with accuracy, and complete; given that the setoff plead has no delays. The application of this setoff should only apply to the judgment or settlement that is payable to the plaintiff, minus their attorney’s cost and fees. If the agency, subdivision, or state has any inaccurate or incomplete information with respect to claims that have been unpaid, or that the plaintiff does not have the knowledge regarding the preponderance of the evidence to obtain the necessary information from public records, the court can order a dismissal of the case. Once the correct agency has received within the actual notice the information needed in paragraph (c), during the setoff time, the court can hold the plaintiff liable to pay for double the amount awarded during the judgment and an unexcused failure to disclose can be ordered by the court. An exception from the final denial claim can be given to the defendant if the plaintiff did not provide the Financial Service Department or correct agency their claim within the allowed 6-month period. Final denial of claims will be given to wrongful death and medical malpractice lawsuits if the Financial Services Department or the correct agency did not form a final disposition 90-days after the claim was filed. Medical malpractice and wrongful death lawsuits will have their statute of limitations calculated with respect to the amount of time that the Financial Services Department or the correct agency takes to deny a claim. The requirements needed in this section do not apply to counterclaims made from s. 768.14.
(7) A 30 day period will be provided to the agency or department involved in the claim to plead, and the claims that are brought to the Financial Services Department will require the head of the agency involved, except for defendants from a municipality or the Space Authority in Florida.
(8) For the services that have been provided by a lawyer, no more than 25% of the total amount of the judgment or settlement can be charged, demanded, or collected by them.
(9)(a) Liability for damages or injuries acquired while an employee, agent, or officer of the state or subdivision is performing their job duties, will not rest upon them if the accident did not derive from an act of bad faith or malicious intent. The only way they could be held liable is if they performed their job duties in a dangerous way against the property, safety, and rights of an individual. But, the individual who committed the act which led to the injury or damages of the victim during the time of their employment can serve as a witness in the lawsuit. The organization of governmental entity to which the employee pertains to will have the action brought against them unless the actions, or omissions of the employee, agent, or officer were committed in bad faith. If the employees of the state or subdivision completed their job duties with bad faith, their employer will not be held liable.
(b) As mentioned in this subsection, the following terms refer to:
- “Employee” – Volunteer firefighters
- “Agent, employee, or officer” includes, but does not limit it to the following: services provided pursuant to s.766 1115 by any provider of medical services; any non-profit independent university or college located in that state which operates or owns any medical school that is accredited, and the agents or employees, when the services following paragraph (10)(f) are provided to a patient; and any defender of the public and their employees, or investigators.
( c ) Individuals of the National Guard cannot be named as a defendant either individually or as a state if they were executing obligations mentioned in Title 10 or Title 32, but were not doing so around the scope of their employment; waiving of their sovereign immunity cannot occur.
(d) The liability of a person fleeing from a law enforcement officer during a vehicle crash would not fall on the agency that is employing the law enforcement officer as defined in s. 943.10 that either caused injury, property damage, or death if:
- The officer’s conduct did not influence the actions of the individual who was fleeing and acted in a way that disregarded the property, life, safety, and rights of another person.
- The officer has reasonable belief that the person who is fleeing the scene has committed a felony as mentioned in s.776.08, which makes the law enforcement officer initiate the pursuit; and
- The officer is adhering to the written policy governing high-speed chases during the pursuit of the pursuant. Within the policy, there must be proper specifications as to begin the pursuit and properly terminate the high-speed chase. Proper training must have been given to the law enforcement officer regarding the policies governing high-speed chases.
(10)(a) The labeling of Department of Corrections representatives would be given to those individuals rendering health care services or treatments to the correctional system of the state inmates through a contractual agreement, but must adhere to the principles and guidelines in the contract. Those individuals include vendors, agents, health care providers, or their employees who have agreed to provide those services. Information of indemnification of the representative or state shall be mentioned in the contract for their liability
(b) No categorization of agents of employees of the state shall be given to individuals who render services or treatment to inmates for the purpose of chapter 440.
( c ) The creation of the Health Department in the State of Florida’s agents shall be formed in compliance with the s.395.1027 and the Health Department will be in charge of intervening, while the Children’s Medical Services Division will be required to supervise the poison control centers and their employees and representatives. Information of indemnification of the representative or state for any center for poison control will be listed in the contract for their liability.
(d) Any person providing services for maintenance of rail facilities or for Rail Corridor in South Florida, will be coined to be representatives of the state once those services have been provided, or anyone who is working on behalf of the Transportation Department of Regional Authority’s contract. Included in that are individuals who are providing security services, operators, dispatchers, and their agents and employees.
(e ) Classification of Department of Transportation representative will be provided to anyone rendering services of inspection or monitoring from a professional firm for the bridge of the state, construction, the roadway, or any other facility of transportation when the contract that was provided by the Transportation Department is being acted upon. This is done to ensure that the projects plans and specifications are performed as they should be. Information on the indemnification for an agent or state’s liability will be mentioned in the contract, for which the amount mentioned should not surpass the professional firm’s limit for negligence’s caused, which the attorney’s fees are included. No categorization of agents of employees of the state shall be given to individuals who render inspection services or monitoring purpose of chapter 440. This element does not apply to the professional firm or its employees that are involved in motor vehicle accidents. In addition, agents, subcontractors, or employees hired to construct or design a roadway or bridge by the Department of Transportation, do not apply to this paragraph.
(f) Those who have an accredited medical school in operation or own one in a location where a university or college of non-profit is situated, and have given permission and permitted their employees to render services to patients with the teaching hospital affiliation agreement, will be named as representatives of the teaching hospital will rendering services in response to the contract’s guidelines. Information on the indemnification for an agent or state’s liability for the teaching school will be mentioned in the contract, for which the amount mentioned should not surpass the teaching schools limit for negligence’s caused by the university, college, or their agents and employees. In addition, the medical school, college, or university that is providing such services in accordance with the guidelines in the contract must have the portions or limitations mentioned in the contract and as mentioned in s.119.011(2), will be considered as having acted on the public agency’s behalf.
- As mentioned in this paragraph, the following terms refer to:
(a) Those who have a university or college of non-profit located in a state where an accredited medical school is in operation or is owned, any of their servants, employees, officers, or agents, including, faculty of the medical school, practitioner or licensee of health care as stated in s.456.001, for where liability is clearly seen to be that of the college, university, or the medical school’s employees, is termed to be “Agent or employee”.
(b) “Patient services” refers to:
- S.641.19 comprehensive health care services, including administrative services or any related matter given to the patient within the setting of a teaching hospital;
- Patient services provided by any supervision or training of residents, interns, and fellows within the setting of a teaching hospital; or
- Supervision and training medical students within the setting of a teaching hospital
(c ) “Teaching hospital”, As mentioned in s.408.07, refers to the
any of the following whom have a teaching school or have one in operation: state, municipality, county, taxing district, government entity, public health trust, or a non-profit entity that is in operation of the facility as a representative of the state, or as the states political subdivision.
- Anyone who will be attending a university or college that is operating and performing their duties on behalf of the teaching school must be given that information, including the patient and anyone in charge of the patient. Such information must be supplied by the medical school, teaching school, or any employee thereof. Also, information regarding the contract disciplines being abided by must be provided in detail, along with information on the lawsuit by the university or college that has a medical school in operation or owns one. This notice can be completed by making it visible to all persons by displaying it or posting it in an area where the person will notice.
- The classification of agent or employee should not immediately apply to anyone who is offering contractual services of treatment or care to patients within a teaching hospital setting, for the reasoning behind chapter 440.
(11)(a) The classification of representatives of the Juvenile Justice Departments will be given to anyone who is giving juveniles, families, and children in need treatment or services of health care through a contractual agreement. Anyone, including medical professionals, vendors, representatives, or employees that pertain to them. Information of the individual or state in regards to their liability indemnification shall be explained in the contract.
(b) The classification of agent or employee should not immediately apply to anyone who provides contractual services to those in need, including to juveniles, for chapter 440 reasoning.
(12)(a) As defined in s.456.001(4), categorization of a representative of the State University board of trustees will be given to anyone who provides services to an athletic student for any intercollegiate activity or participation, if a contract agreement has been established while abiding by the contract’s guidelines. This includes training, competitions, and practices. Information of the agents or state indemnification of their liability that adds up to the amount listed here should be present in the contract.
(b) For the purpose of chapter 440, this subsection should not be interpreted as labeling individuals providing contracted services to athletes as agents or employees of the state university of board trustees.
(13) The terms of this act do not restrict the agency, state, or subdivision’s laws to buy insurance. They are still in effect and in force.
(14) No lawsuit can be created unless the claim has been properly filed with the correct agency in writing against the subdivision, state, or agency, within the time frame of three years after the negligence has occurred, unless if in s.768.31(4), a contribution action has been filed within the scope of s.95.11(4) for the damages acquired through the wrongful death or medical mistake.
(15) Anyone who unlawfully participates in an assembly, demonstration, riot, violence or civil disobedience cannot file a lawsuit against any agency, state, or subdivision. Statements made in court shall not abridge tradition immunities.
(16)(a) The purchasing of liability coverage, entering of a risk management program, or being self-insured is allowed for any subdivision, state, or agency that anticipates a judgment, claim, or claims bill in which they can be found liable for. Purchasing joint insurance or joining with self-insurers can be done for the purpose of obtaining protection to combat tort claims by sheriffs, agencies, and subdivision.
(b) Until all settlements and litigation claims streaming from the same negligent act have been abolished, the risk management program by the state and agencies that are holding files on the claims will be exempt from the requirements of s.24(a), the State Constitution Art I and s.119.07(1), must remain private, although some portions might still remain exempt. Upon demonstration of need and written request, governmental agencies can acquire the record of claim files, if not, they must be kept confidential and exempt.
(c ) Until all settlements and litigation claims streaming from the same negligent act have been abolished, the risk management program by the state, agencies, and subdivisions, meeting proceedings and portions of them that are related to the evaluation of the claims, will be exempt from the requirements of s.24(a), of the State Constitution Art I and s.119.07(1). An administrative or civil subpoena should not be grounds for any person involved with the discussions for the evaluation of the claims to provide such information.
(d) Until every settlement or litigation process for claims forming due to the same claim has ceased, exemptions from the requirements in s.24(b), the State Constitution Art I and s.286.011 take into account the time spent during the meetings created for the purpose of evaluating the claims by the program for risk management, state, agencies, or subdivisions.
(17)For any incident that took place on the day of October 1, 1981, or after that date, the following section is applicable, as the Laws of Florida has revised in chapter 81-317.
(18)Because immunity is granted because of the Unites States 11th Amendment of the Constitution, there should be no speculations about the waiver of sovereign immunity for any state or agency due to any elements that are present in the Florida Statutes for a federal lawsuit, regardless of it being read with other elements or this section, unless the waiving of immunity has been established by the state or agency. This subsection should not be interpreted that there has been a previous time where the state or agencies have waived their immunity through implication from any lawsuit in federal court in regards to any statute that was in existence on June 24, 1984.
(19) Liability limited is not increased nor is the sovereign immunity waived due to any contractual relationship that has been created between an agency, state, or subdivision. There must be no presence of elements requiring one part to insure or indemnify the assumption of the other party’s liability or presence of negligence within the contract. Providing indemnification and insurance are not prevented for non-governmental parties. Due to the inter-local agreement, any act or omission that is performed by the regional water supply is not impeded with the assumptions or indemnifications by the limitations present in this subsection. Any third-party plaintiffs deemed in this section should not be considered for the indemnification of increasing the limits of liability or waiving them.
(20) The Amendments of the Clean Air Act of the year 1990, 42 U.S.C.A. ss. 7401 et seq., authorizes a municipality or any agency to protect any of their employees who are exposed to a lawsuit of a personal injury liability. When an employee of either organization has performed an omission or act during their scope of their employment with such organization, then this act authorizes the protection of said employee. The protection includes maintaining or transferring indemnification, allocating the allowances to the electric generating units of the municipality or the agency, and monitoring, records, submission, plans of compliance, certification, and compliance with permits; reports of the unit. Any act or omission performed intentionally or willfully with such misconduct to violate the law will not be covered by this act. The protection given can be in form of providing their employee with legal representation or paying any fines, among other things.