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House Bill 2119

Florida House of Representatives - 1997 HB 2119 By the Committee on Civil Justice & Claims and Representatives Warner, Clemons, Burroughs, Bradley, Flanagan, Byrd, Thrasher and Cosgrove 1 A bill to be entitled 2 An act relating to waiver of sovereign immunity 3 in tort actions; amending s. 768.28, F.S.; 4 providing certain governmental subdivisions 5 with the authority to settle certain claims 6 exceeding statutory limits; providing that 7 settlements which exceed the statutory limits 8 shall not waive any defense or immunity; 9 reenacting s. 111.071(1)(a) and (b), F.S., 10 relating to payment of judgments or settlements 11 against certain public officers or employees, 12 s. 190.043, F.S., relating to suits against 13 community development district, s. 234.03(1), 14 F.S., relating to tort liability of district 15 school board, s. 234.211(2)(b), F.S., relating 16 to use of school buses for public purposes, s. 17 760.11(5), F.S., relating to administrative and 18 civil remedies with respect to complaints filed 19 with the Florida Commission on Human Relations, 20 s. 766.203(1)(b), F.S., relating to presuit 21 investigation of medical negligence claims, s. 22 766.207(1), F.S., relating to voluntary binding 23 arbitration of medical negligence claims, and 24 s. 944.713(2), F.S., relating to insurance 25 against liability of private vendor, to 26 incorporate said amendment in references; 27 providing an effective date. 28 29 Be It Enacted by the Legislature of the State of Florida: 30 31 1 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 2119 686-113-97 1 Section 1. Subsection (5) of section 768.28, Florida 2 Statutes, is amended to read: 3 768.28 Waiver of sovereign immunity in tort actions; 4 recovery limits; limitation on attorney fees; statute of 5 limitations; exclusions; indemnification; risk management 6 programs.-- 7 (5) The state and its agencies and subdivisions shall 8 be liable for tort claims in the same manner and to the same 9 extent as a private individual under like circumstances, but 10 liability shall not include punitive damages or interest for 11 the period before judgment. Neither the state nor its 12 agencies or subdivisions shall be liable to pay a claim or a 13 judgment by any one person which exceeds the sum of $100,000 14 or any claim or judgment, or portions thereof, which, when 15 totaled with all other claims or judgments paid by the state 16 or its agencies or subdivisions arising out of the same 17 incident or occurrence, exceeds the sum of $200,000. However, 18 a judgment or judgments may be claimed and rendered in excess 19 of these amounts and may be settled and paid pursuant to this 20 act up to $100,000 or $200,000, as the case may be; and that 21 portion of the judgment that exceeds these amounts may be 22 reported to the Legislature, but may be paid in part or in 23 whole only by further act of the Legislature. Notwithstanding 24 the limited waiver of sovereign immunity provided herein, the 25 state or an agency or subdivision thereof may agree, within 26 the limits of insurance coverage provided, to settle a claim 27 made or a judgment rendered against it without further action 28 by the Legislature, but the state or agency or subdivision 29 thereof shall not be deemed to have waived any defense of 30 sovereign immunity or to have increased the limits of its 31 liability as a result of its obtaining insurance coverage for 2 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 2119 686-113-97 1 tortious acts in excess of the $100,000 or $200,000 waiver 2 provided above. Notwithstanding the limited waiver of 3 sovereign immunity provided herein, and irrespective of any 4 limits in insurance coverage, a subdivision, excluding the 5 state, state agencies, the Spaceport Florida Authority, and 6 other corporations primarily acting as instrumentalities or 7 agencies of the state, may agree to settle a judgment or jury 8 verdict rendered against it, in an amount not to exceed the 9 judgment or jury verdict, without further action by the 10 Legislature. By agreeing to such a settlement, the subdivision 11 shall not be deemed to have established any binding precedent, 12 nor shall it be deemed to have increased the limits of its 13 liability, nor shall it be deemed to have waived any defense 14 or immunity. The limitations of liability set forth in this 15 subsection shall apply to the state and its agencies and 16 subdivisions whether or not the state or its agencies or 17 subdivisions possessed sovereign immunity before July 1, 1974. 18 Section 2. For the purpose of incorporating the 19 amendment to section 768.28, Florida Statutes, in references 20 thereto, the sections or subdivisions of Florida Statutes set 21 forth below are reenacted to read: 22 111.071 Payment of judgments or settlements against 23 certain public officers or employees.-- 24 (1) Any county, municipality, political subdivision, 25 or agency of the state which has been excluded from 26 participation in the Insurance Risk Management Trust Fund is 27 authorized to expend available funds to pay: 28 (a) Any final judgment, including damages, costs, and 29 attorney's fees, arising from a complaint for damages or 30 injury suffered as a result of any act or omission of action 31 of any officer, employee, or agent in a civil or civil rights 3 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 2119 686-113-97 1 lawsuit described in s. 111.07. If the civil action arises 2 under s. 768.28 as a tort claim, the limitations and 3 provisions of s. 768.28 governing payment shall apply. If the 4 action is a civil rights action arising under 42 U.S.C. s. 5 1983, or similar federal statutes, payments for the full 6 amount of the judgment may be made unless the officer, 7 employee, or agent has been determined in the final judgment 8 to have caused the harm intentionally. 9 (b) Any compromise or settlement of any claim or 10 litigation as described in paragraph (a), subject to the 11 limitations set forth in that paragraph. 12 190.043 Suits against the district.--Any suit or 13 action brought or maintained against the district for damages 14 arising out of tort, including, without limitation, any claim 15 arising upon account of an act causing an injury or loss of 16 property, personal injury, or death, shall be subject to the 17 limitations provided in s. 768.28. 18 234.03 Tort liability; liability insurance.-- 19 (1) Each district school board shall be liable for 20 tort claims arising out of any incident or occurrence 21 involving a school bus or other motor vehicle owned, 22 maintained, operated, or used by such school board to 23 transport persons, to the same extent and in the same manner 24 as the state or any of its agencies or subdivisions is liable 25 for tort claims under s. 768.28, except that the total 26 liability to persons being transported for all claims or 27 judgments of such persons arising out of the same incident or 28 occurrence shall not exceed an amount equal to $5,000 29 multiplied by the rated seating capacity of the bus or other 30 vehicle, as determined by rules of the State Board of 31 Education, or $100,000, whichever is greater. The provisions 4 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 2119 686-113-97 1 of s. 768.28 shall apply to all claims or actions brought 2 against school boards, as authorized in this subsection. 3 234.211 Use of school buses for public purposes.-- 4 (2) 5 (b) For purposes of liability for negligence, state 6 agencies or subdivisions as defined in s. 768.28(2) shall be 7 covered by s. 768.28. Every other corporation or organization 8 shall provide liability insurance coverage in the minimum 9 amounts of $100,000 on any claim or judgment and $200,000 on 10 all claims and judgments arising from the same incident or 11 occurrence. 12 760.11 Administrative and civil remedies; 13 construction.-- 14 (5) In any civil action brought under this section, 15 the court may issue an order prohibiting the discriminatory 16 practice and providing affirmative relief from the effects of 17 the practice, including back pay. The court may also award 18 compensatory damages, including, but not limited to, damages 19 for mental anguish, loss of dignity, and any other intangible 20 injuries, and punitive damages. The provisions of ss. 768.72 21 and 768.73 do not apply to this section. The judgment for the 22 total amount of punitive damages awarded under this section to 23 an aggrieved person shall not exceed $100,000. In any action 24 or proceeding under this subsection, the court, in its 25 discretion, may allow the prevailing party a reasonable 26 attorney's fee as part of the costs. It is the intent of the 27 Legislature that this provision for attorney's fees be 28 interpreted in a manner consistent with federal case law 29 involving a Title VII action. The right to trial by jury is 30 preserved in any such private right of action in which the 31 aggrieved person is seeking compensatory or punitive damages, 5 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 2119 686-113-97 1 and any party may demand a trial by jury. The commission's 2 determination of reasonable cause is not admissible into 3 evidence in any civil proceeding, including any hearing or 4 trial, except to establish for the court the right to maintain 5 the private right of action. A civil action brought under this 6 section shall be commenced no later than 1 year after the date 7 of determination of reasonable cause by the commission. The 8 commencement of such action shall divest the commission of 9 jurisdiction of the complaint, except that the commission may 10 intervene in the civil action as a matter of right. 11 Notwithstanding the above, the state and its agencies and 12 subdivisions shall not be liable for punitive damages. The 13 total amount of recovery against the state and its agencies 14 and subdivisions shall not exceed the limitation as set forth 15 in s. 768.28(5). 16 766.203 Presuit investigation of medical negligence 17 claims and defenses by prospective parties.-- 18 (1) Presuit investigation of medical negligence claims 19 and defenses pursuant to this section and ss. 766.204-766.206 20 shall apply to all medical negligence, including dental 21 negligence, claims and defenses. This shall include: 22 (b) Rights of action involving the state or its 23 agencies or subdivisions, or the officers, employees, or 24 agents thereof, pursuant to s. 768.28 and defenses thereto. 25 766.207 Voluntary binding arbitration of medical 26 negligence claims.-- 27 (1) Voluntary binding arbitration pursuant to this 28 section and ss. 766.208-766.212 shall not apply to rights of 29 action involving the state or its agencies or subdivisions, or 30 the officers, employees, or agents thereof, pursuant to s. 31 768.28. 6 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 HB 2119 686-113-97 1 944.713 Insurance against liability.-- 2 (2) The contract shall provide for indemnification of 3 the state by the private vendor for any liabilities incurred 4 up to the limits provided under s. 768.28(5). The contract 5 shall provide that the private vendor, or the insurer of the 6 private vendor, is liable to pay any claim or judgment for any 7 one person which does not exceed the sum of $100,000 or any 8 claim or judgment, or portions thereof, which, when totaled 9 with all other claims or judgments arising out of the same 10 incident or occurrence, does not exceed the sum of $200,000. 11 In addition, the contractor must agree to defend, hold 12 harmless, and indemnify the department against any and all 13 actions, claims, damages and losses, including costs and 14 attorney's fees. 15 Section 3. This act shall take effect upon becoming a 16 law. 17 18 ***************************************** 19 HOUSE SUMMARY 20 Revises provisions relating to waiver of sovereign 21 immunity in tort actions. Provides certain governmental subdivisions with the authority to settle certain claims 22 exceeding statutory limits. Provides that settlements which exceed the statutory limits shall not waive any 23 defense or immunity. 24 25 26 27 28 29 30 31 7