Senate Bill sb2138

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    Florida Senate - 2001                                  SB 2138

    By Senator Burt





    16-1348A-01

  1                      A bill to be entitled

  2         An act relating to state motor vehicles;

  3         amending s. 287.17, F.S.; providing that

  4         vehicles assigned to state law enforcement

  5         officers and employees are covered by state

  6         collision insurance during certain off-duty

  7         activities; amending s. 768.28, F.S.; waiving

  8         sovereign immunity for vicarious liability of

  9         the state or any of its agencies and

10         subdivisions when an employee is operating a

11         motor vehicle outside the course and scope of

12         employment; providing an effective date.

13

14  Be It Enacted by the Legislature of the State of Florida:

15

16         Section 1.  Subsection (4) of section 287.17, Florida

17  Statutes, is amended to read:

18         287.17  Limitation on use of motor vehicles and

19  aircraft.--

20         (4)  An agency head, as defined in s. 287.012, shall

21  comply with the following criteria for the special assignment

22  of motor vehicles:

23         (a)  An agency head may assign a motor vehicle to a

24  state officer or employee only if the officer or employee is

25  projected to drive the motor vehicle a minimum of 10,000 miles

26  annually on official state business, unless an agency head

27  annually provides written justification for the need of the

28  assignment of a motor vehicle. Commuting mileage incidental to

29  use of the motor vehicle on official state business shall be

30  excluded from calculating the projected mileage. Priority in

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    Florida Senate - 2001                                  SB 2138
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  1  assigning motor vehicles shall be given to those employees who

  2  drive over 15,000 miles annually on state business.

  3         (b)1.  An agency head may assign motor vehicles to

  4  state officers and employees who perform duties related to law

  5  enforcement. However, the agency head shall not assign a

  6  pursuit motor vehicle to an officer or employee whose job

  7  duties do not routinely require performance of a patrol or law

  8  enforcement function requiring a pursuit vehicle.

  9         2.  Such vehicles are covered by state collision

10  insurance while the officers or employees are engaged in

11  official state business, including incidental stops while

12  commuting to and from work, authorized lunch breaks, and

13  off-duty law enforcement details that involve the protection

14  of persons or property.

15         Section 2.  Subsections (1), (5), and (19) and

16  paragraph (a) of subsection (9) of section 768.28, Florida

17  Statutes, are amended to read:

18         768.28  Waiver of sovereign immunity in tort actions;

19  recovery limits; limitation on attorney fees; statute of

20  limitations; exclusions; indemnification; risk management

21  programs.--

22         (1)  In accordance with s. 13, Art. X of the State

23  Constitution, the state, for itself and for its agencies or

24  subdivisions, hereby waives sovereign immunity for liability

25  for torts, but only to the extent specified in this act.

26  Actions at law against the state or any of its agencies or

27  subdivisions to recover damages in tort for money damages

28  against the state or its agencies or subdivisions for injury

29  or loss of property, personal injury, or death caused by the

30  negligent or wrongful act or omission of any employee of the

31  agency or subdivision while acting within the scope of the

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    Florida Senate - 2001                                  SB 2138
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  1  employee's office or employment under circumstances in which

  2  the state or such agency or subdivision, if a private person,

  3  would be liable to the claimant, in accordance with the

  4  general laws of this state, may be prosecuted subject to the

  5  limitations specified in this act. Further, actions at law

  6  against the state or its agencies or subdivisions, as owner of

  7  a motor vehicle, to recover damages in tort for money damages

  8  against the state or its agencies or subdivisions for injury

  9  or loss of property, personal injury, or death caused by the

10  negligent or wrongful act or omission of any employee of the

11  agency or subdivision in the operation of that motor vehicle,

12  or for the acts of the employee in connection with operating

13  the vehicle, while the employee operator was not acting in the

14  course and scope of employment, may be prosecuted subject to

15  the limitations in this act. Any such action may be brought in

16  the county where the property in litigation is located or, if

17  the affected agency or subdivision has an office in such

18  county for the transaction of its customary business, where

19  the cause of action accrued.

20         (5)  The state and its agencies and subdivisions shall

21  be liable for tort claims in the same manner and to the same

22  extent as a private individual under like circumstances, but

23  liability shall not include punitive damages or interest for

24  the period before judgment.  Neither the state nor its

25  agencies or subdivisions shall be liable to pay a claim or a

26  judgment by any one person which exceeds the sum of $100,000

27  or any claim or judgment, or portions thereof, which, when

28  totaled with all other claims or judgments paid by the state

29  or its agencies or subdivisions arising out of the same

30  incident or occurrence, exceeds the sum of $200,000, except

31  that when the state or its agencies or subdivisions own a

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    Florida Senate - 2001                                  SB 2138
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  1  motor vehicle in accordance with s. 324.021(9) and the

  2  employee of that agency or subdivision was acting outside the

  3  scope of the employee's office or employment in the operation

  4  of the motor vehicle, the state shall be liable to the same

  5  extent and in the same manner as an owner of a motor vehicle

  6  under the provisions of s. 324.021(9)(b)3., and the employee

  7  shall be considered a permissive user for purposes of the

  8  application of this section.  However, a judgment or judgments

  9  may be claimed and rendered in excess of these amounts and may

10  be settled and paid pursuant to this act up to $100,000 or

11  $200,000, or the limits provided in s. 324.021(9) as the case

12  may be; and that portion of the judgment that exceeds these

13  amounts may be reported to the Legislature, but may be paid in

14  part or in whole only by further act of the Legislature.

15  Notwithstanding the limited waiver of sovereign immunity

16  provided herein, the state or an agency or subdivision thereof

17  may agree, within the limits of insurance coverage provided,

18  to settle a claim made or a judgment rendered against it

19  without further action by the Legislature, but the state or

20  agency or subdivision thereof shall not be deemed to have

21  waived any defense of sovereign immunity or to have increased

22  the limits of its liability as a result of its obtaining

23  insurance coverage for tortious acts in excess of the $100,000

24  or $200,000 or other waiver provided above.  The limitations

25  of liability set forth in this subsection shall apply to the

26  state and its agencies and subdivisions whether or not the

27  state or its agencies or subdivisions possessed sovereign

28  immunity before July 1, 1974.

29         (9)(a)  No officer, employee, or agent of the state or

30  of any of its subdivisions shall be held personally liable in

31  tort or named as a party defendant in any action for any

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    Florida Senate - 2001                                  SB 2138
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  1  injury or damage suffered as a result of any act, event, or

  2  omission of action in the scope of her or his employment or

  3  function, unless such officer, employee, or agent acted in bad

  4  faith or with malicious purpose or in a manner exhibiting

  5  wanton and willful disregard of human rights, safety, or

  6  property.  However, such officer, employee, or agent shall be

  7  considered an adverse witness in a tort action for any injury

  8  or damage suffered as a result of any act, event, or omission

  9  of action in the scope of her or his employment or function.

10  The exclusive remedy for injury or damage suffered as a result

11  of an act, event, or omission of an officer, employee, or

12  agent of the state or any of its subdivisions or

13  constitutional officers shall be by action against the

14  governmental entity, or the head of such entity in her or his

15  official capacity, or the constitutional officer of which the

16  officer, employee, or agent is an employee, unless such act or

17  omission was committed in bad faith or with malicious purpose

18  or in a manner exhibiting wanton and willful disregard of

19  human rights, safety, or property. The state or its

20  subdivisions shall not be liable in tort for the acts or

21  omissions of an officer, employee, or agent committed while

22  acting outside the course and scope of her or his employment

23  or committed in bad faith or with malicious purpose or in a

24  manner exhibiting wanton and willful disregard of human

25  rights, safety, or property, except as provided in s.

26  324.021(9)(b)3., in which case a state agency owning the motor

27  vehicle shall be directly responsible for payment of any

28  resulting settlement or judgment.

29         (19)  Every municipality, and any agency thereof, is

30  authorized to undertake to indemnify those employees that are

31  exposed to personal liability pursuant to the Clean Air Act

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    Florida Senate - 2001                                  SB 2138
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  1  Amendments of 1990, 42 U.S.C.A. ss. 7401 et seq., and all

  2  rules and regulations adopted to implement that act, for acts

  3  performed within the course and scope of their employment with

  4  the municipality or its agency, including but not limited to

  5  indemnification pertaining to the holding, transfer, or

  6  disposition of allowances allocated to the municipality's or

  7  its agency's electric generating units, and the monitoring,

  8  submission, certification, and compliance with permits, permit

  9  applications, records, compliance plans, and reports for those

10  units, when such acts are performed within the course and

11  scope of their employment with the municipality or its agency.

12  The authority to indemnify under this section covers every act

13  by an employee when such act is performed within the course

14  and scope of her or his employment with the municipality or

15  its agency or as otherwise provided in this section, but does

16  not cover any act of willful misconduct or any intentional or

17  knowing violation of any law by the employee. The authority to

18  indemnify under this section includes, but is not limited to,

19  the authority to pay any fine and provide legal representation

20  in any action.

21         Section 3.  This act shall take effect July 1, 2001.

22

23            *****************************************

24                          SENATE SUMMARY

25    Provides that certain state vehicles assigned to state
      law enforcement officers and employees are covered by the
26    state collision insurance at specified times. Waives
      sovereign immunity for vicarious liability of the state
27    or it agencies and subdivisions when an employee operates
      a motor vehicle outside the scope of the employee's
28    office or employment.

29

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