Florida Senate - 2010                                    SB 2060
       
       
       
       By Senator Bennett
       
       
       
       
       21-01554-10                                           20102060__
    1                        A bill to be entitled                      
    2         An act relating to sovereign immunity; amending s.
    3         768.28, F.S.; providing that a subdivision of the
    4         state may pay a judgment in excess of statutory limits
    5         on the waiver of sovereign immunity without an act of
    6         the Legislature if it so chooses; providing that such
    7         payment in excess of the limits does not waive the
    8         subdivision’s defense of sovereign immunity or
    9         increase the limits of its liability; providing for an
   10         additional attorney fee in certain circumstances;
   11         amending s. 768.28, F.S., effective July 1, 2011;
   12         increasing the statutory limits on liability and
   13         providing for annual indexing of the limits for
   14         inflation; providing applicability; providing
   15         effective dates.
   16  
   17  Be It Enacted by the Legislature of the State of Florida:
   18  
   19         Section 1. Effective July 1, 2010, and applicable to claims
   20  arising on or after that date, subsections (5) and (8) of
   21  section 768.28, Florida Statutes, are amended to read:
   22         768.28 Waiver of sovereign immunity in tort actions;
   23  recovery limits; limitation on attorney fees; statute of
   24  limitations; exclusions; indemnification; risk management
   25  programs.—
   26         (5)(a) The state and its agencies and subdivisions shall be
   27  liable for tort claims in the same manner and to the same extent
   28  as a private individual under like circumstances, but liability
   29  shall not include punitive damages or interest for the period
   30  before judgment. Neither the state nor its agencies or
   31  subdivisions shall be liable to pay a claim or a judgment by any
   32  one person which exceeds the sum of $100,000 or any claim or
   33  judgment, or portions thereof, which, when totaled with all
   34  other claims or judgments paid by the state or its agencies or
   35  subdivisions arising out of the same incident or occurrence,
   36  exceeds the sum of $200,000. However, a judgment or judgments
   37  may be claimed and rendered in excess of these amounts and may
   38  be settled and paid pursuant to this act up to $100,000 or
   39  $200,000, as the case may be; and that portion of the judgment
   40  that exceeds these amounts may be reported to the Legislature,
   41  but may be paid in part or in whole only by further act of the
   42  Legislature. Notwithstanding the limited waiver of sovereign
   43  immunity provided in this paragraph herein, the state or an
   44  agency or subdivision thereof may agree, within the limits of
   45  insurance coverage provided, to settle a claim made or a
   46  judgment rendered against it without further action by the
   47  Legislature, but the state or agency or subdivision thereof
   48  shall not be deemed to have waived any defense of sovereign
   49  immunity or to have increased the limits of its liability as a
   50  result of its obtaining insurance coverage for tortious acts in
   51  excess of the $100,000 or $200,000 waiver provided above. The
   52  limitations of liability set forth in this paragraph subsection
   53  shall apply to the state and its agencies and subdivisions
   54  whether or not the state or its agencies or subdivisions
   55  possessed sovereign immunity before July 1, 1974.
   56         (b) A subdivision of the state shall be liable for tort
   57  claims in the same manner and to the same extent as a private
   58  individual under like circumstances, but liability shall not
   59  include punitive damages or interest for the period before
   60  judgment. A subdivision of the state shall not be liable to pay
   61  a claim or a judgment by any one person which exceeds the sum of
   62  $100,000 or any claim or judgment, or portions thereof, which,
   63  when totaled with all other claims or judgments paid by the
   64  subdivision of the state arising out of the same incident or
   65  occurrence, exceeds the sum of $200,000. Notwithstanding the
   66  limited waiver of sovereign immunity provided in this paragraph,
   67  a subdivision of the state may agree, within the limits of
   68  insurance coverage provided or other available funds, to settle
   69  a claim made or a judgment rendered against it without further
   70  action by the Legislature. However, if the subdivision does not
   71  agree to pay that portion of a settlement or a judgment rendered
   72  against it which is in excess of the limits of liability
   73  specified in this paragraph, in part or in whole, that portion
   74  of the settlement or judgment which exceeds those amounts and is
   75  not agreed to by the subdivision may be reported to the
   76  Legislature, but may be paid by the subdivision in part or in
   77  whole only by further act of the Legislature. The subdivision
   78  shall not be deemed to have waived any defense of sovereign
   79  immunity or to have increased the limits of its liability as a
   80  result of its obtaining insurance coverage for tortious acts in
   81  excess of the $100,000 or $200,000 waiver provided above or as a
   82  result of its having agreed to a settlement or to pay a judgment
   83  in an amount exceeding the limits of liability set forth in this
   84  paragraph. The limitations of liability set forth in this
   85  paragraph shall apply to subdivisions whether or not the
   86  subdivision possessed sovereign immunity before July 1, 1974.
   87         (8) No attorney may charge, demand, receive, or collect,
   88  for services rendered, fees in excess of 25 percent of any
   89  judgment or settlement plus an additional 5 percent of any
   90  recovery after the institution of any appellate proceeding is
   91  filed or postjudgment or postsettlement relief or action is
   92  required for recovery on the judgment or settlement.
   93         Section 2. Effective July 1, 2011, and applicable to claims
   94  arising on or after that date, subsection (5) of section 768.28,
   95  Florida Statutes, as amended by this act, is amended to read:
   96         768.28 Waiver of sovereign immunity in tort actions;
   97  recovery limits; limitation on attorney fees; statute of
   98  limitations; exclusions; indemnification; risk management
   99  programs.—
  100         (5)(a) The state and its agencies shall be liable for tort
  101  claims in the same manner and to the same extent as a private
  102  individual under like circumstances, but liability shall not
  103  include punitive damages or interest for the period before
  104  judgment. Neither the state nor its agencies shall be liable to
  105  pay a claim or a judgment by any one person which exceeds the
  106  sum specified in paragraph (c) of $100,000 or any claim or
  107  judgment, or portions thereof, which, when totaled with all
  108  other claims or judgments paid by the state or its agencies
  109  arising out of the same incident or occurrence, exceeds the sum
  110  of $200,000. However, a judgment or judgments may be claimed and
  111  rendered in excess of that amount these amounts and may be
  112  settled and paid pursuant to this act up to the amount specified
  113  in paragraph (c) $100,000 or $200,000, as the case may be; and
  114  that portion of the judgment that exceeds that amount these
  115  amounts may be reported to the Legislature, but may be paid in
  116  part or in whole only by further act of the Legislature.
  117  Notwithstanding the limited waiver of sovereign immunity
  118  provided in this paragraph, the state or an agency may agree,
  119  within the limits of insurance coverage provided, to settle a
  120  claim made or a judgment rendered against it without further
  121  action by the Legislature, but the state or agency shall not be
  122  deemed to have waived any defense of sovereign immunity or to
  123  have increased the limits of its liability as a result of its
  124  obtaining insurance coverage for tortious acts in excess of the
  125  amount set forth in paragraph (c) $100,000 or $200,000 waiver
  126  provided above. The limitations of liability set forth in this
  127  paragraph shall apply to the state and its agencies whether or
  128  not the state or its agencies possessed sovereign immunity
  129  before July 1, 1974.
  130         (b) A subdivision of the state shall be liable for tort
  131  claims in the same manner and to the same extent as a private
  132  individual under like circumstances, but liability shall not
  133  include punitive damages or interest for the period before
  134  judgment. A subdivision of the state shall not be liable to pay
  135  a claim or a judgment by any one person which exceeds the sum
  136  specified in paragraph (c) of $100,000 or any claim or judgment,
  137  or portions thereof, which, when totaled with all other claims
  138  or judgments paid by the subdivision of the state arising out of
  139  the same incident or occurrence, exceeds the sum of $200,000.
  140  Notwithstanding the limited waiver of sovereign immunity
  141  provided in this paragraph, a subdivision of the state may
  142  agree, within the limits of insurance coverage provided or other
  143  available funds, to settle a claim made or a judgment rendered
  144  against it without further action by the Legislature. However,
  145  if the subdivision does not agree to pay that portion of a
  146  settlement or a judgment rendered against it which is in excess
  147  of the amount limits of liability specified in this paragraph
  148  (c), in part or in whole, that portion of the settlement or
  149  judgment which exceeds that amount those amounts and is not
  150  agreed to by the subdivision may be reported to the Legislature,
  151  but may be paid by the subdivision in part or in whole only by
  152  further act of the Legislature. The subdivision shall not be
  153  deemed to have waived any defense of sovereign immunity or to
  154  have increased the limits of its liability as a result of its
  155  obtaining insurance coverage for tortious acts in excess of the
  156  amount set forth in paragraph (c) $100,000 or $200,000 waiver
  157  provided above or as a result of its having agreed to a
  158  settlement or to pay a judgment in an amount exceeding the
  159  amount limits of liability set forth in this paragraph (c). The
  160  limitations of liability set forth in this paragraph shall apply
  161  to subdivisions whether or not the subdivision possessed
  162  sovereign immunity before July 1, 1974.
  163         (c)1. Effective July 1, 2011, and applicable to claims made
  164  on or after that date, the limitation of liability for purposes
  165  of this subsection shall be $250,000 per claim or judgment by
  166  any one person.
  167         2. Effective July 1, 2012, and annually on each July 1
  168  thereafter, the amount specified in subparagraph 1. shall be
  169  adjusted to reflect the average of the change in the Consumer
  170  Price Index for all urban consumers and the change in the
  171  medical care component of the Consumer Price Index for all urban
  172  consumers, issued by the Bureau of Labor Statistics of the
  173  United States Department of Labor for the United States as a
  174  whole for the immediately preceding calendar year.
  175         Section 3. Except as otherwise expressly provided in this
  176  act, this act shall take effect July 1, 2010.