Florida's Sovereign Immunity Cap Increase: Law Or Not?

On January 11, 2024, the House Civil Justice Subcommittee approved a bill to reform Florida's sovereign immunity laws, which protect governments from lawsuits. Sponsored by Rep. Fiona McFarland, HB 569 would double the existing cap on damage awards from $200,000 per person and $300,000 per incident to $400,000 and $600,000, respectively. The bill would also allow local governments to negotiate higher settlements without seeking legislative approval and tie future cap increases to the Consumer Price Index. Despite opposition from local governments and other organizations, the bill passed with a vote of 17-1.

The history of sovereign immunity

Sovereign immunity is a legal doctrine that protects a sovereign or state entity from legal wrongdoings and immunity from civil lawsuits or criminal prosecution. The doctrine is based on the classical concept of sovereignty, which holds that a sovereign cannot be subjected to the jurisdiction of another without their approval. The idea was adopted from English law before Parliament rose to power, where the crown was above the people and English subjects could not file civil lawsuits against the monarchy or its agents.

In the United States, sovereign immunity typically applies to state, federal, and tribal governments, with local governments sometimes enjoying immunity from certain forms of suit, particularly in tort. Federal sovereign immunity prevents individuals from suing the federal government as an entity unless specified otherwise. However, the Federal Tort Claims Act (FTCA) allows individuals to sue federal employees for violating the duties of their role if negligence was a factor.

State sovereign immunity, on the other hand, prevents states from being sued in federal or state court without their consent. The Eleventh Amendment limits immunity to two specific situations in federal court, but the Supreme Court has held that immunity is derived from the structure of the original Constitution itself.

Sovereign immunity can be divided into two types: qualified and absolute. Qualified immunity shields government officials from liability if their activities are within the scope of their office, carried out in objective good faith, and do not violate a clearly established statutory or constitutional right. Absolute immunity, on the other hand, confers complete immunity from criminal prosecution and civil suits for damages on government officials acting within the scope of their duties.

The current sovereign immunity cap in Florida

Sovereign immunity is a type of legal protection that prevents the United States' federal or state governments and their departments from being sued for money damages in the case of tort claims (injury claims due to negligence) without their consent. This doctrine was adopted from English law before Parliament rose to power. The idea was that the crown was above the people, and English subjects could not file civil lawsuits against the monarchy or its agents.

In the US, sovereign immunity is justified as necessary to keep the government democratic, efficient, and effective. If the doctrine were not in place, the courts may be overwhelmed by civil claims, and the executive and legislative branches may not carry out their functions for fear of litigation.

Florida Statute 768.28 Title XLV allows individuals to bring a tort claim against the state government when the state's employees' actions resulted in property loss, personal injuries, or wrongful deaths. However, there are limitations to this waiver. The current sovereign immunity cap in Florida is $200,000 against one government agency and $300,000 against multiple government agencies. If a plaintiff believes they are owed more than that amount, they can file a petition with the Florida legislature and request more damages, although this process is complicated.

In January 2024, the Florida House Civil Justice Subcommittee voted 17-1 to approve HB 569, a bill that would double the existing cap to $400,000 per person and $600,000 per incident. The bill was proposed by Rep. Fiona McFarland, who argued that sovereign immunity, which refers to the divine right of kings, has no place in a modern democracy. Despite this, the bill has faced strong objections from charity hospitals, rural schools, and local governments.

The proposed changes to the cap

The bill, HB 569, sponsored by Rep. Fiona McFarland, R-Sarasota, proposed to double the cap on sovereign immunity in Florida. The bill would increase the cap on how much government agencies can be required to pay from $200,000 for payments to a single person to $400,000, and from $300,000 for multiple people involved in an incident to $600,000. This change would allow government agencies to settle lawsuits for higher amounts without needing to go through the lengthy and uncertain claim-bill process.

The proposal would also lead to annual increases in the caps based on the Consumer Price Index, a measure of inflation. This would ensure that the caps keep pace with the cost of living and prevent the real value of the caps from eroding over time.

Supporters of the bill, including Rep. Fiona McFarland, argued that the current caps are too low and do not provide adequate compensation for individuals who have been harmed by the government. The caps have not been increased in over a decade, despite steady inflation. As a result, individuals may not receive enough compensation to cover their losses or medical expenses.

In addition, the bill would remove the requirement for government agencies to seek legislative approval to negotiate higher settlements. This would streamline the process for individuals seeking compensation and reduce the burden on the legislature.

However, opponents of the bill, including cities, counties, school districts, and hospitals, argued that the proposed changes could lead to higher insurance costs and an increased number of lawsuits. They warned that the financial burden of increased payouts could threaten their ability to deliver essential services.

The arguments for the changes

The arguments for changing Florida's sovereign immunity laws include:

• Sovereign immunity, which protects governments from lawsuits, is an outdated concept that refers to the divine right of kings and has no place in a modern democracy.
• The current cap on damage awards is too low and has not changed in 15 years, despite inflation.
• The bill would allow local governments to negotiate higher settlements without first seeking legislative approval.
• The bill would tie future cap increases to the Consumer Price Index, ensuring that the cap remains fair and relevant.
• The bill would prohibit insurance companies from conditioning payments on the passage of a claims bill.
• The current system is "broken", and when an individual brings a claim against the government, they have no leverage.
• The current cap on damage awards means that there are people getting injured who are not being compensated.

The opposition to the changes

The opposition to the proposed changes to Florida's sovereign immunity laws comes from various local government bodies and organizations, including the Florida Association of Counties, the Florida League of Cities, the Safety Net Hospital Alliance of Florida, Miami-Dade County, Broward County, and the Panhandle Area Educational Consortium. They argue that the changes would bring about a drastic increase in the financial liability of local governments, which could have a detrimental effect on their ability to deliver essential services to residents.

For instance, the Florida League of Cities' deputy general counsel, David Cruz, warned that local governments cannot offset liability insurance costs by raising prices or reducing services in the same way that corporations can. He highlighted the essential services provided by firefighters as an example, stating that firefighters cannot be asked to sign a waiver before running into a burning building.

The Safety Net Hospital Alliance of Florida's general counsel, Mark Delegal, argued that the proposed changes would result in a significant cost increase for the alliance's eight health systems, which include teaching and children's hospitals. Delegal also asserted that increasing the caps on damages would lead to more lawsuits against government agencies. This sentiment was echoed by Bob Harris, the general counsel for the Panhandle Area Educational Consortium, who warned of skyrocketing insurance costs for small school districts, which are already struggling with high insurance expenses.

Local government officials, such as Boca Raton Mayor Scott Singer, expressed concern about the potential financial impact of the new caps, stating that it could mean millions or billions of dollars in additional expenses for their budgets. Singer also mentioned his opposition to millage increases as a means of covering these potential costs.

Clearwater Republican Senator Ed Hooper, who voted against the bill, shared similar concerns, suggesting that a $3 million payout could be devastating for a city.

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