768.28Waiver of sovereign immunity in tort claims; recovery limits; limitation of attorneys' fees; statute of limitations; exclusions; Damage payment; risk management programs.— (1)According to p. 13, art. X of the state constitution, the state waives sovereign immunity for tortious acts for itself and its organs or subdivisions, but only to the extent specified in this law. Actions against the State or any agency or department thereof, seeking tort damages for monetary damages against the State or its agencies or departments for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of a Employee of the agency or sub-department while acting in the course of the employee's office or employment under circumstances in which the state or such agency or sub-department, if a private individual, would be liable to the applicant under the common laws of that State, subject to the limitations set forth in this Act, may be prosecuted. Such an action may be brought in the county where the disputed property is located or, if the agency or department concerned has an office in that county for the conduct of its ordinary business, in which the cause of action arose. However, such a lawsuit against a state university board of trustees shall be brought in the district in which that university's main campus is located or in the district in which the cause of action arose if the university maintains a significant presence there to conduct its normal business . (2)For purposes of this Act, “state agencies or departments” include the executive departments, the legislature, the judiciary (including public defenders) and the independent agencies of the state, including state university boards of trustees; counties and municipalities; and corporations that function primarily as state, county or local government agencies or agencies, including the Florida Space Authority. (3)With the exception of a municipality and the Florida Space Authority, the affected agency or subdivision may, in its sole discretion, seek the assistance of the Department of Financial Services in reviewing, adjusting and resolving claims under this statute. (4)Subject to the provisions of this Section, any governmental agency or department shall have the right to appeal any arbitration award, settlement, settlement or decision to the court of competent jurisdiction. (5)The State and its agencies and departments shall be liable for tort claims in the same manner and to the same extent as a private individual in similar circumstances, but liability shall not include punitive damages or interest accruing prior to the judgment. Neither the State nor any of its agencies or departments shall be liable for the payment of any claim or judgment by any individual in excess of $200,000 or any claim or judgment, or any portion thereof, paid in conjunction with any other claim or judgment of the state or its agencies or departments resulting from the same incident or event exceeds $300,000. However, one or more judgments in excess of those amounts may be entered and entered and settled and paid under this Act up to $200,000 and $300,000 respectively; and that portion of the judgment exceeding these amounts may be reported to the legislature, but may be paid in part or in full only by a further act of the legislature. Notwithstanding the limited waiver of sovereign immunity provided herein, the State, or any agency or division thereof, may, within the limits of the insurance coverage provided, agree to settle any claim or judgment rendered against it without further action by the legislature, but by the State or any agency or sub-division thereof shall not be deemed to have waived the defense of state immunity or increased the limits of its liability because it has obtained tort insurance coverage in excess of the $200,000 or $300,000 waiver set forth above. The limitations of liability set forth in this subsection apply to the State and its agencies and departments, whether or not the State or its agencies or departments enjoyed state immunity prior to July 1, 1974. (6)(a)No action may be brought against the State or any agency or department thereof unless the claimant files the claim in writing with the appropriate agency, and also, except for claims against a municipality, county, or Florida Space Agency submit such claim in writing to the Department of Financial Services within 3 years after such claim arose and the Department of Financial Services or the applicable authority denies the claim in writing; except when: 1.The entitlement to payment of contributions according to768.31, it must be submitted within 6 months after the judgment against the claimant to contribute has become final by expiry of the appeal period or after an appeal has been reviewed, or, if no such judgment is rendered, within 6 months after the claimant to claim harm has been discharged from joint liability by payment or agreeing while the action against him or her is pending to discharge joint liability; or 2.For such wrongful death claim, the claimant must file the claim in writing with the Department of Financial Services within 2 years of the claim arising. (B)For purposes of this Section, the requirements of notice to the Agency and denial of the claim under paragraph (a) are conditions precedent to the continuation of a claim but shall not be deemed elements of the cause of action and shall not affect the date on which the cause of action arises . (C)The applicant must also provide the agency with the applicant's date and place of birth and social security number if the applicant is an individual, or a federal identification number if the applicant is not an individual. The applicant must also identify the nature of the proceeding, the court, the nature and amount of any penalties imposed, fines, charges, Victim Compensation Fund, and any other $200 judgments imposed by any civil, criminal, or administrative court on the applicant to the state, its agency, official or subdivision. If there is no previously adjudicated unpaid claim greater than $200, the claimant must disclose this. (D)For purposes of this section, full, accurate and timely compliance with the requirements of paragraph (c) must occur prior to the settlement payment, the conclusion of the discovery, or the commencement of the legal proceeding, whichever is earlier; provided that the possibility of offsetting is not excluded due to the delay. This set-off applies only to that portion of the Settlement or Judgment payable to Plaintiff, less Plaintiff's reasonable attorneys' fees and costs. Incomplete or inaccurate disclosure of unpaid settled claims due to the state, its agency, officer, or subdivision may be excused by the court if evidence is produced that the plaintiff was unaware of a settled claim, and a reasonable investigation by, or on behalf of, the applicant to obtain the information from public records. Unless the Competent Authority has been notified of the information to be disclosed pursuant to paragraph (c) in a timely manner for a claim for set-off, an unexcused non-disclosure, upon hearing and court order, will result in the plaintiff being held liable for twice the original undisclosed amount Judgment and upon further application, the court decides for the agency in this amount. Except as provided in this subsection, failure by the Department of Treasury or relevant agency to make a final decision on a claim within 6 months of filing shall be deemed a final denial of the claim for purposes of this section. For purposes of this subsection, for medical malpractice claims and wrongful death claims, the failure of the Department of Treasury or relevant agency to make a final determination on a claim within 90 days of the filing of the claim shall constitute a final denial of the claim. The statute of limitations for medical malpractice and wrongful death claims is suspended for the time it takes for the Treasury Department or the appropriate agency to deny the claim. The provisions of this paragraph do not apply to claims that are based on a counterclaim in accordance with para.768.14. (7)For any action brought under this section, the process will be served on the chief of the applicable agency and, except in the case of a municipality, county or Florida Space Authority defendant, the Department of Financial Services; and the department or agency concerned has 30 days to comment. (8)No attorney may seek, demand, receive or collect fees in excess of 25 percent of any judgment or settlement for services rendered. (9)(a)No officer, employee or representative of the State or any department thereof shall be held personally liable in tort or named as a party defendant in any claim for injury or damage suffered as a result of any act, event or omission of act in the course of their employment or function, unless such officer, employee or agent has acted in bad faith or with malicious intent or in a manner that shows willful and willful misconduct of human rights, safety or property. However, such officer, employee or agent shall be deemed an adverse witness in a tort claim for injury or damage suffered as a result of any act, event or omission of act in the course of his employment or function. The exclusive remedy for any injury or damage suffered as a result of any act, event or omission of any officer, employee or representative of the State or any of its departments or constitutional officers shall be an action against any governmental agency or the head of such body in its ranks or in his official capacity or of the constitutional officer of whom an employee is an employee, employee or agent, unless such act or omission was done in bad faith or with malicious intent or in a manner which shows willful and willful disregard for human rights, security or property. The State or its departments shall not be liable in tort for the acts or omissions of any officer, employee or agent committed while acting outside the course and scope of his or her employment or in bad faith or with malicious intent or in any Wise acts of willful and willful disregard for human rights, security or property. (B)As used in this subsection, the term means: 1.“Employee” includes any volunteer firefighter. 2.“Employee, employee or agent” includes, but is not limited to, any healthcare provider when providing services pursuant to s.766.1115; any non-profit independent college or university resident and chartered in that state that owns or operates an accredited medical school and its employees or agents when providing patient services pursuant to paragraph (10)(f); and any Public Defender or her or his employee or agent, including, without limitation, an Assistant Public Defender and an Investigator. (C)Solely for purposes of waiving sovereign immunity, a Florida National Guard member is not acting in the capacity of government employment when performing duties under the provisions of Title 10 or Title 32 of the United States Code or other applicable federal statutes; and neither the State nor any individual shall be named in any action under this chapter arising out of the performance of any such federal obligation. (D)The employment agency of a law enforcement officer within the meaning of § 12 para.943.10shall not be liable for any injury, death or property damage caused or caused by any person fleeing from a law enforcement officer in a motor vehicle if: 1.Persecution is conducted in a manner that does not involve conduct by the officer that is so reckless or defective as to constitute a disregard for human life, human rights, safety or the property of another; 2.At the time the law enforcement officer initiates the pursuit, the officer has the reasonable assumption that the fleeing person has committed a violent crime within the meaning of Section 12, Para.776.08; And 3.Tracking is conducted by the officer under a written high-speed tracking policy adopted by the employment agency. The policy must include specific procedures regarding the correct method for initiating and terminating high-speed pursuit. The enforcement officer must have been trained by the employing authority on the written policy on high speed enforcement. (10 A)Healthcare providers or vendors, or their employees or agents, who have contracted to act as agents of the Department of Corrections to provide healthcare services to inmates of the state correctional system shall be deemed agents of the State of Florida, Department of Corrections for purposes of this Section , while acting within and in accordance with the policies set forth in this Agreement or by regulation. The treaties provide for the agent's indemnification of the State for all liabilities incurred up to the limits set forth in this chapter. (B)Nothing in this subsection shall be construed as identifying persons who provide contracted health care services to inmates as employees or agents of the state for the purposes of chapter 440. (C)For the purpose of this section, according to s.395.1027and coordinated and supervised by the Division of Children's Medical Services Prevention and Intervention of the Department of Health and Human Services or an employee or agent thereof shall be deemed to be agents of the Florida Department of Health and Human Services. All poison center contracts must, to the extent permitted by law, provide for agency indemnification of the State for any liabilities incurred up to the limits set forth in this chapter. (D)For purposes of this section, operators, dispatchers, and providers of rail transit service safety services and providers of rail facility maintenance services on the South Florida Rail Corridor, or their employees or agents, who perform such services under contract with and on behalf of South The Florida Regional Transportation Authority or Department of Transportation shall be deemed to be agents of the State when acting within and in accordance with the guidelines set forth in this contract or by regulation. (e)For purposes of this Section, a professional company providing supervision and inspection services for the work required for government road, bridge or other transportation facility construction projects, or any employee of the company providing such services, shall be deemed to be an agent of the Department of Transportation under the Company's contract with the Department of Transportation to ensure the project is built in accordance with the project's plans, specifications and contractual provisions. Any contract between the professional firm and the State shall, to the fullest extent permitted by law, provide for the indemnification of the Department from any liability, including reasonable attorneys' fees, incurred, up to the limits set forth in this Chapter, to the extent caused by the negligence of the Firm or his employees. Nothing in this paragraph shall be construed to refer to persons performing surveillance and inspection services as employees or agents of government for the purposes of chapter 440. This paragraph does not apply to the professional firm or its employees if they are involved in an accident while operating a motor vehicle. This paragraph does not apply to any company contracted by the Department of Transportation for the design or construction of a government road, bridge or other transportation facility construction project, or to its employees, agents or subcontractors. (F)For purposes of this section, any nonprofit independent college or university resident and chartered in this state that owns or operates an accredited medical school, or its employees or agents, and that has agreed in an affiliation agreement or other contract to or permit its employees or agents to perform Patient Services as an officer of a teaching hospital, shall be deemed to be an officer of the teaching hospital when acting within and in accordance with the policies set forth in the affiliation agreement or other agreement. To the maximum extent permitted by law, the contract shall provide for the indemnification of the teaching hospital, to the limits set forth in this chapter, by the officer against any liability caused by the negligence of the college or university or its employees or agents. The contract must also provide that those limited parts of the college, university or medical school that directly provide services under the contract and that are deemed to be agents of the teaching hospital for the purposes of this section are deemed to be acting on behalf of a public body within the meaning from § 12 para.119.011(2). 1.For the purposes of this paragraph, the term means: A."Employee or Agent" means an officer, employee, agent, or servant of a not-for-profit independent college or university located and chartered in this State that owns or operates an accredited medical school, including but not limited to the Faculty of Medicine Faculty , any naturopath or licensee within the meaning of s.456.001for which the college or university is vicariously liable, and the staff or administrators of the medical school. B.“Patient Services” means: (I)Comprehensive health care within the meaning of Art.641.19, including any related administrative services provided to patients in a teaching hospital; (II)training and supervision of interns, residents and fellows providing patient services in a teaching hospital; or (III)Training and supervision of medical students in a teaching hospital. C."Teaching hospital" means a teaching hospital within the meaning of Art.408.07owned or operated by the state, a county or municipality, a public health foundation, a special tax district, a governmental health care facility, or a not-for-profit entity that operates such facility as a representative of the state, or a political subdivision of the state, under a lease or other contract. 2.The teaching hospital or medical school or its staff or agents must inform each patient or the patient's legal representative that the college or university that owns or operates the medical school and the staff or agents of that college or university are authorized agents of the teaching hospital and that the exclusive remedy shall be for any injury or damage caused by any act or omission of the teaching hospital, college or university that owns or operates the medical school, or the employees or officers of the college or university im Within the scope of tasks under the affiliation contract or other contract with a teaching hospital by filing an action in accordance with the provisions of this section. This obligation to notify can be fulfilled by placing the notification in a place that is visible to all persons. 3.This paragraph does not designate an employee providing contracted patient services at a teaching hospital as an employee or agent of the State for purposes of Chapter 440. (G)For the purposes of this Section, the Executive Director of the Board of Nursing, when serving as the State Administrator of the Nursing Licensing Covenant pursuant to Section 12.464.0095, and any administrator, officer, director, employee or representative of the Interstate Commission of Nurse Licensure Compact Administrators shall be deemed to be agents of the state when acting in the course of their employment, duties or responsibilities in that state. The Commission will pay any claim or judgment under this Section and may maintain insurance coverage to pay such claim or judgment. (11)(a)Service providers or vendors, or their employees or agents, who have contracted to act on behalf of the State as agents of the Department of Juvenile Justice to provide services to children in need, families in need, or juvenile delinquents are agents of the State solely with respect to such services for the purposes of this section, while acting within and in accordance with the guidelines set forth by contract or regulation. A contract must provide for the indemnification of the State by the agent for all liabilities incurred up to the limits specified in this chapter. (B)This subsection does not refer to a person providing contracted services to juvenile offenders as an employee or agent of the state for purposes of chapter 440. (12)(a)Naturopath according to Art.456.001(4) who has contracted to act as an officer of a state college board of trustees for the medical care of a student-athlete for participation in or as a result of college sports, including team practices, training and competitions, shall be deemed an officer of the relevant state for purposes of this section Board of Trustees and acts within the framework and in accordance with the guidelines set out in this contract. The treaties provide for the agent's indemnification of the State for all liabilities incurred up to the limits set forth in this chapter. (B)Nothing in this subsection shall be construed to designate persons who provide contracted health care services to athletes as employees or officers of a public university board of trustees for purposes of chapter 440. (13)Laws permitting the state or its agencies or departments to purchase insurance continue in force and are not restricted in any way by the provisions of this law. (14)Any claim against the State or any agency or department thereof for damages for a negligent or wrongful act or omission under this section is forever barred unless the civil action is instituted by filing a complaint with the court of competent jurisdiction within 4 years thereafter such a claim arises; with the exception that a contribution action within the in s.768.31(4), and an action for damages due to medical malpractice or wrongful death must be filed within the limitation periods for such actions in s.95.11(4). (15)No action shall be brought against the State or any agency or department thereof for unlawful participation in any riot, unlawful gathering, public demonstration, mob violence or civil disobedience, if the claim arises out of such riot, unlawful Gathering or public demonstration results in mob violence or civil disobedience. Nothing in this law is intended to limit traditional immunities relating to testimony in court. (16)(a)The State and its agencies and departments are entitled to self-insure, participate in risk management programs, or have liability insurance for the coverage they choose, or any combination thereof, pending claims, judgments, and claims accounts to be paid by them may be required under this Section. Agencies or departments and sheriffs subject to homogeneous risks may purchase insurance jointly or combine as self-insurers to provide other means of protection against claims of tort, notwithstanding any statute or law to the contrary. (B)Claims records maintained by a risk management program administered by the State, its agencies and its departments are confidential and are governed by the provisions of s.119.07(1) and p. 24(a), Art. I of the State Constitution pending the termination of all litigation and settlement of any claim arising out of the same incident, although portions of the claims files may be exempt where otherwise provided by law. Claim file records may be shared with other government agencies upon written request and proof of need; such records retained by the receiving entity shall remain confidential and exempt in accordance with this paragraph. (C)Portions of meetings and procedures conducted as part of a risk management program administered by the State, its agencies or departments and relating solely to the evaluation of claims filed with the risk management program or relating solely to settlement offers for claims filed under the risk management program are of the provisions of the s.286.011and p. 24(b), art. I of the state constitution. Pending the completion of all litigation and resolution of all claims arising out of the same incident, persons privy to discussions regarding the evaluation of a submitted claim will not be subject to a subpoena in any administrative or civil proceeding related to the content of those discussions. (D)Minutes of the meetings and procedures of a risk management program administered by the state, its agencies or its departments, which relate solely to the evaluation of claims submitted to the risk management program or which relate solely to offers to settle claims submitted to the State risk management programs are subject to the provisions of the s.119.07(1) and p. 24(a), Art. I of the state constitution until the end of all legal disputes and settlement of all claims from the same incident. (17)This section, as amended by Chapter 81-317, Florida Laws, applies only to causes of action that arose on or after October 1, 1981. (18)Nothing in this section or any other section of the Florida Statutes, whether read separately or in conjunction with any other provision, shall be construed as giving the State or any agency thereof immunity from actions in the federal courts as such The immunity shall be guaranteed by the Eleventh Amendment to the United States Constitution, unless such waiver is expressly and definitively designated as a waiver of the immunity of the state and its agencies from actions in federal courts. Nothing in this subsection shall be construed to mean that the State has at any time impliedly waived its immunity or that of any of its agencies from actions in federal court by any statute existing prior to June 24, 1984. (19)Neither the State nor any agency or department of the State shall waive the defense of sovereign immunity or extend the limits of its liability by entering into any contractual relationship with any other agency or department of the State. Such contract shall not contain any provision requiring either party to indemnify or insure the other party for the negligence of the other party or to accept any liability for the negligence of the other party. This does not prevent a party from requiring a non-governmental body to provide such compensation or insurance. The limitations of this Subsection shall not prevent a regional water supply authority from indemnifying and assuming its member governments any obligations arising out of any past act or omission on or with property acquired by the authority from a member government and arising out of the acts or Omissions are found by the authority in the performance of activities provided for in an interlocal agreement. Such indemnification shall not be deemed to increase or otherwise waive the limits of liability to third party plaintiffs set forth in this Section.
(20)Each municipality and each agency thereof has the authority to undertake to indemnify those workers who are subject to personal liability under the Clean Air Act Amendments of 1990, 42 U.S.C.A. ss 7401 et seq. and all rules and regulations made to implement this Act, for acts performed in the course and extent of their employment with the municipality or its agency, including but not limited to indemnities in relation to holding, transferring or disposing of any allowances allocated to the municipality or its agency power generating units and the monitoring, filing, certifying and complying with permits, permit applications, records, compliance plans and reports for such units when such actions are performed within the framework and scope of their Employment with the municipality or its agency. The power to indemnify under this Section shall cover any action by an employee when such action is taken in the course of and within the scope of his or her employment with the municipality or its agency, but shall not cover intentional or intentional or knowing violation of any law by the employee. The power to seek relief under this section includes, but is not limited to, the power to pay fines and to provide legal representation in any claim.
Story.—S. 1, Chap. 73-313; S. 1, Chap. 74-235; pp. 1, 2, 3, Chap. 77-86; S. 9, Chap. 79-139; S. 1, Chap. 79-253; P. 284, Chap. 79-400; S. 1, Chap. 80-271; pp. 1, 2, Chap. 81-317; S. 1, Chap. 83-44; S. 1, Chap. 83-257; S. 1, Chap. 84-29; S. 1, Chap. 84-335; S. 21, Chap. 86-183; S. 1, Chap. 86-184; S. 3, Chap. 87-134; S. 2, Ch. 88-173; pp. 55, 61, Chap. 89-300; P. 92, Ch. 89-360; S. 8, Chap. 90-192; S. 3, Chap. 91-209; P. 112, Chap. 92-33; pp. 2, 11, Chap. 92-278; S. 1, Chap. 93-89; S. 34, Ch. 93-129; S. 1, Chap. 94-76; S. 2, Ch. 94-147; P. 70, Chap. 94-209; S. 21, Chap. 94-321; P. 428, Chap. 96-406; S. 34, Ch. 97-93; S. 1809, Chap. 97-102; S. 4, Chap. 98-402; P. 289, Chap. 99-8; S. 9, Chap. 2000-155; P. 97, Ch. 2002-20; S. 24, Ch. 2002-183; S. 2, Ch. 2002-401; S. 9, Chap. 2003-159; P. 1903, Chap. 2003-261; S. 1, Chap. 2003-290; S. 67, Chap. 2003-416; S. 1, Chap. 2006-234; S. 1, Chap. 2010-26; S. 1, Chap. 2011-113; S. 3, Chap. 2011-219; P. 126, Ch. 2012-184; S. 12, Ch. 2016-139; S. 33, Chap. 2017-175.