waiver of sovereign immunity in Florida

1997It did not, however, disturb Hill's broader statement that the waiver of sovereign immunity pursuant to section 768.28 extended to traditional torts but not to "constitutional torts." "[T]he creation of section 768.28, waiving sovereign immunity in certain circumstances, created no new causes of action against a governmental entity which did not previously exist." Huff v. Goldcoast Jet Ski Rentals, Inc., 515 So.2d 1349, 1350 (Fla. 4th DCA 1987) (citation omitted); see also Trianon Park Condominium Ass'n v. City of Hialeah, 468 So.2d 912 (Fla.1985).

1996In Trianon, the supreme court emphasized that this waiver of sovereign immunity did not create a new tort cause of action but merely eliminated the immunity which had previously been granted to the government. 468 So.2d at 914 .

2021Carrier Corp. v. Indian River Cty., 371 So. 2d 1010, 1020 (Fla. 1979) (recognizing that the waiver of sovereign immunity in section 768.28, Florida Statutes, does not extend to “discretionary governmental functions”); Trianon Park Condo.

1995In Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1020 (Fla. 1979), we attempted to flesh out the effect of the statutory waiver of immunity and, in doing so, carved out an exception to the waiver of immunity for "policy-making, planning or judgmental government functions." In other words, despite the rather straightforward and broad scope of the waiver of sovereign immunity in section 768.28, we held that certain "discretionary" [3] governmental functions remain immune from tort liability.

2026Regarding the breach of contract claim, Broward Health argued that under Pan-Am Tobacco Corp. v. Department of Corrections, 471 So. 2d 4, 6 (Fla. 1984), the waiver of sovereign immunity applied only to express, written contracts, not to the pamphlet-style informational notices at issue in this case.

2024The waiver of sovereign immunity for contract claims pertains “only to suits on express, written contracts.” Pan-Am, 471 So. 2d at 6 .

2024Home Assurance Co., 908 So. 2d at 472 (citing Manatee Cnty. v. Town of Longboat Key, 365 So. 2d 143, 147 (Fla. 1978) and Rabideau v. State, 409 So. 2d 1045, 1046 (Fla. 1982)); see also Seminole Tribe of Fla. v. Schinneller, 197 So. 3d 1216, 1220 (Fla. 4th DCA 2016) (“It is settled that a waiver of sovereign immunity cannot be implied but must be unequivocally expressed.”) (internal quotation marks omitted) (citation omitted). “[W]aiver will not be found as a product of inference or implication.” Am.

1994Manatee County v. Town of Longboat Key, 365 So.2d 143, 147 (Fla. 1978).

1999See Hess v. Metropolitan Dade County, 467 So.2d 297, 300 (Fla.1985)(legislature is the only entity that can provide a waiver of sovereign immunity).

1999See Hess v. Metropolitan Dade County, 467 So.2d 297, 300 (Fla.l985)(legislature is the only entity that can provide a waiver of sovereign immunity).

1994See also Wilkerson v. Butterworth, 492 So.2d 1169 (Fla. 4th DCA 1986). [5] McRae claims that since an "employing agency" includes the state or "any political subdivision thereof," and a sheriff has been held to be an agency of a political subdivision, Beard v. Hambrick, 396 So.2d 708 (Fla. 1981) (for purposes of application of the waiver of sovereign immunity statute, section 768.28, Fla. Stat.), a sheriff falls within the definition of "employing agency." However, this overlooks the relevant inquiry.

1991As the district court pointed out, our decision in Beard v. Hambrick, 396 So.2d 708 (Fla.1981), involved the question of whether the sheriff was subject to the waiver of sovereign immunity.

1989See, e.g., Crawford v. Department of Military Affairs, 412 So.2d 449 (Fla. 5th DCA), rev. denied, 419 So.2d 1196 (Fla. 1982) (negligent operation of vehicle). (emphasis added) Id. at 920 .

1987See, e.g., Crawford v. Dept. of Military Affairs, 412 So.2d 449 (Fla. 5th DCA), review denied, 419 So.2d 1196 (Fla. 1982) (negligent operation of vehicle). 468 So.2d at 920 .

2000We further conclude that these statutory provisions are sufficiently clear and unequivocal, see Spangler v. Florida State Turnpike Auth., 106 So.2d 421, 424 (Fla.1958), to constitute a waiver of sovereign immunity in connection with actions under Florida's Civil Rights Act.

2000Although a waiver of sovereign immunity by legislative enactment must be clear, specific, and unequivocal, see Spangler v. Florida State Turnpike, 106 So.2d 421, 424 (Fla.1958), no particular magic words are required.

2025See, e.g., County of Brevard v. Miorelli Eng’g, Inc., 703 So. 2d 1049, 1051 (Fla. 1997) (noting the “requirement of Pan Am that there first be an express written contract before there can be a waiver of sovereign immunity”). - 34 - It appears I depart from the majority though when it comes to assessing how specific a plaintiff seeking to overcome a sovereign immunity defense must be.

2024Cnty. of Brevard v. Miorelli Eng’g, Inc., 703 So. 2d 1049, 1051 (Fla. 4 1997) (stating “that there first be an express written contract before there can be a waiver of sovereign immunity”).

2021This Court reasoned “the waiver of sovereign immunity as to certain enumerated utilities in section 180.13 cannot and does not by inference apply to the City’s stormwater utility fees.” Id. at 498–99.

2019The majority and concurrence have improperly inferred a waiver of Pasco County's immunity from taxation when in fact "[t]he [l]egislature's inaction does not constitute a waiver of sovereign immunity." See City of Key West v. Fla. Keys Cmty. Coll., 81 So. 3d 494, 497-99 (Fla. 3d DCA 2012) (concluding that the State's sovereign immunity from the city's imposition of stormwater utility fees was not waived by inference). "[S]overeign immunity is the rule[] rather than the exception," and "the State enjoys sovereign immunity unless immunity is expressly waived." Id. at 497-98 (quoting Pan–Am Tobac

1983Arnold v. Shumpert, 217 So.2d 116 (Fla. 1968); Spangler v. Florida State *929 Turnpike Authority, 106 So.2d 421 (Fla. 1958).

1982See Arnold v. Schumpert, 217 So.2d 116 (Fla. 1968); Spangler v. Florida State Turnpike Authority, 106 So.2d 421 (Fla. 1958).

2024Instead, section 627.732(5) merely defines an “owner” as a “person” who holds the legal title to a motor vehicle, and chapter 627 does not separately define the terms “person” or “insurer.” 2 The importance of this distinction between chapter 627 and those statutes clearly stating a waiver of sovereign immunity is well-illustrated in State, Department of Elder Affairs v. Caldwell, 199 So. 3d 1107 (Fla. 1st DCA 2016), where the First District held that a statutory scheme similar to chapter 627 did not clearly waive sovereign immunity because it did not specifically include state entities in its

2024Instead, section 627.732(5) merely defines an “owner” as a “person” who holds the legal title to a motor vehicle, and chapter 627 does not separately define the terms “person” or “insurer.” 2 The importance of this distinction between chapter 627 and those statutes clearly stating a waiver of sovereign immunity is well-illustrated in State, Department of Elder Affairs v. Caldwell, 199 So. 3d 1107 (Fla. 1st DCA 2016), where the First District held that a statutory scheme similar to chapter 627 did not clearly waive sovereign immunity because it did not specifically include state entities in its

2002Our adherence to strict application of the waiver of sovereign immunity on behalf of the State is in accord with the federal courts' adherence to strict construction in respect to the waiver of sovereign immunity under the Federal Tort Claims Act (FTCA). [19] In Allgeier v. United States, 909 F.2d 869, 873 (6th Cir. 1990), the court stated: [S]uch considerations are insufficient to override our duty to construe strictly any waiver by the United States of its sovereign immunity.

2002Our adherence to strict application of the waiver of sovereign immunity on behalf of the State is in accord with the federal courts’ adherence to strict construction in respect to the waiver of sovereign immunity under the Federal Tort Claims Act (FTCA). 19 In Allgeier v. United States, 909 F.2d 869, 873 (6th Cir.1990), the court stated: [S]ueh considerations are insufficient to override our duty to construe strictly any waiver by the United States of its sovereign immunity.

2002See United States v. Kubrick, 444 U.S. 111, 117-18 , 100 S.Ct. 352 , 62 L.Ed.2d 259 (1979) (“we should not take it upon ourselves to extend the waiver beyond that which Congress intended”).

2002See United States v. Kubrick, 444 U.S. 111, 117-18 , 100 S.Ct. 352 , 62 L.Ed.2d 259 (1979) (“we should not take it upon ourselves to extend the waiver beyond that which Congress intended”).

1989In Avallone v. Board of County Commissioners of Citrus County , the supreme court held that the "purchase of tort liability insurance by a government entity, pursuant to section 286.28, constitutes a waiver of sovereign immunity up to the limits of insurance coverage and that this contingent waiver is independent of the general waiver in section 768.28." 493 So.2d at 1004-1005 .

1989The Florida Supreme Court held in Avallone that "purchase of tort liability insurance by a government entity, pursuant to section 286.28, constitutes a waiver of sovereign immunity up to the limits of insurance coverage and that this contingent waiver is independent of the general waiver in section 768.28." Avallone, 493 So.2d at 1004, 1005 . *131 After appellee filed her amended wrongful death action, but prior to trial, the legislature amended paragraph (5) of section 768.28 by enacting chapter 87-134, Laws of Florida, which became law on June 30, 1987.

2023We have previously explained that “a waiver of sovereign immunity ‘cannot be implied but must be unequivocally expressed.’” Seminole Police Dep’t. v. Casadella, 478 So. 2d 470, 471 (Fla. 4th DCA 1985) (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978)).

2016“Indian Nations are exempt from suit.” It is settled that a waiver of sovereign immunity “ ‘cannot be implied but must be unequivocally expressed.’ ” Id. at 58-59 , 98 S.Ct. 1670 (internal citations omitted).

2020Bd., 450 So. 2d 847, 848 (Fla. 1984).2 Courts determine whether there is a waiver of sovereign immunity based on legislative intent.

1985Ingraham v. Dade County School Board, 450 So.2d 847 (Fla.1984).

2025Such conduct falls outside the course and scope of employment because facilitating a rape is not “the type of conduct which the employee is hired to perform.” Craft, 575 So. 2d at 796 . 4 Because the correctional officers were acting outside the course and scope of employment, the waiver of sovereign immunity found in section 768.28(1) does not apply.

1995See Craft v. John Sirounis and Sons, Inc., 575 So.2d 795 (Fla. 4th DCA 1991).

2024Home Assurance Co., 908 So. 2d at 472 (citing Manatee Cnty. v. Town of Longboat Key, 365 So. 2d 143, 147 (Fla. 1978) and Rabideau v. State, 409 So. 2d 1045, 1046 (Fla. 1982)); see also Seminole Tribe of Fla. v. Schinneller, 197 So. 3d 1216, 1220 (Fla. 4th DCA 2016) (“It is settled that a waiver of sovereign immunity cannot be implied but must be unequivocally expressed.”) (internal quotation marks omitted) (citation omitted). “[W]aiver will not be found as a product of inference or implication.” Am.

1984Since a waiver of sovereign immunity must be clear and unequivocal, as well as strictly construed, see Rabideau, supra; Oliff, supra, the above-quoted provision should not be construed as providing any basis for an independent action which could be compensated only by subsequent legislative approval.

2023Additionally, any waiver must be “clear, explicit, and unmistakable.” Miccosukee Tribe of Indians v. Napoleoni, 890 So. 2d 1152, 1153 (Fla. 1st DCA 2004).

2005The First District reached a similar conclusion in Napoleoni, 890 So.2d at 1153 , rejecting an argument that a tribe's purchase of workers' compensation insurance "is an explicit waiver of tribal immunity." In reaching this conclusion, the court observed that the tribe had "explicitly rejected waiver" of its tribal immunity by its adoption of a "resolution establishing its own tribal workers' benefit system." Id. at 1153-54 .

2021And accordingly, because “Chapter 403, which specifically relates to stormwater utility fees, does not expressly waive sovereign immunity for stormwater utility fees, it is clear that the State has not waived sovereign immunity in Chapter 403.” Id. at 498 . 5 In doing so, this Court cited City of Gainesville v. State Department of Transportation, 920 So. 2d 53 (Fla. 1st DCA 2005), review denied, 935 So. 2d 1219 (Fla. 2006).

2012See also City of Gainesville v. Fla. Dep’t of Transp., 920 So.2d 53 (Fla. 1st DCA 2006), cert. denied, 935 So.2d 1219 (Fla.2006) (“Gainesville III ”) (rejecting a similar argument; finding that “chapter 180 does not provide a waiver of sovereign immunity for utilities authorized pursuant to chapter 403,” such as stormwater utilities; and stating, “chapter 180 has a very specific listing of the municipal services included within its scope.

2021And accordingly, because “Chapter 403, which specifically relates to stormwater utility fees, does not expressly waive sovereign immunity for stormwater utility fees, it is clear that the State has not waived sovereign immunity in Chapter 403.” Id. at 498 . 5 In doing so, this Court cited City of Gainesville v. State Department of Transportation, 920 So. 2d 53 (Fla. 1st DCA 2005), review denied, 935 So. 2d 1219 (Fla. 2006).

2012See also City of Gainesville v. Fla. Dep’t of Transp., 920 So.2d 53 (Fla. 1st DCA 2006), cert. denied, 935 So.2d 1219 (Fla.2006) (“Gainesville III ”) (rejecting a similar argument; finding that “chapter 180 does not provide a waiver of sovereign immunity for utilities authorized pursuant to chapter 403,” such as stormwater utilities; and stating, “chapter 180 has a very specific listing of the municipal services included within its scope.

2010The supreme court began its analysis by noting that the waiver of sovereign immunity resulted in new governmental liability, and that section 768.28(9) was the Legislature's attempt to "address[ ] the effect which the introduction of governmental liability has on the liability or immunity of the individual state employee." Id. at 700 (footnote omitted).

2010The supreme court began its analysis by noting that the waiver of sovereign immunity resulted in new governmental liability, and that section 768.28(9) was the Legislature’s attempt to “address[] the effect which the introduction of governmental liability has on the liability or immunity of the individual state employee.” Id. at 700 (footnote omitted).

2025See Pollock v. Fla. Dep't of Highway Patrol, 882 So. 2d 928, 933 (Fla. 2004) ("[B]asic judgmental or discretionary governmental functions are immune from legal action, whereas operational acts are not protected by sovereign immunity.").

2024Home Assurance Co., 908 So. 2d at 472 (citing Manatee Cnty. v. Town of Longboat Key, 365 So. 2d 143, 147 (Fla. 1978) and Rabideau v. State, 409 So. 2d 1045, 1046 (Fla. 1982)); see also Seminole Tribe of Fla. v. Schinneller, 197 So. 3d 1216, 1220 (Fla. 4th DCA 2016) (“It is settled that a waiver of sovereign immunity cannot be implied but must be unequivocally expressed.”) (internal quotation marks omitted) (citation omitted). “[W]aiver will not be found as a product of inference or implication.” Am.