CopyCited 17 times | Published | Florida 1st District Court of Appeal
...itative Services (HRS), thus precluding appellants, Douglas and David DeBolt, from proceeding against HRS on a negligence theory. Appellants contend that the trial court erred, first, in finding that HRS enjoys complete tort immunity by operation of Section 402.34, Florida Statutes (1981), and, second, in concluding that no genuine issues of material fact remain in dispute....
...s a discretionary, planning level decision for which HRS is immune from tort liability; [5] (2) HRS cannot be vicariously liable for the negligence of "attention home" parents, [6] and (3) HRS is completely immune from tort liability by operation of section 402.34, Florida Statutes....
...The record shows that the trial court based its decision to grant summary judgment on the second and third grounds raised by HRS, and on that court's conclusion that no material issues remained in dispute. Appellants first contend that HRS does not enjoy complete tort immunity under Section 402.34, Florida Statutes, which provides: The department is a body corporate and shall adopt and have a corporate seal....
...rida Statutes (1981), which in general terms provides that the State of Florida has "waive[d] sovereign immunity for liability for torts" for itself as well as for "its agencies or subdivisions." They further contend that the court's construction of section
402.34 as authorizing HRS to be barred from an action in tort, when neither the state nor its subdivisions are so exempt, constitutes a denial to them of their rights to equal protection of the laws and access to the courts. HRS responds that the legislature clearly intended that it be excluded from the state's general waiver of sovereign immunity and that section *224
402.34, being a statute specifically relating to its immunity from tort liability must prevail over section
768.28, a statute limiting sovereign immunity only in general terms....
...er "the history of the Act, the evil to be corrected, the purpose of the enactment, and the law then in existence bearing on the same subject." State Board of Accountancy v. Webb,
51 So.2d 296, 299 (Fla. 1951). A review of the legislative history of section
402.34, as well as the wording of the statute, convinces us that the legislature's purpose was not to grant unlimited immunity to HRS from actions in tort but rather to provide the then newly created department with the "corporate" powers essential to its functioning. [8] Our interpretation of section
402.34 is consistent with our recent recognition that section
402.34 does nothing more than define HRS' capacity to sue or be sued....
...er. Cauley v. City of Jacksonville,
403 So.2d 379, 385, 387 (Fla. 1981) (e.s.). In considering the different legislative purposes behind both statutes, it is next our task to reconcile their conflicts, if possible. We are urged by appellants to find section
402.34 unconstitutional on the grounds of equal protection and access to the courts. We will decline to do so if the relief requested may be granted on nonconstitutional grounds. See, Curless v. County of Clay,
395 So.2d 255 (Fla. 1st DCA 1981). Because we conclude that the conflict between sections
768.28 and
402.34 may be resolved by application of the rule of "implied repeal," we do not reach the constitutional issues presented by appellants....
...34, 39 (1916) (e.s.). Mindful that a "repeal by implication is not favored," State v. Dunmann,
427 So.2d 166, 168 (Fla. 1983), we nevertheless conclude that the implied repeal rule is particularly applicable in this case in which a specific statute (section
402.34), purportedly dealing with the sovereign immunity of a particular agency, conflicts with a general statute (section
768.28) that expresses the legislative intent to revise completely the law of Florida regarding sovereign immunity....
...y repealed section 812.041, the so-called "joy-riding statute."
427 So.2d at 168. An application of the above principles convinces us that the enactment of section
768.28, a general revision of Florida's law of sovereign immunity, impliedly repealed section
402.34 insofar as it purports to immunize HRS, a particular agency, from tort liability....
...State, Department of Health and Rehabilitative Services,
415 So.2d 765 (Fla. 1st DCA 1982), and Kirkland v. State, Department of Health and Rehabilitative Services,
424 So.2d 925 (Fla. 1st DCA 1983). The only case cited by HRS in which it has been held to have complete sovereign immunity by virtue of section
402.34 is the case of Swain v. Walker, ___ Fla. Supp. ___, No. 80-12326 (Fla. 11th Cir.Ct., August 27, 1981), wherein the Honorable Jack M. Turner of Dade County dismissed a tort action against HRS after concluding that section
402.34 deprived that court of subject matter jurisdiction. We do not find that case, which of course has no precedential value, persuasive. [8] Section
402.34, first enacted in 1969 as section 409.055 was part of a general effort to restructure Florida's executive branch by, among other things, creating the Department of Health and Rehabilitative Services. See, Ch. 69-106, Laws of Florida. Although that section was renumbered as section
402.34 in 1978, see Ch....
...78-433, § 17, Laws of Florida, no substantive changes have been made since its initial enactment. [9] In Bergen, HRS brought an action in conversion and prevailed in the trial court. On appeal, the corporation first raised the issue of HRS' lack of capacity to sue in tort based on section 402.34....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 1994 WL 31317
...ly be obtained in circuit court. The Comptroller is not a party to the instant petition. The crux of this dispute is whether the contract provision controls, requiring EDS to engage in an administrative procedure to resolve its complaint, or whether Section 402.34, Florida Statutes (1987), [4] requires EDS to litigate in circuit court, thereby rendering section 7.11 of the RFP unenforceable. EDS cites a number of cases holding either that statutes similar to section 402.34 provide a remedy in circuit court for actions against an agency involving breach of contract, or that there is no statutory authority permitting contractual disputes to be heard in an administrative forum....
...Gilman v. Butzloff,
155 Fla. 888, 891,
22 So.2d 263, 265 (1945); 22 Fla.Jur.2d Estoppel & Waiver § 87 (1980). Waiver does not apply, however, in transactions forbidden by statute or against public policy. 11 Fla.Jur.2d Contracts § 98 (1979). Although section
402.34 legally entitles EDS to sue HRS in circuit court for any alleged breach of contract, nothing in the statute provides that it is the exclusive forum, or prohibits EDS from waiving its right to judicial relief. Moreover, section
402.34 expressly gives HRS the power to contract, which obviously includes the power to agree to an alternative dispute resolution procedure....
...slature had expressly placed beyond the agency's regulatory powers. We do not consider Lee applicable, because the case at bar does not involve an attempt by the agency to create a regulatory power by contract that had been denied the agency by law. Section 402.34 fully empowers HRS to enter into contracts, and we have been cited to no statute disallowing parties with whom the agency contracts from engaging in alternative dispute resolutions....
...tration. Paid Prescriptions, Inc. v. Department of Health & Rehab. Servs.,
350 So.2d 100 (Fla. 1st DCA 1977). EDS contends that the result reached therein was approved only because the court considered the arbitration code [5] and the predecessor to section
402.34 [6] in pari materia as providing the requisite statutory authority....
...3d DCA) ("Permitting parties to litigate in court where there is a legal or contractual obligation to proceed only administratively, constitutes a departure from the essential requirements of law."), review denied,
613 So.2d 6 (Fla. 1992). [3] Florida On-Line Recipient Integrated Data Access. [4] Section
402.34 provides, in pertinent part, "The department......
