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Florida Statute 768.28 | Lawyer Caselaw & Research
F.S. 768.28 Case Law from Google Scholar
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The 2022 Florida Statutes (including 2022 Special Session A and 2023 Special Session B)

Title XLV
TORTS
Chapter 768
NEGLIGENCE
View Entire Chapter
F.S. 768.28
768.28 Waiver of sovereign immunity in tort actions; recovery limits; civil liability for damages caused during a riot; limitation on attorney fees; statute of limitations; exclusions; indemnification; risk management programs.
(1) In accordance with s. 13, Art. X of the State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of the employee’s office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act. Any such action may be brought in the county where the property in litigation is located or, if the affected agency or subdivision has an office in such county for the transaction of its customary business, where the cause of action accrued. However, any such action against a state university board of trustees shall be brought in the county in which that university’s main campus is located or in the county in which the cause of action accrued if the university maintains therein a substantial presence for the transaction of its customary business.
(2) As used in this act, “state agencies or subdivisions” include the executive departments, the Legislature, the judicial branch (including public defenders), and the independent establishments of the state, including state university boards of trustees; counties and municipalities; and corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities, including the Florida Space Authority.
(3) Except for a municipality and the Florida Space Authority, the affected agency or subdivision may, at its discretion, request the assistance of the Department of Financial Services in the consideration, adjustment, and settlement of any claim under this act.
(4) Subject to the provisions of this section, any state agency or subdivision shall have the right to appeal any award, compromise, settlement, or determination to the court of appropriate jurisdiction.
(5)(a) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period before judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $200,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $300,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $200,000 or $300,000, as the case may be; and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature. Notwithstanding the limited waiver of sovereign immunity provided herein, the state or an agency or subdivision thereof may agree, within the limits of insurance coverage provided, to settle a claim made or a judgment rendered against it without further action by the Legislature, but the state or agency or subdivision thereof shall not be deemed to have waived any defense of sovereign immunity or to have increased the limits of its liability as a result of its obtaining insurance coverage for tortious acts in excess of the $200,000 or $300,000 waiver provided above. The limitations of liability set forth in this subsection shall apply to the state and its agencies and subdivisions whether or not the state or its agencies or subdivisions possessed sovereign immunity before July 1, 1974.
(b) A municipality has a duty to allow the municipal law enforcement agency to respond appropriately to protect persons and property during a riot or an unlawful assembly based on the availability of adequate equipment to its municipal law enforcement officers and relevant state and federal laws. If the governing body of a municipality or a person authorized by the governing body of the municipality breaches that duty, the municipality is civilly liable for any damages, including damages arising from personal injury, wrongful death, or property damages proximately caused by the municipality’s breach of duty. The sovereign immunity recovery limits in paragraph (a) do not apply to an action under this paragraph.
(6)(a) An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality, county, or the Florida Space Authority, presents such claim in writing to the Department of Financial Services, within 3 years after such claim accrues and the Department of Financial Services or the appropriate agency denies the claim in writing; except that, if:
1. Such claim is for contribution pursuant to s. 768.31, it must be so presented within 6 months after the judgment against the tortfeasor seeking contribution has become final by lapse of time for appeal or after appellate review or, if there is no such judgment, within 6 months after the tortfeasor seeking contribution has either discharged the common liability by payment or agreed, while the action is pending against her or him, to discharge the common liability; or
2. Such action is for wrongful death, the claimant must present the claim in writing to the Department of Financial Services within 2 years after the claim accrues.
(b) For purposes of this section, the requirements of notice to the agency and denial of the claim pursuant to paragraph (a) are conditions precedent to maintaining an action but shall not be deemed to be elements of the cause of action and shall not affect the date on which the cause of action accrues.
(c) The claimant shall also provide to the agency the claimant’s date and place of birth and social security number if the claimant is an individual, or a federal identification number if the claimant is not an individual. The claimant shall also state the case style, tribunal, the nature and amount of all adjudicated penalties, fines, fees, victim restitution fund, and other judgments in excess of $200, whether imposed by a civil, criminal, or administrative tribunal, owed by the claimant to the state, its agency, officer or subdivision. If there exists no prior adjudicated unpaid claim in excess of $200, the claimant shall so state.
(d) For purposes of this section, complete, accurate, and timely compliance with the requirements of paragraph (c) shall occur prior to settlement payment, close of discovery or commencement of trial, whichever is sooner; provided the ability to plead setoff is not precluded by the delay. This setoff shall apply only against that part of the settlement or judgment payable to the claimant, minus claimant’s reasonable attorney’s fees and costs. Incomplete or inaccurate disclosure of unpaid adjudicated claims due the state, its agency, officer, or subdivision, may be excused by the court upon a showing by the preponderance of the evidence of the claimant’s lack of knowledge of an adjudicated claim and reasonable inquiry by, or on behalf of, the claimant to obtain the information from public records. Unless the appropriate agency had actual notice of the information required to be disclosed by paragraph (c) in time to assert a setoff, an unexcused failure to disclose shall, upon hearing and order of court, cause the claimant to be liable for double the original undisclosed judgment and, upon further motion, the court shall enter judgment for the agency in that amount. Except as provided otherwise in this subsection, the failure of the Department of Financial Services or the appropriate agency to make final disposition of a claim within 6 months after it is filed shall be deemed a final denial of the claim for purposes of this section. For purposes of this subsection, in medical malpractice actions and in wrongful death actions, the failure of the Department of Financial Services or the appropriate agency to make final disposition of a claim within 90 days after it is filed shall be deemed a final denial of the claim. The statute of limitations for medical malpractice actions and wrongful death actions is tolled for the period of time taken by the Department of Financial Services or the appropriate agency to deny the claim. The provisions of this subsection do not apply to such claims as may be asserted by counterclaim pursuant to s. 768.14.
(7) In actions brought pursuant to this section, process shall be served upon the head of the agency concerned and also, except as to a defendant municipality, county, or the Florida Space Authority, upon the Department of Financial Services; and the department or the agency concerned shall have 30 days within which to plead thereto.
(8) No attorney may charge, demand, receive, or collect, for services rendered, fees in excess of 25 percent of any judgment or settlement.
(9)(a) An officer, employee, or agent of the state or of any of its subdivisions may not be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. However, such officer, employee, or agent shall be considered an adverse witness in a tort action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function. The exclusive remedy for injury or damage suffered as a result of an act, event, or omission of an officer, employee, or agent of the state or any of its subdivisions or constitutional officers is by action against the governmental entity, or the head of such entity in her or his official capacity, or the constitutional officer of which the officer, employee, or agent is an employee, unless such act or omission was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. The state or its subdivisions are not liable in tort for the acts or omissions of an officer, employee, or agent committed while acting outside the course and scope of her or his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.
(b) As used in this subsection, the term:
1. “Employee” includes any volunteer firefighter.
2. “Officer, employee, or agent” includes, but is not limited to, any health care provider when providing services pursuant to s. 766.1115; any nonprofit independent college or university located and chartered in this state which owns or operates an accredited medical school, and its employees or agents, when providing patient services pursuant to paragraph (10)(f); any public defender or her or his employee or agent, including an assistant public defender or an investigator; and any member of a Child Protection Team, as defined in s. 39.01(13), when carrying out her or his duties as a team member under the control, direction, and supervision of the state or any of its agencies or subdivisions.
(c) For purposes of the waiver of sovereign immunity only, a member of the Florida National Guard is not acting within the scope of state employment when performing duty under the provisions of Title 10 or Title 32 of the United States Code or other applicable federal law; and neither the state nor any individual may be named in any action under this chapter arising from the performance of such federal duty.
(d) The employing agency of a law enforcement officer as defined in s. 943.10 is not liable for injury, death, or property damage effected or caused by a person fleeing from a law enforcement officer in a motor vehicle if:
1. The pursuit is conducted in a manner that does not involve conduct by the officer which is so reckless or wanting in care as to constitute disregard of human life, human rights, safety, or the property of another;
2. At the time the law enforcement officer initiates the pursuit, the officer reasonably believes that the person fleeing has committed a forcible felony as defined in s. 776.08; and
3. The pursuit is conducted by the officer pursuant to a written policy governing high-speed pursuit adopted by the employing agency. The policy must contain specific procedures concerning the proper method to initiate and terminate high-speed pursuit. The law enforcement officer must have received instructional training from the employing agency on the written policy governing high-speed pursuit.
(10)(a) Health care providers or vendors, or any of their employees or agents, that have contractually agreed to act as agents of the Department of Corrections to provide health care services to inmates of the state correctional system shall be considered agents of the State of Florida, Department of Corrections, for the purposes of this section, while acting within the scope of and pursuant to guidelines established in said contract or by rule. The contracts shall provide for the indemnification of the state by the agent for any liabilities incurred up to the limits set out in this chapter.
(b) This subsection shall not be construed as designating persons providing contracted health care services to inmates as employees or agents of the state for the purposes of chapter 440.
(c) For purposes of this section, regional poison control centers created in accordance with s. 395.1027 and coordinated and supervised under the Division of Children’s Medical Services Prevention and Intervention of the Department of Health, or any of their employees or agents, shall be considered agents of the State of Florida, Department of Health. Any contracts with poison control centers must provide, to the extent permitted by law, for the indemnification of the state by the agency for any liabilities incurred up to the limits set out in this chapter.
(d) For the purposes of this section, operators, dispatchers, and providers of security for rail services and rail facility maintenance providers in the South Florida Rail Corridor, or any of their employees or agents, performing such services under contract with and on behalf of the South Florida Regional Transportation Authority or the Department of Transportation shall be considered agents of the state while acting within the scope of and pursuant to guidelines established in said contract or by rule.
(e) For purposes of this section, a professional firm that provides monitoring and inspection services of the work required for state roadway, bridge, or other transportation facility construction projects, or any of the firm’s employees performing such services, shall be considered agents of the Department of Transportation while acting within the scope of the firm’s contract with the Department of Transportation to ensure that the project is constructed in conformity with the project’s plans, specifications, and contract provisions. Any contract between the professional firm and the state, to the extent permitted by law, shall provide for the indemnification of the department for any liability, including reasonable attorney’s fees, incurred up to the limits set out in this chapter to the extent caused by the negligence of the firm or its employees. This paragraph shall not be construed as designating persons who provide monitoring and inspection services as employees or agents of the state for purposes of chapter 440. This paragraph is not applicable to the professional firm or its employees if involved in an accident while operating a motor vehicle. This paragraph is not applicable to a firm engaged by the Department of Transportation for the design or construction of a state roadway, 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 located and chartered in this state which owns or operates an accredited medical school, or any of its employees or agents, and which has agreed in an affiliation agreement or other contract to provide, or permit its employees or agents to provide, patient services as agents of a teaching hospital, is considered an agent of the teaching hospital while acting within the scope of and pursuant to guidelines established in the affiliation agreement or other contract. To the extent allowed by law, the contract must provide for the indemnification of the teaching hospital, up to the limits set out in this chapter, by the agent for any liability incurred which was caused by the negligence of the college or university or its employees or agents. The contract must also provide that those limited portions of the college, university, or medical school which are directly providing services pursuant to the contract and which are considered an agent of the teaching hospital for purposes of this section are deemed to be acting on behalf of a public agency as defined in s. 119.011(2).
1. For purposes of this paragraph, the term:
a. “Employee or agent” means an officer, employee, agent, or servant of a nonprofit independent college or university located and chartered in this state which owns or operates an accredited medical school, including, but not limited to, the faculty of the medical school, any health care practitioner or licensee as defined in s. 456.001 for which the college or university is vicariously liable, and the staff or administrators of the medical school.
b. “Patient services” mean:
(I) Comprehensive health care services as defined in s. 641.19, including any related administrative service, 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 as defined in s. 408.07 which is owned or operated by the state, a county or municipality, a public health trust, a special taxing district, a governmental entity having health care responsibilities, or a not-for-profit entity that operates such facility as an agent of the state, or a political subdivision of the state, under a lease or other contract.
2. The teaching hospital or the medical school, or its employees or agents, must provide notice to each patient, or the patient’s legal representative, that the college or university that owns or operates the medical school and the employees or agents of that college or university are acting as agents of the teaching hospital and that the exclusive remedy for injury or damage suffered as the result of any act or omission of the teaching hospital, the college or university that owns or operates the medical school, or the employees or agents of the college or university, while acting within the scope of duties pursuant to the affiliation agreement or other contract with a teaching hospital, is by commencement of an action pursuant to the provisions of this section. This notice requirement may be met by posting the notice in a place conspicuous to all persons.
3. This paragraph does not designate any employee providing contracted patient services in 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 Nurse Licensure Compact pursuant to s. 464.0095, and any administrator, officer, executive director, employee, or representative of the Interstate Commission of Nurse Licensure Compact Administrators, when acting within the scope of their employment, duties, or responsibilities in this state, are considered agents of the state. The commission shall pay any claims or judgments pursuant to this section and may maintain insurance coverage to pay any such claims or judgments.
(h) For purposes of this section, the individual appointed under s. 491.004(8) as the state’s delegate on the Counseling Compact Commission, when serving in that capacity pursuant to s. 491.017, and any administrator, officer, executive director, employee, or representative of the commission, when acting within the scope of his or her employment, duties, or responsibilities in this state, is considered an agent of the state. The commission shall pay any claims or judgments pursuant to this section and may maintain insurance coverage to pay any such claims or judgments.
(11)(a) Providers or vendors, or any of their employees or agents, that have contractually agreed to act on behalf of the state as agents of the Department of Juvenile Justice to provide services to children in need of services, families in need of services, or juvenile offenders are, solely with respect to such services, agents of the state for purposes of this section while acting within the scope of and pursuant to guidelines established in the contract or by rule. A contract must provide for the indemnification of the state by the agent for any liabilities incurred up to the limits set out in this chapter.
(b) This subsection does not designate a person who provides contracted services to juvenile offenders as an employee or agent of the state for purposes of chapter 440.
(12)(a) A health care practitioner, as defined in s. 456.001(4), who has contractually agreed to act as an agent of a state university board of trustees to provide medical services to a student athlete for participation in or as a result of intercollegiate athletics, to include team practices, training, and competitions, shall be considered an agent of the respective state university board of trustees, for the purposes of this section, while acting within the scope of and pursuant to guidelines established in that contract. The contracts shall provide for the indemnification of the state by the agent for any liabilities incurred up to the limits set out in this chapter.
(b) This subsection shall not be construed as designating persons providing contracted health care services to athletes as employees or agents of a state university board of trustees for the purposes of chapter 440.
(13) Laws allowing the state or its agencies or subdivisions to buy insurance are still in force and effect and are not restricted in any way by the terms of this act.
(14) Every claim against the state or one of its agencies or subdivisions for damages for a negligent or wrongful act or omission pursuant to this section shall be forever barred unless the civil action is commenced by filing a complaint in the court of appropriate jurisdiction within 4 years after such claim accrues; except that an action for contribution must be commenced within the limitations provided in s. 768.31(4), and an action for damages arising from medical malpractice or wrongful death must be commenced within the limitations for such actions in s. 95.11(4).
(15) No action may be brought against the state or any of its agencies or subdivisions by anyone who unlawfully participates in a riot, unlawful assembly, public demonstration, mob violence, or civil disobedience if the claim arises out of such riot, unlawful assembly, public demonstration, mob violence, or civil disobedience. Nothing in this act shall abridge traditional immunities pertaining to statements made in court.
(16)(a) The state and its agencies and subdivisions are authorized to be self-insured, to enter into risk management programs, or to purchase liability insurance for whatever coverage they may choose, or to have any combination thereof, in anticipation of any claim, judgment, and claims bill which they may be liable to pay pursuant to this section. Agencies or subdivisions, and sheriffs, that are subject to homogeneous risks may purchase insurance jointly or may join together as self-insurers to provide other means of protection against tort claims, any charter provisions or laws to the contrary notwithstanding.
(b) Claims files maintained by any risk management program administered by the state, its agencies, and its subdivisions are confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution until termination of all litigation and settlement of all claims arising out of the same incident, although portions of the claims files may remain exempt, as otherwise provided by law. Claims files records may be released to other governmental agencies upon written request and demonstration of need; such records held by the receiving agency remain confidential and exempt as provided for in this paragraph.
(c) Portions of meetings and proceedings conducted pursuant to any risk management program administered by the state, its agencies, or its subdivisions, which relate solely to the evaluation of claims filed with the risk management program or which relate solely to offers of compromise of claims filed with the risk management program are exempt from the provisions of s. 286.011 and s. 24(b), Art. I of the State Constitution. Until termination of all litigation and settlement of all claims arising out of the same incident, persons privy to discussions pertinent to the evaluation of a filed claim shall not be subject to subpoena in any administrative or civil proceeding with regard to the content of those discussions.
(d) Minutes of the meetings and proceedings of any risk management program administered by the state, its agencies, or its subdivisions, which relate solely to the evaluation of claims filed with the risk management program or which relate solely to offers of compromise of claims filed with the risk management program are exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution until termination of all litigation and settlement of all claims arising out of the same incident.
(17) This section, as amended by chapter 81-317, Laws of Florida, shall apply only to causes of actions which accrue on or after October 1, 1981.
(18) No provision of this section, or of any other section of the Florida Statutes, whether read separately or in conjunction with any other provision, shall be construed to waive the immunity of the state or any of its agencies from suit in federal court, as such immunity is guaranteed by the Eleventh Amendment to the Constitution of the United States, unless such waiver is explicitly and definitely stated to be a waiver of the immunity of the state and its agencies from suit in federal court. This subsection shall not be construed to mean that the state has at any time previously waived, by implication, its immunity, or that of any of its agencies, from suit in federal court through any statute in existence prior to June 24, 1984.
(19) Neither the state nor any agency or subdivision of the state waives any defense of sovereign immunity, or increases the limits of its liability, upon entering into a contractual relationship with another agency or subdivision of the state. Such a contract must not contain any provision that requires one party to indemnify or insure the other party for the other party’s negligence or to assume any liability for the other party’s negligence. This does not preclude a party from requiring a nongovernmental entity to provide such indemnification or insurance. The restrictions of this subsection do not prevent a regional water supply authority from indemnifying and assuming the liabilities of its member governments for obligations arising from past acts or omissions at or with property acquired from a member government by the authority and arising from the acts or omissions of the authority in performing activities contemplated by an interlocal agreement. Such indemnification may not be considered to increase or otherwise waive the limits of liability to third-party claimants established by this section.
(20) Every municipality, and any agency thereof, is authorized to undertake to indemnify those employees that are exposed to personal liability pursuant to the Clean Air Act Amendments of 1990, 42 U.S.C.A. ss. 7401 et seq., and all rules and regulations adopted to implement that act, for acts performed within the course and scope of their employment with the municipality or its agency, including but not limited to indemnification pertaining to the holding, transfer, or disposition of allowances allocated to the municipality’s or its agency’s electric generating units, and the monitoring, submission, certification, and compliance with permits, permit applications, records, compliance plans, and reports for those units, when such acts are performed within the course and scope of their employment with the municipality or its agency. The authority to indemnify under this section covers every act by an employee when such act is performed within the course and scope of her or his employment with the municipality or its agency, but does not cover any act of willful misconduct or any intentional or knowing violation of any law by the employee. The authority to indemnify under this section includes, but is not limited to, the authority to pay any fine and provide legal representation in any action.
History.s. 1, ch. 73-313; s. 1, ch. 74-235; ss. 1, 2, 3, ch. 77-86; s. 9, ch. 79-139; s. 1, ch. 79-253; s. 284, ch. 79-400; s. 1, ch. 80-271; ss. 1, 2, ch. 81-317; s. 1, ch. 83-44; s. 1, ch. 83-257; s. 1, ch. 84-29; s. 1, ch. 84-335; s. 21, ch. 86-183; s. 1, ch. 86-184; s. 3, ch. 87-134; s. 2, ch. 88-173; ss. 55, 61, ch. 89-300; s. 92, ch. 89-360; s. 8, ch. 90-192; s. 3, ch. 91-209; s. 112, ch. 92-33; ss. 2, 11, ch. 92-278; s. 1, ch. 93-89; s. 34, ch. 93-129; s. 1, ch. 94-76; s. 2, ch. 94-147; s. 70, ch. 94-209; s. 21, ch. 94-321; s. 428, ch. 96-406; s. 34, ch. 97-93; s. 1809, ch. 97-102; s. 4, ch. 98-402; s. 289, ch. 99-8; s. 9, ch. 2000-155; s. 97, ch. 2002-20; s. 24, ch. 2002-183; s. 2, ch. 2002-401; s. 9, ch. 2003-159; s. 1903, ch. 2003-261; s. 1, ch. 2003-290; s. 67, ch. 2003-416; s. 1, ch. 2006-234; s. 1, ch. 2010-26; s. 1, ch. 2011-113; s. 3, ch. 2011-219; s. 126, ch. 2012-184; s. 12, ch. 2016-139; s. 33, ch. 2017-175; s. 3, ch. 2021-6; s. 1, ch. 2021-147; s. 10, ch. 2022-63.

F.S. 768.28 on Google Scholar

F.S. 768.28 on Casetext

Amendments to 768.28


Arrestable Offenses / Crimes under Fla. Stat. 768.28
Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 768.28.



Annotations, Discussions, Cases:

10 Cases from Casetext:Date Descending

U.S. Supreme Court11th Cir. - Ct. App.11th Cir. - MD FL11th Cir. - ND FL11th Cir. - SD FLFed. Reg.Secondary Sources - All
  1. As provided under the Florida Statutes, the state is deemed to have waived its sovereign immunity for acts of its employees who, acting in the scope of their employment, cause injury or death to another through negligence or wrongful acts or omissions. Fla. Stat. § 768.28(1). However, the state has not waived its sovereign immunity for acts of its employees that were “committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” Id. § 768.28(9)(a). Under the relevant provision,
    PAGE 8
  2. Fla. Stat. § 768.28(6)(a) provides, in relevant part: “An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality, county, or the Florida Space Authority, presents such claim in writing to the Department of Financial Services, within 3 years after such claim accrues and the Department of Financial Services or the appropriate agency denies the claim in writing.” Fla. Stat. § 768.28(6)(a) (emphasis added).
    PAGE 5
  3. The FDEP Defendants and Arcadis argue that for Plaintiff's state-law tort claims (Counts III, VI-VII), Florida's waiver of sovereign immunity does not include punitive damages and, therefore, Plaintiff cannot obtain punitive damages on those claims. Id. In Florida, a state agency may be liable for tort claims, “but liability shall not include punitive damages or interest for the period before judgment.” Plancher v. UCF Athletics Ass'n, Inc., 175 So.3d 724, 726 (Fla. 2015) (quoting Fla. Stat. 768.28( 5)). Accordingly, Plaintiff cannot obtain punitive damages against FDEP for this reason. Because Arcadis is not a state agency, its argument for immunity from punitive damages fails, but the Amended Complaint fails to include factual allegations “showing wanton, willful or outrageous conduct.” Simmons, 423 F.Supp.3d at 1352; ADT LLC v. Safe Home Sec. Inc., 2022 WL 2805252, at *6 (S.D. Fla. May 18, 2022) (“conduct required to allege punitive conduct reaches beyond simple negligence[ ] ‘but must be based on behavior which indicates a wanton disregard for the rights of others.'” (quoting Valladares v. Bank of Am. Corp., 197 So.3d 1, 11 (Fla. 2016)). Because the Court is…
  4. Citing to Fla. Stat. § 768.28, Plaintiff additionally argues that the State waives immunity, and therefore is liable, for tort claims in the same manner and to the same extent as private individuals. However, Plaintiff's asserted claims are constitutional violations under § 1983. Specifically, Plaintiff alleged violations of his Fourth, Fifth, Sixth, Eighth, Thirteenth, and Fourteenth Amendments (Doc. 1 at 3), not tort claims. And, as this Court previously stated, there has been no express waiver by the State of Florida as to a plaintiff's § 1983 claims against it. Doc. 24 at 4. The State of Florida is immune from Plaintiff's § 1983 claims in federal court, and Plaintiff does not offer evidence or reliable argument to the contrary. Accordingly, it is
    PAGE 4
  5. In Plancher v. UCF Athletics Association, Inc., 175 So.3d 724, 726 (Fla. 2015), Justice Polston described section 768.28(5) as not only waiving immunity for tort claims but also setting "a recovery limit." The statute provides a limited liability from damages. See also Lovelace, 320 So.3d at 185 (declaring 768.28(5) as limiting liability from damages and not a waiver of all sovereign immunity). A repeat of the critical mandate employed in the Dean and Jackson opinions is warranted- "[w]e explained that the sovereign immunity inquiry consists of 'whether the governmental entity remains sovereignly immune from suit notwithstanding the legislative waiver present in section 768.28.'" Jackson, 288 So.3d at 1185 (quoting Dean, 3 So.3d at 1044). This tiered analysis is required to determine "sovereign immunity." With that established, the cart must not be placed before the horse. Section 768.28(5) is not triggered unless an entity is sovereign and is, therefore, entitled to sovereign immunity. A statute waiving or providing a limited waiver of sovereign immunity does not apply unless an entity has sovereign immunity.
    PAGE 14
  6. Section 768.28(9)(a) immunity can extend to appointed municipal committee members-such as the public official in this case-if section 768.28(9)(a)'s requirements are satisfied. See § 768.1355(3), Fla. Stat. (2020) ("Members of elected or appointed boards, councils, and commissions of the state, counties, municipalities, authorities, and special districts shall incur no civil liability and shall have immunity from suit as provided in s. 768.28 for acts or omissions by members relating to members' conduct of their official duties. ...").
    PAGE 12
  7. The City moved for summary judgment below, arguing (1) that the undisputed evidence did not establish that the City's officers were the proximate, legal cause of the damage suffered by Lamko and Tsouleas because the pursuit was not conducted in a negligent, careless, and wanton manner and (2) that the decision to initiate the pursuit was a policy-making decision protected by sovereign immunity. In response, Lamko and Tsouleas filed two countermotions for summary judgment. In the first motion, they argued that they were entitled to summary judgment on the issue of the City's sovereign immunity as a matter of law, citing section 768.28(9)(d)2, Florida Statutes (2016). They maintained that the City could not avoid liability for the damages they suffered because at the time the officer initiated the pursuit, he did not have a reasonable belief that the pursued driver had committed a forcible felony. In their second motion, Lamko and Tsouleas cited section 768.28(9)(d)3 and argued that the City could not avoid liability because the pursuit in this case violated the New Port Richey Police Department's policy on vehicle pursuits.
    PAGE 3
  8. Owen brought claims of assault, battery, and false arrest/imprisonment against the Sheriff in his official capacity based on Williams's conduct. Florida Statute § 768.28 holds a Sheriff liable for the torts of an officer committed in the course and scope of his employment, unless that conduct “was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” Fla. Stat. § 768.28(9)(a). This applies to “all torts, negligent ones and intentional ones alike” committed within the scope of employment that do not inherently or necessarily involve malice or willful and wanton conduct. Richardson v. City of Pompano Beach, 511 So.2d 1121, 1123 (Fla. 4th DCA 1987) (government is not immunized from intentional torts of excessive force and false arrest); see also Gregory v. Miami-Dade Cnty., Fla. 719 Fed.Appx. 859, 873 (11th Cir. 2017) (same as to battery).
    PAGE 19
  9. The Maddans served the County with their first written notice of claim pursuant to section 768.28(6)(a), Florida Statutes, on September 21, 2010. The notice asserted that there is a continuing tort every time it rains based on the County's unpermitted use of Lake Haven as a storm drainage area and sought lease payments by the County for its past and future use of the Maddans' property. Attached to the notice was a letter to the Maddans dated July 2010, in which their attorney opined that "[a]s a result of the continuing drainage of storm water runoff by Okaloosa County, you [the Maddans] have suffered and are continuing to suffer damage every time there is a rainstorm or other event causing drainage into Lake Haven. This amounts to a continuing tort for which you are entitled to compensation for the damages incurred." Counsel recommended that the Maddans "contact the County regarding [their] claim for compensation due to the unconstitutional taking of [their] property rights regarding Lake Haven."
    PAGE 3

    Cases from cite.case.law:

    L. ROSS, v. CITY OF JACKSONVILLE,, 274 So. 3d 1180 (Fla. App. Ct. 2019)

    . . . The court ruled that Appellee was not liable for Appellant's injury under section 768.28(9)(d), Florida . . . Section 768.28(9) (d)(1), Florida Statutes. . . . The current version of section 768.28(9)(d) was enacted in 2006. Ch. 2006-234, Laws of Fla. . . . Thus, Appellee satisfied the first prong of section 768.28(9)(d), Florida Statutes. . . . Thus, Appellee also met its burden regarding the second prong under Section 768.28(9)(d)(2). . . .

    CITY OF PEMBROKE PINES, v. CORRECTIONS CORPORATION OF AMERICA, INC. n k a, 274 So. 3d 1105 (Fla. App. Ct. 2019)

    . . . The City argues that the sovereign immunity waiver codified in section 768.28, Florida Statutes (2012 . . . City of Jacksonville , 403 So.2d 379, 385-86 (Fla. 1981) ("We note that section 768.28 also furthers . . . Fifth, the plain language of section 768.28's limited waiver of sovereign immunity does not apply to . . . See § 768.28, Fla. Stat. (1995). . . . Section 768.28 states that sovereign immunity for liability in tort is waived, but only to the extent . . .

    FLOREZ, v. BROWARD SHERIFF S OFFICE, 270 So. 3d 417 (Fla. App. Ct. 2019)

    . . . .; § 768.28 Fla. Stat. (1995) ). . . .

    ANDERSON, v. D. SNYDER,, 389 F. Supp. 3d 1082 (S.D. Fla. 2019)

    . . . . § 768.28(5) (waiving sovereign immunity and imposing tort liability on the state "in the same manner . . .

    COUSINS, v. POST- NEWSWEEK STATIONS FLORIDA, INC., 275 So. 3d 674 (Fla. App. Ct. 2019)

    . . . first amended complaint, his presuit notice directed at the School Board "as required under Sec[tion] 768.28 . . . within the same allegation, the presuit notice directed to the School Board "as required under Sec[tion] 768.28 . . . Section 768.28(6), Florida Statutes (2007), sets forth a notice provision as a condition precedent to . . .

    PAEZ, v. MULVEY, E., 915 F.3d 1276 (11th Cir. 2019)

    . . . . § 768.28(9)(a). . . .

    BEANBLOSSOM, v. BAY DISTRICT SCHOOLS,, 265 So. 3d 657 (Fla. App. Ct. 2019)

    . . . answer to Beanblossom's complaint alleged as to Count II that Beanblossom failed to comply with section 768.28 . . . an attempt to circumvent summary judgment and escape the effects of failing to comply with section 768.28 . . .

    DEPARTMENT OF FINANCIAL SERVICES, a v. BARNETT, R. B. a Jr. a, 268 So. 3d 758 (Fla. App. Ct. 2019)

    . . . In our opinion in the instant case, we narrowly construed section 768.28(5), Florida Statutes (2010), . . . COMMITTED BY A STATE AGENCY OR ACTOR, DOES THE LIMITATION ON THE WAIVER OF SOVEREIGN IMMUNITY IN SECTION 768.28 . . .

    CRUZ, v. GREEN, 352 F. Supp. 3d 1213 (S.D. Fla. 2019)

    . . . . § 768.28(9)(a) (precluding personal liability in tort for state agents, employees, or officers unless . . . Stat. § 768.28(9)(a), precluding public officers from liability for official acts done in "bad faith" . . . her conduct did not rise to the level of "bad faith," she does not explain how the standard under § 768.28 . . .

    DAVIS, Sr. v. CITY OF APOPKA III, 356 F. Supp. 3d 1366 (M.D. Fla. 2018)

    . . . failed because it rested on the misconduct of individual officers and, pursuant to Florida Statute § 768.28 . . .

    FREYRE, v. CHRONISTER, s s C., 910 F.3d 1371 (11th Cir. 2018)

    . . . And HCSO acknowledges that it is self-insured under Florida Statutes §§ 768.28(16) and 324.171. . . .

    G. STRICKLAND, v. PINELLAS COUNTY,, 261 So. 3d 700 (Fla. App. Ct. 2018)

    . . . claim" letter sent by Strickland's attorney on May 26, 2017, which stated that pursuant to section 768.28 . . .

    ONIASSE, v. HERNANDEZ, 352 F. Supp. 3d 1186 (M.D. Fla. 2018)

    . . . . § 768.28(9)(a) ; and then citing Dep't. of Educ. v. Roe , 679 So.2d 756, 759 (Fla. 1996) ). . . . Stat. § 768.28(6)(a). . . . Stat.] § 768.28." (Doc. 29, ¶¶ 51, 56.) . . .

    DEPARTMENT OF CHILDREN AND FAMILIES, v. FELICIANO, 259 So. 3d 957 (Fla. App. Ct. 2018)

    . . . summary judgment based on claims of individual immunity from being named as a defendant under section 768.28 . . . of appellate procedure to allow for appeals "where an individual defendant who claims immunity under 768.28 . . . held that "an order denying summary judgment based on a claim of individual immunity under section 768.28 . . . of the denial of a motion for summary judgment based on a claim of individual immunity under section 768.28 . . . While I recognize that the Florida Supreme Court was addressing individual immunity under section 768.28 . . .

    IN RE AMENDMENTS TO FLORIDA RULES OF APPELLATE PROCEDURE- REGULAR- CYCLE REPORT., 256 So. 3d 1218 (Fla. 2018)

    . . . - (ix) [No Change] (x) that, as a matter of law, a party is not entitled to immunity under section 768.28 . . .

    CASADO, v. MIAMI- DADE COUNTY,, 340 F. Supp. 3d 1320 (S.D. Fla. 2018)

    . . . The County moves to dismiss the remaining state law claims as barred by Section 768.28(9)(a) of the Florida . . . Stat. § 768.28(9)(a). . . . Section 768.28(9)(a) will bar claims when the allegations "connote [ ] conduct much more reprehensible . . . Stat. § 768.28(9)(a)...bars claims for both intentional infliction of emotional distress and malicious . . . Stat. § 768.28(9)(a). . . .

    SUSSMAN, v. DEPARTMENT OF CORRECTIONS,, 257 So. 3d 604 (Fla. App. Ct. 2018)

    . . . . § 1983 Civil Rights Complaint; and F.S. 768.28 Tort Complaint," in which he sought the reversal of . . .

    BENOIT, v. CITY OF LAKE CITY, FLORIDA, a L., 343 F. Supp. 3d 1219 (M.D. Fla. 2018)

    . . . he is immune from Benoit's false arrest claim under Florida law pursuant to Florida Statute section 768.28 . . .

    DEPARTMENT OF FINANCIAL SERVICES, a v. BARNETT, R. B. a Jr. a, 262 So. 3d 750 (Fla. App. Ct. 2018)

    . . . The issue presented in this case is one of first impression involving section 768.28(5), Florida Statutes . . . a declaratory judgment, requesting the court to determine each of the fathers' rights under section 768.28 . . . The legislature did not define "incident or occurrence" in section 768.28(5). . . . Therefore, the Koikos analysis does not apply to section 768.28(5). . . . Although appellees' recoveries through a judgment may be substantially limited by section 768.28(5), . . .

    WALDRON, R. Jr. a v. SPICHER,, 349 F. Supp. 3d 1202 (M.D. Fla. 2018)

    . . . Under Florida Statute § 768.28(9)(a), state officers, employees, and agents are immune from state lawsuits . . . Stat. § 768.28(9)(a). . . . Fla. 2017) (quoting § 768.28(9)(a) ). . . . their employees' and agents' good faith actions taken in the course and scope of their employment. § 768.28 . . . Therefore, if Spicher was only negligent, then he is immune under § 768.28, but Woods, as the Sheriff . . .

    VILLASOL COMMUNITY DEVELOPMENT DISTRICT, v. TC LLC,, 265 So. 3d 446 (Fla. 2018)

    . . . In Provident , this Court held that the statutory limitation of liability found in section 768.28, Florida . . .

    J. DINNERSTEIN M. D. P. A. J. M. D. v. FLORIDA DEPARTMENT OF HEALTH,, 254 So. 3d 497 (Fla. App. Ct. 2018)

    . . . or after April 17, 1992, as an agent of the governmental contractor is an agent for purposes of s. 768.28 . . .

    SOUTH FLORIDA FAIR AND PALM BEACH COUNTY EXPOSITIONS, INC. a v. JOSEPH, J. J. J. J., 256 So. 3d 875 (Fla. App. Ct. 2018)

    . . . Joseph also served "notice and official claims pursuant to Florida Statute 768.28 regarding waiver of . . . Florida Fair moved for partial summary judgment, claiming limited sovereign immunity under section 768.28 . . . acting as an instrumentality of the State, it is entitled to limited sovereign immunity under section 768.28 . . . And there is no dispute that the Florida State Fair is entitled to section 768.28's limited sovereign . . . To conclude that the Florida State Fair is entitled to the limited sovereign immunity in section 768.28 . . .

    FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, v. DAWS, Jr. I. O. A. E. L. B. W., 256 So. 3d 907 (Fla. App. Ct. 2018)

    . . . Pursuant to its enactment of section 768.28, Florida Statutes, the Legislature has explicitly waived . . . Here, the FWC's sovereign immunity defense to Appellees' nuisance claims emanates from section 768.28 . . . Section 768.28(1) provides a broad waiver of sovereign immunity to the state and its subdivisions for . . . City of Tampa , 403 So.2d 1139, 1142 (Fla. 2d DCA 1981), explained that section 768.28 waives sovereign . . .

    KEY, v. V. ALMASE,, 253 So. 3d 713 (Fla. App. Ct. 2018)

    . . . dismiss Appellees' Fourth Amended Complaint on the grounds of individual immunity pursuant to section 768.28 . . . They moved to dismiss Appellees' Fourth Amended Complaint based on immunity under section 768.28(9)(a . . . orders that determine "that, as a matter of law, a party is not entitled to immunity under section 768.28 . . . that, as a matter of law, the County was not entitled to sovereign immunity or immunity under section 768.28 . . .

    BEAN, v. UNIVERSITY OF MIAMI d b a, 252 So. 3d 810 (Fla. App. Ct. 2018)

    . . . Secs. 768.28(9) and (10)(f)." This appeal followed. . . . Id. § 768.28(9)(b) 2. . . . Id. § 768.28(10)(f). . . . Id. at 244 (citing § 768.28(9)(a), Fla. Stat.). . . . Section 768.28." . . .

    CITY OF MIAMI GENERAL EMPLOYEES AND SANITATION EMPLOYEES RETIREMENT TRUST, v. RODRIGUEZ,, 246 So. 3d 567 (Fla. App. Ct. 2018)

    . . . order that determines "that, as a matter of law, a party is not entitled to immunity under section 768.28 . . .

    MIAMI- DADE COUNTY, v. POZOS,, 242 So. 3d 540 (Fla. App. Ct. 2018)

    . . . of the denial of a motion for summary judgment based on a claim of individual immunity under section 768.28 . . . Keck, therefore, concluded that: [I]f a defendant who is entitled to the immunity granted in section 768.28 . . . summary judgment based on claims of individual immunity from being named as a defendant under section 768.28 . . . I recognize that in Keck the Florida Supreme Court was addressing individual immunity under section 768.28 . . . held that "an order denying summary judgment based on a claim of individual immunity under section 768.28 . . .

    JOYNT, v. STAR INSURANCE COMPANY,, 314 F. Supp. 3d 1233 (M.D. Fla. 2018)

    . . . Stat. § 768.28 (2011). . . . Stat. § 768.28 (2011). . . . Section 768.28 allows the state to be sued for torts "under circumstances in which the state or such . . . agency or subdivision, if a private person, would be liable." § 768.28(1). . . . Recovery, however, is capped at $100,000 per person or $200,000 per incident. § 768.28(5). . . .

    FLORIDA CARRY, INC. v. E. THRASHER, L., 248 So. 3d 253 (Fla. App. Ct. 2018)

    . . . section 790.33 by operation of the limitation in the waiver of sovereign immunity contained in section 768.28 . . .

    SANCHEZ, v. MIAMI- DADE COUNTY,, 245 So. 3d 933 (Fla. App. Ct. 2018)

    . . . moved for summary judgment in each case based on sovereign immunity under Florida Statutes section 768.28 . . . that, as a matter of law, the County was not entitled to sovereign immunity or immunity under section 768.28 . . . case granted the county's summary judgment motion, concluding that the county was immune under section 768.28 . . . dissent concluding under the facts of this case that the county had sovereign immunity under section 768.28 . . . entity remains sovereignly immune from suit notwithstanding the legislative waiver present in section 768.28 . . .

    CITY OF FORT LAUDERDALE, v. NICHOLS, 246 So. 3d 391 (Fla. App. Ct. 2018)

    . . . See § 768.28, Fla. Stat. (2017). . . .

    CITIZENS PROPERTY INSURANCE CORPORATION, v. CALONGE,, 246 So. 3d 447 (Fla. App. Ct. 2018)

    . . . summary judgment based on claims of individual immunity from being named as a defendant under section 768.28 . . . of appellate procedure to allow for appeals "where an individual defendant who claims immunity under 768.28 . . . of the denial of a motion for summary judgment based on a claim of individual immunity under section 768.28 . . . Keck, therefore, concluded that: [I]f a defendant who is entitled to the immunity granted in section 768.28 . . . While I recognize that the Florida Supreme Court was addressing individual immunity under section 768.28 . . .

    CITY OF DUNEDIN, v. PIRATE S TREASURE, INC., 255 So. 3d 902 (Fla. App. Ct. 2018)

    . . . Consequently, according to the City, the claims are barred by section 768.28(9), Florida Statutes (2011 . . . Israel, 178 So.3d 444, 446 (Fla. 4th DCA 2015) ) ); see also § 768.28(2), Fla. . . . entity remains sovereignly immune from suit notwithstanding the legislative waiver present in section 768.28 . . .

    THORNTON, C. T. a v. CHRONISTER,, 309 F. Supp. 3d 1196 (M.D. Fla. 2018)

    . . . Stat. § 768.28(6)(a) (emphasis added). . . . Stat. § 768.28(6)(b). Strict compliance with Section 768.28(6) is required. Rumler v. . . . Stat. § 768.28(6)(a). . . . Stat. § 768.28(9)(a). (Doc. # 16 at 5-7). . . . Stat. § 768.28(9)(a). . . .

    FLORIDA HIGHWAY PATROL, A DIVISION OF FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, v. JACKSON,, 238 So. 3d 430 (Fla. App. Ct. 2018)

    . . . The Court later analyzed the individual immunity protections of section 768.28(9)(a), Florida Statutes . . . such, the Court held that interlocutory review of orders denying the immunity protections of section 768.28 . . . non-final orders determining that "as a matter of law, a party is not entitled to" immunity under section 768.28 . . . of orders which determine as a matter of law that a party is not entitled to immunity under section 768.28 . . .

    SUN N LAKE OF SEBRING IMPROVEMENT DISTRICT, v. AYALA, 247 So. 3d 572 (Fla. App. Ct. 2018)

    . . . These claims are not common law tort claims subject to the waiver of sovereign immunity in section 768.28 . . .

    GONZALEZ, v. STATE, 233 So. 3d 1159 (Fla. Dist. Ct. App. 2017)

    . . . See §§ 768.28(6)(a) and (b), Fla. . . .

    CITY OF HOMESTEAD, v. Dr. MCDONOUGH,, 232 So. 3d 1069 (Fla. Dist. Ct. App. 2017)

    . . . documents requested are privileged and not subject to production pursuant to Chapter 119 or section 768.28 . . . City responded that the documents requested were exempt from production under Chapter 119, section 768.28 . . . , the City properly claimed Records 1 and 2 as exempt based on the claims file exception in section 768.28 . . . are contained in the City’s risk management file and are, pursuant to the plain language of section 768.28 . . . other words, the court cannot find that although the documents are exempt from disclosure based on 768.28 . . .

    PAYLAN, v. DIRKS,, 228 So. 3d 679 (Fla. Dist. Ct. App. 2017)

    . . . ASAs in their individual capacities fall within Florida’s limited waiver of sovereign immunity, see § 768.28 . . .

    ROGERS, Sr. v. L. JONES,, 227 So. 3d 759 (Fla. Dist. Ct. App. 2017)

    . . . quashed our decision in Green, determining that the four-year statute of limitations under section 768.28 . . .

    LOOR, v. BAILEY,, 708 F. App'x 992 (11th Cir. 2017)

    . . . . § 768.28(1) (waiving sovereign immunity in tort actions for the negligent or wrongful acts of employees . . . The existence of § 768.28 provides Loor with a meaningful, post-deprivation remedy to challenge the loss . . .

    K. SHARBAUGH, v. C. BEAUDRY,, 267 F. Supp. 3d 1326 (N.D. Fla. 2017)

    . . . . § 768.28(9)(a). . . .

    J. LORDEUS, v. MIAMI- DADE COUNTY,, 263 F. Supp. 3d 1307 (S.D. Fla. 2017)

    . . . Stat; § 768.28. . . .

    HALVELAND, v. FLORIDA DEPARTMENT OF CORRECTIONS, a, 219 So. 3d 1037 (Fla. Dist. Ct. App. 2017)

    . . . limitations for prisoners bringing suit under , section 95.11(5)(g) applied, as opposed to section 768.28 . . . So.3d 22 (Fla. 2016), the supreme court holding that the four-year statute of limitations in section 768.28 . . .

    GROSSMAN ROTH, P. A. v. MELLEN,, 221 So. 3d 683 (Fla. Dist. Ct. App. 2017)

    . . . enjoyed a sovereign immunity damages limitation of $200,000 per incident or occurrence under section 768.28 . . . However, section 768.28(5) permits a claimant to seek recovery of a judgment exceeding this amount from . . . Attorney’s fees under section 768.28 are limited to “25 percent of any judgment or settlement.” § 768.28 . . . against governmental entities, citing the twenty-five percent contingency fee limitation of section 768.28 . . . In pertinent part, section 768.28(5) provides: Neither the state nor its agencies or subdivisions shall . . .

    NORTH BROWARD HOSPITAL DISTRICT, v. KALITAN,, 219 So. 3d 49 (Fla. 2017)

    . . . . § 768.28, Fla. Stat. (2007). Kalitan, 174 So.3d at 405-07. . . .

    RIOS, v. MIAMI S GARAGE, INC. a a, 217 So. 3d 232 (Fla. Dist. Ct. App. 2017)

    . . . forum non conveniens; (x) that, as a matter of law, a party is not entitled to immunity under section 768.28 . . .

    I. ERMINI, f k a I. v. SCOTT,, 249 F. Supp. 3d 1253 (M.D. Fla. 2017)

    . . . . § 768.28(2). . . . Stat. § 768.28(1). . . .

    METHELUS, Y. M. a v. SCHOOL BOARD OF COLLIER COUNTY, FLORIDA, 243 F. Supp. 3d 1266 (M.D. Fla. 2017)

    . . . Stat. § 768.28(6)(a). . . . Plaintiffs’ claim under the FEEA is not subject to § 768.28(6)(a)’s- pre-suit notice requirement. . . . (6), it has made its intent clear by enacting provisions explicating stating that 768.28(6) applies.” . . . In addition, Florida courts have rejected application of § 768.28(6) to remedial civil rights statutes . . . But Plaintiff argues, and the Court agrees, that § 768.28 does not apply to the FEEA claim. . . .

    GREER, v. IVEY,, 242 F. Supp. 3d 1284 (M.D. Fla. 2017)

    . . . Section 768.28(5), Florida Statutes, “waived sovereign immunity for the State, its agencies, and its . . . Stat. § 768.28(5)). . . . entity remains sovereignly immune from suit notwithstanding the legislative waiver present in section 768.28 . . . summary judgment as to Plaintiffs negligent infliction of emotional distress claim based on section 768.28 . . . failed to present any evidence demonstrating that Canela acted with the requisite intent under section 768.28 . . .

    J. EIRAS, v. FLORIDA, 239 F. Supp. 3d 1331 (M.D. Fla. 2017)

    . . . It argues that because section 768.28(9)(a) of the Florida Statutes provides that states are immune from . . . Fla. 2001) (rejecting a state agent’s assertion of immunity under section 768.28(9)(a) in response to . . . Stat. § 768.28(9)(a). . . . Courts construing the bad faith prong of section 768.28 use the actual malice standard, Parker v. . . . Generally, courts are reluctant to strip officers of their immunity under section 768.28(9)(a) of the . . .

    MIAMI- DADE COUNTY, v. POZOS,, 242 So. 3d 1152 (Fla. App. Ct. 2017)

    . . . that, as a matter of law, the County was not entitled to sovereign immunity or immunity under section 768.28 . . . forum non conveniens; (x) that, as a matter of law, a party is not entitled to immunity under section 768.28 . . . matter of law, is not entitled to sovereign immunity, or is not entitled to immunity under section 768.28 . . . of the denial of a motion for summary judgment based on a claim of individual immunity under section 768.28 . . . orders which determine that a party, as a matter of law, is not entitled to immunity under section 768.28 . . .

    HILLSBOROUGH COUNTY, a L. v. STAR INSURANCE COMPANY, a, 847 F.3d 1296 (11th Cir. 2017)

    . . . . § 768.28(5) and the language of the self-insured retention limit (SIRL) contained in an endorsement . . . I We begin with the text of § 768.28(5) as it existed at the time of the deadly accident, because it . . . The County requested a ruling that § 768.28(5) gave it statutory authority to settle the action filed . . . Given the language of § 768.28(5), the County could settle Mr. . . . Dominguez argued that § 768.28(5) trumped the language in Star’s policy. . . .

    WILSON, v. CITY OF TAMPA,, 209 So. 3d 646 (Fla. Dist. Ct. App. 2017)

    . . . Wilson failed to comply with the statutory requirement of pre-suit notice demanded by section 768.28( . . . matter of law by determining that her presuit notice did not comport with the requirements of section 768.28 . . . Wilson’s complaint asserted that she properly filed the notice of claim as required by section 768.28 . . . III.SECTION 768.28 Section 768.28 is entitled, in part, “Waiver of sovereign immunity” and provides the . . . PREVIOUS INTERPRETATIONS OF SECTION 768.28 We would be remiss if we did not observe that over the years . . .

    SEARCY, DENNEY, SCAROLA, BARNHART SHIPLEY, ETC. v. STATE, 209 So. 3d 1181 (Fla. 2017)

    . . . court certified the following question to be of great public importance: AFTER THE ENACTMENT OF SECTION 768.28 . . . the law firm for attorneys’ fees, which may be recovered subject to the limits set forth in section 768.28 . . . Because the waiver of sovereign immunity in section 768.28 limited the family's recovery to only $200,000 . . . Section 768.28(8), a provision of the limited waiver of sovereign immunity statute, states in pertinent . . . We are also called upon in this case to interpret the provisions of section 768.28, Florida Statutes. . . . The enactment of section 768.28, Florida Statutes, has in no way undermined the reasoning of Gamble, . . . The Legislature’s action in adopting section 768.28 did not curtail the constitutional authority of the . . . The amount paid by Lee Memorial Health System pursuant to s. 768.28, Florida Statutes, and the amount . . .

    A. NETTLEMAN, III, v. FLORIDA ATLANTIC UNIVERSITY BOARD OF TRUSTEES,, 228 F. Supp. 3d 1303 (S.D. Fla. 2017)

    . . . . § 768.28(2). . . .

    GREEN, v. COTTRELL,, 204 So.3d 22 (Fla. 2016)

    . . . The district court noted that section 768.28, enacted in 1973, applies to “[e]very claim against the . . . See § 768.28(14), Fla. Stat. . . . See § 768.28(2), Fla. Stat. . . . Instead, the four-year statute of limitations in section 768.28(14) governs. . . . Instead, the four-year statute of limitations in. section 768.28(14) governed. . . .

    DAVIS, v. BAEZ,, 208 So. 3d 747 (Fla. Dist. Ct. App. 2016)

    . . . complaint below, asserting several affirmative defenses, including sovereign immunity pursuant to section 768.28 . . . place him beyond the protection of sovereign immunity and render him personally liable under section 768.28 . . . Sovereign Immunity and Personal Liability We begin with the sovereign immunity statute, section 768.28 . . . negligence as to Baez can be established only if, as alleged in Count II and as required by section 768.28 . . .

    CITY OF FORT LAUDERDALE, a v. ISRAEL,, 178 So. 3d 444 (Fla. Dist. Ct. App. 2016)

    . . . Legislature has - expressly provided for limited waiver of sovereign immunity in tort through section 768.28 . . . Section 768.28(1) provides for the waiver by “the-state, for itself and for its agencies dr subdivisions . . . Section 768.28(2) defines “state agencies or subdivisions” as including “counties and municipalities. . . .

    STATE DEPARTMENT OF ELDER AFFAIRS, v. CALDWELL,, 199 So. 3d 1107 (Fla. Dist. Ct. App. 2016)

    . . . Finally, to the extent that Caldwell claims the Legislature waived sovereign immunity under section 768.28 . . .

    SECURE SOLUTIONS USA INC. a W. a k a W. v. MORROW,, 210 So. 3d 92 (Fla. Dist. Ct. App. 2016)

    . . . services with PCSO, filed a motion for summary judgment based on limited sovereign immunity under section 768.28 . . . Section 768.28(9)(a) provides for sovereign immunity from tort actions for any “officer, employee, or . . . Section 768.28(5), however, provides for a limited waiver of this sovereign immunity. Plancher v. . . . as private individuals, but liability does not include punitive damages or prejudgment interest. § 768.28 . . . defined to include “corporations primarily acting as instrumentalities or agencies of the state.” § 768.28 . . .

    In AMENDMENTS TO FLORIDA RULES OF CIVIL PROCEDURE, 199 So. 3d 867 (Fla. 2016)

    . . . shallmust be served within 20 days after service of the answer. (2)(A) Except when sued pursuant to section 768.28 . . . (B) When sued pursuant to section 768.28, Florida Statutes, the Department of Financial Services or the . . .

    MCCRODEN, v. V. BRESSETT, D., 668 F. App'x 867 (11th Cir. 2016)

    . . . on the basis of qualified immunity under federal law and individual statutory immunity under section 768.28 . . . Stat. § 768.28(9)(a). . . .

    L. PARKER, v. AMERICAN TRAFFIC SOLUTIONS, INC. El St., 835 F.3d 1363 (11th Cir. 2016)

    . . . . § 768.28). Keck is instructive. . . . Keck held that individual immunity granted to government employees under Florida Statutes § 768.28(9) . . . In so holding, Keck relied on the plain language of § 768.28(9)(a), which states that a government employee . . . to propose an amendment authorizing review of non-final orders denying individual immunity under § 768.28 . . . was adopted authorizes review of non-final orders denying individual or sovereign immunity under § 768.28 . . .

    HARRIS, v. DEBELLIS, D., 658 F. App'x 940 (11th Cir. 2016)

    . . . DeBellis acted with malicious purpose and is therefore not entitled to sovereign immunity under Section 768.28 . . . Under Section 768.28(9)(a), an officer, employee, or agent of the state may not be held personally liable . . . Stat. § 768.28(9)(a). De-Bellis was clearly operating within the scope of his employment. . . . City of Orlando, 929 So.2d 43, 48 (Fla. 5th DCA 2006) (holding that “the benefit of [Section 768.28(9 . . .

    J. BUSSEY- MORICE, III, v. KENNEDY,, 657 F. App'x 909 (11th Cir. 2016)

    . . . Florida Statute § 768.28(9)(a) provides Florida municipalities sovereign immunity fi’om liability arising . . . Stat. § 768.28(9)(a); Keck v. Eminisor, 104 So.3d 359, 366 (Fla. 2012). . . . Recognizing § 768.28(9)(a)’s protection, the City of Rockledge raised this statute’s sovereign-immunity . . . In response to the City’s motion, Bussey-Mor-ice made no attempt to argue that § 768.28(9)(a) was inapplicable . . . maliciously”—a category of conduct that when alleged, automatically implicates sovereign immunity under § 768.28 . . .

    GURRERA, v. PALM BEACH COUNTY SHERIFF S OFFICE, a s, 657 F. App'x 886 (11th Cir. 2016)

    . . . Stat, § 768.28(9)(a). . . . App. 1985) (officers not entitled to immunity under § 768.28(9)(a) when they used fraud or corrupt means . . .

    CITY OF DELRAY BEACH, v. DeSISTO,, 197 So. 3d 1206 (Fla. Dist. Ct. App. 2016)

    . . . ’s total recovery was limited by the $100,000 waiver of sovereign immunity cap set forth in section 768.28 . . . against “the state 'arid its agencies and subdivisions” based on the limitations set forth iri section 768.28 . . . Section 768.28(5) grants a limited waiver of sovereign immunity against the state and its entities, and . . . reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature. § 768.28 . . . Effective to claims arising on or after October 1, 2011, this amount was increased to $200,000. § 768.28 . . .

    McALPIN v. ROBERTS, III,, 195 So. 3d 1197 (Fla. Dist. Ct. App. 2016)

    . . . dismiss claiming (1) the Appellants had failed to comply with the pre-suit requirements of section 768.28 . . .

    TAIVAL, D. O. v. BARRETT,, 204 So.3d 486 (Fla. Dist. Ct. App. 2016)

    . . . See § 768.28(9), Fla. Stat. (2012). Dr. . . . Miami-Dade Cty., 117 So.3d 400, 405 (Fla.2013) (holding that even though section 768.28(9)(a) provides . . .

    NAVARRO, a k a v. CITY OF RIVIERA BEACH,, 192 F. Supp. 3d 1353 (S.D. Fla. 2016)

    . . . As previously noted, “[s]ection 768.28(9)(a) [Fla. . . . Stat. § 768.28. Compl. ¶¶ 4, 51. . . . Stat. § 768.28(9)(a). . . . Stat. § 768.28(9)(a); McNayr v. . . . Stat. 768.28(6)(a). See Aitcheson v. Fla. . . .

    DUNN, v. CITY OF BOYNTON BEACH,, 192 F. Supp. 3d 1310 (S.D. Fla. 2016)

    . . . Sovereign Immunity Section 768.28 of the Florida statutes is Florida’s waiver of sovereign immunity from . . . Stat. § 768.28(9)(a). . . . reprehensible and unacceptable than a mere intentional tort.”)- The reference to “bad faith” in section 768.28 . . .

    W. D. v. ARCHDIOCESE OF MIAMI, INC. a St. J. Q. M. O. P. O. REV. E. B., 197 So. 3d 584 (Fla. Dist. Ct. App. 2016)

    . . . Sinrod, 90 So.3d 852 (Fla. 4th DCA 2012), we reviewed section 95.11(7)’s application to section 768.28 . . . We held that section 768.28(14)’s time limitation' for negligent tort claims against state agencies controlled . . .

    WILLIAMS, v. CITY OF JACKSONVILLE F. s, 191 So. 3d 925 (Fla. Dist. Ct. App. 2016)

    . . . negligence action with prejudice based on the passage of time and the limitations period set out in section 768.28 . . . of limitations in section 95.11(3)(a), Florida Statutes, and that the action “complies with Section \768.28 . . . Williams failed to comply with section 768.28(6), and failed to provide any information to the-.City’ . . . Williams failed to comply with the pre-suit notice required by section 768.28, that the passage of time . . . “A bar based on accrual and alleged untimeliness, whether under section 768.28(6) or [the applicable . . .

    PIEDRA, Sr. v. CITY OF NORTH BAY VILLAGE,, 193 So. 3d 48 (Fla. Dist. Ct. App. 2016)

    . . . entity remains sovereignly immune from suit notwithstanding the legislative waiver present in section 768.28 . . .

    NELSON a k a B. v. HILLSBOROUGH COUNTY,, 189 So. 3d 1037 (Fla. Dist. Ct. App. 2016)

    . . . Nelson failed to sufficiently allege compliance with the notice requirements of section 768.28, Florida . . . a claim may only be filed if the claimant complies with the notice requirements set out in section 768.28 . . . claim in writing to the Department of Financial Services, within 3 years after such claim accrues.” § 768.28 . . . The notice requirement is a condition precedent to maintaining the action, § 768.28(6)(b), and compliance . . . complaint alleged as to notice: “Plaintiff notified the Defendant of her fall as requested by F.S. § 768.28 . . .

    M. M. v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES,, 189 So. 3d 134 (Fla. 2016)

    . . . forum non conveniens; (x) that, as a matter of law, a party is not entitled to immunity under section 768.28 . . .

    FLORIDA DEPARTMENT OF TRANSPORTATION, v. SCHWEFRINGHAUS,, 188 So. 3d 840 (Fla. 2016)

    . . . IF SO, IS DOT’S LIABILITY UNDER THE CROSSING AGREEMENT LIMITED BY SECTION 768.28(5), FLORIDA STATUTES . . . IF SO, IS DOT’S LIABILITY UNDER THE CROSSING AGREEMENT LIMITED BY SECTION 768.28(5), FLORIDA STATUTES . . . We noted that the Legislature, in section 768.28, Florida Statutes, waived sovereign immunity in tort . . . City of Treasure Island, 796 So.2d 481, 486 (Fla.2001) (refusing to apply section 768.28 to restrict . . . Here, the plain language of this subsection indicates that it applies only to tort claims. § 768.28(5 . . .

    W. DEBOSE, v. UNIVERSITY OF SOUTH FLORIDA, L. P., 178 F. Supp. 3d 1258 (M.D. Fla. 2016)

    . . . Mar. 9, 2011), and that Florida’s waiver of sovereign immunity found in Section 768.28 of the Florida . . . Stat., § 768.28(9)(a) (2015) (emphasis added). . . . “In applying Section 768.28(9)(a) on a motion to dismiss, Florida courts look to see whether the face . . . Stat., § 768.28(6)(a) (2015). . . . Here, the FAC fails to allege compliance with Section 768.28(6)(a). . . .

    NATIONAL AUTO SERVICE CENTERS, INC. a a D. LLC LLC, v. F R LLC, a F R LLC, a, 192 So. 3d 498 (Fla. Dist. Ct. App. 2016)

    . . . S.A.P., for example, the court held that the state can be equitably estopped from asserting section 768.28 . . . In reaching that conclusion, the court characterized section 768.28(13) as a “conventional statute of . . .

    SCHOOL BOARD OF BROWARD COUNTY, a v. CITY OF CORAL SPRINGS,, 187 So. 3d 287 (Fla. Dist. Ct. App. 2016)

    . . . sovereign immunity and, alternatively, failure to comply with the presuit notice requirements of section 768.28 . . . the School Board’s challenge to the sufficiency of the notice the City provided pursuant to section 768.28 . . .

    MANFRE, v. SHINKLE,, 184 So. 3d 641 (Fla. Dist. Ct. App. 2016)

    . . . The Legislature enacted section 768.28, Florida Statutes, to provide for a limited waiver of the state . . . Bowden, 737 So.2d 532, 534-35 (Fla.1999); see also § 768.28(1), (5), Fla. Stat. (2008). . . .

    M. EDWARDS, M. M. Jr. A. T. v. ROSEN, M. D. P. L. M. D. M. D. P. A., 189 So. 3d 177 (Fla. Dist. Ct. App. 2016)

    . . . See § 768.28(9)(a), Fla. Stat. (2007). . Fabre v. . . .

    O BOYLE, v. H. THRASHER,, 638 F. App'x 873 (11th Cir. 2016)

    . . . . § 768.28(9)(a). . . . malice, bad faith, and wanton and willful disregard, his state law claims do not sufficiently overcome § 768.28 . . . Thrasher acted with the requisite bad faith, malice, and wanton and willful disregard needed to overcome § 768.28 . . . Florida courts have held that bad faith, malice, and wanton and willful disregard language found in § 768.28 . . . did not err in dismissing O’Boyle’s state law claims for failure to overcome the immunity found in § 768.28 . . .

    E. SILL a k a v. JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,, 182 So. 3d 851 (Fla. Dist. Ct. App. 2016)

    . . . Under section 768.28(6)(a), Florida Statutes, he was required to present his claim in writing before . . .

    A. DOUGLAS, v. A. BRONSON, 178 So. 3d 552 (Fla. Dist. Ct. App. 2015)

    . . . a determination, as a matter of law, that a party is not entitled to either immunity under section 768.28 . . .

    L. CLARIDY H. v. M. GOLUB,, 632 F. App'x 565 (11th Cir. 2015)

    . . . claims, he moved for summary judgment on the ground of individual immunity under Florida Statute § 768.28 . . . We have not yet considered whether an order denying immunity under Florida Statute § 768.28(9)(a) is . . . Stat. § 768.28(9)(a) (emphasis added). . . . Immunity under § 768.28(9)(a) As quoted above, § 768.28(9)(a) protects an officer from personal liability . . . Stat. § 768.28(9)(a). . . .

    C. P. a BY AND THROUGH PEREZ, C. v. COLLIER COUNTY,, 145 F. Supp. 3d 1085 (M.D. Fla. 2015)

    . . . . § 768.28(9)(a). Two portions of the statute are relevant. . . . Stat. 768.28(9)(a). . . . Stat. 768.28(9)(a). . . . Stat. § 768.28(5). D. . . . Stat. § 768.28(5). E. . . .

    WATTS, v. CITY OF HOLLYWOOD, FLORIDA, 146 F. Supp. 3d 1254 (S.D. Fla. 2015)

    . . . Florida Statute section 768.28—the statute governing waiver of sovereign immunity— provides: The -state . . . StAt. § 768.28(9)(a). . . .

    FLORIDA CARRY, INC. v. UNIVERSITY OF FLORIDA,, 180 So. 3d 137 (Fla. Dist. Ct. App. 2015)

    . . . dismiss on the basis that Appellee Ma-chen is immune from liability for damages pursuant to sections 768.28 . . . It concluded that neither section 768.28 nor organic law provided Machen with immunity from declaratory . . . As the supreme court has set forth, “[S]eetion 768.28 ... applies only when, the governmental entity . . . We also note that section 790.33 makes no mention or citation to section 768.28. . . . (5), but not to section 768.28(8), indicated that the Legislature did not intend for section 768.28(8 . . .

    FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION G. v. JEFFREY,, 178 So. 3d 460 (Fla. Dist. Ct. App. 2015)

    . . . summary judgment is not irreparable because, by virtue of the waiver of sovereign immunity in section 768.28 . . .

    SEARCY DENNEY SCAROLA BARNHART SHIPLEY, P. A. a S. II, P. A. L. P. A. P. L. P. A. v. STATE, 190 So. 3d 120 (Fla. Dist. Ct. App. 2015)

    . . . Importance and certify the following question to the Florida Supreme Court: AFTER THE ENACTMENT OF SECTION 768.28 . . .

    GREEN, v. COTTRELL, E. E. D., 172 So. 3d 1009 (Fla. Dist. Ct. App. 2015)

    . . . District Court of Appeal held that the four-year statute of limitations period set forth in section 768.28 . . . Appellant alleges the four-year statute of limitations period outlined in section 768.28(14), Florida . . . The more general four-year statute of limitations period outlined in section 768.28(14) applies to “[ . . . Section 768.28(14) is more general because it applies to any claims “against the state or one of its . . . agencies or subdivisions for damages for a negligent or wrongful act or omission.” § 768.28(14), Fla. . . .

    MORADIELLOS, v. GERELCO TRAFFIC CONTROLS, INC., 176 So. 3d 329 (Fla. Dist. Ct. App. 2015)

    . . . See § 768.28(9)(a), Fla. Stat. (2014); see also Aravena v. . . . Instead, pursuant to section 768.28(9)(a), it is being sued as a surrogate defendant based on the negligent . . .

    SEARCY DENNEY SCAROLA BARNHART SHIPLEY, P. A. a S. II, P. A. L. P. A. P. L. P. A. v. STATE, 194 So. 3d 349 (Fla. Dist. Ct. App. 2015)

    . . . The petition premised this request on a 25% fee cap provision in section 768.28(8) and on the argument . . . City of Jacksonville, 403 So.2d 379, 381 n. 5 (Fla.1981), • Section 768.28, Florida Statutes, is the . . . Id, Subsection 768.28(8) of the same statute states that “[n]o attorney may charge, demand, receive, . . . The Treatment of Section 768.28(8) by Florida Courts Shortly after the enactment of section 768.28, the . . . A claims bill, both before and after the enactment of section 768.28, is a “voluntary recognition of . . . Because of the enactment of section 768.28, which now requires that aggrieved individuals first invoke . . . Legal Background Pursuant to Article X, section 13 of the Florida Constitution, section 768.28, Florida . . . Stated another way, section 768.28 is" the state’s consent to be sued. . . . Pertinent to the issues at hand, section 768.28 provided, and continues to provide: a limited waiver . . . The Noels received $200,000, consistent with section 768.28(5)’s damages cap. . . . The -premise of the dissent is that by enacting section 768.28, Florida Statutes, the legislature altered . . .

    J. WEILAND, v. PALM BEACH COUNTY SHERIFF S OFFICE,, 792 F.3d 1313 (11th Cir. 2015)

    . . . . § 768.28(9)(a) — which provides that the State and its subdivisions “shall not be liable in tort for . . . infliction of emotional distress claim “would at least constitute willful and wanton conduct” under § 768.28 . . . Servs., 695 So.2d 927, 930 (Fla. 2d DCA 1997) (citing several cases for the proposition that “[s]ection 768.28 . . .

    NORTH BROWARD HOSPITAL DISTRICT d b a SRNA M. D. LLC CRNA v. KALITAN,, 174 So. 3d 403 (Fla. Dist. Ct. App. 2015)

    . . . . § 768.28, Fla. Stat. (2007). The instant appeals followed. III. Estate of McCall v. . . .

    WILLIAMS, v. BECKER, Dr,, 608 F. App'x 905 (11th Cir. 2015)

    . . . . § 768.28(1), but “[a]n action may not be instituted on a claim ... unless the claimant presents the . . . agency, and ... to the Department of Financial Services within 3 years after such claim accrues,” id. § 768.28 . . . Id. § 768.28(6)(b); see Pub. Health Trust of Miami-Dade Cnty. v. . . .

    PLANCHER, v. UCF ATHLETICS ASSOCIATION, INC. v. UCF, 175 So. 3d 724 (Fla. 2015)

    . . . summary judgment, which had argued that UCFAA is entitled to limited sovereign immunity under section 768.28 . . . Section 768.28 provides a waiver of sovereign immunity in tort actions but only to a specified extent . . . Pursuant to section 768.28(5), Florida Statutes (2008), “[t]he state and its agencies and subdivisions . . . And “all parties agree[d] that JTA falls within the definition of a,state agency” under section 768.28 . . . See § 768.28(5), Fla. Stat. It is so ordered. . . .