Written by attorney Robert Edward Heyman

Waiver of Sovereign Immunity in Florida: When the "King" can be sued

At common law, no government could be sued for damages by one of its citizens, no matter how egregious the negligence or resulting damages. "The king can do no wrong" was the operative phrase which insulated the government from liability since Medieval times.

In 1975, all that changed in Florida when the legislature enacted Florida Statute 768.28 which was entitled "Waiver of Sovereign Immunity in Tort Actions; Recovery Limits on Attorney Fees; Statute of Limitations". This statute at least partially opened the door to negligence lawsuits against governmental agencies and set up guidelines under which such lawsuits must proceed. Pursuant to 768.28, the government may be held liable for the negligence of its agents or employees ( while acting within the course and scope of their employment) under circumstances where a private individual would be liable for property damage, personal injury or wrongful death. While the standard 4 year Statute of Limitations still applies, specific notice requirements are imposed prior to the filing of a lawsuit. In all cases, the claimant is required, within 3 years of the incident, to file a written claim with the involved agency and to the Florida Department of Financial Services. Upon receipt of the claim, the agency has 6 months ( 90 days in medical malpractice claims) to evaluate the claim and either deny or offer to settle the claim before the claimant can file suit. T

he failure of the agency to respond within the required time frames is deemed to be a denial. While this provision was included to ostensibly promote pre-suit settlements, in reality, few cases are resolved in this manner. The statute limits attorney's fees to 25% of the recovery and "caps" the damages that can be recovered to $200,000 per person and $300,000 per incident. While a judgment greater than those limits can be awarded, there can be no additional recovery over the statutory limits unless the Florida Legislature enacts a specific "claims bill" which authorizes payment. This is a very rare occurrence give the recent focus on reducing state and local budgets. Should you believe that you have a potential claim against a governmental agency, do not delay in seeking legal advice. The pre-suit requirements of 768.28 are strictly construed and can bar an otherwise meritorious claim if not followed to the letter.

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