768.28. Waiver of sovereign immunity in tort actions – the basic procedures that must be followed and the pitfalls that needs to be avoided for a successful claim.
Sovereign immunity has remained at the same amount for the last thirty (30) years. However, in 2010 the Florida legislature passed legislation that will increase sovereign immunity limits – i.e., the maximum amount government entities can be forced to pay to victims in personal injury cases – from $100,000 per person/$200,000 per incident, to $200,000/$300,000.
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The bill will become effective in October 2011.
For any injured victim to receive more than the sovereign immunity limits, the Florida Legislatures must pass a “Claims Bill” for that individual. To get a “Claims Bill” passed it requires sponsors, debate, legislative approval, and the Governor’s signature. The process is expensive and time consuming, with the goal rarely achieved. Therefore, the sovereign immunity limits are usually all that the victim will receive.
In addition, in order to bring a claim against any government entity there are many procedures that must be followed and there are many pitfalls that must be avoided in order for a successful recovery. This brief article will discuss several the procedures that must be followed.
Now, some basics concerning sovereign cases:
Where can sovereign actions be brought?
1. In the county where the property in litigation is located.
2. In the county where the affected agency or subdivision has an office.
Can a claimant seek punitive damages against a Government Entity?
F.S. 768: 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.
Are there any prerequisites (notice) to filing suit against a government entity?
1. A lawsuit cannot be brought against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the Department of Financial Services. (Commonly called a “768” letter)
2. If the claim is against a municipality the “768” letter must also be sent to the appropriate department within the municipality.
3. The “768” letter must be so presented within 6 months before filing suit against the government entity.
What is required to be within the “768” letter?
1. Date of birth
2. Place of birth
3. Social security number
4. The claimant shall also state the case style
5. Any judgments in excess of $200, whether civil, criminal, or administrative, owed 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.
Whom do we serve process to?
Process shall be served upon the head of the agency concerned and also, except as to a defendant municipality 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.
How much can an attorney for his services?
No attorney may charge in excess of 25 percent.
Can the individual state employee be sued?
A state/governmental employee shall not be held personally liable in tort or named as a party defendant, unless such employees’ acted with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights. Basically, the employee must have acted reckless in their behavior.
When are the sovereign limits going to change?
Effective October 1, 2011, any claims arising on or after that date, shall have limits of 200/300.