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Florida Construction Law News

07MAY 2020

I’m Sorry Ms. Jackson, I [Sovereign Immunity] am For Real

by: Greggory Jacobs, Esq.

The Supreme Court of Florida issued its opinion in Florida Highway Patrol v. Jackson, 2020 Fla. LEXIS 108 (Fla. Jan 23, 2020), which answered the following certified question of great public importance:

Does rule 9.130 [(A)(3)(C)(XI)] permit an appeal of a non-final order denying immunity if the record shows that the defendant is entitled to immunity as a matter of law but the trial court did not explicitly preclude it as a defense?

The Court’s answer to this question was “no.” But this opinion stands for much more than just a negative answer to a certified question. Indeed, this opinion has significant implications upon procedural and substantive areas of construction law, which may affect agents of the state of Florida, including Construction Engineering and Inspection professionals and consultants (“CEI”).

Procedurally, the Court recognizes that Fla. R. App. P. 9.130 insufficiently protects the public and governmental interests as “it leaves too great a risk that erroneous denials of operational sovereign immunity will go unreviewed until it is too late.”   Id. at * 19. By extension of this risk, the Jackson Court announced that “courts should determine entitlement to sovereign immunity as early as the record permits.” Id. at * 18. In fact, on that basis, courts can address a motion for summary judgment asserting entitlement to sovereign immunity even if there are outstanding disputes as to, say, the existence of a duty of care. Id. at 17-18. Accordingly, and in an effort to remedy the risk of erroneous denials going unreviewed until it is too late, the Court amended Fla. R. App. P. 9.130 to expand appellate review of nonfinal orders denying sovereign immunity. Jackson, 2020 Fla. LEXIS 108 at * 19; In re Amendments to Fla. Rule of Appellate Procedure 9.130, No. SC19-1734 (Fla. Jan. 23, 2020). The new form of Fla. R. App. P. 9.130 cements the policy mentioned above because it allows an appeal of a nonfinal order denying a motion for summary judgment due to entitlement to sovereign immunity. Meanwhile, under the old rule, the order was only appealable if the trial court order determined – as a matter of law – that a party was not entitled to sovereign immunity. As such, the new rule focuses on what was argued in the motion as opposed to what was written in the order.

This opinion also provides much needed clarity to a murky substantive area of construction law – the sovereign immunity doctrine. “In Florida, sovereign immunity is both an immunity from liability and an immunity from suit.” Jackson, 2020 Fla. LEXIS 108 at * 16. To that end, the Court highlights Wallace v. Dean, 3 So. 3d 1034 (Fla. 2009) as the proper predicate for understanding sovereign immunity as including immunity from suit. Id. In Dean, the Court delineates the differences between a lack of liability under tort law and the presence of sovereign immunity. Dean, 3 So. 3d at 1044. For example, the absence of a duty of care under tort law results in a lack of liability. Id. That’s it; nothing more. Id. On the other hand, sovereign immunity does not cloak the State’s actions as non-tortious, but instead simply means that the State has not consented to suit in its courts with regard to a certain type of claim. Id. at 1045. The takeaway is that a duty of care and sovereign immunity are separate and distinct issues, which should not be conflated.

Reliance on Dean should be limited to the guiding principle of not conflating absence of a duty of care with the presence of sovereign immunity.   The outcome of Dean, including the existence of a duty of care, is somewhat of an anomaly, due in part to its unique underlying factual predicate. Ordinarily, there is no common law duty with regard to how governmental bodies carry out their functions or enforce their police powers as this is a duty to the general public as a whole, not an individual. Dean, 3 So. 3d at 1049; Trianon Park Condo. Ass’n v. City of Hialeah, 468 So. 2d 912, 919 – 20 (Fla. 1985). Without a duty of care there is no liability under tort law. Yet in Dean, the court found the presence of a duty of care to an individual because the sheriff deputies did not attempt to enforce any law, and were not engaged in the protection of the general public; instead, they affirmatively sought to provide a service (a 911 safety check) to a specific individual.   Dean, 3 So. 3d at 1040. Since a duty of care existed, the Dean court was tasked with separately and subsequently addressing the issue of sovereign immunity and whether the actions of the deputies waived the immunity. Id. at 1044.

Potential Future Implications

Going forward, and under Florida Highway Patrol v. Jackson, agents of the state, including CEI professionals and consultants, might be able to seek expeditious adjudication of a motion for summary judgment on the basis of sovereign immunity and/or appellate review of non-final orders denying sovereign immunity. By virtue of subsection (10)(e), CEIs are, in certain situations, agents of the Florida Department of Transportation. Fla. Stat. § 768.28 (10)(e) (2019). As such, agents of the Florida Department of Transportation are statutorily provided a form of sovereign immunity. Fla. Stat. § 768.28 (9)(a) (2019).

Notably, several wrinkles remain in the above application and doctrine of sovereign immunity. Given the scope of work, CEIs seemingly only have a duty to the general public, which means no duty to any individual plaintiff. As such, there should be no exception for gross negligence or malice because there is no duty in the first place. We will continue to monitor and provide significant updates on the application of Florida Highway Patrol v. Jackson at the trial and appellate court levels.

If you have any questions about this opinion or the sovereign immunity doctrine, generally, please contact Dean Meyers at dean.meyers@csklegal.com or 954-343-3912.