Sovereign Immunity and the Power of the Government

“The King can do no wrong.”  That is the thinking behind the concept of Sovereign Immunity and how it applies to the Government in Florida.  This entry will focus on Sovereign Immunity as it applies to people who are injured due to the negligence of the Government.  Generally speaking, the State of Florida cannot be sued for its wrongdoing.  For limited circumstances, the State has waived Sovereign Immunity for its own negligence if it injures somebody and that waiver can be found at Fla. Stat. 768.28.

The law states that if the government injuries someone due to its negligence, it will be responsible for damages up to $200,000.00 per person and $300,000.00 per incident.  Think of the damage limits as if it were policy limits on an insurance policy.  Obviously, many injuries caused by the government’s negligence would be sufficiently covered by the limits.  However, issues arise if the government is negligent and causes a catastrophic injury. 

 If damages from an injury exceed the above mentioned limits, a claimant must receive a final judgment pursuant to a verdict in order to collect the full amount of the damages.  Once the judgment is obtained, the statute requires the claimant obtain a “claims bill” from the legislature in order to receive the money proceeds in excess of the limits mentioned above. 

The “claims bill” process is extremely difficult and complex.  The claimant must find a state legislator to sponsor a bill, introduce it to committee, and the bill must proceed through the State Legislature similar to any other new law.  If the claims bill passes both the Florida House and Senate, it must then be signed into law by the Governor. 

The process is extremely time consuming and requires thousands of attorney hours in order to procure.  However, the biggest problem with attempting to obtain a large verdict against the government is that the government can dictate exactly how much the attorney for the claimant receives. 

In   Searcy Denney ScarolaBarnhart & Shipley v. State, 40 Fla. Law Weekly D1647 (Fla. 4thDist. Ct. App. July 15, 2015), the claimant’s attorney represented a family whose baby suffered a catastrophic brain injury as the result of the negligence of a government hospital.  The jury returned a verdict against the government for approximately 30 million dollars.  A Claims Bill was introduced to the legislature and a claims bill was eventually passed authorizing the state to make a payment of 10 million dollars to the family for their damages. 

Based on the percentage of recovery, the claimants law firm should have been entitled to recover 2.5 million dollars in fees in addition to reimbursement for the nearly $500,000.00 advanced by the law firm to pursue the claim.  However, the claims bill specifically limited the total amount payable to the claimant’s law firm to be $100,000.00. 

The law firm presented evidence that over the course of several years, it had expended approximately 7000 attorney hours and approximately $500,000.00 in advanced litigation expenses.  The Court specifically ruled that the legislature had the authority to limit the attorney’s fees.  So, the law firm that had put in the work and earned over 2.5 million in attorney’s fees and spent $500,000.00 was only compensated $100,000.00 for the entirety of its work. 

The effect of this ruling will likely be that in the future, when the government causes catastrophic injuries based on its negligence, it will be very difficult for the injured party to find an attorney willing to take the case because of the time and money that will need to be spent and the great likelihood that the State will significantly limit the law firm’s compensation.  This is an example of how the Government can write and enforce laws to keep injured persons from being represented by competent counsel.   

Faded Memories and Sworn Testimony

In Personal Injury cases when the insurance company denies the claim, the injured party always has the option to file a lawsuit against the person or company that injured her.  A problem sometimes arises when an injured person chooses to file a lawsuit.  Often times, the commencement of the lawsuit does not happen until at least a year after the accident that caused the injury.  The reasons for the delay can be attributable to a number of factors including the nature of the injury, willingness of the insurance company to negotiate the claim, and a complete and accurate calculation of the full measure of the injured persons damages. 

During the time before the commencement of a lawsuit, memories of the fine details of the events leading to the injury may change or become less clear.  This makes sense of course because all of our memories fade over time.  However, during the course of your lawsuit, you will be asked very specific questions under oath about the fine details of the events leading to your injury.  Often times when an injured person is faced with these very specific questions, they will make assumptions about what they believe the answer to be.  Of course, the assumptions may be made with faded memories and could potentially cause the injured person to give inconsistent or inaccurate testimony. 

It is important to understand that when this happens, it often happens as the result of fading memories and bad assumptions and perceptions of events that took place over a year earlier.  This is not typically the result of an injured person being dishonest. 

Recently, the Second District Court of Appeal addressed this very scenario in Grover v. Karl, 164 So. 3d 1285 (Fla. Dist. Ct. App. 2d Dist.2015).  In this case, the injured party testified in her deposition to facts that were different from the facts that she alleged in her original complaint.  The Court acknowledged that sometimes memories fade and can be different from time to time.  The Court ruled that even if her memories of events were different from her original complaint, she should be given the opportunity to amend her complaint and present the evidence as she recalls unless it clearly appears that (a) allowing the amendment would prejudice the opposing party, (b) the privilege to amend has been abused, or (c) amendment would be futile.

Regardless of the Court’s ruling, the best course of action for an injured person is to always discuss with your lawyer your memory of the fine details of your accident prior to filing a lawsuit or giving sworn testimony.  This ensures that any faded memories you have will not turn into false assumptions during your testimony. 

Florida Statue of Limitations

You may have heard of the term “Statute of Limitations.”  This term is commonly used to refer to a law that tells you how long you have to file a lawsuit against a person who has wronged you.  In Florida, if you have been injured as the result of another’s negligence, you have four years to file a lawsuit against the person who injured you.  The Statute of Limitations can be found at Fla. Stat. 95.11(3)(a).  It is important to understand that in Florida, there exists many different statute of limitations.  For purposes of this post, we will limit our discussion to the statute of limitations for general negligence.  Please note that medical negligence and malpractice have a very different time period for purposes of calculated the time that a lawsuit must be filed under the Statute of Limitations.

If a person fails to file the lawsuit within the four year limitations period, the claim or case will most likely be forever barred.  The important date to keep in mind when calculating a Statute of Limitations is the date that the incident occurs that caused your injury.  For example; if you are involved in a motor vehicle crash on July 23, but you do not discovery your injury from the crash until the following day, the Statute of Limitations will be calculated from July 23. 

In a very limited number of circumstances, the Statute of Limitations could be extended if certain circumstances and criteria are met.  Sometime a Statute of Limitations can be “tolled” or extended in limited circumstances such as mental incompetence of the injured person or if the claim for the injured person accrued while the person was a minor.  However, regardless of if there is a situation where the Statute of Limitation may be tolled, it is always more advisable to file your lawsuit prior to the expiration of the time period and not rely on a tolling or extension.    It is important to discuss with any potential lawyer the Statute of Limitations prior to when you hire them. 

In this post, we primarily discussed the time period for negligence and personal injury cases, but there are many other types of cases that have statutes of limitations such as Medical Malpractice, Professional Malpractice, Liable and Slander, Breach of Contract, Fraud, Damage to Property, and many others.  Make sure you know the applicable Statute of Limitations when considering your claim.