By: Chris Reynolds
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Suing the State in Florida – Sovereign Immunity
Centuries ago, during the British ruling monarchy, the king and queen were generally immune from any liability and could not be sued. Most modern laws have eliminated at least some portion of this old philosophy, and now allow for at least some liability to be placed on ruling institutions and agencies. In other words, people can sue the government, but there are specific laws that lay out the rules you must follow if you decide to sue the government.
In Florida, these rules are found in Florida Statute 768.28. Whether suing a police officer for causing an automobile accident injury, suing a school a school for not providing proper security for a student for a child injured at school, or suing a city for a sidewalk in disrepair that causes someone to trip and sustain injury, each of these lawsuits must strictly comply with the provisions in Florida Statute 768.28. Failure to follow these “sovereign immunity” laws can result in a lawsuit being completely dismissed.
The Florida law begins by saying that all state agencies or subdivisions waive their sovereign immunity, but anyone who sues a state agency for negligence must follow all the rules outlined in this statute. There are a number of slight differences between suing a private citizen or business, and suing a Florida governmental agency, however, and failure to know these differences can doom a lawsuit.
As you will see, many of these rules make filing suit against a Florida state agency more difficult and less financially rewarding than if you were suing a private individual or private company.
For example, a general negligence lawsuit has a 4-year statute of limitations. So, if someone is injured due to the negligence of another person, the injured person only has 4 years to sue the at-fault person. If a lawsuit is not filed within 4 years, the injured person generally has lost their ability to sue the at-fault person. However, when filing suit against a state agency, the person must file suit within 3 years.
Another rule is that governmental agencies are generally only liable up to $200,000 per incident or occurrence that gave rise to the lawsuit. Of course, a state agency may purchase insurance in an amount greater than $200,000, but the agency is generally not liable for amounts greater than $200,000. Like many of these sovereign immunity laws, there are some exceptions to this $200,000 cap.
Prior to filing a lawsuit against a governmental agency, the claimant must send a notice to the Florida Department of Financial Services within 3 years after the incident that is the basis for the lawsuit occurs. This notice must include basic facts about the incident. Further, a person may only file a lawsuit after either the state denies the claim. If the Department of Financial Services does not respond to the notice within 6 months, this is considered a denial that will allow a person to file a lawsuit.
Further, in Florida, attorneys may generally charge contingency fees of 33 1/3% in pre-suit claims, and up to 40% for cases in suit. However, for claims against state agencies, attorneys are limited to a contingency fee of 25%.
These are just some of the rules everyone must follow when suing a Florida state agency. Though they may seem minor, you can see how each of these rules helps the state by reducing the number of cases that are brought against the state, and limiting the financial exposure of the state.