Institutional Affiliation:




Sovereign immunity is a form of statutory protection that proscribes the American
state and federal governments as well as their departments from tortious monetary claims
without their express consent (Bustin and Drake, 2002). The doctrine traces its origin to
common law prior to Parliament rising to power. Its main basis was expressing the fact that
the crown is above the people thus the subjects could not sue the monarchy and by extension
its agents. Also, in ancient American history, the government could neither be sued by the
states nor the citizens without the approval of Congress.
However, currently, exceptions and waivers have been legalized by the state and
federal legislatures that institute claims against the government thus sovereign immunity can
remain intact. The basis of sovereign immunity in America is that if it is significant to ensure
that the government remains effective, efficient, and democratic. The non-existence of the
doctrine would result in courts being overwhelmed by suits and the legislative and executive
branches could be hindered from conducting their functions efficiently owing to the fear of
being slapped with lawsuits (Bustin and Drake, 2002).
The Florida Statute 768.28 Title XLV is the main law that governs the aspect of
sovereign immunity in Florida. Section 5 (a) of the said statute provides that the state, its
subdivisions and agencies will be liable and responsible for tort actions in a similar manner
and extent as private individuals in similar circumstances (Kahn, 1988). However, the
provision stipulates that the same shall not comprise of punitive interest or damages for the
period before the judgment is delivered.
The main focus of this paper will be the section that provides that neither the state, its
subdivisions, or agencies will be liable to pay a judgment of claim that exceeds $200, 000 or
one which when totalled with other claims or judgments exceeds a total of $300, 000. Such is


a demonstration of adverse impunity and discrimination (McDonald, 1984). Limiting the
monetary liability of government agencies and their subdivisions makes an unjustified
distinction between the government and private-owned institutions hence unjust and unfair.
The current paper will advance the contention that having a disparity in the limits of
monetary claims between the government and private institutions is blatantly unjustified.
Therefore, the Florida Statute 768.28 Title XLV should be modified to medical malpractice
claims, as the relief or compensation that should be available to a claimant of this type should
be irrespective of whether the healthcare facility was governmentally owned or operated. We
thus solidly suggest that private and public health care medical malpractice claims should be
managed equally (Klein and Chalker, 1980). Florida Statute 768.28 Title XLV (Sovereign
Immunity Law) ought to be modified so that it specifically excludes the protections when
there is an occurrence of "medical malpractice."
We also contend that the idea of sovereign immunity is understandable, however, as it
relates to healthcare services and the malpractice thereof, applying limits of $200,000 and
$300,000 solely because the provider is an extension of related to a governmental entity is
unfair and unjust (Kahn, 1988). The same compensation and relief for injured parties in a
healthcare setting should be possible regardless of the ownership of the sued institution.
Moreover, having different limits because of the event occurring in a governmental affiliated
facility versus a privately owned facility is antithetical to the idea of just compensation.
The policy change will not only have positive local implications but also national and
global positive effects. It will create a level playing field for both government and private
institutions since the statutory monetary limit of compensation only favors the government
bodies. Hence the need for victims seeking to recover excess amounts of the set limits should
request that the Legislature enacts a novel bill that is more reasonable (McDonald, 1984).


Moreover, the policy change may have substantial indeterminate adverse fiscal effects on the
local and state governments.

The cost of the policy change if the Sovereign Immunity Law of Florida is not known
with certainty. There is no centralized place for local government institutions, like counties,
cities, educational institutions boards, unique districts, and sheriff’s offices to record the
value of the total claims that are paid under the existing waiver of sovereign immunity. All
the information required for documenting the cost of waiving sovereign immunity can be
accessed from the Division of Risk Management, commonly referred to as Division. It will
provide the insurance of general liability to the state institutions up to the amount of waiver
of sovereign immunity (F.S., Section 284.30). The Division is also tasked with settling and
defending tort actions that are filed against the state agencies.
In the fiscal year between 2020 and 2021, the Division paid a sum of approximately
$4.2 million for the resolution of numerous general claims of liability (Kahn, 1988).
Moreover, the Division offers insurance of auto liability to state institutions for the claims
that result from the usage of state agencies’ vehicles. In the fiscal year between 2020 and
2021, it paid almost $5.9 million for the resolution of approximately 480 claims of
automobile liability.
The claim bill process is one that is significant and effective. Individuals that desire to
have a payment of their claims in excess of the legal limits should get a state legislator to
introduce one in the Legislature. The claim bill should be passed in both houses. Once the
claim bill is filed, every presiding officer of all the Legislature houses can refer the bill to s
special master or other committees for perusal and review (Klein and Chalker, 1980). The
Senate as well as House Special Masters will then hold a joint hearing to aid them in


determining whether the negligence elements have been met. Such include the duty of care,
breach, causation, and compensation or damages.
The policy change will limit the waiver of sovereign immunity of government
institutions for every injured person and for every incident. Hence, the creation of a level
playing field for both government institutions and private agencies. Thus a claim may be
voluntarily paid out in excess of the set limits without necessarily formulating a claim bill.
Insurance policies will also be prevented from conditioning the payment of benefits out of the
enactment of the bill of a claim (Bustin and Drake, 2002). Moreover, the increased liability
restriction will be effective as of the final judgment date and will be subjected to heightened
The policy change will also offer annual changes of approximately $1 million limit
founded on the Index of Consumer Price for the Southeast or the successor index of the
American Department of Labour. Moreover, the policy change will provide that there is no
statute of limitation or statute of civil action repose against the local or state government
where the plaintiff is below the age of majority when the injury is perpetrated (Bustin and
Drake, 2002).
The fiscal impact statement of the policy change will involve various aspects. To
begin with, the policy change will not have any financial impact on the tax of fee issues.
However, it will significantly impact the private sector. The people that receive judgments or
settlements with the state or its subdivisions or agents could receive more compensation
owing to the heightening of the liability limits (Kahn, 1988). There will also be a significant
lag of time from injuries to case resolutions that may delay the fiscal effect of the policy
change in the short-term.


Moreover, there will be a likely fiscal impact on the government sector. There is the
likelihood of an increase in the liability restrictions or limits f local and state governments.
The preceding will be contingent on the number of claims that will be filed which are more
than the pre-existing restrictions though lower than the limits proposed under the proposed
changes. Moreover, the stated and the agencies thereof may experience a surge in the
insurance premiums for the liability coverages which will be in response to the increased
limits of liability (McDonald, 1984). However, there may be a likely time lag from injuries to
case resolutions that could delay the fiscal effect of the proposed changes of the legislation.

As earlier stated, the basis of the sovereign immunity doctrine in America is common
law. The rationale is that a sovereign being should be exempted from suits. This is not
because of any official conceptions or archaic theories but rather based on practical and
logical grounds that there cannot exist any legal rights against authorities that formulate the
law which founds the rights (Bustin and Drake, 2002). Florida adopted the common law as it
existed in 1776. The adoption included the sovereign immunity doctrine. The preceding
doctrine also existed in the centuries prior to the Declaration of Independence. 1
The Florida Legislature was first authorized to adopt a waiver of the sovereign
immunity of the state under Section 19, Art. IV, State Const. (1868) (Section 19, Art. VI,
State Const. 1868). Consequently, the Legislature was instructed to adopt a waiver of the
sovereign immunity of the state under Section 13, Art. X, State Const. (1968). The preceding
provision stipulates that a provision could be made by general law for instituting a suit
against the state regarding all pre-existing and new liabilities. Despite the fact that the state’s
initial general was not embraced until later in 1969, individuals could petition for legislative
relief through a bill of claims (Kahn, 1988). The very first claim was enacted in 1833 by the
1 4 North Carolina Dept. of Transp. v. Davenport, 432 S.E.2d 303, 305 (N.C. 1993)


Legislative Council of the Territory of Florida (Kahn, 1988). The preceding bill of claim
sanctioned payments to individuals that supplied building materials and labor for the initial
capitol structures (Kahn, 1988).
In 1969, the Legislature of Florida enacted s. 768.15, F.S., which was the very first
general waiver of the state regarding sovereign immunity (Laws of Fla, Chapter 69-116).
Moreover, the Legislature of 1969 embraced another legislation that repealed s. 768.15, F.S.,
after being in effect for a span of one year. Later in 1973, the Legislature also embraced a law
that generally served as a waiver to the sovereign immunity of the state (Laws of Fla, Chapter
Section 768.28, F.S., legislation was formulated after the Federal Tort Claims Act and
has remained substantially similar to date. It provides that as per Section 13 Article X of the
Florida Constitution, the state along with its subdivisions and agencies will waive sovereign
immunity for tort liabilities to the extent that is provided for by the act. Moreover, that suits
are instituted against the state or its agencies for property loss, injuries or death as a result of
negligence in state employees’ actions while in employment will be waived (Kahn, 1988).
However, liable private persons for similar acts will be held liable and prosecuted.
Section 768.28(5), F.S. (1973), provides that the collectability of various tort
judgments against states is restricted to $50,000 for each person and $100,000 for every
incident. The legal fees were also restricted to 25% of the settlements and judgment proceeds
(F.S. Section 768.28 (8), 1973). Further, in 1981, the Legislature increased the damages
amount that could be amassed to $100,000 for each individual and $200,000 for every
incident (Laws of Fla. Chapter 81-317). Later in 2010, the Legislature heightened the
restrictions to $200, 000 for each person and $300,000 for every incident (Laws of Fla.
Chapter 2010-26).


The Florida Statute Section 768.28 regulates the claims that are filed against the state.
Such include the state agencies and other subdivisions. Through the law, Florida
conditionally waives the immunity right in particular circumstances (Bustin and Drake,
1988). Under the rules, any individual that is injured by the state government of an employee
of such can file a claim and also only in certain circumstances. Such limited circumstances
a) When the injury is a result of a wrongful act, omission or negligence. Such include
care accidents and medical negligence.
b) Where the losses of the claimants could be compensated through monetary damages.
Such mostly covers the cases based on negligence.
c) Where the situation is such that the negligent individual could have been liable as a
private party as opposed to the government subdivision or employee (Kahn, 1988).
Nonetheless, the Florida Statute imposes certain restrictions on the claims that the parties can
institute. Such include:
a) State government employees can not be possibly held liable for any damage. This is
unless they intentionally caused the harm. Rather, all the claims ought to be filed
against the government agency or body that serves as their employer.
b) Damages in matters against the government of Florida are restricted to $200,000 or
$300,000 if the claim is instated against several government institutions.
c) Punitive interest or damages that accrue before the judgments was made and cannot
be awarded in instances where suits have been instituted against the Florida
d) The state can appeal any case resolution.


e) Suits instituted against the state universities ought to be brought in the nation where
the state agency unless the agency has a solid presence in the state where the damage
More restrictions apply to the suits that are filed against law enforcement agencies or
officers, public health institutions such as public medical institutions, and the Space
Agency of Florida. Suits that are instituted from the inmates of the Department of
Corrections in Florida are also subjected to special time restrictions (Klein and Chalker,
If one is injured by the state government, the individual victim should include the
state agency involved in the suit in the notice of claim in writing. This should be done
within a span of three years of the occurrence of the incident. Moreover, no law suit can
be filed after a span of 180 days of investigation lapses unless the claim is denied
formally. Moreover, the letter that describes the facts, date and losses could be mailed or
one can use the optional forms of claim in the Division of Risk Management of Florida
(Kahn, 1988). A notice of claim should also be provided on paper. Moreover, an emailed
notice would also be regarded sufficient in accordance with the Division of Risk
In the event the claim is denied, a personal injury claim against the Florida should be
filled within a span of three years from the injury date. In the event the claim is as a result
of wrongful death it ought to be filled within a span of two years. Moreover, the inmates
of the Florida Department Corrections have a span of one year to give a written notice of
the claim and three years to file the law suit (Bustin and Drake, 2002).
From the preceding, it is evident that filing a suit against the government for tortious
conduct is not only complex but also almost legally impossible. The complex process


adds onto the difficult process already created by the monetary restrictions that are
imposed by the Florida Sovereign Immunity Law (Kahn, 1988).

The Florida Statute 768.28 Title XLV policy change will increase the restriction of
the federal and state government’s sovereign immunity from $200, 000 for each injured
person and $300, 000 for every incident to approximately $1 million for each injured person.
However, the preceding amount can be altered in the future owing to inflation. Further, the
policy change will enable the voluntary payment of a claim beyond the existing limits
without the formulation of a claim bill. Moreover, no insurance policy will be able to
condition benefits payments based on the formulation of a claim bill (Klein and Chalker,
The increased limits of liability are efficient and effective from the final judgment’s
date. Therefore, the existing claims that are yet to go for final judgment from the bill’s
effective date will be subjected to heightened limits. Moreover, the policy change will
provide that there exists no statute of limitations or law of repose base on civil action against
the local or state government ins instances where the plaintiff is below the age of majority at
the time of injury (Klein and Chalker, 1980).


Bustin, T. A. & Drake, W. N. (2002) “Judicial Tort Reform: Transforming Florida’s Waiver
of Sovereign Immunity Statute.” Stretson Law Revie, 469.
Kahn, S. D. (1988). “Legislative Claim Bills: A Practical Guide to a Potent(ial) Remedy.”
The Florida Bar Journal, 23.
Klein, L. A. & Chalker, B. A. (1980) “Developments in Florida’s Doctrine of Sovereign
Immunity.” HeinOnline.
McDonald, S. C. (1984) “Sovereign Immunity-Revisited but Still Not Refined.” Hein Online

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