The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: CS/CS/CS/SB 472
INTRODUCER: Rules Committee; Appropriations Committee; Governmental Oversight and
Accountability Committee; and Senator Brodeur and others
SUBJECT: Suits Against the Government
DATE: February 27, 2024 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Harmsen McVaney GO Fav/CS
2. Sanders Sadberry AP Fav/CS
3. Harmsen Twogood RC Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/CS/SB 472 increases the cap on the payment of judgments against government entities
from $200,000 to $300,000 per individual, and from $300,000 to $500,000 per instance. The bill
provides for the annual adjustment of the cap to reflect changes in the Consumer Price Index,
beginning on July 1, 2029, recalculated every five years thereafter, and is not to exceed three
percent for any adjustment.
The bill allows local government entities to settle a claim in any amount without the approval of
a claim bill by the Legislature. If a state agency agrees to settle a claim or has a judgment
rendered against it, the State agency may pay the amount in excess of the waiver of sovereign
immunity and any insurance coverage, only by seeking excess payment from the Legislature
through a claim bill.
The bill reduces from 3 years to 18 months the time allotted for pre-suit notice to the state, its
agency, or a subdivision thereof, and also reduces the duration that entity has to review the notice
from 6 months to 4 months.
The bill removes the statute of limitations and statute of repose for civil actions against state
entities where the plaintiff in a sexual battery matter was younger than 16 years old at the time of
the injury. The bill also reduces the statute of limitations for a negligence claim against the State,
its agency, or a subdivision thereof from 4 years to 2 years.
BILL: CS/CS/CS/SB 472 Page 2
The bill will likely have an indeterminate, significant negative fiscal impact on state and local
governments. See Section V. Fiscal Impact Statement.
The bill takes effect October 1, 2024, and applies to any claim that accrues on or after this date
II. Present Situation:
Presuit Procedures for a Claim against the Government
Before a claimant files a lawsuit against a government entity, the claimant must present the claim
in writing to the government entity within a time period prescribed by law, which is generally
3 years.1 If the claim is brought against the State, the claimant must also present the claim to the
Department of Financial Services (DFS). The government entity generally then has 6-months to
review the claim. If the government entity does not dispose of the claim within that 6-month
period, the claimant may generally proceed with the lawsuit.2
Sovereign Immunity
Sovereign immunity is “[a] government’s immunity from being sued in its own courts without its
consent.”3 The doctrine had its origin with the judge-made law of England. The basis of the
existence of the doctrine of sovereign immunity in the United States was explained as follows:
A sovereign is exempt from suit, not because of any formal conception or
obsolete theory, but on the logical and practical ground that there can be
no legal right as against the authority that makes the law on which the
right depends.4
Article X, s. 13 of the Florida Constitution authorizes the Legislature to enact laws that permit
suits against the State and its subdivisions, thereby waiving sovereign immunity. Currently,
Florida law allows tort lawsuits against the State and its subdivisions5 for damages that result
from the negligence of government employees acting in the scope of their employment, but
limits payment of judgments to $200,000 per person and $300,000 per incident.6 This liability
exists only where a private person would be liable for the same conduct.7 Harmed persons who
seek to recover amounts in excess of these limits may request that the Legislature enact a claim
bill to appropriate the remainder of their court-awarded judgment.8 Article VII, s. 1(d) of the
State Constitution prohibits funds from being drawn from the State Treasury except in pursuance
1 See s. 768.28(6)(a), F.S.
2 See s. 768.28(6)(d), F.S.
3
BLACK’S LAW DICTIONARY (11th ed. 2019).
4
Cauley v. City of Jacksonville, 403 So. 2d 379, 381 (Fla. 1981) (quoting Kawananakoa v. Polyblank, 205 U.S. 349, 353
(1907).
5
Section 768.28(2), F.S., defines “state agencies or subdivisions” to include “executive departments, the Legislature, the
judicial branch (including public defenders), and the independent establishments of the state, including state university
boards of trustees; counties and municipalities; and corporations primarily acting as instrumentalities or agencies of the state,
counties, or municipalities, including the Florida Space Authority.”
6
Section 768.28, F.S.
7
Section 768.28(1), F.S.
8
Section 768.28(5)(a), F.S. See also, s. 11.066, F.S., which states that state agencies are not required to pay monetary
damaged under a court’s judgment except pursuant to an appropriation made by law.
BILL: CS/CS/CS/SB 472 Page 3
of an appropriation made by law. However, local governments and municipalities are not subject
to this provision, and therefore may appropriate their local funds according to their processes.
History of Florida Sovereign Immunity Law
Florida has adopted the common law of England as it existed on July 4, 1776.9 This adoption of
English common law includes the doctrine of sovereign immunity. The doctrine of sovereign
immunity was in existence centuries before the Declaration of Independence. 10
The Legislature was first expressly authorized to waive the state’s sovereign immunity under
s. 19, Art. IV of the 1868 Florida Constitution.11 When the Florida Constitution was amended
in 1968, it again expressly authorized the Legislature to waive the State’s sovereign immunity
under s. 13, Art. X.12
Although the first general waiver of the State’s sovereign immunity was not adopted until 1969,
“one . . . could always petition for legislative relief by means of a claims bill.”13 The first claim
bill was passed by the Legislative Council of the Territory of Florida in 1833.14 The claim bill
authorized payment to a person who supplied labor and building materials for the first permanent
capitol building.15
The 1969 Legislature enacted s. 768.15, F.S., the State’s first general waiver of sovereign
immunity,16 which expired after one year.17 In 1973, the Legislature again adopted a law that
waived the State’s sovereign immunity.18 The statute, s. 768.28, F.S., was modeled after the
Federal Tort Claims Act and remains substantially the same today.
Under s. 768.28(5), F.S. (1973), the State’s ability to pay a tort judgment was limited to
$50,000 per person and $100,000 per incident. In 1981, the Legislature increased the amount of
damages that could be paid to $100,000 per person and $200,000 per incident.19 In 2010, the
Legislature increased the limits to $200,000 per person and $300,000 per incident.20 Attorney
fees have been limited to 25 percent of the proceeds of judgments or settlements since 1979.21
9
Section 2.01, F.S. English common law that is inconsistent with state or federal law is not included.
10
North Carolina Dept. of Transp. v. Davenport, 432 S.E.2d 303, 305 (N.C. 1993).
11
FLA. CONST. Art. IV, Section 19 (1868), states: “Provision may be made by general law for bringing suit against the State
as to all liabilities now existing or hereafter originating.”
12
FLA. CONST. Art. X, s. 13 states: “Provision may be made by general law for bringing suit against the state as to all
liabilities now existing or hereafter originating.”
13
Cauley, 403 So. 2d at note 5.
14
D. Stephen Kahn, Legislative Claim Bills: A Practical Guide to a Potent(ial) Remedy, THE FLORIDA BAR JOURNAL, 23
(April 1988).
15
Id.
16
Chapter 69-116, Laws of Fla.
17
Chapter 69-357, Laws of Fla.
18
Chapter 73-313, Laws of Fla.
19
Chapter 81-317, Laws of Fla.
20
Chapter 2010-26, Laws of Fla.
21
Section 768.28(8), F.S.
BILL: CS/CS/CS/SB 472 Page 4
Statutory Waivers of Sovereign Immunity
Section 768.28(1), F.S., allows tort lawsuits to be filed against the State and its agencies and
subdivisions for damages resulting from the negligence of government employees acting in the
scope of employment. This liability exists only where a private person would be liable for the
same conduct. Section 768.28, F.S., applies only to “injury or loss of property, personal injury,
or death caused by the negligent or wrongful act or omission of any employee of the agency or
subdivision while acting within the scope of the employee’s office or employment ....”22
Section 768.28(5), F.S., caps tort recovery from a governmental entity at $200,000 per person
and $300,000 per accident. Although a court may award a judgment in excess of these statutory
limits, a claimant cannot collect more than provided for in statute without passage of a special
claim bill passed by the legislature.23
Individual government employees, officers, or agents are immune from suit or liability for
damages caused by any action taken in the scope of employment unless the damages result from
the employee’s bad faith, malicious purpose, or wanton and willful disregard from human rights,
safety, or property.24 A government entity is not liable for any damages resulting for actions by
an employee outside the scope of his or her employment and is not liable for damages resulting
from actions committed by the employee in bad faith, with malicious purpose, or in a manner
exhibiting wanton and willful disregard for human rights, safety, or property. 25
Damages and Liability Caps
Generally, damages are of two kinds: compensatory and punitive. Compensatory damages are
awarded as compensation for the loss sustained to make the party whole, insofar as that is
possible. They arise from actual and indirect pecuniary loss. Punitive damages are the payment
that a defendant is ordered to pay on top of compensatory damages and are often awarded when
compensatory damages are deemed insufficient.26 Punitive damages are designed to punish
defendants whose conduct is considered grossly negligent or intentional.27 Section 768.28, F.S.,
does not allow for the recovery of punitive damages, but only for the recovery of compensatory
damages.
The liability caps in s. 768.28(5), F.S., of $200,000 per person and $300,000 per incident, apply
to “all of the elements of the monetary award to a plaintiff against a sovereignly immune entity.”
In other words, a plaintiff’s entire recovery, including damages, back pay, attorney fees, and any
other costs, are limited by the caps in s. 768.28, F.S.
22
City of Pembroke Pines v. Corrections Corp. of America, Inc., 274 So. 3d 1105, 1112 (Fla. 4th DCA 2019) (quoting
s. 768.28(1), F.S.).
23
Breaux v. City of Miami Beach, 899 So. 2d 1059 (Fla. 2005).
24
Section 768.28(9)(a), F.S.
25
Id.
26
Investopedia.com, What are Punitive Damages?, https://www.investopedia.com/terms/p/punitive-
damages.asp#:~:text=Punitive%20damages%20are%20legal%20recompense,considered%20grossly%20negligent%20or%20
intentional (last visited Feb. 14, 2024).
27
Id.
BILL: CS/CS/CS/SB 472 Page 5
Claim Bill Process
“A claim bill is not an action at law, but rather a legislative measure that directs the Chief
Financial Officer of Florida, or if appropriate, a unit of local government, to pay a specific sum
of money to a claimant to satisfy an equitable or moral obligation.”28
Persons who wish to seek the payment of claims in excess of the statutory cap must have a state
legislator introduce a claim bill in the Legislature, which must pass both houses. Once a claim
bill is filed, the presiding officer of each house of the Legislature may refer the bill to a Special
Master,29 as well as to one or more legislative committees, for review. Senate and House Special
Masters typically hold a quasi-judicial, de novo30 hearing to determine whether the elements of
negligence have been satisfied: duty, breach, causation, and damages.31
The amount awarded by the Legislature in a claim bill is based on the Legislature’s concept of
fair treatment of a person who has been injured or damaged but who is without a complete
judicial remedy or who is not otherwise compensable.32 “Unlike civil judgments, private relief
acts are not obtainable by right upon the claimant’s proof of his entitlement. Private relief acts
are granted strictly as a matter of legislative grace.”33
The beneficiary of a claim bill recovers by its enactment, regardless of whether the governmental
tortfeasor purchased liability insurance to pay an excess judgment.34 However, where the
governmental tortfeasor has liability insurance above the statutory cap, and the claimant receives
compensation above that statutory cap through a claim bill, the claim bill is paid with funds of
the insured, not general revenue.35
28
Wagner v. Orange Cty., 960 So. 2d 785, 788 (Fla. 5th DCA 2007).
29
The Florida Bar defines a Special Master as “adjuncts of the court who exercise limited judicial authority and appointed by
the court to perform specific tasks.” The Florida Bar Journal, Utilizing “Special Masters” in Florida: Unanswered
Questions, Practical Considerations, and the Order of Appointment, Vol. 18, No. 9 (Oct. 2007), p.12,
https://www.floridabar.org/the-florida-bar-journal/utilizing-special-masters-in-florida-unanswered-questions-practical-
considerations-and-the-order-of-appointment/ (last visited Feb. 8, 2024). See also, Cornell Law School, Legal Information
Institute, Special Master, https://www.law.cornell.edu/wex/special_master (last visited Feb. 8, 2024).
30
De novo meaning anew; afresh; a second time. BLACK’S LAW DICTIONARY, (8th Ed. 2004), https://www.latestlaws.com/wp-
content/uploads/2015/04/Blacks-Law-Dictionery.pdf (last visited Feb. 8, 2024).
31
See Fla. Senate R. 4.09(3) (2020-2024). See also, Florida Senate, Legislative Claim Bill Manual, 8-10 (Aug. 2023),
available at https://www.flsenate.gov/PublishedContent/ADMINISTRATIVEPUBLICATIONS/leg-claim-manual.pdf (last
visited Feb. 16, 2023).
32
Wagner, 960 So. 2d at 788 (citing Kahn, Legislative Claim Bills, Fla. B. Journal (April 1988)).
33
United Servs. Auto. Ass’n v. Phillips, 740 So. 2d 1205, 1209 (Fla. 2d DCA 1999).
34
Servs. Auto Ass'n v. Phillips, 740 So. 2d 1205 (Fla. 2d DCA 1999).
35
Fla. Mun. Ins. Trust v. Village of Golf, 850 So. 2d 544, 548 (Fla. 4th DCA 2003), citing Bonvento v. Bd. of Pub.
Instruction, 194 So. 2d 605 (Fla. 1967).
BILL: CS/CS/CS/SB 472 Page 6
The following table represents the annual summary of all claim bill activity in the Florida
Legislature from 2019-2023:
Session Year Total Claims Number of Total Dollar Total Dollar
Filed Claims that Amount Amount Paid
Became Law Claimed
2019 19 5 $30,209,967 $4,000,000
2020 15 2 $59,555,928 $6,650,000
2021 13 2 $46,099,864 $2,800,000
2022 18 5 $43,305,151 $2,297,500
2023 16 8 $54,120,900 $20,112,000
Division of Risk Management
Effect of Insurance Coverage on Damages Cap
A government entity may, without a claim bill, settle a claim against it for an amount above the
caps in s. 768.28, F.S., if that amount is within the limits of insurance coverage.36
Pre-Suit Notice and Statutes of Liability for Claims Against the State
A claimant must provide the State notice of