CopyCited 95 times | Published | Court of Appeals for the Eleventh Circuit | 1986 U.S. App. LEXIS 21752
...law, unless the officer, employee, or agent has been determined in the final judgment to have caused the harm intentionally; however, the fund is authorized to pay all other court-ordered attorney’s fees as provided under s.
284.31. Fla.Stat.Ann. §
284.38 (emphasis added)....
...at 3106,
87 L.Ed.2d at 122 (“On the merits, to establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right”) (emphasis in original). Thus, the most reasonable reading of §
284.38 is that the state, through its risk management fund, will indemnify its officers, employees, or agents in § 1983 personal liability damage actions if they have not acted intentionally, i.e., in bad faith....
...set out in §
768.28 should not limit the amount of insurance payable to officers, employees, or agents held liable for damages in their personal capacities under § 1983. 11 In any event, there is surely no overwhelming implication from the text of §
284.38 that the state intended to waive its Eleventh Amendment immunity from damage actions....
...d the harm intentionally.... (4) This section is not intended to be a waiver of sovereign immunity or a waiver of any other defense or immunity to such lawsuits. Fla.Stat.Ann. §
111.071 (West 1982). Subsection (l)(a) is the functional equivalent of §
284.38 discussed above....
CopyCited 10 times | Published | District Court, N.D. Florida
...sity Police Officers. They are not proper defendants to plaintiff's 42 U.S.C. § 1983 claim in their official capacities since plaintiff seeks from them dollar damages which would be paid by the State of Florida. Sections
768.28,
284.30,
284.31, and
284.38, Florida Statutes do not, in this court's opinion, constitute a waiver by the State of Florida of its Eleventh Amendment immunity to suit in federal court....
...acity. Id. at 1-2. (Emphasis in the third sentence added). Likewise, in Commercial Consultants Corporation v. Walters, No. TCA 79-0827 (N.D.Fla. Jan. 30, 1981), Judge Stafford stated: Upon careful consideration of Sections
768.28,
284.30,
284.31 and
284.38, Florida Statutes, this court now concludes that its prior determination ......
...1983, or similar federal statutes, and court-awarded attorney's fees in other proceedings against the state except for such awards in emminent domain or for inverse condemnation or to awards by the Career Service Commission. Fla.Stat. §
284.31 (1979). The most significant provision of Chapter 284, Part 2, is Section
284.38 which is entitled "Waiver of sovereign immunity; effect": The insurance programs developed herein shall provide limits as established by the provisions of s....
...oming a law, unless the officer, employee or agent has been determined in the final judgment to have caused the harm intentionally; however, the fund is authorized to pay all other court-ordered attorney's fees as provided under s.
284.31. Fla.Stat. §
284.38 (1979). (Emphasis added) Thus, by the plain language of Section
284.38, federal civil rights actions are distinctly excluded from the realm of tort claims for which sovereign immunity is waived under Section
768.28, since the recovery limits, a specific restriction without which the State of Florida certainly would not waive its sovereign immunity, specifically does not apply to civil rights actions. Arguably, Section
284.38 could be interpreted, under a very broad construction, to effectively expand the scope of the waiver of sovereign immunity specified in Section
768.28 to include federal civil rights actions, with the usual conditions limiting recovery amounts abrogated....
...768.28 shall apply to any civil actions. Such monetary limits shall still apply to final judgments in tort. Senate Staff Analysis and Economic Impact Statement on Committee Substitute, Senate Bill 332, ¶ I.B(8) (May 14, 1979). (Emphasis added.) The essence of Section
284.38, as its title and text indicate, is that the Section
768.28 waiver of sovereign immunity simply does not apply to federal civil rights actions. The legislative histories of Sections
284.30,
284.31, and, especially
284.38, support this construction....
...284.31, F.S., is amended to include within the scope of coverages of the Insurance Risk Management Trust Fund the payment of judgments of court ordered *1336 payment of attorney's fees in federal civil rights actions under 42. [sic] U.S.C., s. 1983 or similar federal statutes. . . . . . (7) S. 284.38, F.S., is amended to provide that for a tort claim, the insurance programs developed in Chapter 284....
...1983, or similar federal statute, the limits in s.
768.26, F.S., shall not apply. * ($50,000 per claim and $100,000 per incident). Id. at ¶ I.B. The Florida House of Representatives Committee on Judiciary also provided an analysis of the proposed, and later enacted, amendments to Section
284.38: This section provides that action in tort shall continue to be limited by the provisions of
768.28, F.S....
CopyCited 5 times | Published | District Court, S.D. Florida
...Where a state has waived immunity from tort liability, it is but a small step for the state to accept liability when the invasive conduct is labeled a "constitutional" rather than a "common law" tort. Additionally, the Court notes that Florida Statute § 284.38, which is entitled "Waiver of sovereign immunity; effect," provides, in relevant part, as follows: The [Insurance Risk Management Trust Fund] programs developed herein shall provide limits as established by the provisions of s....
...agement Trust Fund, established under Florida Statutes, Chapter 284, Part 2, similarly provides for a separate insurance account for "federal civil rights actions under 42 U.S.C. s. 1983, or similar federal statutes." These sections,
284.31 *221 and
284.38, Florida Statutes, specifically abrogate the usual monetary limitations on the amount of recovery in cases in which a final judgment is entered against a constitutional tortfeasor in an action brought under an appropriate federal statute....
...TCA 79-827 (N.D.Fla. Jan. 30, 1981) (per Stafford, C.J.). But see LeClair v. Langee, No. GCA 81-0008 (N.D.Fla.1982) (per Higby, J.) (finding that Florida has waived sovereign immunity for federal civil rights suits). The Shinholster opinion interprets Florida Statute §
284.38 as excluding constitutional torts from Florida's waiver of tort immunity "since the recovery limits, a specific restriction without which the State of Florida certainly would not waive its sovereign immunity, specifically does not apply to civil rights actions."
527 F.Supp. at 1334. Yet nothing in §
284.38 states anything that can be so construed; as noted above, the section differentiates between constitutional torts and state law torts only for the purpose of waiving the recovery limits for the former: The limits provided in s....
...Payment of a pending or future claim or judgment arising under any of said statutes may be made upon this act becoming a law, unless the officer, employee or agent has been determined in the final judgment to have caused the harm intentionally. Fla.Stat. § 284.38....
...forth. The cited statutes and legislative history speak for themselves literally when read in pari materia. For example, see Analysis of Committee Substitute for House Bill 1278, Florida House of Representatives Committee on Judiciary, § 8 (1979) ("S. 284.38, F.S., is amended to provide that for a tort claim, the insurance programs developed in Chapter 284.[sic] part II, shall be subject to the monetary limits in s....
CopyCited 3 times | Published | Florida 1st District Court of Appeal | 2004 WL 502605
...ed from recovering through the Fund because the civil rights violations were based on intentional torts committed by the officers. We reverse because the final judgment does not contain a provision that Appellant "caused the harm intentionally." See §
284.38, Fla. Stat. (2002). Section
284.30, Florida Statutes, establishes the Fund to provide insurance for certain claims, including "federal civil rights actions under 42 U.S.C. s.1983 or similar federal statutes." Section
284.38, Florida Statutes, provides for exclusion from coverage where the officer "has been determined in the final judgment to have caused the harm intentionally." Nothing in the final judgment suggests that Officers Henderson and Crabtree intentionally violated Appellant's federal civil rights....
...he rights of others." Alamo Rent-A-Car, Inc. v. Mancusi,
632 So.2d 1352, 1357 (Fla.1994). Lack of probable cause, gross negligence, and great indifference to persons, property, or personal rights do not constitute intent to harm as clearly stated in section
284.38....
...ement that the accused conspired to commit the underlying offense. See United States v. Stewart,
65 F.3d 918, 928 (11th Cir.1995); United States v. Irvin,
787 F.2d 1506, 1516 (11th Cir.1986). Because the trial court's application of the exclusion in section
284.38 was error, we REVERSE and REMAND for proceedings consistent with this opinion. DAVIS, J., concurs; BENTON, J., concurs with opinion. BENTON, J., concurring. I share the majority opinion's view that the exclusion in section
284.38, Florida Statutes (1997), does not apply to the judgment for compensatory damages entered on June 23, 1998, in favor of Mark V. Clemons against Officers Henderson and Crabtree under 42 U.S.C. §§ 1983 and 1985, because "the officer[s] ... [were not] determined in the final judgment to have caused the harm intentionally." §
284.38, Fla....
...ility and Employment Discrimination Certificate of Coverage," promulgated as a rule by incorporation in Rule 4H-2.004(5), Florida Administrative Code, since transferred to Rule 69H-2.004(5), Florida Administrative Code, creates an exclusion, even if section 284.38, Florida Statutes (1997), does not....
...a manner exhibiting wanton and willful disregard of human rights, safety or property; . . . [or] ... final judgments in which the insured has been determined to have caused the harm intentionally[.] The latter exclusion echoes pertinent language in section 284.38, Florida Statutes (1997)....
...But the former exclusion tracks limiting language in section
768.28(9)(a), Florida Statutes (1997), in contravention of controlling language making clear that the "limits provided in s.
768.28 shall not apply to a civil rights action arising under 42 U.S.C. s.1983 or similar federal statute." §
284.38, Fla....
CopyPublished | Court of Appeals for the Eleventh Circuit
...g, there was no causal connection between this action and the new procedures regarding the use of force by corrections officers, which, if established, would have provided a basis for a larger fees award. Further, the court held that under Fla.Stat. § 284.38, providing for the Florida Casualty Insurance Risk Management Trust Fund, there is no state authorization to pay attorney’s fees where the officer, employee, or agent has been determined to have caused the harm intentionally....
