Florida/Georgia Personal Injury & Workers Compensation

...First of all, the state by its own action may waive Eleventh Amendment immunity. Such waiver may be express or implied. The State of Florida expressly has waived, to a limited extent, its state sovereign immunity for certain actions in tort. Fla.Stat. § 768.25....

...1121 (1944). Cf. Stanley v. Schwalby, 162 U.S. 255, 270 , 16 S.Ct. 754, 760 , 40 L.Ed. 960 (1896) (federal government’s consent to suit against itself in a field of federal power, without more, does not authorize a suit in state court). Even if Fla.Stat. § 768.25 could be read as a waiver of Eleventh Amendment immunity, “[t]he Eleventh Amendment operates to bar suit except insofar as the statute waives state immunity from suit,” Ford Motor Co....

...1st DCA 1981), while the legislature has placed limits on recovery, "claimants remain free to seek legislative relief bills, as they did during days of complete sovereign immunity." (Footnote omitted.) We, however, do not agree that payment of the maximum amount permitted by section 768.25 abrogated the trial court's jurisdiction to adjudicate Gerard's claim against the Department of Transportation. Section 768.25(5) provides, in pertinent part: However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $50,000 or $100,000, as the case may be, and that portion of...

...2d DCA 2000); accord Continental Nat'l Bank v. Brill, 636 So.2d 782, 784 (Fla. 3d DCA 1994). If an individual survivor objects to the amount of the settlement or the apportionment of the settlement among beneficiaries, the settlement will not be effective until approved by the court. See § 768.25, Fla....

...1st DCA 2001) (citation and footnote omitted). Under these rules and procedures, Hodson's proposal for settlement was validly served on the personal representative as a lump sum offer, even though acceptance of the offer might well have been conditioned upon court approval under section 768.25....

...action. See discussion ante at section IV. A survivor does not have actual veto power over the personal representative's settlement decision. Instead, if the survivor objects to amount or apportionment, the authority of the court may be invoked. See § 768.25, Fla....

...4th DCA 2000). Importantly, the present case differs from a wrongful death case, where the personal representative, who is a statutory party (albeit acting on behalf of the decedent's survivors and the decedent's estate) may settle all claims. See §§ 768.20, 768.25, Fla....

...the decedent's survivors and estate...."). If the personal representative secures a recovery in a wrongful death case, the personal representative apportions it among those entitled to receive it, subject to court approval if a survivor objects. See § 768.25, Fla....

...All parties were aware that in the event of an objection, there could be no binding settlement without approval by the court. Under the Wrongful Death Act, "no settlement as to amount or apportionment among the beneficiaries which is objected to by any survivor ... shall be effective unless approved by the court." § 768.25, Fla....

...The personal representative is the individual having the power to enter into settlements of wrongful death actions. Insofar as pertinent here, however, if a survivor objects to a settlement as to amount or apportionment, then the settlement is not effective unless approved by the court. § 768.25, Fla....

...The time for expiration of the offer was approaching, and the father's counsel had not been able to reach the father to discuss the offer. Accordingly, the father's counsel requested that the personal representative accept the $10,000 offer, subject to the father's ability to object to the $10,000 amount pursuant to section 768.25, Florida Statutes....

...We therefore reverse the order under review and remand with directions to approve the mother's $700,000 settlement. [7] V. The remaining question is whether the $10,000 settlement of the father's claim should be approved over the father's objection pursuant to section 768.25, Florida Statutes....

...bearing all or part of the impact of the payment of compensation to the agent. Further, if a wrongful death survivor objects to the amount or apportionment of a settlement, then the settlement is not effective unless it is approved by the court. See § 768.25, Fla....

...ourde, Darlene Shipman and Allstate Insurance Company for the wrongful death of her husband. Because the subsequent settlement of the action — reached during trial — affected a minor survivor, the trial judge approved the settlement as provided in Section 768.25, Florida Statutes (1977), of the Wrongful Death Act....

...Taking the plaintiff's second point first, i.e., that only a circuit court judge who is a member of the probate division may approve such a settlement, we find that the plaintiff's position is contrary to the plain language of the Wrongful Death Act. Section 768.25, Florida Statutes (1977), thereof provides: Court approval of settlement....

...the state Supreme Court would decide otherwise. American Dental Association v. Hartford Steam Boiler Inspection and Insurance Co., 625 F.Supp. 364 (N.D.Ill.1985). The issue in the instant case is whether the waiver provisions of the Tort Claims Act, Section 768.25, extend beyond mere negligent conduct to include intentional torts such as false arrest....

...a survivor. See generally Frazier v. Metropolitan Dade County, 701 So.2d 418, 420 (Fla. 3d DCA 1997). If a case is settled before trial, questions concerning the apportionment of proceeds between survivors are to be resolved by the trial judge. See § 768.25, Fla....

...Because Volusia County is immune from further liability, Star too cannot be liable for Plaintiff's damages without further action from the legislature. Although the Court's holding here may, to some, seem to unfairly restrict the means of recovery for tort victims, it is important to note that prior to the enactment of § 768.25 there was no statutory right to recover for a county's negligence at all....

...The Court of Appeals went on to explicate: [T]he state by its own action may waive Eleventh Amendment immunity. Such *224 waiver may be express or implied. The State of Florida expressly has waived, to a limited extent, its state sovereign immunity for certain actions in tort. Fla.Stat. § 768.25 [sic]....

...When the statutory waiver "does not contain any clear indication that the state intended to consent to suit in federal courts," Ford Motor Co. v. Dept. of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945), it will not automatically be read to waive immunity to suit in federal court ... Even if Fla.Stat. § 768.25 [sic] could be read as a waiver of Eleventh Amendment immunity, "[t]he Eleventh Amendment operates to bar suit except insofar as the statute waives state immunity from suit, Ford Motor Co....

...Section 744.387(3)(b) requires the appointment of a guardian in any net settlement to a ward which exceeds $5,000; 6. Under the Wrongful Death Act, section 768.23 states that the court shall provide protection for any amount awarded for *221 the benefit of a minor child pursuant to the guardianship law; and 7. Section 768.25 provides that while an action is pending, no settlement which affects a minor can be effective unless approved by the court....

...In her motion to set aside, based on Florida Rule of Civil Procedure 1.540(b), the appellant alleged that she was *496 never notified by the personal representative of her right to claim compensation, that the trial court never approved the settlement as required by section 768.25, Florida Statutes (1997), and that the personal representative executed a release of the appellant's claim without proper authority....

...3d DCA 1988) (decedent's parents without standing to bring wrongful death action as such action must be brought by personal representative). Further, the trial court was not required to approve the settlement in this case, because no objection was entered by any survivor during the pendency of the action. See § 768.25....

...recover its lien from the settlement that would have been apportioned to Green's estate. Thomas, however, argues that Green's survivors have separate and independent claims under the statute that avoid ERISA preemption. Moreover, Thomas argues that section 768.25 prevents apportionment of a settlement "which affects a survivor who is a minor or an incompetent shall be effective unless approved by the court," and as such, the circuit court is the proper forum for approval of the settlement and apportionment....

...Thomas could have, in the alternative, sought relief through a separate claim only against the Plan in an attempt to avoid removal of the remaining state law claims. Under 28 U.S.C. § 1441(c), this Court may determine the otherwise nonremovable claims, including those enumerated under Florida Statute section 768.25, regarding the rights of surviving minors....

...At the time of the pretrial conference in December 1993, Dr. Keller was still an active party in this lawsuit and was represented by separate counsel. A few days before the trial in February 1994, Dr. Keller settled with the plaintiffs. The settlement had not been judicially approved pursuant to section 768.25, Florida Statutes (1993), when the trial began....

...§ 744.441, Fla.Stat. Powers of guardian upon court approval. § 744.446, Fla.Stat. Conflicts of interest; prohibited activities; court approval. § 744.447, Fla.Stat. Petition for authorization to act. § 768.23, Fla.Stat. Protection of minors and incompetents. § 768.25, Fla.Stat....

...y taking place. Kilpatrick and his wife were awarded in the underlying litigation judgment for $291,244.59 and $20,000.00, respectively, plus $4,260.03 in costs. Kilpatrick's wife was paid in full, and Kilpatrick was paid $100,000 as permitted under section 768.25, Florida Statutes (1991)....

...e from their malpractice liability carrier. We reverse because the payment of $300,000 did not bar plaintiffs from pursuing their claim against the District and receiving a judgment for damages pursuant to the statutory waiver of sovereign immunity, section 768.25, Florida Statutes (1993)....

...ut assets. Sara Brill, as personal representative of the estate and as decedent’s widow and the mother of their three minor children, brought a medical malpractice wrongful death action in Dade County. The parties settled for $675,000. Pursuant to section 768.25, Florida Statutes (1993), the trial court approved the settlement and allocated $10,-000 to Luis Brill’s estate and $400,000 to Sara Brill....

..."While an action under this act is pending, no settlement as to amount or apportionment among the beneficiaries which is objected to by any survivor or which affects a survivor who is a minor or an incompetent shall be effective unless approved by the court.” § 768.25, Fla.Stat....

...Powers of guardian upon court approval. § 744.446, Fla. Stat. Conflicts of interest; prohibited activities; court approval; breach of fiduciary duty. § 744.447, Fla. Stat. Petition for authorization to act. § 768.23, Fla. Stat. Protection of minors and incompetents. § 768.25, Fla....

...A personal representative has the statutory authority to enter into wrongful death settlements. However, if the survivors object either to a settlement’s amount or apportionment, the court’s authority is invoked to determine the settlement’s reasonableness. § 768.25, Fla. Stat. (2011); Dudley v. McCormick, 799 So.2d 436, 441 (Fla. 1st DCA 2001); Pearson v. DeLamerens, 656 So.2d 217, 220 (Fla. 3d DCA 1995). When that authority is invoked, though section 768.25 does not expressly demand a hearing, Florida courts and routine practice require one, as without it, the trial court cannot properly determine a settlement’s reasonableness or the propriety of any proposed apportionment of the settlement proceeds....

...The rule does not provide for the entry of a default against a party who fails to respond. The Florida Bar, Litigation under Florida Probate Code § 1.8 (2010-11 ed.). When a wrongful death case is settled before trial, the trial court resolves questions concerning the apportionment of proceeds between survivors. § 768.25, Fla....

...Plaintiff's civil rights at the Lee County Sheriff's Office. 3. Punitive Damages Against the Sheriff Defendant Sheriff McDougall argued at trial that punitive damages on the § 1983 claim were unavailable against him as Sheriff in light of Fla.Stat. 768.25. His argument is incorrect. Florida Statute 768.25 is irrelevant to the issue of punitive damages in a 42 U.S.C....

...within [sic].” Thus the trial court concluded that the Children had no standing to object to the proposed settlement because none of them had individual damage claims as survivors. The probate court’s ruling was based on a misreading of the Act. Section 768.25 of the Act governs the settlement of wrongful death claims for which an action is pending at the time a settlement is reached....

...The statute provides: “While an action under this act is pending, no settlement as to amount or apportionment among the beneficiaries which is objected to by any survivor or which affects a survivor who is a minor or an incompetent shall be effective unless approved by the court.” Under section 768.25, a personal representative may not settle a pending wrongful death action as to amount or apportionment among the beneficiaries without court approval if the proposed settlement is objected'to by “any survivor.” Thus the right to o...

...proposed settlement extends to “any survivor” and is not limited to survivors who have individual damage claims. 4 The definition of “survivors” contained in section 768.18(1) of the Act in- *1062 eludes adult children. 5 Accordingly, under section 768.25, each of the Children had the right as a “survivor” to object to the Widow’s proposal and to invoke the authority of the court....

...THE WIDOW’S ALTERNATIVE ARGUMENT Although the Widow’s argument based on the Children’s asserted lack of standing fails, she has more than one string to her bow. The Widow argues alternatively that the probate court was not obligated to give the Children a hearing on their timely objection because section 768.25 does not specifically provide that objecting survivors are entitled to a hearing on their objections....

...ourt approval. Therefore, this court should refrain from reading into the statute a hearing requirement that the legislature intentionally omitted from the Act’s carefully designed plan. 6 We disagree with the Widows alternative argument. Although section 768.25 does not expressly provide for a hearing, routine practice under the Act requires one where there is an objection to a proposed settlement....

...Florida Patient’s Compensation Fund v. St. Paul Fire and Marine Insurance Co., 483 So.2d 770, 771 (Fla. 4th DCA), rev. den., 494 So.2d 1150 (Fla.1986). The issue in this case is when the “agreement” was made and the one year statute of limitations began to run. Relying on section 768.25, Florida Statutes (1987), 2 the Sheriff’s Office argues that until court approval of the settlement on October 25, 1983, there was no binding agreement which settled the estate’s claim against the Sheriff’s Office and FDLE, so th...

...Under the express provisions of the statute, the executor of the decedent’s estate could not authorize plaintiff’s counsel to bind the plaintiff to a settlement figure without court approval, since the interests of minor beneficiaries were involved. Section 768.25, Florida Statutes (footnote 2, supra)....

...ribution, his right of contribution is barred unless he has ... Agreed, while action is pending against him to discharge the common liability and has within one year after the agreement paid the liability and commenced his action for contribution. . Section 768.25, requiring court approval of settlements in wrongful death actions, provides: While an action under this act is pending, no settlement as to amount or apportionment among beneficiaries which is objected to by any survivor or which affe...

...Powers of guardian upon court approval. § 744.446, Fla. Stat. Conflicts of interest; prohibited activities; court approval; breach of fiduciary duty. § 744.447, Fla. Stat. Petition for authorization to act. § 768.23, Fla. Stat. Protection of minors and incompetents. § 768.25, Fla....