Florida/Georgia Personal Injury & Workers Compensation

...this appeal are the state law claims for intentional infliction of emotional distress (count six) and malicious prosecution (count seven). The district court ruled that both claims were barred by sovereign immunity. Florida courts have long recognized that Fla. Stat. § 768.28(9)(a) — which provides that the State and its subdivisions “shall not be liable in tort for the acts or omissions of an officer, employee, or agent ....

...5th DCA 1993) (compiling Florida cases that use “reckless conduct” and “willful and wanton conduct” interchangeably and holding that the reckless conduct element of an intentional infliction of emotional distress claim “would at least constitute willful and wanton conduct” under § 768.28(9)(a)); Johnson v. State Dep’t of Health & Rehab. Servs., 695 So. 2d 927, 930 (Fla. 2d DCA 1997) (citing several cases for the proposition that “[s]ection 768.28(9)(a) bars an action for malicious prosecution against the state or its subdivisions arising from the malicious acts of their employees”)....

...Peters, of Knight, Peters, Pickle, Niemoeller & Flynn, Miami, for Dade County School Board, amicus curiae. SUNDBERG, Justice. It is our task today to determine the scope of the waiver of sovereign immunity resulting from the enactment of chapter 73-313, as amended by chapter 74-235, Laws of Florida, section 768.28, Florida Statutes (1975)....

...the DOT to paint or replace on the pavement the word "STOP" in advance of the entrance to the intersection. Respondents filed motions to dismiss the complaint, alleging in part that (1) petitioner had failed to comply with the notice requirement of section 768.28(6), Florida Statutes (1975); (2) section 768.28 did not waive the immunity of the state or its agencies from claims for indemnity or contribution; (3) Commercial Carrier had failed to allege the breach of any duty owing to it as opposed to the public at large; and (4) petitioner had failed generally to state a cause of action....

...led to allege knowledge on the part of the respondent as to the malfunctioning of the traffic light; (3) petitioner failed to allege how sovereign immunity had been waived; and (4) petitioner failed to allege compliance with the notice provisions of section 768.28(6), supra....

...The trial court granted respondent's motion and dismissed the third-party complaint with prejudice. The District Court of Appeal, Third District, affirmed, holding that no cause of action existed for respondent's allegedly negligent act. The operative portion of section 768.28 reads: (1) In accordance with section 13, Art....

...uld be liable to the claimant in accordance *1014 with the general laws of this state, may be prosecuted subject to the limitations specified in this act. A limitation upon the liability of the state and its agencies and subdivisions is expressed in section 768.28(5): The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period prior to judgment....

...to the appropriate agency or agencies [6] and the action must be commenced within four years after such claim accrues. [7] The district court in Commercial Carrier Corporation, supra , asserting that it was unnecessary to discuss the implications of section 768.28, held that it is not actionable negligence for a governmental authority to fail to maintain a traffic control device at a given time and place....

...City of West Palm Beach, 321 So.2d 78 (Fla. 4th DCA 1975), among other cases, was cited as authority for the holding. In Cheney, supra, the same court applied the holding in Modlin v. City of Miami Beach, 201 So.2d 70 (Fla. 1967), and concluded that section 768.28 "does not create a liability in the State where the act complained of does not give rise to liability in the agent committing the act, because the duty claimed to be violated is a duty owed to the citizens of the state in general and is not a duty owed to a particular person or persons." 353 So.2d at 626. By importing a concept of municipal immunity from tort liability the court reasoned that no cause of action existed for the alleged wrong and, therefore, section 768.28 had no application because it was not intended to create a cause of action where none existed at common law prior to its enactment. Respondents and amici support the decisions of the district court on several grounds. Apart from the reasoning of the court below, they maintain (1) that section 768.28 was intended to make the tort liability of the state and its political subdivisions coextensive, that liability to be measured by the scope of liability of municipal corporations at the time of enactment of the statute; (2) that there...

...sons" do not perform such functions; and (3) that the acts or omissions complained of are discretionary in nature, thereby immunizing the governmental authority from liability. Petitioners and other amici assert a much broader scope of operation for section 768.28, ranging from unlimited liability in tort for all acts or omissions by government to liability at least for those governmental acts and omissions at the operational level which involve no discretion....

...While we are not prepared to embrace the notion that all acts or omissions by governmental authorities will subject them to liability in tort under the statute, nevertheless we conclude that the district court has ascribed much too narrow a field of operation to section 768.28....

...concept which has meaning apart from the governmental setting. Accordingly, its efficacy is dependent on the continuing vitality of the doctrine of sovereign immunity. If this be so, does the Modlin doctrine survive notwithstanding the enactment of section 768.28? We think not. The state of the law concerning municipal sovereign immunity on the date of enactment of section 768.28 was clearly enunciated in Gordon v....

...Predicating liability upon the "governmental-proprietary" and "special duty-general duty" analyses has drawn severe criticism from numerous courts and commentators. [8] Consequently, we cannot attribute to the legislature the intent to have codified the rules of municipal sovereign immunity through enactment of section 768.28, Florida Statutes (1975). Even if we were disposed toward respondents' argument, a plain reading of the statute would deny such a construction. Municipalities are unequivocally included within the definition of "state agencies or subdivisions." § 768.28(2), Fla....

...d political subdivisions, there would have been no need to include municipalities within the operation of the statute. Consequently, we conclude that Modlin and its ancestry and progeny have no continuing vitality subsequent to the effective date of section 768.28. What, then, is the scope of waiver contemplated by section 768.28? Respondents assert that all governmental functions are exempt from waiver by the wording of the statute itself. They point to the language contained in section 768.28(1) and (5): Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions for injury or loss of property, personal injury, or deat...

...loyment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act. § 768.28(1), Fla....

...The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period prior to judgment... . § 768.28(5), Fla....

...It represents the distinct principle of law alluded to by Judge Fuld in Weiss v. Fote, supra , which makes not actionable in tort certain judgmental decisions of governmental authorities which are inherent in the act of governing. Hence, we are persuaded by these authorities that even absent an express exception in section 768.28 for discretionary functions, certain policy-making, planning or judgmental governmental functions cannot be the subject of traditional tort liability....

...State, 27 Utah 2d 384, 496 P.2d 888 (1972). Minnesota has held that deployment of police and fire departments during riots falls within the discretionary function exception. Silver v. City of Minneapolis, 284 Minn. 266, 170 N.W.2d 206 (1969). So we, too, hold that although section 768.28 evinces the intent of our legislature to waive sovereign immunity on a broad basis, nevertheless, certain "discretionary" governmental functions remain immune from tort liability....

...Accordingly, we express no opinion with respect to whether liability could be imposed on the governmental bodies involved for failure in the first instance to place traffic control devices at the intersections. We must also address two additional procedural issues raised in these consolidated cases. The first is whether section 768.28 contemplates waiver of immunity for actions based on contribution or indemnity....

...Like the federal courts, we find no logical reason to limit application of our waiver statute to direct actions. Actions for contribution or indemnity grounded on the tortious conduct of the state or its agencies and subdivisions are no less tort claims for purposes of section 768.28 than direct actions....

...Village of El Portal v. City of Miami Shores, Florida, 362 So.2d 275 (Fla. 1978). As to the second issue, we agree with the respondents that the third-party complaints were deficient from the standpoint of properly alleging compliance with the notice provisions of section 768.28(6), Florida Statutes (1975)....

...In Cheney, there was no allegation of statutory compliance. In Commercial Carrier Corporation, it was alleged that proper notice had been given to both governmental defendants, but there was no allegation that timely written notice was given to the Department of Insurance as is also required by section 768.28(6)....

...OVERTON, J., dissents with an opinion, with which BOYD, J., concurs. OVERTON, Justice, dissenting. I dissent. By allowing a negligence action against the state and county for failure to properly maintain a public roadway, the majority opinion, in my view, contravenes the legislative intent and purpose of section 768.28, Florida Statutes (1975)....

...er the provisions of the statute adopted by the legislature. The subject statute expressly provides that it applies only "under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant ..." section 768.28(1) (emphasis added), and "The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances ... ." section 768.28(5) (emphasis added)....

...The majority accepts the reasoning of the United States Supreme Court in the latter decision and analogizes it to the facts in the instant cases. It is difficult, however, to reconcile Indian Towing Co. with Dalehite, and I would not use one as a basis for ascertaining the intent of the legislature in adopting section 768.28, Florida Statutes (1975)....

...h available funds. The majority opinion in effect says a judge or jury can override that discretionary decision. For the reasons expressed, I would affirm the district court's decisions because I discern no legislative intent to allow recovery under section 768.28, Florida Statutes (1975), for the negligent maintenance of public roadways....

...This distinct principle of law is explored in cases such as McNayr v. Kelly, 184 So.2d 428 (Fla. 1966), and Rivello v. Cooper City, 322 So.2d 602 (Fla. 4th DCA 1975). [2] 342 So.2d 1047 (Fla. 3d DCA 1977). [3] 321 So.2d 78 (Fla. 4th DCA 1975). [4] 353 So.2d 623 (Fla. 3d DCA 1977). [5] § 768.28(2), Fla. Stat. (1975). [6] § 768.28(6), Fla. Stat. (1975). [7] § 768.28(12), Fla....

...used by severe roof leakage and other building defects on the basis that the city building inspectors were negligent in their inspections during the construction of the condominiums. The district court certified the following question: Whether under section 768.28, Florida Statutes (1975), as construed in Commercial Carrier Corp....

...rcing provisions of a building code enacted pursuant to the police powers vested in that governmental entity. We answer the restated question in the negative and quash the decision of the district court of appeal. In summary, we first emphasize that section 768.28, Florida Statutes (1975), which waived sovereign immunity, created no new causes of action, but merely eliminated the immunity which prevented recovery for existing common law torts committed by the government....

...s. The action against the developer was settled and the jury returned a verdict against the city in the amount of $291,000. The award was reduced by the amount of the settlement with the developer and was limited to the maximum amount provided under section 768.28(5)....

...accordance with acceptable standards of care." 423 So.2d at 913. The court concluded that "the City's inspection and certification of buildings within its borders is an operational level activity, for which it may be subject to tort liability under section 768.28, Florida Statutes." Id....

...ot the type of activity engaged in by private individuals. We find persuasive the arguments of the city. It is apparent from the decisions of the district courts of appeal that the courts and the bar are having difficulty interpreting the purpose of section 768.28 and applying the principles set forth in Commercial Carrier. A discussion of the evolving history of sovereign immunity, particularly as applied to municipalities, and the intent and purpose of section 768.28 is set forth in Cauley v....

...Second, it is important to recognize that the enactment of the statute waiving sovereign immunity did not establish any new duty of care for governmental entities. The statute's sole purpose was to waive that immunity which prevented recovery for breaches of existing common law duties of care. Section 768.28 provides that governmental entities "shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances." This effectively means that the identical existing duties for private persons apply to governmental entities....

...It is in these latter two categories that the Evangelical Brethren test is most appropriately utilized to determine what conduct constitutes a discretionary planning or judgmental function and what conduct is operational for which the governmental entity may be liable. Prior to the enactment of section 768.28, sovereign immunity for all governmental entities, including the state and all of its agencies and subdivisions, remained in full force except for the proprietary and special duty exceptions carved out by this Court. Section 768.28 waived governmental immunity for most government activities where there had been an underlying common law duty of care....

...The law was thus clear that where there *924 was that one-on-one relationship that both the negligent municipal employee and the municipality were jointly and severally liable to the injured person. The law remained thus until the legislature enacted section 768.28 in 1973, purporting to waive sovereign immunity of all governmental bodies except under stated circumstances, but at the same time immunizing the negligent employee from all liability....

...The trial courts and the district court of appeal held that no causes of action were stated. According to this Court, the rationale for the district court of appeal's holding was "that no cause of action existed for the alleged wrong and, therefore, section 768.28 had no applicability because it was not intended to create a cause of action where none existed in common law prior to its enactment." 371 So.2d at 1014 (emphasis supplied). In quashing the opinion of the district courts, this Court said, "Consequently, we concluded that Modlin and its ancestry and progeny have no continuing vitality subsequent to the effective date of 768.28." Id....

...he said, "Common sense dictates that the maintenance of thousands of miles of public roadways is not the kind of activity which private individuals engage in, but is uniquely governmental in nature." [2] Id. at 1023. The Court did however read into 768.28 the concept that "certain `discretionary' governmental functions remain immune from tort liability....

...iff/petitioner's wife. In the first part of our opinion we analyzed the issue of sovereign immunity. The actual analysis is now irrelevant because it was based on a theory of municipal sovereign immunity which has been superseded by the enactment of section 768.28, Florida Statutes (1973), abolishing the distinctions between municipal and state sovereign immunity....

...concept which has meaning apart from the governmental setting. Accordingly, its efficacy is dependent on the continuing vitality of the doctrine of sovereign immunity. If this be so, does the Modlin doctrine survive notwithstanding the enactment of section 768.28? We think not. Id. It is clear to me that the Modlin doctrine did survive the waiver of sovereign immunity. The doctrine is grounded on the traditional tort principle of duty, not sovereign immunity, as the Modlin court itself recognized. The legislature, in section 768.28, waived sovereign immunity, not the traditional principle that duty is an essential element of actionable negligence. Section 768.28 not only did not abolish the doctrine, it affirmatively adopted the substance of the doctrine by providing that the government would be liable only "if a private person, would be liable to the claimant, in accordance with the general laws of this state[.]" Section 768.28(1)....

...l agency or an employee of the Government, whether or not the discretion involved be abused. [1] I query whether, having now cloaked the governmental entity with sovereign immunity, the Court has not now called into question the constitutionality of section 768.28(9) which prevents suits against officers, employees or agents of the state....

...from appealing the trial court's denial of its motion for summary judgment based upon the existence of a genuine factual dispute had it done so after 1996. [3] In Holmes, this Court considered the interrelationship of the sovereign immunity statute, section 768.28(9), Florida Statutes (1991), and the "unrelated works" exception to workers' compensation immunity under section 440.11(1) as applied to a public employer. 651 So.2d at 1177-78. As this Court explained in Holmes, section 768.28(9) immunizes public employees from personal liability for torts by requiring any civil action for the employee's negligence to be maintained against the governmental entity itself....

...1st DCA 1974). Such a rule promotes orderly and uniform handling of state litigation and helps to minimize expenditure of public funds and manpower. Petitioner argues that the state has waived this privilege by enactment of Chapter 73-313 (codified as Section 768.28, Florida Statutes (1975)), the general waiver of tort immunity, and relies on the following language from the statute to support his position: (5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances....

...In determining the meaning of a statute we must look to the intent of the Legislature in enacting that statute. We are guided in this effort by established rules of statutory construction. In 1973 the Legislature passed Chapter 73-313, Laws of Florida, codified as Section 768.28, Florida Statutes (1975), in order to authorize limited tort claims against the state....

...The Legislature has, on several occasions, provided for general or specific waivers of sovereign immunity: Section 230.23(9)(d), Florida Statutes (1975); Section 337.19, Florida Statutes (1975); Section 455.06, Florida Statutes (1975); Section 768.15, Florida Statutes (1969); Section 768.28, Florida Statutes (1975)....

...(Article III, Section 6, Florida Constitution.) The trial court, in holding that suit was properly brought in Palm Beach County relied upon State Department of Transportation v. Chothen, supra. In that case the Third District Court held that by enactment of Section 768.28, Florida Statutes (1975), the Legislature authorized the application of the general venue statute in tort actions against the state....

...(emphasis added) The sword-wielder exception does not, nor was ever intended, to encompass allegations of negligence and was therefore misapplied in Chothen. We now hold that the Legislature did not intend to waive the common law privilege of bring sued in Leon County with the enactment of Section 768.28, Florida Statutes (1975)....

...979); and (3) there was no waiver of sovereign immunity up to the limits of insurance coverage. This review ensued. The state of Florida has waived sovereign immunity for any act for which an individual in similar circumstances could be held liable. § 768.28, Fla....

...ld be sufficient to allow recovery up to the limits of coverage in this instance provided the elements of negligence are properly found to exist. We note, however, that the legislature in chapter 87-134, Laws of Florida, "retroactively" has modified section 768.28 and "retroactively" has repealed section 286.28 as applied to any cause of action in which a verdict or judgment had not been obtained by June 30, 1987....

...Chapter 87-134 effectively provides that the purchase of liability insurance does not waive the limit on damages, which is $100,000 or $200,000, depending upon the facts of the case. We note that chapter 87-134 in its bill title explicitly characterizes itself as a clarification of original legislative intent as to section 768.28....

...[8] Under these circumstances, we further hold that the affirmative actions of the deputies involved in this case were operational in nature; therefore, sovereign immunity does not bar the plaintiff-petitioner's negligence-based wrongful-death claim. See § 768.28(1),(5), Fla....

...When addressing the issue of governmental liability under Florida law, we have repeatedly recognized that a duty analysis [13] is conceptually distinct from any later inquiry regarding whether the governmental entity remains sovereignly immune from suit notwithstanding the legislative waiver present in section 768.28, Florida Statutes....

...2d at 1017-22 (holding that article II, section 3 of the Florida Constitution (the separation-of-powers provision) requires the judicial application of a discretionary-function exception to the otherwise broad waiver of sovereign immunity present in section 768.28, Florida Statutes)....

...Introduction Through a duly enacted general law, [17] the Legislature has waived sovereign immunity for the State, its agencies, and its subdivisions in tort actions, rendering the State responsible "in the same manner and to the same extent as a private individual under like circumstances." § 768.28(5), Fla....

...); Kaisner, 543 So.2d at 733-34, 736 (substantially similar). In Commercial Carrier, this Court enunciated the abiding test for determining whether a governmental entity enjoys sovereign immunity notwithstanding the otherwise broad waiver present in section 768.28, Florida Statutes....

...[9] Such abstract notions of sound public policy are not proper judicial considerations when conducting the above-described duty and sovereign-immunity analyses. Through their elected officials, the voters of this state have already made the policy decisions to waive sovereign immunity subject to certain limitations, see section 768.28, Florida Statutes (2004), to permit the operation of 911 systems, to support the governmental provision of safety checks, and to permit governmental entities to engage in many other activities vis-à-vis civilians....

...Moreover, the Legislature has always been cognizant of the need to avoid crushing tort liability for governmental entities. For that reason, it has seen fit to (1) cap the recoverable damages in the absence of a special claims bill ($100,000 per claimant, $200,000 per incident or occurrence), see section 768.28(5), Florida Statutes (2004); and (2) preserve the ability for governmental entities to purchase insurance, participate in risk-management programs, and to self-insure, see sections 30.555, 768.28(13), (16)(a), Florida Statutes (2004). Cf. Cir. Ct. of Twelfth Jud. Cir. v. Dep't of Nat. Resources, 339 So.2d 1113, 1116 (Fla. 1976) (observing that section 768.28, Florida Statutes, permits Florida governmental entities to purchase insurance: "Consequently, a source of payment of claims other than the treasury of the state is provided incident to the waiver, a fact which obviates the primary concern expressed in the decisions applying the sovereign immunity doctrine....

...[13] Which, when relevant, may include examination of the so-called public-duty doctrine and its recognized exceptions. See part II. B.ii., infra. [14] For example, the First District Court of Appeal has observed: Prior to the effective date of [section] 768.28(6)[, Florida Statutes,] courts did not have subject matter jurisdiction of tort suits against the State and its agencies because they enjoyed sovereign immunity pursuant to Article X, [s]ection 13, Florida Constitution. However, by enacting [section] 768.28 the [L]egislature provided for waiver of sovereign immunity in tort actions....

...munity because the answer will almost invariably be yes unless the government employees, officers, or agents are acting without authority outside the scope of their office or employment. If this is so, they would be personally liable under [section] 768.28 and the state would be immune because the waiver of immunity would not be applicable.").

...Yet the majority says that this is permissible and the governmental entity is immune from suit. However, if a private person violates a statute and such violation is the proximate cause of injury and damage to another, he is liable in damages for his tort. Section 768.28 says that if a private person be liable to the injured party in accordance with the general laws of the state, then the governmental entity is liable....

...Petitioner Trinko's complaint named Deputy Parker of the Pinellas County Sheriff's Department as a defendant in tort for actions allegedly committed within the scope of his employment. The district court held that Parker could not be named as a defendant because Section 768.28(9)(a), Florida Statutes (1979), protects such an officer from being personally liable or from being named as a party defendant unless the officer acted in bad faith, with malicious intent, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Appellant Trinko's complaint contains no such allegations regarding Deputy Parker and those counts of the complaint seeking damages from him should have been dismissed pursuant to section 768.28(9)(a). Everton v. Willard, 426 So.2d 996, 998 (Fla. 2d DCA 1983). Section 768.28(9), *941 Florida Statutes (1979), [1] contains no subparagraph (a) and does not prohibit the naming of Parker as a defendant. Apparently, the intended reference was section 768.28(9)(a), Florida Statutes (Supp....

...view that the only government activities subject to suit were those which private individuals engaged in. This, of course, is simply a variation on the distinction between governmental and proprietary functions which we also rejected. Our reading of section 768.28 has not merely thwarted the intent of the legislature to expand the right of tort victims to sue the state, it also takes away rights to sue in tort which existed prior to the waiver of sovereign immunity....

...The statute, as we *943 have read it, now extends the sovereign immunity of the state to municipal governments. Formerly, tort victims could sue officers, employees, and agents of the state in their individual capacity. Rupp v. Bryant, 417 So.2d 658 (Fla. 1982). By our reading of section 768.28, this Court has extended the immunity of the state to those individuals....

...e Constitution of 1968 and not provided an alternative remedy. Kluger v. White, 281 So.2d 1 (Fla. 1973). I proceed now to a detailed analysis of the case and of the right of a tort victim to sue a government entity under the Florida Constitution and section 768.28, as amended....

...When that discretion is exercised, neither the officer nor the employing governmental entity should be held liable in tort for the consequences of the exercise of that discretion. Everton, 426 So.2d at 1003-04. In Commercial Carrier we addressed the scope of the waiver of sovereign immunity contained in section 768.28, Florida Statutes (1975)....

...mplemented the constitutional provision for suing the state. Article X, section 13, Florida Constitution, provides: Provision may be made by general law for bringing suit against the state as to all liabilities now existing or hereafter originating. Section 768.28(1), Florida Statutes (1983), provides in pertinent part: Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages against the state or its agencies or subdivisions ......

...ons mandate that tort suits against the state be heard by the judicial branch. Article X, section 13 grants the legislature carte blanche to determine under what conditions the state may be sued. It has exercised its constitutional power by enacting section 768.28....

...Massachusetts law, like Florida law, provides in pertinent part that government entities will be liable for tortious acts of public employees acting within the scope of their employment "in the same manner and to the same extent as a private individual under like circumstances." Id. Unlike section 768.28, however, the Massachusetts legislation exempts discretionary functions or duties from the waiver of immunity, and Massachusetts courts are under a legislative mandate to bar suits on discretionary activities....

...These errors will no necessarily result from bad faith, malice, or wanton and willful conduct by the police officer. Except for those instances where the police officer is alleged to have so acted, the officer is statutorily exempted from any liability or even from suit under section 768.28(9)(a), as amended in 1980....

...mmitted in the scope of governmental activities. The choice has already been made by the legislature in accordance with article X, section 13, Florida Constitution, and we have no authority to overrule that decision. [13] *950 It is our task to read section 768.28, as subsequently amended, along with other relevant statutes, in pari materia so as to effect the legislative intent....

...be exceedingly difficult to apply and that the Commercial Carrier approach, as it has evolved, has lost contact with its constitutional bottom. We should regain contact by emphasizing: 1. In view of article I, section 21; article X, section 13; and section 768.28, there is a strong presumption that courts have jurisdiction to hear tort suits against governmental entities....

...s. As will be seen, the legislature has done its work well in devising a coherent systematic plan for dealing with these financial burdens while still providing for adequate compensation for governmental tort victims. For purposes of tort liability, section 768.28 treats government entities as if they were private persons: the plaintiff bears the burden of proving actionable negligence under the general tort law of the state but the tortfeasor, not the tort victim, will bear the burden of liability if tortious conduct is proven....

...Chapter 284, Florida Statutes (1983), requires risk management and safety programs at the state level and provides a model for political subdivisions. *952 The second measure adopted by the legislature, and by far the most important, is the provisions for liability insurance. See supra notes 13 at 26 and 15 at 29. Section 768.28(13), as amended through 1983, authorizes all government entities to be self-insured, to enter into risk management programs, to purchase liability insurance for whatever coverage they may choose, or to have any combination of the preceding. Section 768.28(10) provides that laws allowing government entities to buy insurance are unimpaired by section 768.28....

...ns in the state or elsewhere." The original exclusion of incorporated cities or towns was based on the distinction in tort law in 1953 between municipalities and political subdivisions of the state. That distinction disappeared with the enactment of section 768.28 in 1973. Municipalities are now included within the definition of state agencies or political subdivisions in section 768.28(2). See Commercial Carrier, 371 So.2d at 1016. We recently addressed the impact of section 768.28 on section 286.28 and held that section 768.28 incorporated section 286.28 into "the overall scheme of the legislature relating to the waiver of sovereign immunity." Ingraham v....

...chased, presumably on the basis that the executive branch and political subdivisions can better determine the specific coverage which they require. To aid the governmental entities in managing their insurance and liability responsibilities, sections 768.28(6), (7), and (11) establish requirements that claims be presented to the entity involved, plus the Department of Insurance in the case of state agencies, prior to suit, and that such claims and suits be filed within a statute of limitations....

...Governmental entities and their financial resources vary widely from the populous counties or metropolitan areas to the small municipalities. The legislature has devised a system which accommodates itself to these differences, and yet provides a method for adequately compensating tort victims. As a fail-safe device, section 768.28(5) places a cap on the compensatory damages which a governmental entity may be required to pay and prohibits punitive damages or interest for the period before judgment. [17] This cap, however, is not absolute. It is qualified by: first, the provisions discussed above which raise the cap to the actual coverage provided by liability insurance; and, second, the provision in section 768.28(5) that judgments in excess of the statutory cap may be reported to the legislature, which, in its discretion, may direct that the excess judgment be paid in whole or part....

...In the four years, 1981-84, the legislature enacted twenty-six special relief acts authorizing and directing political subdivisions and state agencies to pay a total of $9,427,181.30 to government tort victims. [18] This additional compensation was in addition to the statutory or insurance policy limits of section 768.28....

...four million dollars. The average additional compensation was $362,583.90. The number and amount of the relief bills strongly suggests that the legislature continues to be in deadly earnest about carrying out the intent of article X, section 13 and section 768.28 that government tortfeasors will compensate their tort victims regardless of whether the government entity wishes to or not....

...ce powers doctrine. NOTES [1] § 316.1932(1)(b)(1), Fla. Stat. (1983). [1] The reference should have been to Florida Statutes (1977) because the incident at issue occurred on 22 June 1979. However, this aspect of the error is inconsequential in that section 768.28(9) was unchanged from 1977 to 1979....

...[5] Carter v. City of Stuart, 468 So.2d 955 (Fla. 1985). [6] There are only three statutory exceptions to the waiver of sovereign immunity. First, where the responsible officer, employee, or agent was maliciously motivated and the tort was intentional. § 768.28(9)....

...This is consistent with the limitation that punitive damages may not be awarded against the state. The liability falls entirely on the individual tortfeasor. Second, where the officer, employee, or agent was acting outside the scope of employment. § 768.28(9)....

...This is consistent with the general law of the state that the principal is not vicariously liable when the agent is on a lark of his own. Third, no action may be brought when the "victim" is unlawfully participating in a riot, unlawful assembly, public demonstration, mob violence, or civil disobedience. § 768.28(12)....

...mmunity but contained a discretionary exception was repealed in the same legislative session by chapter 69-357, section 1, Laws of Florida. The discretionary exception was not included when the legislature reenacted the waiver of sovereign immunity, section 768.28, in 1973....

...The court then declined to assign a label to the challenged government activity and simply held that it was immune. In Collom v. City of St. Petersburg, 400 So.2d 507 (Fla. 2d DCA 1981), approved 419 So.2d 1082 (Fla. 1982), the court commented that under section 768.28, Florida Statutes (1973), and Commercial Carrier everything had changed yet nothing had changed and that the operational/planning dichotomy may be a classic example of adding further confusion through an attempt to clarify tenuous concepts with labels....

...terprise. It is not only found in tort law but can be found in workers' compensation and social security. Both Representatives Tucker and Martinez, sponsors, expounded the enterprise theory in supporting the legislative waiver of sovereign immunity, section 768.28....

...while acting within the scope of their employment." Id. It should be noted that these provisions of law contingently waiving sovereign immunity on a broad basis were in effect some four years before the noncontingent waiver of sovereign immunity in section 768.28....

...cause of action against the government was barred by sovereign immunity. The legislature is, of course, ill-equipped to make the factual and legal findings as to whether liability is present in a specific case, and, if so, the extent of the injury. Section 768.28 relieves the legislature of this burden by presenting it with a court judgment on which it can base its determination of whether to exceed the statutory cap on damages....

...e through article I, section 21 (access to courts for redress of wrongs) and article X, section 13 (provision may be made by general law for bringing suit against the state), not the legislature through article III, section I (legislative power) and section 768.28 (waiver of sovereign immunity), and not the courts through article V, section 1 (judicial power to hear suits).

...McGhee later sued Hernlen and the county. The trial court dismissed the action as it pertained to Volusia County. The Fifth District sitting en banc affirmed five-to-three on grounds Hernlen acted beyond the scope of his duties in attacking McGhee. Section 768.28(9)(a), Florida Statutes (1989), provides that Florida's waiver of sovereign immunity does not apply to, and governmental employees may be personally liable for, acts beyond the scope of their duties, committed in bad faith or with mali...

...ongful act or omission of any employee of the agency or subdivision while acting within the scope of his office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant. § 768.28(1), Fla....

...e merely by color of office would not. [5] Malone v. Howell, 140 Fla. 693, 700-01, 192 So. 224, 227 (1939). We therefore must take note that in 1981 the Court, speaking through Justice Overton, held that the waiver of sovereign immunity contained in section 768.28, Florida Statutes (Supp.1974), did not at that time alter the common law definition of "scope of employment" outlined above....

...ss the statute either speaks plainly in this regard or cannot otherwise be given effect. Carlile v. Game & Fresh Water Fish Comm'n, 354 So.2d 362 (Fla.1977). The Beard Court, however, did limit its holding to cases arising prior to the amendments to section 768.28 contained in chapter 80-271, section 1, Laws of Florida....

...of an officer, employee, or agent committed while acting outside the course and scope of his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. § 768.28(9)(a), Fla....

...The quotation highlighted in the last sentence comes from our opinion in District School Board v. Talmadge, 381 So.2d 698, 702 (Fla.1980), limited, Rupp v. Bryant, 417 So.2d 658, 661 (Fla.1982). The essential holding of Talmadge was succinctly summarized in that opinion: For those actions which fall within the purview of section 768.28, plaintiffs have a range of litigation options: (1) The plaintiff can invoke the provisions of section 768.28 and sue both the state and employee jointly....

...of the monetary limitations set forth in subsection (5). The negligent employee remains personally liable for that portion of a judgment rendered against him which exceeds the state's liability limits. (2) The plaintiff can invoke the provisions of section 768.28 and sue the state *733 alone. The state's liability, of course would be limited by subsection (5). (3) The plaintiff can sue the employee alone without invoking section 768.28, under traditional legal principles regarding tort actions against public employees....

...eld the sheriff from liability. In sum, the question must be put to the fact-finder whether Deputy Hernlen acted in bad faith, with malicious purpose, or in a manner exhibiting wanton or wilful disregard of human rights, safety, or property. [7] See § 768.28(9)(a), Fla....

...I am also concerned that this opinion will be read to impose a distinct standard upon which to determine the applicability of this statute to sheriff's deputies when, in my view, the same standard that applies to sheriff's *734 deputies also applies to all governmental employees. Section 768.28, Florida Statutes (1995), sets forth the waiver of sovereign immunity for the state itself and its agencies or subdivision for liability for torts. For purposes of this statute, "state agencies or subdivisions" are defined in section 768.28(2) [8] and include sheriffs. See Beard v. Hambrick, 396 So.2d 708 (Fla.1981). [9] Section 768.28(9)(a) provides: No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, eve...

...of an officer, employee, or agent committed while acting outside the course and scope of his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. § 768.28(9)(a), Fla....

...public defenders), and the independent establishments of the state; counties and municipalities; and corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities, including the Spaceport Florida Authority. § 768.28(2), Fla....

...[9] In Beard, we held that under article VIII, section 1, Florida Constitution, sheriffs were officials of political subdivisions of the state and were covered by this statute. See Beard, 396 So.2d at 711. Even though that holding of Beard was limited to cases arising prior to the 1980 amendments to section 768.28, subsection (2) of that statute was not significantly affected by these amendments; therefore, Beard should still control on this point.

...In answering the question presented here it is necessary to return to our decision in Commercial Carrier. In that case, Justice Sundberg, in a thorough analysis of the law in this area, distinguished between that part of the sovereign immunity doctrine involving negligent tortious conduct waived by section 768.28, Florida Statutes (1977), and that part of the sovereign immunity doctrine identified at times as official or governmental immunity not waived by the statute....

...in Commercial Carrier dropped those distinctions in favor of applying the judgmental, planning-level versus operational-level analysis to municipalities. 371 So.2d at 1016. Municipalities were held to be "unequivocally included" within the ambit of section 768.28....

...SUNDBERG, J., dissents with an opinion, with which ADKINS, J., concurs. SUNDBERG, Justice, dissenting. The Court today in a trilogy of opinions, including this opinion, [1] attempts to clarify and advance the development of the law of sovereign immunity waiver in this state spawned by section 768.28, Florida Statutes (1975), as interpreted in Commercial Carrier Corp....

...Because I believe it need not be so, I respectfully dissent. To take up where we left off in Commercial Carrier, we must first remind ourselves of the holding of that decision and the principles upon which the holding was based. First the holding: So we, too, hold that although section 768.28 evinces the intent of our legislature to waive sovereign immunity on a broad basis, nevertheless, certain "discretionary" governmental functions remain immune from tort liability....

...From the holding of the case, then, it is apparent that a finding of immunity is the exception rather than the rule. [2] This conclusion flows not merely from the express language of the decision, but was necessarily required because unlike the Federal Tort Claims Act there is no express exemption within the provisions of section 768.28 for discretionary acts of governmental agencies or their employees. The judicial gloss supplied by this Court should be narrowly rather than expansively invoked. Furthermore, the exemption from waiver of immunity engrafted upon section 768.28 by Commercial Carrier concerns not all but only certain "discretionary" governmental functions....

...The fifth count claims consequential damages of the father. The trial court dismissed the complaint with prejudice for failing to state a cause of action. The District Court of Appeal, First District, reversed the trial court, finding that the 1980 amendments to the sovereign immunity statute, section 768.28(9), Florida Statutes (1979), were unconstitutional as retroactively destroying vested rights of the Bryants to sue Rupp and Stasco....

...At first glance, the issue would appear to be easily answered by our recent decision in District School Board v. Talmadge, 381 So.2d 698 (Fla. 1980), which specifically stated that victims of governmental negligence had always been able to sue the employee individually, and that the waiver of sovereign immunity by section 768.28(9), Florida Statutes (1975), [5] had not altered this right....

...Based on due process considerations expressed in Village of El Portal v. City of Miami Shores, 362 So.2d 275 (Fla. 1978), and McCord v. Smith, 43 So.2d 704 (Fla. 1949), which prohibit retroactive abolition of vested rights, we agree with the district court that section 768.28(9), Florida Statutes (Supp....

...In conclusion, we find that appellants Rupp and Stasco are not entitled to assert immunity as public officials or employees under these circumstances, that the legislature's attempt to shield these employees from personal tort liability by retroactive application of section 768.28(9), Florida Statutes (Supp....

...The legal authority to bring suit against a governmental entity and its officials or employees individually is presently a confused area of the law. This opinion provides guidance in both pending cases and future cases brought under the authority of section 768.28, Florida Statutes (1981). With this decision, it should be clear that, for actions commenced between January 1, 1975, the effective date of the original section 768.28, chapter 73-313, Laws of Florida, and June 30, 1980, the effective date of the amendment of section 768.28(9), chapter 80-271, Laws of Florida, suit may be maintained against both the state and the employee or official for the ordinary negligence of the employee or official in carrying out ministerial, though not discretionary, duties in th...

..., provided there is a special duty to the complainant as reflected in First National Bank v. Filer, 107 Fla. 526, 145 So. 204 (1933), and in Modlin v. City of Miami Beach, 201 So.2d 70 (Fla. 1967). For *671 all actions commenced after June 30, 1980, section 768.28(9), as amended, provides that the employee or official is personally immune from suit for ordinary negligence in the performance of governmental employment and that the action may be maintained only against the governmental entity....

...was within its rights to declare it applicable to pending suits as well as future ones. The legislative intent was the same under the old and the new statutes. In District School Board v. Talmadge, 381 So.2d 698 (Fla. 1980), I wrote in dissent that section 768.28(9), Florida Statutes (1975), immunized government employees from being held liable for damages caused by their ordinary negligence....

...I believe that the 1980 amendments were enacted by the legislature in direct response to this Court's erroneous holding that employees were not so immunized. Therefore the 1980 enactment did not destroy vested rights but merely declared what was already the law. The basic purpose of section 768.28(9), both before and after the 1980 amendment was to immunize public employees from liability for ordinary negligence, while providing injured claimants a remedy against governmental entities through the waiver of sovereign immunity....

...rom the fear of negligence actions, while at the same time providing redress through governmental assumption of liability to persons injured by the ordinary negligence of government employees. NOTES [1] Ch. 80-271, § 1, Laws of Fla., reads in part: 768.28 Waiver of sovereign immunity in tort actions; recovery limits; limitation on attorney fees; statute of limitations; exclusions....

..., wanton, willful or fraudulent conduct, conduct not at issue in Talmadge. See, e.g., Bermann, supra, at 1191 n. 96. Even the 1980 amendments to the Florida sovereign immunity statute do not protect an employee for wanton and willful misconduct. See § 768.28(9), Fla....

...of an officer, employee, or agent committed while acting outside the course and scope of his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. § 768.28(9)(a), Fla....

...to the same extent as a natural person” did not constitute waiver of Eleventh Amendment immunity). Gamble argues, however, that other, more specific, statutory provisions indicate that Florida has waived its sovereign immunity to § 1983 actions in federal court. Gamble first points to Fla.Stat.Ann. § 768.28 (West Supp.1985), the statutory enactment which represents a limited waiver of Florida’s sovereign immunity in tort actions. Section 768.28 authorizes recovery of tort damages against Florida or any of its agencies or subdivisions for “negli *1514 gent or wrongful acts of any [state] employee while acting within the scope of his office or employment.” Fla.Stat.Ann. § 768.28(1)....

...The waiver does not constitute consent to suit in federal court under § 1983. By declaring that “[t]he state and its agencies 6 and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances,” Fla.Stat.Ann. § 768.28(5); accord Fla. Stat.Ann. § 768.28(1), the Florida legislature gave a strong indication that it did not intend to waive its immunity to civil rights actions....

...create sovereign liability for acts or omissions solely within the scope of traditional tort law. Moreover, the statute provides that the state or its agencies may be held liable “in accordance with the general laws of this state.” Fla.Stat.Ann. § 768.28(1). This is an explicit indication that the substantive law governing actions under § 768.28 is state law, not federal law as is the case in an action brought pursuant to § 1983....

...mphasis in original). Finally, we note that the statute consistently refers to “tort action,” persons “liable in tort,” and the like without any mention that such terms include federal civil rights actions. We agree with HRS, therefore, that § 768.28, when viewed alone, was intended to render the state and its agencies liable for damages for traditional torts under state law, but to exclude such liability for “constitutional torts.” Accord Shinholster v. Graham, 527 F.Supp. 1318, 1332-33 (N.D.Fla.1981). 7 Section 768.28 does not provide the express language or the overwhelming implications of waiver necessary to override Florida’s Eleventh Amendment immunity. 8 See *1516 Edelman v. Jordan, 415 U.S. at 673 , 94 S.Ct. at 1360 . Gamble urges us to consider two other statutory schemes which, she argues, unmistakeably indicate, when read in conjunction with § 768.28, that the waiver of sovereign immunity in § 768.28 includes damage actions against the state and its agencies under § 1983....

...Section 284.30 provides insurance in federal civil rights actions against the state. At first blush, this might appear to be an indication that Florida has indeed waived its Eleventh Amendment immunity in civil rights actions when it waived its state common law immunity to tort actions under § 768.28....

...There is, however, a section of the risk management trust fund statute which does explicitly provide for the payment of damage awards. This section provides: Waiver of sovereign immunity; effect. The insurance programs developed herein shall provide limits as established by the provisions of s. 768.28 if a tort claim. The limits provided in s. 768.28 shall not apply to a civil rights action under 42 U.S....

...her court-ordered attorney’s fees as provided under s. 284.31. Fla.Stat.Ann. § 284.38 (emphasis added). This section carries forward the distinction, strongly delineated in the statute providing the state’s limited waiver of sovereign immunity (§ 768.28), between ordinary state tort claims, and constitutional and other federal civil rights claims. It states that the insurance programs developed under the Florida Casualty Insurance Risk Management Trust Fund are not to be construed to abrogate the monetary limits set in § 768.28. Moreover, the section explicitly states that the limits of § 768.28 “shall not apply to a federal civil rights action,” leaving the implication that § 768.28, while waiving traditional state common law tort immunity, simply has no application to civil rights actions....

...ss likely to be referring merely to funding the cost of prospective relief against officers and employees in their official capacities. Moreover, its reference to “any of said statutes” refers to § 1983 actions, as well as actions brought under § 768.28....

...ployees, or agents in § 1983 personal liability damage actions if they have not acted intentionally, i.e., in bad faith. 10 The distinction drawn between tort actions and civil rights actions serves both to reiterate the strong distinction drawn in § 768.28, and to indicate that the monetary limits 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....

...ble attorney’s fees. Fla.Stat.Ann. § 111.07 (West Supp.1985). Gamble again argues that this statute, because it envisions public defense of individual state officers in damage actions, indicates that Florida’s waiver of sovereign immunity under § 768.28 includes a waiver of Eleventh Amendment immunity in § 1983 damage actions....

...nd attorney’s fees, arising from a complaint for damages or injury suffered as a result of any act or omission of action of any officer, employee, or agent in a civil or civil rights lawsuit described in s. 111.07. If the civil action arises under s. 768.28 as a tort claim, the limitations and provisions of s. 768.28 governing payment shall apply....

...It authorizes the payment of damages in civil rights actions to “any officer, employee, or agent” of the state, strongly indicating that the legislature intended to indemnify state officers only when sued in their personal capacities. Moreover, the distinction between ordinary tort actions under § 768.28 and civil rights actions is maintained, further indicating that § 768.28 was not intended as a waiver of Florida’s Eleventh Amendment immunity. Finally, and most importantly, subsection (4) explicitly states that no waiver of sovereign immunity is intended. This is a clear indication that Chapter *1520 111 was not intended to expand the limited waiver of sovereign immunity set out in § 768.28....

...iff can recover damages is by suing the officer individually. See Kentucky v. Graham, — U.S. -, ---, 105 S.Ct. 3099, 3107-08 , 87 L.Ed.2d 114, 123-24 (1985). 6 . It is not disputed, nor could it be, that HRS is a state agency within the meaning of § 768.28, and is the equivalent of the State of Florida for Eleventh Amendment purposes....

...its immunity, or that of any of its agencies, from suit in federal court through any statute in existence prior to June 24, 1984. This provision, which likely was enacted in response to the Meeker case, see supra note 7, conclusively indicates that § 768.28 is not currently a waiver of Florida’s Eleventh Amendment immunity to suit in federal court. However, § 768.28(15) did not become effective until June 24, 1984, well after Gamble filed her complaint....

...Thus, the award of damages on the section 1983 count was against the deputies solely in their individual capacities and is not barred by the eleventh amendment. 20 COMPLIANCE WITH PROCEDURAL REQUIREMENTS OF FLORIDA STATUTE 21 Appellants argue that plaintiff failed to comply with the notice requirements of Fla.Stat.Ann. sec 768.28(6) when prosecuting her pendent wrongful death claim against Sheriff McDaniel. Section 768.28(6) provides in pertinent part that: 22 An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency and also ......

...cities. Hucker v. City of Oakland Park, 427 So.2d 244 (Fla.Dist.Ct.App.1983). All parties litigated the pendent claim against Sheriff McDaniel in his official capacity. Appellants raised as a defense failure to comply with the notice requirements of section 768.28(6), and appellees argue that they have complied with section 768.28(6)....

...t reference to the twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws." Id. 30 The Florida statutory requirement of notice and expiration of a six month waiting period, Fla.Stat. sec. 768.28(6), may well be substantive for purposes of the Erie doctrine to the extent that it would require a federal district court, upon motion by defendant, to enter a protective order suspending discovery until the end of the six month period and would bar the entry of a judgment until the six months had passed....

...this case was not an abuse of discretion. 33 Appellants argue in the alternative that the pendent claim should have been dismissed with prejudice because plaintiff failed to prove, during her case in chief, compliance with the notice requirements of section 768.28(6)....

PER CURIAM. In this case, we consider whether an employee who claims the benefit of sovereign immunity pursuant to section 768.28(9)(a), Florida Statutes (2005), which entitles that employee not to be held “personally liable in tort or named as a party defendant” for acts within the scope of her or his employment, may obtain interlocutory review of an adverse trial court ruling where the question turns on an issue of law. In Keck v. Eminisor, 46 So.3d 1065 (Fla. 1st DCA 2010), the First District Court of Appeal declined to exercise cer-tiorari review over a trial court’s order denying summary judgment based on such a claim of individual immunity pursuant to section 768.28(9)(a). The First District certified the following question as one of great public importance: Whether review of the denial of a motion for summary judgment, based on a claim of individual immunity under section 768.28(9)(a) without implicating the discretionary functions of public officials, should await the entry of a final judgment in the trial court? Id. at 1068 . We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We rephrase the certified question as follows: Should review of the denial of a motion for summary judgment based on a claim of individual immunity under section *361 768.28(9)(a), Florida Statutes, await the entry of a final judgment in the trial court to the extent that the order turns on an issue of law? For the reasons set forth below, we answer the rephrased question in the negative and quash the First District’s decision. Because section 768.28(9)(a) specifies that an employee of the State shall not be “named as a party defendant” in a lawsuit unless the employee acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard, we conclud...

..., as the resolution of that issue turns on a question of law. In accordance with our approach to the issue of individual immunity in Tucker v. Resha, 648 So.2d 1187, 1189-90 (Fla.1994), we conclude that a claim of individual immunity from suit under section 768.28(9)(a) should be appealable as a non-final order under Florida Rule of Appellate Procedure 9.130, obviating the necessity of determining whether common law certiorari would alternatively be available. We also consider Keck’s underlying claim of immunity and hold that Keck is entitled to the individual immunity provided in section 768.28(9)(a)....

...ehicle so that [it] collided with Plaintiff ASHLEIGH K. EMINISOR, who was a pedestrian crossing the street.” Eminisor sought recovery from Keck, JTM, and JTA for the injuries she sustained from this accident. Each defendant asserted immunity under section 768.28, Florida Statutes (2005). At issue in this case is Keck’s claim of individual immunity pursuant to section 768.28(9)(a), which he asserts provides immunity not only from liability for the actions alleged by Emini-sor, but also from being named as a defendant in the suit....

...employees. Thus, although Keck is an employee of JTM, he works for, is supervised by, and is ultimately paid by JTA. Based on these facts, Keck moved for summary judgment in the trial court, claiming immunity from both suit and liability pursuant to section 768.28(9)(a). The trial court denied Keck’s motion, finding that JTM was neither a “state agency or subdivision” under section 768.28(2), Florida Statutes (2005), nor an agent of the State under section 768.28(9)(a), and that Keck was therefore not entitled to immunity as an employee of JTM or as an agent of the State....

...Keck sought review of the trial court’s denial of his motion for summary judgment. Keck, 46 So.3d at 1065 . Because our rules of appellate procedure do not provide for interlocutory appeal of a trial court’s order denying summary judgment based on a claim of immunity under section 768.28(9)(a), 1 Keck petitioned the First District for a writ of certiorari....

...unctions of public officials,” certio-rari review was not appropriate. Id. at 1067. Because the First District held that certiorari review was not proper, it did not address the substantive issue of whether Keck is entitled to immunity pursuant to section 768.28(9)(a). In the analysis that follows, we first explain why we find it necessary to rephrase the certified question. We then discuss why we answer the rephrased question in the negative. Finally, we address Keck’s claim of immunity under sec *363 tion 768.28(9)(a) and explain why Keck was entitled to summary judgment based on his claim of immunity. ANALYSIS The question before this Court is whether an appellate court can review a non-final order where the trial court denied an employee’s motion for summary judgment based on a claim of immunity under section 768.28(9)(a)....

...The certified question, as stated by the First District, focuses on whether an appellate court should await the entry of a final judgment when reviewing the denial of a motion for summary judgment as to those claims of individual immunity made pursuant to section 768.28(9)(a) that do not implicate “the discretionary functions of public officials.” Keck, 46 So.3d at 1068 (emphasis added). Section 768.28(9)(a), however, makes no distinction between public officials whose jobs include discretionary functions and those public employees — like Keck — whose jobs include no such tasks. Specifically, section 768.28(9)(a), Florida Statutes (2005), provides in relevant part: No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or...

...or omission was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. (Emphasis supplied.) Upon review of this statute, it is clear that the immunity provided in section 768.28(9)(a) applies equally to every “officer, employee, or agent of the state or any of its subdivisions” for “any act, event, or omission of action in the scope of her or his employment or function” absent “bad faith ... malicious purpose or ... wanton and willful disregard of human rights, safety, or property.” Accordingly, we rephrase the certified question to address all claims of individual immunity provided by section 768.28(9)(a)....

...refore, we narrow the certified question to reflect this distinction. Accordingly, we rephrase the certified question in the following manner: Should review of the denial of a motion for summary judgment based on a claim of individual immunity under section 768.28(9)(a), Florida Statutes, await the entry of a final judgment in the trial court to the extent that the order turns on an issue of law? I....

...as was relied upon in this Court’s previous decisions where this Court undertook immediate review. Keck, 46 So.3d at 1066-67 . However, the court certified the above question as one of great public importance “in light of the characterization of section 768.28(9)(a) as providing immunity from suit as well as from liability.” Id at 1067-68....

...in degree between public officials and rank-and-file governmental employees, they are not different in kind.” Keck, 46 So.3d at 1072 (Wetherell, J., dissenting). The complaint alleges that Keck committed ordinary negligence, and thus, pursuant to section 768.28(9)(a), he cannot be liable or even be named as a party defendant in the action; instead, the plaintiff must sue the governmental entity for which the employee works. In other words, while the State has waived its sovereign immunity for certain causes of action in section 768.28, it has not waived the immunity that it has provided to its officers, employees, and agents....

...oyment or committed in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard), the plaintiff can recover only from the employee, not from the State. Thus, if a defendant who is entitled to the immunity 'granted in section 768.28(9)(a) is erroneously named as a party defendant and is required to stand trial, that individual has effectively lost the right bestowed by statute to be protected from even being named as a defendant. If orders denying summary judgment based on claims of individual immunity from being named as a defendant under section 768.28(9)(a) are not subject to interlocutory review, that statutory protection becomes essentially meaningless for the individual defendant. For the above reasons, we answer the rephrased question in the negative and hold that an order denying summary judgment based on a claim of individual immunity under section 768.28(9)(a) is subject to interlocutory review where the issue turns on a question of law....

...rule change mandated by this decision. II. Determining Whether Keck Is Entitled To Immunity Because of its ruling that Keck had no right of interlocutory review, the First District did not address whether Keck is entitled to the immunity granted in section 768.28(9)(a)....

...Johnson, 873 So.2d 1182, 1185 (Fla.2003) (“A trial court’s ruling on a motion for summary judgment posing a pure question of law is subject to de novo review.”). Based on the undisput *367 ed material facts, we hold that Keck is entitled to immunity under section 768.28(9)(a) by virtue of his employment with JTM, 3 a corporation acting primarily as an instrumentality of JTA, an agency of the State. Our first step in analyzing this claim is to review the language of section 768.28(2), which defines the state agencies or subdivisions entitled to sovereign immunity as follows: As used in this act, “state agencies or subdivisions” include the executive departments, the Legislature, the judicial branch (includin...

...lishments of the state, including state university boards of trustees; counties and municipalities; and corporations primarily acting as in-strumentalities or agencies of the state, counties, or municipalities, including the Florida Space Authority. § 768.28(2), Fla. Stat. (2005). In defining “state agencies or subdivisions,” section 768.28(2) sets forth three distinct categories: (1) those entities that comprise the State itself — “the executive departments, the Legislature, the judicial branch (including public defenders), and the independent establishments of the s...

...ic and corporate and an agency of the state.” § 349.03(1), Fla. Stat. (2005). The question, however, is whether JTM fits under the third category, which expressly includes “corporations primarily acting as instrumentalities ... of the state.” § 768.28(2), Fla....

...s an instrumentality of JTA, a state agency. However, the trial court ruled that while JTA is an independent establishment of the State and thus is entitled to sovereign immunity, the same cannot be said as to JTM because the statutory definition in section 768.28(2) does not expressly include corporations that are acting primarily as instrumentalities or agencies of independent establishments of the State. Eminisor asserts that the trial court’s construction of the statute was correct. We disagree. In looking to the third clause of section 768.28(2), which provides for “corporations primarily acting as instrumentalities or agencies of the state,” section 768.28(2) does not repeat what constitutes “the state.” In order to ascertain the meaning of “the state” in this portion of section 768.28(2), the three separate clauses must “be construed as a whole in order to ascertain the general purpose and meaning of each part; each subsection, sentence, and clause must be read in light of the others to form a congruous whole.” Bush v....

...ties of the executive, legislative, or judicial branches are not acting as instrumentalities of the State. Likewise, corporations primarily acting as in-strumentalities of independent establishments of the State are included in the definition within section 768.28(2) of “state agencies or subdivisions,” because such entities are “corporations primarily acting as instrumentalities ......

...of an agency or independent establishment is an instrumentality of the State. Thus, because JTM primarily acts as an instrumentality of JTA, it is among those “corporations primarily acting as in-strumentalities ... of the state” for purposes of section 768.28(2). Accordingly, we reject the assertion of the trial court and Eminisor that section 768.28(2) does not extend the status of “state agenc[y] or subdivision! ]” to those corporations acting as instrumentalities of independent establishments of the State....

...acting on behalf of a public agency for purposes of sovereign immunity.” Keck, 46 So.3d at 1076 (Wetherell, J., dissenting). The requirements for being considered a public employer for labor relations purposes are distinct from those contained in section 768.28(2) and have no bearing on an entity’s status for purposes of sovereign immunity....

...v. Betterson, 648 So.2d 778, 779 (Fla. 1st DCA 1994) (quoting Dade Cnty. v. AT & T Info. Sys., 485 So.2d 1302, 1304 (Fla. 3d DCA 1986) (first alteration in original)). We therefore hold that JTM is a “state agenc[y] or subdivision ]” under section 768.28(2) because it primarily acts as an instrumentality of JTA, which is within the statutory definition of a state agency. We further hold that Keck is entitled to the individual immunity granted in section 768.28(9)(a) by virtue of his status as an employee of JTM....

...this opinion. Moreover, as addressed above, we request the Florida Bar Appellate Court Rules Committee to submit a proposed amendment that will address the rule change mandated by our decision where an individual defendant who claims immunity under 768.28(9)(a) is denied that immunity and the issue turns on a matter of law. Finally, we hold that JTM is within the definition of a state agency or subdivision for purposes of determining sovereign immunity under section 768.28(2) and that Keck, as an employee of JTM, is entitled to the immunity provided in section 768.28(9)(a)....

...titled to absolute or qualified immunity in a civil rights claim arising under federal law,” Fla. R.App. P. 9.130(a)(3)(C)(vii), but does not include orders determining that, as a matter of law, a party is not entitled to individual immunity under section 768.28(9)(a)....

...ered before appealing the issue of sovereign immunity did not present the same concerns that exist when a public official is sued in his or her personal capacity. The Court explained: Florida has agreed to be sued in its own courts for tort actions. § 768.28.......

...iability, should the state ultimately prevail on the sovereign immunity issue, will not be lost simply be *366 cause review must wait until after final judgment. Roe, 679 So.2d at 759 . . Because we hold that Keck is entitled to immunity pursuant to section 768.28(9)(a) based on his status as an employee of JTM, we need not discuss Keck’s alternative argument that he is entitled to immunity under that section as a direct agent of JTA.

...The complaint alleged severe personal injuries. Prior to filing his lawsuit, Levine provided written notice of his claim to the school board. However, he did not notify the State Department of Insurance within three years of the accrual of the cause of action as is required by section 768.28(6), Florida Statutes (1977). Section 768.28 is the statutory waiver of sovereign immunity for the state, its agencies, and its subdivisions....

...d not be deemed a strict condition precedent to filing suit, but affirmed the trial court's ruling on the authority of Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979), where this Court held that the notice requirements of section 768.28(6) are conditions *212 precedent to maintaining a suit. The district court certified the following question: May a plaintiff maintain an action to recover damages from a state agency or subdivision, pursuant to section 768.28(6), Florida Statutes (1977), if he notified the appropriate agency but failed to present a written notice of claim to the Department of Insurance, which has no interest or role in the proceedings other than to report claims to the legislature, and no prejudice resulted? 419 So.2d at 809. We are compelled to answer the question in the negative and approve the decision of the district court of appeal. Section 768.28(6) reads as follows: (6) An action shall not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any clai...

...ontemplates some role for the department in responding to claims against the state. One can speculate that the department may have such a role in lawsuits against departments and agencies of the executive branch of state government. The provision in section 768.28(6) excepting suits against municipalities from the requirement of notice to the Department of Insurance, together with the affidavit negating any role or function for the department in suits against school districts, gives rise to further speculation that the failure to also except county school districts from the statutory notice requirement was inadvertent. [*] Such speculation, however, does not authorize us to ignore the plain language of the statute. Section 768.28(6) clearly requires written notice to the department within three years of the accrual of the claim before suit may be filed against any state agency or subdivision except a municipality....

...Shevin, 354 So.2d 1200 (Fla. 1977), cert. denied, 439 U.S. 953, 99 S.Ct. 348, 58 L.Ed.2d 343 (1978); Stern *213 v. Miller, 348 So.2d 303 (Fla. 1977). Consideration of the efficacy of or need for the notice requirement is a matter wholly within the legislative domain. Under section 768.28(6), not only must the notice be given before a suit may be maintained, but also the complaint must contain an allegation of such notice....

...Therefore the district court's affirmance of the order of dismissal was correct. The decision of the district court of appeal is approved. We answer the question in the negative. It is so ordered. ALDERMAN, C.J., and ADKINS, OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur. NOTES [*] See also § 768.28(3), Fla....

...(1977), which provides: (3) Except for a municipality, the affected agency or subdivision may, at its discretion, request the assistance of the Department of Insurance in the consideration, adjustment, and settlement of any claim under this act. See also § 768.28(7), which provides: (7) In actions brought pursuant to this section, process shall be served upon the head of the agency concerned and also, except as to a defendant municipality, upon the Department of Insurance, and the department or the...

...Sovereign Immunity We next address whether a tort claim for damages based on HRS's placement decisions and alleged failure to provide B.J.M. with adequate services is barred by the doctrine of sovereign immunity. We begin our discussion with a brief historical overview of sovereign immunity in the State of Florida. Section 768.28, Florida Statutes (1993), waives governmental immunity from tort liability "under circumstances in which the state or [an] agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state." § 768.28(1), Fla....

...1979), we attempted to flesh out the effect of the statutory waiver of immunity and, in doing so, carved out an exception to the waiver of immunity for "policy-making, planning or judgmental government functions." In other words, despite the rather straightforward and broad scope of the waiver of sovereign immunity in section 768.28, we held that certain "discretionary" [3] governmental functions remain immune from tort liability....

...y while fire equipment is being driven to the scene for a fire or personal injury to a spectator from the negligent handling of equipment at the scene. Governmental entities are clearly liable for this type of conduct as a result of the enactment of section 768.28, Florida Statutes (1983)." Palmer, 469 So.2d at 123....

...Widiss, Uninsured and Underinsured Motorist Insurance, § 8.7 at 456 (Rev.2d ed.1999). The fallacy of Amica Mutual 's distinction is even more pronounced when the tortfeasor is a governmental entity that has elected to be self-insured as permitted by section 768.28(15)(a), Florida Statutes (1995)....

...However, the statutory waiver of sovereign immunity provides that subdivisions of the state are liable in tort to the same extent as private entities, but that the damages recoverable are limited to $100,000 per person and $200,000 per occurrence. See § 768.28(5)....

...In that case, Gabriel sustained injuries in an automobile accident involving a vehicle owned by the City of Miami. The City maintained a self-insurance program but did not have a certificate of self-insurance as set forth in the statute. Gabriel claimed the City was uninsured. The district court stated: Section 768.28(13), Florida Statutes (1979), authorizes municipalities to obtain any of four types of tort liability coverage: (a) self-insurance, (b) risk management program, (c) liability insurance, or (d) any combination of the stated methods. The City chose to be self-insured and maintains coverage through its Risk Management Department. Thus, under section 768.28(13), the City qualifies as a self-insurer against tort liability....

...e protection of the injured party...." Brown, 249 So.2d at 430. Here, the City has insurance through its trust fund and possesses the ability to make Gabriel whole. . . . . ... The record affords ample proof that the City is self-insured pursuant to section 768.28(13), and consequently, Gabriel is not entitled to obtain uninsured motorist benefits....

...The issue did not involve a self-insured governmental agency. Rather, the issue was the statutory construction of the words "legally entitled to recover" in section 627.727(1) as related to the limits for judicial recovery against a state agency under section 768.28. This Court only reached the logical conclusion that because the Legislature can pay claims in excess of the limits of section 768.28, sovereign immunity under section 768.28 is not absolute....

...ds. See § 324.031, Fla. Stat. (1995). Similarly, motorists can meet the insurance requirements of the Florida Motor Vehicle No Fault Law by self-insuring as authorized by section 324.031(4) or, with regard to governmental entities, as authorized by section 768.28(15)(a), Florida Statutes (1995)....

...d liability insurance which covers the alleged tort. For the reasons which follow, we disagree and hold that political subdivisions may not claim absolute immunity contrary to the provisions of section 286.28. In Ingraham, we addressed the impact of section 768.28, Florida Statutes (1981), on section 286.28, formerly section 455.06, Florida Statutes (1977). We concluded that section 286.28 remained in effect and became a part of the overall waiver of sovereign immunity. Section 768.28 totally revised the area of sovereign immunity, but as a part of the overall revision of this area by the legislature it specifically provided that the statutory provisions permitting the state to purchase insurance based upon section 455.06 would continue in effect. Specifically, section 768.28(1) provides: "Laws allowing the state or its agencies or subdivisions to buy insurance are still in force and effect and are not restricted in any way by the terms of this act." Section 455.06 thus became a part of the overall scheme of the legislature relating to the waiver of sovereign immunity....

...To construe the section otherwise would deprive the public of the benefit of the public expenditure. The above reading of section 286.28 reflects the legislative intent. The district court concluded that this reading was inconsistent with the later enactment of section 768.28, waiving sovereign immunity for the state, its agencies, and political subdivisions for torts committed by their employees within the scope of office or employment under circumstances in which a private person would be liable. We see no conflict between sections 286.28 and 768.28 and no reason why both cannot be given full effect....

...Reading the two sections in pari materia we reach the following conclusions which are pertinent to the issue at hand and contrary to the decision below. 1. Political subdivisions are authorized to purchase liability insurance pursuant to the conditions of sections 286.28(1) and 768.28(10)....

...uld be otherwise valid. § 286.28(2). 3. Sovereign immunity is waived and political subdivisions are liable for torts in the same manner as a private individual would be, except as noted below, regardless of whether liability insurance is purchased. § 768.28(1) and (5)....

...Unlike private tortfeasors, government tortfeasors are not liable for punitive damages or prejudgment interest. Further, statutory caps are placed on the damages which may be assessed against government unless there is insurance coverage in excess of the statutory cap. §§ 286.28(2); 768.28(5) and (10). However, the legislature may by special act direct payment of damages above the statutory cap. § 768.28(5). In summary, we see no conflict between sections 286.28 and 768.28 or any reason why both should not be given full effect....

...We hold that purchase of tort liability insurance by a government entity, pursuant to section 286.28, constitutes a waiver of *1005 sovereign immunity up to the limits of insurance coverage and that this contingent waiver is independent of the general waiver in section 768.28. Petitioner also urges that respondent's sovereign immunity has been waived by section 768.28 and that once the respondent made the discretionary decision to operate a swimming facility it assumed a common law duty to operate the facility safely....

...nt was negligent in not exercising reasonable care in supervising and operating the facility. In support, petitioner relies first on Trianon Park Condominium Association, Inc. v. City of Hialeah, 468 So.2d 912 (Fla. 1985), wherein we stated that the section 768.28 waiver of sovereign immunity did not create any new causes of action, but it did eliminate the immunity which had theretofore prevented recovery for existing common law torts....

...Respondent also urges that while Pickett and Ide recognized a common law duty for municipalities, which were treated as private corporations, this duty did not exist for counties which were a political subdivision of the state and immune from suit. We agree with petitioner on this point. Section 768.28 and Cauley v....

...ies. The common law duty which Pickett and Ide recognized was also applicable to counties even though the counties were sovereignly immune from suit at the time Pickett and Ide issued. We addressed this point in Trianon Park when we emphasized "that section 768.28, Florida Statutes (1975), which waived sovereign immunity, created no new cause of action, but merely eliminated the immunity which prevented recovery for common law torts committed by the government." Trianon Park, 468 So.2d at 914....

...McDONALD, C.J., dissents with an opinion, in which BOYD, J., concurs. BOYD, J., dissents with an opinion, in which McDONALD, C.J., concurs. SHAW, Justice, specially concurring. I concur fully with the majority decision. I would go further, however, and hold that *1006 section 768.28, Florida Statutes (1975), completely waived sovereign immunity and there is no immunity for either planning or operational level activities. This artificial distinction has no foundation in either the constitution or section 768.28 and should be discarded....

...I thus respectfully disagree with Justice Shaw as to the holding of the Court's decision. I also respectfully disagree with Justice McDonald's dissent on the effect of the purchase of liability insurance pursuant to section 286.28. That section long antedated the enactment of section 768.28, and was and is only limited as to its applicability by its terms. Arguably, when section 768.28(10) was enacted in 1973 it limited the waiver effect of liability insurance to actions which may be brought pursuant to section 768.28. However, when section 768.28(10) was amended four years later and the legislature deleted all references to the nonapplicability of sovereign immunity when the governmental entity carried liability insurance, I interpret that legislative action to mean that whatever limiting effect section 768.28(10) may have had on the applicability of section 286.28 to the waiver of government immunity to the extent of liability coverage, was no longer in existence....

...My disagreement with the majority surrounds, in part, the definition of "operations" as set forth in the insurance waiver statute, section 286.28, Florida Statutes. I believe that the decision to employ or not to employ lifeguards or supervisory personnel is a planning function not waived by the purchase of insurance or by section 768.28, Florida Statutes....

...the like, I would unhesitatingly join in ruling that the county has no sovereign immunity and may be liable. [1] In Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979), this Court concluded that despite the broad language of section 768.28, Florida Statutes (1975), sovereign immunity still shielded the state from liability for certain policy-making, planning, or judgmental government functions....

...o turmoil and saddled them with a potentially crushing burden of financial liability, but would also have caused the judicial branch of government to trespass into the domain of the legislative branch. Therefore, in *1008 order to avoid this result, section 768.28 has been interpreted as waiving liability only as to "operational level" decisions....

...Instead of interpreting section 286.28 as an all-encompassing waiver of sovereign immunity, that section should be read as a waiver of liability only for operational decisions and conduct. I find that the legislative histories of sections 286.28 and 768.28 support this alternative interpretation. Section 286.28 had been in existence long before the legislature adopted section 768.28 in 1973. As originally adopted, subsection 768.28(10) read, in pertinent part: If the state or its agent or subdivision is insured against liability for damages for any negligent or wrongful act, omission, or occurrence for which action may be brought pursuant to this section, then th...

...In 1977 the legislature repealed this provision and subsection (10) was redesignated as subsection (13). During this process, however, the legislature deleted all references to the nonapplication of sovereign immunity when the entity carried liability insurance. The new section 768.28 simply authorized the state and its agencies and subdivisions to purchase insurance....

...I respectfully dissent to the decision of the Court and agree with the well-reasoned dissent of Justice McDonald. The purchase of insurance under section 286.28, Florida Statutes (1983), has nothing whatsoever to do with the questions of whether liability, or immunity, exist. Reading section 286.28 in pari materia with section 768.28, Florida Statutes (1983), it is clear to me that the prohibition against an insurer raising the defense of sovereign immunity was not intended to preclude a political subdivision's reliance on the defense of governmental immunity for functions to which immunity still applies under section 768.28 as construed in Commercial Carrier Corp....

...of Health and Rehabilitative Services, 779 F.2d 1509, 1511 (11th Cir.1986) (citing Edelman v. Jordan, 415 U.S. 651 , 94 S.Ct. 1347 , 39 L.Ed.2d 662 (1974)). The district court held that, even if this was an action against the state, Florida waived its Eleventh Amendment immunity in adopting Fla.Stat. § 768.28. Section 768.28 expressly waives Florida’s sovereign immunity from tort actions brought in its own courts, with certain limitations....

...Amendment immunity from suit in federal court. Florida Dept. of Health and Rehabilitative Servs. v. Florida Nursing Home Ass’n, 450 U.S. 147, 150 , 101 S.Ct. 1032, 1034-35 , 67 L.Ed.2d 132 (1981); Tuveson, 734 F.2d at 734. This court has held that section 768.28 does not waive Florida’s Eleventh Amendment immunity. Hamm v. Powell, 874 F.2d 766 , 770 n. 3 (11th Cir.1989); Gamble, 779 F.2d 1509 . Accord Hill v. Dept. of Corrections, 513 So.2d 129, 133 (Fla.1987). To the contrary, subsection 768.28(16) declares the legislature’s intention that Florida statutes not be construed to waive Eleventh Amendment immunity unless they explicitly waive immunity from suit in federal court. 5 Nothing else in section 768.28 refers to actions brought in federal court. Consequently, the district court erred in interpreting section 768.28 as a statutory waiver of Eleventh Amendment immunity....

...This subsection shall not be construed to mean that the state has at any time previously waived, by implication, its immunity, or that of any of its agencies, from suit in federal court through any statute in existence prior to June 24, 1984. Fla.Stat. § 768.28(16).

...The State of Florida has waived sovereign immunity from liability in tort actions "for any act for which a private person under similar circumstances would be held liable." Henderson v. Bowden, 737 So.2d 532, 534-35 (Fla.1999) (citing Art. X, § 13, Fla. Const.; § 768.28 Fla....

...Indian River County, 371 So.2d 1010 (Fla.1979), this Court interpreted Florida's waiver of sovereign immunity statute for the first *940 time and came to two conclusions. First, the Court addressed whether its decision in Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967), survived "notwithstanding the enactment of section 768.28." Commercial Carrier, 371 So.2d at 1015....

...nd "special duty-general duty" analyses has drawn severe criticism from numerous courts and commentators. Consequently, we cannot attribute to the legislature the intent to have codified the rules of municipal sovereign immunity through enactment of section 768.28, Florida Statutes (1975). Even if we were disposed toward respondents' argument, a plain reading of the statute would deny such a construction. Municipalities are unequivocally included within the definition of "state agencies or subdivisions." § 768.28(2), Fla....

...d political subdivisions, there would have been no need to include municipalities within the operation of the statute. Consequently, we conclude that Modlin and its ancestry and progeny have no continuing vitality subsequent to the effective date of section 768.28. Id. at 1016 (footnote omitted) (emphasis supplied). The second issue decided by the Court in Commercial Carrier was the scope of the waiver of sovereign immunity created by section 768.28. See id. Noting that — unlike other waiver of sovereign immunity statutes — section 768.28 does not have an express exception for discretionary decisions, the Court nonetheless created a narrow exception for certain policymaking, planning, or judgmental governmental functions....

...ties, with only the former remaining immune from liability. Id. at 1022. Thus, the Commercial Carrier decision addressed both the duty element of a negligence claim, eliminating the "special duty-general duty" distinction of Modlin, and the scope of section 768.28, adopting the "planning level" versus "operational level" test for determining whether sovereign immunity insulates an agent of the state or its political subdivisions from liability....

...The manual's directive requiring the dispatch of officers to all reports of incidents represents the policy decision made by FHP. The act of logging the reports received *943 by FHP is an operational-level activity that falls directly within the waiver of sovereign immunity contained in section 768.28....

...9) reflects the spelling as "Pollack." [3] For a thorough overview of the historical development of the sovereign immunity doctrine in Florida, see Gerald T. Wetherington & Donald I. Pollack, Tort Suits Against Governmental Entities in Florida, 44 Fla. L.Rev. 1 (1992). [4] Section 768.28(1) specifically provides: In accordance with s....

...oyment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act. § 768.28(1), Fla....

...ct that the sheriff in Hoover had known about the abandoned vehicle for over two weeks and had responded to and inspected the vehicle and circumstances prior to the accident, but failed to provide for the vehicle's removal. See id. at 1332. [11] See § 768.28, Fla....

...Compliance with the Florida Notice of Claim Procedures Appellant’s first claim is that the district court erred in failing to grant the defendant’s motion for a directed verdict. In that motion the defendant alleged the plaintiff had failed to prove compliance with the Florida notice of claim provisions. Section 768.28 of the Florida Code contains a limited waiver of sovereign immunity applicable to the appellee’s suit against Sheriff McMillian....

...the claim in writing.... The failure of the Department of Insurance or the appropriate agency to make final disposition of a claim within 6 months after it is filed shall be deemed a final denial of the claim for purposes of this section. Fla.Stat. § 768.28(6)(a) (1986), amended, 1988 Fla.Laws Ch....

...4 The district court denied this motion without filing an opinion. The case then proceeded to trial. At the close of the plaintiffs’s case and at the close of all evidence, the defendant moved for a directed verdict alleging that noncompliance with section 768.28(6) mandated judgment in his favor....

...it. The defendant argues that because the plaintiff did not wait the required length of time before filing suit, she could not prove compliance with the statute at trial. To resolve the issues raised by this defense, it is necessary to first examine section 768.28(6) as interpreted by this court and the Florida courts....

...We begin with an analysis of our decisions interpreting the provision. 5 This court has considered the Florida notice of claim provision on two prior occasions. Both of these cases were relied on in support of the plaintiff’s motion to strike the section 768.28 defense....

...f an amended complaint or to dismiss the original complaint.” Lundgren, 814 F.2d at 606 . Under federal law, this decision is committed to the discretion of the district court. Id. The court recognized that under some instances the requirements of section 768.28(6) “may well be substantive,” but found it unnecessary to decide the issue....

...hich gives the district court the discretion to make the decision whether to allow a party to reopen his ease. Id. at 607 . Finally, the court rejected the state law basis of the defendant’s claim. 9 In Fitzgerald v. McDaniel, this court addressed section 768.28(6) for a second time....

...I note that if the defendants were able to articulate some actual prejudice that resulted from the plaintiff’s failure to wait six months before filing suit, I would be more inclined to dismiss the case and require the plaintiff to comply strictly with the language of Section 768.28(6)....

...The approach taken by the court in Lundgren — as a matter of federal law— has been followed by several Florida state courts. See Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1023 (Fla.1979) (when complaint fails to allege compliance with section 768.28, court should dismiss claims without prejudice and grant leave to amend); Lee v....

...While the mootness holding that forms the basis of Fitzgerald has no direct support in the Florida cases, the approach taken is consistent with the cases noted above. Both federal courts in Fitzgerald relied on the Askew opinion. In Askew the court held that a plaintiff complies with section 768.28 even if notice is filed after the original complaint as long as the three year period for giving notice has not expired....

...The Hardcastle court reversed the entry of judgment without prejudice holding: We think the trial judge erred in allowing Mohr to refile his complaint.... Mohr counters that the trial judge properly dismissed his action without prejudice because time remained for him to comply with section 768.28(6)....

...875, the plaintiffs in this case removed the issue of compliance with the statute by *1448 successfully having the defense stricken before trial. The Hardcastle court explicitly distinguished the Florida cases where the dispute over compliance with section 768.28(6) was adjudicated in pre-trial proceedings....

...The Supreme Court passage quoted above merely noted that these types of provisions are substantive in nature. The Court did not consider the question presented in this case — how and when a plaintiff in federal court must show that he has complied with a state statute. The requirements of section 768.28(6) are an element in the cause of action against certain Florida government agencies....

...ly when the defendant has failed to allege any of the elements that comprise a state cause of action. In such cases, it is federal law that determines the resolution of such a complaint. While the Lundgren court’s pre- Felder “suggestion” that section 768.28 compliance may be required before a federal court can enter judgment for the plaintiff is likely a “prerequisite” to recovery after Felder , we see nothing in Felder that would mandate consideration of classic procedural requiremen...

...the legislature makes an appropriation for the remainder of the judgment. This contention is also the subject of the defendant’s second request for certification to the Florida Supreme court. The defendant’s argument is based on Florida Statutes § 768.28(5). 17 That section contains an explicit waiver of sovereign immunity up to $100,000 per plaintiff or $200,000 per incident. Under the act, judgments in excess of the limits in section 768.28(5) require a legislative appropriation....

...rage to the participating Sheriffs for amounts in excess of $100,000 with a $1,000,000 policy limit. The question presented in this case is whether this insurance arrangement constitutes a sovereign immunity waiver apart from general waiver found in section 768.28(5)....

...Board of County Commissioners of Citrus County, 493 So.2d 1002, 1004 (Fla.1986), the court held that section 286.28(2) constituted a waiver of sovereign immunity up to the limits of the policy purchased pursuant to the provision. This waiver of immunity is a waiver that is in addition to the waiver in section 768.28(5)....

...nity doctrine of Avallone , and therefore, the Avallone waiver is not applicable in this case. The record confirms that the defendant is a member of the Florida Sheriffs’ Self-Insurance Fund “the Sheriffs’ Fund”, a risk pool authorized under 768.28(13)....

...Id. at 1057-58 . If insurance is purchased, the insurance company cannot urge as a defense the state agency’s immunity. If insurance is not purchased and the agency self-insures, as was the case in Hillsborough Hospital, the agency is entitled to section 768.28(5) immunity....

...does. Finally, we note that the provisions of section 768.-28(13) at issue in Hillsborough Hospital only authorize a self-insurance pool to pay claims “which [the agency] may be liable to pay pursuant” to $100,000 waiver of sovereign immunity in section 768.28. Therefore, because the insurance purchased by the Sheriffs’ Fund only covers liabilities in excess of the section 768.28 waiver, the authority to purchase this insurance cannot come from section 768.28(13), and Hillsborough Hospital, therefore, can not be applicable....

...The holding in Hillsbor-ough Hospital prevents an individual plaintiff from recovering more than $100,000 from the money in this fund. The Sheriff’s Self-Insurance Fund, however, has taken some of the moneys in this fund and purchased an insurance policy for liabilities in excess of the $100,000 waiver found in section 768.28(5)....

...This order was entered despite the fact that the defendant was sued in both his official and individual capacities. The record does not indicate the basis for this order. . The 1988 amendments concerned matters not relevant to this appeal. In any event, amendments to the immunity waiver in section 768.28 have not been applied retroactively....

...That Fitzgerald’s interpretation of section 768.-28(6) is based entirely on state law is evident from the fact that the court’s discussion of the issue only cites state authority. See id. at 1519— 20. . We note that this holding is based upon our conclusion that state law allows the plaintiff to meet her burden under section 768.28(6) if the initial non-compliance with the section is cured before trial....

...However, a judgment or judgments may be claimed and rendered in excess of [$100,000] and that portion of the judgment that exceeds [$100,000] may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature. Fla.Stat.Ann. § 768.28(5) (West 1986), amended, 1987 Fla.Laws Ch....

...hall not be deemed to have waived any defense of sovereign immunity or to have increased the limits of its liability as a result of its obtaining insurance coverage for tortious acts in excess of the $100,000 ... waiver provided above. Fla.Stat.Ann. § 768.28(5) (West Supp.1989) (emphasis added)....

...The district court of appeals had held that because of the similarity between section 286.28 and section 30.55, "the reasoning of Avallone is applicable" to insurance purchased under the authority of section 30.55. 509 So.2d 1213, 1219 (1987). . Florida Statutes § 768.28(13) authorized this practice....

...rs to provide other means of protection against tort claims, any charter provisions or laws to the contrary notwithstanding. Sheriffs may join together as self-insurers to provide coverage for police professional liability claims only. Fla.Stat.Ann. § 768.28(13) (West 1986) (amended in a manner not relevant effective July 1, 1986 and July 6, 1989 and redesignated Fla.Stat. Ann. § 768.28(14) (West Supp.1990))....

...for respondent. SHAW, Justice. We review State of Florida, Department of Health and Rehabilitative Services v. Yamuni, 498 So.2d 441 (Fla. 3d DCA 1986), to answer a certified question of great public importance. Has the State of Florida, pursuant to section 768.28, Florida Statutes (1983), waived sovereign immunity for liability arising out of the negligent conduct of an HRS case worker? Id....

...In August 1980, Sean was admitted to a hospital with severe burns and two fractures to his arm. The arm was medically amputated the following day. The jury found HRS guilty of negligence and returned a verdict of 3.1 million dollars which was reduced to $50,000 pursuant to section 768.28(5), Florida Statutes (1979)....

...The threshold issue is whether the actions of its caseworkers were planning level activities which were sovereignly immune under Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979). In Commercial Carrier, we recognized the broad scope of the legislative waiver of sovereign immunity in section 768.28, Florida Statutes (1975), but nevertheless carved out an exception to the waiver not contained in the statute for "policy-making, planning or judgmental government functions." Id....

...al or planning level as each case comes to court. The HRS also argues that its activities here were exclusively governmental and are not performed by private persons. Therefore, HRS reasons that there has been no waiver of sovereign immunity because section 768.28(1) only waives immunity "under circumstances in which the state or such agency or subdivision, if a private person, would be liable." (Emphasis supplied.) This reasoning was presented and rejected in Commercial Carrier because to accep...

...It requires a great deal of judgmental and decision-making action. HRS' actions, in this area, are entirely governmental. I do not believe that the judicial branch of government can pass judgment on these decision-making processes. Sovereign immunity was modified by section 768.28, Florida Statutes, to allow actions for proprietary actions by governmental agencies, that is, for a type of acts that a private citizen or corporation performs....

...I fear, however, that, rather than assist abused children, the majority opinion may cause the governing authorities *266 to restrict and limit the activities of HRS in order to avoid this type of liability. To find that the legislature, in enacting section 768.28(1), intended to waive immunity for activities performed only by governmental authorities and not private persons, effectively rewrites section 768.28 by judicial fiat. The majority ignores the legislature's clear intent, expressed in the statute, that 768.28 waives immunity only "under circumstances in which the state or such agency or subdivision if a private person would be liable." We expressly applied that provision in our recent decision in Reddish v....

...learly has the authority to do so. The judiciary, however, has no authority to impose that obligation. McDONALD, C.J., and GRIMES, J., concur. GRIMES, Justice, dissenting. An objective analysis of the controlling cases decided since the enactment of section 768.28 leads me to conclude that the judgment should be reversed....

...1985), modified the principle of Commercial Carrier Corp. to the extent that, before embarking upon the operational-planning level analysis, it would first be necessary to determine whether or not there was a violation of an underlying common law or statutory duty of care. Quoting from section 768.28, which provides that governmental entities "shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances," the Court reasoned that there could be no governmental liability i...

...NOTES [1] Question number four has limited value under Florida's statutory waiver of immunity because the answer will almost invariably be yes unless the government employees, officers, or agents are acting without authority outside the scope of their office or employment. If this is so, they would be personally liable under § 768.28 and the state would be immune because the waiver of immunity would not be applicable....

...Eaton of Podhurst, Orseck & Parks, Miami, for the Academy of Florida Trial Lawyers, amicus curiae. Claude L. Mullis, Tallahassee, for Florida League of Cities, Inc., amicus curiae. OVERTON, Justice. This is an appeal from a circuit court decision holding constitutional section 768.28(5), Florida Statutes (1977), [1] which by its terms limits the amount of money damages recoverable in tort against a municipality to $50,000 per person and $100,000 per incident....

...Cauley to be seventy-five percent responsible for the accident, and the trial court accordingly reduced the amount and entered a total judgment of $150,000 for the plaintiffs. The city filed a motion to limit the judgment to $100,000 in accordance with section 768.28(5). The trial court granted the motion and expressly found that this statutory section was constitutional. *381 The question we must decide concerns the validity of that portion of section 768.28(5) which limits compensatory damages against municipalities for negligent performance of operational-level or proprietary functions. The issue is narrow because this Court has previously held constitutional that portion of section 768.28(5) which waives sovereign immunity and establishes a statutory cap for compensatory recovery against the state and county governments for operational-level negligence....

...The people of Florida vested the power to waive immunity in the Florida legislature at an early date. See art. IV, § 19, Fla. Const. (1868) (now art. X, § 13, Fla. Const.). The Florida legislature did not exercise this authority until 1973 when it enacted section 768.28. Ch. 73-313, § 1, Laws of Fla. Common law sovereign immunity for the state, its agencies, and counties remained in full force until section 768.28's enactment....

...Indian River County, 371 So.2d 1010 (Fla. 1979), we recognized the problems and criticisms of the governmental-proprietary *384 and special duty-general duty analyses which had previously encompassed municipal sovereign immunity law. The Court determined that with the enactment of section 768.28 and the legislature's express inclusion of municipalities within that statute, the rules previously governing municipal immunity had been eliminated: "We conclude that Modlin and its ancestry and progeny have no continuing validity subsequent to the effective date of section 768.28." Id. at 1016. The Commercial Carrier decision further held that section 768.28 had waived county and state governmental immunity, within the set limits, in "operation-level" functions, but that the "planning" or "decisionmaking" levels remained immune. Under the Commercial Carrier facts, a county was held liable for negligence in maintaining the letters "stop" painted on the pavement at a highway intersection, an "operational-level" obligation. The instant question is whether section 768.28's $50,000/$100,000 cap on municipal liability is valid for the identified proprietary functions for which this Court has previously said there is no sovereign immunity....

...f rights contained in the Florida constitution nor was there a cause of action at common law as of July 4, 1776, adopted under section 2.01, Florida Statutes. [11] Consequently, the strictures of Kluger v. White are not applicable. [12] In our view, section 768.28, rather than denying equal protection, has in fact brought fairness, equality, and consistency to an area of the law which for over one hundred years has been beset with contradiction, inconsistency, and confusion....

...ory cap should not apply and that their recovery should be unlimited. It is conceded, however, that if the accident had occurred from identical road conditions in adjacent unincorporated Clay or Nassau Counties, that the recovery would be limited by section 768.28(5)'s $50,000/$100,000 ceiling; and that, before section 768.28's enactment, no recovery would have been allowable at all....

...Under appellant's contention, if the patrolman is a city officer, the injured persons would be allowed an unlimited recovery. However, if the officer was a state trooper making an arrest for the same offense in the same location, immunity would prohibit recovery except as allowed under section 768.28(5). Clearly, the even-handed application of immunity under section 768.28 furthers equal protection of the law under our constitutions rather than denies it. We note that section 768.28 also furthers the philosophy of Florida's present constitution that all local governmental entities be treated equally....

...See, e.g., In re Advisory Opinion to the Governor Request of July 12, 1976, 336 So.2d 97 (Fla. 1976) (whether municipal *386 or county standards applied to suspension of mayor under consolidated government; county standards held applicable). Our decision that section 768.28 applies to both municipal and county governments eliminates the need for such a determination....

...In this light, some jurisdictions have partially or totally abolished the doctrine. [14] *387 It is our decision that, in this state, sovereign immunity should apply equally to all constitutionally authorized governmental entities and not in a disparate manner. We find that section 768.28 provides a responsible method for this equal application. While the section does limit recovery allowable against municipalities, it substantially broadens recovery allowable against state governmental entities generally. It is important to note that, although section 768.28 imposes a $50,000/$100,000 ceiling on tort recovery against government in the judicial forum, the section specifically provides that one suffering injuries in excess of the ceiling may seek additional relief by petition to the legislature....

...the separation of powers rule. It provides a fair means of recovery against governmental entities for the negligent acts of their employees and officials. For the reasons expressed, we affirm the trial court and uphold the constitutional validity of section 768.28(5), Florida Statutes (1977)....

...nments. One such misapplication is the majority's reliance on Commercial Carrier Corp. v. Indian River County . [1] Commercial Carrier dealt with a single narrow issue — the scope of the waiver of sovereign immunity for the state and counties under section 768.28, Florida Statutes (1975)....

...First, there was no necessity shown for the abolition of this common law right by legislative history or findings expressed in the legislation. Second, even if such necessity had been demonstrated, the lack of a reasonable alternative was not shown. The effect of section 768.28(5) is to force a plaintiff to give up a common law right and receive nothing in return....

...ent of the requirements discussed above. Thus, the majority's reliance on the above cases merely highlights the weakness of its reasoning. Two final arguments the majority submits in upholding the $50,000/$100,000 cap against municipalities are: (1) section 768.28 makes all governmental entities equal, and (2) to hold otherwise would cause difficulties when dealing with consolidated areas....

...In conclusion, I disapprove the majority's construction and application of Commercial Carrier Corp. v. Indian River County to the present case. Furthermore, I would apply the holding of Kluger v. White to the facts of this case and hold the damage limitation of section 768.28(5) unconstitutional as applied to municipalities. ADKINS, J., concurs. NOTES [1] Section 768.28(5) provides: (5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period prior to judgment....

...[5] Before waiver of sovereign immunity, one suffering injury at the hands of the state could always petition for legislative relief by means of a claims bill. At present, if a claim exceeds the statutory limit, the legislature will still entertain a petition for a claims bill for the excess amount. See §§ 11.065, 768.28(5), Fla....

...[10] Accord, Faulkner v. Allstate Ins. Co., 367 So.2d 214 (Fla. 1979). [11] See Russell v. The Men of Devon, 100 Eng. Rep. 359 (1788); R. Brooke, LaGraunde Abridgement 93 (1573). [12] We note that the First District Court of Appeal has recently upheld section 768.28 from constitutional attack in Jetton v. Jacksonville Electric Authority, 399 So.2d 396 (Fla. 1st DCA 1981). In addressing the asserted Kluger problem, the court said because section 768.28 merely narrowed the right to sue municipal government rather than abolished it, no constitutional infirmity presented itself....

...[7] And despite DEP taking the position *1268 that section 11.066 broadly applies to all judgments entered against the State, there has been no contention made that the specific statutory scheme relating to tort suits and judgments against the State pursuant to section 768.28, Florida Statutes, is affected by section 11.066....

...This statute provides for the mutuality of the rights, obligations, remedies and defenses of parties to a public service contract as was discussed in County of Brevard v. Miorelli Engineering, Inc., 703 So.2d 1049, 1050-51 (Fla. 1997). [8] The dissent suggests our analysis cannot be reconciled with section 768.28, in which an injured party is required to seek a legislative claims bill to recover payment for additional compensation for tort judgments over and above the limited waiver of sovereign immunity provided in that statute....

...("Provision may be made by general law for bringing suit against the state as to all liabilities now existing or hereafter originating."). [15] The majority also does not reconcile today's holding with this Court's application of legislation regarding the payment of tort judgments. In section 768.28, Florida Statutes (2007), the Legislature obligated the State and its agencies to pay tort judgments up to $100,000 per individual, not to exceed $200,000 per incident....

...t or judgments may be claimed and rendered in excess of these amounts" and that the "portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature. " § 768.28(5), Fla. Stat. (2007) (emphasis added). This Court has strictly construed prior versions of section 768.28, holding that payment of any kind in excess of the statutory caps could only be obtained through the Legislature....

...Progressive Consumers Ins. Co., 819 So.2d 732, 734 (Fla. 2002). Here, the amended complaint alleges an action based on the negligence of Continental Laboratories, charging the department with vicarious liability for this negligence under the agency provisions of section 768.28(10)(a), pursuant to which the State has waived immunity for the actions of health care services provided by private persons at the request of the department....

...Abril is suffering from and undergoing treatment for severe depression and posttraumatic stress disorder as a result of the laboratory's negligence. [2] The complaint alleged that the department was liable for the laboratory's negligence pursuant to section 768.28(10)(a), Florida Statutes (Supp.1996), which states: Health care providers or vendors, or any of their employees or agents, that have contractually agreed to act as agents of the Department of Corrections to provide health care services to inmates of the state correctional system shall be considered agents of the . . . Department . . . for the purposes of . . . section [768.28, Florida's sovereign immunity waiver statute], while acting within the scope of and pursuant to guidelines established in said contract or by rule....

...We granted Sheriff Henderson's petition for review. [5] II. Discussion The State of Florida has waived sovereign immunity in tort actions for any *535 act for which a private person under similar circumstances would be held liable. See Art. X, § 13, Fla. Const.; § 768.28, Fla....

...now decide whether the deputies' actions are, nevertheless, protected by sovereign immunity. We conclude they are not. In Everton v. Willard, 468 So.2d 936 (Fla. 1985), this Court first addressed the scope of protection afforded to police conduct by section 768.28, Florida Statutes (1973)....

...[5] See Henderson v. Bowden, 717 So.2d 532 (Fla.1998). [6] Article X, section 13 of the Florida Constitution states that "[p]rovision may be made by general law for bringing suit against the state as to all liabilities now existing or hereafter originating." Section 768.28(1), Florida Statutes (1997), provides: In accordance with s....

...Ward, and the residents admitted that Jaar received negligent care. At the conclusion of plaintiffs' case, the trial court directed a verdict in favor of the three residents on the ground that as employees or agents of the Trust, they were afforded immunity under section 768.28(9)(a), Florida Statutes (Supp....

...in favor of Dr. Ward and the University. The jury also returned a verdict of $2,000,000 against the Trust. The trial court limited appellants' recovery from the Trust to the $100,000 maximum permitted under the applicable sovereign immunity statute, section 768.28(5), Florida Statutes (1979)....

...Next we turn to the questions involving the application of the sovereign immunity statutes. The jury returned a verdict against the Trust for $2,000,000. Because the Trust is a state agency, the trial court was correct in limiting its liability to $100,000 pursuant to section 768.28(5), Florida Statutes (1979)....

...[8] The Trust admitted that the doctors were its employees or agents and that their negligent treatment of Jaar was performed within the scope of their employment. As employees or agents of the Trust, Dr. Ward and the residents are entitled to immunity from liability. § 768.28(9)(a), Fla....

...ompetent evidence in the record this court should not interfere with the jury's decision. Therefore, I would affirm the final judgment in all respects. NESBITT, DANIEL S. PEARSON and JORGENSON, JJ., concur. NOTES [1] The statute currently in effect, § 768.28(5), Fla....

...on had right of control over his conduct); McWain v. Greyhound Lines, 357 So.2d 780 (Fla. 3d DCA 1978) (question of fact whether police officer working as security guard for private company acted as officer or employee in assaulting bus patron). [8] § 768.28(5) provides: The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period prior to judgment....

...Compliance with the Florida Notice of Claim Procedures 30 Appellant's first claim is that the district court erred in failing to grant the defendant's motion for a directed verdict. In that motion the defendant alleged the plaintiff had failed to prove compliance with the Florida notice of claim provisions. Section 768.28 of the Florida Code contains a limited waiver of sovereign immunity applicable to the appellee's suit against Sheriff McMillian....

...im in writing.... The failure of the Department of Insurance or the appropriate agency to make final disposition of a claim within 6 months after it is filed shall be deemed a final denial of the claim for purposes of this section. 32 Fla.Stat. Sec. 768.28(6)(a) (1986), amended, 1988 Fla.Laws Ch....

...4 The district court denied this motion without filing an opinion. The case then proceeded to trial. At the close of the plaintiffs's case and at the close of all evidence, the defendant moved for a directed verdict alleging that noncompliance with section 768.28(6) mandated judgment in his favor....

...The defendant argues that because the plaintiff did not wait the required length of time before filing suit, she could not prove compliance with the statute at trial. 37 To resolve the issues raised by this defense, it is necessary to first examine section 768.28(6) as interpreted by this court and the Florida courts....

...We begin with an analysis of our decisions interpreting the provision. 5 38 This court has considered the Florida notice of claim provision on two prior occasions. Both of these cases were relied on in support of the plaintiff's motion to strike the section 768.28 defense....

...of an amended complaint or to dismiss the original complaint." Lundgren, 814 F.2d at 606 . Under federal law, this decision is committed to the discretion of the district court. Id. The court recognized that under some instances the requirements of section 768.28(6) "may well be substantive," but found it unnecessary to decide the issue....

...The Lundgren court hinted that if it were to apply Florida law, it would reach the same result. 8 Id. at 606-607 . 40 In addition to the argument regarding the notice provision, the defendants in Lundgren argued that the district court erred in allowing the plaintiff to reopen her case to prove compliance with section 768.28(6)....

...ich gives the district court the discretion to make the decision whether to allow a party to reopen his case. Id. at 607 . Finally, the court rejected the state law basis of the defendant's claim. 9 41 In Fitzgerald v. McDaniel, this court addressed section 768.28(6) for a second time....

...I note that if the defendants were able to articulate some actual prejudice that resulted from the plaintiff's failure to wait six months before filing suit, I would be more inclined to dismiss the case and require the plaintiff to comply strictly with the language of Section 768.28(6)....

...The approach taken by the court in Lundgren--as a matter of federal law--has been followed by several Florida state courts. See Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1023 (Fla.1979) (when complaint fails to allege compliance with section 768.28, court should dismiss claims without prejudice and grant leave to amend); Lee v....

...While the mootness holding that forms the basis of Fitzgerald has no direct support in the Florida cases, the approach taken is consistent with the cases noted above. Both federal courts in Fitzgerald relied on the Askew opinion. In Askew the court held that a plaintiff complies with section 768.28 even if notice is filed after the original complaint as long as the three year period for giving notice has not expired....

...The Hardcastle court reversed the entry of judgment without prejudice holding: 48 We think the trial judge erred in allowing Mohr to refile his complaint.... Mohr counters that the trial judge properly dismissed his action without prejudice because time remained for him to comply with section 768.28(6)....

...The defendant points to the emphasized language as supporting his argument for dismissal with prejudice. 51 We find Hardcastle distinguishable from the instant case. 10 In that case the plaintiff rested his case without presenting any evidence of compliance with section 768.28(6)....

....2d at 875, the plaintiffs in this case removed the issue of compliance with the statute by successfully having the defense stricken before trial. The Hardcastle court explicitly distinguished the Florida cases where the dispute over compliance with section 768.28(6) was adjudicated in pre-trial proceedings....

...The Supreme Court passage quoted above merely noted that these types of provisions are substantive in nature. The Court did not consider the question presented in this case--how and when a plaintiff in federal court must show that he has complied with a state statute. The requirements of section 768.28(6) are an element in the cause of action against certain Florida government agencies....

...uld apply when the defendant has failed to allege any of the elements that comprise a state cause of action. In such cases, it is federal law that determines the resolution of such a complaint. While the Lundgren court's pre-Felder "suggestion" that section 768.28 compliance may be required before a federal court can enter judgment for the plaintiff is likely a "prerequisite" to recovery after Felder, we see nothing in Felder that would mandate consideration of classic procedural requirements su...

...legislature makes an appropriation for the remainder of the judgment. This contention is also the subject of the defendant's second request for certification to the Florida Supreme court. 70 The defendant's argument is based on Florida Statutes Sec. 768.28(5). 17 That section contains an explicit waiver of sovereign immunity up to $100,000 per plaintiff or $200,000 per incident. Under the act, judgments in excess of the limits in section 768.28(5) require a legislative appropriation....

...rage to the participating Sheriffs for amounts in excess of $100,000 with a $1,000,000 policy limit. The question presented in this case is whether this insurance arrangement constitutes a sovereign immunity waiver apart from general waiver found in section 768.28(5)....

...Board of County Commissioners of Citrus County, 493 So.2d 1002, 1004 (Fla.1986), the court held that section 286.28(2) constituted a waiver of sovereign immunity up to the limits of the policy purchased pursuant to the provision. This waiver of immunity is a waiver that is in addition to the waiver in section 768.28(5)....

...f immunity doctrine of Avallone, and therefore, the Avallone waiver is not applicable in this case. 76 The record confirms that the defendant is a member of the Florida Sheriffs' Self-Insurance Fund "the Sheriffs' Fund", a risk pool authorized under 768.28(13)....

...d. Id. at 1057-58 . If insurance is purchased, the insurance company cannot urge as a defense the state agency's immunity. If insurance is not purchased and the agency self-insures, as was the case in Hillsborough Hospital, the agency is entitled to section 768.28(5) immunity....

...[purchased] from an insurer." 546 So.2d at 1058 . While the self-insurance pool in Hillsborough Hospital did not meet this test, the insurance purchased by the Sheriffs' Fund from a syndicate of insurers does. Finally, we note that the provisions of section 768.28(13) at issue in Hillsborough Hospital only authorize a self-insurance pool to pay claims "which [the agency] may be liable to pay pursuant" to $100,000 waiver of sovereign immunity in section 768.28. Therefore, because the insurance purchased by the Sheriffs' Fund only covers liabilities in excess of the section 768.28 waiver, the authority to purchase this insurance cannot come from section 768.28(13), and Hillsborough Hospital, therefore, can not be applicable....

...The holding in Hillsborough Hospital prevents an individual plaintiff from recovering more than $100,000 from the money in this fund. The Sheriff's Self-Insurance Fund, however, has taken some of the moneys in this fund and purchased an insurance policy for liabilities in excess of the $100,000 waiver found in section 768.28(5)....

...that the defendant was sued in both his official and individual capacities. The record does not indicate the basis for this order 3 The 1988 amendments concerned matters not relevant to this appeal. In any event, amendments to the immunity waiver in section 768.28 have not been applied retroactively....

...question on the basis of federal procedure. This argument is without merit. While Fitzgerald cites to Lundgren, it does so in the context of immunity from suit on federal claims. See Fitzgerald, 833 F.2d at 1520 . That Fitzgerald's interpretation of section 768.28(6) is based entirely on state law is evident from the fact that the court's discussion of the issue only cites state authority. See id. at 1519-20 12 We note that this holding is based upon our conclusion that state law allows the plaintiff to meet her burden under section 768.28(6) if the initial non-compliance with the section is cured before trial....

...However, a judgment or judgments may be claimed and rendered in excess of [$100,000] and that portion of the judgment that exceeds [$100,000] may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature. Fla.Stat.Ann. Sec. 768.28(5) (West 1986), amended, 1987 Fla.Laws Ch....

...not be deemed to have waived any defense of sovereign immunity or to have increased the limits of its liability as a result of its obtaining insurance coverage for tortious acts in excess of the $100,000 ... waiver provided above. Fla.Stat.Ann. Sec. 768.28(5) (West Supp.1989) (emphasis added)....

...20 The district court of appeals had held that because of the similarity between section 286.28 and section 30.55, "the reasoning of Avallone is applicable" to insurance purchased under the authority of section 30.55. 509 So.2d 1213, 1219 (1987) 21 Florida Statutes Sec. 768.28(13) authorized this practice....

...provide other means of protection against tort claims, any charter provisions or laws to the contrary notwithstanding. Sheriffs may join together as self-insurers to provide coverage for police professional liability claims only. Fla.Stat.Ann. Sec. 768.28(13) (West 1986) (amended in a manner not relevant effective July 1, 1986 and July 6, 1989 and redesignated Fla.Stat.Ann. Sec. 768.28(14) (West Supp.1990))....

...September 9, 1987. *1122 William F. Seitz of James C. Brady, P.A., Fort Lauderdale, for appellant. Robert H. Schwartz of Gunther & Whitaker, P.A., Fort Lauderdale, for appellees. DOWNEY, Judge. The appellate question presented in this case is whether section 768.28(9)(a), Florida Statutes (Supp....

...on which occurred during the arrest and incarceration of Richardson. Pursuant to motion, the trial court dismissed counts I and II of Richardson's amended complaint because the court was of the opinion that a municipality cannot ever be liable under section 768.28(9)(a) for intentional torts committed by its police officers, including specifically use of excessive force and false arrest....

...Department with liability for negligence, false imprisonment, unlawful search and invasion of privacy, arising out of a stop and search and ultimate alleged sexual abuse of a minor by a uniformed officer of the Department. As the court pointed out, section 768.28(1) provides for the waiver of sovereign immunity for liability for the negligent or wrongful acts or omissions of its officers and employees while acting within the scope of their office or employment under circumstances in which the s...

...If the multiple parties cannot reach agreement as to their arbitrator, each of the multiple parties shall submit a nominee.... (Emphasis added.) Furthermore, where the Legislature has intended to limit claimants' damages in the aggregate in other contexts, they have done so explicitly. For example, in section 768.28(5), a provision of Florida's Wrongful Death Act which limits damage claims against the state, the Legislature limited to $200,000 the State's liability for damages arising out of the same incident. Section 768.28(5) states in pertinent part: Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $100,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivision arising out of the same incident or occurrence, exceeds the sum of $200,000. § 768.28(5), Fla....

..., the wife was entitled to a new trial to determine the children's damages); Alamo Rent-A-Car, Inc. v. Clay, 586 So.2d 394 (Fla. 3d DCA 1991) (finding that an award of $800,000 to each surviving child was not excessive). Likewise, cases interpreting section 768.28, which waives Florida's sovereign immunity in tort actions, have held that the several claims of all persons entitled to recover for a wrongful death are separate and should be calculated individually....

...the husband; therefore, the wife's action for loss of consortium was distinct from that of the estate and the $100,000 limit was for each claimant); State Dep't of Transp. v. Knowles, 388 So.2d 1045 (Fla. 2d DCA 1980) (holding that the limitation of section 768.28(5) does not apply to separate claims by different individuals in the same lawsuit), aff'd, 402 So.2d 1155 (Fla.1981); State Board of Regents v....

...The remaining three questions relate to sovereign immunity. The second question asks whether, given that the Kissimmee Utility Authority, a municipal agency, contractually agreed to indemnify a private party, the agreement is controlled by the restrictions on waiver of sovereign immunity found in section 768.28, Florida Statutes (1997)....

...sed upon the crossing agreement between KUA and CSX, which included an indemnification provision. KUA and FMPA argued that the indemnity provision is void and unenforceable because KUA could not waive its sovereign immunity beyond that authorized by section 768.28, Florida Statutes (1997), absent specific legislative authority, and because under section 725.06, Florida Statutes (1997), the terms of the provision failed to meet the requirements for such provisions when contained in construction contracts....

...The Eleventh Circuit noted the following principles of sovereign immunity under Florida law: sovereign immunity applies to actions where the state is a party, unless the Legislature waives this immunity by general law; in the torts context, the Legislature has authorized a limited waiver of state sovereign immunity through section 768.28; and in Pan-Am Tobacco Corp....

...Department of Corrections, 471 So.2d 4, 5 (Fla.1984), this Court held that these statutory limitations do not apply in actions brought against the state for breach of contract. Nat'l R.R. Passenger Corp., 286 F.3d at 1264-65. KUA and FMPA argued that the indemnification provision goes far beyond what is authorized by section 768.28; CSX and Amtrak argued that section 768.28 is not applicable in this action, which involves a breach of contract....

...Accordingly, the Eleventh Circuit certified three questions of law to this Court for review: GIVEN THAT KISSIMMEE UTILITY AUTHORITY, A MUNICIPAL AGENCY UNDER FLORIDA LAW, AGREED BY CONTRACT TO INDEMNIFY A PRIVATE PARTY, IS THE AGREEMENT CONTROLLED BY THE RESTRICTIONS ON WAIVER OF SOVEREIGN IMMUNITY FOUND IN FLORIDA STATUTE § 768.28? IS THE INDEMNIFICATION AGREEMENT INSTEAD CONTROLLED BY THE RULE FOR BREACH-OF-CONTRACT ACTIONS ENUNCIATED IN PAN-AM TOBACCO CORP....

...Moreover, waiver will not be found as a product of inference or implication. Spangler, 106 So.2d at 424. Pursuant to its constitutional authority, the Legislature authorized a limited waiver of state sovereign immunity in tort for personal injury, wrongful death, and loss or injury of property through the enactment of section 768.28 in 1973....

...on Judiciary, HB 315 and 376 (1973), Staff Summary (on file in State Archives) ("Municipalities do not have this immunity [from tort liability]."). However, municipalities were "unequivocally included within the definition of `state agencies or subdivisions'" in section 768.28. Commercial Carrier Corp., 371 So.2d at 1016; see also ch. 77-86, at 161, Laws of Fla. ("Whereas, in enacting section 768.28, Florida Statutes, the Legislature clearly intended to make the state, the counties, and the municipalities liable for tort claims in the same manner and to the same extent as a private individual under like circumstances.") (emphasis added); Op. Att'y Gen. Fla. 77-241 (1977) (explaining that the limitations of liability established by section 768.28 apply to all agencies and subdivisions of the state, including municipalities, regardless of whether those agencies and subdivisions possessed sovereign immunity prior to July 1, 1974). Section 768.28(1), Florida Statutes (1997), provides in pertinent part: In accordance with s....

...nce with the general laws of this state, may be prosecuted subject to the limitations specified in this act. (Emphasis added.) Additionally, subsection (5) of the statute limits state liability to $100,000 per claimant and $200,000 per accident. Id. § 768.28(5)....

...It is under this paragraph that Amtrak claims KUA is required to indemnify it as well. In the second certified question, the Eleventh Circuit asks if the crossing agreement between KUA and CSX is controlled by the restrictions on the waiver of sovereign immunity imposed by section 768.28. Under the statute, immunity is only waived for "liability for torts" 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." § 768.28(1), Fla. Stat. (1997). The statute also limits tort claim judgments against the state, its agencies, or subdivisions to $100,000 to any one person and $200,000 per incident. § 768.28(5), Fla....

...In the agreement at issue here, KUA agreed to assume responsibility for the negligence of CSX and its employees and for that of companies affiliated with CSX. Further, the provision placed no limit on the amount KUA has to pay out per claimant and per accident. CSX and Amtrak argue that section 768.28 is not applicable here because the statute only governs tort actions and the instant case involves a breach of contract in that KUA did not fulfill its contractual obligation in the crossing agreement to defend and hold harmless CSX and Amtrak. KUA and FMPA cite a number of opinions issued by the Attorney General to support their argument that the indemnification agreement between KUA and CSX is controlled by the restrictions on the waiver of sovereign immunity in section 768.28. In the opinions cited, the Attorney General concluded that a state agency or subdivision of the state may not enter a contract agreeing to indemnify another party that would extend the government's liability beyond the limits established in section 768.28. See, e.g., Op. Att'y Gen. Fla.2000-22 (2000) (advising county that it may not agree to indemnify another party to a contract or alter the state's waiver of sovereign immunity beyond the limits established in section 768.28); Op....

...99-56 (1999) (advising that Florida National Guard may not enter into a land use agreement that contains an indemnification agreement because authority to enter into contract does not encompass power to waive state's sovereign immunity beyond that provided in section 768.28); Op. Att'y Gen. Fla. 90-21 (1990) (advising that Department of Corrections is not authorized to alter by contract the state's waiver of immunity in tort provided in section 768.28)....

...ed to careful consideration and generally should be regarded as highly persuasive. See State v. Family Bank of Hallandale, 623 So.2d 474, 478 (Fla.1993). However, the Attorney General opinions cited by KUA and FMPA have ignored the plain language of section 768.28 and do not *474 apply under these circumstances, where the contracting party is a municipality, not a state agency. Thus, we do not find the Attorney General opinions to be "highly persuasive" in this case. By its plain language, section 768.28 only applies to "actions at law against the state or any of its agencies or subdivisions to recover damages in tort. " § 768.28(1), Fla. Stat. (1997) (emphasis added); see also Provident Mgmt. Corp. v. City of Treasure Island, 796 So.2d 481, 486 (Fla.2001) (concluding that section 768.28 "applies only when the governmental entity is being sued in tort"; thus, limitations of section 768.28 did not apply to restrict award of damages against governmental entity for the erroneous issuance of a temporary injunction)....

...In fact, although KUA did not need an express grant of authority to execute the crossing agreement, it had one. The Interlocal Cooperation Act expressly authorized public agencies to contract with private parties regarding electrical projects. Specifically, the statute states: The limitations on waiver in the provisions of s. 768.28 or any other law to the contrary notwithstanding, the Legislature, in accordance with s....

...nt. Because of the historical differences between the sovereign immunity of the state and that of municipalities, we need not decide in this case whether the state may also contractually waive its sovereign immunity. The partial dissent asserts that section 768.28 should apply because otherwise a state agency could circumvent the policies underlying sovereign immunity, and the restrictions on waiving such immunity, by including an indemnity provision in a contract....

...sue here), it ignores the broad powers conferred on municipalities to "exercise any power for municipal purposes, except when expressly prohibited by law." § 166.021(1), Fla. Stat. (1993) (emphasis added). It also ignores that, unlike the effect of section 768.28 on the immunity of the state, the statute actually granted partial immunity to municipalities that did not previously exist....

...As to tort actions, the rule is universal and unqualified unless relaxed by the State...."). The 1868 Constitution granted the Legislature the power to waive it. See id. (citing art. IV, § 19, Fla. Const. (1868) (now art. X, § 13, Fla. Const.)). However, the Legislature declined to act until 1973, when it adopted section 768.28. See Ch. 73-313, Laws of Fla. In contrast to the state, municipalities never enjoyed total immunity from suit. See Cauley, 403 So.2d at 381-83 (recognizing that state sovereign immunity "remained in full force until section 768.28's enactment" while municipal sovereign immunity became subject to many exceptions before the waiver statute); Woodford v....

...19 (1850) (distinguishing precedent from the United States and England and holding that an action for trespass may lie against a municipal corporation); see also Cauley, 403 So.2d at 382-84 (outlining the development of municipal sovereign immunity law in Florida from Fortune through the enactment of section 768.28). Before section 768.28, questions of whether municipal sovereign immunity applied were analyzed as follows: 1) as to those municipal activities which fall in the category of proprietary functions a municipality has the same tort liability as a private corpor...

...City of West Palm Beach, 321 So.2d 78, 80 (Fla. 4th DCA 1975)) (citations omitted); see also Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1015 (Fla.1979) (reviewing the history of municipal sovereign immunity and recognizing that before section 768.28 a municipality would be held liable for torts committed in the performance of proprietary acts). Essentially, the state and its agencies, on the one hand, and municipalities, on the other, arrived at section 768.28 from opposite directions: the state from a status of near-total immunity; and municipalities from a status of near-nonexistent immunity....

...In fact, when the statute was first enacted, its effect on municipalities was unclear. In 1976, the Attorney General issued an opinion that "municipalities possessed no aspect of the state's sovereign immunity from tort liability upon which the waiver contained in s. 768.28, and the limitations specified therein, could operate." Op. Att'y Gen. Fla. 76-41 (1976). In other words, the Attorney General opined that section 768.28, including its limitation on the amount of damages, did not apply to municipalities because they did not enjoy any immunity from tort suits that could be waived. The Legislature quickly amended section 768.28 by adding the following language in subsection 5: "The limitations of liability set forth in this subsection shall apply to the state and its agencies and subdivisions whether or not the state or its agencies or subdivisions possessed sovereign immunity prior to July 1, 1974." Ch. 77-86, § 1, Laws of Fla. Section 768.28, therefore, affected the State and counties differently than it did municipalities. As to the State, the statute waived its sovereign immunity up to specified limits. As to municipalities, the statute granted them immunity from judgments above those limits. Section 768.28 nullified the common law affecting both the state and municipalities, and therefore must be strictly construed....

...*479 Section 163.01(15)(k), Florida Statutes (1993), is relevant to this issue. That section waives sovereign immunity for "[o]wnership, operation, or any other activity set forth in sub-subparagraph (b)2.d. with relation to any electric project." Because section 768.28 must be strictly construed against granting immunity to KUA, we must read section 163.01(15)(k), if the language allows such an interpretation, as allowing KUA to execute an indemnification agreement. There is no question that KUA would have had authority to sign such an agreement at common law, and nothing in either section 768.28 or section 163.01(15)(k) explicitly prohibits KUA from doing so. Therefore, strictly construing the immunity afforded to KUA in section 768.28, KUA had the authority to indemnify private parties for its own negligence as well as theirs. My conclusion that section 768.28 does not prohibit municipalities from indemnifying private parties is confirmed by the lack of any effect on state funds of a judgment against municipalities. Section 768.28 limits damages amounts because the state will have to pay any judgments....

...Here, any judgment against KUA will be paid from KUA funds. As KUA acknowledges, the state will not pay a dime. Therefore, the state's interest in whether KUA should be allowed to indemnify private parties is minimal. [7] CONCLUSION As the majority holds, section 768.28 does not apply because KUA's indemnification was contained in a contract, which is outside the parameters of section 768.28. Even if 768.28 does apply, however, given the lack of sovereign immunity in the common law for municipalities committing torts, the statute must be strictly construed against a finding of immunity as applied to municipalities....

...The Eleventh Circuit asked whether the indemnification provision in the crossing agreement between Kissimmee Utility Authority (KUA), a municipal utility agency, and CSX Transportation (CSX) is controlled by the restrictions on the waiver of sovereign immunity found in section 768.28....

...h-of-contract actions which was established by this Court in Pan-Am Tobacco Corp. v. Department of Corrections, 471 So.2d 4 (Fla.1984). In light of my answer to the second certified question, I would answer this question negatively. *480 By enacting section 768.28, the Florida Legislature has exercised its constitutional authority to waive the state's sovereign immunity for liability in tort, but "only to the extent specified in [the statute]." § 768.28(1), Fla....

...The statute provides that the damages or injuries for which the state waives its immunity are those "caused by the negligent or wrongful act or omission of any employee of the agency or subdivision [of the state] while acting within the scope of the employee's office or employment. " Id. § 768.28(1) (emphasis added). Further, the state's liability in such actions is limited to $100,000 per claimant and $200,000 per accident. Id. § 768.28(5)....

...r her employment. And even in these circumstances, the amount of the state's monetary liability is limited. The indemnity provision in the crossing agreement between KUA and CSX goes far beyond the statutory waiver of sovereign immunity contained in section 768.28....

...Here, KUA has agreed to assume responsibility for the negligence of CSX and its employees and for that of companies affiliated with CSX. Further, the provision does not limit the amount KUA has to pay out per claimant or per accident as specified in section 768.28(5). The majority concludes that section 768.28 is not applicable here as it only governs tort recovery actions against a governmental entity, whereas the instant case involves a contractual obligation....

...ates to tort liability. Under the majority's reasoning, a governmental entity can do by contract what it does not have the authority to otherwise do, i.e., waive sovereign immunity for tort liability beyond the limits specified by the Legislature in section 768.28....

...of Florida for the management of South Beach. This indemnification agreement required the City to reimburse the State for any liability arising solely from ownership of the beach. The State argued that the indemnification provision was prohibited by section 768.28(18), [8] which prohibits one government entity from indemnifying a second government entity for the second's negligence. This Court concluded that the plain language of the statute did not prohibit this agreement whereby the City agreed to indemnify the State for the City's own negligence. Id. at 77. The Court noted that this interpretation of section 768.28(18) was consistent with the common law right of indemnification in that a non-negligent party who is vicariously liable for the tortious actions of another can seek indemnification from the tortfeasor....

...lar express authorization? It should not. Accordingly, I conclude that the contractual provision whereby KUA agreed to indemnify CSX and its affiliates for tort liability is controlled by the restrictions on the waiver of sovereign immunity found in section 768.28....

...Const.; Manatee County v. Town of Longboat Key, 365 So.2d 143, 147 (Fla.1978). The power of a state agency or subdivision to enter into a contract with private parties does not encompass the power to extend the government's liability beyond the limits established in section 768.28. See, e.g., Op. Att'y Gen. Fla.2000-22 (2000) (advising county that it may not agree to *482 indemnify another party to a contract or alter the state's waiver of sovereign immunity beyond the limits established in section 768.28); Op....

...99-56 (1999) (advising that Florida National Guard may not enter into a land use agreement that contains an indemnification agreement because authority to enter into contract does not encompass power to waive state's sovereign immunity beyond that provided in section 768.28); Op. Att'y Gen. Fla. 90-21 (1990) (advising that Department of Corrections is not authorized to alter by contract the states waiver of immunity in tort provided in section 768.28)....

...That brief, however, fails to recognize the historical distinction in the law between the sovereign immunity of the state and that of municipalities. In this case, the agreement was solely between the KUA and certain railroad companies. Therefore, the State's concerns do not apply. [8] This provision was renumbered as section 768.28(19) when the Legislature amended the statute in 2003....

...Kohn has failed in four attempts to cure the defects in his complaint correctly urged by the defendants below, including: a) the city and county are rendered immune from liability because the alleged common law torts of their employees are claimed to have been committed with malice and bad faith, see § 768.28(9)(a), Fla....

...On the same day that we issued our decision in Citizens Property Insurance, we also issued our decision in Keck v. Eminisor, 104 So.3d 359 , a related case involving sovereign immunity and certiora-ri review. In that case, the defendant asserted that, pursuant to section 768.28(9)(a), Florida Statutes (2005), he was entitled to sovereign immunity for actions taken within the scope of his employment as an employee of a corporation acting primarily as an instrumentality of a State agency....

...On review, this Court held that, based on important policy reasons similar to those present in the case of Tucker v. Resha, 648 So.2d 1187, 1189-90 (Fla.1994), Keck was entitled to interlocutory review of an order denying summary judgment based on a claim of individual immunity under section 768.28(9)(a), where the issue turned on a question of law. Keck, 104 So.3d at 366 . In Keck , we emphasized that the applicable statute, section 768.28(9)(a), specifically entitled a governmental employee not to “be named as a party defendant” for acts within the scope of his or her employment. Id. The Court reasoned that “if a defendant who is entitled to the immunity granted in section 768.28(9)(a) is erroneously named as a party defendant and is required to stand trial, that individual has effectively lost the right bestowed by statute to be protected from even being named as a defendant.” Id....

...CANADY, J., concurs in result only with an opinion, in which POLSTON, C.J., concurs. . Based on this certified direct conflict, we have jurisdiction. See art. V, § 3(b)(4), Fla. Const. . Rodriguez also initially claimed that the police delayed providing prompt medical attention, a claim that he later abandoned. .In fact, section 768.28(9)(a), Florida Statutes (2008), entitles an individual employed by a governmental entity to be immune from suit unless the employee has acted "in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” ....

...Williams, 575 So.2d at 694. On remand, appellees moved for summary judgment and the trial court granted the motion, concluding that the doctrine of sovereign immunity bars appellants from recovering on their claim for outrageous infliction of emotional distress. Section 768.28(9), Florida Statutes (1985), defines sovereign immunity as follows: 768.28 Waiver of sovereign immunity in tort actions; recovery limits; limitation of attorney fees; statute of limitations; exclusions....

...of an officer, employee, or agent committed while acting outside the course and scope of his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Section 768.28(9)(a), Fla....

...Observing that courts in other states apparently support the view that the terms "reckless" and "wanton" are interchangeable, see Bryant, 399 So.2d at 423 n. 4, the court construed the phrase "gross and reckless" to come within the ambit of the phrase "wanton and willful" misconduct as used in section 768.28(9), the sovereign immunity statute....

...Such a redefinition would be contrary to established precedent. [2] Thus, we conclude that, if the jury found that the appellees' conduct supported a claim for outrageous infliction of emotional distress by reckless conduct, this conduct would at least constitute willful and wanton conduct under section 768.28(9); therefore, the doctrine of sovereign immunity would bar the instant action from being maintained against appellees....

...2d DCA 2004), in which the Second District Court of Appeal certified the following question as a matter of great public importance: ARE CLAIMS FILED PURSUANT TO THE FLORIDA CIVIL RIGHTS ACT OF 1992 TORT CLAIMS AND THUS SUBJECT TO THE PRESUIT NOTICE REQUIREMENTS OF SECTION 768.28(6), FLORIDA STATUTES (2003)? Id. at 692. We have jurisdiction. [1] We rephrase the question as follows: ARE CLAIMS FILED PURSUANT TO THE FLORIDA CIVIL RIGHTS ACT OF 1992 SUBJECT TO THE PRESUIT NOTICE REQUIREMENTS *1076 OF SECTION 768.28(6), FLORIDA STATUTES (2003)? We answer the rephrased question in the negative and hold that claims filed pursuant to the Florida Civil Rights Act of 1992 are not subject to the presuit notice requirements of section 768.28(6)....

...In her complaint, filed December 19, 2001, Maggio alleged that the DLES had unlawfully discriminated against her on the basis of her handicap in violation of the Act. The DLES filed a motion to dismiss for Maggio's noncompliance with the statutory presuit notice requirements of section 768.28(6). The trial court found that Maggio's claim was a tort claim, and thus subject to the presuit notice requirements delineated in section 768.28(6)....

...endent of the employment contract. Maggio, 869 So.2d at 691. However, because there was no controlling precedent specifically holding that disability discrimination claims brought pursuant to the Act are subject to the presuit notice requirements of section 768.28(6), the Second District certified the question to this Court as a matter of great public importance. II. ANALYSIS To answer the rephrased question, we must determine whether the Legislature intended claims filed under the Florida Civil Rights Act to be subject to the presuit notice requirements of section 768.28(6)....

...See § 760.11(1), Fla. Stat. (2003). [3] Further, although a claimant who brings a civil action may receive compensatory damages, section 760.11(5) expressly states that the total recovery against the State cannot "exceed the limitation as set forth in s. 768.28(5)." The question in this case is whether the Legislature intended a claimant who is suing a state agency for a civil rights violation to comply not only with the administrative presuit requirements of section 760.11, but also with the notice requirements of section 768.28(6). Section 768.28 is titled, "Waiver of sovereign immunity in tort actions; recovery limits; limitation on attorney fees; statute of limitations; *1078 exclusions; indemnification; risk management programs." Section 768.28(6)(a) sets forth the presuit notice procedures that a plaintiff must follow in order to benefit from the State's waiver of sovereign immunity....

...eking contribution has either discharged the common liability by payment or agreed, while the action is pending against her or him, to discharge the common liability. DLES asserts that the Florida Civil Rights Act should be read in pari materia with section 768.28 to impose both sets of presuit requirements....

...s civil rights violations regardless of whether the State is a named defendant. First, the State's waiver of sovereign immunity for civil rights claims derives from the Florida Civil Rights Act, not from the waiver of sovereign immunity contained in section 768.28....

...Second, the inclusion of detailed presuit requirements within the Act, which serve to place the State on notice of the alleged violation, suggests that the Legislature did not intend to require compliance with an additional unreferenced notice provision. And third, the express reference in the Act to section 768.28(5), but not to section 768.28(6), supports the conclusion that the Legislature did not intend that the provisions of section 768.28(6) apply to the Act. We discuss each of these aspects of the Act in turn. First, the Florida Civil Rights Act contains a waiver of sovereign immunity independent of the waiver contained in section 768.28....

...Brummer, 766 So.2d 1107, 1108 (Fla. 3d DCA 2000) (determining that the Act "evidence[s] legislative intent that civil actions ... under [the Act] be prosecuted against the state"); cf. Hill v. Dep't of Corrections, 513 So.2d 129, 133 (Fla.1987) (concluding that section 768.28 did not waive the State's sovereign immunity for federal civil rights claims brought pursuant to section 1983 of Title 42, United States Code)....

...§ 760.11(4), Fla. Stat. (2003). The two procedures set forth in subsection (4) are the exclusive procedures available to the claimant pursuant to the Act. See id. Neither of these procedures incorporates the presuit notice requirements contained in section 768.28(6)....

...The notice and investigation must both take place before the claimant is even permitted to file a lawsuit. Given these specific presuit requirements, we see no basis for concluding that the Legislature also intended a civil rights claimant to be bound by the notice provisions of section 768.28(6), which is a broader provision applying to tort actions that requires notice within three years of the date the claim accrues....

...Although the two statutory notice requirements do not expressly conflict, we conclude that the existence of the detailed notice requirements in the Act, which apply to a specific cause of action, should control over the general notice provisions in section 768.28(6). Third, and perhaps most telling, it is clear from the express reference to section 768.28(5) that the Legislature was aware of the provisions of section 768.28 when it drafted the Florida Civil Rights Act. The DLES suggests that the reference to section 768.28(5) in the Act demonstrates a legislative intent to apply all of the provisions in section 768.28, namely subsection (6), to the Act. We discern precisely the opposite conclusion by the Legislature's reference to subsection (5). If the Legislature intended all the provisions of section 768.28 to apply to the Florida Civil Rights Act, there would have been no reason to refer only to subsection (5). In fact, any reference to subsection (5) would have been superfluous. By specifically referring only to subsection (5), the Legislature has evidenced its intent to apply only the damages limitations of section 768.28 to the Act....

...Singletary, 700 So.2d 1220, 1221 (Fla.1997) ("[W]hen a law expressly describes the particular situation in which something should apply, an inference must be drawn that what is not included by specific reference was intended to be omitted or excluded."). The express reference to section 768.28(5) in the Act, considered together with the Legislature's failure to refer to section 768.28(6), the Act's independent waiver of sovereign immunity, and the detailed presuit requirements contained in the Act, support a construction that section 768.28(6) does not apply to actions brought under the Act. We thus hold that when the Legislature enacted the Florida Civil Rights Act, it did not intend claimants to comply with the presuit notice requirements of section 768.28(6)....

...We distinguish Scott II and Bearelly, the two cases relied on by the Second District. See Maggio, 869 So.2d at 691-92. The circuit court in Bearelly found that an action filed pursuant to the Florida Civil Rights Act is a tort claim that is subject to section 768.28(6) based on the decision reached in Scott II....

...vailable because the claim was tortious in nature. See 572 So.2d at 903. However, *1081 neither of these cases involved the issue of whether a retaliatory discharge claim brought under section 440.205 is subject to the presuit notice requirements of section 768.28....

...[4] Further, in contrast to the Florida Civil Rights Act, the retaliatory discharge provision of the Workers' Compensation Law has no presuit notice requirements, no designated forum for adjudicating claims, no provision for the type of relief to which an aggrieved party is entitled, and no reference to any portion of section 768.28....

...See § 440.205, Fla. Stat. (2003). Therefore, we conclude that the Second District erred in relying on the reasoning in Bearelly and cases that interpreted section 440.205 to hold that claims filed under the Florida Civil Rights Act are subject to section 768.28(6). Finally, the Second District reasoned that the key to determining whether section 768.28(6) applied was whether the statutory cause of action for a civil rights violation could be considered a "tort." However, we have previously stated that the "sole purpose [of the enactment of section 768.28] was to waive [sovereign] immunity[,] which [previously] prevented recovery for breaches of existing common law duties of care." Trianon Park Condominium Ass'n, Inc. v. City of Hialeah, 468 So.2d 912, 917 (Fla.1985) (emphasis added); see also Hill, 513 So.2d at 133 (agreeing with a federal court's conclusion that section 768.28 "was limited to traditional torts; specifically, those in which the state would be liable if it were a private person"). Under this narrow reading, only those claimants bringing common law tort claims would be subject to the presuit notice requirements of section 768.28(6). However, because we have determined that the Legislature did not intend for civil rights claimants to be required to comply with the presuit notice requirements of section 768.28(6) in addition to the presuit requirements of the Act itself, we decline to reach the broader issue of whether the notice requirements of section 768.28(6) are applicable only to common law torts. [5] III. CONCLUSION For the foregoing reasons, we conclude that claims filed under the Florida *1082 Civil Rights Act are not subject to the presuit notice requirements of section 768.28(6). Accordingly, we answer the rephrased question in the negative and quash the Second District's decision. It is so ordered. WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur. NOTES [1] See art. V, § 3(b)(4), Fla. Const. [2] Section 768.28(6)(a), Florida Statutes (2003), provides in pertinent part that "[a]n action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim ......

...[4] We recognize that the First and Third District Courts of Appeal have concluded that because a retaliatory discharge claim brought pursuant to section 440.205 is tortious in nature under Scott I, it is subject to the presuit notice requirements of section 768.28....

...We do not determine the correctness of these decisions because that issue is not before us. [5] We also reject as inapposite Menendez v. North Broward Hospital District, 537 So.2d 89 (Fla. 1988), on which the DLES relies for the broad proposition that when the State is the defendant, the requirements of section 768.28(6) always apply. The DLES asserts that the existence of the presuit requirements in the Act is irrelevant in determining whether section 768.28(6) applies because under Menendez, a claimant bringing a medical malpractice claim is required to comply with section 768.28(6), despite the fact that section 766.106, Florida Statutes (2004), also provides presuit procedures for such claims. However, the issue in Menendez was whether the requirements of section 768.28(6) could be waived, not whether that section was applicable to medical malpractice claims....

...ce action. See ch. 85-175, § 14, Laws of Fla. Moreover, unlike causes of action that are solely the creature of statute, medical malpractice actions existed as common law torts and thus were covered under the general waiver of sovereign immunity in section 768.28(6).

...The other facet of the case is found in the claim against the State of Florida and its agency, Game and Fresh Water Fish Commission. The accidental shooting and death of David T. Hutchins is alleged to have occurred on November 10, 1974. Suit was filed on September 15, 1976, without prior compliance with Section 768.28(6) F.S. Notice was not given the State until counsel's letter of January 24, 1977. The State's prior motions to dismiss the complaints apparently triggered counsel's late notice of claim. The trial judge held that the mandate of the statute (768.28(6)) denied the Circuit Court jurisdiction. His order of dismissal recites absence of jurisdiction of subject matter for the required notice of claim had not been given prior to institution of the suit. Prior to the effective date of F.S. 768.28(6) courts did not have subject matter jurisdiction of tort suits against the State and its agencies because they enjoyed sovereign immunity pursuant to Article X, Section 13, Florida Constitution. ( Circuit Court of Twelfth Judicial Circuit v. Department of Natural Resources, 339 So.2d 1113 (Fla. 1976)). However, by enacting F.S. 768.28 the legislature provided for waiver of sovereign immunity in tort actions. Therefore, pursuant to that statute, courts do now have subject matter jurisdiction to consider suits which fall within the parameters of the statute. F.S. 768.28(6) is analogous to Section 95.241, Florida Statutes 1973, now revised, which required a written notice of claim to be given a municipality within ninety days of the occurrence or discovery of certain injuries as a prerequisite to the maintenance of an action against the municipality for those injuries....

...1965), the Supreme Court held that a municipality may waive or be estopped to assert the benefit of claim notice statutes such as Section 95.241, Florida Statutes 1973. Under that rationale, it follows that under certain conditions, the state or its agencies might be deemed to have waived the claim notice requirements of 768.28(6)....

...this case, the trial court correctly dismissed the claim against the State and the Commission. We reach such result not because the trial court lacked subject matter jurisdiction of the claim but because appellant failed to plead a compliance with F.S. 768.28(6) which is in the nature of a condition precedent and which must be plead by appellant in order to state a cause of action. 25 Fla.Jur. Pleadings § 57, p. 222. The appellant contends that a wrongful death action is exempt from Section 768.28 Florida Statutes....

...This is a petition to review a decision of the Third District Court of Appeal reported as Department of Corrections v. Hill, 490 So.2d 118 (Fla. 3d DCA 1986). The district court certified the following question as one of great public importance: Has the State of Florida, pursuant to section 768.28, Florida Statutes (1983), waived its Eleventh Amendment and state common law immunity and consented to suits against the State and its agencies under 42 U.S.C....

...ies has not been abrogated by 42 U.S.C. § 1983. However, just as in cases involving the eleventh amendment, it is also necessary to consider whether there has been a waiver of sovereign immunity. Florida's statute on waiver of sovereign immunity is section 768.28, Florida Statutes, which provides, in pertinent part: (1) In accordance with s....

..., or agent committed while acting outside the course and scope of his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. The question of whether section 768.28 constituted a waiver of Florida's eleventh amendment immunity against suit in federal court under 42 U.S.C. § 1983 was addressed by the United States District Court for the Northern District of Florida in Shinholster v. Graham, 527 F. Supp. 1318 (N.D.Fla. 1981). After a complete analysis of section 768.28 and its legislative history, the court concluded: [T]he State of Florida has not statutorily waived its Eleventh Amendment immunity for itself, nor for any arms of the state, nor for its officers, employees or agents sued in their official capacities......

...at 1331-32. This issue was also considered on appeal by the United States Court of Appeals for the Eleventh Circuit in Gamble v. Florida Department of Health and Rehabilitative Services, 779 F.2d 1509 (11th Cir.1986). That court rejected the suggestion that section 768.28 represents a broad waiver of sovereign immunity, finding instead that the abrogation was limited to traditional torts; specifically, those in which the state would be liable if it were a private person....

...The court concluded: The waiver does not constitute consent to suit in federal court under § 1983... . [W]e note that the statute consistently refers to "tort action," persons "liable in tort," and the like without any mention that such terms include federal civil rights actions. We agree ... that § 768.28, when viewed alone, was intended to render the state and its agencies liable for damages for traditional torts under state law, but to exclude such liability for "constitutional torts." Id....

...plicable with respect to whether Florida has waived its common law immunity against civil rights actions filed in state courts. While Florida is at liberty to waive its immunity from section 1983 actions, it has not done so. The recovery ceilings in section 768.28 were intended to waive sovereign immunity for state tort actions, not federal civil rights actions commenced under section 1983....

...ad failed to 3 In the absence of bad faith or malicious purpose, Florida law provides an exclusive remedy against the relevant governmental entity for any injury caused by an officer acting in the course of his employment. Fla. Code § 768.28(9)(a)....

...the individual officers on the state battery claim. Under Florida law, an officer may not be held personally liable for any injury resulting from an act committed in the scope of his or her employment unless the officer acted with bad faith or with malicious purpose. Fla Code § 768.28(9)(a)....

...In order to determine whether the County 12 was liable for Prieto’s injuries, the jury needed to determine whether Officers Malgor and Marckioli committed battery in the course of their employment. Fla. Code § 768.28(9)(a)....

...Frankel of Goldberg, Rubinstein & Buckley, Fort Myers, for appellees. Jim Smith, Atty. Gen. and Richard A. Hixson, Asst. Atty. Gen., Tallahassee, for Attorney General of the State of Florida, amicus curiae. ENGLAND, Justice. This case brings us a familiar friend — section 768.28, Florida Statutes (1977), which waives sovereign immunity....

...e. Daniel Knowles had obtained a jury verdict for $70,000 against the Department of Transportation and one of its employees, Robert Gregg, for a motor vehicle mishap. The trial judge refused to enter a judgment against Gregg because he believed that section 768.28 provided state employees immunity from tort liability for merely negligent acts in the course of their employment....

...ld validly apply its grant of immunity for public employees to lawsuits then pending in the courts of Florida. Their principal argument is that there exists no "vested right" which is adversely affected by the immunization of public employees, since section 768.28 has merely substituted the state as the financially responsible party....

...We have already determined in Talmadge, as best we could, that the immunization of employees was not the legislature's original plan. We searched long and hard to recreate the legislature's will, and taking all factors into account we concluded in Talmadge that section 768.28 had indemnified, but not immunized public employees from personal responsibility....

...NOTES [1] State Dep't of Transp. v. Knowles, 388 So.2d 1045, 1048 (Fla.2d DCA 1980). [2] All parties understand and concede that this case in no way affects Knowles' judgment against the department, payable to the extent of $50,000 under the sovereign immunity waiver statute. § 768.28(5), Fla....

...esulting therefrom. [4] E.g., Coon v. Board of Pub. Instruction, 203 So.2d 497 (Fla. 1967). [5] For purposes of this case, the parties have not raised as a concern a $10,000 judgment awarded to Mrs. Knowles against both the department and Gregg. [6] § 768.28(5), Fla....

...re the 1980 statute, and the suggestion that Knowles was given the right to apply to the legislature for the balance of his jury award. That right, like the right to his $50,000 judgment against the department, existed before the 1980 amendment. See § 768.28(5), Fla....

...he statutory waiver of sovereign immunity, holding that the former type of governmental decision was still immune while the latter was covered by the waiver and therefore could be actionable. The Court summed up its decision by holding that although section 768.28 [Florida Statutes (1975)] evinces the intent of our legislature to waive sovereign immunity on a broad basis, nevertheless, certain "discretionary" governmental functions remain immune from tort liability....

...loyment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act. 768.28(1), Fla....

...The majority disapproves and quashes the district court decision on two grounds. First, that the classification and assignment of prisoners is a governmental function for which there is sovereign immunity. Second, that the classification and assignment of prisoners is not an activity which private persons perform and section 768.28, Florida Statutes (1977), does not waive sovereign immunity for activities which are not performed by private persons....

...1st DCA 1983), Robert Lee White, a work-release inmate under the supervision of the Florida Department of Corrections, committed the crime of rape. A negligence suit was brought against the department by the innocent victim, and a judgment entered for plaintiff which was subsequently affirmed. Because section 768.28(5), as it existed at the time, limited state liability to $50,000, the victim sought additional relief from the Florida Legislature for the remaining unsatisfied sum of $200,000....

...rections on October 29, 1982, and WHEREAS, the final judgment rendered against the Department of Corrections was upheld on appeal by the District Court of Appeal, First District, State of Florida, in an opinion filed September 19, 1983, and WHEREAS, s. 768.28(5), Florida Statutes, as it existed at the time Hazel W....

...84-383, Laws of Fla. (emphasis supplied). There are two points in this relief act that are particularly noteworthy. First, the premise underlying the relief act is that the judgment was valid in relying on the legislative waiver of sovereign immunity. § 768.28....

...[3] Whether this claim would be barred by sovereign immunity is not an issue resolved in the trial court or reached on appeal. We note, however, that a claim directly against the administrators who allegedly were negligent would appear to be barred by sovereign immunity. See § 768.28(9)(a), Fla. Stat. (1995). Thus, Mr. Monroe sued the School Board as the employer of these professionals under section 768.28(1), Florida Statutes (1995)....

...As a result, Duffell was pinned between the buses and seriously injured. In addition to claiming the right to receive workers' compensation benefits from the School Board, Duffell and his wife filed a civil action to recover for Lewis' negligence. Because section 768.28(9)(a), Florida Statutes (1991), immunized Lewis from personal liability, the civil action was maintained against the School Board....

...rker who accepts benefits from an employer is entitled to maintain a separate civil action against a negligent co-employee assigned to unrelated works. The instant case involves the simultaneous operation of two Florida Statutes; sections 440.11 and 768.28....

...Such fellow-employee immunities shall not be applicable ... to employees of the same employer when each is operating in the furtherance of the employer's business but they are assigned primarily to unrelated works within private or public employment. § 440.11(1), Fla. Stat. (1991). Section 768.28(9)(a), Florida Statutes (1991), immunizes public employees from personal liability for torts by requiring any civil action for the employee's negligence to be maintained against the governmental entity: No officer, employee, or agent o...

...isregard of human rights, safety, or property... . The exclusive remedy for injury or damage suffered as a result of an act, event, or omission of an officer, employee or agent of the state ... shall be by action against the governmental entity... . § 768.28(9)(a), Fla....

...orkers, both public and private, have a statutory right to accept workers' compensation benefits and at the same time pursue a civil action against a negligent co-employee who is assigned primarily to unrelated works. We turn next to the language of section 768.28(9)(a), Florida Statutes (1991), which provides that the exclusive remedy for injury or damages inflicted by an officer, employee, or agent of the state shall be by action against the governmental entity....

...afety, or property." Id. There is no statutory exception to the government's liability. The School Board argues that it nevertheless enjoys absolute immunity under section 440.11(1) because the legislature did *1179 not intend sections 440.11(1) and 768.28(9)(a) to be read in pari materia. We disagree. Absent an express declaration, we cannot assume that the legislature intended the employer immunity provisions of section 440.11(1) to trump the express language of section 768.28(9)(a)....

...The legislature is presumed to know existing law when it enacts a statute. Williams v. Jones, 326 So.2d 425 (Fla. 1975), appeal dismissed, 429 U.S. 803, 97 S.Ct. 34, 50 L.Ed.2d 63 (1976). As such, it is illogical to assume the legislature's 1980 amendment to section 768.28(9) was intended to eviscerate the public employee's statutory right to redress injury under section 440.11(1), while the private employee's statutory right to redress injury under the same section remains intact....

...A contrary interpretation facilitates unequal treatment among public and private employees. We hold that Duffell is entitled to pursue his claim against Lewis as expressly set forth in sections 440.11(1) and 440.39(1). The School Board is not being sued in its capacity as Duffell's employer. Instead, pursuant to section 768.28(9)(a), it is being sued as a surrogate defendant based on the negligent acts of Lewis, a fellow public employee....

...ed the words in section 440.11 "unrelated works within private or public employment." So, what does a public employee do when she wants to assert an unrelated works negligence claim against a fellow public employee? The legislative scheme set out in section 768.28(9), Florida Statutes (Supp....

...Instead, the section provides that the "exclusive remedy" for a public employee's negligence shall be an action against the public employer. So, the injured public employee granted a right to sue a negligent fellow employee engaged in unrelated work, is instructed by section 768.28(9), just like third-party claimants, that his exclusive remedy is against the public employer. There is no exception in section 768.28(9) permitting a fellow employee to be named as a defendant when the fellow employee *1180 is engaged in unrelated work. There is an exception for willful torts, but that does not apply here. The majority has attempted to reconcile these statutory provisions by following the directive of section 768.28(9) and permitting the injured worker to sue the public employer, since that is the "exclusive remedy" mandated by the statute....

...njured private employee with a claim under the "unrelated works" exception. What good would it do to have a claim if you had no one to sue? Surely the legislature did not intend such an absurd result. The dissent's position of adding an exception to section 768.28(9)'s bar to lawsuits against public employees is not unreasonable....

...licable to employees of the same employer when each is operating in the furtherance of the employer's business but they are assigned primarily to unrelated works within private or public employment. The other statute relevant to our consideration is section 768.28(9), Florida Statutes (1991), which reads in pertinent part: (a) No officer, employee, or agent of the state or of any of its subdivisions shall be *1181 held personally liable in tort or named as a party defendant in any action for any...

...However, an employee is permitted to sue a fellow employee if the fellow employee's conduct was willful or grossly negligent, or where the injury was negligently inflicted by a fellow employee engaged in unrelated works. On the other hand, it is obvious that section 768.28(9) is concerned with suits brought against governmental entities by third parties....

...The intent of this subsection is to exonerate the employee for simple negligence and place the monetary responsibility on the governmental entity. At the same time, in cases of willful and wanton misconduct of the governmental employee, the governmental entity is deemed immune and the offending employee can be held liable. Section 768.28(9) did not intend to create a new cause of action for an employee to sue his employer based on the conduct of a fellow employee. As so construed, the statutes are in perfect harmony. The employee maintains the right to sue a fellow employee for willful or wanton misconduct or for negligent injury arising out of unrelated work, but section 768.28(9) has no application to suits by employees against fellow employees....

...Counsel, and William Lee Allen, Asst. Gen. Counsel, City of Jacksonville, Jacksonville, for appellee. ROBERT P. SMITH, Jr., Judge. Jetton, injured when building materials he was carrying touched a JEA electrical transmission line, appeals a circuit court decision that Section 768.28(5), Florida Statutes (1977), constitutionally imposes a monetary limit on governmental tort liability....

...equal protection, [2] and due process, [3] *397 among others. We find no unconstitutional infringement of these rights in a statute altering the common law to enhance the overall protection available now to victims of governmental torts. We affirm. Section 768.28 waives sovereign immunity to tort claims against the state and its subdivisions in cases where a private person would be liable....

...placed limits on recovery of $50,000 per individual and $100,000 per incident and noted that claimants remain free to seek legislative relief bills, as they did during days of complete sovereign immunity. [5] In 1977, the legislature further amended Section 768.28(5) to make clear that the waiver and new recovery limits applied to tort actions growing out of "proprietary" as well as "governmental" functions of municipalities....

...Use of the "proprietary function" test to determine the existence of municipal sovereign immunity, long subject to criticism, [7] was laid to rest in Florida by Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979). *398 We cannot accept appellant's threshold contention that JEA is not entitled to the Section 768.28(5) limitation on recovery because it is not a municipal agency....

...Jacksonville Electric Authority, 362 So.2d 433 (Fla. 1st DCA 1978). The waiver of sovereign immunity under the statute clearly extends to units that, like JEA, are "primarily acting as instrumentalities or agencies of ... municipalities." Fla. Stat. § 768.28(2) (1977)....

...State, 377 So.2d 663 (Fla. 1979), we turn to appellant's argument that the legislature impermissibly abolished rights to redress under Article I, Section 21 of the Florida Constitution when it limited the amount he may recover to $50,000. Prior to enactment of Section 768.28, appellant argues, his recovery would have been unlimited because operating an electric plant is a proprietary function....

...661, 664-65, 406 A.2d 704, 706 (1979) ($50,000 statutory limit on municipal tort liability does not violate state constitution's right to certain remedy clause); Stanhope v. Brown County, 90 Wis.2d 823, 844-45, 280 N.W.2d 711, 720 (1979) ($25,000 limit does not violate similar clause). Appellant also argues that Section 768.28 is unconstitutional because it violates the due process and equal protection clauses....

...Here the classifications were designed to enable enhanced recoveries in most cases while recognizing that requiring local governments to protect themselves against full liability could impose too heavy a financial burden on local taxpayers. See Stanhope, supra . Since Section 768.28 neither abolished any common law rights to redress nor irrationally impinged other constitutional guarantees, we find its limits on tort liability constitutional....

...out sale, denial or delay. See generally, Note, Article I, Section 21: Access to Courts in Florida, 5 Fla.St.U.L.Rev. 871 (1977). [2] U.S.Const. amend. XIV § 1; Art. 1, § 2, Fla. Const. [3] U.S.Const. amend. XIV § 1; Art. I, § 9, Fla. Const. [4] Section 768.28(5), Fla....

...NOTES [1] Doe proceeds in this action under a pseudonym to keep the fact of her mental handicap from becoming subject to inspection by members of the public. (Order, D.E. # 14, at 1-2.) [2] The County had attacked the tort claims on various grounds, including failure to comply with the provisions of Fla.Stat.Ann. § 768.28 (West 1986 & Supp.1992)....

...led to any form of protection under sovereign immunity. In this case the defendants' claims to sovereign immunity stem from different sources. The DJJ, of course, is a government agency. Its immunity from liability flows directly from the sovereign. § 768.28(2), Fla....

...Thus, we conclude that the allegations of the second amended complaint did not conclusively establish AMI's or BCWI's common law status as agents of the state for sovereign immunity purposes. The statutory basis for AMI's and BCWI's claim to be agents of the state appears in section 768.28(11)(a), Florida Statutes (1997)....

...A contract must provide for the indemnification of the state by the agent for any liabilities incurred up to the limits set out in this chapter. We have found no pertinent judicial interpretation of this statute or of the nearly identical provision set forth at section 768.28(10)(a), related to health care providers under contract to the Department of Corrections....

...It is not enough, however, to demonstrate simply that the provider contracted to act on behalf of the state in the furnishing of the mentioned services. Rather, to enjoy agent's status under the statute, the provider must have acted "within the scope of and pursuant to guidelines established in the contract or by rule." § 768.28(11)(a)....

...These last qualifications seem to echo the common law principle that an agent can lose its status as such if it deviates from its principal's instructions. Dorse, 513 So.2d at 1268. And they are akin to the limitations on immunity from tort liability enjoyed by a state officer, employee or agent under section 768.28(9)(a)....

...Sierra could avoid their workers' compensation immunity by proving her husband's supervisor knew or should have known there was a substantial certainty that he would be injured or killed, they necessarily would be immunized from liability under the wanton and willful acts exception to state liability contained in section 768.28(9)(a)....

...AMI's and BCWI's reliance on this exception is misplaced. While the subsection provides that "the state or its subdivisions" shall not be liable for wanton and willful acts of its officers, employees or agents, it is clear that AMI and BCWI are not subdivisions of the state. See § 768.28(2). [3] As providers or vendors under section 786.28(11)(a), they may be deemed agents of the state, not agencies of the state. [4] Under section 768.28(9)(a), agents of the state are immune from tort liability for acts or omissions committed while acting within the scope of their employment or function, but they are not immune from liability for acts committed in bad faith or with mal...

...safety, or property." Therefore, even assuming that AMI and BCWI qualified as agents of the state, a determination that the conduct charged in Mrs. Sierra's second amended complaint was wanton and willful would render them subject to liability under section 768.28(9)(a), not immune from it....

...sufficient to overcome workers' compensation immunity. Moreover, the court held, if the alleged conduct was sufficient for that purpose, the action necessarily would be barred by the wanton and willful acts exception to state liability contained in section 768.28(9)(a)....

...on immunity issue. Elliott, 579 So.2d at 830. Thus, Elliott stands for the proposition that conduct which is virtually certain to *593 cause injury or death necessarily implicates the wanton and willful acts exception to state liability contained in section 768.28(9)(a)....

...gross negligence." Turner, 754 So.2d at 687 n. 4 (regarding substantial certainty of injury test); McClelland v. Cool, 547 So.2d 975, 976 (Fla. 2d DCA 1989) (recognizing that test for proving wanton and willful acts exception to employee immunity in section 768.28(9)(a) is more stringent than gross negligence exception to coemployee workers' compensation immunity in section 440.11(1))....

...Importantly, though, the court stopped short of holding that they are equivalent. Turner, 754 So.2d at 687 n. 4. More recently, the supreme court declined to foreclose the possibility that conduct falling shy of that necessary to exempt the defendant state subdivisions from liability under section 768.28(9)(a) nevertheless could establish a 42 U.S.C....

...Especially in light of Turner and Crocker, we are unable to declare that the "substantial certainty of injury" standard for avoiding workers' compensation immunity requires misconduct of a degree that would necessarily be "wanton and willful" and therefore immunize a government defendant under section 768.28(9)(a)....

...The statutory standard required the plaintiff to prove by clear and convincing evidence that the employer deliberately and intentionally injured him. The Ohio Supreme Court later struck the statute on state constitutional grounds. Johnson v. BP Chems., Inc., 85 Ohio St.3d 298, 707 N.E.2d 1107 (1999). [2] Section 768.28(9)(a), Florida Statutes (1997), provides: (9)(a) No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suf...

...cer, employee, or agent committed while acting outside the course and scope of her or his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. [3] Section 768.28(2), Florida Statutes (1997), provides: "As used in this act, `state agencies or subdivisions' include the executive departments, the Legislature, the judicial branch (including public defenders), and the independent establishments of t...

...and corporations primarily acting as instrumentalities or agencies of the state, counties or municipalities, including the Spaceport Florida Authority." [4] Certainly, for these purposes AMI and BCWI are similar to health care providers described in section 768.28(9)(b)(2), which states "(b) As used in this subsection, the term: ......

...2d DCA 1978); Paul v. Heritage Insurance Co. of America, 363 So.2d 563 (Fla. 3d DCA 1978); Metropolitan Dade County v. Kelly, 348 So.2d 49 (Fla. 1st DCA 1977); Pennington v. Serig, 353 So.2d 107 (Fla. 3d DCA 1977). The issue presented is whether under subsection 768.28(9), Florida Statutes (1975), a state employee may be made a party defendant in an action for personal injuries allegedly occasioned by the employee's negligence while acting in the scope of his employment....

...It is alleged that Talmadge then attempted a flip, during which he injured his knee and teeth. Talmadge allegedly had minimal instruction regarding acrobatics and safety on the trampoline, and was not prepared to perform such activities safely. Walters filed a motion to dismiss himself as a defendant, contending that subsection 768.28(9) immunized him from suit....

...Article X, section 13 of the Florida Constitution states that "[p]rovision may be made by general law for bringing suit against the state as to all liabilities now existing or hereafter originating." Pursuant to this authorization, the legislature enacted section 768.28, waiving the state's *700 sovereign immunity in tort actions within certain express limitations. Prior to the enactment of the waiver statute, of course, Florida's public employees had been liable for their tortious acts. See, e.g., Davis v. Watson, 318 So.2d 169 (Fla. 4th DCA 1975), cert. denied, 330 So.2d 16 (Fla. 1976). Consequently, section 768.28 led to the coexistence of both governmental and employee liability, creating what has been termed a new "problem of coordination." [1] Subsection 768.28(9) is the legislature's attempt to treat this problem, since it addresses the effect which the introduction of governmental liability has on the liability or immunity [2] of the individual state employee. Unfortunately, the language of subsection 768.28(9) appears on its face to be inconsistent....

...idually did not allege that he had acted in bad faith, [6] and in Pennington, where the court held that "[i]n the absence of any allegation or proof of bad faith or malicious purpose on their part, defendants are immune from personal liability under Section 768.28(9), Florida Statutes (1975)." [7] Respondents, on the other hand, ask us to adopt an interpretation of subsection (9) to the effect that the provision acts only to indemnify public employees for monetary judgments entered against them, but does not render them immune from suit....

...This rationale is supported by the Talmadge decision below and by the Paul and Donner cases. [8] Neither the parties nor amici [9] have brought to our attention any statutory or case authority in this state which reconciles the conflicting provisions of subsection 768.28(9)....

...[16] Statutes limiting or preventing suits against public employees under some circumstances can be found in other states, [17] but virtually every American jurisdiction permits tort suits against both the government and its employees. [18] This incidence is relevant to our interpretation of section 768.28, for the absence of an explicit prohibition against suing public employees for their torts suggests that none was intended....

...Only one interpretation of subsection (9) will satisfy this obligation — one which gives content to each sentence of the provision. We construe subsection (9) not to prevent a state officer, employee, or agent from being made a party defendant in an action under section 768.28....

...In fact, as we view the statute, both individual and joint suits are possible and, rather than providing public employees with immunity from suit, subsection (9) merely addresses the extent to which the state will be liable for their torts. Liability outside section 768.28....

...ers. Egregious action has been defined variously, but each definition seeks to ensure that the individual official ultimately bears personal liability in those situations where the need for deterrence and retribution is greater. [20] Liability under section 768.28. For those actions which fall within the purview of section 768.28, plaintiffs have a range of litigation options: (1) The plaintiff can invoke the provisions of section 768.28 and sue both the state and employee jointly....

...netary limitations set forth in subsection (5). [21] The negligent employee remains personally liable for that portion of a judgment rendered against him which exceeds the state's liability limits. [22] (2) The plaintiff can invoke the provisions of section 768.28 and sue the state alone. The state's liability, of course, would be limited by subsection (5). (3) The plaintiff can sue the employee alone, without invoking section 768.28, under traditional legal principles regarding tort actions against public employees. The foregoing interpretation of subsection (9) is the one most consistent not only with the language of section 768.28, but also with its purpose. We have noted that "section 768.28 evinces the intent of our legislature to waive sovereign immunity on a broad basis" [23] in order to provide more adequate compensation for victims of governmental torts....

...more careful performance of official duties and obligations. [28] Our interpretation of subsection (9) continues the long-established policy in this state of holding public officers, employees and agents liable for their tortious acts. We hold that section 768.28 merely waives the state's preexisting immunity from suit, and that no immunity from suit for employees has been created....

...For the reasons expressed, the decision below is affirmed. It is so ordered. ADKINS, OVERTON and SUNDBERG, JJ., concur. BOYD, J., concurs in part and dissents in part with an opinion. BOYD, Justice, concurring in part and dissenting in part. My reading of section 768.28(9), Florida Statutes (1975), is that officers, employees and agents of the state and its subdivisions can be held personally liable in tort for injuries or damages suffered as a result of any act, event, or omission of action in the sc...

...mployment or functions, amounting to simple or ordinary negligence. In such cases of negligence the state, its agency or subdivision is to be joined as a party defendant and shall satisfy any judgment rendered up to its statutory limit of liability. § 768.28(5), Fla....

...ly liable for damages caused by his willful, wanton or bad faith actions. I do not agree that there is any legislative intent for employees to be held personally liable for torts committed in the scope of their employment outside of the operation of section 768.28. Public employees should not be subject to being sued in connection with acts, events, or omissions in the scope of their employment without the protection accorded them by this statute. Although section 768.28 presents problems of construction with its complex and contradictory language, I conclude from it that the legislature intended the statute to apply to all agencies of state government and to the state's political subdivisions. If the legislature meant something different it should say so by clarifying the language of section 768.28....

...[4] Two commentators have criticized this "anomaly." See Seligman & Beals, The Sovereignty of Florida Municipalities: In-Again, Out-Again, When-Again, 50 Fla. B.J. 338 (1976). See also 1978 Op.Att'y Gen. Fla. 078-145 (December 21, 1978). [5] The extent of the state's obligation was specified in subsection 768.28(5), which read: Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $50,000 or any claim or judgment, or portions thereof, which, when totaled with...

...Pennington was implicitly overruled by another panel of the same court in Paul v. Heritage Ins. Co., 363 So.2d 563 (Fla. 3d DCA 1978). [8] In Paul v. Heritage Ins. Co., 363 So.2d 563 (Fla. 3d DCA 1978), one panel of the third district court of appeal merely adopted the Talmadge court's interpretation of subsection 768.28(9)....

...ments directly." Bermann, supra note 1, at 1191 (footnotes omitted). [22] Judgments in excess of the limitations in subsection (5) can also "be reported to the legislature, but may be paid in part or in whole only by further act of the Legislature." § 768.28(5), Fla. Stat. (1975). [23] Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1022 (Fla. 1979). [24] Indeed, it would undermine the purpose of section 768.28 to withdraw preexisting remedies from the victims of governmental torts....

...waiver by legislative enactment. See Art. X, § 13, Fla. Const. No such waiver existed at that time, and it is logical to conclude that section 375.251 was not designed to immunize counties since they were already immune. Effective January 1, 1975, section 768.28 waived sovereign immunity of counties from tort liability....

...The county argues that if held to owe a duty of care to all persons using its parks, it would either have to close some of its facilities or levy an admission charge. This, of course, is a policy matter for judgment of the local authorities; however, section 768.28(13) authorizes a county to protect itself with liability insurance coverage in these instances. True, prior cases have held counties immune from tort liability in similar situations, but only because section 768.28 was not yet in effect at the time of the alleged negligence. See Jackson v. Palm Beach County, 360 So.2d 1 (Fla. 4th DCA 1978); McPhee v. Dade County, 362 So.2d 74 (Fla.3d DCA 1978). Those cases imply that the counties would have been subject to liability had section 768.28 been in effect....

...unt III. ISSUES McDaniel presents four issues in this appeal: (1) whether Morris’s conduct was reasonable; (2) whether this action should have been dismissed because of Fitzgerald’s failure to comply with the notice provisions of Florida Statute § 768.28(6); (3) whether the district court lacked jurisdiction to hear this case because the state of Florida has not waived sovereign immunity; and (4) whether the district court erred in granting a motion in limine restricting testimony of threats Fitzgerald allegedly made against Morris....

...to support it. Mary S. Krech Trust v. Lakes Apartments, 642 F.2d 98 (5th Cir. Unit B 1981). They have not shown an absence of probative facts; therefore, we affirm the district court on this issue. B. Fitzgerald’s failure to comply with Fla.Stat. § 768.28(6). McDaniel and Morris contend that Fitzgerald’s state law claims should have been dismissed because he failed to comply with the notice provisions of section 768.-28(6). Fla.Stat. § 768.28(6) provides: (6)(a) An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a...

...was deprived of the required notice period; consequently, Fitzgerald’s complaint should have been dismissed. The district court held that the issue of Fitzgerald’s noncompliance with the statute is moot. Although Fitzgerald failed to comply with section 768.28(6) by bringing this action before either a written denial of his claim had been issued, or before six months had passed, by the time the district court ruled on this issue, six months had passed since the filing of the claim. On the date of the district court’s order, no written denial or other final disposition of the claim had been issued by Sheriff McDaniel or the Department of Insurance. The district court determined that the notice function of section 768.28(6) had been served, and the conditions precedent to filing a complaint had been met. The purpose of section 768.28(6) is to provide the state and its agencies with sufficient notice of claims filed against them....

...Although Fitzgerald failed to wait six months to file this action, more than six months elapsed before the district court finally disposed of the issue. Since Sheriff McDaniel was duly notified of Fitzgerald’s claims and had time to respond, the purpose underlying section 768.28(6) was adequately served....

...I note that if the defendants were able to articulate some actual prejudice that resulted from the plaintiff’s failure to wait six months before filing suit, I would be more inclined to dismiss the case and require the plaintiff to comply strictly with the language of Section 768.28(6)....

...of his employment. Plaintiff filed a third amended complaint which stated a claim for false arrest and realleged the negligent hiring count. Final summary judgment was then entered in favor of the Department of Highway Safety and Motor Vehicles. [3] Section 768.28(1), Florida Statutes (1977), [4] in effect at the time of the incident, provided: In accordance with s....

...ct that Jones resigned after the incident was reported and was subsequently convicted, on a plea of nolo contendere, of lewd and lascivious assault. His whereabouts are now unknown. [3] See n. 1. [4] The current waiver of sovereign immunity statute, Section 768.28, Florida Statutes (1983), similarly waives immunity in Subsection (1) and further provides, in Subsection (9)(a), that "[t]he state or its subdivisions shall not be liable in tort for the acts and omissions of an officer, employee or a...

...cts were not willful. However, even assuming that the hospital's actions were willful, Jackson Memorial Hospital, as a county-owned hospital, is immune from liability for a willful, wanton or malicious conduct claim against one of its employees. See § 768.28(9)(a), Fla....

...Langley, 314 So.2d 324 (Miss. 1975); Corso v. Merrill, 119 N.H. 647, 406 A.2d 300 (1979); Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980); Whetham v. Bismarck Hospital, 197 N.W.2d 678 (N.D. 1972); Hughes v. Moore, 214 Va. 27, 197 S.E.2d 214 (1973). [2] Section 768.28(9)(a), Florida Statutes (Supp....

...4th DCA 1987), to answer a certified question. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We approve the district court's decision. This case presents the issue of whether the defense of failure to give notice to the Department of Insurance (Department), under subsection 768.28(6), Florida Statutes (1977), can be waived by the conduct of the defending agency....

...atal unit in 1978 he contracted meningitis and as a result suffered permanent brain damage. Four years later, in April 1984, the hospital filed a notice to dismiss on the grounds that the Menendezes had failed to follow the notice requirements in subsection 768.28(6), Florida Statutes (1977), which provides that: An action shall not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and al...

...to the Department. The court then certified the following question: IN A TORT ACTION BROUGHT AGAINST A GOVERNMENTAL AGENCY WHERE THE DEPARTMENT OF INSURANCE IS NOT MADE A PARTY, CAN THE STATUTORY REQUIREMENT OF NOTICE TO THE DEPARTMENT CONTAINED IN SECTION 768.28(6) BE WAIVED BY CONDUCT OF THE DEFENDING AGENCY? *91 Menendez, 515 So.2d at 1379. Under the facts presented here, we answer this question in the negative for the following reasons. Subsection 768.28(6) requires three things prior to instituting an action against a state agency....

...They assert, however, that the hospital, by its actions, waived the notice requirement and is estopped from raising lack of notice as a defense. In Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, (Fla. 1979), we recognized that compliance with the notice requirements of subsection 768.28(6) is a condition precedent to maintaining a suit against a government entity. In Levine v. Dade County School Board, 442 So.2d 210, 212 (Fla. 1983), we pointed out that the language in the state's notice provision is clear and must be strictly construed: Section 768.28(6) clearly requires written notice to the department within three years of the accrual of the claim before suit may be filed against any state agency or subdivision except a municipality. Because this subsection is part of the statutory waiver of sovereign immunity, it must be strictly construed. There, we concluded that: Under section 768.28(6), not only must the notice be given before a suit may be maintained, but also the complaint must contain an allegation of such notice......

...Petitioner David Berek brought a successful tort action against Metropolitan Dade County, resulting in a jury verdict for $85,000. The trial court entered judgment for $50,000, the limit of liability fixed by the statutory waiver of sovereign immunity, section 768.28, Florida Statutes (1979). Petitioner then sought an order assessing costs and post-judgment interest. The trial court denied the motion. On appeal, the district court affirmed. The issue before us is whether the limits of recovery set forth in section 768.28(5) preclude the assessment of court costs and post-judgment interest. We approve the decision of the district court of appeal in result. Section 768.28(5) provides: (5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period prior to judgment....

...t exceed $50,000." 396 So.2d at 759 (footnote omitted.) While we approve the district court's decision, we disagree with its statement that section 57.041, providing for recovery of costs, is completely inapplicable to tort claims against the state. Section 768.28 provides that the state "shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances." Therefore the general provisions of law which make costs and interest [2] recoverable...

...a tort claimant prevails against the state. The availability of interest is further indicated by the next immediately following language in the statute: "but liability shall not include punitive damages or interest for the period prior to judgment." § 768.28(5), Fla....

...We conclude that post-judgment interest should be calculated upon the actual damages determined by the jury. If the damages are less than $50,000, then, of course, the post-judgment interest is recoverable from the state up to the $50,000 limit on total damages, costs, and interest. However, section 768.28(5) authorizes the rendition of judgment in excess of the maximum amount which the state can be required to pay....

...micus curiae. OVERTON, Justice. This is a petition for writ of certiorari to review a decision of the Second District Court of Appeal, reported at 366 So.2d 58 (1978), holding that a sheriff and his deputies are not included within the provisions of section 768.28, Florida Statutes (Supp....

...1974), [1] which waives sovereign immunity *710 within certain limits for negligent acts of government officials and employees. The decision affects a class of constitutional officers, and we have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We disapprove the decision of the district court in its holding that section 768.28 does not include sheriffs and their deputies. However, we approve the district court's reversal of the trial court since we find that a cause of action may properly be brought against a sheriff for the action of his deputies under the provisions of section 768.28 or, in the alternative, under the provisions of section 30.07, Florida Statutes (1973). We further find that the four-year statute of limitations set forth in section 768.28 applies to wrongful death actions brought under that section. Finally, we note that section 768.28, Florida Statutes (1979), has been substantially amended by chapter 80-271, Laws of Florida, with the legislative intent that the new statute apply to existing actions such as this one. Because the 1980 law took effect after briefs and arguments herein, we have limited this opinion to the statutes as they existed at the time of the incident, and all references to section 768.28 shall refer to Florida Statutes (Supp....

...The action was brought under Florida's wrongful death act and filed within the two-year statute of limitations period prescribed in section 95.11(4)(c), Florida Statutes (Supp. 1974). However, there was no compliance with the advance notice requirement of section 768.28(6) prior to the filing of the action....

...The trial court, after stating the facts agreed to by the parties, entered an order of dismissal with prejudice. The district court reversed the trial court and found that: (1) the cause of action was not barred by the statute of limitations, and (2) section 768.28 applies only to certain governmental units and a sheriff's office is not included within this statutory provision. The petitioner-sheriff contends that section 768.28 is applicable to a sheriff and that his liability for actions of his deputies set forth in section 30.07, Florida Statutes (1973), [2] was eliminated by section 768.28, Florida Statutes (Supp. 1974). He further argues that any recovery must be exclusively in accordance with the terms of section 768.28. Petitioner-sheriff also asserts that the two-year statute of limitations for wrongful death actions applies and that the action should be dismissed with prejudice because there was no compliance with the notice requirements of section 768.28(6) and that therefore no suit could properly be filed within the statutory limitations period. The respondent-plaintiff argues that if section 768.28 is inapplicable to sheriffs, *711 then this cause must proceed in accordance with the preexisting law concerning liability of sheriffs. The respondent asserts that if section 768.28 is applicable to sheriffs, then the four-year statute of limitations contained in section 768.28(12) is applicable and this cause may consequently proceed. We do not fully agree with either party or the district court. It is our view that the clear intent and purpose of section 768.28 was to provide a broad waiver of sovereign immunity and resulting coverage of governmental officers and employees to the extent of the dollar limits set forth in the statute....

...In Talmadge we addressed the broad extent to which the state waived its sovereign immunity and the conditions and limits upon its derivative liability for the torts of its officers, employees, or agents. We further set forth the alternative ways to bring an action under the statute. Concerning the applicability of section 768.28 to sheriffs, we find that a sheriff is a "county official," and, as such, is an integral part of the "county" as a "political subdivision" and that section 768.28 is applicable to sheriffs as a separate entity or agency of a political subdivision. In our opinion, a sheriff and his deputies were intended by the legislature to be covered under the provisions of section 768.28....

...the extent that this conflicts with our holding that a *712 sheriff is an official of a political subdivision of the state, that portion of Johnson is disapproved. As an official of a political subdivision, a sheriff is subject to the provisions of section 768.28 for the negligence or wrongful act of one of his deputies or employees under circumstances in which "a private person would be liable." As this section was initially enacted, as construed by us in Talmadge, it is not the exclusive remedy for damages for tortious conduct by a government employee or official but is a means to protect and indemnify the employee and provide government responsibility to a limited degree. Having determined section 768.28 applicable to sheriffs, we proceed to the question of what is the appropriate statute of limitations when an action for wrongful death is brought under this section....

...The petitioning sheriff contends that, because this statutory provision is applicable only if a private person would be liable, the two-year statute of limitations for wrongful death actions applies rather than the four-year statute of limitations contained in section 768.28(12). We reject this contention. We believe that the legislature intended that there be one limitation period for all actions brought under section 768.28....

...See DuBose v. Auto-Owners Insurance Co., 387 So.2d 461 (Fla. 1st DCA 1980). Another issue in this cause concerns the continued applicability of a sheriff's liability under the provisions of section 30.07, Florida Statutes (1973). We have found that section 768.28 applies to sheriffs, although with limited liability, but it is an alternative remedy and does not repeal section 30.07 by implication as asserted by the petitioning sheriff. Section 30.07 and the long-established case law setting forth the conduct for which a sheriff is derivatively responsible under the provisions of section 30.07 are not affected by section 768.28, Florida Statutes (1974)....

...We note that this case law limits the type of deputy conduct for which a sheriff is responsible. [3] We reiterate that after the parties briefed and argued the issues in this cause, chapter 80-271, Laws of Florida, was enacted and became law effective June 30, 1980. It significantly amended section 768.28(9), Florida Statutes (1979), and section 4 of the act says that the act shall apply to all actions pending in the trial or appellate courts on the effective date of the act. The amendment to this statute appears to make several changes in the operative law, including making section 768.28 the exclusive remedy and excluding as named parties employees or officials absent certain allegations of bad faith, malice, or willful and wanton misconduct. This opinion is expressly limited to the application of sections 30.07 and 768.28 as they existed at the time the instant cause of action arose....

...his opinion. It is so ordered. ADKINS, BOYD, ALDERMAN and McDONALD, JJ., concur. ENGLAND, J., dissents with an opinion, with which SUNDBERG, C.J., concurs. ENGLAND, Justice, dissenting. Respectfully, I cannot subscribe to the majority's holding that section 768.28, as originally enacted, is applicable to sheriffs *713 and subjects them to liability for the negligence or wrongful acts of their deputies. The conclusion that sheriffs, being county officials, are an integral part of the county and therefore constitute "political subdivisions" of the state under the statute is neat dialectic but horrendous law. It is clear that section 768.28 distinguished between governmental bodies, specifically denominated as "state agencies or subdivisions" and defined in subsection (2), and human beings, specifically named to include each "officer, employee, or agent of the state or its subdivisions" and treated in subsection (9)....

...Since sheriffs had no immunity before the statute was enacted, the legislature obviously did not need, and therefore could not have intended, to waive that which did not exist. With all due respect to the majority, I suggest that a faithful tracking of section 768.28 — as originally enacted and later interpreted in District School Board v. Talmadge, 381 So.2d 698 (Fla. 1980) — would have provided the plaintiff in this case with three possible courses of action: (1) She could have invoked the provisions of section 768.28 to sue the county and the deputies jointly. The county, not the sheriff, is the "political subdivision" that would have been responsible for negligence or wrongful acts of the deputies under the statute. (2) She could have invoked the provisions of section 768.28 to sue the county alone. (3) She could have sued the sheriff and his deputies, without invoking section 768.28, under traditional legal principles governing such actions. See, e.g., § 30.07, Fla. Stat. (1979). As we noted in Talmadge, this range of litigation options was consistent with both the underlying purpose and discrete language of section 768.28. [1] Since I cannot ignore the language of the legislature in section 768.28, I respectfully dissent. SUNDBERG, C.J., concurs. NOTES [1] Section 768.28, Florida Statutes (Supp....

...nd default of whom in the execution of their office the sheriff shall be responsible. [3] Malone v. Howell, 140 Fla. 693, 192 So. 224 (1939); Swenson v. Cahoon, 111 Fla. 788, 152 So. 203 (1934). [1] For a more extensive treatment of the operation of section 768.28 before its amendment in 1980, see District School Bd....

...e law for battery. [3] In response to the section 1983 claim, the individual officers asserted that they were entitled to qualified immunity. In response to the battery claim, the officers asserted that they were entitled to statutory immunity under section 768.28(9), Florida Statutes (1997)....

...STATE LAW BATTERY CLAIM Thompson next contends that the trial court erred in granting final summary judgment in favor of the individual officers on the state law battery claim. We agree. *309 The parties do not dispute that the sovereign immunity statute, section 768.28(9)(a), Florida Statutes (1997), generally protects government officials from individual liability for damages. However, an exception to this statutory immunity applies when the governmental official "acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property." § 768.28(9)(a)....

...the instruction and the jury's finding of some liability on the part of Orange County. With respect to the loss of consortium claim we find that Mrs. Piper's failure to file her claim with the County or join in Mr. Piper's claim, [1] as required by section 768.28(6), Florida Statutes (1981) warrants its dismissal. [2] Levine v. Dade County *198 School Board, 442 So.2d 210 (Fla. 1983). See also Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979). Compliance with 768.28(6) is clearly a condition precedent to maintaining a suit....

...While I agree that Whitney does not support Kathryn Piper's position here, I do not agree that it was impliedly overruled by Levine v. Dade County School Board, 442 So.2d 210 (Fla. 1983). Levine held that the failure of the plaintiff to give any notice to the Department of Insurance within the three year period required by section 768.28(6), Florida statutes (1977), barred the action....

...ether the written notice of claim submitted to the agency was sufficient as to form when it contained all required details, and made a claim for medical mediation under the medical malpractice statute then in effect. We held in Whitney that although section 768.28(6) bars an action against the state or its agencies "unless the claimant presents the claim in writing to the appropriate agency" but does not specify the form in which the claim be presented, a writing which made a claim and contained...

...im was based, satisfied the statute, although couched in the form of a request for medical mediation. That issue was not presented in or ruled on in Levine. NOTES [1] We note that Mr. Piper's claim did not even give notice of his marital status. [2] Section 768.28(6) provides: An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a mu...

...Willingham because of the existence of the arrest warrant, and asserted that there was no theory under which Mr. Willingham could recover against either of them. In addition, Officer Costa claimed that he was clothed with qualified immunity from personal liability for damages by virtue of section 768.28(9)(a), Florida Statutes (2003), because his actions were "conducted in good faith," and with "the actual and reasonable belief that such actions were legal and proper under the circumstances." Finally, Officer Costa pointed out that at no time did he act in his individual capacity with respect to the arrest of Mr....

...Willingham's claims against the officer individually, and against the governmental entities collectively. I. The Claims Against The Police Officer For Personal Liability. Officer Costa suggests that he was entitled to immunity from suit and from damages against him personally by virtue of section 768.28(9)(a), Florida Statutes (2003), which reads as follows: No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or dam...

...ard of human rights, safety or property, he was entitled to summary judgment with respect to any personal liability, and Mr. Willingham was limited to seeking damages against the officer's governmental employer. Importantly, the immunity provided by section 768.28(9)(a) is both an immunity from liability and an immunity from suit, and the benefit of this immunity is effectively lost if the person entitled to assert it is required to go to trial....

...Willingham was anxious to show to Officer Costa would not have made a difference. Just because Mr. Willingham's identity had been misused with respect to a case that concluded several years earlier does not mean that he could not have committed the more recent offense. The immunity from suit provided by section 768.28(9)(a) was designed specifically to address situations such as this, and there was no error in granting a summary judgment in favor of Officer Costa....

...Gray, Jr., Miami, for appellants. Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs and Nancy F. Schleifer, Miami, for appellee. Before HENDRY, NESBITT and FERGUSON, JJ. FERGUSON, Judge. Appellant Elisa Willis sued Dade County School Board for damages pursuant to Section 768.28, Florida Statutes (1979) waiving sovereign immunity in tort actions....

...a cause of action. We affirm in part and reverse in part. We find no error in the determination of the trial court with respect to Count I that a complaint which alleges a "malicious" assault and battery fails to state a cause of action pursuant to Section 768.28, Florida Statutes (1979)....

...elevant part: S.A.P. appeals a final order which dismissed with prejudice her second amended complaint against appellee, State of Florida Department of Health and Rehabilitative Services (HRS), based on the application of the statute of limitations, section 768.28(12), Florida Statutes (1993)....

...We conclude that, based on the allegations of the complaint, S.A.P. has sufficiently stated both a cause of action for negligence and the equitable principle of fraudulent concealment. S.A.P., 704 So.2d at 584-85. The court held that the four-year limitation in section 768.28(12), Florida Statutes (1993), [1] was "tolled" by HRS's conduct and ordered S.A.P.'s complaint reinstated: S.A.P....

...ECTION 13. Suits against the state.—Provision may be made by general law for bringing suit against the state as to all liabilities now existing or hereafter originating. Art. X, § 13, Fla. Const. Pursuant to this provision, the Legislature enacted section 768.28, Florida Statutes (1973), which at the time the present action was filed in 1995 provided as follows: 768.28 Waiver of sovereign immunity in tort actions; recovery limits; limitation on attorney fees; statute of limitations; exclusions.— (1) In accordance with s....

...oyment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act. § 768.28, Fla. Stat. (1995) (emphasis added). One of the key limitations specified in the act is spelled out in section 768.28(13) in the form of a four-year restriction placed on the filing of all tort claims under section 768.28: (13) Every claim against the state or one of its agencies or subdivisions for damages for a negligent or wrongful act or omission pursuant to this section shall be forever barred unless the civil action is commenced by filing a compla...

...accrues; except that an action for contribution must be commenced within the limitations provided in s. 768.31(4), and an action for damages arising from medical malpractice must be commenced within the limitations for such an action in s. 95.11(4). § 768.28(13), Fla....

...Morsani, 790 So.2d 1071, 1074-75 (Fla.2001) (footnotes omitted). Time limitations on legal actions in Florida ordinarily are governed by the statutes of limitation set forth in chapter 95, [8] but as noted above, time limitations on chapter 768 actions are controlled by section 768.28(13)....

...Equitable estoppel thus functions as a shield, not a sword, and operates against the wrongdoer, not the victim. This Court has applied the doctrine for more than a century and a half. Major League Baseball, 790 So.2d at 1077. IV. EQUITABLE ESTOPPEL vs. SECTION 768.28(13) It is well settled in Florida and other jurisdictions that the statutes of limitation can be deflected by the doctrine of equitable estoppel. [9] This proposition is supported by vast precedent from this Court, [10] Florida district courts of appeal, [11] *1098 and federal courts. [12] HRS asserts that, despite this precedent, the statute of limitations in section 768.28(13) is somehow different from all other statutes of limitation in that it applies only to suits filed against the State as opposed to private persons. We find this claim disingenuous in light of the plain language of section 768.28(1), which provides that the State consents to be sued "in accordance with the general laws of this state" for any tort in which "a private person would be liable to the claimant." This consent, we conclude, evinces an unequivocal intent on the part of the State to abide by the traditional laws—including the equitable canons— governing tort actions in any claim filed under section 768.28....

...e statute will not be held to have changed the common law. Thornber v. City of Fort Walton Beach, 568 So.2d 914, 918 (Fla.1990). Major League Baseball, 790 So.2d at 1077-78 (footnote omitted). In the present case, not only does the plain language of section 768.28(13) not expressly change the common law doctrine of equitable estoppel, it does not mention or allude to that doctrine....

...Logic dictates that a defendant cannot be taken by surprise by the late filing of a suit when the defendant's own actions are responsible for the tardiness of the filing. Major League Baseball, 790 So.2d at 1078 (footnote omitted). In the present case, section 768.28(13) and the doctrine of equitable estoppel work hand in hand to achieve a common goal—the preservation of a viable and fair legal system....

...CONCLUSION If we, as we must, take the factual allegations in S.A.P.'s second amended complaint as true and construe all reasonable inferences therefrom in her favor, we conclude that the doctrine of equitable estoppel bars HRS from asserting that the complaint was untimely filed. Section 768.28(13) is a conventional statute of limitations, nothing more; it is not a statute of repose that forecloses all forms of equitable relief. The law of this State does not bestow upon the department a special boon to betray the children in its charge, to flagrantly flout the law, to conceal its misdeeds, and then to invoke section 768.28(13) as a shield for its actions....

...To allow the department to do as alleged— i.e., to negligently supervise and monitor S.A.P.'s placement, to conceal the resulting abuse for years, and then to invoke the statute of limitations to escape liability— would violate the basic principles underlying chapter 768 and make a mockery of section 768.28(13)....

...Within the Constitution, however, is a provision which allows the Legislature to abrogate the immunity. See id. As detailed in the majority opinion, the Legislature has chosen to waive sovereign immunity and accept tort liability to the same degree "a private person would be liable. " § 768.28, Fla....

...re. The dissenting opinion of Justice Wells correctly states a fundamental principle: the "sovereign cannot be sued in tort except to the extent it waives by statutory law its common law sovereign immunity." Dissenting op. at 1106. Because, however, section 768.28 specifies that the State waives its immunity "under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state," nothing preve...

...the state. There is not one word in the statute which provides to the contrary. This Court is not creating a waiver; the Legislature has already done so. We are discussing time limitations-not the creation of a "waiver." Additionally, since neither section 768.28 nor section 95.11 of the Florida Statutes abrogates these equitable doctrines, I conclude they certainly remain viable and applicable in Florida and in the instant case....

...Second, the majority's opinion does not decide any of the issues which were decided by the district court. The district court held that: (1) fraudulent concealment tolled the statute *1106 of limitations as to a claim against a State agency brought under section 768.28, Florida Statutes (1993); (2) this action should be allowed to proceed because of the allegations that during S.A.P.'s minority "there was no one acting on her behalf, no friend or guardian, who could have filed suit on her behalf; and...

...t's decision should be quashed. The Florida Constitution states in article X, section 13: Suits against the state.—Provision may be made by general law for bringing suit against the state as to all liabilities now existing or hereafter originating. Section 768.28(1), Florida Statutes (1993), implemented this constitutional provision, stating in its first sentence: In accordance with s. 13, Art. X, State Constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act. (Emphasis added.) Section 768.28(12) [17] expressly specified: Every claim against the state or one of its agencies or subdivisions for damages for a negligent or wrongful act or omission pursuant to this section shall be forever barred unless the civil action is comm...

...e courts have no voice. (Emphasis added.) Moreover, this Court has made equally clear that statutes waiving sovereign immunity are to be strictly construed. In Spangler v. Florida State Turnpike Authority, 106 So.2d 421 (Fla. 1958), a case preceding section 768.28, this Court set out the principle applicable to the earlier constitutional provision pertaining to sovereign immunity....

...." Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957). (Emphasis added.) Following these teachings in respect to both the Florida and the federal waivers of sovereign immunity leads to the inescapable conclusion that the section 768.28(12) limitation of four years to pursue a claim is not, as the majority labels it, a "conventional" statute of limitations....

...This limitations period is the extent of time that the Florida Legislature has determined that sovereign immunity is waived. The plain, unequivocal language that " every claim " must be filed within four years of accrual leaves no room for construction or deflection by the courts. § 768.28(12), Fla....

...To hold that this limitation on the waiver of immunity may be tolled or deflected by equitable estoppel fails to account for the fact that this limitations period is an integral part of the waiver of sovereign immunity and ignores this plain, unequivocal statute. Moreover, this holding writes out of section 768.28(1) the additional mandate that sovereign immunity is waived "only to the extent specified in this act." I do not agree that the time limitation provision in section 768.28(13), Florida Statutes, is in any way affected by the statement in section 768.28(5), which states, "The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances." Rather, subdivision (5) is intended to make clear the types of actions which may be brought against the State....

...a right to rely and did rely to its detriment. Under no circumstances may the state be estopped by the unauthorized acts or representations of its officers. (Emphasis added.) Because I conclude that S.A.P. cannot overcome the four-year limitation in section 768.28(12), on either the basis of tolling or equitable estoppel, I move on to the second holding of the district court below: that S.A.P.'s action can proceed despite the four-year limitation because of her allegations that no one was acting on her behalf during her minority. See S.A.P., 704 So.2d at 585. Again, the district court's decision on this issue must be quashed because it is in conflict with sections 95.051(2) and 768.28(12) and the long-standing precedent of this Court....

...Jur.2d Limitations and Laches § 48 (1982). This rule applies whether the cause of action is against a private party or the state. (Emphasis added.) The operative complaint in this case alleges that S.A.P.'s injuries were known "on or about October 20, 1979." The express language of section 768.28(12) states unequivocally: " Every claim against the state ......

...ign immunity beyond that which the Legislature has expressly granted, I would find that, under the reasoning expressed by this Court in Jensen, this Court is without jurisdiction to answer the question raised and addressed by the majority. NOTES [1] Section 768.28(12) subsequently was renumbered section 768.28(13). See § 768.28(13), Fla....

...uestion of law is subject to de novo review."). [4] See Glassman v. Glassman, 309 N.Y. 436, 131 N.E.2d 721 (1956). [5] See generally § 2.01, Fla. Stat. (1995). [6] See Public Health Trust v. Menendez, 584 So.2d 567, 569 (Fla. 1991) ("The fact that [section 768.28(13)] provides a statute of limitation but not a statute of repose thus means that no repose period was intended."); Beard v. Hambrick, 396 So.2d 708, 712 (Fla. 1981) (holding that "the four-year statute of limitations" contained in current section 768.28(13) applies to all section 768.28 actions); see generally Kush v....

...aiving the sovereign immunity of government entities, this case only addresses the situation in which "the State Legislature has not waived [an agency's sovereign] immunity" at all. Id. at 423. [17] This subdivision was subsequently renumbered to be section 768.28(13). See § 768.28(13), Fla....

...y disordered sex offender pursuant to Section 917.13 et seq., Florida Statutes (1969). Appellant argues that each of the foregoing judicial acts or omissions was essentially ministerial or operational-level activity and, consequently, in accord with Section 768.28, Florida Statutes (1979), which grants a limited waiver of sovereign immunity, appellant contends that Judge Reasbeck is liable for money damages because of his failure to comply with mandatory statutory requirements which, in turn, proximately contributed to her daughter's injury and death. In evaluating these claims, we first note that Section 768.28's waiver of sovereign immunity applies to "state agencies or subdivisions" which, by definition, include "the executive departments, the Legislature, the judicial branch, and the independent establishments of the state......

...With respect to the judicial branch, however, it is subject to a crucial limitation. Pursuant to our responsibility to avoid a holding of unconstitutionality if a fair construction of the statute can be made within constitutional limits, State v. Beasley, 317 So.2d 750 (Fla. 1975), we hold that Section 768.28 does not abrogate the common law principle of judicial immunity....

...to defend — even successfully — against them. Thus the rule of judicial immunity from damages, with its single, bright-line exception, is as broad as, but no broader than, is necessary. (Footnote omitted.) In summary, we hold that the enactment of Section 768.28 did not abrogate the common law principle of judicial immunity, and, consequently, judges continue to enjoy absolute immunity from damages liability for acts performed in the course of their judicial capacities unless such acts are undertaken with a clear absence of all jurisdiction....

...nth Judicial Circuit. The gist of the complaint is that the State Attorney was mandated to prosecute Rose as a multiple offender and his failure to do so constitutes actionable negligence. Again, we reject appellant's contention that the adoption of Section 768.28, Florida Statutes (1979), abrogated the long-held common law immunity of public prosecutors....

...t he will be suitably employed in self-sustaining employment, or that he will not become a public charge. The commission shall determine the terms upon which such persons shall be granted parole. Initially, we must determine whether the enactment of Section 768.28, Florida Statutes (1979) constitutes a waiver of sovereign immunity in this area. The Supreme Court provided the analytical backdrop to this question in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1022 (Fla. 1979), wherein it held: [A]lthough section 768.28 evinces the intent of our legislature to waive sovereign immunity on a broad basis, nevertheless, certain "discretionary" governmental functions remain immune from tort liability....

...cluding, for example, the negligent parole of a prisoner in direct contravention of a legislatively crafted and judicially imposed mandatory minimum sentence. Accordingly, the order under appeal is AFFIRMED. MOORE and BERANEK, JJ., concur. NOTES [1] § 768.28(2), Fla....

...Circuit Court of Twelfth Judicial Circuit, 317 So.2d 772 (Fla. 2d DCA 1975) (Department entitled to prohibition against tort action in which trial judge had denied motion to dismiss), aff'd, 339 So.2d 1113 (Fla.1976). It is only because of the limited waiver of sovereign immunity in section 768.28, Florida Statutes (1995), that such a claim may now proceed in the trial court....

...United States, 23 F.3d 1166 (7th Cir.1994). While federal sovereign immunity is not identical to Florida's counterpart, [1] we find portions of the reasoning in those cases persuasive here. Like the federal government, Florida has agreed to be sued in its own courts for tort actions. § 768.28....

...Recognizing that the act of governing covers myriad factors and considerations, we upheld the principle that governmental entities must be free to make policy, planning, or judgmental decisions without fear of tort liability. After referring to certain precedents from other states, we said: So we, too, hold that although section 768.28 evinces the intent of our legislature to waive sovereign immunity on a broad basis, nevertheless, certain "discretionary" governmental functions remain immune from tort liability....

...e planning level decisions and, therefore, immune from liability as exercises of the government's police power, but that failure to warn of a danger is not. This Court decided Wong v. City of Miami, 237 So.2d 132 (Fla. 1970), before the enactment of section 768.28....

...The legal adage that hard cases make bad law is never more true than when a court attempts, on a particular set of facts, to resolve all controversy in an entire field of law. The development of the law of sovereign immunity in Florida has, since the passage of section 768.28, followed the usual pattern of common law development....

...an orderly disposition of cases. The difficulty is inherent. We will not achieve the ends of justice by fashioning a facile, but inequitable, rule. I write the foregoing will full knowledge that the majority of the Court has placed a construction on section 768.28 in the cases of Trianon Park Condominium Association v....

...Palmer, 469 So.2d 121 (Fla. 1985); Reddish v. Smith, 468 So.2d 929 (Fla. 1985) with which I disagree and from which decisions I have dissented. The "bright line" which may emerge from those cases is not one that will carry out the legislative intent of section 768.28, in my opinion, and is certainly not one that I would have drawn....

...Nonetheless, that is a common law process to which I wholeheartedly subscribe. Hopefully, the latest efforts of the Court will not obfuscate but will clarify the law. SHAW, Justice, dissenting. My views on the broad question of the waiver of sovereign immunity under article X, section 13, Florida Constitution, and section 768.28, Florida Statutes (Supp....

...The view that it is necessary as a matter of public policy for government units to be immune from liability for discretionary torts is not only contrary to the fundamental concept of a constitutional democracy which places curbs on government actions, but it is specifically contrary to article X, section 13 and section 768.28....

...ployee ... while acting within the scope of his office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable *959 to the claimant, in accordance with the general laws of this state." § 768.28(1)....

...Marston, 442 So.2d 934 (Fla. 1983); Wait v. Florida Power & Light Co., 372 So.2d 420 (Fla. 1979); City of Miami Beach v. Berns, 245 So.2d 38 (Fla. 1971); and Board of Public Instruction v. Doran, 224 So.2d 693 (Fla. 1969). As I attempted to show in my dissent to Everton, section 768.28, as amended, is a well-crafted and closely thought out method of dealing with the public policy question of whether there should or should not *960 be governmental immunity. Even if it were not so well-crafted, this Court has no constitutional power to substitute its public policy judgment for that of the legislature. Further, there is no rule of statutory construction whereby this Court is empowered to stand section 768.28 on its head by reading into the statute an exemption from suit for discretionary functions. On the contrary, the legislative history of the waiver of sovereign immunity indicates that the legislature did not intend to exempt discretionary activities. Section 768.15, Florida Statutes (1969), the predecessor to section 768.28, waived sovereign immunity but specifically provided that no action could be brought if the claim (a) Arises out of the performance or the failure to perform a discretionary function; (b) Arises out of a riot, unlawful assembly, public...

...ICK, Judge. S.A.P. appeals a final order which dismissed with prejudice her second amended complaint against appellee, State of Florida Department of Health and Rehabilitative Services (HRS), based upon the application of the statute of limitations, section 768.28(12), Florida Statutes (1993)....

...Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ. DANIEL S. PEARSON, Judge. A jury returned a verdict in the amount of $85,000 in favor of David Berek and against Metropolitan Dade County. The trial court, pursuant to the limitation fixed by the waiver of sovereign immunity statute, Section 768.28, Florida Statutes (1979), entered judgment against the County for $50,000....

...Berek then moved the trial court to order the County to pay his costs of litigating the action and interest accrued after judgment. Berek's motion was denied, and this appeal ensued. We affirm. Our decision turns on the construction to be given to Section 768.28(5), Florida Statutes (1979), which provides, in pertinent part: "The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, bu...

...1958), and the need for the orderly administration of government, which, in the absence of immunity, would be disrupted if the state could be sued at the instance of every citizen, State Road Department v. Tharp, 146 Fla. 745, 1 So.2d 868 (Fla. 1941). The enactment in 1973 of Section 768.28(5) was a legislative declaration that the countervailing public policy of allowing citizens injured by the tortious action or inaction of the state to sue for the recovery of damages outweighed the state's interest in not being discommoded by litigation....

...s on the public treasury by limiting the waiver of sovereign immunity to a specified dollar amount, $50,000. Thus, the policy of protecting the public against profligate encroachment on taxpayers' moneys remains in effect. We therefore must construe Section 768.28(5) in accordance with this policy and employ a rule of strict construction against waiver of immunity beyond this amount. Spangler v. Florida State Turnpike Authority, supra . Section 768.28(5) contains no specific provision authorizing the payment of costs and interest....

...We decline to follow the holding in State, Board of Regents v. Yant, 360 So.2d 99 (Fla. 1st DCA 1978), that the state is liable for interest and costs beyond the $50,000 limit. [1] In our view, the court there *759 gave unwarranted meaning to the provision in Section 768.28, which states that "liability shall not include punitive damages or interest for the period prior to judgment." Employing a single rule of statutory construction, expressio unius exclusio alterius, the court in Yant concluded from the...

...2d DCA 1980), follows Yant in this regard, we decline to follow it as well. The separate holding in Knowles that a single claimant can recover more than $50,000 where there is more than one claimant and the total claims do not exceed $100,000, involves a construction of a distinct clause of Section 768.28, which we are not asked to construe....

...“[T]he Florida Constitution creates within each county a sheriff and describes the sheriff, quite properly, as a ‘constitutional officer’ of Florida.” Ramirez v. Hillsborough Cnty. Sheriff’s Of: fice, — F.Supp.2d-, -, 2011 WL 976380 , at *1 (M.D.Fla. Mar. 18, 2011). Section 768.28(9)(a), Florida Statutes, provides that the “exclusive remedy” for an injury or damage allegedly caused by “an act, event, or omission of an officer, employee, or agent of the state or any of its subdivisions or constitutional off...

...Sheriffs Office, — F.Supp.2d--, —;—, 2006 WL 2037151 , at *2 (M,D.Fla. July 18, 2006) (“Florida law provides that the proper party to be sued for the alleged wrongful acts of sheriffs deputies is the sheriff, the constitutional . officer.”) (citing § 768.28(9), Fla....

...his individual capacity, amendment would be futile. Although Defendants’ Motion failed to make the appropriate argument, it is clear that any conduct related to the inter-agency search is barred by the applicable statute of limitations, Fla. Stat. 768.28(6)(a), as addressed in more detail below....

...of prosecution and the presentation of the government’s case.” Davis v. Markley, 601 Fed.Appx. 799, 801 (11th Cir.2015) (quoting Imbler v. Pachtman, 424 U.S. 409, 430-31 , 96 S.Ct. 984 , 47 L.Ed.2d 128 (1976)). As previously noted, “[s]ection 768.28(9)(a) [Fla....

...illful disregard of human' rights and safety.” Castellano v. Raynor, 725 So.2d 1197, 1198 (Fla. 2d DCA 1999); see Parker v. Fla. Bd. of Regents, 724 So.2d 163, 167 (Fla. 1st DCA 1998) (“Although the statute does not define ‘bad faith,’ under section 768.28(9)(a), ‘[b]ad faith has been equated with the actual malice standard.’”)....

...§ 1983 , Count I, and intentional infliction of emotional distress, Count VII. However, these claims are also barred by the applicable statute of limitations, as they appear to rely on the same facts discussed herein regarding the inter-agency search of Plaintiffs home on June 3, 2010. See Compl. ¶¶49, 56; Fla. Stat. 768.28(6)(a) (providing, that tort claims must be presented in writing to the appropriate agency within three years after such claim accrues)....

...[32] (WPB reply to motion). In fact, the only mention of WPB in the factual allegations of the Complaint is that it is a municipality of the State of Florida, duly organized and existing under the laws- of the State of Florida, which can be sued under Fla. Stat. § 768.28 ....

...unity, to wit, demonstrating that Chief Williams acted outside of the course and scope of his employment with bad faith, malicious purpose, “or in a manner exhibiting wanton and willful disregard of human rights, safety, Or property.” Fla. Stat. § 768.28 (9)(a)....

...ugh its Police Department, and Chief Williams,” the Complaint is devoid- of any factual allegations demonstrating that Chief Williams acted with actual 'malice or in bad faith sufficient to pierce the immunity afforded to him under'Florida Statute § 768.28(9)....

...ion of evidence and coercion of witnesses. Id. ¶¶ 24, 33, 47. For these reasons, Plaintiff fails to allege conduct by Chief Williams sufficient to establish the bad faith element required to remove the individual immunity that he is afforded under § 768.28(9)....

...s and misstatements, and failed to inform the issuing judge that previous [] charges against [plaintiff] had been dismissed,” reasoning that such allegations were insufficient to establish bad faith as required to waive sergeant’s immunity under § 768.28(9)). Even assuming that the Plaintiff has set forth sufficient factual allegations to establish the bad faith necessary to strip Chief Williams of the individual immunity he is afforded under § 768.28(9), Mr....

...Accordingly, each of the counts asserted against Detective Paine fail, not only for insufficient pleading, but also due to the applicable statutes of limitation and abso *1373 lute and/or qualified immunity, as discussed in detail above. See, e.g., Fla. Stat. § 768.28 (9)(a); McNayr v....

...City of Riviera Beach, ECF No. [13] All seven counts in the Complaint are asserted against the City of Riviera Beach—and all seven fail as either time-barred, see Fla. Stat. § 95.11 , or precluded by absolute and/or qualified immunity. See, e.g., Fla. Stat. § 768.28 (9)(a); McNayr, 184 So.2d at 433 ....

....” 512 U.S. 477, 484 , 114 S.Ct. 2364 , 129 L.Ed.2d 383 (1994). . Furthermore, the Defendant contends that Plaintiff failed to provide it with the requisite notice for his tort claim of intentional infliction of emotional distress under Fla. Stat. 768.28(6)(a)....

...Subsequent to the parties entering into a final binding offer of judgment in the amount of $30,001, the trial judge awarded $11,000 in attorney's fees to appellee, the prevailing party. Appellants claim the award exceeds the maximum amount allowed under Florida's Tort Claims Act, specifically 768.28(8), limiting attorney fees to twenty-five percent of the settlement award, which in the case at bar would be no more than $7,500....

...Section 768.56(1) states in part: Except as otherwise provided by law, the court shall award a reasonable attorney's fee to the prevailing party in any civil action which involves a claim for damages by reason of injury, death, or monetary loss on account of alleged malpractice.... (emphasis supplied) We agree that section 768.28(8) may limit attorney's fees awarded under section 768.56 in medical malpractice actions filed against the state or its subdivisions, cf. Ingraham v. Dade County School Board, 450 So.2d 847, 849 (Fla. 1984); however, appellants initially must demonstrate that they come within the purview of the waiver of the sovereign immunity statute, section 768.28, or, more specifically, are state agencies or "corporations primarily acting as instrumentalities or agencies of the state, counties or municipalities." (emphasis supplied) See section 768.28(2). It is obvious that appellant Board of Regents is a state agency within the scope of section 768.28. Accordingly, attorney's fees assessed against it are subject to the twenty-five percent limitation as provided in section 768.28(8)....

...s Act. See Hollis v. School Board of Leon County, 384 So.2d 661, 663 (Fla. 1st DCA 1980). Applying the relevant factors set forth above, we conclude that Shands is not a corporation primarily acting as an instrumentality of the state, as required by section 768.28(2)....

...As noted earlier, Shands has not introduced or offered any evidence to rebut this finding, nor can we glean any other reasonable interpretation from the record before us. We affirm the attorney's fee award as it relates to Shands, but modify the order as to the Board of Regents, finding the twenty-five percent limitation in section 768.28(8) applicable as to it....

...[1] Michigan *421 Millers states that our decision in Allstate Insurance Co. v. Boynton, 486 So.2d 552 (Fla. 1986), holds that an uninsured motorist carrier can assert whatever substantive defenses or immunities that would be available to the uninsured motorist. Thus, Michigan Millers contends that because section 768.28, Florida Statutes (1987), limits any recovery against the school board to $100,000 per person and $200,000 per accident, those same limits can be raised as a defense on its behalf as well....

...ecovery for the injured worker which achieved society's goal of protecting the worker and protected employers in exchange for their provision of immediate, guaranteed benefits. That is not the case before us here. The limited immunity afforded under section 768.28 does not prohibit a plaintiff from bringing an action and obtaining a judgment for damages against the tortfeasor as does the absolute immunity afforded under the workers' compensation statute....

...City of Jacksonville, 403 So.2d 379, 386-87 (Fla. 1981): The sovereign immunity issue has been regularly before the courts because prohibition against recovery for governmental negligence is harsh and resulted in considerable injustice. ... It is important to note that, although section 768.28 imposes a ......

...onal relief by petition to the legislature. Further, and more important, in Gerard v. Department of Transportation, 472 So.2d 1170, 1172-73 (Fla. 1985), and Berek v. Metropolitan Dade County, 422 So.2d 838, 840-41 (Fla. 1982), we expressly held that section 768.28 authorizes the rendition of a judgment in excess of the amount the state can be required to pay as a preliminary step to seeking a claims bill with the legislature. We also note the wording of the sovereign immunity statute regarding insurance coverage. In section 768.28, the legislature stated: Notwithstanding the limited waiver of sovereign immunity provided herein, the state or an agency or subdivision thereof may agree, within the limits of insurance coverage provided, to settle a claim made or a j...

...shall not be deemed to have waived any defense of sovereign immunity or to have increased the limits of its liability as a result of its obtaining insurance coverage for tortious acts in excess of the $100,000 or $200,000 waiver provided above. *422 § 768.28(5), Fla. Stat. (1987) (emphasis added). This wording reflects that the legislature specifically recognized that the limits under the statute were discretionary and could be increased if insurance coverage was provided. In conclusion, section 768.28 authorizes the rendition of a judgment in excess of the amount the State can be required to pay due to sovereign immunity....

...Furthermore, the legislature has determined that, in addition to allowing discretionary recovery through a legislative claims bill, the limits of the sovereign immunity statute may be exceeded when insurance coverage is available. We find that the immunity defense available under section 768.28 is not absolute within the meaning of the term "legally entitled to recover" so as to allow such a defense to be raised substantively by an insurance carrier....

...mmunity of those agencies for the actions of a deputy sheriff acting within the scope of his employment in exercising his discretion of whether or not to take an individual into custody. This issue is created by the application and interpretation of section 768.28, Florida Statutes (1979), and Commercial Carrier Corp....

...decision in retrospect results in misfortune to innocent third parties. We first observe that only Trinko's complaint seeks to hold Deputy Parker liable in tort for actions allegedly committed within the scope of his employment as a deputy sheriff. Section 768.28(9)(a), Florida Statutes (1979), protects such an officer from being personally liable or from being named as a party defendant unless the officer acted in bad faith, with malicious intent, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Appellant Trinko's complaint contains no such allegations regarding Deputy Parker and those counts of the complaint seeking damages from him should have been dismissed pursuant to section 768.28(9)(a). If it were not for the subsequent enactment of section 768.28, Florida Statutes (1973), and the resulting decision in Commercial Carrier, we could simply affirm on the basis of Evett v....

...This required the Evett court to affirm the dismissal of the complaint against the City of Inverness because any duty of the city's police officer was owed to the public in general and not specifically to the plaintiff in that case. However, in Commercial Carrier our supreme court has held that the subsequent enactment of section 768.28 abolished the Modlin "general duty" — "special duty" doctrine as it affects governmental immunity....

...to return to our decision in Commercial Carrier. In that case, Justice Sundberg, in a thorough analysis of the law in this area, distinguished between *1001 that part of the sovereign immunity doctrine involving negligent tortious conduct waived by section 768.28, Florida Statutes (1977), and that part of the sovereign immunity doctrine identified at times as official or governmental immunity not waived by the statute....

...Federal Tort Claims Act, 31 Wash.L.Rev. 207 (1956). Commercial Carrier, 371 So.2d at 1019 (emphasis added). Id., 419 So.2d at 1075. Our problem in deciding this case derives from the holding in Commercial Carrier that: So we, too, hold that although section 768.28 evinces the intent of our legislature to waive sovereign immunity on a broad basis, nevertheless, certain "discretionary" governmental functions remain immune from tort liability....

...In regard to the exercise of discretion at the subsequent stages of the criminal process, we encourage a close reading of Judge Hurley's opinion in Berry v. State, 400 So.2d 80 (Fla. 4th DCA 1981), regarding judicial and prosecutorial immunity in light of section 768.28....

...This is a petition to review a decision of the First District Court of Appeal reported at 391 So.2d 283 (Fla. 1st DCA 1980). It concerns the vicarious responsibility of the state for state-owned vehicles under the waiver of sovereign immunity provisions of section 768.28, Florida Statutes (1979)....

...The district court held that the state was not liable under the section for injuries caused by a state employee operating a state vehicle when the employee was acting outside the scope of his employment. After so holding, the district court certified the following question to this Court: WHETHER SECTION 768.28, FLORIDA STATUTES, MAKES THE DANGEROUS INSTRUMENTALITY DOCTRINE APPLICABLE TO THE STATE OF FLORIDA. We answer the question in the negative, finding there was clearly no legislative intent to hold the state vicariously liable by the enactment of section 768.28....

...On the state's motion, the trial court entered summary judgment in favor of the state on the grounds that Sambrine was not acting within the scope of his employment at the time of the accident. The district court affirmed. Petitioners contend that section 768.28 does render the state liable because they assert Sambrine was acting within the scope of his employment at the time of the accident, given that he had twenty-four-hour-a-day custody of the state vehicle. Petitioners further assert that, even if Sambrine was acting outside the scope of his employment at the time of the accident, section 768.28(5) waives the state's immunity because it provides "[t]he state ......

...Had the legislature intended to accept vicarious responsibility for the operation of state vehicles while in use for nonstate purposes, we believe it would have expressly so provided. We hold, therefore, that twenty-four-hour assignment of a state-owned vehicle to a state employee does not enlarge state liability under section 768.28 to include acts committed outside the employee's scope of employment. We further note, as did the district court, that this decision is in accordance with the federal court's construction of section 768.28's counterpart in the Federal Torts Claim Act....

...The decision of the district court is affirmed and its opinion approved in its entirety. It is so ordered. SUNDBERG, C.J., and ALDERMAN and McDONALD, JJ., concur. BOYD, J., dissents with an opinion, in which ADKINS, J., concurs. BOYD, Justice, dissenting. Section 768.28(5), Florida Statutes (1979), provides: "The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances......

...If this were a case of a tort claim against the state for injuries negligently or wrongfully caused by an employee, by means other than an automobile or other dangerous instrumentality, acting outside the scope of employment, then the majority's disposition based on the language in section 768.28(1) would be correct. The dangerous instrumentality doctrine, however, operates independently from the doctrine of respondeat superior. Lynch v. Walker, 159 Fla. 188, 31 So.2d 268 (1947). Similarly, section 768.28(5) operates independently from the "scope of employment" language in section *1047 768.28(1). By virtue of section 768.28(5), the state has placed itself on equal footing with other persons who exercise the privilege of operating automobiles on the public roads. Moreover, this interpretation of section 768.28(5) is not inconsistent with section 768.28(1)....

...ration. Thus in this case there was wrongful conduct on the part of the driver's superiors in entrusting a state vehicle to an employee for off-hours use. Such wrongful conduct of the superiors was surely committed within the scope of employment and section 768.28(1) is satisfied....

...and to the same extent as a private individual under like circumstances, and the legislature has clearly so indicated. If the state were held liable in this case, the maximum amount of the judgment would be $100,000 by virtue of the limit imposed by section 768.28(5)....

...Parker, relying upon sections 240.227(5) [2] and 240.227(12), [3] Florida Statutes (1989). Regarding the fraud claim, the state argued that bad faith was inherent in every action for fraud and, therefore, the state cannot be held liable for the fraud committed by Dean Cnudde pursuant to section 768.28(9)(a), Florida Statutes (1989)....

...[5] The trial court entered the order appealed, ruling that sovereign immunity barred both the fraud and contract claims. As to the fraudulent misrepresentation claim, the court ruled that while bad faith is not an express element of the cause of action for fraud, it is the gist of such cause of action and thus, section 768.28(9)(a), Florida Statutes (1989), precluded Dr....

...Fraudulent Misrepresentation Claim The issue presented here is whether as a matter of law the element of bad faith is inherent in any action for fraudulent misrepresentation [6] and, as a result, fraudulent misrepresentation claims against the state are barred by the doctrine of sovereign immunity pursuant to section 768.28(9)(a), Florida Statutes (1989). Section 768.28(1), Florida Statutes (1989), provides that, subject to the limitations of section 768.28, a governmental agency is liable for: 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 his office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state.... Section 768.28(9)(a) provides for sovereign immunity for acts committed by governmental employees acting within the course and scope of employment which are "committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property." § 768.28(9)(a), Fla. Stat. (1989). Although the statute does not define "bad faith," under section 768.28(9)(a), "[b]ad faith has been equated with the actual malice standard." Ford v....

...n for fraud whether the fraud action is based on intentional misconduct or on reckless disregard for the truth. To the extent that prior Florida case law suggested otherwise, we conclude that such cases were overruled sub silencio by Ablanedo. Under section 768.28(9)(a), the state is liable for the actions of Dean Cnudde within the scope of his employment unless he was acting in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety or property....

...Hackeny of Cummins, Mueller & Judson, P.A., Leesburg, for Academy of Florida Trial Lawyers, Amicus Curiae. PER CURIAM. We have for review a decision addressing the following question certified to be of great public importance: WHETHER IMMUNITY PURSUANT TO FLORIDA STATUTE 768.28 SHOULD BE GRANTED TO PHYSICIAN CONSULTANTS WHO CONTRACT WITH THE FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, CHILDREN'S MEDICAL SERVICES....

...We agree that CMS physician consultants are independent contractors. However, notwithstanding their independent contractor status, they are not precluded from being agents of the state—thereby entitling them to its statutory immunity from suit and liability as provided by section 768.28, Florida Statutes: (9)(a) No officer, employee, or agent of the state ... shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of his employment or function.... § 768.28(9)(a), Fla....

...NOTES [1] The legislature has authorized HRS to establish CMS clinics statewide pursuant to the Children's Medical Services Act, chapter 391, Florida Statutes (1993), in order to provide medical care to indigent, chronically disabled children. Employees and agents of the state are protected under section 768.28(9)(a), Florida Statutes (1993).

...Julie Johnson, individually, and as next friend of her children, Robin Johnson, Nicole Johnson, and Zachary Cleek, appeals from a final order dismissing her second amended complaint [1] in this action under 42 U.S.C. § 1983 and the Florida Tort Claims Act, section 768.28, Florida Statutes (Supp.1988), against appellees the Department of Health and Rehabilitative Services (HRS), the City of St....

...ke child resulted in injuries). As to the remainder of count V against all the defendants, we affirm the trial court's dismissal. See Carpenter v. City of St. Petersburg, 547 So.2d 339 (Fla. 2d DCA 1989) (officer and city immune from liability under section 768.28(9)(a) for negligent arrest)....

...ial court properly dismissed those claims. As this court said in Sebring Utilities Comm'n v. Sicher, 509 So.2d 968, 970 (Fla. 2d DCA 1987), "Malice is not only an essential element of malicious prosecution; it is the gist of such a cause of action." Section 768.28(9)(a) bars an action for malicious prosecution against the state or its subdivisions arising from the malicious acts of their employees....

...The trial court denied the motion to dismiss against Sackett for malicious prosecution, and we affirm the trial court on that point. The defendants also attacked the joinder of the individual defendants and the government entities in counts II, III, V, and VI of the complaint. It is well established that under section 768.28(9)(a), Florida Statutes (Supp.1988), [3] that "[i]n any given situation either the agency can be held liable under Florida law, or the employee, but not both." McGhee v....

...n the scope of their employment and, in the alternative, pursue personal liability of these defendants for acts "in bad faith or with malicious purpose or in a manner *931 exhibiting wanton and willful disregard of human rights, safety or property." § 768.28(9)(a), Fla.Stat....

...NOTES [1] The trial court denied the dismissal of a battery claim and malicious prosecution claim against Sackett. Otherwise, the trial court dismissed the complaint with prejudice. [2] The complaint is comprised of twenty-nine pages of detailed allegations. [3] Section 768.28(9)(a), Florida Statutes (Supp....

...ss clause, article I section 9, of the Florida Constitution. We further find that if any such action existed, a lawsuit against the City of Fort Lauderdale and its police officer, Cristobal Reyes, would be barred by sovereign immunity. See generally § 768.28, Fla....

...4th DCA 1990), that Garcia's co-defendant was "objectively" entrapped as a matter of law in a reversesting operation by the police. Garcia argues that police misconduct violated his state due process rights constituting a wrongful act within the meaning of section 768.28. However, our supreme court has announced that "§ 768.28, when viewed alone, was intended to render the state and its agencies liable for damages for traditional torts under state law, but to exclude such liability for `constitutional torts.'" Hill v....

...federal civil rights actions arising under § 1983 in Florida courts. See Howlett v. Rose, 496 U.S. 356, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990). It did not, however, disturb Hill's broader statement that the waiver of sovereign immunity pursuant to section 768.28 extended to traditional torts but not to "constitutional torts." "[T]he creation of section 768.28, waiving sovereign immunity in certain circumstances, created no new causes of action against a governmental entity which did not previously exist." Huff v....

...enactment of the statute waiving sovereign immunity did not establish any new duty of care for governmental entities. The statute's sole purpose was to waive that immunity which prevented recovery for breaches of existing common law duties of care. Section 768.28 provides that governmental entities "shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances." This effectively means that the identical existing duties for private persons apply to governmental entities....

...PARIENTE, Judge, concurring specially. I concur with the majority opinion, but write to address additional areas of concern under the facts of this case. Garcia asserts that his third amended complaint states a cause of action for a "state constitutional tort" under section 768.28(5) that closely parallels the type of constitutional tort under 42 U.S.C....

...es necessary to administer this chapter. The department shall have the power to accept payment for services rendered pursuant to rules and regulations of the department. (e.s.) The issue of HRS' sovereign immunity is instead governed, they argue, by Section 768.28, Florida Statutes (1981), which in general terms provides that the State of Florida has "waive[d] sovereign immunity for liability for torts" for itself as well as for "its agencies or subdivisions." They further contend that the court...

...s. HRS responds that the legislature clearly intended that it be excluded from the state's general waiver of sovereign immunity and that section *224 402.34, being a statute specifically relating to its immunity from tort liability must prevail over section 768.28, a statute limiting sovereign immunity only in general terms....

...ine HRS' capacity to sue or be sued. See Bergen Brunswig Corporation v. State, Department of Health and Rehabilitative Services, 415 So.2d 765 (Fla. 1st DCA 1982). [9] The lack of a clear legislative intent is certainly not evident from a reading of section 768.28, which exposes the state and its subdivisions to tort claims "in cases where a private person would be liable." See Jetton v. Jacksonville Electric Authority, 399 So.2d 396, 397 (Fla. 1st DCA 1981). [10] *225 The "evil" to be corrected by section 768.28's sweeping changes was unquestionably the prior system of absolute sovereign immunity which denied, to anyone having the misfortune of being injured due to the negligence of a governmental entity or its agents, the right to recover damages for such injuries in court. The obvious inequities of the old system led the Florida Supreme Court to observe that [i]n our view, section 768.28, rather than denying equal protection, has in fact brought fairness, equality, and consistency to an area of the law which for over one hundred years has been beset with contradiction, inconsistency, and confusion... . Clearly, the even-handed application of immunity under section 768.28 furthers equal protection of the law under our constitution rather than denies it....

...tection and access to the courts. We will decline to do so if the relief requested may be granted on nonconstitutional grounds. See, Curless v. County of Clay, 395 So.2d 255 (Fla. 1st DCA 1981). Because we conclude that the conflict between sections 768.28 and 402.34 may be resolved by application of the rule of "implied repeal," we do not reach the constitutional issues presented by appellants....

...1983), we nevertheless conclude that the implied repeal rule is particularly applicable in this case in which a specific statute (section 402.34), purportedly dealing with the sovereign immunity of a particular agency, conflicts with a general statute (section 768.28) that expresses the legislative intent to revise completely the law of Florida regarding sovereign immunity....

...ded to revise completely the law concerning a broad range of criminal activities, had impliedly repealed section 812.041, the so-called "joy-riding statute." 427 So.2d at 168. An application of the above principles convinces us that the enactment of section 768.28, a general revision of Florida's law of sovereign immunity, impliedly repealed section 402.34 insofar as it purports to immunize HRS, a particular agency, from tort liability....

...Although we will not comment on the merits of a case which is apparently still pending before the circuit court, we would note that the position taken by HRS, that it can never be vicariously liable for the acts of individuals such as the Martins, is contrary to the clear language of section 768.28 which makes the state, its agencies and subdivisions liable, vicariously to be sure, for tortious acts of its employees or agents while they are acting within the scope of their employment. The fact that vicarious liability is contemplated is further bolstered by the 1981 amendments to section 768.28, which preclude the naming of state officers, employees or agents as party defendants to suits, and provides that the exclusive remedy, in most situations, is an action against the governmental entity....

...The obvious issue, whether an employer/employee relationship exists, has not yet been resolved in this case. See note 3, supra. [7] The issue of HRS' immunity from tort liability has been raised in several prior cases with conflicting results. In an action occurring prior to the effective date of section 768.28, it was held that the department was immune from tort liability. See Loucks v. Adair, 312 So.2d 531 (Fla. 1st DCA 1975). In a later action, occurring after 1973, this court, in affirming a jury verdict adverse to HRS, concluded that section 768.28 had waived sovereign immunity for HRS as well as other state subdivisions....

...McDougall, 359 So.2d 528 (Fla. 1st DCA 1978). In 1976, the Florida attorney general was called upon to determine if HRS was immune from potential tort liability relating to the swine flu immunization program. He concluded that the state, by its enactment of section 768.28, had "waived its immunity with respect to tort liability for state agencies including executive departments such as the Department of Health and Rehabilitative Services." 1976 Op....

...[9] In Bergen, HRS brought an action in conversion and prevailed in the trial court. On appeal, the corporation first raised the issue of HRS' lack of capacity to sue in tort based on section 402.34. Because that issue was not properly before or considered by the trial court, we declined to consider it on appeal. [10] Section 768.28 was enacted in 1973 for the purpose of allowing actions "against the state or any of its agencies or political subdivisions for the tortious acts of their employees." Ch....

...That section was then amended in 1974 to include "agents" as well as employees. See, Ch. 74-235, Laws of Florida. When confusion arose over whether counties and municipalities were to be included, the section was again amended in 1977 to demonstrate that, in "enacting section 768.28, Florida Statutes, the Legislature clearly intended to make the state, the counties, and the municipalities liable for tort claims in the same manner and to the same extent as a private individual under like circumstances... ." Ch. 77-86, Laws of Florida. Additional amendments have been added to Section 768.28 since 1977 which are unrelated to this issue. See Ch. 79-139, Ch. 79-253, Ch. 79-400, Ch. 80-271 and Ch. 81-317, Laws of Florida. [11] Our finding that HRS is governed by section 768.28, as are all other governmental agencies in Florida, does not subject it in all cases to tort liability. It is clear that there are two types of sovereign immunity: (1) sovereign immunity for negligent tortious conduct which has been waived by section 768.28, and (2) "official or governmental immunity" which has not been waived....

...ening the wrestling mats together. Rubin alleged the dangerous condition was the proximate cause of his injuries. After much discovery, Lindsey moved for summary judgment, asserting he was an agent of FAU and that the claim against him was barred by section 768.28(9)(a) [1] , Florida Statutes (2008)....

...hat should be resolved by the trier of fact. We, therefore, reverse the entry of summary judgment in favor of Lindsey and remand for further proceedings. Reversed and Remanded for Further Proceedings. STEVENSON and DAMOORGIAN, JJ., concur. NOTES [1] Section 768.28(9)(a), Florida Statutes, provides: No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a res...

...2d DCA 1978). According to her argument, the trial court may revive the abated action once she complies with the statutory prerequisites. In any event, Freundlich asserts, the notice she provided to Jackson Memorial Hospital on June 12, 1985, pursuant to section 768.28(6)(a), Florida Statutes (Supp. 1984), satisfied the requirements of section 768.57. We disagree. This case presents a question of first impression under the recently enacted statute. We turn for guidance in reaching our decision to cases interpreting section 768.28(6), Florida Statutes (1985), a statute with similar language. See Levine v. Dade County School Board, 442 So.2d 210 (Fla. 1983); Dukanauskas v. Metropolitan Dade County, 378 So.2d 74 (Fla. 3d DCA 1979); § 768.28, Fla. Stat. (1985). Section 768.28(6) describes conditions precedent to the institution of a claim against the state....

...Both Levine and Dukanauskas hold that compliance with statutory conditions precedent and allegations of compliance are essential to the complaint. Levine, 442 So.2d at 213; Dukanauskas, 378 So.2d at 76. Because sovereign immunity is waived only to the extent specified in section 768.28, once the limitations period expires, plaintiff loses the opportunity to provide the omitted requirements....

...Calhoun County, 441 So.2d 1108 (Fla. 1st DCA 1983); Dukanauskas; see Halpin v. Short, 490 So.2d 1271 (Fla. 2d DCA 1986); cf. Wemett v. Duval County, 485 So.2d 892 (Fla. 1st DCA 1986) (dismissal of complaint with prejudice error where plaintiff could comply with § 768.28(6)(a) within limitations period); Lee v....

...Freundlich's notice to Jackson Memorial Hospital does not constitute notice to other defendants under section 768.57. For these reasons, we grant the writ and prohibit revival of the action against the University of Miami and Dr. Scheinberg; however, because the applicable statute of limitations, § 768.28(11), Fla....

...use of action accrued. [3] Section 768.57(3)(a), Florida Statutes (1985), provides: (3)(a) No suit may be filed for a period of 90 days after notice is served upon the prospective defendant, except that this period shall be 180 days if controlled by s. 768.28(6)(a)....

...1-105 (1992) [hereinafter Wetherington & Pollock ]. Generally speaking, the state and its subdivisions, including municipalities and counties, are sovereignly immune from tort liability unless such immunity is expressly waived by statute. See Art. X, § 13, Fla. Const. Section 768.28, Florida Statutes (1985), [1] in turn, expressly waives sovereign tort immunity and allows the maintenance of actions against the state and its subdivisions, including municipalities and counties, "to recover damages in tort ......

...C Turning to the instant case, we have no trouble in concluding that the City of Miami and its police officers herein are immune from the negligence suit below based on a confluence of both the discretionary function and public duty doctrine exceptions to the waiver of sovereign tort immunity under Section 768.28, Florida Statutes (1985)....

...vernmental entity involved to excessive tort liability. For the above-stated reasons, the final summary judgment under review is, in all respects, Affirmed. NOTES [1] Because the incident in this case took place in February 1987, the 1985 version of Section 768.28 was in effect at that time and, accordingly, governs the disposition of this case....

...We therefore assume but do not decide that the complaint states a cause of action. In the recent landmark case, Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979), the Florida Supreme Court redefined the waiver of sovereign immunity under Section 768.28, Florida Statutes....

...e negligent release of these people will have a chilling effect upon the administration of programs such as that offered by the Northeast Florida State Hospital. However, this potential chilling effect is significantly mitigated by the provisions of Section 768.28(9): *425 "No officer, employee, or agent of the state or its subdivisions shall be held personally liable in tort for a final judgment which has been rendered against him for any injuries or damages suffered as a result of any act, eve...

...NOTES [1] This holding in Johnson v. State was predicated upon an express statutory exception in the California statute regarding discretionary functions. Cal.Gov.Code, § 820.2. Inasmuch as the Florida Supreme Court has grafted such an exception into Section 768.28 [ Commercial Carrier Corp....

...It is unnecessary, however, that we resolve the question of foreseeability as to the sheriff because we find the entry of the summary final judgment was correct for another reason. *532 This action was brought as a result of the state's partial waiver of its sovereign immunity which it accomplished by § 768.28, Florida Statutes....

...There was no affirmative intervening cause shown by the evidence to have caused the death. Appellants contend that the principle of law stated in Modlin bars appellees' action against appellants. The doctrine established by Modlin related to suits against governmental entities prior to the enactment of § 768.28, Florida Statutes. Under Modlin, a governmental agency was not liable for negligence of its employees unless the duty which was breached by the employee was a duty owed to the injured party as distinguished from a duty owed to the public generally. § 768.28 has now abrogated that rule as to actions falling within the realm of that section, and in such cases a state agency is liable for a wrongful act or omission of any employee of the agency while acting within the scope of his office or employment under circumstances in which the state or such agency, if a private person, would be liable to the claimant in accordance with the general laws of this state. Subsection (5) of § 768.28 restricts the state's monetary liability by the following statement: "Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $50,000 or any claim or judgmen...

...ed. But it does not impose the latter as a condition precedent to the former, nor employ language to the effect that no action for subrogation may be filed until then. Cf. § 766.104(1), Fla. Stat. (1997); §§ 766.106(2) and (3), Fla. Stat. (1997); § 768.28(6)(a), Fla....

...rom 30 days after the date of the accident. On November 28, 1990, DOT filed a motion for relief from judgment, pursuant to Florida Rule of Civil Procedure 1.540, requesting that the trial court strike the *1386 award of prejudgment interest based on Section 768.28(5), Florida Statutes, which preserves the state's sovereign immunity against awards of prejudgment interest in tort litigation....

...nt interest based on the finality of the prior order of December 10, 1990, denying DOT's first motion to set aside the judgment. Appellant, DOT, now seeks review of the trial court's second order refusing to strike the award of prejudgment interest. Section 768.28(5), Florida Statutes (1985), waives sovereign immunity for tort claims and states in pertinent part: The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private ind...

...initial motion for postjudgment relief. Streater v. Stamper, 466 So.2d 397 (Fla. 1st DCA 1985); Perkins v. Salem, 249 So.2d 466 (Fla. 1st DCA 1971). Initially, we note that the trial court's award of prejudgment interest was clearly erroneous under Section 768.28(5)....

...d of prejudgment interest on the ground that such an award was void for lack of subject matter jurisdiction. Fla. R.Civ.P. 1.540(b)(4). Although DOT's first Rule 1.540 motion does not by its terms state this precise argument, the motion does rely on Section 768.28, Florida Statutes, to claim error in the trial court's award of prejudgment interest....

...the relief sought. See Hutchins v. Mills, 363 So.2d 818, 821 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1368 (Fla. 1979). Because an award of prejudgment interest does not fall within the parameters of the waiver of sovereign immunity expressed in Section 768.28, Florida Statutes, the trial court was without jurisdiction to enter such an award....

...Although "at one time suits such as this would have been dismissed for lack of subject matter jurisdiction without regard to the merits of the underlying claim," Department of Education v. Roe, 679 So.2d 756, 758 (Fla.1996), the limited waiver of sovereign immunity embodied in section 768.28, Florida Statutes (1973), as well as the waiver embodied in the F.C.R.A., now means that the trial court had jurisdiction to determine whether the defense of sovereign immunity applies to Appellant's claims....

...Department of Natural Resources, 339 So.2d 1113, 1114 (Fla.1976); Jackson v. Palm Beach County, 360 So.2d 1 (Fla. 4th DCA 1978); Buck v. McLean, 115 So.2d 764 (Fla. 1st DCA 1959). Unquestionably, the Florida Legislature has the constitutional power to enact laws waiving sovereign immunity. See, e.g., section 768.28, Florida Statutes (1973)....

...Fifth, the Florida Legislature expressly provided that "the state and its agencies and subdivisions shall not be liable for punitive damages," while "[t]he total amount of recovery against the state and its agencies and subdivisions shall not exceed the limitation as set forth in s. 768.28(5)." § 760.11(5), Fla. Stat. (1997) (emphasis added). The cross-referenced provision, section 768.28(5), Florida Statutes (1997), immunizes "the state and its agencies and subdivisions" from punitive damages and places limits on compensatory damages....

...n of inmates as well as security within prison walls by holding out a promise of potential rewards. Id. at 283, 100 S.Ct. at 558. We think the same reasoning applies with equal effect here; we are therefore confident that the legislature in enacting section 768.28 could not and did not intend to waive any quasi-judicial immunity enjoyed by the Commission and DOC....

...Because false imprisonment and false arrest are essentially the same tort, see Weissman v. K Mart Corp., 396 So.2d 1164, 1165 n. 1 (Fla. 3d DCA 1981)("False arrest and false imprisonment are different labels for the same cause of action."), Florida case law is clear that section 768.28(5) waives sovereign immunity for the tort of false imprisonment....

...228, 229 (1938). Article X, Section 13 of the Florida Constitution (1968) recognizes sovereign immunity of this kind which, however, it authorizes the Legislature to waive by making "[p]rovision ... by general law for bringing suit against the state." "Section 768.28, Florida Statutes (1993), waives governmental immunity from tort liability `under circumstances in which the state or [an] agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state.' § 768.28(1), Fla.Stat....

...the sum of $100,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $200,000. § 768.28(5), Fla....

...[16] The complaint does not state a claim for damages against any individual. Unless the Parole Commission personnel who issued the warrants "acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property," § 768.28(9)(a), Fla....

...This is a petition to review North Broward Hospital District v. Eldred, 466 So.2d 1210 (Fla. 4th DCA 1985), in which the district court held that North Broward Hospital District, as a special taxing district, was within the sovereign immunity provisions of section 768.28, Florida Statutes (1975), and certified the following question: Is North Broward Hospital District, by its operation of the hospitals within said district, a corporation primarily acting as an instrumentality or agency of the state? 466 So.2d at 1211. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We approve the decision of the district court with the qualification that a special taxing district is an "independent establishment of the state" under the provisions of section 768.28(2)....

...The relevant facts reflect that the petitioners' minor son received a judgment for damages against North Broward Hospital District in the amount of $900,000. The respondent district moved to limit its liability to $50,000 on the grounds that it was a governmental entity entitled to the benefits of section 768.28, Florida Statutes (1975). The trial court denied the motion, but the district court reversed, concluding that the hospital was a state agency or subdivision within the definition of the phrase as set forth in section 768.28(2). *913 The issue is whether the provisions of section 768.28 waiving sovereign immunity and limiting liability for governmental entities were intended to apply to special taxing districts. The applicable portion of section 768.28 effectively waives immunity for governmental entities within operational level functions. The statute does place a cap, however, on the amount of governmental liability. The applicable portion of section 768.28(2) reads as follows: As used in this act, "state agencies or subdivisions" include the executive departments, the legislature, the judicial branch, and the independent establishments of the state; counties and municipalities; and corpo...

...We reject these contentions and find that Golden no longer applies. Since Golden, three significant events occurred. First, Florida adopted a new constitution in 1968 that expressly recognized special taxing districts as separate local governmental entities; second, in 1973 the Florida Legislature enacted section 768.28, effectively waiving sovereign immunity for all governmental entities; and, third, in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979), this Court found that the governmental proprietary analysis had no continuing validity after the enactment of section 768.28....

...1st DCA 1980) (hospital district subject to Public Employees Relations Act); Hitt v. North Broward Hospital District, 387 So.2d 482 (Fla. 4th DCA 1980) (public hospital could *914 not summarily deprive employee of state-created status). In 1973, the legislature enacted section 768.28 waiving sovereign immunity for all its agencies and subdivisions "to the extent specified in this act." In Cauley v. City of Jacksonville, 403 So.2d 379 (Fla. 1981), this Court found that one of the purposes of section 768.28 was to establish uniform liability for various governmental entities, thereby eliminating the inconsistent application of governmental liability reflected in the case law. If we accept petitioners' argument, however, a county or municipal hospital, supported by ad valorem taxation, would be covered by 768.28, while a special taxing district hospital, also supported by ad valorem taxation, would not....

...The provisions of the 1968 Constitution leave no doubt that special taxing districts are included as one of four types of local governmental entities, along with counties, school districts, and municipalities. In our view, the legislature clearly intended the provisions of section 768.28(2) to include special taxing districts within the phrase "independent establishments of the state." Although we hold that section 768.28 applies to special hospital taxing districts, and limits the judgment in this case in accordance with its provisions, we note that the legislature may direct the North Broward Hospital District to pay the balance of this judgment....

...superintendent's vicarious responsibility for the bus driver's negligence is determined by an answer to the following questions: Was the bus driver the employee of the superintendent as well as of the school board? If so, for purposes of suit under Section 768.28, is the superintendent an agency or subdivision of the state? Section 768.28(1) permits actions against the state, its agencies or subdivisions for injuries, death, etc., caused by the negligent "employee of the agency or subdivision while acting within the scope of his ....

...o it, we concluded that both "the board and the superintendent ... share . . vicarious responsibility for any unlawful purpose of the subordinate." Id. at 142. It remains to be determined, however, whether the superintendent, under the provisions of Section 768.28(2), [6] may be considered an agency or subdivision of the state....

...Since he acts as administrator and chief executive officer of the board, who recommends the adoption of policy to the board, the board could not effectively function without his assistance. The superintendent then is an integral part of the government and must be considered an agency as that term is defined in Section 768.28(2)....

...A non-governmental employer and his employee may be jointly liable to a plaintiff because, from their relationship, they are identified in the same tortious act resulting in the plaintiff's injury. Weaver v. Hale, 82 Fla. 88, 89 So. 363 (1921); Stinson v. Prevatt, 84 Fla. 416, 94 So. 656 (1922). Moreover, Section 768.28 permits an action joining both the public employer and employee. See District School Board of Lake County v. Talmadge, 381 So.2d 698, (Fla. 1980). [4] Compare Section 768.28(1) with 28 U.S.C....

...." [5] The Florida Supreme Court, when it adopted the operational/planning level test, also followed federal cases construing the discretionary function exception to tort claims, observing that the language in 28 U.S.C. § 1346(b) was practically identical to that in Section 768.28(5). Commercial Carrier Corp. v. Indian River Cty., 371 So.2d 1010, 1016 (Fla. 1979). [6] Compare the definition of a state agency, as provided in Section 768.28(2), with that of a federal agency, set out in 28 U.S.C....

...ent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States, but does not include any contractor with the United States." [7] It should be observed that the definition of agency in Section 768.28(2) is much broader in scope than it is in the Florida Administrative Procedure Act. Compare it with 120.52(1), Fla. Stat. (1977). [8] Section 768.28 does not contain any provision specifically immunizing the state from liability for negligence caused by the exercise of a discretionary function....

...The two issues here considered concern only the Hospital District. As to the first point, the issue is whether this particular hospital taxing district is "primarily acting" as a state agency and, therefore, comes within the purview of the waiver of sovereign immunity under Section 768.28, Florida Statutes (Supp....

...The trial court held the waiver did apply and we must agree because another panel of this court in the last month ruled in North Broward Hospital District v. Eldred, 466 So.2d 1210 (Fla. 1985), that such hospitals are in fact primarily acting as instrumentalities or agencies of the state and consequently Section 768.28, Florida Statutes (Supp. 1980) does apply. Turning next to the second point on appeal concerning notice prior to filing suit, Section 768.28(6), Florida Statutes (Supp....

...ntiff's amended complaint), on the ground that these claims are precluded by the plaintiff's assertion of a claim under the Rehabilitation Act § 504, is DENIED. 3. FAILURE OF THE PLAINTIFF TO ALLEGE WRITTEN NOTIFICATION OF HIS CLAIMS AS REQUIRED BY § 768.28(6)(a) OF THE FLORIDA STATUTES The defendants argue that the plaintiff has failed to allege written notification of his claims as required by § 768.28(6)(a) Florida Statutes (1986 Supp.), and seek dismissal of the plaintiff's state claims on this ground....

...See Exhibit T to the plaintiff's response to the defendants' motion to dismiss. The defendants do not dispute that they received this letter, or comment on its significance. The court is satisfied that the plaintiff has met the requirements of Florida law by notifying the Insurance Commissioner, as required by § 768.28(6)(a) of the Florida Statutes....

...d from the pleadings and portions of the record that have been furnished. Appellant argues two main points on this appeal. It argues first that it is protected by the doctrine of sovereign immunity as extended to municipalities and their agencies by section 768.28, Florida Statutes (1981) and, second, and more specifically, that tort actions against a municipal agency for malicious prosecution and punitive damages are expressly prohibited by sections 768.28(9)(a) and 768.28(5)....

...o be charged with a criminal offense in Highlands County. Appellee further alleged in paragraph five of his first amended complaint that appellant, as "an agency of the municipality of Sebring, Florida, has waived its sovereign immunity by virtue of section 768.28, Florida Statutes......

...We also find, as appellant urges, that the record contained adequate proof that appellant was acting as an instrumentality or agency of a municipality. At the close of appellee's case in chief as plaintiff below, appellant moved for a directed verdict on the grounds that section 768.28(9)(a) denied relief against an agency such as appellant for a claim based upon acts of its employees committed with malicious purpose. Appellant further argued that under section 768.28(5), it could not be held liable for punitive damages....

...ict by means of a motion for judgment in accord with its previous motions for directed *970 verdict and, alternatively, a motion for new trial. Appellant's motions were denied. We conclude, however, that appellant's motions should have been granted. Section 768.28(2) provides that the "state agencies or subdivisions" which are the subject of section 768.28, include "municipalities; and corporations primarily acting as instrumentalities or agencies of ... municipalities." In Jetton v. Jacksonville Electric Authority, 399 So.2d 396 (Fla. 1st DCA 1981), the first district held that an electric authority operated by a city was entitled to the protective limitations of liability afforded by section 768.28 even though prior to the adoption of the statute the operation by a municipality of a proprietary entity would not have been entitled to the protection afforded by the doctrine of sovereign immunity. We agree. Having found that appellant was acting as a municipality, we now turn to appellant's argument that an action against a municipality for compensatory damages based on malice is barred. Section 768.28(9)(a) provides that the "state or its subdivisions shall not be liable in tort for the acts or omissions of an officer, employee, or agent committed ......

...Talmadge, 381 So.2d 698 (Fla. 1980). See also Rupp v. Bryant, 417 So.2d 658 (Fla. 1982). Malice is not only an essential element of malicious prosecution; it is the gist of such a cause of action. Wilson v. O'Neal, 118 So.2d 101 (Fla. 1st DCA 1960). Section 768.28(9), therefore, bars an action against "state agencies or subdivisions" based upon malicious prosecution. Hambley v. State, Department of Natural Resources, 459 So.2d 408 (Fla. 1st DCA 1984). Therefore, section 768.28(9) affirmatively bars suits against municipalities for malicious prosecution arising from the malicious acts of their employees....

...ire cause of action fails. However, even had this been a case in which appellant could have been liable for compensatory damages, a claim for punitive damages against a municipality will not stand. Fisher v. City of Miami, 172 So.2d 455 (Fla. 1965); § 768.28(5), Fla....

...In this case, although the Fourth District has characterized the officials' conduct as "egregious," Crocker, 727 So.2d at 1089, the Crockers have advised this Court that the trial court has subsequently found as a matter of law that the individual officer was not acting in "bad faith" or "with malicious purpose." § 768.28(9)(a), Fla....

...(2000) (prohibiting the purchase or sale of human organs and tissue); 42 U.S.C. § 274e (federal law preventing the sale of human organs). Likewise, the State may perform an autopsy when necessitated by the circumstances mandated by statute. See § 406.11, Fla. Stat. (2000). [11] Section 768.28(9)(a) provides the applicable standard: No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as...

...In particular, this Court has stated that: [E]ven assuming that the hospital's actions were willful, Jackson Memorial Hospital, as a county-owned hospital, is immune from liability for a willful, wanton or malicious conduct claim against one of its employees. See § 768.28(9)(a), Fla....

...City of Hialeah, 468 So.2d 912 (Fla. 1985), we must first decide whether this case involves a governmental function that creates a common law duty to an individual. If so, we must next decide whether that duty is subject to litigation under the waiver of sovereign immunity. § 768.28, Fla....

...section of the opinion. General services involve many functions which are foreign to the private sector. As a result, general services present a difficult area in which to assess governmental tort liability. It is now well established, however, that section 768.28, Florida Statutes (1989), does not create new duties owing by the government, but rather permits recovery under duties the government would owe if it were a "private person." Kaisner v....

...Defendants have moved for dismissal on several grounds. BACKGROUND Plaintiffs allege civil rights violations under 42 U.S.C. §§ 1983 and 1988, various Amendments to the Constitution of the United States are cited without substantiation, and a claim is made under the Florida Wrongful Death Act, § 768.28, Florida Statutes....

...Richmond Police Dept., 567 F.2d 263 (4th Cir.1977); Shelby v. City of Atlanta, 578 F.Supp. 1368 (N.D.Ga.1984). Therefore, MPD is not a proper party in this litigation and must be dismissed. D. Whether Plaintiffs gave insufficient notice under Chapter 768.28(6)(a), Florida Statutes before filing suit Defendants claim that Plaintiffs gave insufficient notice that a wrongful death claim and a § 1983 violation of civil rights claim would be made by the Estate of ALLAN BLANCHARD....

...period. This Court refuses to countenance such self-serving pleading. The notice requirement is a condition precedent to the filing of a state claim against a municipality. Levine v. Dade County School Bd., 442 So.2d 210 (Fla.1983). Florida Statute § 768.28(6)(a) provides that a plaintiff must present the claim in writing to the appropriate agent and municipality, and that agency must deny the claim....

...failure to make good faith offer of settlement within 18 days of notice of the claim, after actively pursuing settlement negotiations, was a de facto denial of the claim and that Defendants have therefore waived the six month notice requirements of § 768.28(6)(a)....

...Whether Count II and Count III fail to state a claim Defendants argue that Plaintiffs' pendent state law claims should be dismissed for failure to state a claim. Because this Court has disposed of the state law claims for failure to meet the notice requirements of § 768.28(6)(a), this Court need not address this issue....

...nce, to correct or stop the practices. Spell v. McDaniel, supra, 824 F.2d at 1391. Mere lack of care by a state official is not enough, there must be gross recklessness. Daniels 474 U.S. at 334, 106 S.Ct. at 666. The standard is much different under § 768.28, Florida Statutes. § 768.28 is a tort action that permits recovery for personal injury or death caused by the negligent or wrongful act or omission of an employee of the state or its agencies or subdivisions. Thus, Plaintiffs need only prove negligence, a much lower standard than the gross recklessness required under 1983 in order to recover against MIAMI and/or ANDERSON. Additionally, the standard under § 768.28(9)(a) is a respondeat superior standard. If the police officer acted "in bad faith, or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety or property," there is no vicarious liability under § 768.28(9)(a) and neither MIAMI nor ANDERSON could be held liable....

...This differs radically from the standard under § 1983, where even if LOZANO did not act in good faith, or acted maliciously, MIAMI and/or ANDERSON would not necessarily be released from liability, because that liability is not based upon respondeat superior. Punitive damages are unavailable under § 768.28, although they may be awarded against individual defendants under the federal statute....

...The second question presented for our review is whether the doctrine of sovereign immunity precludes appellants' suit against FDA predicated on allegations of negligence in the conduct of the nematode eradication program. We note at the outset that enactment of section 768.28, Florida Statutes, [1] "eliminated the immunity which prevented recovery for existing common law torts committed by the government." Trianon Park Condominium Association, Inc. v. City of Hialeah, 468 So.2d 912, 914 (Fla. 1985). However, in Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla. 1979), the court held that although section 768.28 evinces legislative intent to waive immunity on a broad basis, that waiver does not encompass "discretionary" governmental functions....

...le fire equipment is being driven to the scene of a fire or personal injury to a spectator from the negligent handling of equipment at the scene. Governmental entities are clearly liable *1322 for this type of conduct as a result of the enactment of section 768.28, Florida Statutes (1983)....

...The allegations of the complaint are consistent with a construction of the program as an operational level function. Accordingly, we find the complaint alleges facts which indicate that sovereign immunity would not bar the suit. As their final point, appellants urge us to find that the section 768.28 limited waiver of sovereign immunity does not encompass suits based on a theory of strict liability....

...95, 34 L.Ed.2d 165 (1972). The Act expressly provides that sovereign immunity is waived only to the extent specified in the act, that is, liability will attach to the government in the same manner and to the same extent as to a private individual under like circumstances. s. 768.28, Fla....

...directions to allow appellants to proceed with their claim for compensation for inverse condemnation and with their tort claim against the state in regard to the conduct of the nematode eradication program. MILLS and SHIVERS, JJ., concur. NOTES [1] s. 768.28(1), Fla....

...Florida Sovereign Immunity Act?, and (2) if not, should the action against the two agents in their individual capacities, alleging simple negligence, be severed from the remaining counts alleged? In the closing hours of the 1980 legislative session, Section 768.28(9) was amended....

...Were the statute's provisions to be prospectively applied, the outcome might be different. However, the legislature's retroactive application of the statute cannot be permitted to displace appellant's vested constitutional rights. In their supplemental brief, the Bryants refer to a clause in the amended version of Section 768.28(9), Florida Statutes (Supp....

...aggrieved plaintiff was in bad faith, or with malicious purpose, or in "a manner exhibiting wanton or willful disregard of human rights, safety, or property." District School Board of Lake County v. Talmadge, supra . This is based on the command of Section 768.28(9), Florida Statutes, the sovereign immunity statute. Additionally, we construe the Bryants' use of the phrase "gross and reckless" as being within the ambit of the phrase "wanton and willful misconduct" as used in Section 768.28(9)....

...This protection from liability is given to government entities regardless of whether or not there are warning flags or notification signs displayed. Thus, on its face, the statute clearly and unambiguously shows the legislature’s intent to limit the statutory waiver of sovereign immunity it created in section 768.28, Florida Statutes....

...pality’s negligence predating the adoption of the declaration of rights contained in the Florida constitution nor was there a cause of action at common law as of July 4, 1776, adopted under section 2.01, Florida Statutes”). With the enactment of section 768.28, Florida Statutes, there came a limited waiver of governmental sovereign immunity for municipalities....

...It argues the Florida statute, Fla. Stat. Ann. § 120.80(13)(e), which authorizes the FPSC to hear tele- 5 communications disputes, does not constitute a specific and unequivocal waiver of sovereign immunity. See Fla. Stat. Ann. § 768.28(17); Coll....

...Farmer, P.A., Fort Lauderdale, and Steven L. Josias of Josias & Goren, Fort Lauderdale, for appellant. Philip Michael Cullen, III, Fort Lauderdale, for appellee. PER CURIAM. Appellant's contention that a plaintiff must allege compliance with the notice provision of section 768.28(6), Florida Statutes (1983) in order to vest the circuit court with subject matter jurisdiction of a tort suit against a municipality is without merit....

...Although appellant's motion is also without merit, it has directed our attention to a matter which requires clarification of our earlier opinion. Appellee failed to include in her complaint an allegation that she had complied with the notice provisions of Section 768.28, Florida Statutes (1983)....

...1983), in which the Supreme Court held that the statute must be strictly construed. Levine, however, did not overrule Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979), in which the Supreme Court held that compliance with section 768.28(6) is a condition precedent to suit....

...Since the record in this case does not establish the point of discovery, it would present a material question of fact [13] making entry of a summary judgment improper on the basis of the statute of limitations. [14] III. Sovereign Immunity Appellees urge that section 768.28, Florida Statutes (1975), the statute waiving sovereign immunity for the state and its agencies, provides no right to sue for the type of relief sought in this complaint....

...loyment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act. § 768.28(1), Fla....

...However, we do not think a suit for declaratory relief to construe an easement granted to the state or a suit for rescission, had fraud been properly pleaded, is barred by the doctrine of sovereign immunity, despite the fact that the express waiver in section 768.28(1) does not specifically mention these causes of action....

...Warren of Judge & Warren, P.A., Daytona Beach, for appellant. Daniel D. Eckert, Asst. County Atty., DeLand, for appellee. COBB, Judge. This is an appeal from an order dismissing a complaint with prejudice for failure to comply with the notice requirements of section 768.28(6), Florida Statutes (1981)....

...s negligence. Askew filed an initial complaint against the lessee of the property on May 25, 1979, and added the County as a defendant by amended complaint on March 27, 1981. Askew served this complaint on the County on January 25, 1982. Pursuant to section 768.28(6), Florida Statutes (1981), Askew sent notice to the County on April 6, 1981, and to the Department of Insurance on November 17, 1981. The County moved to dismiss the first amended complaint, alleging failure to comply with section 768.28(6)....

...Metropolitan Dade County, 378 So.2d 74 (Fla. 3d DCA 1979). Plaintiff is now unable to comply with the provisions of the statute, since more than three years have passed since April 15, 1979, the date on which plaintiff alleges his cause of action to have arisen. Section 768.28(6), Florida Statutes (1981), provides: An action shall not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except...

...1st DCA 1978), cert. denied, 368 So.2d 1368 (Fla. 1979), and Dukanauskas v. Metropolitan Dade County, 378 So.2d 74 (Fla. 3d DCA 1979), for this finding. This reliance is misplaced. In Hutchins, suit was filed against the state without prior compliance with section 768.28(6)....

...The court saw the dismissal as correct, however, since there were no allegations of waiver or estoppel. The court stated: We reach such result not because the trial court lacked subject matter jurisdiction of the claim, but because appellant failed to plead a compliance with F.S. 768.28(6), which is in the nature of a condition precedent and which must be plead by appellant in order to state a cause of action....

...The County filed a motion to dismiss, alleging non-compliance with the statutory notice provision prior to institution of the action. The trial court granted the motion and entered a summary judgment for the County. In that case, no attempt was ever made to comply with section 768.28(6) prior to the filing of the amended complaint and since the time for the performance of the conditions precedent (three years from the accident) had elapsed, the court affirmed the dismissal....

...In Cheney, there was no allegation of statutory compliance. In Commercial Carrier Corporation, it was alleged that proper notice had been given to both governmental defendants, but there was no allegation that timely written notice was given to the Department of Insurance as is also required by section 768.28(6)....

...As already stated, the standards for review by certiorari, the only arguably available writ, have not been satisfied in this case. In support of its analysis, RD & G relies on Austin v. Gaylord, 603 So.2d 66 (Fla. 1st DCA 1992). That case, however, by its terms involves the jurisdictional effects of section 768.28, Florida Statutes (1989), a consideration which is entirely absent in the present case....

...unty Sheriff's Office. Defendant Cannon also asserts that even if there is a duty owed, liability is barred by sovereign immunity. The State of Florida has waived sovereign immunity for any act for which an individual could be held liable. Fla.Stat. § 768.28 (1996)....

...is one not necessary to or inherent in policy or planning, that merely reflects a secondary decision as to how those policies or plans will be implemented." Kaisner, 543 So.2d at 737. In an action for negligence, a court may review the way decisions are implemented. Id. at 738. Section 768.28(9)(a), Fla.Stat....

...committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. The Supreme Court of Florida has found that Sheriffs are included in "state agencies or subdivisions" under Section 768.28....

...reign immunity). According to the facts alleged in the Complaint, which address the operational function of the Pasco County Sheriff's Office, sovereign immunity has been waived as to Counts II, III, IV, and V of the Complaint have been waived under Section 768.28....

...Craft argues on appeal that there was an issue of fact as to whether the police officers were on duty at the time of the fight and whether they had apparent authority to act for the cities. We disagree and affirm the final summary judgment for the following reasons: 1) The sovereign immunity statute precludes such action in section 768.28(9)(a), Fla....

...stant surgeon *668 and when it denied his request for a special interrogatory verdict form which would have apportioned liability among all defendants. Appellant North Broward Hospital District contends that the trial court erred in failing to apply section 768.28, Florida Statutes (1986 Supp.), to the hospital district and by failing to limit the award of attorney's fees in accordance with section 768.28(8), Florida Statutes (1986 Supp.)....

...Without a claim for contribution there was no need for a verdict form apportioning liability between appellants. Next, appellant North Broward Hospital District contends the trial court erred when it failed to limit appellee's damages in accordance with section 768.28, Florida Statutes (1983) and to limit appellee's attorney's fees in accordance with section 768.28(8). We agree. In North Broward Hospital District v. Eldred, 466 So.2d 1210 (Fla. 4th DCA 1985) we held that section 768.28 applied to the hospital district. The supreme court affirmed our decision in Eldred v. North Broward Hospital District, 498 So.2d 911 (Fla. 1986). Section 768.28 limits North Broward Hospital District's liability for payment to $50,000 of the final judgment....

...wenty-five percent of any judgment or settlement. In Ingraham v. Dade County School Board, 450 So.2d 847 (Fla. 1984) the supreme court stated: Subsection (8) of this overall statutory scheme relating to sovereign immunity created by the enactment of section 768.28 provides: ......

...pplies to all situations involving waiver of sovereign immunity regardless of the source of payment. Id. at 849 [emphasis in original]. In City of Lake Worth v. Nicolas, 434 So.2d 315 (Fla. 1983), the supreme court held: Pursuant to this provision [(768.2895)] and our Berek [ v....

...8.54, Florida Statutes (1983). The district has failed to cite authority in support of this point. The trial court did not err when it entered a joint and several judgment against appellants for attorney's fees (subject to the limitation provided in section 768.28(8))....

...Spalla, Gen. Counsel, Tallahassee, for respondent. ALDERMAN, Justice. The District Court of Appeal, First District, has certified as a question of great public importance whether satisfaction of a claim by payment of the statutory amount specified in section 768.28(5), Florida Statutes (1979), precludes a further claim, otherwise authorized, in excess of the statutory amount....

...Department of Transportation, 455 So.2d 500 (Fla. 1st DCA 1984). The First District answered this certified question in the affirmative. We disagree, and although we approve the First District's disposition of other issues also relating to the interpretation of section 768.28(5), we quash that portion of its decision which held that Phillip Gerard's action cannot be allowed to proceed in the circuit court because payment of the statutory amount specified in section 768.28(5) has been made....

...epartment and all other state agencies or subdivisions. It contended that the only purpose to be served by trial and adjudication of its liability would be as an unnecessary precursor to Gerard's filing a claims bill with the legislature pursuant to section 768.28(5) because at the conclusion of trial it would be entitled to a setoff of the amount paid by Lake Wales' insurer against its $100,000 statutory liability. It would thus pay nothing. The trial court granted the Department summary judgment upon the issue of exhaustion of limits of liability pursuant to the limited waiver of sovereign immunity contained in section 768.28(5). On appeal, Gerard argued that the $100,000 limitation contained in section 768.28(5) applies independently to each governmental entity involved in litigation without regard to the monies paid by other governmental entities; that insurance proceeds should not apply toward the $100,000 limitation on recovery; and that...

...e allowed to proceed in order to establish a predicate for a possible legislative claim request. Reiterating our pronouncement that statutory waiver of sovereign immunity must be clearly expressed and strictly construed, the First District held that section 768.28(5) expressly imposes a cumulative per-incident limitation on aggregate recovery regardless of whether the source of payment is a single governmental entity or multiple governmental entities. Reasoning that public funds were presumably expended by the city for payment of insurance premiums and that section 768.28(13) [2] expressly provides for the purchase of liability insurance by governmental entities in anticipation of any claims, judgments, and claims bill which they may be liable to pay, it further decided that the insurance proceeds may be applied to satisfy the liability limitation of section 768.28(5). Finally, the First District concluded that on the facts of this case, Gerard could not proceed in the trial court because section 768.28(5), although authorizing an excess judgment as a predicate for a legislative claims request, should not be construed as providing any basis for an independent action which could be compensated only by legislative approval....

...te or its agencies or subdivisions possessed sovereign immunity prior to July 1, 1974. This statutory provision evidences no legislative intent to deprive the trial court of subject matter jurisdiction upon payment of the statutory cap authorized by section 768.28(5)....

...To the contrary, it expressly states that a judgment or judgments may be claimed and rendered in excess of these amounts. In Berek v. Metropolitan Dade County, 422 So.2d 838, 840-41 *1173 (Fla. 1982), although acknowledging the limits on the state's maximum liability, we said: [S]ection 768.28(5) authorizes the rendition of judgment in excess of the maximum amount which the state can be required to pay....

...s. It is clear to me that the courts are the proper institution to resolve the legal and factual issues of a tort suit against a government unit, just as they are in a tort suit against a private person. Art. I, § 21 and Art. X, § 13, Fla. Const.; § 768.28, Fla....

...orporation for approximately 30 years and which volunteered to remove the trees post-accident for the City of Lake Wales) paid $15,000; Florida Power Corporation (which cut or had cut all the trees to accommodate their power lines) paid $30,000. [2] Section 768.28(13), Florida Statutes (1979), provides: (13) The state and its agencies and subdivisions are authorized to be self-insured, to enter into risk management programs, or to purchase liability insurance for whatever coverage they may choos...

...State, Department of Transportation, 419 So.2d 1081 (Fla. 1982); City of St. Petersburg v. Collom). Three basic rules appear to have emerged from these opinions: (1) Defects that are inherent in the overall plan of a capital improvement project are not actionable under section 768.28....

...gligence. Such distinctions, when applied to a specific factual situation — particularly when the decision as here does not involve a capital project — are the stuff from which inconsistency abounds. The narrow, restricted construction placed upon section 768.28 by Neilson and the court's later cases is moreover at variance with the legislative purpose, which, in the words of Commercial Carrier, "evinces the intent ......

...l dichotomy will ever result in being uniformly applied. I therefore respectfully invite the Florida Supreme Court to revisit its prior opinions on the subject, rescind their holdings, and simply give effect to the legislative directive expressed in section 768.28(5): to impose liability upon the state and its subdivisions "in the same manner and to the same extent as a private individual under like circumstances...." [2] In issuing this invitation I am not unaware that both Commercial Carrier and Neilson strongly intimated, while not expressly stating, that without the limiting construction, section 768.28 would be violative of the separation of powers clause. Thus Commercial Carrier, although recognizing that "Section 768.28 evinces the intent of our legislature to waive sovereign immunity on a broad basis," continues with the statement that "certain `discretionary' governmental functions remain immune from tort liability....

...n within its powers is not reviewable by the courts. State v. Johnson, 345 So.2d 1069, 1071-1072 (Fla. 1977) (e.s.) (quoting from State v. Atlantic Coastline Railroad Co., 56 Fla. 617, 47 So. 969, 975 (1908)). *461 I would think, given the fact that section 768.28 represents a direct implementation of Article X, Section 13, that the statute would ordinarily be deemed constitutionally valid....

...The diversion of public funds for purposes other than those appropriated by law has long been considered a policy factor upholding the state's immunity from suit. See Bragg v. Board of Public Instruction, 160 Fla. 590, 36 So.2d 222 (1948). Certainly the legislature, in passing the broad grant of waiver authorized by section 768.28, must have taken all such traditional policy arguments into consideration. It was certainly aware that the state and its subdivisions could purchase liability insurance to cover their risks. See section 768.28(10)....

...lect of another, the law gives him a remedy. This maxim finds support in our constitution authorizing "courts ... [to] be open to every person for redress of any injury... ." Article I, Section 21, Fla. Const. If the legislative intent, expressed in section 768.28, subjecting the state to liability in the same manner as a private person were followed, traditional tort principles would then guide a court's judgment when considering liability....

...2015) (citing Roe for the proposition that Florida sovereign immunity does not immunize a governmental entity from suit); Keck v. Eminisor, 104 So.3d 359, 365-66 (Fla. 2012) (per curiam) (distinguishing Roe in a case involving individual immunity under Fla. Stat. § 768.28 ). Keck is instructive. Keck held that individual immunity granted to government employees under Florida Statutes § 768.28(9)(a) provides immunity from suit, and that an order denying it is thus subject to interlocutory review. Keck, 104 So.3d at 366 . In so holding, Keck relied on the plain language of § 768.28(9)(a), which states that a government employee cannot be “named as a defendant” in an action arising out of his employment unless he acted maliciously or in bad faith....

...denial of that immunity. Id. at 365-66. Defendants argue that Roe should be interpreted narrowly, so that its definition of Florida sovereign immunity is only applicable to immunity from tort claims, which the state has partially waived by virtue of § 768.28, and not to immunity from other types of claims, such as the unjust enrichment claim at issue in this case....

...The amendment was made in response to Keck , discussed above, in which the Florida Supreme Court directed the Florida Bar Appellate Court Rules Committee to propose an amendment authorizing review of non-final orders denying individual immunity under § 768.28(9)(a)....

...See In re Amendments to Florida Rule of Appellate Procedure 9.130, 151 So.3d at 1217 . As modified'by the Florida Supreme Court, the amendment that ultimately was adopted authorizes review of non-final orders denying individual or sovereign immunity under § 768.28(9), as well as orders denying sovereign immunity generally....

...Here, the immunity with which we are concerned that barred Taylor from prosecuting a tort action against his co-employees as public employees working as school board transportation department mechanics flowed from sovereign immunity provisions for personal liability for torts pursuant to section 768.28(9)(a) of the Florida Statutes (1999). Section 768.28(9)(a) provides, in relevant part: No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered ......

...disregard of human rights, safety, or property.... The exclusive remedy for injury or damage suffered as a result of an act, event, or omission of an officer, employee, or agent of the state ... shall be by action against the governmental entity.... § 768.28(9)(a), Fla....

...st a negligent co-employee who is assigned primarily to unrelated works."). The injured employee is granted the right to sue a co-employee by section 440.11(1), but is not permitted to prosecute an action against the negligent co-employee because of section 768.28(9)(a)....

...elated works. In Holmes County School Board v. Duffell, 651 So.2d 1176 (Fla.1995), this Court held that the employer's immunity, granted pursuant to section 440.11(1), did not preclude an action by an employee against his public employer pursuant to section 768.28(9)(a) of the Florida Statutes....

...Thus, the award of damages on the section 1983 count was against the deputies solely in their individual capacities and is not barred by the eleventh amendment. COMPLIANCE WITH PROCEDURAL REQUIREMENTS OF FLORIDA STATUTE Appellants argue that plaintiff failed to comply with the notice requirements of Fla. Stat.Ann. sec 768.28(6) when prosecuting her pendent wrongful death claim against Sheriff McDaniel. Section 768.28(6) provides in pertinent part that: An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency and also ......

...ities. Hucker v. City of Oakland Park, 427 So.2d 244 (Fla.Dist.Ct. App.1983). All parties litigated the pendent claim against Sheriff McDaniel in his official capacity. Appellants raised as a defense failure to comply with the notice requirements of section 768.28(6), and appellees argue that they have complied with section 768.28(6)....

...ut reference to the twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws.” Id. The Florida statutory requirement of notice and expiration of a six month waiting period, Fla.Stat. sec. 768.28(6), may well be substantive for purposes of the Erie doctrine to the extent that it would require a federal district court, upon motion by defendant, to enter a protective order suspending discovery until the end of the six month period and would bar the entry of a judgment until the six months had passed....

...in this case was not an abuse of discretion. Appellants argue in the alternative that the pendent claim should have been dismissed with prejudice because plaintiff failed to prove, during her case in chief, compliance with the notice requirements of section 768.28(6)....

...A cause of action for abuse of process, therefore, is stated, and the court now addresses the state law immunities. C. The State Law Immunities. Both the defendant county and defendant Fahrer seek to dismiss Counts IV through XI based on two statutory immunities: Fla.Stat.Ann. § 768.28(9)(a) and § 768.28(6)(a)....

...Fahrer also seeks to dismiss *1524 Count VII based on her alleged absolute privilege. The court now addresses these issues in turn. At this pleading state, the court must draw all reasonable inferences from the complaint in favor of the plaintiff. Having done so, the court concludes that the immunity under Fla.Stat.Ann. § 768.28(6)(a) is inapplicable. The complaint alleges that the defendant Commissioners and Planners acted in their official capacities when allegedly harassing the plaintiffs. Accordingly, these allegations are outside the immunity established in § 768.28(9)(a)....

...Under this statute, the State or its subdivisions are immune from liability for actions of an employee (or agent) committed outside the scope of the employment. These allegations, therefore, are sufficient to defeat the motion to dismiss based on the immunity stated in § 768.28(9)(a). Here the plaintiffs allege the officials acted outside the scope of their duties. For similar reasons, Fla.Stat.Ann. § 768.28(6)(a) is inapplicable. Section 768.28(6)(a) requires nothing more than statutory notice before an action can be maintained against the state, one of its agencies or one of its subdivisions. The county, however, is not entitled to statutory notice with respect to Count IV. In Young v. Palm Beach County, 443 So.2d 450, 451-452 (Fla. 4th DCA 1984), the court found the statutory notice requirement of § 768.28(6) to be inapplicable to an inverse condemnation claim....

...Count IV of the plaintiffs' complaint is essentially one for inverse condemnation and under the Young precedent, the county was not entitled to statutory notice. Similarly, Fahrer, as a County Commissioner, is not entitled to statutory notice. The language of § 768.28(6)(a) only requires statutory notice for claims against the state, one of its agencies or one of its subdivisions. County Commissioners are not specifically included. Accordingly, the statutory notice requirements of § 768.28(6)(a) are inapplicable and the motion to dismiss, based on these arguments, will be denied. D. Punitive Damages. The defendants argue that under no circumstances should the County or Fahrer be liable for punitive damages. [10] They rely upon Fla.Stat.Ann. § 768.28(5), and argue that this statutory prohibition against punitive damages applies to both the County and Fahrer. The plaintiffs agree that § 768.28(5) prohibits the recovery of punitive damages against the county. Indeed, the explicit language of § 768.28(5) prohibits such a recovery. Section 768.28(5), however, does not prohibit the recovery of punitive damages against the defendant Fahrer. This statute does not refer to agents of the state, and the defendants have failed to cite any authority extending § 768.28(5) this far....

but rather that they are barred by Fla. Stat. § 768.28(9)(a). Two portions of the statute are relevant

...rt, but it does not deprive the court of subject matter jurisdiction of medical malpractice actions generally. A consideration of a similar notice statute supports our conclusion that the notice requirements of section 768.57 are not jurisdictional. Section 768.28(6), Florida Statutes (1987) requires pre-litigation notice to the state, its agencies and subdivisions. We believe the legislative intent is the same for the notice requirements of section 768.57 and the notice requirements of section 768.28(6). That intent is to reduce the number of unnecessary lawsuits by providing the prospective defendant the opportunity to investigate the claim and make a *1034 settlement offer, if appropriate. The notice requirements of section 768.28(6) are not jurisdictional and are subject to waiver....

...Kruysman, 475 So.2d 1007 (Fla. 2d DCA 1985), rev. denied, 486 So.2d 598 (Fla. 1986); City of Pembroke Pines v. Atlas, 474 So.2d 237 (Fla. 4th DCA 1985), rev. denied, 486 So.2d 595 (Fla. 1986). In Kruysman, this court stated that "[w]hile a claimant must allege compliance with section 768.28(6) in order to state a cause of action, the failure to do so does not affect subject matter jurisdiction." Kruysman, 475 So.2d at 1009....

...Orr, 537 So.2d 1014 (Fla. 3d DCA 1988), that court, in granting a writ of prohibition in a dental malpractice case, relied on MacDonald as its principal authority. Berry, therefore, does not strengthen appellees' position. In line with the decisions interpreting section 768.28(6), we hold that the failure to comply with the prelitigation notice requirements of section 768.57 does not deprive the trial court of subject matter *1035 jurisdiction of medical malpractice actions and that the trial court may consider the principles of estoppel and waiver to excuse such noncompliance....

...t Court of Appeal answered this question in Bryant v. Duval County Hosp. Authority, 502 So.2d 459 (Fla. 1st DCA 1986), wherein that court approved of a complaint which substituted the facts asserted to constitute waiver of the notice requirements of section 768.28(6) for the allegation of compliance with the statute....

...eman and Thomas E. Reynolds, St. Petersburg, FL, for Respondent. PARIENTE, J. We have for review a decision of the Second District Court of Appeal certifying the following question to be of great public importance: DO THE LIMITATIONS ON LIABILITY IN SECTION 768.28, FLORIDA STATUTES (1989), APPLY TO A CLAIM FOR WRONGFUL INJUNCTION AGAINST A CITY THAT WAS NOT REQUIRED TO POST AN INJUNCTION BOND? City of Treasure Island v....

...[6] We must address this issue now because, on remand from this Court in Provident I, the Second District concluded that although the doctrine of sovereign immunity did not preclude an award of damages against the City, the damages award was subject to the limitations of section 768.28(5), Florida Statutes (1989). [7] See Provident II, 738 So.2d at 362. Although the Second District affirmed the amount of damages, the Second District reversed the judgments to the extent that they included prejudgment interest, which is not authorized by section 768.28(5). In addition, the court reversed Provident's judgment to the extent that it contained no restriction on execution above the statutory cap of $100,000, also set forth in section 768.28(5). See id. [8] *485 ANALYSIS The issue presented by the certified question in this case is whether the limitations of liability contained in section 768.28, the statute waiving the State's sovereign immunity for tort claims, apply to limit an award of damages caused by a wrongfully entered injunction obtained by a governmental entity....

...On appeal to this Court, the City does not argue that it is completely immune from liability for the losses suffered, but it instead asks this Court to approve the Second District's holding that the City's liability is subject to the limitations found in section 768.28....

...granting a temporary injunction, it follows that when the court waives the bond requirement in order to save the municipality the expense of the bond, the court likewise has the authority to assess damages without regard to the limitations found in section 768.28....

...hold that "[w]hen the governmental body invokes a court's equitable jurisdiction, it necessarily casts aside its cloak of immunity and is like any other litigant." 718 So.2d at 740 (Wells, J. concurring). Further, we conclude that the limitations of section 768.28 do not apply because that statute applies only when the governmental entity is being sued in tort....

...temporary injunction that may be reversed later. If a bond is posted, liability is limited to the amount of the bond; if the bond requirement is waived, the governmental entity in effect acts as its own surety. Our conclusion that the limitations of section 768.28 do not apply to restrict the *487 award of damages against a governmental entity for the erroneous issuance of a temporary injunction is supported by other statutes that expressly limit damages to those set forth in section 768.28....

...njunction or restraining order is improperly or erroneously granted ... to the extent provided for in chapter 768." If the Legislature considered damages arising from the erroneous granting of an injunction to be a species of tort action governed by section 768.28, the reference to chapter 768 would have been unnecessary....

...s actions did not result in a total taking and because Provident was not a property owner, principles of sovereign immunity barred Provident from recovering anything other than costs and attorney's fees. See id. at 741 (Overton, J., dissenting). [7] Section 768.28, Florida Statutes (1989), provides: 768.28....

...rior. But see Florida First National Bank v. City of Jacksonville, 310 So.2d 19 (Fla. 1st DCA 1975); writ discharged, 339 So.2d 632 (Fla. 1976). In 1975 the Florida Legislature significantly modified the common-law standards for immunity by enacting section 768.28, Florida Statutes. [2] The statute was intended to waive sovereign immunity for liability for torts on a broad, but qualified, scale. In Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979) the supreme court applied section 768.28 to an action against Indian River County for failure to maintain a stop sign at an intersection and for the negligent failure of the Department of Transportation to paint or replace on the pavement the word "STOP" in advance of the entrance to the intersection. The trial court dismissed the complaint and the Third District Court of Appeal affirmed. The court analyzed the continuing viability of the Modlin "special duty" rule in the aftermath of the enactment of section 768.28 and concluded "we cannot attribute to the legislature the intent to have codified the rules of municipal sovereign immunity through enactment of section 768.28, Florida Statutes (1975) ... consequently, we conclude that Modlin and its ancestry and progeny have no continuing vitality subsequent to the effective date of section 768.28." Having rejected the Modlin standard the supreme court was called on to formulate a new theory of sovereign immunity. As an initial consideration the court noted that although the Florida Legislature modeled section 768.28 after the Federal Tort Claims Act, the Florida statute contains no express exception for discretionary acts similar to that contained in the F.T.C.A....

...or recovery against the governmental authority involved. Rather, certain judgmental decisions of governmental authorities remain immune from judicial scrutiny. The decision states: Hence, we are persuaded ... that even absent an express exception in section 768.28 for discretionary functions, certain policy-making, planning or judgmental governmental functions cannot be the subject of traditional tort liability ... Planning level functions are generally interpreted to be those requiring basic policy decisions, while operational level functions are those that implement policy. [W]e... hold that although section 768.28 evinces the intent of our legislature to waive sovereign immunity on a broad basis, nevertheless, certain "discretionary" *74 governmental functions remain immune from tort liability....

...In view of Commercial Carrier and Rupp, we do not view this case as persuasive. More recently, in Everton v. Willard, 426 So.2d 996 (Fla. 2d DCA 1983), our sister court analyzed the duty of municipal officers under circumstances similar to the facts sub judice while applying section 768.28 rather than the earlier Modlin test....

...s guarantor and insurer of the conduct of Timmy Lynn Collins by signing his driver's license and who owned the vehicle Collins operated. We are only concerned with the portion of the complaint directed to the city and its insurer on this appeal. [2] Section 768.28(1), Florida Statutes (1975) reads: In accordance with section 13, Art....

...the state. [1] One might also argue that the appellants' claims sound in tort. Without deciding whether such an action would be appropriate, we observe that one must initiate a tort action against the state within three years after the claim arises. § 768.28(6), Fla....

...Appellants' benefits vested at the time of their respective retirements in 1973 and 1974. Arnow, supra . All the conceivably negligent acts or omissions of the state occurred prior to that time. Since all the facts known now were evident at that time, the statute of limitations provided by Section 768.28(6) ran several years ago....

...and the individual defendants as it fails to allege the violation of a duty owed plaintiff." As to the individual defendants, the trial court also dismissed the third amended complaint for failure to allege facts sufficient to negate immunity under section 768.28(9)(a), Florida Statutes (1985)....

...d been injured by a criminal coming onto school property. The critical distinction is that Comuntzis alleges he was injured by fellow students: individuals whom the School Board had a duty to supervise. The legislature has waived sovereign immunity (section 768.28), and we have held above that the School Board has a common law and statutory duty....

...As to defendants Demps and Dagostino, we agree with the trial court's dismissal for failure to state a cause of action. Case law and statutes indicate that actions against school boards and actions against individual school officers (here, a principal and teacher) are now mutually exclusive. *754 Section 768.28(9)(a), Florida Statutes (1985), states: No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as...

...This is an appeal from a final summary judgment in a medical malpractice action. The trial court found that the action was barred by section 95.11(4)(b), Florida Statutes (1977) (the two-year limitation on medical malpractice actions), and that plaintiffs had failed to comply with section 768.28(6), Florida Statutes (1977), the notice provision under the waiver of sovereign immunity act....

...4)(b), Florida Statutes (1977)], had expired prior to the filing of the suit; and (2) because defendant Hospital was a subdivision of the State of Florida, created by chapter 65-1905, Laws of Florida, Special Acts of 1965, the notice requirements of section 768.28(6) were applicable, and plaintiffs had not complied therewith. The Hospital contends that it is an agency of the State. Section 768.28(1), Florida Statutes (1977), provides that the state and its agencies and subdivisions, waive sovereign immunity in tort cases to the extent provided in the section and such "actions ......

...may be prosecuted subject to the limitations specified in this act." The statute of limitations for actions based on negligence or on any other "wrongful act or omission" brought against a state agency, is four years from the date the claim accrues. § 768.28(11), Florida Statutes (1977)....

...utes, that different statute of limitations will apply. § 95.011, Florida Statutes (1977). On its face, therefore, because the Hospital is admittedly a State agency, chapter 95 unambiguously requires application of the limitation period provided in § 768.28(11) for tort actions against the state....

...date (April 2, 1980) on which the instant complaint was filed. The summary judgment was improperly entered on the limitations ground. The summary final judgment also relies on appellant's alleged failure to comply with the notice requirements [2] of section 768.28(6), Florida Statutes (1977)....

...curred and the damage claimed to flow from it. By affidavit filed in opposition to the Hospital's motion for summary judgment, it appears that the Hospital subsequently responded to the mediation demand by filing a written denial of the claim. Since section 768.28(6) does not specify the form or manner of submitting the claim, except that it be in writing, it follows that any manner of submitting a written notice of the claim to the agency involved that sufficiently describes or identifies the occurrence so that the agency may investigate it, satisfies the statute....

...ce carried by the Board of Trustees, and prohibits the insurance company from availing itself of the defense of governmental immunity. There is nothing in the act requiring notice to the Board of Trustees as a condition precedent to filing suit. [3] Section 768.28(6), Florida Statutes (1977) provides: An action shall not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except a...

...d for punitive damages in its complaint." Id. Turning next to the Rules Enabling Act, to see whether the conflicting Federal Rule 9(g) improperly abridged a substantive right created by § 768.72, the Citron court made an analogy to another statute, § 768.28, Florida Statutes — the pre-suit notice requirement for tort actions against the state—which has been ruled not to be substantive for purposes of the Erie doctrine. Id. at 1261-62 (citing Lundgren v. McDaniel, 814 F.2d 600, 606 (11th Cir.1987) and § 768.28(6), Fla.Stat.). By equating the pre-suit waiting period of § 768.28 with the prohibition on unwarranted punitive damages of § 768.72, the Citron court concluded that § 768.72 must likewise be non-substantive....

...This so-called "check," however, invokes hindsight to moot on appeal the very question which the court faces today: whether a party should be spared the threat of punitive damages and related discovery from the very inception of suit. [4] As noted previously, the Citron court likened § 768.72 to a different statute, § 768.28, Florida Statutes. See Citron, 721 F.Supp. at 1261-61. Section 768.28 requires a six month pre-suit waiting period as part of Florida's waiver of sovereign immunity in tort actions....

...This pre-suit waiting period has seemingly been treated as procedural—and therefore inapplicable in federal court—under Erie. See Lundgren v. McDaniel, 814 F.2d 600, 606 (11th Cir.1987) (reviewing district court's refusal to dismiss case for noncompliance with pre-suit notice requirement of § 768.28). However, an analogy to § 768.28 may not be a helpful one. For example, the waiting period required by § 768.28 is materially distinguishable from the outright bar to unsupported punitive damages claims that is posed by § 768.72....

...In fact, it is just such a distinction, among others, that underlies the Middle District of Florida's uniform determination that § 768.72 is substantive under Erie, despite Lundgren. See Lancer Arabians, Inc. v. Beech Aircraft Corp., 723 F.Supp. 1444, 1446 (M.D.Fla.1989) (distinguishing § 768.72 from § 768.28 under Erie ). Furthermore, the Eleventh Circuit's characterization of § 768.28 in Lundgren, upon which the Citron court relied in making its analogy, also presents a special case because the appellate court actually considered § 768.28 arguendo to create a substantive right and then found that the federal court's procedural approach to implementing the statute, which differed from the normal state court approach, did not disturb the assumed substantive right. Lundgren, 814 F.2d at 606. Thus, if anything, Lundgren merely says that Erie was avoided, not that § 768.28 is wholly procedural. For all of these reasons, the court finds analogy to § 768.28 unhelpful in elucidating the present question.

...Piper, 523 So.2d 196 (Fla. 5th DCA), review denied, 531 So.2d 1354 (Fla.1988). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We must address whether a spouse's derivative loss-of-consortium claim requires a separate or distinct notice pursuant to the provisions of section 768.28(6)(a), Florida Statutes (1989)....

...o Reyes to represent him for injuries and trauma suffered as he slipped and fell on a greasy floor in the loading dock of the TCK Correctional Center on December 5, 1989. Please allow this letter to serve as formal notice pursuant to Florida Statute 768.28(6) of our intention to proceed against you and your insurance carrier for the injuries incurred....

...t, Metropolitan Dade County, as to Orlando Reyes' claim. [1] The court also entered a directed verdict in favor of Metropolitan Dade County as to Beatriz Reyes' loss-of-consortium claim based upon her failure to give the statutory notice required by section 768.28(6)(a)....

...for Kathryn, nor did it excuse the necessity for her filing a notice of her loss of consortium claim. Piper, 523 So.2d at 198. We hold that the applicable statute in this case requires an analysis such as that recited from Piper above. That statute, section 768.28(6)(a), reads: *313 An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim agains...

...rictly construe such waivers. Menendez v. North Broward Hosp. Dist., 537 So.2d 89, 91 (Fla.1988); Levine v. Dade County Sch. Bd., 442 So.2d 210, 212 (Fla. 1983); Manatee County v. Town of Longboat Key, 365 So.2d 143 (Fla.1978). The plain language of section 768.28(6)(a) clearly indicates that each claimant must give the proper notice....

...laims "against the state or one of its agencies or subdivisions." Accordingly, we agree with the Piper court that a loss-of-consortium claim must be so noticed. For the reasons expressed, we quash the district court decision insofar as it holds that section 768.28(6)(a) does not require notice of derivative claims....

...We need not disapprove the Chandler decision because it involved a different statute. We note that the statute requiring notice in the Chandler case did not waive sovereign immunity and, therefore, was not subject to the same type of construction as we must accord section 768.28(6)(a)....

...the law of their state of residence, when such law would be applied to the claims at issue as a matter of course if this case was being heard in state court. 2. Plaintiff's Compliance with Fla.Stat. § 768.72 Under the foregoing analysis, Fla. Stat. § 768.28 applies to this case. As a result, decisions of Florida courts interpreting Section 768.28 are applicable as well....

...missed with prejudice because it did not allege compliance with the 60 day notice requirement of Section 2-2 of the Metropolitan Dade County Code. Since we hold that Section 2-2 is invalid as in conflict with the three year notice period provided by Section 768.28(6), Florida Statutes (1977), the judgment of dismissal under review is reversed. The accident in question, in which a Dade County motor vehicle struck a car driven by the plaintiff Scavella, occurred on January 17, 1977. In this action, filed as against the county [1] pursuant to Section 768.28, Florida Statutes (1977), the comprehensive statute in which sovereign immunity in tort actions has been waived by the legislature, the *536 plaintiff alleged that she had given notice of the claim to the county on May 8, 1978. The notice was thus well within the period specifically provided by Section 768.28(6), which states: "(6) An action shall not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim...

...le general law ..." Art. VIII, § 6(2), Fla. Const. of 1968 (reenacting Art. VIII, § 11(5), Fla. Const. of 1885). The sole issue presented on this appeal by the plaintiff from the order of dismissal is thus whether Section 2-2 is in "conflict" with Section 768.28(6)....

...nty v. Rockmatt Corp., 231 So.2d 41 (Fla. 3d DCA 1970), which is also cited by the county. [3] It may be significant that the supreme court's recent opinion in Cheney v. Dade County, 371 So.2d 1010 (Fla. 1979) discusses only the notice provisions of Section 768.28(6), and does not even mention Section 2-2.

...Baker and DB & PR seek to dismiss Counts I and V of the Complaint on the basis of state sovereign immunity. In Baker’s Motion, he argues that Count I should be dismissed because as a state agent he is immune from suit pursuant to Florida Statute section 768.28(9)(a). See Baker Motion at ¶¶ 7-9. Similarly, DB & PR argues that as a state agency it is immune from suit for malicious prosecution under the same provision. See DB & PR Motion at 9. It argues that because section 768.28(9)(a) of the Florida Statutes provides that states are immune from suit for acts of its agents committed “with malicious purpose,” and Eiras must allege that Baker acted with malice in order to make out a prima facie malicious prosecution claim, DB <& PR is immune....

...s, in federal court, under Section 1983.” Hufford v. Rodgers, 912 F.2d 1338, 1341, n 1 (11th Cir. 1990); see also Connor v. Halifax Hosp. Med. Ctr., 135 F.Supp.2d 1198, 1223 (M.D. Fla. 2001) (rejecting a state agent’s assertion of immunity under section 768.28(9)(a) in response to a Section 1983 claim)....

...ure to state a claim, its Motion is due to be granted. b. False Arrest Claim Against Baker Baker moves to dismiss Count II of the Complaint in which Eiras asserts a claim of false arrest against him under Florida law because he is immune pursuant to section 768.28(9)(a) of the Florida Statutes....

...mmunity may be pierced only if state agents either act outside the scope of their employment, or act “in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” Fla. Stat. § 768.28 (9)(a)....

...The statute places an affirmative duty on the plaintiff to satisfy this pleading requirement. This duty cannot be satisfied by mere conclusory allegations. Without support, the complaint must fail. Brown v. McKinnon, 964 So.2d 173, 175 (Fla. 3d DCA 2007) (internal citations omitted). Courts construing the bad faith prong of section 768.28 use the actual malice standard, Parker v....

...ut probable cause” and “in the absence of lawful authority.” See Complaint ¶¶24, 32-33, Ex. D. These allegations are insufficient to overcome Baker’s immunity. *1344 Generally, courts are reluctant to strip officers of their immunity under section 768.28(9)(a) of the Florida Statutes....

...14, 2016), the court determined that the allegation that.an officer acted “in the absence of lawful authority” and “in the absence of reasonable suspicion” of criminal activity did not constitute an allegation that an officer acted in bad faith for purposes of Florida Statute section 768.28(9)(a)....

...hibiting wanton and willful disregard of human rights, safety, or property.” Id. at 589 . Consistent with this authority, it appears that under Florida law, the absence of probable cause standing alone will not deprive an officer of immunity under section 768.28....

...Instead, in Colonial Stores, the Florida Supreme Court addressed malice as an element of a prima facie malicious prosecution claim in a civil action. The court did not address malice as that term has been interpreted for purposes of immunity under section 768.28(9)(a). In light of that distinction the Court first notes that a prima facie claim of malicious prosecution requires “legal malice,”, rather than “actual malice.” Id. Under Florida law, bad faith for purposes of immunity under section 768.28(9)(a) is equivalent to “actual malice.” Dunn, 192 F.Supp.3d at 1325 ....

...717, 720 , 136 So. 878 (Fla. 1931)). Therefore, the Court declines to the follow the analysis of these decisions suggesting that a lack of probable cause can give rise to an inference of malice sufficient to defeat an entitlement to immunity under Florida Statute section 768.28(9)(a)....

...Accordingly, to the extent Baker moves to dismiss Count IV of the Complaint, his Motion is due to be granted. *1346 2. Malicious Prosecution Claim Against Baker Finally, Baker moves to dismiss Count IV of the Complaint, Eiras’s state law malicious prosecution claim, once again relying on section 768.28(9)(a). See Baker Motion at ¶¶7-8. In determining whether a plaintiff asserting a false arrest claim has committed conduct in bad faith sufficient to pierce the statutory immunity provided by section 768.28(9)(a), courts unequivocally apply the actual malice standard. However, in determining whether a plaintiff asserting a malicious prosecution claim has pierced the statutory immunity provided by section 768.28(9)(a), courts are divided as to whether the actual or legal malice standard applies. Some courts maintain that even though bad faith under section 768.28(9)(a) normally requires a showing of actual malice, if an officer “act[s] with sufficient legal malice to fulfill the elements of a malicious prosecution claim, then he also act[s] with sufficient malice to fall outside the protection afforded him by [section] 768.28(9)(a), and the governmental entity cannot be held responsible for the misconduct.” Andrew Nguyen MD PA v....

...May 23, 2007); see also Claridy v. City of Lake City, No. 3:13-cv-558-J-39PDB, 2014 WL 11430860 , at *11 (M.D. Fla. Nov. 18, 2014). Distinctly, other courts apply the actual malice standard to determine whether a plaintiff has pierced immunity under section 768.28(9)(a) in order to bring a malicious prosecution claim....

...l” or an “evil intent” to cause him harm, which would amount to actual malice. Reed, 837 So.2d at 368-69 ; cf. Montanez v. Carvajal, No. 6:15-cv-807-Orl-40DAB, 2016 WL 231213 , at *5 (M.D. Fla. Jan. 15, 2016) (holding the officers immune under section 768.28(9)(a) of the Florida Statutes because the plaintiff failed to allege “facts speaking to the officers’ respective intents.”). Because Eir-as alleges sufficient facts to support an inference of actual malice, his allegations, at the motion to dismiss stage, preclude the immunity provided by section 768.28(9)(a)....

...Whether Eiras will be able to prove these allegations under the facts of this case is uncertain. However at this stage of the proceeding the Court must accept the allegations as true and finds that they are sufficient to overcome the statutory immunity provided by section 768.28(9)(a)....

...The district court dismissed the claims against Butterworth, with prejudice. Majette subsequently settled with the other defendants. This appeal is taken from the district court’s order dismissing Majette’s complaint as to Butterworth. Discussion Florida Statutes § 768.28 is entitled “Waiver of sovereign immunity in tort actions; recovery limits; limitation on attorney fees; statute of limitations; exclusions.” Section 768.28(6) provides: (6)(a) An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim again...

...United States, 742 F.2d 1498 (D.C.Cir.1984) (en banc), cert. denied, 471 U.S. 1073 , 105 S.Ct. 2153 , 85 L.Ed.2d 509 (1985) (holding that noncompliance with a notice of claim provision in the District of Columbia Code does not bar federal causes of action). We likewise conclude that section 768.28(6) constitutes an exhaustion of administrative remedies requirement and is thus inapplicable to section 1983 suits. 2 Butterworth defends the district court’s ruling by contending that section 768.28(6) constitutes a statute of limitations....

...Appellant also sought to have the district court consider various state tort law claims based on diversity jurisdiction and alternatively on pendent jurisdiction. 2 . Butterworth cites as support for the proposition that the district court properly held Majette was required to comply with section 768.28(6) the case of De Almanza v....

...In its opinion granting Butterworth's motion for summary judgment, the district court found Majette’s claim was not barred by sovereign immunity. In Gamble , however, which was issued by this court two months prior to the district court’s order, we held that section 768.28 represents only a limited abrogation of Florida’s sovereign immunity and that it does not extend to civil rights actions....

...ceipt requested, a notice of intent to initiate litigation for medical malpractice. (3)(a) No suit may be filed for a period of 90 days after notice is served upon the prospective defendant, except that this period shall be 180 days if controlled by s. 768.28(6)(a)....

...Secondly, we reject the contention that failure to comply with the condition precedent to suit contained in section 768.57, Florida Statutes (1985) deprives the trial court of subject matter jurisdiction. That section has been frequently analogized to section 768.28(6), Florida Statutes (1987) [2] which requires pre-suit notice to governmental agencies....

...Thus, it would appear that Pearlstein I and Pearlstein II stand for the proposition that the complaint in this case should be dismissed with prejudice, because the notice of intent to litigate was not served prior to the filing of the complaint. However, when we look to similar statutes, such as sections 768.28(6) and 713.06(3)(d)(1), [4] Florida Statutes (1987), we find that although there are notice requirements as conditions precedent to instituting suits in both of those statutes, the supreme court in each case has permitted the filing of the notice required by section 768.28(6), Florida Statutes (1987) or affidavit under section 713.06(3)(d)(1), Florida Statutes (1985) subsequent to the filing of the complaint so long as the notice or affidavit is filed within the statute of limitations. In Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1022-23 (Fla. 1979), the court, in considering section 768.28(6), Florida Statutes (1987) held: Compliance with that subsection of the statute is clearly a condition precedent to maintaining a suit.......

...Volusia County, 450 So.2d 233 (Fla. 5th DCA 1984). This rational was also followed in Wemett v. Duval County, 485 So.2d 892 (Fla. 1st DCA 1986) where the court held that it was error to dismiss a complaint with prejudice where the plaintiff had failed to comply with section 768.28(6)(a), Florida Statutes (1985), prior to filing the suit because the statute of limitations had not yet run at the time of dismissal, and it was therefore possible to comply with the statute prior to the case being barred by the statute of limitations....

...In their decision, the supreme court also cited with approval Askew v. Volusia County, 450 So.2d 233 (Fla. 5th DCA 1984), and interpreted their decision on Commercial Carrier as permitting the correction of defects in the plaintiff's failure to give timely notice to the Florida Department of Insurance under section 768.28(6), Florida Statutes (1987) by permitting amendment of the complaint....

...Thus, the dismissal should have been granted with leave to amend the complaint. We are concerned, however, that such a holding strikes at the very heart of the pre-suit screening process. We note that this particular statute is significantly different in its requirements prior to filing suit than either section 768.28, Florida Statutes (1987), to which it is frequently compared in the case law, and section 713.06(3)(d)(1), Florida Statutes (1987)....

...I also agree with the *1389 discussion of the case authority except for the majority's comment that our holding today "strikes at the heart of the pre-suit screening process" and that section 768.57 is significantly different in its pre-suit requirements from either section 768.28 or section 713.06(3)(d)1....

...I would adopt the reasoning of the second district in Solimando v. International Medical Centers, 544 So.2d 1031 (Fla. 2d DCA 1989): A consideration of a similar notice statute supports our conclusion that the notice requirements of section 768.57 are not jurisdictional. Section 768.28(6), Florida Statutes (1987) requires pre-litigation notice to the state, its agencies and subdivisions. We believe the legislative intent is the same for the notice requirements of section 768.57 and the notice requirements of section 768.28(6)....

...estigate the claim and make a settlement offer, if appropriate. ... In [ Manatee County v. ] Kruysman, [475 So.2d 1007 (Fla. 2d DCA 1985), rev. denied, 486 So.2d 598 (Fla. 1986)] this court stated that "[w]hile a claimant must allege compliance with section 768.28(6) in order to state a cause of action, the failure to do so does not affect subject matter jurisdiction." Kruysman, 475 So.2d at 1009....

...section 768.57 while denying that same defense to the sovereign. Id. at 1033-1034 (citations omitted). Finally, I agree that the question needs to be certified. NOTES [1] Now renumbered section 766.106, Florida Statutes by the official reviser. [2] Section 768.28(6), Florida Statutes provides: (6)(a) An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as...

...In Barthlow, the plaintiff filed an action for wrongful discharge against the defendant under the Florida Whistle-blower's Act, §§ 112.3187-.31895, Fla. Stat. (2004). Id. at 740. The defendant moved to dismiss on the ground of the plaintiff's failure to give the requisite notice in accordance with section 768.28(6)(a), Florida Statutes....

...Indian River County, 371 So.2d 1010 (Fla. 1979), and that in any event the city had reached its statutory limitation on the payment of damages. The court specifically noted that the allegations of nuisance at the landfill constituted a single act or occurrence under section 768.28(5), Florida Statutes (1979)....

...s without regard to sovereign immunity. City of Lakeland v. Douglass, 143 Fla. 771, 197 So. 467 (1940). Therefore, our first task is to decide whether the legislation providing for a limited waiver of sovereign immunity has altered these principles. Section 768.28(1), Florida Statutes (1979), reads as follows: (1) In accordance with s....

...s case because appellants did not contend that the South Manhattan Landfill is abnormally dangerous. [2] We also note that our sister court in Department of Transportation v. Burnette, 384 So.2d 916 (Fla. 1st DCA 1980), assumed, without debate, that section 768.28 waived the immunity of the Department of Transportation when it created a nuisance. Having decided that section 768.28 includes nuisances, the next question is whether the statute has any applicability to cities....

...The court reasoned that there was no constitutional prohibition against legislatively granting limited immunity to cities and that the legislature intended for cities to be on the same footing as the state and its agencies. Although we have determined that section 768.28 waives sovereign immunity in nuisance actions and is applicable to municipalities, this does not end our inquiry because even when there has been a waiver of sovereign immunity, the exercise of some governmental functions still does not provide a basis for governmental liability....

...lity. There is a second reason why the appellants cannot recover in this case. As the court found, the city had already paid the sum of $100,000 to other residents of the area on their claims resulting from the conduct of the landfill. By its terms, section 768.28(5) limits the payment of all claims or judgments "arising out of the same incident or occurrence" to $100,000....

...Oliff, 350 So.2d 484 (Fla. 1st DCA 1977); Florida Dep't. of Revenue v. Norville, 321 So.2d 95 (Fla. 4th DCA 1975). [2] But see Laird v. Nelms, 406 U.S. 797, 92 S.Ct. 1899, 32 L.Ed.2d 499 (1972), which construed language in the Federal Tort Claims Act similar to that in section 768.28 to exclude damages caused by the nonnegligent ultrahazardous conduct of the federal government from its waiver of sovereign immunity....

...The first count sounds in contract and the second in tort. The Department moved to dismiss the complaint since the agreement was entered into in April, 1974, during which time the Department enjoyed sovereign immunity. While sovereign immunity in tort actions has been waived by Section 768.28, Florida Statutes (1975), to the extent of liability coverage, the Department contends such was not the law in April, 1974....

...ainage easement was not completed until on or after January 15, 1975. She contends it was not until that time that she could have known of any cause of action she may have against the Department. This, of course, would be after the effective date of Section 768.28....

...y took place, and not at the time of discovery. Cristiani v. City of Sarasota, 65 So.2d 878 (Fla. 1953). The injury here, the construction of the allegedly oversized drainage easement assuredly took place prior to July 1, 1974, the effective date of § 768.28....

...he FAPA. It is true, however, that a civil tort claim may be presented to the defendant Department of Health *1323 and Rehabilitative Services (HRS) for initial administrative determination and settlement before such a claim may be brought to court. Section 768.28(6), Florida Statutes (Supp.1980), states: (6) An action [in court] shall not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency,...

...denies the claim in writing. The failure of the Department of Insurance or the appropriate agency to make final disposition of a claim within 6 months after it is filed shall be deemed a final denial of the claim for the purposes of this section.... Section 768.28(6) sets out the conditions precedent for bringing a civil tort claim and does not establish any requirement for exhaustion of administrative remedies before a federal civil rights suit may be brought....

..., treatment, or discharge of a patient to or from a facility. However, this section shall not relieve any person from liability if such person is guilty of negligence. Thus, while the failure to satisfy the administrative "exhaustion" requirement of Section 768.28(6) would preclude a civil tort claim under Section 394.459(13) in the state courts as well as a pendent state tort claim in the federal courts, it would not prevent a federal court from entertaining a civil rights suit brought pursuant to 42 U.S.C....

...ties as Florida State University 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....

...nly in their individual capacity. 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 ......

...ommercial Consultants Corporation concerning the Eleventh Amendment immunity, the United States District Court for the Southern District of Florida in Brooks v. Parker, No. 80-2258-Civ-SMA (S.D.Fla. Jan. 21, 1981), held after extensive analysis that Section 768.28, Florida Statutes, when considered in light of the recent decision in Marrapese v....

...FLORIDA STATUTES AND LEGISLATIVE INTENT Article X, Section 13 of the Florida Constitution declares: Provision may be made by general law for bringing suit against the state as to all liabilities now existing or hereinafter originating. Consequently, the State of Florida enacted Section 768.28, Florida Statutes (Supp. 1980), entitled "Waiver of Sovereign Immunity in Tort Actions." Section 768.28 provides, in pertinent part: (1) In accordance with s....

...er, employee, or agent committed while acting outside the course and scope of his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety or property.... Fla.Stat. § 768.28 (Supp.1980)....

...The Southern District Court in Brooks v. Parker, No. 80-2258-Civ-SMA, found that the State of Florida had consented to suit under the federal civil rights statutes and had waived its Eleventh Amendment immunity, by concluding that the words "wrongful act or omission" found in Section 768.28(1) includes violations of federal civil rights....

...ermits constitutional deprivations which are tortious at common law, or analogous to a common law tort, to be labeled and included as tortious conduct subject to statutory waivers of sovereign immunity. As more fully discussed below, the language of Section 768.28 and related statutes as well as their legislative histories do not support the conclusion that immunity is waived in these federal actions. Section 768.28 specifically provides that the State of Florida waives "sovereign immunity for liability for torts. " Florida Statute § 768.28(1). Damages in tort can be recovered against the state "for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee" of a state agency or subdivision. Id. Significantly, Section 768.28 notes that the tort action against the state may only be prosecuted only "if a private person, [sic] would be liable to the claimant in accordance with the general laws of this state, ..." Id. (Emphasis added.) Section 768.28 specifically refers to the laws of the State of Florida, not federal laws. Section 768.28(5) sets the limits on the monetary amounts a claimant may recover against the State of Florida....

...This subsection reiterates that the "state and its agencies and subdivisions shall be liable for tort claims...." Id. The recovery limits specified in this subsection are the subject of other related Florida statutes, and when these related statutes are examined in pari materia, it is evident that Section 768.28 waives sovereign immunity only for state tort actions and should not be construed to waive sovereign immunity for federal civil rights actions....

...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. 768.28 if a tort claim. The limits provided in s. 768.28 shall not apply to a civil rights action arising under 42 U.S.C....

...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. However, it seems logical that any expansion of the scope of the waiver would more appropriately be contained in Section 768.28 instead of a chapter related to state insurance programs. Clearly, Section 768.28 on its face does not specifically address federal civil rights suits. Furthermore, the Florida legislature in 1979 specifically deleted language from Section 768.28 which previously lent itself to the interpretation that federal civil rights suits could come under the ambit of the waiver of sovereign immunity for torts. Section 9, Chapter 79-139, Florida Laws, amended Section 768.28 as follows: Subsection (9) of section 768.28, Florida Statutes, is amended to read: 768.28 Waiver of sovereign immunity in tort claims; recovery limit; limitation on attorney's fees; statute of limitations; exclusions....

...ch arises as a result of any act, event, or omission of action within the scope of his employment or function. . . . . . CODING: words in struck through type are deletions from existing law; words in underscored type are additions. This amendment to Section 768.28 was part of a package of revisions, amendments, and new statutes enacted in 1979 to clarify the applicability of Florida's waiver of sovereign immunity for tort claims and liability coverage under state insurance programs....

...d, of course, include federal civil rights actions. This legislative intent is also documented in the Florida Senate Staff Analysis on Committee Substitute for Senate Bill 332, eventually enacted as Senate Bill 474, Chapter 79-139, Florida Laws: (8) S. 768.28(9) F.S., is amended to delete language that monetary limits of s. 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 present scope of the insurance provided by the Division Risk Management does not allow for coverage against payments arising from such suits. Political subdivisions of the state are not authorized to make payments arising from such suits or to purchase such insurance. Section 768.28, F.S., provides for maximum payments of $50,000 per claim and $100,000 per incident in civil actions....

...tions 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. [sic] part II, shall be subject to the monetary limits in s. 768.28, F.S....

...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....

...d attorneys' fees, arising from a complaint for damages or injuries suffered as a result of any act or omission of action of any officer, employee, or agent in a civil or civil rights law suit described in s. 111.07. If the civil action arises under s. 768.28 as a tort claim, the limitations and provisions of s. 768.28 governing payment shall apply....

...(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. (Emphasis in text added.) Clearly, on their face, Sections 111.07 and 111.071 substantiate the conclusion that neither Section 768.28 by itself, or coupled with Chapter 284, should be construed as a waiver of Eleventh Amendment immunity by the State of Florida....

...111.071, F.S., is created to authorize a political subdivision of the State or a State agency excluded from participating in the Insurance Risk Management Trust Fund to pay final personal judgments against employees in civil or civil rights lawsuits. If the civil action arises under s. 768.26 [768.28], the monetary limitation of that section apply [sic]....

...claims and federal civil rights suits affirmatively demonstrate that the Florida legislature considers federal civil rights suits as civil actions separate from those civil tort suits which come under the ambit of the waiver of sovereign immunity in Section 768.28....

...overeign or any other available immunity. This distinction between tort claims and federal civil rights claims is furthermore confirmed by noting the differing procedures contemplated by the Florida Statutes for bringing these claims to court. Under Section 768.28, the tort claims against an employee, officer, or agent of the state may only be maintained by naming the state or agency as the party against whom the action is brought. The officer, employee, or agent of the state will not be held personally liable. Fla.Stat. § 768.28(9)(a) (Supp....

...2565, 57 L.Ed.2d 522 (1978), which declared that by enacting the Civil Rights Attorney's Fees Award Act of 1976, now codified as 42 U.S.C. § 1988, Congress intended to override the Eleventh Amendment immunity of the states and authorize attorney's fees payable by the states. In conclusion, then, the express language of Section 768.28, and related statutes in Chapters 111 and 284, Florida Statutes, affirmatively shows that the State of Florida has not waived its Eleventh Amendment immunity....

...ts sovereign immunity from damages allegedly attributable to state officials, the State of Florida has not consented to suit in tort in this case, and the plaintiffs' tort claims are barred by the doctrine of sovereign immunity. As noted previously, Section 768.28, Florida Statutes, establishes procedures for bringing claims of tortious conduct against state officials before state agencies for administrative consideration as a prerequisite to the state's consent to be sued in court for tort claims. Fla.Stat. § 768.28(6) (Supp....

...ntentional tort, and the gross negligence of a coemployee, were either barred by section 440.11, Florida Statutes (1985), which provides that workers' compensation is the exclusive remedy for workplace injury, or the sovereign immunity provisions of section 768.28(9)(a), Florida Statutes (1985)....

...Harry Winslow was the laboratory supervisor who allegedly should have kept the infected serum out of the hands of the prison inmates. Even if the plaintiff were to prove gross negligence on the part of Winslow, the State of Florida, as the employer would be protected from suit pursuant to Florida Statute, Chapter 768.28....

...even if the actions of the state's employees rose to the level of an intentional tort sufficient to remove the case from the protective umbrella of the Act, in that event the state would be immune from suit under the sovereign immunity provisions of section 768.28(9)(a); and finally, (3) that Dugger could not be sued, as the department head, for the gross negligence of coemployee, Harry C. Winslow, because the sovereign immunity provisions of section 768.28(9)(a), prohibited suit against Winslow....

...Nevertheless, even if the allegations of the complaint could be construed as sufficient to allege a deliberate intent to injure, or conduct which is virtually certain to result in injury or death, we agree with the trial court that suit would be barred by section 768.28(9)(a), which makes the state immune from suit for acts of employees committed *831 in bad faith, or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Finally, concerning Elliott's contention that he could sue Dugger for coemployee Winslow's gross negligence, section 768.28(9)(a) grants sovereign immunity to coemployees who work for the state or any of its subdivisions, unless the employee acts with bad faith, malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety or property. Thus, although section 440.11 permits suit against a coemployee who acts with gross negligence, section 768.28(9)(a) grants immunity to a state coemployee who merely acts with gross negligence and not the greater degree of culpability set forth in the statute. In those rare cases where the two statutes collide — suits against coworkers who are employees of a sovereign — it is the provisions of section 768.28(9)(a) which control....

...On May 6, 1985, the employees filed their motion to dismiss Southern's second amended complaint, alleging that Southern failed to plead sufficient facts that would demonstrate a malicious purpose or willful and wanton conduct to support a claim for *493 punitive damages and to remove the statutory immunity of section 768.28(9)(a), Florida Statutes (1983)....

...Specifically, the trial court found that, with respect to the employees, Southern's complaint did not contain sufficient facts demonstrating a malicious purpose or willful and wanton conduct on the part of the employees to remove the immunity provided by section 768.28(9)(a)....

...2d DCA 1986) (county does not occupy same position as state for purposes of eleventh amendment immunity, notwithstanding that a county's action is generally "state action" for purposes of fourteenth amendment and § 1983); Gamble v. Florida Department of Health and Rehabilitative Services, 779 F.2d 1509 (11th Cir.1986) (section 768.28 did not waive Florida's eleventh amendment immunity; therefore, HRS is not subject to suit in federal court for damages under § 1983)....

...[3] DISMISSAL OF CLAIMS AGAINST THE EMPLOYEES The trial court predicated its dismissal of the claims against the employees on the basis that Southern's complaint did not allege sufficient facts demonstrating a malicious purpose or willful and wanton conduct on the employees' part to remove the immunity provided by section 768.28(9)(a)....

...We find that the trial court correctly held that the case of Avallone v. Board of County Commissioners of Citrus County, 493 So.2d 1002 (Fla.), on remand, 497 So.2d 934 (Fla. 5th DCA 1986), rather than the subsequently enacted chapter 87-134, Laws of Florida (1987), amending section 768.28, Florida Statutes (1985), prevailed as to the collectability of any judgment against appellant....

...a brain lesion or bruise resulting from the gunshot wound Allen received when Clouse fired his shotgun down the hall of the house. Appellee pursued her wrongful death action against appellant on the basis of the waiver of sovereign immunity statute, section 768.28, Florida Statutes (1985). The jury returned its verdict against appellant in the amount of $600,000 in November 1987. Appellant's liability insurance in the amount of $1,000,000, exceeded the maximum exposure limitations of section 768.28....

...The Florida Supreme Court held in Avallone that "purchase of tort liability insurance by a government entity, pursuant to section 286.28, constitutes a waiver of sovereign immunity up to the limits of insurance coverage and that this contingent waiver is independent of the general waiver in section 768.28." Avallone, 493 So.2d at 1004, 1005. *131 After appellee filed her amended wrongful death action, but prior to trial, the legislature amended paragraph (5) of section 768.28 by enacting chapter 87-134, Laws of Florida, which became law on June 30, 1987....

...has been or shall be reversed. The obvious intent and apparent effect of the amendment was to abrogate the holding in Avallone and to limit the liability of the state, its agencies or subdivisions, to the maximum of $100,000/$200,000 as provided in section 768.28(5), regardless of whether the state or such agencies or subdivisions carried liability insurance in excess of those amounts. The trial court, at the request of appellee, ruled that the amendment could not be constitutionally applied to this action against appellant, even though the action was pending as of June 30, 1987, the effective date of the amendment to section 768.28....

...The trial court held: "Chapter 87-134, Laws of Florida, cannot be retroactively applied to violate Plaintiff's vested rights, in that Plaintiff's cause of action had accrued and the litigation commenced prior to the law's effective date." After rejecting the applicability of section 768.28(5) as amended, the trial court held that the rule established in Avallone would apply to the collectability of any judgment entered against appellant....

...Appellant argues that a vested right is something more than a mere expectation of recovery, and until appellee had a judgment or jury verdict in hand, she had nothing more than a mere expectation of recovering damages. We agree with appellee that application of section 768.28(5), Florida Statutes (1987), to limit the collectability of any judgment appellee might obtain would be an unconstitutional abrogation of appellee's right to full tort recovery....

...Our colleagues on the fifth district in Marion County School Board v. Streetman, 535 So.2d 299 (Fla. 5th DCA 1988), relied upon Clausell to apply chapter 87-134 retroactively to the date of injury and limit the amount an injured party may recover to the limits stated in section 768.28, rather than to the extent of insurance *132 coverage....

...of action. Statutes of limitations do not destroy or diminish causes of action, but provide limitations only upon the time within which an injured party may seek to enforce and recover full compensation for such causes of action. On the other hand, section 768.28(5), Florida Statute (1987), as amended, seeks to take away a pre-existing right to seek full recovery for a cause of action that continues to exist....

...In Rupp, the plaintiffs in the trial court, the Bryants, had filed suit for negligence against the School Board of Duval County and its employees, Rupp and Stasco. The Bryants' complaint had been filed on February 9, 1979, and was pending when the 1980 amendments to section 768.28, Florida Statutes (1979) became effective on June 30, 1980....

...The trial court applied the immunity amendment and dismissed the Bryants' complaint with prejudice for failure to state a cause of action against Rupp and Stasco. The First District Court of Appeal reversed the trial court, finding the 1980 amendments to section 768.28 unconstitutional as a retroactive destruction of the vested rights of the Bryants to sue Rupp and Stasco....

...Based on due process considerations expressed in Village of El Portal v. City of Miami Shores, 362 So.2d 275 (Fla. 1978), and McCord v. Smith, 43 So.2d 704 (Fla. 1949), which prohibit retroactive abolition of vested rights, we agree with the district court that section 768.28(9), Florida Statutes (Supp....

...In conclusion, we find that appellants Rupp and Stasco are not entitled to assert immunity as public officials or employees under these circumstances, that the legislature's attempt to shield these employees from personal tort liability by retroactive application of section 768.28(9), *134 Florida Statutes (Supp....

...to state a cause of action against the employees for wanton and willful negligence. Rupp, 417 So.2d at 665-666, 670 (footnotes omitted). In Knowles II, relied upon in the Rupp decision, the supreme court again had before it that "familiar friend — section 768.28, Florida Statutes (1977), which waives sovereign immunity." Knowles II, 402 So.2d at 1156. The legislature in 1980, (just as it did in 1987, in regard to Avallone ) had amended section 768.28 specifically to change the result of the supreme court's holding in District School Board of Lake County v. Talmadge, 381 So.2d 698 (Fla. 1980). The Talmadge court held that public employees were partially indemnified but not immunized from suit for injuries they inflict in the course of their employment. The 1980 amendment to section 768.28, chapter 80-271, Laws of Florida, provided absolute immunity to such public employees and attempted to give that immunity partial retroactive effect by making it applicable to all lawsuits then pending in trial or appellate courts....

...can take away from a private party a right to recover money that is due when the act is passed. We hold, as in Forbes, that it cannot. Knowles II, 402 So.2d at 1157-1159 (footnotes omitted). Similarly, in Griffin, the first district refused to apply section 768.28 as it existed at the time judgment was entered rather than as it existed at the time the cause of action accrued....

...and not to subject him to an unreasonable risk of harm by putting Mr. Ault in a dangerous, life-threatening situation. Deputy Kondrk eventually moved for summary judgment. He argued in essence that he was immune from liability and suit by virtue of section 768.28(9)(a), Florida Statutes (1998), in that he owed no duty of care to Mr....

...City of Orlando, 778 So.2d 490, 491-92 (Fla.5th DCA 2001); see also Horizons Rehab., Inc. v. Health Care and Ret. Corp., 810 So.2d 958 (Fla. 5th *1191 DCA), review denied, 832 So.2d 104 (Fla. 2002). In light of this standard of review, we begin our analysis by examining section 768.28(9)(a), the immunity statute in question....

...If Deputy Kondrk was compelled to show conclusively the non existence of any genuine issue of material fact in order to succeed on summary judgment, he did not do so. We think a reasonable jury could conclude that his conduct was willful and wanton. Thus, we reverse. We fully recognize that the immunity provided by section 768.28(9)(a) is both an immunity from suit and an immunity from liability, and we recognize that an entitlement is effectively lost if the case is erroneously permitted to go to trial....

...THOMPSON, J., dissenting, with opinion. I respectfully dissent. Although I agree with the cases cited, especially the citation to Judge Orfinger's dissent in Lemay v. Kondrk, 860 So.2d 1022 (Fla. 5th DCA 2003), I disagree with the conclusion reached by the panel. As I read section 768.28(9)(a), Florida Statutes (2002), Deputy Kondrk has qualified immunity from suit and qualified immunity from liability because he was acting in his discretionary capacity....

...2d DCA 1992) (state statute mandating assessment of attorney's fees against insurers of ERISA plan is preempted by ERISA, which provides for discretionary award of said fees); Brooks v. Elliott, 593 So.2d 1209 (Fla. 5th DCA 1992) (error to dismiss section 1983 complaint for failure to comply with notice requirement of section 768.28 because federal law preempts imposition of such a requirement)....

...The County moves for summary judgment on the basis that to the extent that Gomez's claim is one for negligence, it is barred by the exclusivity provision of the state's Workers' Compensation Act (Fla.Stat. § 440.11); and to the extent that Gomez's claim involves a deliberate intent to injure, it is barred by Fla. Stat. § 768.28(9)(a)....

...of the workers' compensation statute does not bar Gomez's claim of negligent retention and supervision. The County also asserts that to the extent that Gomez's claim involves a deliberate *684 intent to injure [13] , her claim is barred by Fla.Stat. § 768.28(9)(a). [14] As Gomez is asserting a claim involving negligence and not a claim involving a deliberate attempt to injure, the Court need not address the County's argument with regard to Fla.Stat. § 768.28(9)(a) because it is misplaced....

...4, 1990, at 20.) [12] The County, in its motion, has not asserted that it is entitled to sovereign immunity for the negligent retention and supervision of Gutierrez; but rather, has argued the negligence claim based on the exclusivity provision of the Workers' Compensation Act and Fla.Stat. § 768.28(9)(a)....

...exhibit a deliberate intent to injure, the employer engages in conduct substantially certain to result in injury or death, or where the conduct arises from a sexual harassment claim. Elliot v. Dugger, 579 So.2d 827 (1st DCA Fla.1991). [14] Fla.Stat. 768.28(9)(a) makes the state immune form suit for acts of employees committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property....

...Schwartz of Schwartz & Wilson, Gainesville, and Pamela L. Lutton, Asst. Atty. Gen., for appellee. McCORD, Acting Chief Judge. Appellant, Howard Weston, appeals the trial court's dismissal of his complaint against appellee, the State of Florida. The question raised on this appeal is whether or not § 768.28, Fla....

...torney, advised the grand jury that the indictment could be brought under § 839.11, Fla. Stat., when he knew or should have known that appellant was not within that class of persons chargeable under the statute. It further alleged that, pursuant to § 768.28, Fla....

...al function" the performance of which is not affected by the statute waiving sovereign immunity. See Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla. 1979), in which the Supreme Court ruled: "So we, too, hold that although section 768.28 evinces the intent of our legislature to waive sovereign immunity on a broad basis, nevertheless, certain `discretionary' governmental functions remain immune from tort liability....

...§ 1367(d), the period of limitations shall be tolled for a period of 30 days after it is dismissed. NOTES [1] Plaintiff also asserts a supplemental state tort claim for malicious prosecution in Count II. [2] Alternatively the Court would dismiss Count II because Plaintiff has failed to comply with Fla. Stat. § 768.28(6) which provides that a suit can only be brought against the state or one of its agencies after the claimant has presented its written claim to the relevant agency and the Department of Insurance, and the agency or the Department denies the claim in writing. Fla. Stat. § 768.28(6)(a) (West Supp.1996)....

...Our sovereign immunity statute provides: The state or its subdivisions shall not be liable in tort for the acts or omissions of an officer, employee, or agent committed ... in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. § 768.28(9)(a), Fla....

...Here, the jury found that Officer One acted within the course and scope of his employment when he committed the battery, and the battery was not done in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of the plaintiffs rights. Section 768.28, therefore, does not provide immunity for the City in light of these findings....

...risdiction. Initially we observe that because appellant alleged that Davis had acted with a malicious purpose or in bad faith, a tort action against the appropriate governmental entity or the head of such entity was not appellant's exclusive remedy. § 768.28(9)(a), Fla....

...nt had sold to an undercover agent with cannabis, and used that cannabis to arrest appellant and file charges against him. As with appellee Davis, since the second amended complaint *379 alleges acts which were committed maliciously or in bad faith, section 768.28 does not provide appellant's exclusive remedy. § 768.28(9)(a)....

...These written answers provided notice and thus cured any defect that existed in the earlier presuit notice. Mr. VonDrasek sustained bodily injuries when he tripped and fell on a City sidewalk while jogging on December 17, 1993. Before filing this action, Mr. VonDrasek complied with the presuit notice requirements of section 768.28(6), Florida Statutes (1993), by submitting a written claim to the City dated August 10, 1994....

...The City denied the claim, and the VonDraseks filed suit on June 20, 1996, seeking damages both for Mr. VonDrasek's injuries and for Mrs. VonDrasek's loss of consortium. The VonDraseks alleged in their complaint that they had properly given notice to the City pursuant to section 768.28, and that "[a]ll other conditions precedent to bringing or maintaining this action have been met or waived." The written claim provided to the City was attached to the complaint as exhibit A. In response to the complaint, the City filed an answer and raised nine affirmative defenses. None of the affirmative defenses addressed the requirements of section 768.28(6)....

...a dismissal of her lawsuit because the earlier presuit notice was defective. We conclude that the City has lost *991 its right to complain about the adequacy of the original notice in this case. It is well established that the notice requirement in section 768.28(6) does not affect the jurisdiction of the court, but rather is a condition precedent to the lawsuit. See § 768.28(6)(b), Fla....

...t when the complaint was filed by both VonDraseks. By submitting the interrogatories to Mrs. VonDrasek, the City received her written answers, providing detailed information about her consortium claim, within the three-year period for her claim. See § 768.28(6)(a)....

...The sworn information provided in the answers is more than sufficient to satisfy the statutory notice requirements. Thus, at most, the City was entitled to defer Mrs. VonDrasek's involvement in the lawsuit for six months after it received her written answers to interrogatories while they evaluated her claim. See § 768.28(6)(d)....

...Among other reasons for our conclusion is the fact that, in order to reach the result arrived at by the trial court, it would be necessary to conclude that the members of the consortium all intended, by purchasing the policy, to waive the limit of liability imposed for such actions by section 768.28, Florida Statutes....

...His reliance upon Davis was an obvious determination that the doctrine of sovereign immunity bars this action on the ground that the supervision of the inmates, or the lack thereof, on the date in question was a discretionary decision for which sovereign immunity has not been waived under section 768.28, Florida Statutes....

...1982); Department of Transportation v. Webb, 438 So.2d 780 (Fla. 1983). Finally, an alleged failure to warn an individual who falls within the sovereign entity's duty of care constitutes, if proven, a breach of the common law duty of care. Breach of that duty is subject to the section 768.28 waiver of sovereign immunity....

...failure to follow those policies is actionable because that failure was an operational function and is not protected by the sovereign immunity doctrine. We also reject appellee's argument that sovereign immunity attaches because of the provision in section 768.28(5) that the state and its agencies and subdivisions shall be liable for tort claims "in the same manner and to the same extent as a private individual under like circumstances." Appellee contends that since private individuals do not e...

...Barfield of Cowles, Hayden, McMorrow & Barfield, Jacksonville, for appellees. JOANOS, Judge. In this appeal from a summary final judgment in a medical malpractice action appellants contend that Dr. Alfonso Bremer should not be afforded immunity under *1155 section 768.28(9)(a), Florida Statutes (1981)....

...He received no monies from other sources for his professional services. While undisputed that Dr. Bremer is a staff physician at University Hospital, appellants argue that his relationship with the Fund is in the nature of employee and employer and precludes his asserting the immunity afforded by section 768.28(9)(a), Florida Statutes (1981). Section 768.28(9)(a) provides that no employee of the state or its subdivisions is personally liable in tort for ordinary negligence in the scope of his employment....

...Absent an allegation of bad faith, malice, or willful and wanton actions, Dr. Bremer would be personally immune for ordinary negligence within the scope of his employment with University Hospital. White v. Hillsborough County Hospital Authority, 448 So.2d 2 (Fla. 2nd DCA 1983). Appellants next argue that section 768.28(9)(a) is unconstitutional as applied in this case. As reflected in the trial court's order, the constitutionality of section 768.28(9) has been recognized....

...See Agency for Health Care Admin., 678 So.2d at 1252 n. 20; see also Jews For Jesus, 997 So.2d at 1113-14 . In contrast with, the federal DPPA, Florida law expressly addresses the circumstances under which a municipality may be subject to vicarious liability. Florida Statute section 768.28—the statute governing waiver of sovereign immunity— provides: The -state or its subdivisions shall not be liable in tort for the acts or omissions of an officer, employee, or agent committed while acting outside the course and scope of her or his employment or committed in bad faith or with .malicious purpose or in a manner, exhibiting wan *1262 ton ' and willful disregard of human rights, safety, or property. Fla. StAt. § 768.28(9)(a)....

...(Emphasis added). Appellant's suit was filed on April 22, 1981, but her cause of action accrued on February 16, 1980, almost five months prior to the effective date of the statute. In Stillwell v. Thigpen, 426 So.2d 1267 (Fla. 1st DCA 1983), we held that section 768.28(9)(a), Florida Statutes (Supp....

...the effective date of the statute. The act became law on July 1, 1980, and was made applicable to all actions pending or filed after July 1, 1980. We reasoned that "constitutional considerations of due process preclude the retroactive application of section 768.28(9)(a)." Id....

...cient time for a claimant to file suit before the four-year statute of limitations expires, there is also no basis for an equitable tolling of the limitations period. In some respects, section 760.11 is similar to the waiver of sovereign immunity in section 768.28, Florida Statutes (2003). A claim under section 768.28 can be maintained only if an aggrieved party provides written notice to the relevant state agency within three years. See § 768.28(6)(a), Fla. Stat. (2003). The party must wait up to six months for a response. See § 768.28(6)(d). Nevertheless, the four-year *316 statute of limitations runs from the accrual of the cause of action, not from the conclusion of the condition precedent. See § 768.28(6)(b), (14). Admittedly, section 768.28 contains its own separate statute of limitations and is not controlled by section 95.11(3)(f), but the length and operation of the two statutes are identical and the same policies should apply to both absent clear legislative intent otherwise....

...[1] Appellant's motion to dismiss alleged that, as Plaintiff sued him in his capacity as state attorney for damages based on charges of malicious prosecution, negligence, and violations of 42 U.S.C.A. §§ 1982, 1983 and 1985, service of process *67 had to be effected in accordance with section 768.28(7), Florida Statutes (1989)....

...f sovereign immunity. In its order granting the State's motion, the trial court found no genuine issue of material fact as to the State's liability; that Sambrine was *284 not acting within the scope of his employment when the accident occurred, and § 768.28, Florida Statutes, which waives sovereign immunity in certain instances, only waives it as to a state employee who is "acting within the scope of his office of employment"; that Sambrine was not so acting when the incident occurred....

...part by a purpose to serve the master. We agree with that statement. As applied to this case, Sambrine had left his employment and was not serving his master, the State, on his trip home via a bar and pool hall where he consumed a number of drinks. Section 768.28, Florida Statutes, provides in pertinent part as follows: (1) In accordance with s....

...(Emphasis supplied.) The foregoing statute waiving sovereign immunity contains the specific limitation that the State is only liable for the tort of its employee while he is acting within the scope of his office of employment under circumstances in which the State, if a private person, would be liable to the claimant. Since § 768.28 contains this specific limitation, we are unable to construe subsection (5), which does not contain the same statement relative to state employees, to nullify such qualification to the State's liability....

...228, 229 (1938). Article X, Section 13 of the Florida Constitution (1968) recognizes sovereign immunity of this kind which, however, it authorizes the Legislature to waive by making "[p]rovision ... by general law for bringing suit against the state." "Section 768.28, Florida Statutes (1993), waives governmental *710 immunity from tort liability `under circumstances in which the state or [an] agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state.' § 768.28(1), Fla. Stat. (1993)." Department of Health and Rehabilitative Servs. v. B.J.M., 656 So.2d 906, 911 (Fla. 1995) For purposes of the statute, "`state agencies or subdivisions' include ... counties and municipalities." § 768.28(2), Fla....

...`zone of risk' that poses a general threat of harm to others." McCain v. Florida Power Corp., 593 So.2d 500, 502 (Fla. 1992). If Officer McGrath had been "a private person, [he could have been found to] be liable to the *711 claimant, [2] in accordance with the general laws of this state." § 768.28(1), Fla....

...," "judgmental," or so inextricably part of governmental policy making or "planning," that they "cannot be the subject of traditional tort liability," Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1020 (Fla. 1979), the language of section 768.28, Florida Statutes (1993) notwithstanding....

...On those occasions when he was not physically removed, council members “censured” or silenced Loz-man by interrupting his remarks or threatening police intervention. (e) On July 9, 2008, Lozman’s former attorney, Robert Bowling, sent a formal written “notice of claim” to the City, pursuant to § 768.28(6), Fla....

...State Law claims 1. Failure to comply with conditions precedent On the supplemental state law claims, the City argues that all of Lozman’s state claims should be dismissed with prejudice for Plaintiffs failure to comply with pre-suit notice requirements of § 768.28(6), Fla....

...rest and seizure of Lozman’s floating home in November 2009. Further, as to the battery claim arising out of the October 2009 incident, Lozman failed to file the requisite notice *1414 within three years of the accrual of his claim, as required by § 768.28(6), Fla....

...al district court in the admiralty proceeding, does not necessarily defeat a claim for common law conversion. *1415 However, the court has concluded this claim is not ripe for adjudication for failure to give pre-suit notice of claim, as required by § 768.28(6), as discussed above, and that the claim is appropriately dismissed from this action without prejudice for the Plaintiff to reassert it after provision of proper notice and issuance of the City’s denial of claim, or expiration of the st...

...City’s arrest and seizure and destruction of Loz-man’s floating home, to the extent that court hereby DISMISSES WITHOUT PREJUDICE the conversion claim due to Plaintiffs failure to show compliance with the pre-suit notice of claim requirements of § 768.28(6)....

...at 304 (cost of repairs performed internally by injured party, including overhead, are recoverable in a negligence action). 32. Therefore, the total amount of damages is $423,239.09. The City is liable for thirty (30) percent of this amount or $126,971.72. V 33. The City of Tampa contends that Florida Statute Section 768.28 precludes recovery of monetary damages against it in excess of $100,000. Fla.Stat. § 768.28(5) provides that the state and its agencies and subdivisions shall not be liable to pay a claim or judgment by one person in excess of $100,000. The statute specifically includes "municipalities" within the definition of "state agencies" or "subdivisions." See Fla.Stat. § 768.28(2)....

...The City does not contend that it is immune from suit in federal court but rather that its liability is limited to no more than $100,000 in damages under the Florida Statute. If the City were sued in state court, this position would no doubt have merit. See Schopler v. Bliss, 903 F.2d 1373, 1379 (11th Cir.1990) (Section 768.28 expressly waives Florida's sovereign immunity from tort actions brought in its own courts, with certain limitations) 35....

...McDaniel, 814 F.2d 600, 605 n. 4 (11th Cir.1987) (the Eleventh Amendment does not preclude an award of damages against a county). 41. The fact that the State of Florida has expressly included municipalities within the limited waiver of sovereign immunity in Fla.Stat. § 768.28(5) does not affect the City's Eleventh Amendment immunity status....

...1024, 98 L.Ed.2d 989 (1988) (recognizing that the Eleventh Amendment protects state governments from suits in federal court while sovereign immunity protects state governments from suits in state court). 43. In the absence of Eleventh Amendment immunity, the City cannot limit its liability in federal court pursuant to Section 768.28 for a suit brought under federal admiralty law for a maritime tort committed in the navigable waters of the United States. Therefore, the City of Tampa is liable for all damages awarded against it. 44. Since Florida Statute Section 768.28 cannot limit the liability of the City of Tampa in this case, the City's argument that prejudgment interest is precluded on that basis must be rejected as well....

...y S. Trout. Although a city ordinance obligated the City to indemnify Donisi for the full amount of any judgment, the City claims that the trial court erred to the extent that the amount to be indemnified exceeded the $50,000 limitation set forth in Section 768.28, Florida Statutes (1977)....

...horize what the Legislature has expressly forbidden. We, therefore, must employ a rule of strict construction against waiver of immunity beyond the statutory amount. The Legislature has, by general law, provided for a waiver of sovereign immunity in Section 768.28, Florida Statutes (1977) *731 and more specifically has set monetary limitations for such actions in subsection 5....

...Gen., Tallahassee, for respondents, Ameri-Manage, Inc., et al. OVERTON, Justice. The First District Court of Appeal, in Spooner v. Department of Corrections, 488 So.2d 897 (Fla. 1st DCA 1986), certified the following question to this Court: Has the State of Florida, pursuant to Section 768.28, Florida Statutes (1983), waived its Eleventh Amendment and state common law immunity and consented to suits against the State and its agencies under 42 U.S.C....

...and that the plaintiff failed to plead sufficient facts to establish that a custom or policy was the moving force behind the plaintiff's alleged constitutional *1325 violation. The County moves to dismiss the remaining state law claims as barred by Section 768.28(9)(a) of the Florida Statutes and/or sovereign immunity because the alleged actions were malicious, in bad faith, or with wanton and willful disregard of the plaintiff's rights....

...liction of emotional distress), X (civil conspiracy), and XI (gross negligence) on the ground that the state law claims allege actions taken maliciously, in bad faith, or with wanton and willful disregard for the plaintiff's rights and are barred by Section 768.28(9)(a) and/or the doctrine of sovereign immunity. Additionally, the state law battery claim falls within the claim for false arrest and cannot exist as an independent claim. The County relies on Sub-section 768.28(9)(a) of the Florida Statutes, which provides "governmental entities...with sovereign immunity from suit when certain tort causes of action are brought against them." Rance v. Jenn , 2008 WL 5156675 , * 5 (S.D. Fla. Dec. 9, 2008). Sub- section 768.28(9)(a) provides in pertinent part: ...The state or its subdivisions shall not be liable in tort for the acts or omissions of an officer, employee or agent committed while acting outside the course and scope of her or his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Fla. Stat. § 768.28 (9)(a)....

...Florida courts have ruled that a governmental entity may not be held liable where its employee's actions were malicious, in bad faith, or showed reckless and wanton disregard for human rights, safety, or property. See City of Fort Lauderdale v. Todaro , 632 So.2d 655 , 656-58 (Fla. 4 th DCA 1994). Section 768.28(9)(a) will bar claims when the allegations "connote [ ] conduct much more reprehensible and unacceptable than mere intentional conduct" that involve conduct done in bad faith or in a willful and wanton manner....

...Fla. 2015) (quoting Richardson v. City of Pompano Beach , 511 So.2d 1121 , 1123 (Fla. 4 th DCA 1987) ). 1. Count I: False Arrest/False Imprisonment and Count VIII: Battery False arrest and battery claims are torts that are not inherently barred by Section 768.28(9)(a) as are claims for malicious prosecution, intentional infliction of emotional distress and conspiracy. Many courts in this district have dismissed false arrest and battery claims when factual allegations implicate the bar of Section 768.28(9)(a)....

...tiff's arrest and " 'violently pummeled' [the plaintiff] in the head, face and torso [which was done] without reasonable suspicion or probable cause."); Mena v. Miami-Dade County , No. 14-20030-CIV, 2014 WL 3667806 (S.D. Fla. July 22, 2014) (finding Section 768.28(9)(a) barred the claim against the county where the factual allegations "that [the officers'] actions-pulling Mr....

...constitute conduct that can only be described as 'committed in bad faith or with malicious purpose." Based on the factual allegations in the present case, the claims for false arrest/false imprisonment and battery against the County are barred under Section 768.28(9)(a)....

...Counts I (false arrest/false imprisonment) and VIII (battery) are dismissed with prejudice. 2. Count IX: Intentional Infliction of Emotional Distress The Eleventh Circuit has held that claims for intentional infliction of emotional distress are barred by Section 768.28(9)(a). Weiland v. Palm Beach County Sheriff's Office , 792 F.3d 1313 , 1330 (11 th Cir. 2015) (" Fla. Stat. § 768.28 (9)(a)...bars claims for both intentional infliction of emotional distress and malicious prosecution.") (citation omitted)....

...Count X: Civil Conspiracy Count X asserts a conspiracy claim based on the Officers' agreement to "fabricate evidence" and "maliciously prosecute" the plaintiff. Amended Complaint ¶¶ 87-88. The plaintiff's allegations of malice and bad faith implicate the bar of Section 768.28(9)(a) regarding the civil conspiracy claim....

...The gross negligence count alleges that the County acted with "wanton disregard for proper training and supervision" and acted with "deliberate indifference...and without regard to [the plaintiff's] rights and welfare." Amended Complaint ¶¶ 91, 93. Section 768.28(9)(a) bars municipal liability for acts "committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Fla. Stat. § 768.28 (9)(a)....

...In August 1980, the infant was admitted to the hospital with severe burns and two fractures to his arm. Id. The arm was medically amputated the following day. Id. The jury found HRS negligent and returned a verdict of 3.1 million dollars, which was reduced to $50,000 pursuant to section 768.28(5), Florida Statutes....

...fairest method to accomplish the purposes of the Florida Insurance Guaranty Association Act. We recognize that the appellee's interpretation of a statutory covered claim is supported by analogy to the interpretation of "claim" in sovereign immunity. Section 768.28(5), Florida Statutes, has always limited the state's liability for a "claim" to a statutory amount for any one person and to a larger amount for any one occurrence....

...ally struck an employee of the Department of Transportation (DOT) in an automobile accident. [1] DOC contends that it is immune from suit based on the exclusive remedy provision of § 440.11, Florida Statutes, and the sovereign immunity provision in § 768.28(9)(a), Florida Statutes....

...(e.s) In the present case, neither party disputes that, pursuant to the workers' compensation act, victim Koch and DOC employee Tyre were coemployees "assigned primarily to unrelated works." The DOC argues that the unrelated works exception was abolished by § 768.28(9)(a), Florida Statutes, the sovereign immunity provision....

...Appellant relies on McClelland v. Cool, 547 So.2d 975 (Fla. 2d DCA 1989), which found conflict between the two statutes. However, that conflict was on the issue of whether a public employee could be sued personally for gross negligence. The court found that § 768.28(9) controlled and that a public employee could not be personally sued for gross negligence....

...The McClelland court did not discuss whether the state could be held liable for a coemployee's negligence. We find the sovereign immunity statute does not abolish the common law right of recovery upon which the unrelated works exception to the workers' compensation act is based. Section 768.28(9), Florida Statutes, transferred the employee's liability to the state. Section 768.28(9) provides, in part: No officer, employee or agent of the state or any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, e...

...officer, employee or agent is an employee, unless such act or omission was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. We find no legislative intent in § 768.28(9), Florida Statutes, to abolish causes of action against a negligent coworker....

...This limited abolishment of coemployees' common law cause of action for negligence was held constitutional in Iglesia v. Floran, 394 So.2d 994 (Fla. 1981). The Court in Iglesia reasoned that the amendment did not abolish the right to sue but merely changed the degree of negligence necessary to maintain an action. Section 768.28(9)(a), Florida Statutes likewise places further limitations on the circumstances under which a state employee may recover for injuries caused by another employee. Although the instant appellant contends that section 768.28(9), Florida Statutes has completely abolished the right of recovery for the negligence of a coemployee engaged in unrelated work, the legislature could not have intended to abolish that right of recovery without providing an adequate alternative remedy. Moreover, several courts have examined the constitutionality and scope of § 768.28(9), Florida Statutes, and have found that § 768.28(9) did not abolish the right of an injured person to sue and recover based on the liability of a negligent employee; it merely required that the action be maintained against the public employer as the sole, substitute defendant....

...slature merely substituted the state and its agencies, which previously could not be sued because of sovereign immunity, for the individual who could be sued. Id. See also Campbell v. City of Coral Springs, 538 So.2d 1373, 1374 (Fla. 4th DCA 1989) ("section 768.28(9)(a) does not abolish causes of action....

...the negligence of its employee. Appellees had a cause of action based on the unrelated works exception to the workers' compensation exclusivity provision, and the court properly transferred liability from the employee to the state in accordance with § 768.28, Florida Statutes....

...Kurtz, Miami, for appellee. Before COPE, GREEN, and SORONDO, JJ. GREEN, J. Nora Osten appeals a final order dismissing her amended complaint against the City of Homestead ("City") for her failure to comply with the statutory notice requirements of section 768.28, Florida Statutes (1997)....

...discharge, breach of covenant of good faith dealing and loss of consortium. The City moved for and was granted a dismissal with prejudice on the grounds that the Ostens, without dispute, had failed to comply with the statutory notice requirements of section 768.28, Florida Statutes (1997). This appeal was taken. In section 768.28, the Florida legislature has waived the sovereign immunity of the state and its subdivisions from tort action provided, among other things, that the claimant present a written claim to the appropriate agency within three years after the accrual of the claim....

...notice of his claim. She appears, however, to argue that dismissal of her remaining counts for retaliatory discharge and for breach of covenant of good faith dealing was error because neither of these counts was subject to the notice requirements of section 768.28(6)(a) since neither sounded in tort....

...Otis Elevator Co., 524 So.2d 642, 643 (Fla.1988), observed that "[r]etaliatory discharge is tortious in nature." Recently, citing to Scott, the first district squarely held that an action for retaliatory discharge under section 440.205 is clearly a tort within the meaning of section 768.28 and that pre-suit notice is therefore required. See Kelley v. Jackson County Tax Collector, 745 So.2d 1040 (Fla. 1st DCA 1999). We agree and affirm the trial court's dismissal of the count for retaliatory discharge where no statutory notice of the claim was provided pursuant to section 768.28. As for the remaining count for breach of covenant of good faith dealing, the City correctly concedes that this is an alleged contractual claim for which no notice is required under section 768.28....

...3d DCA 1986); Bryant v. Shands Teaching Hosp. and Clinics, Inc., 479 So.2d 165 (Fla. 1st DCA 1985); Muller v. Stromberg Carlson Corp., 427 So.2d 266 (Fla. 2d DCA 1983). Thus, although this count was erroneously dismissed for the lack of statutory notice under section 768.28, we nevertheless affirm its dismissal where it failed to otherwise state a cause of action against the City....

...NOTES [1] That statute provides that: No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee's valid claim for compensation or attempt to claim compensation under the workers' compensation law. [2] Specifically, section 768.28(6)(a) provides in relevant part that: An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency ......

...Nor do we determine what effect, if any, the principle of comparative negligence has on the plaintiffs' claims. Moreover, we note that as with all governmental entities, the City's liability is limited by the cap in the State's waiver of sovereign immunity set forth in section 768.28, Florida Statutes (2004)....

...The basis of Avallone's claim against the county was the failure of the county to provide supervisory personnel at the park. In its opinion in Avallone, this Court based it decision on its earlier landmark sovereign immunity decision in Trianon Park Condominium Ass'n v. City of Hialeah, 468 So.2d 912 (Fla.1985), and stated: Section 768.28 and Cauley v....

...City of St. Cloud, 150 Fla. 806, 8 So.2d 924 (1942),] recognized was also applicable to counties even though the counties were sovereignly immune from suit at the time Pickett and Ide issued. We addressed this point in Trianon Park when we emphasized "that section 768.28, Florida Statutes (1975), which waived sovereign immunity, created no new cause of action, but merely eliminated the immunity which prevented recovery for common law torts committed by the government." Trianon Park, 468 So.2d at 914....

...treet was negligent. The majority secondly attempts to minimize its holding by stating, "[W]e note that as with all governmental entities, the City's liability is limited by the cap in the State's waiver of sovereign immunity provisions set forth in section 768.28, Florida Statutes (2004)." Majority op. at 1061. I read this to mean that the City's financial exposure is not of great financial consequence to the City since section 768.28(5) limits the payment of claims to $100,000 per individual and $200,000 per incident. However, this is incorrect. As then Judge Pariente wrote for the Fourth District Court of Appeal in Paushter v. South Broward Hospital District, 664 So.2d 1032, 1033 (Fla. 4th DCA 1996): However, while section 768.28(5) limits recovery against a governmental entity absent a claims bill, it does not limit the right of a party to proceed to judgment for the full amount of damages against the state or its agencies....

...the deaths. CANTERO and BELL, JJ., concur. NOTES [1] We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. [2] The Legislature has set a cap on damages recoverable from a governmental entity at $100,000 per person and $200,000 per accident. See § 768.28(5), Fla....

...Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983); Gilmere v. Atlanta, 864 F.2d 734, 739 (11th Cir. 1989); Rogers v. Saylor, 306 Or. 267, 278-85, 760 P.2d 232, 239-43 (1988) ( in banc ). Defendants' third assertion is grounded in Fla. Stat. § 768.28(6), a notice of claim statute. However, this statute also does not apply to this suit. The notice of claim requirement of § 768.28(6) is a condition precedent to state law claims against the State of Florida or its political subdivisions, Commercial Carrier Corp....

...We may not address her contention because this court lacks jurisdiction to review orders which have not been reduced to writing. [*] Fla.R.App.P. 9.110(b), 9.020(g); Phillips v. Albertson's Inc., 472 So.2d 513 (Fla. 2d DCA 1985). Appellant's second point is without merit. § 768.28(7), Fla....

...l judgment had not been paid and that since a levy could not be had against the Town, mandamus was necessary. [1] The trial court issued the writ, but stated: This Writ is without prejudice to a pending issue as to the application of Florida Statute 768.28(5), as to whether or not the TOWN OF HASTINGS' liability on the Judgment is limited to $50,000.00, including costs, or whether it exceeds this sum to the extent of the full Judgment, plus interest and costs....

...This issue will be determined subsequent to *1136 this Writ upon application of either party with reasonable notice. The trial court ultimately determined that the two arrests constituted one incident because they were based on the same ordinance, and, thus, a cap of $50,000 on recovery was imposed via section 768.28(5), Florida Statutes (1979)....

...ngs to pay the full judgment entered against it. REVERSED and REMANDED. DAUKSCH, J., and LOCKETT, J.T., Associate Judge, concur. NOTES [1] See § 55.11, Fla. Stat. (1985); City of Ocoee v. State ex rel. Harris, 155 Fla. 514, 20 So.2d 674 (1945). [2] Section 768.28(5), Florida Statutes (1977), provides in part: (5) ......

...n 933.09 and the privacy rights which the statute promotes. In suggesting this reconsideration, we point out several important developments since 1964. First, the state has waived sovereign immunity for the operational negligence of police officers. § 768.28, Fla....

...cases may not be large enough to attract attorneys through contingency fees, it may be appropriate for the courts to require proof in some cases that the law enforcement agency is willing to make a reasonable offer to settle a claim submitted under section 768.28(6), Florida Statutes (1989)....

...hout probable cause or which is obtained by police engaged in conduct which rises to the level of bad faith or malicious purpose, we expect that the monetary liability will fall upon the law enforcement department rather than the individual officer. § 768.28(9)(a), Fla....

...n. The trial court dismissed the amended complaint with prejudice, finding that the allegations did not demonstrate bad faith or malicious purpose, or wanton and willful disregard of human rights, safety, or property sufficient under the criteria in section 768.28(9)(a), Florida Statutes (1987), to constitute a waiver of the sovereign immunity granted state employees. The appellant contends that the court erred in applying section 768.28(9)(a), rather than the more lenient provisions of section 440.11(1) of the Workers' Compensation Law which extends immunity from liability to all employees acting in furtherance of the employer's business, except when there is willful...

...stringent standard in the sovereign immunity statute denies the appellant a remedy granted by section 440.11. We acknowledge, as do the appellees, the apparent conflict between the two statutes but conclude that the trial court correctly found that section 768.28(9)(a) controls in a suit against coworkers who are employees of a sovereign....

...Billie, 497 So.2d 889 (Fla. 2d DCA 1986), rev. den., 506 So.2d 1040 (Fla. 1987). The Workers' Compensation Law is generally applicable to all employers, and extends limited immunity to employers and their employees. § 440.11(1), Fla. Stat. (1987). Section 768.28, however, deals specifically with suits against the state and its agencies and subdivisions. We therefore conclude that section 768.28(9)(a), covering officers, employees and agents of the state, is the more specific statute....

...The sovereign immunity provision in question became effective on June 30, 1980. Ch. 80-271, § 6, Laws of Fla.; Rupp v. Bryant, 417 So.2d 658, 660-61 (Fla. 1982). Thus, under standard principles of statutory construction, the more recent provision of section 768.28(9)(a) controls. The appellant argues in the alternative that the court erred because the allegations of the amended complaint do satisfy the greater degree of culpability required by section 768.28(9)(a)....

...The conclusory allegations of negligent supervision, knowing violation of industry practices and failure to warn do not constitute willful and wanton behavior and therefore fail to state a cause of action sufficient to waive the immunity of a coemployee under section 768.28(9)(a). Rupp v. Bryant, 417 So.2d at 670, and Nicholas v. *977 Miami Burglar Alarm Co., 339 So.2d 175 (Fla. 1976). In affirming the court's decision that the more stringent standards of section 768.28(9)(a) control, we need not decide whether the allegations of the amended complaint state a cause of action for gross negligence under section 440.11....

...The trial court, concluding that DHSMV was protected by sovereign immunity, granted DHSMV's motion and dismissed Layton's amended complaint with prejudice on the authority of Trianon Park Condominium Association v. City of Hialeah, 468 So.2d 912 (Fla.1985). Section 768.28(5), Florida Statutes (1989), imposes liability upon governmental entities "for tort claims in the same manner and to the same extent as a private individual under like circumstances" would be subject to an underlying common law duty to exercise reasonable care....

...Mary Ann Stiles of Stiles & Livingston, P.A., and David B. Webster of Rood & Webster, Tampa, for appellant. Michael N. Brown of Allen, Dell, Frank & Trinkle, Tampa, for appellee Vanderschilden. SCHEB, Judge. Appellant challenges the trial court's order upholding the constitutionality of section 768.28(9), Florida Statutes (Supp....

...Appellant charged that her injuries resulted from the negligence of John L. Vanderschilden, M.D., while he was acting in the scope of his employment with the appellee hospital. The trial court granted Dr. Vanderschilden's motion to dismiss and entered final judgment in his favor on the basis of section 768.28(9)....

...That statute bars a suit against an officer or employee of the state or any of its subdivisions where the employee is acting in the scope of employment, unless he or she acted with malicious purpose or with wanton and willful disregard of another's rights. The trial court's *3 order expressly upheld the constitutionality of section 768.28(9). [1] Appellant forcefully argues that she has been deprived of her right to "redress of any injury" guaranteed by Article I, section 21, of the Florida Constitution. She contends that section 768.28(9) is unconstitutional, because it makes suit against the state the exclusive remedy and eliminates any cause of action for simple negligence against state employees acting within the scope of their employment....

...employee cannot be held personally liable for a judgment in excess of the monetary limits imposed by statute on the state's liability. In effect, appellant's cause of action has been limited by a cap of $50,000 per claimant/$100,000 per occurrence. § 768.28(5), Fla....

...substitute remedy. See Jetton v. Jacksonville Electric Authority, 399 So.2d 396 (Fla. 1st DCA), petition for review denied, 411 So.2d 383 (Fla. 1981). As noted, appellant's claim relates to incidents which occurred in August 1980. We hold that under section 768.28(9), which became effective June 30, 1980, Dr. Vanderschliden is personally immune from suit for ordinary negligence in performance of his governmental employment, and appellant's action may be maintained only against the governmental entity. We affirm the trial court's holding that section 768.28(9) is constitutional....

...Vanderschilden acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety or property. [2] Appellant may seek reimbursement from the legislature for damages in excess of the statutory limits. § 768.28(5), Fla....

...ich was known by appellees. Kirkland's first suit against HRS and NFSH was amended to add Dr. Aznar. Upon a motion to dismiss, the trial court gave leave to amend as to Dr. Aznar, to allow Kirkland to allege willful and wanton conduct as required by section 768.28(9)(a), Florida Statutes (1980)....

...1st DCA 1966). Cf. Fla.R.Civ.P. 1.190. The trial court erred in entering a final judgment without granting leave to amend as to this point. In her second point, Kirkland contends it was error to dismiss her simple negligence suit against Dr. Aznar based upon section 768.28(9)(a), Florida Statutes (1980), which limits suits against state employees personally to situations involving bad faith, malicious purpose or wanton and willful disregard of human rights. Prior to this 1980 amendment, section 768.28(9) permitted suits based on negligence....

...2d DCA 1999). An affirmative defense may be a basis for a motion to dismiss only if it appears within the four corners of the complaint. See Lowery v. Lowery, 654 So.2d 1218, 1219 (Fla. 2d DCA 1995). For the court to dismiss the complaint based on section 768.28(9)(a), Florida Statutes (1999), the complaint must allege that the acts were taken by the employee (1) while acting outside the scope of his employment; (2) in bad faith; (3) with malicious purpose; or (4) in a manner exhibiting wanton and wilful disregard of human rights, safety, or property....

..."Generally speaking, the state and its subdivisions, including municipalities and counties, are sovereignly immune from tort liability unless such immunity is expressly waived by statute." Seguine v. City of Miami, 627 So.2d 14, 16 (Fla. 3d DCA 1993); Art. X, § 13, Fla. Const. That immunity has been waived in section 768.28 of the Florida Statutes, which expressly authorizes tort actions caused by the negligent act or omission of government employees "under circumstances in which the [government entity], if a private person, would be liable to the claimant, in accordance with the general laws of this state . . . ." § 768.28, Fla....

...Bowden, 737 So.2d 532, 537 (Fla.1999), on which the court below relied in denying the motion to dismiss, the officer did nothing to create a danger that, but for his actions, "would not have otherwise existed." [1] Because the public duty exception to section 768.28 applies to this case, the motion to dismiss should have been granted....

...To that end, the condominium association argued that once the city decided to inspect the building pursuant to its building code, the act of performing the inspection was an operational level activity rather than a discretionary one, which subjected the city to tort liability under section 768.28, Florida Statutes....

...rly seized from Hicks, together with interest. We reject without discussion Tunnell's contentions that the court lacked subject-matter jurisdiction over the conversion claim, and that Hicks did not obtain a proper denial of the claim, as required by Section 768.28(6)(a), Florida Statutes (1989). We reverse, however, the award of prejudgment interest, for the reason that section 768.28(5) does not permit such awards in tort claims against a subdivision of the state....

...Petersburg, 260 F.3d 1260 , 1264-66 (11th Cir.2001); see also Cook v. Sheriff of Monroe Cnty., 402 F.3d 1092, 1117-19 (11th Cir.2005); Gelbard v. City of Miami 845 F.Supp.2d 1338, 1340-41 (S.D.Fla.2012). Although the State of Florida has waived sovereign immunity in tort actions to a certain extent, see Fla. Stat. § 768.28 , Florida’s sovereign-immunity waiver does not apply when the challenged acts are “discretionary” rather than “operational.” Kaisner v....

...(Motion at 17.) Specifically, it argues that “a government entity cannot be sued where an ‘act or omission was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.’” (Motion at 17 (citing Fla. Stat. § 768.28 (9)(a)).) Plaintiffs argue that “there are several facts yet to be brought to light to allow this Court to hold as a matter of law that the officers’ actions were taken in bad faith or with malicious purpose.” (Reply at 8.) However, a...

...Pinellas Cnty., 285 F.3d at 1334, 1337 (11th Cir.2002). Florida has not waived sovereign immunity for acts “committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” Fla. Stat. 768.28(9)(a)....

...property. See, e.g., Willis v. Dade Cnty. Sch. Bd., 411 So.2d 245, 246 (Fla.Dist.Ct.App.1982) (finding that trial court properly determined that a complaint alleging a “malicious” assault and battery fails to state a cause of action pursuant to Section 768.28)....

...allenged acts exhibit “a willful, wanton and callous disregard” for the decedents’ rights. (Compl. ¶ 58.) 8 As such, the County is shielded by sovereign immunity from the vicarious liability of the officers’ acts pursuant to Florida Statute 768.28(9)(a)....

...ty, doing business as University Hospital of Jacksonville, and others, the trial court granted summary judgment for the Authority on the ground that McSwain had failed to give timely notice of her claim to the Department of Insurance, as required by section 768.28(6), Florida Statutes (1985)....

...ich alleged that medical malpractice occurred during her operation on June 26, 1980. On August 9, 1982, a joint motion to dismiss was filed on behalf of the hospital authority and Dr. Dussia, alleging as the only ground that the action was barred by section 768.28(9)(a), Florida Statutes, in that plaintiff failed to allege sufficient ultimate facts to show that Doctor Dussia acted in bad faith, with malicious purpose, or with wanton and willful disregard of human rights, safety, or property. Over two years later, on September 17, 1984, defendant hospital authority filed another motion to dismiss, alleging for the first time that the complaint was insufficient because plaintiff had not alleged the requisite notice pursuant to section 768.28(6) in that the complaint alleged that notice was given to the city of Jacksonville but that there was no allegation of notice to the Department of Insurance. Section 768.28(6) requires that, with respect to any claim against a state agency, except a claim against a municipality, [1] notice must be given to the Department of Insurance within three years after the claim accrues....

...y *870 corporate and politic primarily acting as an instrumentality or agency of the City of Jacksonville as established by Chapter 63-1305, Laws of Florida, and Article 24.01(7), Charter of the City of Jacksonville," and that the notice required by section 768.28(6) had not been given to the Department of Insurance....

...val County, makes no difference. The record shows that the Authority is not a municipality, as distinguished from an agency of a municipality; and only if the claim is against a "municipality" itself is notice on the Department of Insurance excused. § 768.28(6)(a), Fla....

...We affirm on this point. As to appellant's first point, we hold that the court erred in concluding that the notice requirement could not be waived and that the summary judgment should be reversed. Failure to give notice to the Department of Insurance under section 768.28(6) is not, as argued by appellees and found by the court below, the equivalent of a jurisdictional requirement or element of the cause of action that cannot be waived. Section 768.28(6)(b), added by the legislature in 1983, [2] unambiguously states: For purposes of this section, the requirements of notice to the agency and denial of the claim are conditions precedent to maintaining an action but shall not be deemed...

...The giving of such notice may be alleged generally in accordance with rule 1.120(c), Florida Rules of Civil Procedure, and shift to the defendant the burden of denying the allegations of compliance with specificity. Ashley v. Lamar, 468 So.2d 433 (Fla. 5th DCA 1985). Since the notice requirement in section 768.28(6) is neither jurisdictional nor an essential element of the cause of action, failure to give the requisite notice may be waived by the hospital authority....

...The summary judgment cannot be sustained, therefore, on the notion that this notice requirement is not waivable. The decision in Levine v. Dade County School Board, 442 So. 210, is distinguishable because it did not decide any question of waiver. Furthermore, the court in that case was construing and applying section 768.28(6), Florida Statutes (1977), and did not consider the effect of the amendment adding section 768.28(6)(b)....

...l issues. Since the court erred in reversing that ruling on the mistaken notion that the notice requirement was not subject to waiver, we reverse and remand for further proceedings. REVERSED and REMANDED. SHIVERS and BARFIELD, JJ., concur. NOTES [1] Section 768.28(2) defines "state agencies or subdivisions" to include "counties and municipalities and corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities." [2] Ch....

...The controlling question presented by this appeal is whether an individual may recover from a County for the County's negligent failure properly to maintain a traffic control device at a street intersection. The question requires the application of Section 768.28, Florida Statutes (1975), to the facts of this case. Section 768.28 is, in pertinent portion, as follows: "768.28 Waiver of sovereign immunity in tort actions; recovery limits; limitation on attorney fees; statute of limitation; exclusions....

...City of Tampa, 227 So.2d 211 (Fla. 2d DCA 1969); Clifton v. City of Ft. Pierce, 319 So.2d 195 (Fla. 4th DCA 1975); and Gordon v. City of West Palm Beach, 321 So.2d 78 (Fla. 4th DCA 1975). Appellant's argument is that this rationale is no longer valid because of the enactment of Section 768.28, Florida Statutes (1975), quoted in part above....

...rms as the Federal Act, therefore, we should adopt the federal decisions as governing. We do not follow this reasoning because the Federal Act is quite different in form, purpose and application to factual situations from the language and purpose of Section 768.28, Florida Statutes (1975)....

...tate's adoption. See 73 Am.Jur.2d Statutes §§ 333, 334 (1974); and Gray v. Standard Dredging Co., 109 Fla. 87, 111 Fla. 149, 149 So. 733 (1933). An examination of the Federal Tort Claims Act shows that it contains numerous exceptions not a part of Section 768.28, Florida Statutes (1975)....

...Circuit Court of Twelfth Judicial Circuit, 317 So.2d 772 (Fla. 2d DCA 1975). We adhere, therefore, to the holding in Modlin v. City of Miami Beach, 201 So.2d 70 (Fla. 1967); and we further hold that the Florida statute with regard to Waiver of Sovereign Immunity in Tort Actions, Section 768.28, Florida Statutes (1975), does not create a liability in the State where the act complained of does not give rise to liability in the agent committing the act, because the duty claimed to be violated is a duty owed to the citizens of the state in general and is not a duty owed to a particular person or persons....

...exclusions and limitations not relevant here [1] , has been specifically waived by statute for all tort incidents occurring after January 1, 1975. Circuit Court of Twelfth Circuit v. Department of Natural Resources, 339 So.2d 1113, 1116 (Fla. 1976). Section 768.28, Florida Statutes (1975), specifically provides as follows: "(1) In accordance with section 13, Art....

...* * (5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period prior to judgment." [Emphasis added] Section 768.28, Florida Statutes (1975) provides as follows: "Section 768.28 shall take effect on July 1, 1974, for the executive departments of the state and on January 1, 1975, for all other agencies and subdivisions of the state, and shall apply only to incidents occurring on or after those dates." Prior to...

...have been dismissed with prejudice by the trial court. It is self-evident that to substantially abolish the defense of sovereign immunity in a tort action against the county is not to expose the county to automatic tort liability in all such suits. Section 768.28(1), Florida Statutes (1975), merely renders the county liable in tort for damages caused by the act or omission of one of its employees while acting within the scope of his office or employment "under circumstances in which (the county...

...122, 100 L.Ed. 48 (1955); Rayonier, Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957); Somerset Seafood Co. v. United States, 193 F.2d 631 (4th Cir.1951); and Freeman v. United States, 509 F.2d 626 (6th Cir.1975). [1] See Sections 768.28(5), (6), (13), Florida Statutes (1975)....

...After the cause was at issue, Metropolitan Dade County filed a motion for summary judgment alleging the plaintiff's failure to comply with the written notice of Section 2-2 of the Code of Metropolitan Dade County and the written notice requirements prescribed by Section 768.28(6), Florida Statutes (1975) prior to instituting the action....

...The trial court granted the motion and entered summary final judgment in favor of Dade County from which this appeal is taken. At the outset, we note that the county's sixty-day notice requirement has recently been invalidated by this court as conflicting with the three-year notice requirement of Section 768.28(6), supra....

...Consequently, the judgment appealed from cannot be affirmed on authority of Section 2.2 of the Code of Metropolitan Dade County. However, between the entry of this judgment and this appeal various decisions of other courts have disposed of the question of validity of the requirements of Section 768.28(6). In Hutchins v. Mills, 363 So.2d 818 (Fla. 1st DCA 1978), cert. denied 368 So.2d 1368 (Fla. 1979), that court upheld the provisions of questioned statute stating: F.S. 768.28(6) is analogous to Section 95.241, Florida Statutes 1973, now revised, which required a written notice of claim to be given a municipality within ninety days of the occurrence or discovery *76 of certain injuries as a prerequisite to the maintenance of an action against the municipality for those injuries....

...1979), our Supreme Court upheld the requisite notice provisions of the challenged statute as follows: As to the second issue, we agree with the respondents that the third-party complaints were deficient from the standpoint of properly alleging compliance with the notice provisions of section 768.28(6), Florida Statutes (1975)....

...In Cheney, there was no allegation of statutory compliance. In Commercial Carrier Corporation, it was alleged that proper notice had been given to both governmental defendants, but there was no allegation that timely written notice was given to the Department of Insurance as is also required by section 768.28(6)....

...Nonetheless, failure of the pleadings in this regard does not call for dismissal with prejudice. In view of our holdings herein, the third-party complaint in each case should have been dismissed with leave to amend. Appellant concedes, as it must, that no attempt was ever made to comply with the written notice provisions of Section 768.28(6), Florida Statutes (1975) prior to the filing of the amended complaint....

...hat written notice may be properly given to the county and the cause of action revived. Since the time for the performance of the mandatory conditions precedent has elapsed, this court is without authority to order that the proceeding be abated. [1] Section 768.28(1), Florida Statutes (1975) waives sovereign immunity "only to the extent specified in this act." In construing an analogous notice requirement contained in municipal charter provisions, the Supreme Court in Town of Miami Springs v....

...ons for damages for a negligent or wrongful act or omission pursuant to this section shall be forever barred unless the civil action is commenced by filing a complaint in the court of appropriate jurisdiction within 4 years after such claim accrues. § 768.28(11), Fla....

...(Supp. 1980). This statute contains no period of repose, unlike section 95.11. The trial court held in favor of PHT and ordered the complaint dismissed as time-barred. On appeal, however, the third district reversed. The district court concluded that section 768.28(11) was the applicable statute and that the trial court had applied the wrong period of limitation....

...Marion County Hosp. Dist., 416 So.2d 500 (Fla. 5th DCA 1982). We begin by noting the somewhat unusual nature of the conflict between the opinion under review and Carr. In Carr, this Court did not address the question of whether the period of limitation in section 768.28(11) should prevail over that contained in section 95.11(4)(b) for medical malpractice actions against governmental hospitals....

...tive statement contained in section 95.011, Florida Statutes (1979), is dispositive of this case. That statute clearly provides that the periods of time provided in chapter 95 do not apply if a different period is provided elsewhere in the statutes. Section 768.28(11), Florida Statutes (Supp. 1980), provides its own period of time. Thus, section 768.28(11) is the statute applicable to this case. We are aware of PHT's argument that section 768.28(11) contains no statute of repose and that the repose period contained in section 95.11 thus should apply....

...erms, but rather refers only to the "time prescribed" to bring a suit. Moreover, the language of section 95.011 is plain: If a different statute prescribes a different time, then the periods of time in chapter 95 have no applicability. The fact that section 768.28(11) provides a statute of limitation but not a statute of repose thus means that no repose period was intended....

...We also note that this clearly is the understanding the Florida Legislature attached to the relevant law at the time it amended these same statutes in 1988. A staff summary attached to these amendments endorsed the view that, under the then-existing law, section 768.28(11) applies to medical malpractice actions against governmental *570 hospitals and section 95.11(4) does not....

...We recede from Carr to the extent it suggests that section 95.11(4)(b) provides the applicable statute of limitation in medical malpractice actions brought against governmental hospitals before October 1, 1988. Clearly, the applicable statute for such actions is contained in section 768.28. We note, however, that this holding is not applicable to causes of action arising after the applicable statutes were changed on October 1, 1988. Ch. 88-173, § 2, at 974-75, Laws of Fla. (codified at § 768.28(12), Fla....

...Physicians Group). The Hospital Board and First Physicians Group sought a legal ruling that First Physicians Group and the doctors who practiced medicine through this nonprofit corporation were entitled to all the benefits of sovereign immunity. See § 768.28, Fla....

...little role in the construction of hospitals. It is undisputed that such hospital boards and their employees can possess the protections provided by sovereign or governmental immunity, subject to the limited waiver of sovereign immunity contained in section 768.28....

...On the other hand, if the doctors at First Physicians Group receive the benefit of governmental immunity, they can only be personally sued if they act "in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property." See § 768.28(9)(a), Fla....

...Its liability will not have any special limits or caps that are different from the rules that apply to for-profit medical professional corporations. If it is an instrumentality of a governmental agency, then it cannot be liable for a patient's claim in excess of $100,000 unless the legislature orders it to pay the claim. See § 768.28(5), Fla. Stat. (2003). Likewise, claims against it will be controlled by the governmental presuit procedures, and attorneys representing patients against First Physicians Group will be limited to a twenty-five percent contingency fee. See § 768.28(6), (8), Fla....

...The Pagans similarly focused on the Hospital Board's structural control of First Physicians Group as the decisive issue in determining whether First Physicians Group was a corporation primarily acting as an instrumentality or agency of the state, counties, or municipalities. See § 768.28(2)....

...arguments. The trial court then entered a summary judgment order that stated: "Plaintiffs' Motion for Judgment is hereby granted. [First Physicians Group] and each of its employee physicians are entitled to sovereign immunity under Florida Statutes § 768.28." This language was repeated in the final judgment....

...CANADY, Judge, Concurring specially. I agree with the majority's determination that the declaratory judgment in favor of the appellees should be affirmed. I write separately to explain the basis for my conclusion that the Hospital Board is entitled to sovereign immunity under section 768.28....

...)[o]f any immunity, power, privilege or right." (Emphasis added.) The issue of whether a particular entity is entitled to sovereign immunity appears to fall squarely within the express provision of section 86.011. Where the status of an entity under section 768.28 has been challenged or is otherwise in doubt, it does not seem at all "unusual" for that entity to seek a declaratory judgment concerning its status. See Haines City v. Allen, 509 So.2d 982, 983 (Fla. 2d DCA 1987) (discussing "declaratory judgment action asking the circuit court to declare the city's rights with regard to sovereign immunity under section 768.28"); see also Strachan Shipping Co....

...It is hard to see how the details of the Pagans' malpractice claim or facts concerning how the employee physicians "practice medicine" could have any relevance to the legal issue of whether the entity employing the treating physician was entitled to sovereign immunity under section 768.28....

...for First Physicians Group to be considered an instrumentality of the Hospital Board. The Pagans contend that day-to-day operational control over a corporation is necessary to establish that the corporate entity is an instrumentality or agency under section 768.28(2)....

...*267 The Hospital Board argues that the Pagans should not be allowed to raise the public policy argument for the first time on appeal but that the extension of sovereign immunity to First Physicians Group is in any event not inconsistent with the public policy underlying section 768.28. III. ANALYSIS The hospital district is an "independent establishment of the state" which is sovereignly immune from liability pursuant to the provisions of section 768.28. See Eldred, 498 So.2d 911, 913-14 (holding that the provisions of section 768.28 waiving sovereign immunity and limiting liability are applicable to hospital special taxing district as an independent establishment of the state under section 768.28(2))....

...No facts have been adduced to show that the physicians who practice with First Physicians Group are anything other than employees of First Physicians Group. The liability of the appellee physicians thus depends on the status of First Physicians Group. If First Physicians Group is subject to the protection of section 768.28, its physician employees are generally immune from liability for negligent acts performed within the scope of their employment. See § 768.28(9)....

...Physicians Group is entitled to sovereign immunity by virtue of its relationship with the Hospital Board. The answer to this question turns on the meaning of the phrase "corporations primarily acting as instrumentalities or agencies of the state" in section 768.28(2), which defines the entities entitled to sovereign immunity....

...ng as an agency of the state"). Cf. Sebring Utils. Comm'n v. Sicher, 509 So.2d 968, 970 (Fla. 2d DCA 1987) (holding that utilities commission which was created in city charter as part of city government was entitled to sovereign immunity pursuant to section 768.28)....

...186 (E.D.Pa.1989) (holding that federally chartered corporation is not a government instrumentality). The common understanding of the terms "agency" and "instrumentality" points—at least in a general way—to the type of governmental control necessary for a corporation to be entitled to sovereign immunity under section 768.28(2)....

...Agency has a similar meaning. It is defined as "a person or thing through which power is exerted or an end is achieved," or as "an establishment engaged in doing business for another." Id. at 40. Further guidance is provided by the case law addressing the application of section 768.28....

...Thus, the existence of a principal-agent relationship turns on whether the principal has a sufficient right of control and not on the extent to which the principal exercises actual control. Although particular entities "may be deemed agents of the state, [and] not agencies of the state" under section 768.28(2), Sierra v....

...tality or agency of a sovereignly immune entity without that entity exercising actual control over the day-to-day operations of the corporation. The Pagans argue that First Physicians Group should not be considered an instrumentality or agency under section 768.28(2) unless the Hospital Board's control over First Physicians Group is such that the corporate veil could be pierced. This is nonsensical. It imputes to the legislature an intention to grant corporate entities immunity under section 768.28(2) only if those corporate entities are sham entities and if there is a showing of improper conduct in connection with the operation of the entities....

...The type of control necessary to establish that a corporation is being used as a "sham" and "alter ego" or "mere instrumentality" is entirely different from the control necessary to establish that a corporate entity is entitled to immunity pursuant to section 768.28(2). It would be unfaithful to the plain meaning of section 768.28(2) to impose a requirement for control of a type that is inconsistent with the separate corporate existence of the entity acting primarily as an instrumentality or agency. The authorization of immunity for corporations under section 768.28(2) necessarily involves a recognition that those corporations will carry out their operations in a manner that is separate and distinct from the operations of the governmental entity to which they are related. The control of the governmental entity over the corporation necessary to establish an instrumentality relationship under section 768.28(2) does not require that the corporation be subsumed in the governmental entity. The Pagans' argument to the contrary would effectively rewrite section 768.28(2)....

...CONCLUSION I therefore conclude that the trial court correctly decided as a matter of law that First Physicians Group is an instrumentality of the Hospital Board. First Physicians Group and the appellee physicians thus are entitled to sovereign immunity under section 768.28....

...USE LAND AS RIGHT–OF–WAY IF THE SOLE CONSIDERATION FOR THE LICENSE WAS AN AGREEMENT TO INDEMNIFY THE RAILROAD FOR LOSSES ARISING OUT OF DOT’S ACTIVITY ON THE LAND?  IF SO, IS DOT’S LIABILITY UNDER THE CROSSING AGREEMENT LIMITED BY SECTION 768.28(5), FLORIDA STATUTES (2002)? Id....

...at 211-12 (footnotes added). On appeal to the Second District, the DOT argued the indemnity clause was invalid because the State Road Department had no legal authority to enter into the agreement. Id. at 210-11. In the alternative, the DOT argued that pursuant to section 768.28(5), Florida Statutes (2002), its liability for 1....

...n as prohibiting the trial court from entering a monetary judgment requiring the DOT to indemnify CSX. Id. at 214. Regarding the DOT’s argument that the judgment must be limited to $200,000, the district court found that statutes, such as section 768.28, that limit liability as part of the Legislature’s partial waiver of sovereign immunity apply “only to judgments recovering damages for tort, not to judgments recovering damages under legal theories that may be analogous to torts.” Id....

...USE LAND AS RIGHT–OF–WAY IF THE SOLE CONSIDERATION FOR THE LICENSE WAS AN AGREEMENT TO INDEMNIFY THE RAILROAD FOR LOSSES ARISING OUT OF DOT’S ACTIVITY ON THE LAND? IF SO, IS DOT’S LIABILITY UNDER THE CROSSING AGREEMENT LIMITED BY SECTION 768.28(5), FLORIDA STATUTES (2002)? -5- Id....

...In Pan-Am, the Florida Department of Corrections breached its contract with Pan-Am Tobacco Corporation by terminating the agreement early and without using the required termination procedures within the contract. Id. at 4-5. We noted that the Legislature, in section 768.28, Florida Statutes, waived sovereign immunity in tort law, but not in contracts....

...Accordingly, we find that the DOT is bound by the crossing agreement—including the indemnity clause— and answer the first certified question in the affirmative.6 The second certified question asks if the DOT’s liability under the crossing agreement is limited by section 768.28(5), Florida Statutes (2002). CSX Transp., Inc., 128 So. 3d at 215. However, we have previously held that the liability limits of section 768.28 do not apply to non-tort claims. See Am. Home, 908 So. 2d at 474 (concluding that section 768.28 was not applicable where the indemnity provision was based on a contract); Provident Mgmt. Corp. v. City of Treasure Island, 796 So. 2d 481, 486 (Fla. 2001) (refusing to apply section 768.28 to restrict the award of damages against the State for the erroneous issuance of a temporary injunction because “that statute applies only when the governmental entity is being sued in tort”)....

...Auth., 106 So. 2d 421, 424 (Fla. 1958). Waiver cannot be found by inference or implication, and statutes waiving sovereign immunity must be strictly construed. Id. Here, the plain language of this subsection indicates that it applies only to tort claims. § 768.28(5), Fla. Stat. (explaining that state agencies and subdivisions “shall be liable for tort claims in the same manner and to the same extent as a private individual,” but placing limits on that liability) (emphasis added). Even section 768.28(1), which establishes the limited waiver of sovereign immunity, states that it only applies to causes of action seeking “to recover damages in tort.” Am. Home, 908 So. 2d at 474. We hereby reaffirm that section 768.28(5) applies only to tort actions, and we answer the second certified question in the negative. CONCLUSION Based on the foregoing, we find that the breach-of-contract principles in Pan-Am prohibit the DOT from using sovereign immunity to avoid suit for its breach of the crossing agreement. We also find that DOT is bound by the indemnity provision as a part of the statutorily authorized crossing agreement, and that the limits of liability in section 768.28(5) do not apply....

...In addition, prior to the commencement of the instant action, Plaintiff alleges that she filed a timely written charge of retaliation under the ADA with the EEOC. Id. ¶ 5. Further, she alleges that she submitted written notice to the Florida Department of Financial Services and the Defendant as required by Florida Statutes section 768.28(6)....

...As Plaintiff may seek only equitable remedies, Defendant argues that she thus is not entitled to a trial by jury on her ADA retaliation claim. As to Count III, Defendant argues that Plaintiff failed to comply with the statutory notice requirements of Florida Statutes section 768.28(6)....

...Count III: Retaliation in Violation of the Florida Workers' Compensation Act Turning to the remaining issue raised in the Motion, Defendant asserts that the Court should dismiss Count III of the Amended Complaint because Plaintiff failed to comply with the Florida notice of claim provisions set forth in Florida Statutes section 768.28(6)....

...Florida Statutes section 440.205. Osten v. City of Homestead, 757 So.2d 1243, 1244 (Fla. 3d DCA 2000). In order to benefit from the State's waiver of sovereign immunity, a plaintiff must comply with the statutory notice procedure of Florida Statutes section 768.28(6), [11] which requires, in pertinent part: (6)(a) An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also ......

...(b) For purposes of this section, the requirements of notice to the agency and denial of the claim pursuant to paragraph (a) are conditions precedent to maintaining an action but shall not be deemed to be elements of the cause of action and shall not affect the date on which the cause of action accrues. Fla. Stat. § 768.28(6)(a)-(b). This statute requires a prospective plaintiff to file a written claim for damages with the appropriate agency or subdivision within three years after a claim accrues. Fla. Stat. § 768.28(6)(a)....

...will be given the opportunity to investigate the claim and either provide or deny a remedy, and the requirements of notice and denial of the claim are conditions precedent for maintaining a tort action against a Florida state entity. See Fla. Stat. § 768.28(6)(a)(b)....

...Nevertheless, pursuant to the statute, the failure of the Department of Financial Services or the appropriate agency to make a final disposition of the claim in writing within six months of its filing is deemed a final denial of the claim. See Fla. Stat. § 768.28(6)(d). Thus, absent receipt of a denial in writing, section 768.28(6)(d) essentially requires a claimant to wait six months from the date of notice prior to commencing a tort action against a Florida state entity. See id. Florida law requires strict compliance with the notice requirement of section 768.28(6) in order to maintain an action against the State, its agencies or subdivisions, and a suit may be dismissed for lack of notice....

...1st DCA 1986); Thigpin v. Sun Bank of Ocala, 458 So.2d 315 (Fla. 5th DCA 1984); Burkett v. Calhoun County, 441 So.2d 1108 (Fla. 1st DCA 1983)). As Count III is solely a claim under Florida law, Plaintiff must comply with the notice requirements of section 768.28(6) as a condition precedent to maintaining an action against the Florida DOC....

...rvices ... [but] purports only to have presented the claim to the Department of Financial Services." Motion at 5. However, Plaintiff alleges that she complied with the notification requirements, and further represents that "[c]opies of the statutory § 768.28(6) Notices are attached hereto as composite (Exhibit *1345 B)." [12] Amended Complaint ¶ 7....

...The Court turns next to the question of whether Plaintiff's December 11, 2006 letter satisfies the requirements of Florida law to accomplish a waiver of sovereign immunity. Although Plaintiff directs the Court to Exhibit B of the Amended Complaint as evidence of her compliance with Florida Statutes section 768.28(6), the Court finds that the letter contained in Exhibit B directly contradicts her allegation of compliance....

...y.") (citing Mrowczynski v. Vizenthal, 445 So.2d 1099 (Fla. 4th DCA 1984)). Even viewing Plaintiff's allegations in the most liberal manner, the only reasonable inference to be drawn is that Plaintiff did not strictly comply with the requirements of section 768.28(6)(d) prior to filing suit. [13] Nevertheless, the Court declines to dismiss *1346 Count III of Plaintiff's Amended Complaint. In limited circumstances, the Eleventh Circuit has held that Florida law allows a plaintiff to meet her burden under section 768.28(6) "if the initial non-compliance with the section is cured before trial." Hattaway v....

...iff's failure to wait the required six months before bringing the suit. Id. Likewise, in Fitzgerald v. McDaniel, 833 F.2d 1516, 1519-20 (11th Cir.1987) (applying Florida law), the Eleventh Circuit determined that a plaintiff's failure to comply with section 768.28(6) was moot after six months passed from the date the required notice was actually given....

...I note that if the defendants were able to articulate some actual prejudice that resulted from the plaintiff's failure to wait six months before filing suit, I would be more inclined to dismiss the case and require the plaintiff to comply strictly with the language of Section 768.28(6)....

...[11] "When determining whether there has been a waiver of sovereign immunity, the courts should look at the immunity provisions in effect at the time the cause of action accrued." Hattaway v. McMillian, 903 F.2d 1440, 1444 n. 3 (11th Cir.1990) (citing Kaisner v. Kolb, 543 So.2d 732, 738 (Fla.1989)). The Court notes that section 768.28 was amended in 2006, and determines that the changes have no effect on the Court's analysis of the pleadings before the Court in this Order. See Fla. Stat. § 768.28(6), amended, 2006 Fla....

...Gen. Counsel, Jacksonville, for appellees. JOANOS, Judge. This is an appeal from the dismissal with prejudice of appellant's complaint. We agree with appellees that the trial court could dismiss appellant's complaint. Appellant failed to comply with Section 768.28(6)(a), Florida Statutes, prior to bringing suit....

...Since the case has not been decided on the merits, and since the statute of limitations had not yet run at the time of dismissal, the dismissal should not have been with prejudice. It was still possible at the time of the dismissal for appellant to comply with the notice requirements of Section 768.28(6)(a), Florida Statutes, before the statute of limitations ran out....

...f action; and (3) the complaint failed to comply with Section 768.45, Florida Statutes. Appellee Seminole Hospital filed its motion to dismiss and subsequent amendment alleging in part that appellant has failed to comply with the notice provision of Section 768.28(6), Florida Statutes....

...(emphasis added). Also included within the two year statute of limitation is an action for wrongful death. See § 95.11(4)(d), Fla. Stat. Appellant raises for the first time on appeal that Seminole Hospital is a public hospital and therefore pursuant to Section 768.28, Florida Statutes, a four year statute of limitations should apply....

...We are satisfied that the parties here could not invoke the State of Florida to pay any judgment on behalf of Sheriff Rodgers. From this analysis, we conclude that Sheriff Rodgers acted as a county, rather than a state, official. Both parties to this action, however, refer us to Section 768.28(15), Fla.Stat. The State of Florida waived its state sovereign immunity through the enactment of Section 768.28, but added subsection 15 in 1985 in order to exclude federal court actions: No provision of this section, or of any other section of the Florida statutes ......

...Janice Kelley and Sherry Williams (appellants) seek review of the trial court's order dismissing their complaint with prejudice for retaliatory discharge under section 440.205, Florida Statutes (1997). It was undisputed that appellants failed to provide presuit notice as required by section 768.28, Florida Statutes (1997). The dismissal was with prejudice because the time for curing the defect had expired when the order of dismissal was entered. We affirm. Appellants argue that the presuit notice under section 768.28, Florida Statutes (1997), was not required because section 440.205, Florida Statutes (1997), contains an implicit waiver of the notice requirement. We disagree. Section 440.205 contains no language which lends any significant support to appellants' argument. An action for retaliatory discharge under section 440.205 is clearly a "tort" within the meaning of section 768.28 and presuit notice is therefore required....

...Fite of Barron, Redding, Boggs, Hughes, Fite, Bassett & Fensom, Panama City, for appellee. MILLS, Judge. Burkett and Maddox appeal the trial court's order dismissing their negligence complaint against Calhoun County for failure to comply with the notice provision contained in Section 768.28(6), Florida Statutes (1981)....

...was the proximate cause of their injuries. Calhoun County filed a motion to dismiss the complaint, contending that the plaintiffs did not notify the Department of Insurance of their claim within three years of the date of the accident as required by Section 768.28(6), Florida Statutes (1981). The trial court granted the motion. *1109 Burkett and Maddox contend on appeal that the notice provision of Section 768.28(6) does not apply to their suit because Calhoun County had waived its sovereign immunity by securing liability insurance as authorized by Section 286.28, Florida Statutes (1981)....

...We cannot agree with that contention. Section 286.28 authorizes political subdivisions of the State to secure liability insurance, and that section goes on to provide that the sovereign immunity of those subdivisions is waived to the extent of the coverage. Section 768.28(10) evidences a legislative intent not to repeal Section 286.28. Nevertheless, Section 768.28 represents a complete overhaul of the area of sovereign immunity law in Florida. Dade County School Board v. Ingraham, 428 So.2d 283 (Fla. 3d DCA 1983). Section 768.28(1) waives sovereign immunity "only to the extent specified in this act." Therefore, we believe that it was the intent of the legislature to require compliance with the notice provision of Section 768.28(6) whether or not the political subdivision elected to carry liability insurance....

...ases, and naming as defendants a number of state prosecutors, sheriffs, and deputy sheriffs, as well as the State. The trial court dismissed the complaint across the board as to all but one count on the basis that the causes of action were barred by section 768.28(6), Florida Statutes, (1979), by virtue of appellant's failure to satisfy the statutory condition precedent of presenting his claim in writing to the Department of Insurance and the appropriate agency....

...Appellant sought to hold Cummings directly liable for negligent investigation and false arrest and/or false imprisonment, and the State and Estate vicariously liable for these alleged torts. As to these counts, the court ruled the cause of action was barred by section 768.28(6)....

...e State and Morrison, in his official capacity, the order of dismissal was correct. However, insofar as the complaint alleged "malicious intent" and "gross negligence," the complaint stated a cause of action against Cummings, individually, for which section 768.28(6) does not require a written claim. See section 768.28(9), Florida Statutes (1979); West v....

...ent investigation count as to Cummings. Chase v. Cowart, 102 So.2d 147, 150 (Fla. 1958). Using the same analysis as to the false imprisonment claim, we hold that it was properly dismissed as to the State and the estate of Morrison as being barred by section 768.28(6)....

...Finally, even assuming any cause of action had been established, there was no evidence that Carr acted in "bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property," as required under section 768.28(9)(a), Florida Statutes (1997), to hold DEP liable for his actions. The week before trial, the court denied the motion for summary judgment in its entirety. In ruling, the court "acknowledge[d] the immunity afforded the Defendants by Florida Statute 768.28, and [] advised the Plaintiffs that no evidence reflecting discretionary activity on the part of the Defendants will be admitted to establish liability on the part of the Defendants." During the trial, DEP moved for a directed verdict on all of the claims, asserting several grounds, including duty issues, statute of limitations, service and notice under section 768.28(6) and (7), and sovereign immunity....

...For basic judgmental or discretionary governmental functions, there has never been an applicable duty of care. Id. (citing Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979)). The State of Florida has waived sovereign immunity from liability in tort actions under section 768.28 "for any act for which a private person under similar circumstances would be held liable." Pollock v....

...First American Title Ins. Co., 557 So.2d 859 (Fla. 1989). Thereafter, First American satisfied Erskine's judgment, and proceeded with this action for indemnity against the clerk, asserting neglect in indexing the claim. [1] *564 SOVEREIGN IMMUNITY Section 768.28(5), Florida Statutes (1991), provides for a waiver of the state's sovereign immunity, and that "[t]he state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private indivi...

...e clerk to post a bond, "conditioned upon the faithful discharge of the duties of his office." The maximum allowable amount of the bond, $100,000, coincides with the statutory limit of liability of governmental agencies and subdivisions, pursuant to section 768.28(5)....

...For six months after this complaint was filed, the parties litigated these negligence/uninsured/underinsured motorist claims. The School Board sought to dismiss the negligence claim against it for failure to comply with the notice requirements stated in section 768.28(6)(a) of the Florida Statutes....

...pality or the Florida Space Authority, presents such claim in writing to the Department of Financial Services, within 3 years after such claim accrues and the Department of Financial Services or the appropriate agency denies the claim in writing.... § 768.28(6)(a), Fla....

...In his motion for summary judgment, Corporal Ondrey asserted that he was immune from suit. The trial court denied the motion, finding that Mr. Wilson's deposition testimony raised a substantial question of material fact as to the issues of qualified immunity under 42 U.S.C. § 1983 and sovereign immunity under section 768.28(9)(a), Florida Statutes (1999)....

...In reviewing the trial court's ruling on Corporal Ondrey's motion we are required to view all of the facts and inferences in the light most favorable to the estate as the nonmoving party. See Stroud v. Strawn, 675 So.2d 646, 647 (Fla. 2d DCA 1996). With respect to sovereign immunity, section 768.28(9)(a) provides the following: No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result o...

...rder constitutes "a violation of a clearly established principle of law that resulted in a miscarriage of justice." Allstate Ins. Co. v. Hodges, 855 So.2d 636, 639 (Fla. 2d DCA 2003) (citing Combs v. State, 436 So.2d 93, 96 (Fla. 1983)). Pursuant to section 768.28(9)(a), an employee such as Corporal Ondrey does not have sovereign immunity protection if he acts in bad faith, with malicious purpose, or in wanton and willful disregard of human rights, safety, or property. This court has previously stated that an employee's conduct must be something greater than gross negligence in order to be actionable under section 768.28(9)(a)....

...hat lies outside the course and scope of employment. The dissent's analysis here is that the governmental employer should have the exposure for liability and Corporal Ondrey should be immune. We cannot agree with the dissent's position because under section 768.28(9)(a), an employee is liable for acts or omissions that are committed within the scope of employment but are committed in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property....

...ALTENBERND, Chief Judge, Concurring in part and dissenting in part. I concur with the court's decision denying certiorari review of the defenses raised as to 42 U.S.C. § 1983. I dissent as to the denial of review of the defense of sovereign immunity brought pursuant to section 768.28(9), Florida Statutes (1999)....

...I simply disagree that these facts permit a claim *56 against Corporal Ondrey, individually, for which the sheriff would not be liable. When the Florida Legislature created a limited waiver of sovereign immunity, it sought to protect government employees from personal liability. To that effect, the legislature enacted section 768.28(9)(a), which is quoted in the majority opinion....

...ly and for the sheriff to be free from liability, either the estate or the sheriff must establish that Corporal Ondrey acted "in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human ... safety." [1] See § 768.28(9)....

...Reeves, 833 So.2d 857, 866 (Fla. 2d DCA 2002). In the context of this statute, "wanton and willful disregard of human safety" should involve conduct of the type that at least approaches conduct that is "outside the course and scope of his or her employment." See § 768.28(9), Fla....

...all have the same power as the sheriff appointing them, and for the neglect and default of whom in the execution of their office the sheriff shall be responsible.” § 30.07, Fla. Stat. (2006). While this statute can serve as a basis for liability, section 768.28, Florida Statutes (2006), and the immunity it provides must be overcome. Subsection 768.28(9)(a) specifically provides that “[n]o officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a...

...of action in the scope of her or his employment or function, unless such officer, em *1277 ployee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” § 768.28(9), Fla. Stat. (2006). “Importantly, the immunity provided by section 768.28(9)(a) is both an immunity from liability and an immunity from suit, and the benefit of this immunity is effectively lost if the person entitled to assert it is required to go to trial.” Willingham v....

...Hirsch Distribs., Inc., 442 So.2d 958, 960 (Fla. 4th DCA 1983). Even if the claim had not been waived, there was no evidence that the deputy "acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights ....Ӥ 768.28(9)(a).

...That complaint alleged that due to the negligence of the Duval County Hospital Authority (DCHA) and others, Jason Edward Bryant, a minor, incurred serious injuries. At paragraph 26 of the original complaint, appellants alleged: Plaintiffs have complied with Florida Statute 768.28. Notice to the Defendant Duval County Hospital Authority d/b/a University Hospital as required by Florida Statute 768.28, was mailed December 16, 1981, and said Notice was received December 18, 1981....

...paragraph 26 of the original complaint. As its "Third Defense," DCHA alleged that it — is an independent agency of the City of Jacksonville, a corporation primarily acting as an instrumentality or agency of the City, and its liability is limited by s. 768.28, Florida Statutes, to $50,000 per person per claim, or a maximum of $100,000 per occurrence. There is no reference in the answer to the notice provisions set forth at section 768.28, Florida Statutes. On February 10, 1984, appellants filed an amendment to the complaint, again alleging compliance, this time at paragraph 32, with the provisions of section 768.28....

...On April 1, 1985, the trial court entered an order directing appellants to file an amended complaint setting forth all existing causes of action against all remaining parties defendant to the action. Pursuant to that order, appellants filed an amended *461 complaint which restated compliance with the section 768.28 notice provision....

...Pursuant to this order, on September 9, 1985, appellants filed their second amended complaint. On September 13, 1985, the trial court entered an order dismissing the second amended complaint without prejudice to afford appellants an opportunity to amend their complaint to allege compliance with the notice requirements of section 768.28, Florida Statutes. Pursuant to the trial court's order, appellants filed their third amended complaint, alleging in relevant part: 8. Plaintiffs have complied with Florida Statute 768.28. Notice to defendant, DUVAL COUNTY HOSPITAL AUTHORITY d/b/a UNIVERSITY HOSPITAL, as required by Florida Statutes, Section 768.28, was mailed December 16, 1981, and said Notice was received December 18, 1981....

...Said defendant did not allege that it was entitled to have service of notice on the Department of Insurance or raise by Motion to Dismiss or otherwise plaintiffs' failure to give said notice, although at the time of said Answer plaintiffs could have complied with the notice requirements of s. 768.28, Florida statutes....

...efendant was waiving said notice. k. Defendant, Duval County Hospital Authority, d/b/a University Hospital, is an agency or instrumentality of the municipality, City of Jacksonville, and is not entitled to notice to the Department of Insurance under Section 768.28(6)(a), or, in the alternative, by its actions and inaction alleged above has waived or is estopped to raise said lack of notice in this action almost three (3) years after this action was filed and at a time when plaintiffs cannot comply with the provisions of Section 768.28. On November 19, 1985, the trial court dismissed the third amended complaint with prejudice, finding, inter alia, that plaintiffs conceded they did not give the notice required by s. 768.28(6)(a) to the Department of Insurance but maintained that notice to the Department of Insurance was waived or that the defendant was estopped to raise that as a defense, and more than three years had elapsed since plaintiffs' cause of action accrued so there was no possibility of providing the required notice. The notice provision at issue in this case is set forth in section 768.28(6)(a), Florida Statutes (1983), which provides in relevant part: An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate a...

...crual of the claim before suit may be filed against any state agency or subdivision except a municipality. Because this subsection is part of the statutory waiver of sovereign immunity, it must be strictly construed. (citations omitted.) ..... Under section 768.28(6), not only must the notice be given before a suit may be maintained, but also the complaint must contain an allegation of such notice....

...(citation omitted.) Levine v. Dade County School Board, 442 So.2d 210, 212-213 (Fla. 1983). See also Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010, 1022 (Fla. 1979), where the court held that compliance with the notice provisions of section 768.28(6) "is clearly a condition precedent to maintaining a suit." We recognize, as of course we must, that the notice provisions which form a part of the statutory waiver of sovereign immunity, must be strictly construed. Nevertheless, there are decisions holding that the notice provisions of section 768.28(6)(a) can be waived....

...denied, 486 So.2d 598 (Fla. 1986); City of Pembroke Pines v. Atlas, 474 So.2d 237 (Fla. 4th DCA 1985), rev. denied, 486 So.2d 595 (Fla. 1986). In City of Pembroke Pines, the court held that appellant had waived the pleading requirement of an allegation of compliance with section 768.28(6), Florida Statutes (1983)....

...On motion for rehearing in that case, appellant urged that the court's holding was in conflict with Levine v. Dade County School Board . In rejecting this argument, the court noted that Levine did not overrule Commercial Carrier Corp. v. Indian River County , in which the supreme court held that compliance with section 768.28(6) is a condition precedent to suit....

...Mills , in which this court considered the rationale of Rabinowitz v. Town of Bay Harbor Islands, 178 So.2d 9 (Fla. 1965), and concluded that "under certain conditions, the state or its agencies might be deemed to have waived the claim notice requirements of 768.28(6). If it may be so waived it cannot be jurisdictional." (emphasis supplied). Accordingly, we reject appellees' contention that the notice requirements of section 768.28(6) are jurisdictional....

...The motion to dismiss predicated on failure of such notice was filed nearly two years after the time appellants could have complied with this provision. We conclude, therefore, that the DCHA's conduct in failing to plead the notice requirement as a defense while at the same time affirmatively asserting entitlement to the section 768.28 limitation of liability, constitutes a waiver of the intention to rely on the notice provision applicable to the Department of Insurance. Appellants' second argument is addressed to the section 768.28(6)(a) exception, which provides that notice to the Department of Insurance is not a prerequisite to a claim against a municipality....

...Town of Longboat Key, 365 So.2d 143 (Fla.1978). The legislature did not use the term "immunity" in chapter 196, but has used that term in regard to ad valorem taxation in other statutes. See § 192.032(2). It has also used the term "immunity" when waiving sovereign immunity for torts. § 768.28....

...Garcia, 753 So.2d 72 (Fla.2000). On remand, that suit proceeded against the City and the Department. The City thereafter entered into a “compromise settlement” with the Garcias in the amount of $1,250,000; paid them the statutory limits of liability set forth in section 768.28, Florida Statutes (1997), in the amount of $200,000.00; and agreed to support a claims bill in the amount of $1,050,000.00....

...The Department then moved for summary judgment on one of its affirmative defenses, asserting that “there is no basis for the court to enter a judgment against the [Department]” because the Garcias had already recovered the maximum amount authorized under section 768.28 from the City, and as the Department read section 11.065(2), Florida Statutes, 1 the Garcias were limited to seeking only one claims bill from the Legislature for the incident....

...First, even though the Garcias have already been paid the statutory maximum by the City, the trial court still has jurisdiction to enter a judgment in their favor against the Department. See Gerard v. Dep’t of Transp., 472 So.2d 1170 (Fla.1985) (where city paid the maximum amount permitted by section 768.28(5) trial court retained jurisdiction to enter judgment for an excess sum against Department of Transportation)....

...Appellees thereafter filed their complaint seeking damages from appellant for negligent misrepresentation. The trial court entered summary judgment for appellees in the amount of $77,302.76. The trial court found that appellant's sovereign immunity had been waived by the enactment of section 768.28, Florida Statutes (1983). We disagree because we conclude there was no underlying or preexisting common law or statutory duty of care that was revived by the waiver provided in section 768.28. Section 768.28 created no new causes of action against governmental entities....

...Sovereign immunity therefore applies. *341 Appellant's action against appellee Kokotek was based on 42 U.S.C. § 1983. We find that the trial judge was correct in entering its summary judgment for appellee Kokotek. Officer Kokotek was immune from an action in tort by reason of section 768.28(9)(a), unless he acted in bad faith or maliciously....

...n action). We find no merit in FSU's highly problematic assertion that it enjoys blanket immunity for anything editors of its alumni publications say, write or allow to be published about FSU alumni. After all, our supreme court has said, "[s]ection 768.28 evinces the intent of our legislature to waive sovereign immunity on a broad basis." Commercial Carrier Corp....

...[2] In pleading malice on the part of FSU in the first amended complaint, Mr. Rudloe pleaded (by necessary implication) an intentional tort on the part of a University employee or other agent. The doctrine of sovereign immunity bars recovery on such a theory. See § 768.28(9)(a), Fla....

...The broad question presented is whether a Florida National Guardsman, on inactive duty training which is mandated by the federal government, was, at the time of the accident, an employee of the state of Florida for whose negligent acts the state has waived sovereign immunity under section 768.28, Florida Statutes (1979)....

...This amendment is inapplicable to the instant case, however, since it applies only to claims arising on or after December 29, 1981, and here appellants were injured in February, 1979. Therefore, we must determine whether prior to December 29, 1981, a Florida guardsman on weekend training was considered a state employee under section 768.28. *451 The Florida National Guard is an organization of the state militia, [1] section 250.02(2), Florida Statutes (1979), and is within the Department of Military Affairs. § 250.05, Fla. Stat. (1979). Section 768.28, which provides for a waiver of sovereign immunity for the state and its agencies and subdivisions, defines these latter two terms to include "independent establishments of the state." Section 250.05 speaks of the Department of Militar...

...government and the Florida Supreme Court has held that the National Guard is an arm of the state government. State v. Florida State Improvement Comm., 47 So.2d 627 (Fla. 1950). Therefore, it is clear that these two entities fall within the ambit of section 768.28....

...The mere fact that a guardsman on weekend training fulfills a federal function does not change the relationship between the state and the guardsman. [4] In summary, we conclude that at the time of the accident here, Williams was a state employee for whose negligent acts the state has waived sovereign immunity under section 768.28....

...3d 915, 921 (Fla. 1st DCA 2009) (“Any waiver must be clear and 5 unequivocal, and cannot be implied or inferred.”). Finally, to the extent that Caldwell claims the Legislature waived sovereign immunity under section 768.28(5), Florida Statutes, that provision applies only to tort claims, not to statutory claims such as retaliatory discharge....

...City of Miami Beach, 201 So.2d 70 (Fla. 1967) and other authorities, appellant had failed to establish a special duty owed to her by appellee, and entered summary final judgment in favor of appellee. *997 On appeal, appellant's primary contention is that pursuant to Section 768.28, Florida Statutes (1977), the limited waiver of sovereign immunity statute, the special duty requirement is no longer applicable....

...be found negligent. Cheney v. Dade County, supra . Accordingly, appellee being entitled to summary judgment as a matter of law, the judgment appealed is hereby affirmed. Affirmed. HENDRY, Judge, dissenting. I must respectfully dissent. In my opinion Section 768.28, Florida Statutes (1977) abrogates the necessity of showing a special duty owed by Dade County to appellant....

...This cause was considered upon the petition for rehearing filed on behalf of the appellant, Janet Pitts. Since the Supreme Court of Florida has recently determined the scope of the waiver of sovereign immunity resulting from the enactment of Chapter 73-313, as amended by Chapter 74-235, Laws of Florida, Section 768.28, Florida Statutes (1975) [1] , in its *998 combined opinion in Commercial Carrier Corporation v....

...d find it incumbent upon us, as a matter of law, to reverse the trial court order appealed from. Janet Pitts has appealed from a summary final judgment in favor of Dade County d/b/a Jackson Memorial Hospital, contending, inter alia, that pursuant to Section 768.28, the limited waiver of sovereign immunity statute, the "special duty" requirement is no longer applicable....

...ions and interpretations of the federal and various states' sovereign immunity statutes and the numerous bases and holdings dealing with waiver thereof. The Court, after tracing the history of the Florida precedent-setting cases (both pre- and post- § 768.28) [3] and the specific cases under review, concluded that while the Court was not prepared to embrace the notion that all acts or omissions by governmental authorities will subject them to liability in tort under the statute, it nevertheless determined that too narrow a field of operation to § 768.28 has been ascribed....

...on that the Legislature intended to codify the rules of sovereign immunity by predicating municipal liability upon "governmental" versus "proprietary" functions and the "special duty" versus the "general duty" dichotomy, when the legislators enacted § 768.28. Further, the court states that municipalities are included within the definition contained in § 768.28(2); for if the Legislature had intended to make the law of municipal sovereign immunity applicable to the state, its agencies and political subdivisions only, there would have been no need to include municipalities within the operation of the waiver of the statute....

...legedly breached, falls within the category of an "operational level" act or omission. The case is reversed and remanded, with directions to vacate the order of summary judgment and to proceed with the cause. Reversed and remanded. NOTES [1] Chapter 768.28 reads, in pertinent part: "(1) In accordance with section 13, Article X, state constitution, the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act....

...70 (Fla. 1967) and Gordon v. City of West Palm Beach, 321 So.2d 78 (Fla. 4th DCA 1975). [4] The decision construed the then-current version of the federal act, 28 U.S.C. §§ 1346(b) and 2674 (1951), which was nearly identical to the pertinent language of § 768.28(1) and (5)....

...t Amica. Amica denied the claim on the ground that the city's vehicle was not an "uninsured motor vehicle" and sought a declaratory judgment to that effect in the lower court. Specifically, Amica's position was that the city was a self-insurer under section 768.28(15)(a), [2] Florida Statutes (1993), and as such, any vehicle owned or operated by the city was not an "uninsured motor vehicle" under the policy....

...judgment (such as in Centennial, where the self-insured entity was Florida Power & Light), a municipality is effectively "uninsured" or "underinsured" because of the statutory cap on damages allowable under the waiver of sovereign immunity statute. § 768.28(5), Fla.Stat....

...e reverse the judgment rendered by the lower court and remand with instructions for the court to enter judgment in favor of Amica. Reversed and remanded. GLICKSTEIN and SHAHOOD, JJ., concur. NOTES [1] The amount of the settlement was $90,000.00. [2] Section 768.28(15)(a) reads, in pertinent part: [t]he state and its agencies and subdivisions are authorized to be self-insured ......

...Defendants properly argue that an action against a sheriff in his official capacity is another form of a claim against the government itself. See Quinones v. Durkis, 638 F.Supp. 856 (S.D.Fla. 1986). In Florida, government entities are granted immunity from punitive damage claims. See Florida Statutes section 768.28(5) (1989)....

...tion to dismiss. As such this court denies Defendants' motion to dismiss on this issue and grants Plaintiffs twenty (20) days to amend their Complaint regarding any claims that may have arisen under 42 U.S.C. § 1985. 3. Defendants assert that under Section 768.28(9)(a) Florida Statutes (1989), no claim may be made against a government entity for the bad faith or malicious acts of its officers, and as such, the Florida Tort claims against the Defendants in their official capacity should be dismissed for failure to state a cause of action....

...Robert and Sandra Motor sued the Citrus County School Board, on behalf of their son, Alexander, alleging that as a result of the school board's negligence, four-year-old Alexander was injured while playing in a school playground. The Motors appeal the final summary judgment in favor of the school board. We affirm. Under section 768.28, Florida Statutes (2001), a person who sues a county or other state "agency" must give written notice of the claim to the agency and to the Department of Insurance within three years after the claim accrues....

...[1] See, e.g., Levine v. Dade County School Board, 442 So.2d 210, 212-13 (Fla.1983) (holding that the complaint against the school board was properly dismissed because the plaintiff failed to provide written notice of the claim to the insurance department as required by section 768.28)....

...The Motors eventually sued the school board, but did not allege that they had notified the insurance department of their claim. The school board promptly answered the complaint and asserted as an affirmative defense: [T]he Defendant invokes all protections and defenses available under § 768.28, Fla. Stat., including but not limited to the statutory cap of damages and that the Plaintiff's claim is barred or limited because they have failed to comply with all conditions precedent to § 768.28, Fla....

...rticularity." However, because Appellants never pled that they complied with conditions precedent, Appellee was under no duty to make a denial. The quoted "affirmative defense" language, therefore, is superfluous. The notice requirement set forth in section 768.28(6), Florida Statutes (2002), by definition, is a condition precedent to maintaining a suit against a governmental entity....

...eement. The enforceability of the settlement agreement was raised as an issue for the court's consideration in the City's trial brief. The record does not reflect that Book objected to the evidence, which was irrelevant to the City's liability under section 768.28, Florida Statutes, the lawfulness of Book's arrest, or the nature and extent of Book's damages, see section 90.408, Florida Statutes (1997) (compromise and offers to compromise not admissible to prove liability or value of the claim)....

...ent excessiveness, the verdict, as we demonstrate below, does not require further judicial intervention. Tort judgments against state agencies may not be judicially enforced in an amount exceeding $200,000 for all claims arising out of one incident. § 768.28(5), Fla. Stat. (1983). [3] In spite of section 768.28's imposition of a cap limiting tort recovery, a plaintiff may petition the legislature in an effort to secure compensatory relief in excess of the statutory limit....

...e trial court with directions to reinstate the complaint. Brown v. City of Pinellas Park, 604 So.2d 1222 (Fla. 1992). The verdict rendered in the trial on the merits is the subject of the present controversy. [3] At the time of the subject accident, section 768.28(5) provided in relevant part: Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $100,000 or any claim or judgment, or portions thereof, which, whe...

...Peters, Pickle, Flynn & Niemoeller, and Donna S. Catoe, Miami, for appellee. Before HENDRY, NESBITT and FERGUSON, JJ. *121 FERGUSON, Judge. Plaintiff, a mother suing on behalf of her minor child, contends in this appeal that (1) the notice which must be given a sovereign, pursuant to section 768.28(6), Florida Statutes (1985), before the sovereign can be sued in tort is waivable, and (2) a genuine issue of fact was presented as to whether the statutory notice was waived precluding summary judgment....

...If the claimant, as a result of such municipal conduct, in good faith fails to act, or acts thereon to his disadvantage, then an estoppel against the requirement of the notice may be said to arise. Id. at 12-13. Subsequent cases have recognized that the section 768.28(6) notice is waivable....

...mary judgment. Reversed and remanded for further proceedings. HENDRY, J., concurs. NESBITT, Judge (dissenting): I respectfully dissent. Though I agree with the majority that a valid question of waiver as to the Dade County School Board is presented, section 768.28(6), Florida Statutes (1983) also mandates notice to the Department of Insurance, regardless of their interest in the outcome....

...waive notice on behalf of the Department of Insurance. Town of Miami Springs v. Lasseter, 60 So.2d 774 (Fla. 1952); Dukanauskas v. Metropolitan Dade County, 378 So.2d 74, 76 (Fla. 3d DCA 1979). Because of the plaintiff's failure to fully comply with section 768.28(6), I would affirm the judgment under review. NOTES [1] Section 768.28(6) requires that statutory notice be given to the appropriate state agency and to the Florida Department of Insurance within three years after a claim accrues.

...Dade County was entitled to a directed verdict at the close of all the evidence. [2] Reversed and remanded with directions to enter a directed verdict for the defendant; affirmed on the cross-appeal. NOTES [1] On Norton's cross-appeal, we affirm the dismissal of the count for malicious prosecution. Section 768.28, Florida Statutes (1985), does not waive sovereign immunity for torts involving malice....

...xisted between Dade County and Taino Farms and because the jury was improperly instructed with respect to agency, 5) Plaintiffs [7] failed to mitigate their damages, 6) Plaintiffs failed to notify Dade County of the suit in accordance with Fla.Stat. § 768.28(6), and 7) the special interrogatory verdict form ("verdict form") submitted to the jury was confusing and the jury's answers to the interrogatories are inconsistent....

...quences and reduced Plaintiffs' recovery in accordance with these instructions. 6) Notice Dade County urges as a bar to recovery that Plaintiffs failed to allege and demonstrate adequate notice to the Department of Insurance as required by Fla.Stat. § 768.28(6)(a)....

...at trial. Accordingly, Dade County's motion for remittitur is DENIED. Motion to Limit Judgment to Statutory Cap In its Motion to Limit Judgment to Statutory Cap, Dade County requests that the Court reduce the $100,000 maximum fixed by Fla.Stat.Ann. § 768.28(5)....

...The Court finds that the plain language of the statute authorizes entry of a judgment in excess of the cap and that Plaintiffs may seek a legislative claims bill to recover the excess. The Court therefore does not reach Plaintiffs' other arguments. Section 768.28(5) provides, in relevant part, that: [A] judgment or judgments may be ......

...the Legislature. This language unequivocally authorizes entry of a judgment in excess of the cap. The cases that have examined the language confirm this conclusion. Michigan Millers Mut. Ins. Co. v. Bourke, 607 So.2d 418, 422 (Fla. 1992) ("[S]ection 768.28(5) authorizes the rendition of a judgment in excess of the amount the State can be required to pay due to sovereign immunity"); Gerard v. Dep't of Transportation, 472 So.2d 1170, 1172 (Fla. 1985) (overruling First District Court of Appeals decision that section 768.28(5) only authorizes judgments in excess of cap where the State has waived sovereign immunity); Berek v. Metropolitan Dade County, 422 So.2d 838 (Fla.1982) ("[S]ection 768.28(5) authorizes the rendition of judgment in excess of the maximum amount which the state can be required to pay....

...Florida law permits recovery of prejudgment interest on a tort claim generally. [32] *1584 See, e.g., A.R.A. Serv., Inc. v. Pan American World Airways, Inc., 474 So.2d 396 (Fla.App. Ct. 3rd Dist.1985) ("prejudgment interest may be awarded where property damage is caused by an act of negligence ..."). Section 768.28(5) of the Florida Statutes, however, prohibits the recovery of prejudgment interest on tort judgments against the State or its agencies or subdivisions. Fla.Stat.Ann. § 768.28(5) ("The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include ... interest for the period before judgment. ") (emphasis added). Dade County qualifies as a subdivision for purposes of section 768.28(5). See Fla. Stat.Ann. § 768.28(2) ("As used in this act, `state agencies or subdivisions' include.......

...That is to say, you cannot aggregate or start apportioning the claims, the damage amount in your mind to reach a total amount. You must make a determination of the amount of damages, if any, that you believe is appropriate as to each claim and as to each count. [31] Section 768.28(5) provides that: The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period before judgment....

...nts of Corrections and Insurance. The individual defendants filed a motion to dismiss for failure to state a cause of action, entitlement to qualified immunity, entitlement to sovereign immunity, and failure to comply with conditions precedent under section 768.28, Florida Statutes (2003)....

...fficer, employee, or agent committed while acting outside the course and scope of her or his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property." § 768.28(9)(a), Fla....

...Like other state employees, correctional officers are not immune from suit in their individual capacity if the officers have acted "in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property." § 768.28(9)(a), Fla....

...should have known of his propensity for violence. The actions were consolidated and proceeded to trial. The jury returned a verdict in favor of Braelow for $100,000. Thereafter, the city filed a motion to conform the judgment to the requirements of section 768.28, Florida Statutes (1979), and a motion for new trial and/or remittitur. The motion for remittitur contended that section 768.28(9), Florida Statutes (1979), prohibited the entry of a judgment against Ort and prohibited the entry of a judgment against the city in excess of $50,000....

...to the amount of $50,000 and noted that there was no limitation upon the recovery by Braelow against the officer. The court amended the final judgment accordingly. In this appeal the city raises the identical three points asserted below, i.e., that section 768.28(9), Florida Statutes (1979) bars recovery against the officer, that it was reversible error to exclude from the jury instructions the three criminal statutes, and that the verdict was excessive. Initially, we note that the date of the incident controls the determination of which of the several different versions of section 768.28(9) applies....

...1st DCA 1983); Kirkland v. State, Department of Health & Rehabilitative Services, 424 So.2d 925 (Fla. 1st DCA 1983); Galbreath v. Shortle, 416 So.2d 37 (Fla. 4th DCA 1982). As the incident complained of occurred on November 29, 1979, the applicable statute is section 768.28(9), Florida Statutes (1979), which provides: (9) No officer, employee, or agent of the state or its subdivisions shall be held personally liable in tort for a final judgment which has been rendered against him for any injuries or damag...

...rd of human rights, safety, or property. *871 The question we must decide is whether this governmental employee, Officer Ort, can be held personally liable for his negligent conduct occurring in the course of his duties under the 1979 statute. Since section 768.28 was amended in 1980 to relieve governmental employees from personal liability for their negligent acts and to limit the remedy for injuries suffered as a result of the employees' negligent conduct to an action only against the governmental agency, Ch. 80-271, Laws of Fla., effective June 30, 1980; § 768.28(9), Fla....

...At that point, Ort owed a duty, which was specific to Braelow and to no other person, to act with reasonable care. The jury found that there was a duty owed, the duty was breached and injuries resulted from the breach, and thereafter awarded Braelow $100,000. While the city can be liable only for $50,000, § 768.28(5), Fla....

...Although we are aware of no Florida case deciding whether a statute of repose forecloses resort to the doctrine of equitable estoppel as a defense against suit, existing cases suggest this result. In S.A.P., for example, the court held that the state can be equitably estopped from asserting section 768.28(13), Florida Statutes (1993), which sets a period of four years from the accrual of a caúse of action to commence suit against it, as a defense to an untimely claim. 835 So.2d at 1097-98 . In reaching that conclusion, the court characterized section 768.28(13) as a “conventional statute of limitations” and distinguished it from “a statute of repose that forecloses all forms of equitable relief.” Id....

...Appellants raise two issues on appeal: 1) whether the lower court was precluded under the "law of the case" doctrine from reconsidering issues addressed in a prior appeal of this case; and 2) whether the lower court erred in finding as a matter of law that appellees were entitled to sovereign immunity under section 768.28(9), Florida Statutes. We find the "law of the case" doctrine inapplicable to the facts of this case, and we conclude that appellees were entitled as a matter of law to sovereign immunity under section 768.28(9), Florida Statutes....

...Appellant and his wife filed suit in 1983, alleging that Doctors Feldman, Hill and Lane were agents or employees of Shands, Inc., a private nonprofit corporation. Doctors Hill and Lane filed motions for summary judgment, asserting that they were employees of the state and entitled to sovereign immunity under section 768.28(9), Florida Statutes....

...The "law of the case" doctrine did not preclude the lower court from reconsidering the sovereign immunity issue. In the prior appeal of this case, this court determined only that the lower court had erred in granting the motions for summary judgment before appellants were afforded an opportunity to depose Dr. Lane. Section 768.28(9)(a), Florida Statutes, provides that no employee of the state or its subdivisions is personally liable in tort for ordinary negligence in the scope of employment....

...bility insurance coverage and funding to support a health insurance program for the resident physicians. Under the terms of the agreement, all university faculty and resident physicians providing services at Shands may claim sovereign immunity under section 768.28(9), Florida Statutes, as employees of the state....

...The authority retained by Shands is simply the right to restrict personnel practicing medicine at the hospital to university faculty and physicians in training. The record here therefore establishes that appellees were employee-agents of the state and, as such, entitled to sovereign immunity under section 768.28(9), Florida Statutes....

...Mary's Hospital, Inc. (St. Mary's). [1] The patient was treated by Dr. Graham, a staff physician at St. Mary's, and the obstetrical director of the RPICC. In response to the lawsuit against her, Graham asserted the affirmative defense of sovereign immunity under section 768.28(9)(a), Florida Statutes (1997), which provides in pertinent part: No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any inj...

...recommended course of treatment of any CMS patient for either medical or budgetary reasons. Id. at 703. While agreeing that the physician consultants were independent contractors, the supreme court held that they were "agents" within the meaning of section 768.28(9)(a), who were entitled to immunity....

...ver all care and treatment" provided to the patients by the physician consultants whose status was at issue in that case. Stoll, 694 So.2d at 703. For these reasons, we hold that the issue of whether Graham is an "agent" of the state entitled to the section 768.28(9)(a) defense of sovereign immunity is a question of fact that cannot be resolved by summary judgment....

...District Court of Appeal of Florida, First District. June 6, 1978. Rehearing Denied July 10, 1978. *100 Thomas F. Woods of Woods, Johnston & Erwin, Tallahassee, for appellants. Harold E. Regan, Tallahassee, for appellees. BOYER, Judge. We are here called upon to construe F.S. 768.28, by which the State of Florida partially waived its sovereign immunity. The real issue now presented is the effect of F.S. 768.28(5) on derivative claims....

...oing opinion the extent of coverage and the question of interest we have failed to address the question as to whether costs may be taxed against appellants under the circumstances of this case. We hold that the statutory limitation provided for in F.S. 768.28(5) does not apply to costs and that costs may be taxed in addition thereto to the same extent and in the same manner as were appellants private individuals under like circumstances....

...Wright brought this action against Polk County alleging she received negligent prenatal care from Polk County personnel, which resulted in permanent injury to her infant daughter at birth. The complaint further alleged "[p]laintiffs have complied with all conditions precedent to the bringing of this action." Section 768.28(6)(a), Florida Statutes (1987), a provision of the Sovereign Immunity Act, provides: An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, ......

...presents such claim in writing to the Department of Insurance, within 3 years after such claim accrues... . Thus, in order to state a cause of action against a state agency, a complaint must specifically allege that timely written notice has been given to the Department of Insurance in compliance with section 768.28(6)(a)....

...According to the motion and response, William Allen was injured when his automobile was struck by a vehicle driven by Robert Lewis Miller, Jr., who was being pursued by an on-duty Haines City police officer. The Allens notified the city they intended to pursuant a personal injury claim against the city pursuant to section 768.28, Florida Statutes. Before any action was filed by the Allens, Haines City filed a declaratory judgment action asking the circuit court to declare the city's rights with regard to sovereign immunity under section 768.28....

...en, were all named as defendants. The defendants answered and filed counterclaims for personal injury and wrongful death. Both the city and the defendants moved for summary judgment asking the trial court to determine the applicability and effect of section 768.28. The trial court ruled in favor of the defendants holding that section 768.28 does not limit the city's liability to $100,000 but, instead, the city could be liable to the extent of its liability insurance policy limits, in effect, denying the city the defense of sovereign immunity....

...ld also be required to pay the plaintiff's costs of $2851.65. We therefore quash that portion of the district court's decision that affirmed the award of costs. For purposes of the remand we direct the trial court's attention to the last sentence of section 768.28(5), Florida Statutes (1975), which provides: However, a judgment or judgments may be claimed and rendered in excess of these amounts [the $50,000/$100,000 limits] and may be settled and paid pursuant to this act up to $50,000 or $100,0...

...t. The jury found Gregg negligent and the trial court entered judgment of $70,000 for Daniel Robert Knowles and $10,000 for Kay Knowles against DOT. The court, however, limited recovery to $50,000 for Daniel Knowles and $10,000 for Kay Knowles under Section 768.28(5), Florida Statutes (1977). [1] The court then assessed costs of *1047 $741.75 against DOT. The court refused to enter judgment against Gregg on the authority of Section 768.28(9). [2] DOT contends that Section 768.28(5) restricts the total judgment which the court could enter against DOT to $50,000. We disagree. In State v. Yant, 360 So.2d 99 (Fla. 1st DCA 1978), our sister court held that the $50,000 limitation of Section 768.28(5) does not apply to separate claims by different individuals in the same lawsuit. We agree. Likewise, we reject, as did the court in Yant, DOT's contention that the court could not assess costs above the limitation of Section 768.28(5). Id. at 101 (on petition for rehearing). On cross-appeal the Knowles argue that the court erred in refusing to enter judgment against Gregg. Subsequent to the entry of final judgment, the supreme court held that Section 768.28(9) "merely addresses the extent to which the state will be liable for [its employees'] torts" and does not create any immunity for its employees in tort actions....

...Gregg for $70,000 for Daniel Robert Knowles and $10,000 for Kay Knowles, plus costs of $741.75. GRIMES and CAMPBELL, JJ., concur. ON MOTION FOR REHEARING PER CURIAM. On motion for rehearing Gregg points out that the 1980 Florida Legislature amended Section 768.28(9), Florida Statutes (Supp....

...To the extent that Chapter 80-271 retroactively eliminates the Knowles' vested right to sue Gregg, it is unconstitutional. [1] McCord v. Smith, 43 So.2d 704 (Fla. 1949). Accordingly, the motion for rehearing is denied. SCHEB, C.J., and GRIMES and CAMPBELL, JJ., concur. NOTES [1] Section 768.28(5) states: The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period prior to judgment....

...of the Legislature. The limitations of liability set forth in this subsection shall apply to the state and its agencies and subdivisions whether or not the state or its agencies or subdivisions possessed sovereign immunity prior to July 1, 1974. [2] Section 768.28(9) states: No officer, employee, or agent of the state or its subdivisions shall be held personally liable in tort for any injuries or damages suffered as a result of any act, event, or omission of action in the scope of his employment...

...rendered in a civil action personally against an officer, employee, or agent of the state which arises as a result of any act, event, or omission of action within the scope of his employment or function. The 1979 Legislature deleted that portion of Section 768.28(9) which provided that the state would pay any monetary judgment rendered in a civil action personally against an employee of the state acting within the scope of his employment. Ch. 79-139, § 9, Laws of Fla. We do not now address the effect of this amendment on the holding of District School Board of Lake County v. Talmadge, 381 So.2d 698 (Fla. 1980), that Section 768.28(9) does not immunize a state employee from liability for negligence....

...Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellee Melvin Coleman. ANSTEAD, Judge. This is an appeal from the dismissal of a defamation action brought by the appellant, Cobb's Auto Sales, Inc., against the appellee, Melvin Coleman. The issue is whether Florida Statute 768.28 relating to the waiver of sovereign immunity in tort cases affects the defense of privilege successfully asserted by the sheriff in the trial court....

...defense of privilege. The doctrine of sovereign immunity was a rule laid down by the ruling authority that he, because he was the ruler, could do no wrong and therefore was immune from any charges that he had done wrong. The legislature, by enacting Section 768.28, decided this common law doctrine should be removed from the law of Florida....

...n with their official duties be absolutely privileged. Under our democratic system the stewardship of public officials is daily observed by the public. It is necessary that free and open explanations of their actions be made. [1] There is nothing in Section 768.28 to indicate that the legislature intended to take away the defense of absolute privilege....

...Federal jurisdiction was asserted to exist under 28 U.S.C. § 1343 . Suit was brought against Defendant Henderson in his official capacity as Sheriff of Glades County, Florida, pursuant to the Florida statute governing waiver of sovereign immunity in tort actions. Fla. Stat. § 768.28 (1985)....

...ng wanton and willful disregard of human rights, safety, or property. The Florida statute governing waiver of sovereign immunity provides that a state officer cannot be held personally liable in tort unless such officer acted in bad faith. Fla.Stat. § 768.28(9)(a) (1985)....

...officer of which the officer, employee, or agent is an employee, unless such act or omission was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Fla.Stat. § 768.28(9)(a) (1985)....

...mission of action in the scope of his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Fla.Stat. § 768.28(9)(a) (1985) (emphasis added)....

...We note, however, that plaintiffs’ counsel voluntarily abandoned any section 1983 claim against Henderson. In addition, plaintiffs' counsel did not advance any argument that Henderson should remain subject to the jurisdiction of the district court by virtue of Florida statute § 768.28(9)(a), supra note 1....

...Appellants answered the complaint and filed a third party complaint against Holmes County on August 16, 1979. The third party complaint alleged that Holmes County was negligent in its maintenance of the intersection. Holmes County filed its motion to dismiss alleging that the third party complaint was barred by Section 768.28(6), Florida Statutes (1975), the statute of limitations for claims against the State or its political subdivisions, since no claim was filed against Holmes County within three years from the date of the accident. The trial court agreed and dismissed the third party complaint. Section 768.28(6), Florida Statutes (1975), states that no action shall be instituted against the State or one of its political subdivisions unless a claim has been presented and denied within three years from the date the claim accrues....

...tiff's action does not bar a suit for contribution since that cause of action does not arise until payment. Regarding the appropriate statute of limitation for Showell's claim for contribution, we hold that the three-year statutory period allowed in § 768.28(6), Florida Statutes (1975), for claims against the State controls over the one-year statutory period allowed in the Uniform Contribution Among Tortfeasors Act, § 768.31(4)(c), Florida Statutes (1978)....

...Finally, appellant alleged that appellee should be required to exercise its power of eminent domain and pay appellant for air or avigational easements or other property rights taken. The trial court granted appellee's motion to dismiss the amended complaint because appellant failed to allege 1) compliance with Section 768.28(6), Florida Statutes (1981), 2) that the conditions complained of are reasonably expected to continue, and 3) inadequate identification of the air or avigational easements or other property rights that were taken....

...[1] They describe the cause of action that arises when noise and other disruptive factors become so onerous *452 as to constitute a taking of neighboring property. The cause of action alleged here does not sound in tort, a sine qua non for application of Section 768.28(6), Florida Statutes (1981)....

...d the Vizenthals, and GEICO seeking damages for injuries resulting from the November 22, 1977, collision. The County group of defendants moved for a summary judgment on the ground that Mrowczynski had failed to comply with the notice requirements of Section 768.28(6), Florida Statutes (1981), and the court granted the motion and entered final judgment for the County, Carollo, and Allstate on the grounds that: "1. Proper written notice as required under Florida Statutes § 768.28 was not given within the three years required by that Statute....

...o a waiver or estoppel." On appeal Mrowczynski says the summary judgment was improper because (a) she filed her suit "under" Section 286.28, Florida Statutes (1981), and she is entitled to recovery "under" that statute; and (b) she complied with the Section 768.28(6), since by filling out the card after the collision and by responding to the insurance adjuster she, in effect, gave the County notice of her claim against it; and (c) in any event she is entitled to maintain her action against Carollo, the driver of the bus. We reject all of those arguments and affirm the judgment appealed from. Appellant contends that she has a cause of action under Section 286.28, Florida Statutes, formerly Section 455.06, which has no notice provision similar to Section 768.28(6), since Broward County purchased insurance covering the tortious acts....

...e believe reference to the recent case of Burkett v. Calhoun County, 441 So.2d 1108 (Fla. 1st DCA 1983), fully answers *1101 appellant's arguments in point one. As Burkett points out: Burkett and Maddox contend on appeal that the notice provision of Section 768.28(6) does not apply to their suit because Calhoun County had waived its sovereign immunity by securing liability insurance as authorized by Section 286.28, Florida Statutes (1981)....

...We cannot agree with that contention. Section 286.28 authorizes political subdivisions of the State to secure liability insurance, and that section goes on to provide that the sovereign immunity of those subdivisions is waived to the extent of the coverage. Section 768.28(10) evidences a legislative intent not to repeal Section 286.28. Nevertheless, Section 768.28 represents a complete overhaul of the area of sovereign immunity law in Florida. Dade County School Board v. Ingraham, 428 So.2d 283 (Fla. 3d DCA 1983). Section 768.28(1) waives sovereign immunity "only to the extent specified in this act." Therefore, we believe that it was the intent of the legislature to require compliance with the notice provision of Section 768.28(6) whether or not the political subdivision elected to carry liability insurance. Accordingly, we hold that to maintain a tort action against the State or one of its subdivisions (other than a municipality) the notice requirements of Section 768.28(6) must be complied with regardless of whether or not the subdivision has procured liability insurance in compliance with Section 286.28, Florida Statutes (1981). The next issue is whether there is evidence Mrowczynski did comply with the notice requirements set forth in Section 768.28(6), Florida Statutes (1981), which reads: (6) An action shall not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also,...

...We hold that Mrowczynski's responses did not constitute a claim against the County. In any event judgment for the County was correct because Mrowczynski failed to provide written notice of any claim to the Department of Insurance within three years of November 22, 1977, as required by Section 768.28(6). Levine v. Dade County School Board, 442 So.2d 210 (Fla. 1983). *1102 Finally, appellant contends that summary judgment should not have been entered in favor of the driver Carollo because he cannot raise the notice requirement of Section 768.28(6) as a defense. She relies on Hucker v. City of Oakland Park, 427 So.2d 244 (Fla. 4th DCA 1983). Unfortunately for appellant, Hucker does not apply here. Section 768.28(9)(a), Florida Statutes (1981), provides that an employee of the state or any of its subdivisions shall not be held liable in tort unless the employee acted in bad faith or with malicious purpose or in a manner exhibiting wanton and wilful disregard of human rights, safety, or property....

...es of government “absent a violation of constitutional or statutory rights.” Trianon Park Condo. Ass’n v. City of Hialeah, 468 So.2d 912, 918 (Fla.1985). While the Florida Legislature has codified a limited waiver of sovereign tort immunity in section 768.28, Florida Statutes, the doctrine of separation of powers mandates that “certain [quasi-legislative] policy-making, planning or judgmental governmental functions cannot be the subject of traditional tort liability.” Wallace v....

...d by the constitution and statute.... Recognizing the importance of this fundamentally prescribed structure at every level of government, our high court wisely concluded in the seminal case construing the scope of the waiver of immunity from suit in section 768.28 that certain functions of the legislative and executive branches of our local governments may not be made subject to scrutiny by a judge or jury as to the wisdom of performance....

..., Florida Statutes), approved by Citizens Property Insurance Corp. v. San Perdido Association, Inc., 104 So.3d 344 (Fla.2012), and Keck v. Eminisor, 46 So.3d 1065 (Fla. 1st DCA 2010) (involving a claim of immunity from personal liability pursuant to section 768.28(9)(a), Florida Statutes), quashed in part by Keck v. Em-inisor, 104 So.3d 359 (Fla.2012) (concluding that a claim of immunity under section 768.28(9)(a), Florida Statutes, should be reviewable by a non-final appeal and declining to address the issue of whether a writ of certiorari would be an alternative avenue)....

...ty under Florida law, we have repeatedly recognized that a duty analysis is conceptually distinct from any later inquiry regarding whether the governmental entity remains sovereignly immune from suit notwithstanding the legislative waiver present in section 768.28, Florida Statutes....

...Electa Smart appeals the trial court's order dismissing with prejudice her complaint against Geoffrey Monge, in his capacity as Sheriff of Sarasota County (the Sheriff), specifically arguing that the trial court erred in dismissing the complaint on the ground that Smart failed to comply with the section 768.28(6), Florida Statutes (1991), notice-of-claim requirement....

...Smart filed a complaint against the Sheriff, individually, and in his official capacity, and against the Sarasota County Board of County Commissioners. [1] The Sheriff filed a motion to dismiss the complaint with prejudice contending that Smart failed to comply with the section 768.28(6) notice requirement. At the hearing on the motion to dismiss, Smart argued, as she does in this appeal, that a June 8, 1993, letter her attorney [2] sent to the Sheriff's legal advisor satisfies the section 768.28(6) notice requirement. The trial court held that the letter did not satisfy the statutory notice requirement and dismissed Smart's complaint against the Sheriff with prejudice. Section 768.28(6) provides, in pertinent part, as follows: (6)(a) An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, ......

...Although the statute lacks specificity as to what is required to present a notice of claim, we conclude, at a minimum, the written notification must contain language notifying the agency of a claim; that is, a demand for compensation for an injury. See Mrowczynski v. Vizenthal, 445 So.2d 1099 (Fla. 4th DCA 1984). Because section 768.28 is a statutory waiver of sovereign immunity, it must be strictly construed....

...natural mother of Kenneth Smart, on her behalf, and on behalf of the heirs of Kenneth Smart, intends to file a Tort Claims Action for money damages against the Florida Department of Corrections and Sarasota County under the Florida Tort Claims Act, Section 768.28, Florida Statutes 1991....

...omplaint. Regarding Count I, Dean argues that no cause of action may be stated against him for enforcing a presumptively valid statute. Regarding Count II, Dean asserts that the failure to allege compliance with the notice requirements of Fla. Stat. § 768.28(6) compels its dismissal....

...Rather, Dean is entitled to dismissal of the claims for damages, but he must remain a party subject to injunctive and declaratory relief should plaintiffs prevail on the merits. Dean and Citrus County seek dismissal of Count II for failure to allege compliance with the notice requirements of Fla.Stat. § 768.28(6). Count II is a pendent cause of action based in Florida law. Florida courts strictly apply § 768.28(6) as a condition precedent to maintaining a cause of action against a political subdivision of the state....

...and denied in part as set forth herein; 3. That Count I is hereby dismissed as to defendant Dean with regard to damages only; 4. That Count II is hereby dismissed without prejudice and with leave to amend in order to allege compliance with Fla.Stat. § 768.28(6), provided such amendment is filed with the Court within thirty (30) days of the date of this order; and 5....

...se financial hardships because the management agreement contains an indemnification clause requiring the City to reimburse the State for any liability arising solely from ownership of the beach. See Garcia, 707 So.2d at 1160. According to the State, section 768.28(18), Florida Statutes (1999), precludes government entities from entering into indemnity agreements such as the management agreement....

...liability for the other entity's negligence. In contrast, the agreement in this case was for the City to indemnify the State for the City's own negligence. Thus, an indemnification agreement is not prohibited by this statute. This interpretation of section 768.28(18) is also consistent with the common law right of indemnification....

...[1] Appellant filed a complaint against the appellees on October 6, 1992, for malicious prosecution. In June of 1994, the appellees sought dismissal of appellant's complaint because he failed to provide notice to the Department of Insurance, as required by statute. See § 768.28(7), Fla....

...Department of Corrections, State of Florida, 513 So.2d 129 (Fla. 1987), cert. denied, ___ U.S. ___, 108 S.Ct. 1024, 98 L.Ed.2d 989 (1988), and hold that the State of Florida has not waived its sovereign immunity from suits against it in its own state courts except to the extent provided in section 768.28, Florida Statutes (1985) for traditional state tort actions....

...f the pleader and accept as true all wellpleaded allegations. We must review such orders de novo. On review, we conclude that the complaint contains sufficient allegations to state a claim that meets the threshold for personal liability set forth in section 768.28(9)(a), Florida Statutes (1998)....

...part that could be found to have been in bad faith or with malicious purpose or done in a manner exhibiting wanton and willful disregard of human rights, safety or property, as is required to avoid the qualified immunity afforded Kondrk pursuant to section 768.28(9)(a), Florida Statutes (1998)....

...d willful disregard of Mr. Ault's rights." As an employee of a state subdivision, Kondrk enjoys qualified immunity from suit and liability, except in certain limited circumstances. The scope of that immunity, and the exceptions thereto, are found in section 768.28(9)(a), which, in pertinent part, provides: No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered...

...ction, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. The purpose of the qualified immunity granted to state actors in section 768.28(9) is to "immunize public employees from liability for ordinary negligence, while providing injured claimants a remedy against governmental entities though the waiver of sovereign immunity....

...The entitlement is an immunity from suit rather than a mere defense to liability; and like absolute immunity, is effectively lost if a case is erroneously permitted to go forward. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Adopting that reasoning, section 768.28(9) offers qualified immunity both from suit and liability, except in limited circumstances....

...Weiss of Gillick & Wenner, Tampa, for Appellee. WHATLEY, Judge. Thomas Williams appeals a final summary judgment entered in favor of Cal Henderson, the Sheriff of Hillsborough County (sheriff), based on Williams' failure to comply with the notice requirements of section 768.28, Florida Statutes (1989), the waiver of sovereign immunity statute....

...Williams filed an action against the sheriff alleging false arrest and imprisonment. The incident was alleged to have occurred on or about August 17, 1990. Williams filed an amended complaint on September 17, 1993. The summary judgment was entered on February 12, 1996. [1] Section 768.28(6)(a) provides that before an action may be instituted against the state or one of its subdivisions, notice of the claim must be made in writing to the appropriate agency and the Department of Insurance within three years after the claim accrues. Williams sent three separate notices of claim seeking to comply with section 768.28(6)(a), *839 but only the notice of claim dated July 21, 1993, was referenced in the amended complaint....

...a condition precedent to filing this action. The sheriff asserted in his motion for summary judgment that Williams' notice of claim was deficient because it did not provide Williams' date and place of birth and social security number as required by section 768.28(6)(c), Florida Statutes (1991)....

...This case is governed by the 1989 version of that statute, however, because the cause of action accrued on August 17, 1990. See Hattaway v. McMillian, 903 F.2d 1440 (11th Cir.1990); Dep't of Transp. v. Soldovere, 519 So.2d 616 (Fla.1988). The 1989 version of section 768.28(6) does not specify what information must be provided when a claimant submits a written notice of claim....

...The statute is a notice statute, and Williams gave adequate, albeit sparse, notice. It would have been prudent for Williams to provide more specific information regarding his claim, but it is not mandatory. Williams would have prevailed on this issue even under the 1991 version of the statute. Although section 768.28(6)(c), Florida Statutes (1991), requires the claimant to provide his date and place of birth and his social security number, as well as other information, it is not necessary that he do so in his notice. Section 768.28(6)(d) provides as follows: "For purposes of this section, complete, accurate, and timely compliance with the requirements of paragraph (c) shall occur prior to settlement payment, close of discovery or commencement of trial, whichever...

...Further, it appears Williams supplied his date and place of birth and social security number to the sheriff in answers to interrogatories sent on July 1, 1994. The remaining issue centers on the timing of the filing of Williams' amended complaint. Section 768.28(6), Florida Statutes (1989), states: (a) ......

...McDaniel, 833 F.2d 1516 (11th Cir.1987), have addressed this issue. Both cases have held, and we agree, that failure to wait six months to file suit after giving notice does not mandate a dismissal. [3] The Fitzgerald court explained its holding as follows: The purpose of section 768.28(6) is to provide the state and its agencies with sufficient notice of claims filed against them It is clear that on these facts, both Sheriff McDaniel and the Department of Insurance had ample time to respond to Fitzgerald's claim....

...Although Fitzgerald failed to wait six months to file this action, more than six months elapsed before the district court finally disposed of the issue. Since Sheriff McDaniel was duly notified of Fitzgerald's claims and had time to respond, *840 the purpose underlying section 768.28(6) was adequately served....

...lacks subject matter jurisdiction over the claim. [1] The only case cited by HRS in support of its argument is Levine v. Dade County School Board, 442 So.2d 210 (Fla. 1983), which, in construing the notice requirements of Florida's Tort Claims Act, Section 768.28(6)(a), Florida Statutes, held that the statute must be given literal effect, and is a condition precedent to the bringing of suit against any state agency or subdivision, except a municipality. We agree with HRS that the notice provisions of section 284.30 are similar to those provided in section 768.28(6)(a), in that both require presentation of the particular claim in writing to the Department of Insurance....

...The Florida Supreme Court's opinion in Levine v. Dade County School Board never addressed the question of whether the notice defense could be waived; in fact, a number of opinions decided after Levine have stated that a party's failure to allege compliance with section 768.28(6) may be waived by the party who raises the defense of lack of notice....

...denied, 486 So.2d 595 (Fla. 1986). We are similarly of the view that the notice provisions of section 284.30 may be waived by one who fails to raise such defense in a timely manner. In holding that the notice requirement of section 284.30 may be waived, we are aware that Section 768.28(6)(b), Florida Statutes, is worded differently from section 284.30, in that — unlike the latter statute — it specifically provides that "the requirements of notice to the agency and the denial of the claim are conditions precedent to...

...action, and that the defense of lack of notice is one that may be waived. See Rule 1.140(h), Fla.R.Civ.P. Notwithstanding the difference between the language in the two statutes, we see no need to place a different construction upon section 284.30. Section 768.28(6)(b) was added by Chapter 83-257, Laws of Florida. Before its amendment, and despite the absence of any language in section 768.28, stating that notice to the agency shall not be deemed to be an element of the cause of action, a construction was placed upon section 768.28 similar *679 to the language now provided in the amended statute....

...ey's fees be granted, that HRS raised for the first time FMC's failure to comply with the notice requirements of section 284.30. Under the circumstances, we consider that a similar construction should be placed upon section 284.30, as has been given section 768.28, and conclude that because the agency did not timely assert the defense of noncompliance with the notice provisions of section 284.30, that defense must now be deemed waived....

...Any attempt to comply which Chapter 766 at this time, Defendants argue, would be futile as the two year statute of limitations applicable to this case has run. The Sarasota County Hospital Board has also moved to dismiss the case based on the Plaintiffs' failure to comply with the presuit notice and pleading requirements of § 768.28, Florida Statutes, which provides for a limited waiver of sovereign immunity for divisions of state government....

...Accordingly, the Plaintiffs' claims against Mr. Clark's treating physicians should be dismissed with prejudice. B. Sarasota County Hospital Board's Motion to Dismiss The Sarasota County Hospital Board (the "Board") is correct that Plaintiffs have failed to comply with § 768.28(6) by failing to present their claim to the Florida Department of Insurance (the "Department"). Providing the Department with notice of the claim is a condition precedent to maintaining a cause of action against a subdivision of state government. § 768.28(6)(b), Florida Statutes; Commercial Carrier Corp....

...Indian River County, 371 So.2d 1010 (Fla.1979); Wright v. Polk County Public Health Unit, 601 So.2d 1318 (Fla. 2d DCA 1992). Since the claim must be presented to the Department within three years of accruing, however, the Plaintiffs still have time to correct this defect. § 768.28(6)(a), Florida Statutes....

...University of Florida Board of Trustees appeals the denial of its Motion to Dismiss and/or Transfer on the Grounds of Improper Venue. Based on our consideration of the construction of the statutory home venue privilege set forth in Florida Statutes section 768.28(1), we reverse....

...Counsel for UF and Shands contended that the joint tortfeasor exception did not apply in the case at bar because under Florida Statutes section 766.112, neither can be considered joint tortfeasors. When asked by the trial court, Ambry's counsel stated his belief that Florida Statutes section 768.28 is subject to Grice....

...r medical providers, all of whom other than [UF] are located in Palm Beach County, Florida. [UF] has moved to transfer venue or to dismiss based upon its claimed "home venue" privilege pursuant to Florida Statutes Section 766.11 and Florida Statutes Section 768.28....

...]here is a modern trend ... toward allowing exceptions to such statutory requirements where government bodies are sued as joint tortfeasors." Id. at 394. Thereafter, in 2002, the Legislature amended a statutory home venue privilege, Florida Statutes section 768.28(1), to address university boards of trustees: In accordance with s....

...y maintains therein a substantial presence for the transaction of its customary business. In this appeal, UF contends that the trial court erred by applying the Grice joint tortfeasor exception to the statutory *721 home venue privilege set forth in section 768.28(1), largely based on the mandatory language of the statute and the fact that no exceptions to the privilege are included in the statutory text. Ambry, Sidky, and Foucauld, the only appellees actively involved in this appeal, maintain that based on Woodfin, the Grice joint tortfeasor exception applies to the statutory home venue privilege set forth in section 768.28(1). Focusing on whether exceptions to the statutory home venue privilege are provided for in the text of section 768.28(1) does not provide us with any convincing guidance regarding whether the Grice joint tortfeasor exception applies to the privilege. UF contended that because Grice was decided before the university board of trustees amendment to section 768.28(1), the Legislature was aware of the joint tortfeasor exception and could have included it if it was intended to apply, rather than using mandatory language that could be interpreted to foreclose all exceptions to the statutory home venue privilege....

...On the other hand, the appellees asserted that because the Legislature was aware of the Grice joint tortfeasor exception and other actual and potential exceptions to the common law home venue privilege, it was incumbent on the Legislature to exclude these exceptions in the text of section 768.28(1) if they were not intended to apply. Both the positions of UF and the appellees are viable and the intent of the Legislature is unclear on this basis, so it is apparent that the answer to the statutory conundrum presented by this issue lies elsewhere. The language of section 768.28(1) includes the following two sentences of importance for resolving the issue presented on appeal: Any such action may be brought in the county where the property in litigation is located or, if the affected agency or subdivision has a...

...Bryant, 149 So.2d 529 (Fla.1962). Kinder v. State, 779 So.2d 512, 514 (Fla. 2d DCA 2000). Additionally, "however" is a transition employed to contrast. See Laurel Currie Oates, et al., The Legal Writing Handbook 613-614 (3d ed.). As such, the use of "however" in section 768.28(1) indicates that the meaning and operation of each of the two sentences is intended to be different....

...exception applies, that is not to be the case for university boards of trustees, for which the statutory home venue privilege is always to apply without exception. Consequently, we conclude that the Grice joint tortfeasor exception does not apply to section 768.28(1) based upon the context of the sentences and "the intent of the legislature as expressed in the statute." Therefore, venue in the case at bar was proper only in Alachua County, so that UF's venue motion should have been granted....

...In reaching this conclusion, we recognize that Woodfin involved a statute that also employed the mandatory language of "shall." However, that statute, Florida Statutes section 24.110, did not involve two sentences providing home venue privileges yet differentiating between them as in the present case. In the present case, section 768.28(1) not only employs the mandatory construction of "shall," but it also indicates that this structure exists notwithstanding the permissive construction of "may" in the preceding sentence, a construction which might permit exceptions to the statutory home venue privilege. In closing the door to exceptions to section 768.28(1) for university boards of trustees, the Legislature not only put a lock on the door ("shall"), but added a deadbolt ("however") to secure the statute against any intruder that might hope to pry open the door just enough to let an exception slide through and upset the statutory home venue privilege. In sum, we hold that the Grice joint tortfeasor exception does not apply to section 768.28(1) based on the construction of the statute....

...rez to the extent that it holds that the statute does not apply where no action for wrongful death has been filed or litigated. However, resolution of this issue does not end our review of this case. We must also determine how the fees authorized by section 768.28 are to be apportioned when survivors are represented by separate counsel, as were the brothers in the instant case....

...But it does not impose the latter as a condition precedent to the former, nor employ language to the effect that no action for subrogation may be filed until then. Cf. § 766.104(1), Fla. Stat. (1997) [2] ; §§ 766.106(2) and (3), Fla. *857 Stat. (1997) [3] ; § 768.28(6)(a), Fla....

...urged on this appeal, all of which we have considered. AFFIRMED. COBB, COWART and DANIEL, JJ., concur. NOTES [1] The legislature has repealed section 286.28, which is the basis of the supreme court's finding of waiver in Avallone, in favor of a new section 768.28(5), which states that "the state or agency or subdivision thereof shall not be deemed to have waived any defense of sovereign immunity or to have increased the limits of its liability as a result of its obtaining insurance coverage for...

(Fla. 1999) (citing Art. X, § 13, Fla. Const.; § 768.28 Fla. Stat. (1995)). However, before considering

...There was no factual basis for the jury's award of Seventy-Five Thousand Dollars in damages, therefore, this case must be reversed on the authority of City of Miami v. Graham, 311 So.2d 697, 698 (Fla. 3d DCA 1975), cert. denied, 330 So.2d 17 (Fla. 1976). *822 This case must also be reversed under the authority of Section 768.28(9), Florida Statutes (1979)....

...CARLISLE, JAMES T., Associate Judge, concurs specially with opinion. CARLISLE, JAMES T., Associate Judge, concurring specially: I agree this case must be reversed because the record does not reflect any evidence that Fowler suffered as a result of the prosecution as opposed to the arrest. I disagree that Section 768.28(9)(a), Florida Statutes, bars recovery because I think that portion of it which immunizes the City from the malicious acts of its employees is unconstitutional....

...First, the plaintiff must prove that the often inpecunious municipal employees acted maliciously. If he fails in this, his action against the municipality must also fail because liability is founded upon the doctrine of respondeat superior. If he is able to prove malice on the part of the employee, Section 768.28(9), Florida Statutes, kicks in and the city is immune....

...In malicious prosecution suits "malice" requires animosity and the desire to do harm for harm's sake, Erp v. Carroll, 438 So.2d 31 (Fla. 5th DCA 1983). How, or whether, this differs from the kind of ill will involved in a punch in the nose or Kennedy, supra, or Bethel, supra, I am not prepared to say. In 1980, Section 768.28(9)(a), Florida Statutes, was amended to provide: [T]he state or its subdivisions shall not be liable in tort for the actions or omissions of an officer, employee, or agent ......

...riod of years prior to the filing of the complaint. The trial court dismissed the complaint upon the ground that although the injuries and damages suffered by the Windhams occurred subsequent to the passage of the statute waiving sovereign immunity, Section 768.28, Florida Statutes (effective July 1, 1974), the act or acts of the Department forming the basis for the plaintiffs' claims of liability occurred prior to the passage of the waiver statute, so that the action was barred by sovereign immunity....

...per. [5] As we view plaintiffs' arguments, they attempt (incorrectly, we think) to use the "discovery" rule, tolling the statute of limitations for certain tort actions, to determine whether an "incident" occurred subsequent to the effective date of Section 768.28, Florida Statutes (1981), upon which they may base a cause of action against the Department....

...tatute. Rather, we are concerned with whether plaintiffs have alleged that the acts or omissions which resulted in their injuries — that is, the "incident" upon which their claims are ultimately based — occurred subsequent to the effective date of Section 768.28....

...To consider the term "incident" as synonymous with "accrual of the cause of action," as urged by appellants, would be inconsistent with other provisions of the same statute which place limitations on the maintenance of a cause of action based upon the time when "such claim accrues." Section 768.28(6)(a), (11), Florida Statutes (1981)....

...MILLS, J., concurs. ERVIN, J., dissents with opinion. ERVIN, Judge, dissenting. I am in strong disagreement with the majority's interpretation of the word "incidents", found in Section 768.30, Florida Statutes (1973), limiting the applicability of section 768.28 to incidents occurring only after July 1, 1974 or January 1, 1975, as to certain agencies of the state....

...Brooks, 70 So.2d 306 (Fla. 1954), or unless the wrongful act is shown to be continuing or repeated. Seaboard Air Line R.R. Co. v. Holt, 92 So.2d 169 (Fla. 1957). In my judgment the words used in section 768.30 cannot be isolated from those used in section 768.28. Throughout that statute, the words "cause of action accrued", "claim", or "action" are used repeatedly in numerous contexts. See sections 768.28(1), (5), (6)(a), (b), (7), (9)(a), (11), (12), (13), and (14). The strict construction placed upon section 768.30 by the majority is, moreover, at variance with the provisions of 768.28(5), subjecting the state to liability "in the same manner and the same extent as a private individual under like circumstances ..."; a provision, which, as acknowledged by the supreme court in Commercial Carrier Corporation v....

...ll reasonable inferences in favor of the plaintiffs, Cutler v. Board of Regents of the State of Florida, 459 So.2d 413, 414 (Fla. 1st DCA 1984). [3] Section 768.30 (enacted as s. 1, Chapter 73-313, Laws of Florida (1973)) provides: Effectiveness. — Section 768.28 shall take effect on July 1, 1974, for the executive departments of the state and on January 1, 1975, for all other agencies and subdivisions of the state, and shall apply only to incidents occurring on or after those dates....

...4th DCA 2002), or involve the unique context of sovereign immunity where, by statute, a cause of action in negligence against a government employee is barred because an alternative remedy against the employing government is expressly authorized. See § 768.28 (9)(a), Fla....

...public coemployee must be brought against the governmental entity employer”); Holmes Cnty. Sch. Bd. v. Duffell, 651 So. 2d 1176, 1179 (Fla. 1995) (“The School Board is not being sued in its capacity as Duffell’s employer. Instead, pursuant to section 768.28 (9)(a), it is being sued as a surrogate defendant based on the negligent acts of ....

...The coach denied making that promise. According to the coach, the Cisneroses had signed a player consent form. The whereabouts of that form was unknown, however, and was not part of this record. [1] *1274 After providing notice of Ricky's claim under section 768.28 Florida Statutes (1993), Mrs....

...hough that claim otherwise would have been barred by the statute of limitations. Under this same analysis, we find that the trial court properly permitted the Cisneroses to amend the complaint notwithstanding the city's defense of noncompliance with section 768.28(6), Florida Statutes (1993), which requires notice to the Department of Insurance....

...egedly sustained on July 20, 1984, while a prisoner in DOC custody. On November 17, 1988, DOC filed a motion to dismiss on grounds that appellant failed to give DOC written notice of his claim within three years after the claim arose, as required by section 768.28(6), Florida Statutes (1983)....

...1983), to support the dismissal with prejudice is misplaced in the context of the instant case. In Levine, appellant provided written notice of his claim to the school board prior to filing suit, but failed to notify the Department of Insurance within the three year limitation period, as required by section 768.28(6), Florida Statutes....

...Since Levine was unable to amend to show that notice had been provided, he filed an amended complaint, attaching an affidavit of an official of the Department of Insurance which stated the department had no financial or other interest in the outcome of the suit. The court held that section 768.28(6) is clear that notice must be given before suit may be maintained, and the complaint must contain an allegation of such notice....

...The dismissal was predicated on appellant's failure to allege compliance with the statutory condition precedent of written notice to the Department of Insurance and the appropriate agency. Appellant in this case acknowledges that his initial complaint is deficient for failure to allege compliance with the section 768.28 notice requirements. However, the record demonstrates that the privilege to amend has not been abused, and also there exists the possibility that appellant will be able to allege compliance with section 768.28....

...Accordingly, we reverse the order of dismissal with prejudice, and remand with directions to amend the order to reflect that dismissal is without prejudice to amend. The trial court is further directed to entertain appellant's motion to amend the complaint to allege timely compliance with the notice provisions of section 768.28, if in fact appellant is able to do so. SHIVERS, C.J., and ERVIN, J., concur. NOTES [1] Section 768.28(6), Florida Statutes (1983), states in pertinent part: (a) An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, ......

...Cabral was involved in an automobile accident with a vehicle driven by a City of Miami Beach employee. On November 8, 2004, six days after the accident, Ms. Cabral's then-attorney, Bennett Drew Fultz, sent a letter to the City notifying it that he represented Ms. Cabral in a claim for damages, as is required under section 768.28, Florida Statutes (2010)....

...was served on the City of Miami Beach on November 2, 2007. [2] The complaint did not attach or refer to any of the previous notices. The City moved to dismiss on grounds that Ms. Cabral had failed to comply with the three-year notice requirement of section 768.28(6)(a)....

...Cutrone, both well within the time provided for under the three-year statute of limitations. He also pointed out that the City already had acknowledged receipt of the notice of claim in its letter to attorney Cutrone dated March 1, 2005, well within the time limitation period for notices of claim under section 768.28....

...However, if facts on the face of the pleadings show that the statute of limitations bars the action, the defense can be raised by motion to dismiss. Anderson v. Emro Mktg. Co., 550 So.2d 531 (Fla. 1st DCA 1989). Where the question is whether notice under section 768.28(6)(a) was timely given, the issue of proper notice should be raised by answer or judgment on the pleadings....

...t any question of excusable neglect on the part of the plaintiff, we reverse and remand with instructions to the trial court to reinstate the complaint. Reversed and remanded with instructions to the trial court to reinstate the complaint. NOTES [1] Section 768.28(6)(a) bars a claim from being brought against the state or one of its agencies or subdivisions unless written notice of the claim is first given within three years after the claim accrues: (6)(a) An action may not be instituted on a cl...

...[2] On April 9, 2009, Andrew Gerson withdrew as counsel for Ms. Cabral. [3] We question whether the statute of limitations had actually expired. The dates presented and relied upon do not conclusively establish that the notice of claim had not been served "within 3 years" after the claim accrued. See § 768.28(6)(a), Fla....

...incident occurred, and its negligent training and supervision of the school bus transportation system. She further alleged the School Board was vicariously liable for the negligence of its "agents" (i.e., school bus contractors and operators) under section 768.28, Florida Statutes (1987)....

...The issue of agency was tried non-jury, with the trial court finding that the appellants were independent contractors rather than agents of the School Board, and awarding damages against them personally. This appeal followed. Appellants claim the trial court erred in finding they were not entitled to immunity under section 768.28, Florida Statutes (1987). Section 768.28(9)(a) provides in relevant part: No officer, employee, or agent of the state or any of its subdivisions shall be held personally liable in tort ......

...[4] Thus Plaintiff need not plead in the alternative, as he appears to be doing. D. False arrest/false imprisonment against Officer Rodriguez In Count VIII, Plaintiff alleges that Officer Hernandez's actions constituted false arrest/false imprisonment. Defendants move to dismiss this count based on Florida Statute § 768.28(9)(a): No officer, employee, or agent of the state or any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Fla.Stat.Ann. § 768.28(9)(a) (West Supp....

...also pleads within Count VIII itself that "[t]he actions of said Defendant ... were in willful, wanton and reckless disregard of Plaintiff's rights." (Pl.'s Compl. ¶ 100.) As such, the allegation satisfies the emphasized portion of the above-quoted § 768.28(9)(a)....

...(UCFAA), the statutorily authorized direct-support organization responsible for administering UCF’s athletics department.” Id. (footnote omitted). The trial court denied UCFAA’s motion for summary judgment, which had argued that UCFAA is entitled to limited sovereign immunity under section 768.28, Florida Statutes (2008)....

...at 1109. Ultimately, “[c]omparing the facts of this case to the facts set forth in Keck[v. Eminisor, 104 So. 3d 359 (Fla. 2012)], Pagan, and Betterson, [the Fifth District determined] that UCFAA primarily acts as an instrumentality of UCF” and is, therefore, entitled to limited sovereign immunity pursuant to section 768.28. Id. The Fifth District also stated that “[t]he judgment entered against UCFAA shall be reduced to $200,000 in accordance with section 768.28(5), Florida Statutes....

...in the Florida Legislature.” Id. at 1109 n.17. ANALYSIS The Planchers argue that UCF does not have sufficient control over UCFAA’s day-to-day operations to entitle UCFAA to limited sovereign immunity under section 768.28. We disagree.3 Section 768.28 provides a waiver of sovereign immunity in tort actions but only to a specified extent. Pursuant to section 768.28(5), Florida Statutes (2008), “[t]he state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period before judgment.” The statute also sets a recovery limit of $100,000 for a claim or judgment by one person and a recovery limit of $200,000 per occurrence or incident. § 768.28(5), Fla. Stat. (2008). Section 768.28(2), Florida Statutes (2008), defines the state entities entitled to this limited sovereign immunity: “state agencies or subdivisions” include the executive departments, the Legislature, the judicial branch (including public defenders), and 3....

...agencies of the state, counties, or municipalities, including the Florida Space Authority. (Emphasis added.) It is undisputed that UCF meets the definition of a state agency or subdivision entitled to limited sovereign immunity under section 768.28. Further, in Keck, 104 So. 3d at 368, this Court explained that “corporations primarily acting as instrumentalities of independent establishments of the State are included in the definition within section 768.28(2) of ‘state agencies or subdivisions.’ ” Therefore, if UCFAA is primarily acting as an instrumentality of UCF, it is a state agency or subdivision entitled to limited sovereign immunity under section 768.28. UCF created and certified UCFAA as a university direct-support organization (DSO) pursuant to section 1004.28, Florida Statutes....

...Stat. -5-  Besides the Fifth District’s decision in this case, three Florida district court decisions have addressed whether an entity was primarily acting as an instrumentality of the state and, therefore, entitled to limited sovereign immunity under section 768.28, and all three decisions focused upon governmental control over the entity....

...tate control.” Id. Second, in Betterson, 648 So. 2d 778, the First District determined that PRIDE, a prison work program, was primarily acting as an instrumentality of the state and, therefore, entitled to limited sovereign immunity under section 768.28. Specifically, the First District concluded that “while PRIDE was accorded substantial independence in the running of the work programs, its essential operations nevertheless remained subject to a number of legislatively mandated constraints over its day-to-day operations.” Id. at 780. -6-  Third, in Pagan, 884 So. 2d at 264, the Second District affirmed the trial court’s ruling that First Physicians Group was entitled to limited sovereign immunity under section 768.28 as to the particular parties involved in that case. The Second District explained that the Hospital Board and First Physicians Group “successfully argued [to the trial court] that ‘the structure dictates the control’ and that...

...Management Corporation (JTM). In Keck, the plaintiff had conceded that JTM was an instrumentality of the Jacksonville Transit Authority (JTA). Id. at 368. And “all parties agree[d] that JTA falls within the definition of a state agency” under section 768.28(2). Id. at 367. However, the trial court had ruled that “while JTA is an independent establishment of the State and thus is entitled to sovereign immunity, the same cannot be said as to JTM because the statutory definition in section 768.28(2) does not expressly include corporations that are acting primarily as instrumentalities or agencies of independent establishments of the State.” Id. This Court disagreed with the trial court and held that “JTM is a ‘state agenc[y] or subdivision[]’ under section 768.28(2) because it primarily acts as an -7- instrumentality of JTA, which is within the statutory definition of a state agency.” Id....

...compensation and benefits.” Id. at *20-21. In this case, the Planchers argue that actual state control over a corporation’s day-to-day operations must be exercised for that corporation to be entitled to limited sovereign immunity under section 768.28.4 However, it is unnecessary for this Court to decide whether actual control, rather than the right of control, is 4....

...1976) (“The fact that an injured person may proceed directly against the insurer as a third party beneficiary of the insurance contract . . . in no way elevates the carrier’s responsibility to pay amounts for which the insured himself would not have been liable.”); § 768.28(5), Fla....

...erations,” Betterson, 648 So. 2d at 780, and UCF has “structural control” of UCFAA. Pagan, 884 So. 2d at 263. Accordingly, UCFAA is primarily acting as an instrumentality of the state and thus is entitled to limited sovereign immunity under section 768.28....

...mstances”). - 12 -  CONCLUSION For the reasons expressed above, we approve the Fifth District’s holding that UCFAA is entitled to limited sovereign immunity under section 768.28. However, we quash the statement in the Fifth District’s decision that “[t]he judgment entered against UCFAA shall be reduced to $200,000 in accordance with section 768.28(5), Florida Statutes.” Plancher, 121 So. 3d at 1109 n.17. Rather than requiring a reduction of the judgment, we remand for entry of a judgment corresponding to the jury’s award of damages but limiting UCFAA’s liability for payment to $200,000 pursuant to section 768.28(5). See Pinellas Cnty. v. Bettis, 659 So. 2d 1365, 1368 (Fla. 2d DCA 1995). The Planchers must look to the Legislature to collect any amount awarded above the statutory cap. See § 768.28(5), Fla....

...njuries. The appellees filed similar motions to dismiss based on various grounds, but at oral argument, they conceded that the only valid basis for dismissal was Ashley's failure to properly allege that she had complied with the notice provisions of section 768.28(6)(a), Florida Statutes (1983)....

...As pertains to this lawsuit, however, the Florida legislature has expressly waived the state's sovereign immunity for torts committed by government employees acting within the scope of their employment, but only provided that the tort was not committed with bad faith. See § 768.28(1), (9)(a), Fla....

...Such is the law in Florida. See Parker v. Florida Bd. of Regents, 724 So.2d 163, 168 (Fla. 1st DCA 1998) (agreeing that "for fraud to exist, as a matter of law, bad faith must also exist[,]" thus placing fraud claims outside the waiver of sovereign immunity provided for in § 768.28); see also id....

...NOTES [1] Florida law specifically authorizes public health trusts, like the Trust, to sue and be sued. See § 154.11(1)(a), Fla. Stat. [2] Jurisdiction is founded upon diversity of citizenship with the amount in controversy exceeding $75,000, pursuant to 28 U.S.C. § 1332. See DE-1 at 15 (Complaint ¶¶ 1-6). [3] Section 768.28(1) declares that "the state, for itself and for its agencies or subdivisions, hereby waives sovereign immunity for liability for torts, but only to the extent specified in this act." However, later on the statute provides that "[t]he s...

...subdivisions shall not be liable in tort for the acts or omissions of an officer, employee, or agent . . . committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property." § 768.28(9)(a), Fla....

...Similarly, the dismissal of the IIED claim against Beary is affirmed because Tillman does not allege that Beary was present at his arrest or prosecution. A government entity cannot be liable for the willful and wanton actions of its employees. Fla. Stat. § 768.28 (9); Ford v....

...Sunshine were its agents or employees who had been involved in Franklin's treatment, that they were not Franklin's "current treating physicians," and that as its agents or employees, Jackson Memorial was vicariously liable for their actions or omissions. § 768.28(9)(a), Fla....

...B. The Municipal Defendant, City of Cooper City The Third Amended Complaint contains one count against the City of Cooper City (the "City") for inadequate training, brought under 42 U.S.C. § 1983, and one count for wrongful death under Fla. Stat. § 768.28....

...City of Canton decision was predicated. Therefore, there can be no inadequate-training liability on the part of the City, and it is entitled to summary judgment on that count. The complaint also charges the City with wrongful death, under Fla. Stat. § 768.28....

...(3) Control or regulation of stormwa-ter management systems, dams, im-poundments, reservoirs, appurtenant work, or works regulated under this chapter. (4) Measures taken to protect against failure during emergency. Interpreting this statute to allow SWFMD complete tort immunity would conflict with section 768.28, Florida Statutes (1989), which in general terms provides that the State of Florida has “waive[d] sovereign immunity for liability for torts” for itself as well as for “its agencies or subdivisions.” Where two statutes are foun...

...r permits, regulations, and orders lead to injuries. The immunity granted appears to be related to the planning functions of SWFMD as opposed to its operational activities. In the instant case, liability is subject to traditional tort analysis under section 768.28 since the complaint alleges negligence on the part of SWFMD through its operational level activities....

...1983), does not compel dismissal of a derivative claim where the notice given of the main claim is timely and adequate. Rather, Levine held that the failure of a plaintiff to give any notice to the Department of Insurance within the limitations period as required by section 768.28(6), Florida Statutes (1977), barred the action....

...Deputy Ferguson is not named as a defendant in this cause. COUNT I—STATE CLAIM Plaintiff, in Count I of her complaint, alleges malicious prosecution and false arrest. This Court may assert pendant jurisdiction over the state claim. On May 17, 1993, pursuant to Fla.Stat. § 768.28, Plaintiff filed notice of her claim to the Sheriff of Pasco County and to the Florida Department of Insurance. On July 27, 1993, the Florida Sheriff's Insurance fund notified Plaintiff of its denial of Plaintiff's claim against Defendant. Defendant contends that he cannot be named in this cause, under Fla.Stat. § 768.28, because the language of the statute precludes suit against him as a government official, where the actions which give rise to the suit are "based upon the allegations of wrongful and malicious actions on the part of Deputy Ferguson." Plaintiff asserts that for the purposes of § 768.28(9)(a), Defendant and Deputy Ferguson are "one and the same." However, Plaintiff also argues that the actions brought against Defendant Cannon are neither based on respondeat superior, nor vicarious liability....

...f Plaintiff's legal rights, with the knowledge and intent that Plaintiff would be imprisoned and criminally prosecuted as a result thereof. After careful review, this Court is of the opinion that Plaintiff has failed to state a cause of action under § 768.28 against Defendant Cannon....

...utes (1989). Appellant, on the other hand, asserts that Count II of her complaint stated a cause of action for simple negligence against appellee Sheriff Rice and as such is controlled by the four-year statute of limitations for a negligence action, section 768.28(12), Florida Statutes (1989)....

...lant's illness. The complaint was dismissed "without prejudice" on account of appellant's failure to allege that he performed the statutory condition precedent of presenting his claim in writing to the Department of Insurance and appropriate agency. Section 768.28(6), Florida Statutes (1979). Insofar as appellant's claim was against the state, the order requiring compliance with Section 768.28(6) is correct, and the dismissal without prejudice was appropriate....

...But insofar as appellant's complaint alleged malicious mistreatment "as a program of deliberate abuse designed to threaten the life of the Plaintiff or to drive him to distress," the complaint stated a cause of action against the appellees individually, for which Section 768.28(6) does not require a written claim upon the state or its agencies. See Section 768.28(9), Florida Statutes (1979); District School Board of Lake County, et al....

...bile driven by the deceased. On October 3, 1980, the deceased's estate filed suit against the City and its employee alleging negligent operation of the vehicle. A motion to dismiss on behalf of the employee was granted predicated on the amendment to Section 768.28(9) effective July 1, 1980 which amendment limits such suits to occasions on which an officer acts in bad faith, with malicious purpose, or exhibits wanton and wilful disregard of human rights....

...arising out of botched medical treatment. The Noels were represented by appellee, Sheldon J. Schlesinger, P.A. The jury awarded $6.5 million to Minouche and $2 million to her parents. The State paid $200,000 to the Noels, that portion authorized by section 768.28(5), Florida Statutes (2007), the waiver of sovereign immunity statute....

...The claims bill in this case did not involve money received in the 1999 lawsuit that could be subject to a charging lien. The private relief bill granted to the Noels was not obtainable by right, but by legislative grace. See United Servs. Auto. Ass'n v. Phillips, 740 So.2d 1205, 1209 (Fla. 2d DCA 1999). Section 768.28(5) limits total recovery in a suit to $200,000. This limit includes attorney's fees. See Zamora v. Fla. Atl. Univ. Bd. of Trs., 969 So.2d 1108, 1109 (Fla. 4th DCA 2007). Section 768.28 then states, "and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature." § 768.28(5), Fla....

...1st DCA 1999), and the decision of the Third District Court of Appeal in Osten v. City of Homestead, 757 So.2d 1243 (Fla. 3d DCA 2000). [1] The issue is whether workers' compensation retaliation claims brought against the State under section 440.205, Florida Statutes (2004), are subject to the presuit notice requirements of section 768.28(6), Florida Statutes (2004). [2] For the reasons expressed below, we hold that the presuit notice requirements of section 768.28(6) do not apply to causes of action brought against the State under section 440.205....

...Bifulco filed suit against PBFS, alleging that she was fired in retaliation for filing a workers' compensation claim in violation of section 440.205, Florida Statutes. Id. The trial court granted summary judgment in favor of PBFS, concluding that Bifulco's "failure to provide presuit notice pursuant to section 768.28(6), Florida Statutes[,] was fatal to [her] claim." Id....

...In doing so, the trial court relied on the decision of the First District in Kelley , which affirmed the dismissal with prejudice of a complaint for retaliatory discharge under section 440.205 because the plaintiff had not complied with the presuit *1257 notice requirements of section 768.28(6). The First District in Kelley held that "[a]n action for retaliatory discharge under section 440.205 is clearly a `tort' within the meaning of section 768.28 and presuit notice is therefore required....

...tortious in nature)." Kelley, 745 So.2d at 1040-41. On appeal, the Fifth District reversed the trial court's summary judgment. Bifulco, 997 So.2d at 1258. The Fifth District explained its reasoning for holding that the presuit notice requirements of section 768.28(6) are inapplicable to claims under section 440.205: The sole purpose for the enactment of section 768.28 was to waive sovereign immunity for breaches of common law torts. Trianon Park Condo. Ass'n, Inc. v. City of Hialeah, 468 So.2d 912, 917 (Fla.1985). The condition precedent of presuit notice, created by section 768.28, was only intended to apply to suits for which immunity was waived by enactment of the statute, to wit: common law torts....

...Dep't of Labor & Employment Sec., 899 So.2d 1074, 1078-79, 1081 (Fla.2005) (explaining that the Florida Civil Rights Act's inclusion of the State as an "employer" subject to liability was "a waiver of sovereign immunity independent of the waiver contained in section 768.28"). Moreover, the Legislature's choice not to refer to section 768.28 within chapter 440 is additional evidence that claims brought under section 440.205 are not subject to the presuit notice requirements of *1258 section 768.28(6). When the Legislature has intended particular statutory causes of action to be subject to the requirements of section 768.28(6), it has made its intent clear by enacting provisions explicitly stating that section 768.28 applies. See, e.g., § 556.106(2)(a), Fla. Stat. (2004) ("Any liability of the state and its agencies and its subdivisions which arises out of this chapter shall be subject to the provisions of s. 768.28."); § 45.061(5), Fla. Stat. (2004) ("This section shall not be construed to waive the limits of sovereign immunity set forth in s. 768.28."); § 351.03(4)(c), Fla. Stat. (2004) ("Nothing in this subsection shall be construed to nullify the liability provisions of s. 768.28."); § 393.075(3), Fla. Stat. (2004) ("Nothing in this section amends, expands, or supersedes the provisions of s. 768.28."); § 395.50(5)(b), Fla. Stat. (2004) ("The provisions of this section do not supersede the provisions of s. 768.28."). Similarly, in several instances, the Legislature has chosen to make the requirements of section 768.28(6) applicable by waiving sovereign immunity through reference to section 768.28 rather than through the definitions within a statutory cause of action. See, e.g., § 252.944, Fla. Stat. (2004) ("The commission and the committees are state agencies, and the members of the commission and committees are officers, employees, or agents of the state for the purposes of s. 768.28."); § 455.32(5), Fla. Stat. (2004) ("The provisions of s. 768.28 apply to each such corporation, which is deemed to be a corporation primarily acting as an instrumentality of the state...."). By contrast, the Legislature has made no indication that it intends the presuit notice requirements of section 768.28(6) to apply to causes of action brought under section 440.205. Instead of waiving sovereign immunity in such actions by referring to section 768.28, the Legislature chose to create liability through its specific and clear definition of "employer," which includes the State and its subdivisions. Because the Legislature did not refer to section 768.28 or its subsections within chapter 440, and explicitly authorized retaliatory discharge actions when the State is the employer, it is apparent that the Legislature intended to waive sovereign immunity in retaliatory discharge actions, independent of the waiver and notice provisions contained in section 768.28. III. CONCLUSION Because chapter 440 contains a waiver of sovereign immunity independent of the waiver contained in section 768.28, we hold that the presuit notice requirements of section 768.28(6) do not apply to retaliatory discharge actions brought against the State under section 440.205....

...re inconsistent with this opinion. It is so ordered. QUINCE, C.J., and PARIENTE, LEWIS, CANADY, LABARGA, and PERRY, JJ., concur. NOTES [1] We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. [2] There have been no changes to section 440.205 or section 768.28(6) since the claims arose in the case under review or the conflict cases....

...he defendants Orange County, Florida, and the County's outside law firm, Rissman, Barrett, Hurt, Donohue & McLain, P.A., (Rissman, Barrett). The issues on *787 appeal concern the interpretation of exemptions to the Public Records law contained at subsection 768.28(16)(b), and subsection 119.071(1)(d), Florida Statutes....

...Wagner obtained a final judgment against Orange County in the amount of $900,880 in connection with the death of her 11-year-old daughter who was struck and killed by an Orange County Fire/Rescue vehicle. The County paid Wagner $100,000 pursuant to section 768.28, Florida Statutes, and Wagner has pursued the remainder of the judgment through a claim bill filed in the Florida legislature....

...Both the County and Rissman, Barrett claimed privilege and exemption from production. The trial court ultimately sided with the defendants, ruling that: (1) risk management claim files maintained by the County are exempt from production pursuant to a public records request based on a statutory exemption set forth in subsection 768.28(16)(b), and (2) the County's outside counsel was not required to produce its litigation file because of the protections afforded by subsection 119.071(1)(d), and Florida Rule of Civil Procedure 1.280(b)(5). The issues in this case involve matters of statutory construction which are questions of law subject to de novo review. Maggio v. Fla. Dep't of Labor & Employment Sec., 899 So.2d 1074 (Fla.2005). Subsection 768.28(16)(b), Florida Statutes, provides: Claims files maintained by any risk management program administered by the state, its agencies and its subdivisions are confidential and exempt from the provisions of s....

...2d DCA 2002); Seminole County v. Wood, 512 So.2d 1000 (Fla. 5th DCA 1987). The County maintains that the phrase "settlement of all claims arising out of the same incident," clearly encompasses a legislative claim bill and that alternatively, even if the language of subsection 768.28(16)(b) is ambiguous, the legislative intent underlying the enactment dictates that claims files be exempt from public records disclosure at least during the pendency of a claim bill....

...act results, no additional claim for relief may be submitted to the legislature. § 11.065, Fla. Stat. The legislature has set a cap on tort recovery from a governmental entity, in an action at law, at $100,000 per person and $200,000 per accident. § 768.28(5), Fla....

...l" after the word "claims" does not remove claim bill proceedings from the ambit of the exemption from disclosure. A claim bill is by its very nature a "claim," though it is one pursued not in the courts, but rather in the legislature. Nothing in subsection 768.28(16)(b) acts to limit "claims" to judicial proceedings....

...phasized "one of the most fundamental rules of statutory construction is that a court must give a statutory term its plain and ordinary meaning"). This conclusion that claim bills are within the scope of the exemption from disclosure contained in subsection 768.28(16)(b) fully comports with the legislative intent underlying the exemption....

...c records exemptions are to be narrowly construed, that decision has little application to this issue. In that case, Seminole County was withholding four "closed litigation files." The case predates enactment in 1994 of the exemption contained in subsection 768.28(16)(b) and Seminole County asserted two grounds for non-disclosure: the attorney-client privilege contained in section 90.502, Florida Statutes (1985), and subsection 119.07(3)( o ), Florida Statutes (1985), the Public Records Act....

...As to that Act, the Court explained that by its terms, the exemption from disclosure for litigation files contained in subsection 119.07(3)( o ) applied "until the conclusion of the litigation or adversarial administrative proceedings," which had occurred. Subsection 768.28(16)(b) is significantly broader in providing for the exemption from disclosure until "termination of all litigation and settlement of all claims arising out of the same incident. . . ." In this case, unlike in Wood, there is a pending claim bill arising out of the same incident. Wagner asserts that under this interpretation of subsection 768.28(16)(b), the County can keep its files secret forever since if no claim bill is approved, the claim is not "settled." We disagree....

...At that point, the exemption from disclosure, by its language and logic, ends. We have considered whether the statutory exemption more properly ends at the conclusion of that portion of the claim bill proceedings involving the special master, but conclude that such a construction is not warranted by the language of subsection 768.28(16)(b) and further could lead to absurd consequences....

...In considering whether other documents on Rissman, Barrett's privilege log enjoy exemption from public records disclosure, the County argues that the language "conclusion of the litigation or adversarial administrative proceedings," encompasses claim bill proceedings. Unlike the language in subsection 768.28(16)(b), which, in using the term "claims," clearly encompasses a claim bill, the language here requires deeper consideration....

...ut of the same claim, particularly where, as here, significantly more financial exposure is involved. [3] Our construction further has the salutary effect of interpreting the exemption in subsection 119.071(1)(d) consistent with that contained in subsection 768.28(16)(b), Florida Statutes....

...and settlement applicable to such insured damages." ( Id. at pp. 84-85). Volusia County, as a state entity, is protected by sovereign immunity. The Florida Legislature has waived its sovereign immunity for torts liability subject to Florida Statute § 768.28 (2011), which sets a cap on tort recovery for governmental entities at $100,000 per person and $200,000 per accident. Fla. Stat. § 768.28 (2011). 1 Following the entry of final judgment in the underlying negligence action, Volusia County paid Plaintiff its sovereign immunity limits of $200,000. (Doc. 46, p. 4). Because of the caps set forth in § 768.28(5), Volusia County cannot be subjected to any further liability for the underlying accident....

...Plaintiff sought a judgment declaring the following: (1) That the Policy of Insurance issued by Star [ ] provided coverage for the automobile negligence of Volusia County employee Thomas Moderie and that Volusia County and Thomas Moderie are "insureds" under the Policy; (2) That the statutory language in Fla. Stat. § 768.28 (5) grants sole authority to Volusia County to settle Erin Joynt's claim within the limits of the Star [ ] Policy and that Star [ ] cannot raise sovereign immunity as a defense to its duty to indemnify Volusia County for Erin Joynt's claim...

...mnity obligations have been triggered by the verdict and judgment in this case; (5) That Star['s] language prohibiting Volusia County from negotiating and/or settling Erin Joynt's claim is void as against public policy and in violation of Fla. Stat. § 768.28 (5) ; and (6) That Erin Joynt, as a beneficiary under the Policy, is entitled to attorney's fees and costs incurred in this action against Star [ ] and any other relief this Court deems just and proper....

...State , 409 So.2d 1045 , 1046 (Fla. 1982) ("Any waiver of sovereign immunity must be clear and unequivocal."). The Florida Legislature has authorized a limited waiver of state sovereign immunity in tort for personal injury, wrongful death, and loss or injury of property. Fla. Stat. § 768.28 (2011). Section 768.28 allows the state to be sued for torts "under circumstances in which the state or such agency or subdivision, if a private person, would be liable." § 768.28(1). Recovery, however, is capped at $100,000 per person or $200,000 per incident. § 768.28(5)....

...Indeed, the statute provides a mechanism for an injured party to collect an amount in excess of the statutory caps by allowing for any "portion of the judgment that exceeds these amounts [to] be reported to the legislature, but may be paid in part or in whole only by further act of the legislature." § 768.28(5)....

...illion. Id. at 725 . On appeal, the Fifth District Court of Appeals reversed, finding that UCFAA was entitled to sovereign immunity. Id. In so holding, the Fifth District reduced the judgment to $200,000 in accordance with the *1239 caps provided in § 768.28(5) and explained that "[a]ny amount over the statutory cap must be sought by [the plaintiff] in a claim bill filed in the Florida Legislature." Id....

...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. As explained by the Florida Supreme Court: In our view, section 768.28, rather than denying equal protection, has in fact brought fairness, equality, and consistency to an area of the law which for over one hundred years has been beset with contradiction, inconsistency, and confusion.... Clearly, the even-handed application of immunity under section 768.28 furthers equal protection of the law under our constitution rather than denies it. Cauley v. City of Jacksonville , 403 So.2d 379 , 385 (Fla. 1981). Through the limited waiver provided by § 768.28, Plaintiff was able to recover $200,000 from Volusia County and may now seek to recover the remainder of her judgment through a claims bill from the legislature....

...The Clerk of Court is DIRECTED to enter judgment in favor of Defendant and thereafter close the file. *1240 DONE AND ORDERED in Orlando, Florida, on June 1, 2018. Since 2011, the Florida legislature has raised the caps to $200,000 per person and $300,000 per incident. § 768.28 (2018)....

...The County raises several arguments in support of reversal. We find merit in the arguments challenging the propriety of the damages calculations. As a threshold consideration, the County is not entitled to an automatic reduction of the awards to $100,000. See § 768.28, Fla.Stat....

...any officer, employee or agent in a civil or civil rights lawsuit described in § 111.07 ..." (Emphasis supplied). Section 111.071(1)(a) goes *220 on to differentiate between the liability limit for tort actions, which is governed by Florida Statute § 768.28, and civil rights suits brought under 42 U.S.C....

...rt in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), as distinguished from retrospective relief such as damages). That Florida has waived its Eleventh Amendment immunity is made even more apparent by the language of Florida Statute § 768.28(1), which states: In accordance with s....

...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. 768.28 if a tort claim. The limits provided in s. 768.28 shall not apply to a civil rights action arising under 42 U.S.C....

...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. 768.28 shall not apply to a civil rights action arising under 42 U.S.C....

...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. 768.28, F.S....

...Defense of such civil actions shall include but not be limited to civil rights lawsuits... S. 111.071, F.S., is created to authorize a political subdivision of the State or a State agency ... to pay final personal judgments against employees in civil or civil rights lawsuits. If the civil action arises under s. 768.26 [768.28] the monetary limitation of that section apply [sic]....

...s prosecution. With respect to all of these claims, which are set forth in Counts I-IV of the Complaint, the Motion to Dismiss is hereby GRANTED as to both Defendant ADDISON and Defendant FHP, on the ground that under the applicable Florida Statute, § 768.28(6), a claimant is required to present the claim in writing to the appropriate agency: An action shall not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also ......

...aim in writing. The failure of the Department of Insurance or the appropriate agency to make final disposition of a claim within six months after it is filed shall be deemed a final denial of the claim for purposes of this section. Florida Statutes, § 768.28(6). Plaintiff MEEKER has not shown any attempt to comply with the administrative requirements of Florida Statute § 768.28(6), which was designed by the Florida legislature to provide claimants such as Plaintiff with administrative recourse for their problems, thereby minimizing the need for judicial energy and resources to be devoted thereon....

...at 350 (emphasis added), and here the waiver applies only to negligence actions in tort, not the type of claim underlying this § 1983 action. " 707 F.2d at 1182 n. 2. (Emphasis added). The Eleventh Circuit in Cate was confronted with having to construe Fla.Stat. § 768.28 as imparting a waiver in the type of action for preliminary injunction which could not have resembled a "negligence action in tort" in a manner sufficient to place it within the ambit of that statute....

...§ 111.07 to include cases brought "under the Federal Constitution or laws." Fla.Stat. § 284.31 similarly provides for a separate insurance account for "federal civil rights actions under 42 U.S.C. § 1983, or similar federal statutes." Additionally, Fla.Stat. § 768.28(11) provides that lawsuits brought pursuant to § 768.28 shall be brought "in the court of appropriate jurisdiction," which certainly would include the Federal Court in an action brought under § 1983....

...[*] *225 The District Court in Cate so held, see 707 F.2d at 1181, but the Court of Appeals explicitly declined to rule on this question. Id. at 1181 & n. 3 (noting that there is no binding precedent on this issue in this Circuit). The language of Fla.Stat. § 768.28 strongly suggests that the State can be a person subject to suit by the terms of the waiver therein announced, which includes suits brought under § 1983, and this Court now so holds. See Fla.Stat. § 768.28(5) ("The state ......

...prerequisites *226 set forth in the statute with respect to bringing actions against the state. Since Plaintiff MEEKER failed to first present her claims "in writing to the appropriate agency, and also ... to the Department of Insurance," Fla.Stat. § 768.28(6), Plaintiff MEEKER is argued to be precluded from bringing the § 1983 action....

...of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963), with Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); see also Wilson v. Bd. of Regents, 694 F.2d 239 (11th Cir.1982). In the case at bar, the tort remedies provided by Fla.Stat. § 768.28 were available to Plaintiff MEEKER, but she failed to pursue them....

...ught with respect to State procedures and practices alleged to be unconstitutional, support this Court's conclusion herein that Plaintiff MEEKER is entitled to maintain her § 1983 claim despite her failure to satisfy the prerequisites of Fla. Stat. § 768.28....

...Plaintiff MEEKER's Motion to Alter or Amend Order of the Court is hereby GRANTED. All pendent state claims, including those for punitive damages, are hereby REINSTATED against Defendant ADDISON in his individual capacity. Exhaustion under Fla.Stat. § 768.28 is not required where the Defendant is an individual officer, as opposed to the state or a state agency....

...of Cities. It contained an excess endorsement providing $2 million in coverage for claims exceeding a retained limit of $100,000, the cap on the damages the Authority could be required to pay under the limited sovereign immunity waiver contained in section 768.28, Florida Statutes (1995). The excess endorsement provided that it was "solely for any liability resulting from entry of a claims bill pursuant to [s]ection 768.28(5), Florida Statutes...." Following the accident, the Authority offered to settle with Phillips for its retained limit of $100,000....

...[3] Likewise, here the Authority had not obtained a certificate of self-insurance. USAA argues that in this regard Johns was overruled by subsequent legislation amending the sovereign immunity waiver statute to permit government entities to self-insure. See § 768.28(15), Fla....

...The cases were randomly assigned to several different trial judges. However, all seventeen lawsuits were subsequently transferred and consolidated before Judge Leonard Fleet. After consolidation, Nova filed a Motion for Summary Judgment alleging *617 that it was entitled to sovereign immunity under section 768.28, Florida Statutes (2002), as an "agent" of the School Board of Broward County....

...Plaintiffs and the School Board (as an intervenor) argue that the trial court erred in entering summary judgment in favor of Nova because Nova did not establish conclusively that it was an agent of the School Board entitled to protection under the sovereign immunity provisions of section 768.28....

...In its Answers to the Complaints, Nova admitted that it failed to conduct a criminal background check on Donohue, [1] but otherwise denied responsibility. Additionally, Nova asserted several defenses, including that it was an agent of the School Board and thus entitled to sovereign immunity under section 768.28. Section 768.28 sets out the waiver of sovereign immunity in tort actions and the relevant limitations on damages. Section 768.28(9)(a), provides in pertinent part: No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function. The immunity in section 768.28(9)(a) extends to certain private parties who are involved in contractual relationships with the state, provided that such parties are "agents" of the state....

...Graham, a staff physician at St. Mary's hospital and the director of the Regional Perinatal Intensive Care Center (RPICC) which was located within and operated by St. Mary's hospital. Id. at 539. Dr. Graham asserted the defense of sovereign immunity under section 768.28....

...HRS never attempted to dictate policies or procedures regarding how the government wanted her to diagnose or handle patients. Id. at 541. This court held that there is at least a question of fact whether Dr. Graham was an agent of the state entitled to the section 768.28 defense of sovereign immunity and reversed the entry of summary judgment....

...the Hospital District and that the Hospital District shall exercise exclusive control or direction over the method and manner by which the physician performs his services. The agreement also stated that the physician would be immune from suit under section 768.28....

...1st DCA 1983) and Stillwell v. Thigpen, 426 So.2d 1267 (Fla. 1st DCA 1983). The rules of law enunciated in these cases are inapplicable here. The causes of action sued upon in Rupp and Knowles accrued prior to June 6, 1979, the effective date of the 1979 amendments to § 768.28(9), Fla. Stat. Section 768.28(9), (1975), which was applicable in Rupp and Knowles, provided as follows: No officer, employee, or agent of the state or its subdivisions shall be held personally liable in tort for any injuries or damages suffered as a result of any...

...District School Board of Lake County, 355 So.2d 502 (Fla.2d DCA 1978) ( Talmadge I ), involved review of a trial court ruling in a negligence action wherein the School Board, its insurer, and one of the Board's employees were named as parties defendant. The trial court had ruled that under the provisions of § 768.28(9), (1975), no cause of action against the employee existed....

...from suit, they [sic] would have clearly so stated." Talmadge I at 503. Our Supreme Court affirmed this decision in District School Board of Lake County v. Talmadge, 381 So.2d 698 (Fla. 1980) ( Talmadge II ), saying that while the first sentence of § 768.28(9), (1975), seemingly declares that public employees are not personally liable for employment negligence, the second sentence appears to provide that the state will pay (up to a stated amount) any judgment against the employee after personal liability has been determined....

...iable for the full amount of judgments rendered against them for torts committed in the course of their employment, but must be indemnified by the state to the extent of the monetary limitations on the state's waiver of sovereign immunity set out at § 768.28(5), Fla. Stat. Because the causes of action in Rupp and Knowles accrued during the period when § 768.28(9), (1975), was in effect, the rulings in those cases were in accord with the rule previously announced in Talmadge II....

...In 1979, in an apparent reaction to the District Court's ruling in Talmadge I that the existing statute acted only to indemnify a public employee for a judgment entered against him (up to a stated amount) and afforded no immunity, the legislature substantially amended § 768.28(9)....

...rsion of the statute and the effect of its application was not ruled upon by this court. Instead, the parties relied on yet a later amendment of the statute which took effect on July 1, 1980. Since the issue of the application of the 1979 version of § 768.28(9) was not considered or ruled upon in Kirkland or Stillwell, there is no conflict between those cases and our ruling herein....

...City of Jacksonville, 403 So.2d 379, 381 (Fla.1981) ("Thus the general rule was that state governments, their agencies, and their subdivisions could not be sued in state courts without state consent"). In 1973, Florida gave its consent to be sued in tort actions through the enactment of Florida Statute § 768.28. The State, however, waived its sovereign immunity from liability for torts "only to the extent specified in this [statute]," Fla. Stat. § 768.28(1) (2004), and thus set out limitations to suits against the State of Florida and its political subdivisions, such as Miami-Dade County. One such limitation is that in any case involving the actions of a county employee, either the county or the employee can be held liable, but not both. Fla. Stat. § 768.28(2) & (9)(a); McGhee v....

...Furthermore, the general rule is that the State may be held liable for the acts of its employees, unless "such [an] act or omission was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property." Fla. Stat. § 768.28(9)(a); See also McGhee, 679 So.2d at 733....

...ended complaint expressly alleged a "malicious assault and battery." See Willis, 411 So.2d at 246. Thus, given Moore's express allegations of malicious, wanton, or willful conduct by the County's employees, I find that the County is not liable under § 768.28(9) of the Florida Statutes, and is therefore entitled to sovereign immunity on all state law claims. D. The officers are entitled to sovereign immunity. With respect to waiver of sovereign immunity in tort actions, Florida Statute § 768.28(9)(a) states in relevant part: *1236 No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result...

...of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights; safety, or property. Fla. Stat. § 768.28(9)(a)....

...ed by state sovereign immunity. To abrogate state immunity, Plaintiff must plead that the Officers "acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property." Fla. Stat. § 768.28(9)....

...There is no allegation that the school board had any actual knowledge of his beliefs or his propensities. The trial judge dismissed the complaint and we affirm. The victim contends that the school board is not immunized from liability for the acts of the teacher. Section 768.28(9)(a), Florida Statutes (1989) provides the pertinent statutory authority to the effect that a governmental entity is liable for all torts, negligent and intentional, committed by an employee, unless committed outside the course and sc...

...More importantly, the complaint admitted *132 that the teacher acted in a manner exhibiting wanton and willful disregard for human life. The purpose of his acts was clearly self-serving, in bad faith and outside any conceivable course and scope of employment so as to immunize the school board from liability under section 768.28(9)(a)....

...The effect of section 440.11(1) when the claimant is a public employee is to open the governmental employer to civil liability in addition to its worker's compensation obligations. That is because, in the case of a public employee, the government employer steps into the shoes of the liable fellow employee. § 768.28, Fla....

...Evans, 133 F.3d 1425, 1435 (11th Cir.1998)(stating that probable cause constitutes an absolute bar to both state and section 1983 claims alleging false arrest); Mailly, 867 So.2d at 1251. In addition, the allegations of Fernander's complaint failed to satisfy section 768.28(9)(a), Florida Statutes....

...That statute provides that an officer may not be liable in tort for actions taken in the scope of their employment unless the officer "acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property." § 768.28(9)(a), Fla....

...nted the motion. We reverse because we conclude that the county was precluded from raising the issue at trial. Kathy was injured while a passenger on a county owned bus on June 16, 1988, and on March 17, 1989, her counsel sent the notice required by section 768.28(6), Florida Statutes (Supp....

...1988), to the county and the insurance commissioner. It stated: Please be advised that our firm represents Kathy Gardner for her loss of consortium and the injuries she sustained, as the result of an incident which occurred on June 16, 1988, while a passenger on a Broward County bus. Pursuant to § 768.28(6), this will hereby constitute notice of this claim against the Broward County Commissioners....

...Plaintiffs filed suit on August 3, 1990, alleging they gave proper notice, which the county generally denied. Plaintiffs served a single request for admission on December 5, 1990, requesting the county to admit that plaintiff had satisfied the notice requirements of section 768.28(6)....

...Based upon our opinion in Eight Hundred, it is clear that the trial judge in *512 the instant case was correct in dismissing the replevin action. It had no jurisdiction to do otherwise. In respect to the claim for money damage, Pondella is confronted with the doctrine of sovereign immunity, which requires notice pursuant to section 768.28(6)(a), Florida Statutes....

...ng in their official capacities are `persons' under § 1983."). Therefore, only two questions remain: 1) whether the Florida Department of Law Enforcement covered by the State of Florida's immunity, and 2) whether Florida waived its immunity through § 768.28, Florida Statutes....

...Rusk State Hospital, 648 F.2d 1066, 1069 (5th Cir.1981). [4] The Florida Department of law Enforcement is an agency of the state of Florida. Fla. Stat. §§ 20.04, 20.20. [5] The FDLE is therefore covered by the Florida's Eleventh Amendment immunity. C. Section 768.28, Florida Statutes, Does Not Waive Florida's Sovereign Immunity Plaintiff "concedes that the established law as prescribed by the United States Supreme Court is that unless a state consents to being sued a suit by a private party seekin...

...a liability payable from public funds in the state's treasury is foreclosed by the Eleventh Amendment." Plaintiff Response at 22. Plaintiff only argument is that the "language of the Florida Sovereign Immunity Statute codified at, Florida Statutes, § 768.28, is sufficiently clear as to render the State of Florida as a `natural person,' for purposes of suit monetary damages, and, as such, constitutes a waiver of the state's Eleventh *1331 Amendment immunity...." Id....

...his Court." A review of Eleventh Circuit case law, however, shows that this issue has been adequately dealt with before. In Schopler v. Bliss, 903 F.2d 1373, 1379 (11th Cir.1990), the Eleventh Circuit held that a district court erred in interpreting § 768.28 as a statutory waiver of Florida's Eleventh Amendment sovereign immunity. The court noted its previous decisions holding that § 768.28 does not waive Florida's Eleventh Amendment immunity specifically citing Hamm v. Powell, 874 F.2d 766, 770 n. 3 (11th Cir.1989) and Gamble v. Fla. Dept. of Health and Rehabilitative Services, 779 F.2d 1509 (11th Cir.1986). The court also noted that subsection 768.28(16) (which is now 768.28(17)) expressly "declares the legislature's intention that Florida Statutes not be construed to waive Eleventh Amendment immunity unless they explicitly waive immunity from suit in federal court." Id. at 1379. Section 768.28(17) reads as follows: No provision of this section, or of any other section of the Florida Statutes, whether read separately or in conjunction with any other provision, shall be construed to waive the immunity of the state or any of it...

...The jury found the City to be 90% negligent and Griffin 10%. The total amount of damages was set at $3 million. The trial court denied various post trial motions but granted the City's motion to limit the judgment pursuant to Chapter 73-313, Florida Statutes, Section 768.28....

...the negligence of a municipality in its performance of a "proprietary" function since these rights existed at common law and were never recognized as coming within the purview of sovereign immunity. Thus, appellant contends that an interpretation of § 768.28 which limits these rights would be an unconstitutional denial of equal protection and access to the courts....

...destroying any common law rights fails. On cross-appeal, Fidelity argues that the trial court erred in denying defendants' motion to dismiss, since plaintiff not only failed to allege waiver of sovereign immunity and his intentions to proceed under § 768.28, but has maintained throughout that this case does not fall within the provisions of the statute and no need existed to affirmatively allege waiver of sovereign immunity....

...which remain immune under the principles set forth in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979). In Commercial Carrier the Florida Supreme Court held that despite the broad waiver of sovereign immunity contained in § 768.28 certain "discretionary" governmental functions remained immune....

...operational level function and the City is not immune from tort liability for its negligence in this area. Appellees City and Fidelity have also argued that the trial judge was in error in his limitation of the judgment in applying the provisions of § 768.28, Florida Statutes, as they existed at the time that the cause of action accrued rather than as they existed when the judgment was entered. The appellees moved the trial court to limit the judgment as provided in § 768.28(5), Florida Statutes (1979) which would have limited the judgment according to the $50,000/$100,000 limitation. The trial court instead applied § 768.28(10), Florida Statutes (1975) and entered judgment in the amount of $300,000, the amount of insurance coverage maintained by the City at the time of the accident....

...Thus, the statute in existence at the time of the incident should be applied. See McCord v. Smith, 43 So.2d 704 (Fla. 1950). Appellee Fidelity has urged us to reconsider this Court's opinion in State v. Yant, 360 So.2d 99, 101 (Fla. 1st DCA 1978) in which it was held that the statutory limitation in § 768.28 does not apply to costs and costs may be taxed in addition thereto....

...Northern Coats and his wife were injured when a police vehicle struck their car. Coats and his wife sued Metropolitan Dade County for damages caused by the alleged negligence of the officer who drove the car. Attached to the complaint were purported notices of claim required by section 768.28(6), Florida Statutes. Metro Dade filed an answer denying negligence and asserting noncompliance with section 768.28(6). Immediately prior to trial, Metro Dade moved to dismiss Mrs. Coats' claim because only Mr. Coats, and not Mrs. Coats, provided notice to the Department of Insurance in accordance with section 768.28(6), Florida Statutes (1983)....

...Coats continued to sit at the plaintiffs' table but was not called as a witness. At the close of plaintiffs' case, and again at the conclusion of defendant's case, Metro Dade moved for a directed verdict on the ground that Coats had failed to comply with sections 768.28(6) and (7), Florida Statutes (1983)....

...Coats. Upon the trial court's denial of post-trial motions and entry of final judgment, Metro Dade instituted its appeal. Metro Dade asserts that Northern Coats failed to comply with requirements pertaining to notice and service of process in sections 768.28(6) and (7), Florida Statutes (1983); and thus, it maintains, it enjoys the protection of sovereign immunity....

...tenance of an action against a sovereign body, Menendez v. North Broward Hosp. Dist., 537 So.2d 89 (Fla. 1988); Levine v. Dade County School Bd., 442 So.2d 210 (Fla. 1983); Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979); § 768.28(6), Fla....

...Here, the record demonstrates that Northern Coats sent a letter to the Department of Insurance informing it not only of the pertinent details of his claim, but also of Metro Dade's denial of his claim. The letter satisfied the notice requirements of section 768.28(6), Florida Statutes (1983). [2] As to section 768.28(7), it is undisputed that Mr....

...By neglecting to assert its defense by motion or answer, Metro Dade waived its right to advance that defense. See Fla.R.Civ.P. 1.140(h); cf. In re Forfeiture of 1978 Green Datsun Pickup, 475 So.2d 1007 (Fla. 2d DCA 1985), review denied, 486 So.2d 598 (Fla. 1986) (interpreting section 768.28(6)); City of Pembroke Pines v. Atlas, 474 So.2d 237 (Fla. 4th DCA 1985), review denied, 486 So.2d 595 (Fla. 1986) (on motion for rehearing) (interpreting section 768.28(6)); see generally City of Jacksonville Beach v. Duncan, 392 So.2d 25 (Fla. 1st DCA 1980), review denied, 399 So.2d 1141 (Fla. 1981) (interpreting section 768.28(6)); Hutchins v. Mills, 363 So.2d 818 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1368 (Fla. 1979) (interpreting section 768.28(6))....

...The sheriff asserts that the final judgment should have been entered in his favor on the merits. On October 21, 1982, Mohr sued the sheriff for false arrest. The trial court granted the sheriff's motion to dismiss the complaint because Mohr had failed to comply with the requirements of section 768.28(6), Florida Statutes (1981)....

...In his amended complaint of February 24, 1983, Mohr alleged that he had provided such notice to the sheriff, but he did not allege that he had furnished the required notice to the Department of Insurance. In his answer, the sheriff filed an affirmative defense that Mohr had failed to comply with section 768.28(6)....

...t lawfully return a verdict in Plaintiff's favor, and therefore, *875 this Court granted Defendant's Motion for Directed Verdict ... on the procedural grounds that the Plaintiff did not comply with the condition precedent required by Florida Statute 768.28(6)." The court also found that since it entered the directed verdict "based solely on the Supreme Court opinion in Levine v....

...On appeal, the sheriff argues that the court erred in failing to enter final judgment on the merits in his favor. The sheriff bases his contention on Mohr having rested his case after a full and fair chance to prove every material fact essential to recovery and having failed to prove compliance with section 768.28(6)....

...We think the trial judge erred in allowing Mohr to refile his complaint. In Levine, the supreme court held that a trial court had no alternative but to dismiss the plaintiff's complaint with prejudice for failing to comply with the notice requirement of section 768.28(6) because the time for filing such notice had expired. See also Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1022 (Fla. 1979). Conversely, appellee Mohr counters that the trial judge properly dismissed his action without prejudice because time remained for him to comply with section 768.28(6)....

...loyees. The trial court granted the motion and entered a Final Summary Judgment in favor of the School Board on the basis that sovereign immunity barred the claim against the School Board. The Carestios appeal the Final Summary Judgment. We reverse. Section 768.28, Florida Statutes (1999), provides for a waiver of sovereign immunity in tort cases. However, section 768.28(9)(a) outlines a limitation on the State's vicarious liability in certain circumstances....

...ght. Id. at 731 n. 5. Under the common law, acts conducted by virtue of office may result in liability for the state agency; however, acts that are by color of office would not. The court recognized that the waiver of sovereign immunity contained in section 768.28 did not alter the common law definition of scope of employment....

...the classroom and restrain him if he became violent. Therefore the employees were acting within the scope of their authority. Under McGhee, the question should be put *757 to the fact-finder whether the employees' actions fall within the language of section 768.28(9)(a), making the School Board immune from liability....

...xpenses, the compensatory damages award, and the back pay award were collectively subject to the limitation on "[t]he total amount of recovery" provided for in section 760.11(5), Florida Statutes (2002), which by reference adopts the $100,000 cap in section 768.28(5), Florida Statutes (2002)....

...by section 760.01(3). He also relies on legislative history in support of his argument that the $100,000 cap applies only to compensatory damages. Specifically, Gallagher cites a legislative staff analysis which states that the provision codified in section 768.28(5) "provides that ....

...n.. . . Notwithstanding the above, the state and its agencies and subdivisions shall not be liable for punitive damages. The total amount of recovery against the state and its agencies and subdivisions shall not exceed the limitation as set forth in s. 768.28(5). (Emphasis added). The reference to section 768.28(5) is to the statutory provision which establishes limitations on the waiver of sovereign immunity for tort liability: (5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same e...

...very cannot be limited in the way suggested by Gallagher. Our understanding of the scope of the cap applicable under section 760.11(5) is consistent with the rule applied in interpreting the scope of the cap generally applicable to tort claims under section 768.28(5)....

...ill permit a court to award a claimant." (Footnote omitted.) (Emphasis supplied.) See also Pinellas County v. Bettis, 659 So.2d 1365, 1367 (Fla. 2d DCA 1995). Section 760.11(5) specifically incorporates "the limitation" on liability "as set forth in s. 768.28(5)." There is no basis for concluding that the well-established scope of the limitation of liability under section 768.28(5)—encompassing all components of a monetary judgment—should not also obtain under section 760.11(5)....

...ng within the course and scope of his employment by the joint venture between Shands at Lake Shore and the University of Florida Board of Trustees. Shands moved to dismiss the complaint for failure to state a cause of action. The motion was based on section 768.28(9)(a), Florida Statutes (2002), which provides that an employee of the state is immune from liability for ordinary negligence, under the doctrine of sovereign immunity....

...titutional officer of which the officer, employee, or agent is an employee, unless such act or omission was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. § 768.28(9)(a), Fla....

...2007) (related provisions of a statute must be read together to achieve a consistent whole); Horowitz v. Plantation General Hosp. Ltd. Partnership, 959 So.2d 176 (Fla.2007) (the court must look not only to the words themselves, but also the context in which they are used). The phrase "exclusive remedy" is used in section 768.28(9)(a) to clarify the point of the statute: that an injured plaintiff may not sue a public employee but must instead sue the agency responsible for the employee's conduct....

...It is not used in a more expansive way to foreclose the potential liability of third parties who would not, in any event, derive immunity from the state. The protection afforded by sovereign immunity is, by definition, limited to the sovereign. It does not exist for the benefit of private enterprise. The object of section 768.28(9)(a) is to give immunity to state employees and to make it clear that legal responsibility lies only with the State itself under its limited waiver of sovereign immunity....

...[1] A private enterprise (Shands of Lake Shore) would have the immunity that is designed to protect the state, and the state (the University Board of Trustees) would be exposed to liability under its limited waiver of sovereign immunity. Our conclusion that section 768.28(9)(a) does not effectively immunize a private company that is responsible for the conduct of a state employee is supported by the decision in Jaar v....

...e College of Medicine and worked for the Public Health Trust of Dade County. The court held that the doctor was immune and that the Trust was liable to the extent of the sovereign immunity waiver but noted that the immunity afforded to the doctor by section 768.28(9)(a) did not extend to the University of Miami....

...Because the University of Miami is a private educational institution, the court reasoned, any liability it incurs for the negligence of its agents has no effect on the public treasury. Shands at Lake Shore argues that Jaar is not controlling, because the cause of action in that case arose before section 768.28(9)(a) was amended to add the "exclusive remedy" provision....

...Nor would that change our view here, in any event. As we have explained, the phrase "exclusive remedy" when considered in the context of the entire statute, merely emphasizes that liability lies with the public employer and not the public employee. For these reasons, we conclude that section 768.28(9)(a), Florida Statutes, does not foreclose a claim of liability against Shands at Lake Shore for the conduct of a public employee working under its supervision and control....

...The order dismissing the complaint on this ground is reversed, and the action may proceed in the trial court against both of the original defendants. Reversed. WEBSTER and POLSTON, JJ., concur. NOTES [1] Our decision is based solely on our interpretation of section 768.28(9)(a), Florida Statutes, but we share the broader concerns recently expressed in University of Florida Board of Trustees v....

...comply with the rules governing the collection of cost judgments. Thus, Plaintiff is claiming that the property deprivation resulted from random or unauthorized actions of state officials. The state of Florida provides an adequate state remedy under Section 768.28, Florida Statutes (1991), to redress these alleged random or unauthorized deprivations which Plaintiff could have utilized had he sued Defendants in their official capacities. [6] With respect to negligent or wrongful acts by state officials, Section 768.28(1) provides the following post-deprivation remedy: (1) In accordance with s....

...Plaintiff failed to avail himself of this remedy because he sued Defendants in their individual capacities only. However, the remedy was available to Plaintiff and he cannot now claim that he was deprived of due process because he failed to take advantage of the remedy. Plaintiff also is precluded from recovery under Section 768.28(9)(a), Florida Statutes (1991), against Defendants in their individual capacities because he does not allege that Defendants acted in bad faith, with malicious purpose, or in a wanton or willful manner. Section 768.28(9)(a) provides: (9)(a) No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any a...

...g wanton and willful disregard of human rights, safety, or property. . . . . . If Plaintiff Spradley is attempting to allege that Defendants acted in bad faith, maliciously, or wantonly or willfully, he has an available post-deprivation remedy under Section 768.28(9)(a)....

...Robert Rossano, Miami, for appellee. Before COPE and WELLS, JJ., and NESBITT, Senior Judge. Rehearing, Rehearing En Banc and Certification Denied June 11, 2003. WELLS, Judge. The City of Miami appeals from a final judgment ordering it to pay $100,000 to Marcos Valdez pursuant to section 768.28, Florida Statutes (2002)....

...in negligence. The City and Ortiz subsequently entered into a $5 million settlement agreement. Pursuant to the settlement agreement, the City paid $100,000 to Ortiz in accordance with the recovery limits of Florida's sovereign immunity tort statute, section 768.28(5), and agreed to assist in passage of a special claims bill to the Florida legislature for the $4.9 million balance....

...City's right to contest Valdez's entitlement to collect from the City without submission of a special claims bill to the Florida legislature. Pursuant to this agreement, the City argued below that the $200,000 per incident aggregate cap provided in section 768.28(5) had been exhausted by its payment of $100,000 to Ortiz and by its compliance with the $4.9 million special claims bill in Ortiz's favor. Valdez maintained that the $200,000 per incident aggregate cap had not been exhausted by Ortiz's recovery on a single claim (only $100,000 of which had been satisfied in an action at law under section 768.28) and that the claims bill procured by Ortiz had no effect on the City's obligation to make payment to resolve his action....

...ited jurisdiction on Florida's courts to entertain actions sounding in tort against governmental entities. See Ch. 69-116, Laws of Fla. (1969); Carlile v. Game & Fresh Water Fish Comm'n, 354 So.2d 362, 364 (Fla.1977). This waiver, now encompassed in section 768.28 of the Florida Statutes, establishes both the mechanism by which those injured by a governmental entity's tortious conduct may directly recover and the extent to which recovery may be had without resort to the cumbersome claims bill pr...

...d paid pursuant to this act up to $100,000 or $200,000, as the case may be; and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature. §§ 768.28(1), (5), Fla....

...moral obligation"). Legislative claims bills are utilized either after procurement of a judgment in an action at law or as a mechanism to avoid an action at law altogether. See Gerard v. Department of Transp., 472 So.2d 1170, 1172-73 (Fla.1985). And section 768.28 does not state that a legislative claims bill award may be applied to satisfy the per claim/per judgment or aggregate caps applicable to claims and judgments in actions at law under that section. See Berek v. Metropolitan Dade County, 422 So.2d 838, 840 (Fla.1982) (confirming that section 768.28 limits the amount that may be recovered in a judicial proceeding); Rice v....

...City of Palm Bay, 147 F.Supp.2d 1292, 1298 (M.D.Fla.2001) (holding that "the $100,000 clause limits the maximum judicial (as opposed to legislative) recovery to $100,000 for all claims that a single plaintiff brings ... in a single action resulting in a single judgment")(emphasis added). Rather, as pertinent here, section 768.28 plainly states only that: (1) a governmental *1008 entity may, in an action at law, be compelled to pay up to a total of $200,000 on all claims and judgments, no matter how many, arising from a single incident or occurrence; and (2) a...

...l such legal proceedings does not exceed a total of $200,000. See Comer, 147 F.Supp.2d at 1298. This statute does not state that any amounts awarded pursuant to a legislative claims bill may or should be applied against the statutory caps imposed by section 768.28 in actions at law....

...t included by specific reference was intended to be omitted or excluded. See Lowe v. Broward County, 766 So.2d 1199, 1208 (Fla. 4th DCA 2000); see also Ideal Farms Drainage Dist. v. Certain Lands, 154 Fla. 554, 19 So.2d 234, 239 (1944). A reading of section 768.28 supports the conclusion that had the legislature intended that any amounts procured by means of claims bills be applied to exhaust the per person/per incident waiver of immunity, the legislature would have included such a provision. While section 768.28 provides for a number of eventualities and gives instruction on how the waiver of immunity works, it makes no mention of the novel exhaustion argument advanced by the City....

...iscerate one of essential purposes of this waiver which is to obviate for as many claimants as possible resort to the more cumbersome legislative claims bill route to recovery. See D. Stephen Kahn, supra at 24 (concluding that the intended effect of section 768.28 is to reduce the number of claims bills submitted to the legislature)....

...Individual A has serious injuries, with damages of $1,000,000. The same incident results in minor injuries, with damages of $3,000, to each of the other twenty individuals—Individuals B through U. Under the City's analysis, the procedure encompassed by section 768.28 would result in no more than a race to the courthouse and then to the legislature....

...of the legislative claims bill procedure, purports to accomplish. In sum, the amounts procured through means of a legislative claims bill have no application to the limited amounts that may be directly procured in an action at law in accordance with section 768.28, a provision that must be strictly construed....

...Florida Statutes (1983). DPR and Johnson filed motions to dismiss. [1] The court denied DPR's and Johnson's motions to dismiss, struck appellees' claim for punitive damages against DPR, and limited an award of attorney's fees against it by applying section 768.28, Florida Statutes (1983)....

...lable. Weltz v. Mann, 383 So.2d 324 (Fla. 5th DCA 1980); see also Bernstein v. First Federal Savings & Loan Association of Orlando, 384 So.2d 301 (Fla. 5th DCA 1980). Similarly, the court's ruling which limited attorney's fees as to DPR, pursuant to section 768.28(8), Florida Statutes (1983), is also a non-final matter and not reviewable under any category set out in Rule 9.130....

...In its cross-appeal Eckerd claims that because it was an independent contractor operating a juvenile facility for the Department of Juvenile Justice, it was therefore protected from suit by sovereign immunity. In support of its assertion Eckerd cites section 768.28(11)(a), Florida Statutes (2001): Providers or vendors, or any of their employees or agents, that have contractually agreed to act on behalf of the state as agents of the Department of Juvenile Justice to provide services to children in...

...d of services, or juvenile offenders are, solely with respect to such services, agents of the state for purposes of this section while acting within the scope and pursuant to guidelines established in the contract or by rule. This statute is part of section 768.28, which is titled "Waiver of sovereign immunity in tort actions." Provided certain conditions are met, this statute provides Eckerd, its employees, and its agents with immunity from personal liability in tort under section 768.28(9)(a)....

...The City and Mayor Bill Frederick and Chief Dan Wilson in their Official Capacities. Under Florida law, a plaintiff must satisfy certain conditions before instituting "a claim against the state[,] ... one of its agencies or subdivisions," Fla.Stat. § 768.28(6)(a) (1989), or against a municipal official in his official capacity. Lloyd v. Ellis, 520 So.2d 59, 60 (Fla.Dist.Ct.App.1988). First, a plaintiff must present "the claim in writing to the appropriate agency...." Fla.Stat. § 768.28(6)(a)....

...Satisfaction of the Florida notice requirements is a condition precedent to maintaining a lawsuit, and the complaint must contain an allegation that such notice was given. Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1022-23 (Fla.1979); Fla.Stat. § 768.28(6)(b) (1989)....

...h the notice requirement. Commercial Carrier Corp., 371 So.2d at 1023; Thigpin v. Sun Bank, 458 So.2d 315, 316 (Fla.Dist.Ct.App. 1984). Because plaintiffs did not state in their complaint whether they have satisfied the notice of claim provisions of section 768.28(6), Count II against the City and against the Mayor and Chief in their official capacities is dismissed....

...This court's dismissal of Count II is distinguished from the holding in Majette v. O'Connor, 811 F.2d 1416 (11th Cir.1987) (per curiam). In Majette, the court of appeals reviewed a district court's dismissal of a case with prejudice because the plaintiff did not comply with the notice provisions of section 768.28(6) of the Florida Statutes....

...Therefore, dismissal of the state law claim without prejudice did not require plaintiffs to exhaust their state administrative remedies before bringing their section 1983 suit. See Brown v. City of Miami Beach, 684 F.Supp. 1081, 1084 (S.D.Fla.1988) (dismissal of pendent claim under section 768.28(6) proper because state substantive law controlled the claim). 2. Mayor Bill Frederick and Chief Dan Wilson in their Individual Capacities. The notice requirements in section 768.28(6) do not apply to plaintiffs' cause of action against Mayor Frederick and Chief Wilson in their individual capacities....

...for any injury or damage suffered as a result of any act ... in the scope of [their] employment or function, unless ... [they] acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property." Fla.Stat. § 768.28(9)(a) (1989)....

...The evidence presented by defendants does not suggest a contrary conclusion. Summary judgment is, therefore, granted for the Mayor and Chief in their individual capacities on Count II of plaintiffs' complaint. See Carpenter v. City of St. Petersburg, 547 So.2d 339, 341 (Fla. Dist.Ct.App.) (summary judgment under section 768.28(9) appropriate because no showing of bad faith or malice), rev....

...state in Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla. 1979) and now controls the determination of which governmental functions are still protected by sovereign immunity and which are not pursuant to the waiver provisions of Section 768.28, Florida Statutes (1981)....

...ve known purchaser would rely). Because duty is always an element of negligent torts, see Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928); Ultramares Corp. v. Touche, Niven & Co., 255 N.Y. 170, 174 N.E. 441 (1931), and because Section 768.28(5), Florida Statutes, sets monetary limits on damages for which the state or its subdivision may be held liable, there need be no fear that my approach will open municipalities to a flood of claims....

...concept which has meaning apart from the governmental setting. Accordingly, its efficacy is dependent on the continuing vitality of the doctrine of sovereign immunity. If this be so, does the Modlin doctrine survive notwithstanding the enactment of section 768.28? We think not....

...re than the duty a public officer owes the public generally. That is no more than re-stating traditional negligence law in a governmental tort liability context. Cheney v. Dade County, 353 So.2d 623, 629 (Fla. 3d DCA 1977) (Hubbart, J., dissenting). Section 768.28, Florida Statutes (1975), simply waived the defense of sovereign immunity for the state, its agencies and subdivisions....

...Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965), and adopted in Commercial Carrier. Absent some reconsideration by the supreme court, the legislature, while there are still some members around who are aware of their intent in enacting section 768.28, should act to clarify its intent in passing this legislation....

...ge which Sun Bank, as mortgagee, had submitted for recordation. The Clerk moved to dismiss Sun Bank's complaint on two grounds: (1) that the plaintiff had failed to meet the three year statute of limitations for filing claims against the state under section 768.28(6)(a), Florida Statutes (1983); (2) that the state had not yet denied the plaintiff's claim and plaintiff could not file its action until the state had done so....

...issue of fact as to when plaintiff's cause of action, if any, accrued." The trial court then stayed further proceedings in the cause other than discovery until the running of the six month period for final disposition of a claim by the agency under section 768.28(6)(a), Florida Statutes (1983). Section 768.28(6)(a), Florida Statutes (1983) provides in relevant part: An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency,...

...Article X, Section 13 of the Florida Constitution incorporates the common law doctrine of sovereign immunity, authorizing the state to waive immunity by general law if it so desires. The legislature accepted this invitation by enacting Florida Statutes § 768.28 (1979), which permits persons to sue the state for any tort committed by an employee of a state agency or subdivision while acting within the scope of his employment. A reading of Section 768.28 leads the Court to the conclusion that the Florida Legislature did not intend the statute to encompass actions for injuries sustained by a municipality as a result of acts or omissions attributable to a state agency. Rather, the statute focuses upon more mundane types of torts, i. e., those causing property damage, personal injury or wrongful death. That this is true is apparent from, among other provisions, Section 768.28(1), which provides that the state shall be liable only if a private person would be liable under the same circumstances in accordance with the general law of the state. Obviously, there is no set of facts under which a private person could be liable to the City Defendants for refusing to take custody of mentally incompetent inmates committed to HRS. With the exception of Section 768.28, there is no provision of Florida law that would even arguably confer authority upon this Court to award money damages to the City Defendants....

...imperil the arrest.” 7  By contrast, any harm resulting from the erroneous denial of FWCC’s motion for summary judgment is not irreparable because, by virtue of the waiver of sovereign immunity in section 768.28, Florida Statutes, FWCC has only limited immunity from the liability that may result from Respondent’s suit, not immunity from the suit itself. See Dep’t of Educ....

...pter. WARNER, J. In entering a judgment in favor of appellant for age discrimination and retaliation by his employer Florida Atlantic University, the trial court determined that the statutory cap on damages of $100,000, provided to state agencies in section 768.28(5), applied to the total recovery, including attorneys' fees, and to both claims....

...Both counts were submitted as separate claims to the jury, which awarded Zamora compensatory damages of $83,596 for age discrimination and $37,000 for retaliation. FAU filed a motion for remittitur and a motion to limit the damages to the sovereign immunity cap of $100,000 pursuant to section 768.28(5), Florida Statutes. In granting FAU's motion to limit recovery, the court found that all of Zamora's claims were subject to the $100,000 recovery limit set forth in section 768.28(5), citing section 760.11(5) and Gallagher v....

...It is the intent of the Legislature that this provision for attorney's fees be interpreted in a manner consistent with federal case law involving a Title VII action. . . . The total amount of recovery against the state and its agencies and subdivisions shall not exceed the limitation as set forth in s. 768.28(5). Section 768.28(5), in turn, limits recovery to $100,000 per person for each claim, as will be discussed in the second issue....

...These are arguments which should be addressed to the legislature, which has both provided the remedy and created its limitations. While the statute limits FAU's liability, it also provides that the employee can file a claims bill with the legislature to secure amounts in excess of the statutory limitation. § 768.28(5), Fla....

...Separate Claims Analysis Zamora also contends that his recovery should not be limited to $100,000, because he prevailed on two separate claims-one for age discrimination and one for retaliation. The jury made separate awards for each claim. Even if the caps in section 768.28(5) apply, he argues that he would nevertheless be entitled to recover up to $100,000 on each claim. We agree. Section 768.28(5) provides, in pertinent part: The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period before judgment....

...For purposes of this doctrine, the "cause of action" is the "the right which a party has to institute a judicial proceeding." Id. at 1219-20 (Gross, J., concurring) (quoting Shearn v. Orlando Funeral Home, Inc., 88 So.2d 591, 593 (Fla.1956)). See also Leahy v. Batmasian, 960 So.2d 14 (Fla. 4th DCA 2007). The cases construing section 768.28(5) may all be reconciled by applying the statutory cap to all claims which are required to be brought in the same case or be barred by res judicata or splitting the cause of action....

...e act. Because they arose out of the same act, the rule against splitting the causes of action would require that they be brought in the same action and thus constituted but one "claim." These cases illustrate the application of the statutory cap of section 768.28(5) to claims....

...im. We therefore reverse for the court to apply a separate statutory cap to each claim, and limiting the total recovery, including attorneys' fees, for each claim to $100,000. However, the judgment should not be reduced to the statutory cap, because section 768.28(5) authorizes that the judgment in excess of the cap may be reported to the legislature....

...One additional case that discusses pre-suit requirements under the Act is Florida Department of Education v. Garrison, 954 So.2d 84 (Fla. 1st DCA), review denied, 966 So.2d 966 (Fla.2007). In Garrison the issue was whether the pre-suit notice requirements of section 768.28 are applicable to a cause of action brought pursuant to the Act. [5] The court found that the section 768.28 pre-suit notice requirements are not applicable to the Act because it contains its own detailed administrative pre-suit notice requirements, sets forth a plethora of other conditions that must be satisfied before a claim can be success...

...medy against the *147 State or its agencies or subdivisions under certain, specified conditions." Id. In reaching this conclusion, the Garrison court found Maggio controlling. In Maggio, the Supreme Court held that the pre-suit notice requirement of section 768.28(6) has no application to the Florida Civil Rights Act of 1992 because of the inclusion of detailed pre-suit requirements within the act itself....

...prohibited by this section." [4] Section 112.31895 simply provides that the complaint must be made in writing at the Office of the Chief Inspector General in the executive office of the governor or with the Florida Commission on Human Relations. [5] Section 768.28 is the State's waiver of sovereign immunity for tort actions.

...Mauriello of the Office of the County Atty., West Palm Beach, for appellee. DOWNEY, Judge. Appellant, Michael J. Franklin, seeks reversal of a final order that dismissed his complaint with prejudice for the reason that Franklin failed to comply with the notice requirements of section 768.28(6)(a), Florida Statutes (1985), prior to initiating this action....

...s struck by a van pulling out from an adjacent strip of land. Charles Clowdus, a *829 passenger on the motorcycle, was also injured. On February 8, 1985, appellant and Clowdus sent a joint notice of claim to the county by certified mail, pursuant to section 768.28(6)(a)....

...body of the notice of claim made reference only to Clowdus. By amended complaint, Franklin sued the Department of Transportation and Palm Beach County seeking damages for his injuries. That complaint alleged compliance with the notice requirement of section 768.28(6)(a)....

...ion. We begin with the recognition that the legislature, in mandating notice as a condition precedent to the commencement of suit under the waiver of sovereign immunity section of Chapter 768, failed to provide any particular format for said notice. Section 768.28(6)(a) provides only that the claimant present the claim in writing to the appropriate agencies within three years after the claim accrues. Therefore, as the court stated in Whitney v. Marion County Hospital District, 416 So.2d 500, 502 (Fla. 5th DCA 1982), [s]ince section 768.28(6) does not specify the form or manner of submitting the claim, except that it be in writing, it follows that any manner of submitting a written notice of the claim to the agency involved that sufficiently describes or identifies the occurrence so that the agency may investigate it, satisfies the statute....

...We are dealing here with the adequacy of the notice as given and find it adequate under the circumstances. Accordingly, the order appealed from is reversed and the cause is remanded for further proceedings. HERSEY, C.J., and ANSTEAD, J., concur. NOTES [1] Section 768.28(6)(a) provides in pertinent part: (6)(a) An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except...

...gainst the appellee, the Department of Corrections, and the Levy County Board of County Commissioners, appeal the trial court's order dismissing with prejudice Curry's suit against the Department for failure to comply with the notice requirements of section 768.28(6)(a), Florida Statutes (1991)....

...Singletary, Jr., of the Florida Department of Corrections, advising that Curry was seeking damages for this injury. The letter states: "This letter shall serve as notice to the State of Florida Department of Corrections pursuant to Florida Statute 768.28." The letter requested that the claim be promptly denied if the Department does not wish to settle or denies liability "rather than waiting the six (6) month period under Florida Statute 768.28." Shenkman's letter was forwarded to the Department of Insurance, who advised Shenkman by letter that his "letters of notice" had been received....

...The Department's letter states further that "[u]pon receipt of this claim, this office is conducting a review an [sic] evaluation of this incident. Upon completion of our review, we shall advise as to our position." Another letter to Shenkman from the Department followed, requesting information pursuant to sections 768.28(6)(c) and (d)....

...At that point, a lawsuit had not been filed on Curry's behalf. Curry subsequently retained her current lawyer and filed a malpractice suit against appellants in Sarasota County Circuit Court. Curry's malpractice action claims that appellants failed to provide the notice required by section 768.28(6)(a) to either the Department or Levy County, thereby foreclosing her opportunity to sue those governmental entities....

...iming each is guilty of negligence. Appellants moved to intervene in this action, and the trial court entered an order granting the motion allowing appellants to intervene on the limited issues of whether proper jurisdictional notice was given under section 768.28(6) and whether the actions of the Department had waived this notice requirement....

...Appellants filed an intervenor complaint in the instant action alleging that the correspondence between the Department of Insurance and Shenkman estopped the state from contending that proper jurisdictional notice was not given and that the state waived the notice provisions of section 768.28(6)(a)....

...by the Department and Levy County and dismissed Curry's suit against both "without leave to amend." Appellants have appealed only the order dismissing the suit against the Department. Curry did not appeal. [1] *1213 Notice and Waiver of Notice under Section 768.28(6)(a) Section 768.28(6)(a), Florida Statutes (1991), provides in pertinent part: An action may not be instituted on a claim against the State or one of its agencies or subdivisions unless the Claimant presents the claim in writing to the appropriate agency, and also, ......

...o alternative but to dismiss the complaint with prejudice." Levine, 442 So.2d at 213. Although this court has long recognized that "under the certain conditions, the state or its agencies may be deemed to have waived the claim notice requirements of 768.28(6)," Hutchins v....

...necessary or causes such person to act or fail to act to his injury. Id. Although Rabinowitz involved a claim presentation requirement of a municipal charter, we believe its holding is equally applicable to the three-year presentation requirement of section 768.28(6)(a). Thus, if a claimant alleges waiver or estoppel sufficient to comply with Rabinowitz, a suit brought on behalf of such claimant would be able to withstand a motion to dismiss for failure to comply with section 768.28(6)(a)....

...City of Hialeah, 468 So.2d 912, 917 (Fla. 1985). If the act is inherently governmental, there can be no duty owed to individual citizens. Trianon, 468 So.2d at 919-20; Reddish v. Smith, 468 So.2d 929, 932 (Fla. 1985). Additionally, the creation of section 768.28, waiving sovereign immunity in certain circumstances, created no new causes of action against a governmental entity which did not previously exist. Trianon, 468 So.2d at 914; Reddish, 468 So.2d at 932. Therefore, absent a recognized duty of care, the governmental entity is not liable, regardless of whether sovereign immunity attaches or is waived by section 768.28....

...official capacity, and Defendants Sabine and Bowen, individually, for the alleged assault and battery of Plaintiff while in police custody. This claim, attached to the § 1983 action through pendent jurisdiction, is based on state common law. Under § 768.28(9)(a), Florida Statutes, the exclusive remedy for an injury that occurred as a result of the actions or omissions of an officer, employee or agent of the state is an action against the governmental entity, or the head of that entity, in his official capacity. Therefore, Plaintiff's allegations against Defendant Charles Wells, in his official capacity, clearly state a cause of action against Manatee County, pursuant to the statutory waiver of sovereign immunity in Section 768.28, Florida Statutes (1991). However, under section 768.28(9)(a), an officer, employee or agent of the state may not be held personally liable, or named as a party defendant, in an action for injury or damage resulting from an act undertaken in the scope of employment, unless that action was u...

...ations against Defendant Charles Wells. The facts as alleged by Plaintiff indicate that the claims against Defendant Charles Wells arose from the same activity that is the basis for the allegations against Sabine and Bowen. Florida law dictates that § 768.28(9)(a) may act as a bar to governmental liability for the actions of employees which are undertaken in bad faith, with malicious purpose, or with wanton and willful disregard of human rights....

...Should the trier of fact determine that the actions undertaken by Sabine and Bowen were in bad faith, with malicious purpose or with wanton and willful disregard for human rights, the claims against Defendant Charles Wells in his official capacity would be barred under § 768.28(9)(a)....

...at 340. Because Thomas' complaint was dismissed on the ground of sovereign immunity, we hold the trial court erred. We do not reach the City's arguments regarding defects in the service of process and failure to comply with the notice requirement of section 768.28, Florida Statutes (1991)....

...manner described by section 324.031, Florida Statutes (1979), [1] renders the City uninsured and entitles him to obtain uninsured motorist benefits from his insurer. Travelers responds that the legislature effectively overruled Johns when it amended section 768.28, Florida Statutes (1977), to permit municipalities to become self-insured, Ch. 77-86, Laws of Fla., and thus, the City is not uninsured. Section 768.28(13), Florida Statutes (1979), [2] authorizes municipalities to obtain any of four types of tort liability coverage: (a) self-insurance, (b) risk management program, (c) liability insurance, or (d) any combination of the stated methods. The City chose to be self-insured and maintains coverage through its Risk Management Department. Thus, under section 768.28(13), the City qualifies as a self-insurer against tort liability....

...lity. The certificate is not the sole means of demonstrating self-insurance because section 324.031 does not supersede other statutorily authorized methods of proving financial responsibility. Section 324.031 should be considered in conjunction with section 768.28(13) in keeping with the accepted principle that courts should construe statutes governing the same general field as in harmony....

...3d DCA 1985), review denied, 482 So.2d 348 (Fla. 1986); City of Coral Gables v. Board of Pub. Instruction of Dade County, 313 So.2d 92 (Fla. 3d DCA 1975), cert. denied, 330 So.2d 14 (Fla. 1976). The record affords ample proof that the City is self-insured pursuant to section 768.28(13), and consequently, Gabriel is not entitled to obtain uninsured motorist benefits....

...in s. 324.021(7), or (3) Furnishing a certificate of the department showing a deposit of cash or securities in accordance with s. 324.161, or (4) Furnishing a certificate of self-insurance issued by the department in accordance with s. 324.171. [2] Section 768.28(13), Florida Statutes (1979), provides: (13) The state and its agencies and subdivisions are authorized to be self-insured, to enter into risk management programs, or to purchase liability insurance for whatever coverage they may choos...

...e denial of their motion for prejudgment interest. We first address the one issue requiring remand. As correctly pointed out by DCSB, the trial court erred in including the language "for which sum let execution issue" in its final award. Pursuant to Section 768.28(5), Florida Statutes (1995): Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $100,000 or any claim or judgment, or portions therefor, which, whe...

...judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $200,000. DCSB is a political subdivision of the State of Florida, and thus its liability is limited by the statutory cap. Section 768.28(5) authorizes the rendition of a judgment in excess of the maximum liability where that portion exceeding the cap is reported to the Legislature and "only by further act of the Legislature." See § 768.28(5), Fla.Stat....

...ave had in the trial court. There is no basis for Three Kings' equitable subrogation claim. The final judgment cannot be affirmed on that theory. IV. I concur that the School Board is protected by the statutory sovereign immunity cap set forth in subsection 768.28(5), Florida Statutes (1989)....

...at the Florida State Prison at Raiford. Spooner alleged that a violation of Section 1983 occurred as a result of the Department's negligent failure to properly supervise and control the prison inmates. The issue raised below and on appeal is whether Section 768.28, Florida Statutes (1983), Florida's waiver of immunity statute, should be construed to encompass Section 1983 civil rights actions so as to waive the Department's immunity, otherwise available under the Eleventh Amendment and state common law principles, from such actions....

...Inasmuch as the subject issue involves the proper interpretation of state law which has not been addressed by the Florida Supreme Court, and since we view the issue as presenting a question of great public importance, we certify the following pursuant to Fla.R.App.P. 9.030(a)(2)(A)(v): Has the State of Florida, pursuant to Section 768.28, Florida Statutes (1983), waived its Eleventh Amendment and state common law immunity and consented to suits against the State and its agencies under 42 U.S.C....

...scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property (emphasis added). Fla. Stat. § 768.28 (9)(a). In Willingham v. City of Orlando, 929 So.2d 43, 47-48 (Fla. 5th DCA 2006), the Fifth District Court of Appeal of Florida held that, under § 768.28(9)(a), an Orlando police officer is not liable in tort and is entitled to summary judgment against a plaintiffs state tort law claims, unless a plaintiff can prove that the officer’s conduct was in bad faith, exhibited malicious purpose, or exhibited wanton and willful disregard of human rights, safety, or property. In the context of § 768.28(9)(a), conduct committed in bad faith has been characterized as conduct acted out with actual malice. Parker v. State Bd. of Regents ex rel. Florida State Univ., 724 So.2d 163, 167 (Fla. 1st DCA 1998). Conduct meeting the “wanton and willful” standard in the context of § 768.28(9)(a), must be “worse than gross negligence,” Sierra v....

...may have been decided by Defendant Williams without the input of any superior officer, could support a finding of willful/purposeful and wanton conduct on the part of the officer. Thus, Defendant Williams is not entitled to immunity under Fla. Stat. § 768.28 (9)(a), and her Motion for Summary Judgment is DENIED....

...1 ¶¶ 278-79) Plaintiffs further contend that “Defendants acted recklessly and with complete indifference to Plaintiffs’ right of privacy, and emotional and physical well-being.” (Id., ¶ 280) In response, Defendant Williams maintains that Fla. Stat. § 768.28 (9) shields her from Plaintiffs’ state law claims and that her “physical contact with the Plaintiffs [did] not rise to a level that would preclude her from enjoying the protection of this statutory grant of immunity.” (Dkt....

...Atty., Pasco County, New Port Richey, for appellee Pasco County Comn. PER CURIAM. Appellant argues the trial court erred in dismissing his suit against appellees with prejudice. His complaint was dismissed because he failed to allege compliance with the notice provisions of section 768.28(6), Florida Statutes (1983)....

...By the time the dismissal was entered, the limitations period for providing such notice had expired. Thus, dismissal with prejudice was proper since appellant was unable to furnish the required notice and amend his complaint to allege compliance with section 768.28(6)....

...The City answered the complaint and affirmatively alleged that it was not a proper class action, that some claims would be barred by the statute of limitations, that some potential class members had already released their claims, and that the complaint was subject to sovereign immunity and the requirements of section 768.28, Florida Statutes (2003)....

...McAfee's complaint does not contain multiple counts and appears to request monetary relief based only upon a theory of unjust enrichment. If sovereign immunity is determined to apply to this theory, Mr. McAfee may not be an adequate representative because he apparently has not complied with the notice provisions of section 768.28, Florida Statutes (2003)....

...); 3.) a § 1983 claim must specify the Constitutional rights that the defendants violated; and 4.) plaintiffs must adequately plead the conduct that violates § 1983. The Halifax defendants also claim immunity from punitive damages under Fla. Stat. § 768.28(5). [2] Citing Fla. Stat. § 768.28(9)(a), Dr....

...aiver of Eleventh Amendment immunity from suit in federal court. Florida Dept. of Health and Rehabilitative Services. v. Florida Nursing Home Ass'n, 450 U.S. 147, 150, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981); Tuveson, 734 F.2d at 734. Florida Statutes § 768.28 expressly waives Florida's sovereign immunity from tort actions brought in its own courts, with certain limitations. The Eleventh Circuit has held that § 768.28 does not waive Florida's Eleventh Amendment immunity. See Hamm v. Powell, 874 F.2d 766, 770 n. 3 (11th Cir.1989); Gamble, 779 F.2d 1509. To the contrary, subsection 768.28(16) declares the legislature's intention that Florida statutes not be construed to waive Eleventh Amendment immunity unless they explicitly waive immunity from suit in federal court....

...Hospice) and Halifax Community Healthcare Systems, Inc. (whose relationship, if any, to Hospice or any of the other Halifax defendants is not described in the complaint). 4. Dr. Nelson's Immunity Defenses Dr. Nelson asserts immunity under Fla. Stat. § 768.28(9)(a), absolute immunity and qualified immunity from suit. The Court discusses these in turn. i. Florida Statutory Immunity Fla. Stat. § Fla. Stat. § 768.28(9)(a) provides that: No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, eve...

...committed while acting outside the course and scope of her or his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Dr. Nelson's invocation of § 768.28(9)(a) misses the mark....

...We have for consideration two cases, which we have consolidated sua sponte for purposes of opinion only. Case No. 87-2112 involves a non-final appeal from two orders. The first order, dated July 15, 1987, denies a motion to determine applicability of section 768.28(5), Florida Statutes, providing a statutory cap to a judgment entered against a former sheriff but now being applied to Nick Navarro, as successor and present Sheriff of Broward County....

...sheriff and ordering him to pay "a penalty equal to 12% per annum on the $250,000 if the judgment is not satisfied by August 7, 1987." This precipitated a motion by the sheriff asking the circuit court to determine that the statutory cap provided in section 768.28(5), Florida Statutes (Supp....

...McCoy voluntarily dismissed her action under chapter 760, Florida Statutes (2003), the Florida Civil Rights Act, and section 440.205, Florida Statutes (2003), in order to comply with Pinellas County's demand that she abide by the notice provisions of section 768.28, Florida Statutes (2003)....

...McCoy's chapter 760 claim under the administrative procedures for that chapter, the County moved to dismiss the lawsuit demanding that Ms. McCoy also comply with the notice requirements applicable to tort claims under the waiver of sovereign immunity in section 768.28(6), which requires an aggrieved party to present its claim in writing to the appropriate state agency and the Department of Financial Services. Initially, Ms. McCoy took the position that her presuit notifications satisfied section 768.28(6), but ultimately she decided to take a voluntary dismissal, provide the statutory notice, and refile her lawsuit. Although the order on appeal was entered in this first lawsuit, the parties agree that the lawsuit was refiled after Pinellas County did not settle within the claims period provided by section 768.28(6)(d)....

...Its order awarded the County attorneys' fees in the amount of $4400. Ms. McCoy appeals that order. Ironically, if Ms. McCoy had simply held to her initial position about notification, she would have been correct. During the pendency of this appeal, the supreme court held that the notice provisions of section 768.28 do not apply in the context of a claim under chapter 760. See Maggio v. Fla. Dep't of Labor & Employment Sec., 899 So.2d 1074 (Fla.2005). Under Maggio, there was no need to dismiss this lawsuit. Admittedly, the case law does require that a notice under section 768.28 must be submitted in order to pursue a claim under section 440.205....

...trampoline and that Talmadge had little experience on the equipment and was therefore unprepared to safely perform the acrobatics demanded by Walters. Walters filed a motion to dismiss himself as a defendant in the lawsuit on the ground that, under Section 768.28(9), Florida Statutes (1975), no cause of action exists against him. The motion to dismiss was granted and the propriety of the granting of this motion is the sole issue on appeal. Section 768.28(9), Florida Statutes (1975), does not clearly provide that no cause of action may be sustained against an employee of the Board, nor does it clearly provide that an individual employee is immune from suit as a result of injuries sustained due to his negligence....

...involved in the accident is an "uninsured motor vehicle" under section 627.727(3)(b). We now turn to the issue of whether appellees are "legally entitled to recover" any funds in addition to those already collected from the school board tortfeasor. Section 768.28, Florida Statutes (1987), provides that the state, its agencies and subdivisions waive sovereign immunity for liability for torts up to the sum of $200,000 for all claims and judgments arising out of one incident or occurrence. Section 768.28 further provides that the amount of a judgment in excess of $200,000 may be reported to the legislature and may be paid in part or in whole only by further act of the legislature....

...ubdivision may agree to settle a claim made or a judgment rendered against it within the limits of insurance coverage. However, this agreement shall not be deemed to have waived any defense of sovereign immunity in excess of $200,000 per occurrence. § 768.28, Fla....

...ol board's defense of sovereign immunity. Because the school board paid appellees its liability limits of $325,000, Michigan Millers argues that appellees are not "legally entitled to recover" any more funds because of the statutory cap set forth in section 768.28....

...Appellees argue that the case sub judice does not involve an absolute immunity. Appellees can bring an action against the underinsured school board tortfeasor and reduce their damages to judgment. If the amount of the judgment is more than appellees are able to collect under section 768.28, then appellees are permitted to report the deficiency to the state legislature and may be paid by further act of the legislature. Appellees argue that because section 768.28 provides the possibility of obtaining additional funds through the legislature, the section does not really put a definitive "cap" on the school board's liability....

...Other statutes reveal that the Legislature has not only authorized the Department to engage in contracts for health services, but also has taken steps to facilitate such arrangements. See, e.g., § 945.025(4), Fla. Stat. (2012) (exempting certain health-services contracts from competitive bidding); § 768.28(10)(a), Fla....

...They further facilitate, and arguably encourage, these arrangements by exempting certain health services contracts from competitive-bidding requirements and extending sovereign immunity to providers and vendors who provide contracted healthcare services to inmates. See §§ 945.025(4), 768.28(10)(a)....

...He sought compensatory and punitive damages, declaratory relief, and injunctive relief. The trial court dismissed the amended complaint without prejudice, because Hollingsworth had not exhausted available administrative remedies. Hollingsworth contends on appeal that he brought this action pursuant to section 768.28(9)(a), Florida Statutes (1997), and nothing in that statute required him to exhaust administrative remedies before filing suit. On the contrary, section 768.28(9)(a) does not provide a cause of action in tort, but simply states the requirements for governmental waiver of sovereign immunity....

...MEI states that it never would have entered into the contract if it had known that the Marlins and Viera Company would demand architectural changes to the stadium project. The legislature has waived sovereign immunity in tort for personal injury, wrongful death, and injury or loss of property. See § 768.28, Fla. Stat. (1995). Fraud in the inducement causing only economic loss does not fit within any of those categories of injury or loss enumerated in the statute. Section 768.28 states that sovereign immunity for liability in tort is waived, but only to the extent specified in the statute....