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| Wooten Kimbrough Damaso & Dennis, P.A.

In the Florida, the Legislature enacted a waiver of sovereign immunity through Florida Statute § 768.28, allowing the state government, including counties, municipalities, and other agencies to be sued for various causes of action, including negligence. However, as a compromise for allowing lawsuits, the Legislature placed a cap on the amount of damages the entity could be liable for. Currently that cap is $200,000 per person, up to $300,000 per the same incident or occurrence.

This statute was at the heart of debate when the Florida Supreme Court heard the case of Enock Plancher v. UCF Athletics Association, Inc., a few months ago. Their decision was released on May 28, 2015.

Ereck Plancher

In 2008, Ereck Plancher passed away during football practice at the University of Central Florida (“UCF”). His parents filed a negligence lawsuit against UCF and the UCF Athletics Association (“UCFAA”), claiming they were negligence in supervising and training their staff, which was the cause of Ereck’s passing. Prior to the jury trial, UCFAA filed a motion arguing they were entitled to sovereign immunity under Florida Statute § 768.28, because they argued they were under the control of a government entity. The trial judge denied that motion.

Fast-forward to 2011, a jury in Orange County, Florida, compensated the Plancher family $10 million in damages for the death of Ereck. UCFAA quickly appealed this decision and again argued they were entitled to sovereign immunity, and thus only liable for the statutory cap on damages. The Fifth District Court of Appeals agreed reversing the judgment finding that UCFAA is sufficiently controlled by a state agency and remand for the trial court to enter a judgment of $200,000. This triggered the Plancher family to appeal the decision to the Florida Supreme Court.

Florida Supreme Court
Florida Supreme Court

The Florida Supreme Court began their analysis by stating it is undisputed that UCF meets the definition of a state agency under Florida Statute, § 768.28. They then take it a step further and opine that since UCF maintains control over the Athletic Association by controlling its board of directors, approving amendments to bylaws, budgeting, and UCF athletic director runs the day-to-day operations, that “UCFAA is primarily acting as an instrumentality of UCF, it is a state agency or subdivision entitled to limited sovereign immunity under § 768.28.” However, the Florida Supreme Court reversed the Fifth District Court of Appeals decision on the amount of the verdict to be entered, directing that the actual jury verdict award of $10 million be entered and recorded.

What this means is that the trial court will record a $10 million verdict in favor of the Plancher family, but UCFAA is only liable to pay $200,000 of those damages. This has many people wondering how the Plancher family get the remaining $9,800,000.

Florida Statute, § 768.28 allows for injured parties to seek recovery of the damages above the statutory cap by action through the Florida Legislature. This process is known as a “claims bill.” Effectively, the Plancher family must seek a Florida legislator to sponsor and present a bill asking for the excess damages above the cap to be awarded. However, these bills are rarely passed by the Florida Legislature and even incredibly difficult to collect. One of the most active sessions of claims bills was in 2012, when 11 claims bills were approved totalling almost $40 million. It will be interesting to see if the next legislative session the legislators are presented with a claims bill for the Plancher family and whether it gets signed.

This decision also raised the question as to the statutory cap on damages that governmental entities have in wrongful death cases. Should the Florida legislature create a different statutory cap if it is premised in wrongful death versus a personal injury case. Currently it does not matter the severity of the injury, the cap is $200,000/$300,000. But perhaps carving out an exception to increase the cap in wrongful death cases would more adequately compensate the families of wrongful death victims when the defendant happens to be a state agency or entity.

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