Is There An Exception to Sovereign Immunity Caps?
For Florida Personal Injury Attorneys, it is well known that the statutory caps for personal injury cases against government entities is $200,000/$300,000. Fla. Stat. § 768.28(5). Anything more must be ratified by the State Legislature utilizing the claims bill process. Michigan Millers Mut. Ins. Co. v. Bourke, 607 So.2d 418 (Fla. 1992). Most attorneys and law firms have no interest in going through the claims bill process as it is notoriously hard to navigate successfully.
However, if the government entity has obtained insurance that may cover any excess amount over the $200,000/$300,000 cap, that insurance policy may be paid out as an exception to the cap. Gerard v. Department of Transp., 472 So.2d 1170 (Fla. 1985); Paushter v. South Broward Hosp. Dist., 664 So.2d 1035 (Fla. 4th DCA 1995). In such cases, the case law has clearly established an exception which allows the injured party to obtain up to the limits of the insurance policy obtained by the responsible government entity which was in effect at the time of the injury without the need for the claims bill process. The reasoning behind this carve-out is that taxpayers paid for the insurance, they should be able to utilize it.
In Taylor, the Florida Supreme Court held that self-insurance does not equate with commercial liability insurance coverage for purposes of determining whether the statutory limits of damages may be exceeded by the purchase of liability insurance. Hillsborough County Hosp. and Welfare Bd. V. Taylor, 546 So.2d 1055 (Fla. 1989). Any governmental entity that is self-insured and purchases liability insurance coverage in excess of the statutory limits to provide additional protection to the self-insured governmental entity, then the injured party may be entitled to collect damages above the statutory limits up to the limits of the insurance coverage. Id.
Now, the Taylor decision was premised on the application of the provisions of Fla. Stat. § 286.28, which has since been repealed. That statute was interpreted by the Taylor court as requiring a contract of insurance supported by consideration with an insurer. Furthermore, Fla. Stat. § 768.28(16)(a) specifically provides that, “[t]he 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 choose, or to have any combination thereof, in anticipation of any claim, judgment, and claims bill which they may be liable to pay pursuant to this section.” The Taylor decision should be read to mean that self-insurance does not equate with a commercial insurance policy in the sense that self-insurers do not have the same duty to defend as insurance companies have nor do they have the same requirement to offer uninsured motorist coverage. Diversified Services, Inc. v. Avila, 606 So.2d 364 (Fla. 1992); Budget Rent A Care Systems, Inc. V. Taylor, 626 So.2d 976 (Fla. 4th DCA 1993).