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Sovereign Immunity and the Power of the Government

Sovereign Immunity and the Power of the Government

“The King can do no wrong.”  That is the thinking behind the concept of Sovereign Immunity and how it applies to the Government in Florida.  This entry will focus on Sovereign Immunity as it applies to people who are injured due to the negligence of the Government.  Generally speaking, the State of Florida cannot be sued for its wrongdoing.  For limited circumstances, the State has waived Sovereign Immunity for its own negligence if it injures somebody and that waiver can be found at Fla. Stat. 768.28.

The law states that if the government injuries someone due to its negligence, it will be responsible for damages up to $200,000.00 per person and $300,000.00 per incident.  Think of the damage limits as if it were policy limits on an insurance policy.  Obviously, many injuries caused by the government’s negligence would be sufficiently covered by the limits.  However, issues arise if the government is negligent and causes a catastrophic injury.

If damages from an injury exceed the above mentioned limits, a claimant must receive a final judgment pursuant to a verdict in order to collect the full amount of the damages.  Once the judgment is obtained, the statute requires the claimant obtain a “claims bill” from the legislature in order to receive the money proceeds in excess of the limits mentioned above.

The “claims bill” process is extremely difficult and complex.  The claimant must find a state legislator to sponsor a bill, introduce it to committee, and the bill must proceed through the State Legislature similar to any other new law.  If the claims bill passes both the Florida House and Senate, it must then be signed into law by the Governor.

The process is extremely time consuming and requires thousands of attorney hours in order to procure.  However, the biggest problem with attempting to obtain a large verdict against the government is that the government can dictate exactly how much the attorney for the claimant receives.

In   Searcy Denney ScarolaBarnhart & Shipley v. State, 40 Fla. Law Weekly D1647 (Fla. 4thDist. Ct. App. July 15, 2015), the claimant’s attorney represented a family whose baby suffered a catastrophic brain injury as the result of the negligence of a government hospital.  The jury returned a verdict against the government for approximately 30 million dollars.  A Claims Bill was introduced to the legislature and a claims bill was eventually passed authorizing the state to make a payment of 10 million dollars to the family for their damages.

Based on the percentage of recovery, the claimants law firm should have been entitled to recover 2.5 million dollars in fees in addition to reimbursement for the nearly $500,000.00 advanced by the law firm to pursue the claim.  However, the claims bill specifically limited the total amount payable to the claimant’s law firm to be $100,000.00.

The law firm presented evidence that over the course of several years, it had expended approximately 7000 attorney hours and approximately $500,000.00 in advanced litigation expenses.  The Court specifically ruled that the legislature had the authority to limit the attorney’s fees.  So, the law firm that had put in the work and earned over 2.5 million in attorney’s fees and spent $500,000.00 was only compensated $100,000.00 for the entirety of its work.

The effect of this ruling will likely be that in the future, when the government causes catastrophic injuries based on its negligence, it will be very difficult for the injured party to find an attorney willing to take the case because of the time and money that will need to be spent and the great likelihood that the State will significantly limit the law firm’s compensation.  This is an example of how the Government can write and enforce laws to keep injured persons from being represented by competent counsel.

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