Avallone v. Board of County Com'rs of Citrus County

• Citation: 493 So.2d 1002,11 Fla. L. Weekly 312
• Decision Date: 10 July 1986
• Docket Number: No. 67074,67074
• Parties: 11 Fla. L. Weekly 312 Gloria Jean AVALLONE, Petitioner, v. BOARD OF COUNTY COMMISSIONERS OF CITRUS COUNTY, et al., Respondents.
• Court: United States State Supreme Court of Florida

Page 1002

493 So.2d 1002

11 Fla. L. Weekly 312

Gloria Jean AVALLONE, Petitioner, v. BOARD OF COUNTY COMMISSIONERS OF CITRUS COUNTY, et al., Respondents.

No. 67074.

Supreme Court of Florida.

July 10, 1986.

Rehearing Denied Sept. 26, 1986.

Arnold R. Ginsberg of Horton, Perse & Ginsberg and Nance, Cacciatore & Sisserson, Miami, for petitioner.

Daniel A. Amat of Pattillo & McKeever, Ocala, for respondents.

PER CURIAM.

We review Avallone v. Board of County Commissioners, 467 So.2d 826 (Fla. 5th DCA 1985), because of direct and express conflict with Ingraham v. Dade County School Board, 450 So.2d 847 (Fla.1984). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

Petitioner sued respondent for negligence in operating a county-owned park and swimming facility. The trial court ruled that the county could be sued because its purchase of liability insurance under section 286.28, Florida Statutes (1983), constituted a waiver of sovereign immunity to the extent of coverage. However, the trial court granted summary judgment in favor of respondent on the grounds there were no genuine issues of material fact that the actions of another swimmer constituted an intervening cause of petitioner's injuries. On petition for rehearing, the district court held that section 286.28 did not grant a waiver of sovereign immunity for planning level activities. In the court's view, the immunity for planning level activities is absolute and political subdivisions may assert immunity even though they have purchased 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.

Ingraham, 450 So.2d at 849.

Section 286.28 authorizes political subdivisions who, inter alia, "own or lease buildings or properties or perform operations in the state or elsewhere ... to secure and provide ... insurance to cover liability for damages on account of bodily or personal injury or death resulting therefrom to any person ... arising from or in connection with the ... operation of any such buildings, property ... or any other such operations." Section 286.28(1). Section (2) goes on to provide:

(2) In consideration of the premium at which such insurance may be written, it shall be a part of any insurance contract providing said coverage that the insurer shall not be entitled to the benefit of the defense of governmental immunity of any such political subdivisions of the state in any suit instituted against any such political subdivision as herein provided, or in any suit brought against the insurer to enforce collection under such an insurance contract; and that the immunity of said political subdivision against any liability described in subsection (1) as to which such insurance coverage has been provided, and suit in connection therewith, are waived to the extent and only to the extent of such insurance coverage; provided, however, no attempt shall be made in the trial of any action against a political subdivision to suggest the existence of any insurance which covers the whole or in part any judgment or award which may be rendered in favor of the plaintiff, and if a verdict rendered by the jury exceeds the limit of the application insurance, the court shall reduce the amount of said judgment or award to a sum equal to the applicable limit set forth in the policy.

The thrust of section 286.28 is relatively simple. Political subdivisions are authorized to spend public money for the purchase of liability insurance. However, if such insurance is purchased and is within the purview of the statute, the contract shall prohibit the assertion of sovereign immunity to the extent of the coverage, even if it is otherwise a valid defense. 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. Ingraham. 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).

2. When liability insurance is purchased, there will be no assertion of sovereign immunity, up to the coverage limits of the policy, regardless of whether such defense would 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). This waiver is absolute, it is not contingent on the purchase of liability insurance as in section 286.28.

4. 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 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. Accordingly, petitioner urges, she should be permitted to put on evidence that the respondent 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. Petitioner then cites Pickett v. City of Jacksonville, 155 Fla. 439, 20 So.2d 484 (1945), and Ide v. City of St. Cloud, 150 Fla. 806, 8 So.2d 924 (1942), for the proposition that there was an existing common law duty for governments, once they decided to operate a swimming facility, to operate the facility safely just as a private individual would be required to do.

Respondent argues that the decision not to supervise the swimming facility was a planning level or discretionary decision for which there is immunity. In support, respondent cites Sarasota County v. Butler, 476 So.2d 216 (Fla. 2d DCA 1985); Jenkins v. City of Miami Beach, 389 So.2d 1195 (Fla. 3d DCA 1980); and Relyea v. State, 385 So.2d 1378 (Fla. 4th DCA 1980). In each of these cases, the district courts held that the decision not to provide supervisory personnel at government facilities was discretionary and therefore protected by sovereign immunity. 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. City of Jacksonville, 403 So.2d 379 (Fla.1981), abolished the distinction which once existed between municipalities and counties. 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. A government unit has the discretionary authority to operate or not operate swimming facilities and is immune from suit on that discretionary question. However, once the unit decides to operate the swimming facility, it assumes the common law duty to operate the facility safely, just as a private individual is obligated under like circumstances. We disapprove Sarasota County, Jenkins,...