Beard v. Hambrick

• Decision Date: 05 March 1981
• Docket Number: No. 56071,56071
• Parties: Malcolm E. BEARD, as Sheriff of Hillsborough County, Florida, John R. Clamon, and R. L. Rodriguez, Petitioners, v. Patsy T. HAMBRICK, as personal representative of Ronald Hambrick, deceased, for the benefit of Patsy T. Hambrick, Lori Ann Hambrick, a minor, Rhonda Jean Hambrick, a minor, Ronald Hambrick, Jr., a minor, Mark Elliott Hambrick, a minor, Wendy Lynn Hambrick, a minor, and the Estate of Ronald Hambrick, deceased, Respondent.
• Court: Florida Supreme Court

Page 708

396 So.2d 708

Malcolm E. BEARD, as Sheriff of Hillsborough County, Florida, John R. Clamon, and R. L. Rodriguez, Petitioners, v. Patsy T. HAMBRICK, as personal representative of Ronald Hambrick, deceased, for the benefit of Patsy T. Hambrick, Lori Ann Hambrick, a minor, Rhonda Jean Hambrick, a minor, Ronald Hambrick, Jr., a minor, Mark Elliott Hambrick, a minor, Wendy Lynn Hambrick, a minor, and the Estate of Ronald Hambrick, deceased, Respondent.

No. 56071.

Supreme Court of Florida.

March 5, 1981.

Rehearing Denied May 4, 1981.

Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for petitioners.

J. Thomas Wright of Herce & Martinez, Tampa, for respondent.

Julius F. Parker, Jr. of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for Florida Sheriffs Ass'n, amicus 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 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.1974) unless otherwise indicated. We have left open upon remand the issues of the validity and applicability of the new statute upon this case.

The undisputed facts before the trial court reflect the following. The respondent, as personal representative of the estate of Ronald Hambrick, filed a complaint on May 20, 1977, seeking damages from the sheriff, Malcolm Beard, and two of his deputies for alleged negligent omissions which caused Ronald Hambrick's death on May 21, 1975. 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. One month after filing the lawsuit, the respondent attempted to comply with these notice provisions and gave notice to Sheriff Malcolm Beard and to the Commissioner of Insurance. Petitioners, as defendants, filed a motion to dismiss, alleging that because the respondent failed to comply with the notice provisions before filing the complaint, the statute of limitations of two years had run. 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 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. District School Board v. Talmadge, 381 So.2d 698 (Fla.1980); Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979).

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 First District Court of Appeal assumed a sheriff to be such in Department of Health and Rehabilitative Services v. McDougall, 359 So.2d 528 (Fla. 1st DCA), cert. denied, 365 So.2d 711 (Fla.1978). The provisions of the Florida Constitution appear to clearly mandate this answer.

Article VIII, Florida Constitution, entitled Local Government, provides for counties in section 1. That section provides in part as follows:

SECTION 1. Counties.

(a) POLITICAL SUBDIVISIONS. The state shall be divided by law into political subdivisions called counties. Counties may be created, abolished or changed by law, with provision for payment or apportionment of the public debt.

....

(d) COUNTY OFFICERS. There shall be elected by the electors of each county, for terms of four years, a sheriff, a tax collector, a property appraiser, a supervisor of elections, and a clerk of the circuit court; except, when provided by county charter or special law approved by vote of the electors of the county, any county officer may be chosen in another manner therein specified, or any county office may be abolished when all the duties of the office prescribed by general law are transferred to another office. When not otherwise provided by county charter or special law approved by vote of the electors, the clerk of the circuit court shall be ex officio clerk of the board of county commissioners, auditor, recorder and custodian of all county funds.

(e) COMMISSIONERS. Except when otherwise provided by county charter, the governing body of each county shall be a board of county commissioners composed of five members serving staggered terms of four years. After each decennial census the board of county commissioners shall divide the county into districts of contiguous territory as nearly equal in population as practicable. One commissioner residing in each district shall be elected by the electors of the county. (Emphasis supplied.)

In our opinion, there is no reasonable way to construe article VIII, section 1, other than to include sheriffs as well as other named county officers as part of a county and, as such, within the definition of a political subdivision as used in subsection (a) of the section. To hold otherwise creates an artificial governmental entity for sheriffs and other named county officials that was not intended by either the legislature or the framers of our constitution. The court below relied on Johnson v. Wilson, 336 So.2d 651, 652 (Fla. 1st DCA 1976), which found that a sheriff "is not a political subdivision of the state." To the extent that this conflicts with our holding that a 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...