Berek v. Metropolitan Dade County

• Decision Date: 24 March 1981
• Docket Number: No. 80-839,80-839
• Citation: 396 So.2d 756
• Parties: David BEREK et al., Appellants, v. METROPOLITAN DADE COUNTY, etc. et al., Appellees.
• Court: Florida District Court of Appeals

Page 756

396 So.2d 756

David BEREK et al., Appellants, v. METROPOLITAN DADE COUNTY, etc. et al., Appellees.

No. 80-839.

District Court of Appeal of Florida, Third District.

March 24, 1981.

Rehearing Denied May 1, 1981.

Horton, Perse & Ginsberg and Arnold R. Ginsberg; Rentz & Haggard, Miami, for appellants.

Robert A. Ginsberg, County Atty. and Robert L. Blake, Asst. County Atty., for appellees.

Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

A jury returned a verdict in the amount of $85,000 in favor of David Berek and against Metropolitan Dade County. The trial court, pursuant to the limitation fixed by the waiver of sovereign immunity statute, Section 768.28, Florida Statutes (1979), entered judgment against the County for $50,000. Berek then moved the trial court to order the County to pay his costs of litigating the action and interest accrued after judgment. Berek's motion was denied, and this appeal ensured. We affirm.

Our decision turns on the construction to be given to Section 768.28(5), Florida Statutes (1979), which provides, in pertinent part:

"The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period prior to judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $50,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $100,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $50,000 or $100,000, as the case may be, and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature...."

The doctrine of sovereign immunity rests on two public policy considerations: the protection of the public against profligate encroachments on the public treasury, Spangler v. Florida State Turnpike Authority, 106 So.2d 421 (Fla.1958), and the need for the orderly administration of government, which, in the absence of immunity, would be disrupted if the state court be sued at the instance of every citizen, State Road Department v. Tharp, 146 Fla. 745, 1 So.2d 868 (Fla.1941). The enactment in 1973 of Section 768.28(5) was a legislative declaration that the countervailing public policy of allowing citizens injured by the tortious action or inaction of the state to sue for the recovery of damages outweighed the state's interest in not being discommoded by litigation. But at the same time the Legislature permitted the state to be sued, it chose to continue to protect against profligate encroachments on the public treasury by limiting the waiver of sovereign immunity to a specified dollar amount, $50,000.

Thus, the policy of protecting the public against profligate encroachment on taxpayers' moneys remains in effect. We therefore must construe Section 768.28(5) in accordance with this policy and employ a rule of strict construction against waiver of immunity beyond this amount. Spangler v. Florida State Turnpike Authority, supra.

Section 768.28(5) contains no specific provision authorizing the payment of costs and interest. Compare, e. g., § 4-160, Conn.Gen.Stat. (1980) (providing that costs may be allowed against the state as the court deems just); § 34-4-16.5-17, Ind. Code Ann. (Burns 1980) (providing that state not liable for interest unless not paid in 180 days); § 143.291.1, N.C.Gen.Stat. (1980) (providing that costs may be taxed against the losing party in the same manner as any civil action). We cannot and will not infer from legislative silence the authority to make such awards.

Berek contends that Section 57.041, Florida Statutes (1979), which authorizes the recovery of costs by a party recovering judgment and contains no exception for a state or county judgment debtor, is specific authority for an award here. We reject this contention. Whatever rights of recovery against the state are given to a claimant must, in our view, affirmatively appear in the waiver of immunity statute and cannot be read into it. See Commonwealth, Department of Transportation, Bureau of Highways v. Lamb, 549 S.W.2d 504 (Ky.1976) (in which the court construed Kentucky's waiver of sovereign immunity statute, which provided that recovery "shall not exceed $50,000 exclusive of interest and costs," to prevent the recovery of interest and costs despite a separate statute providing generally for recovery of interest from the date of judgment). Moreover, while Section 57.041, Florida Statutes, has been held to authorize the assessment of costs against the state and its agencies, see, e. g., Simpson v. Merrill, 234 So.2d 350 (Fla.1970), this holding is inapposite to tort claims against the state which are allowed only within the parameters of the waiver statute.

We decline to follow the holding in State, Board of Regents v. Yant, 360 So.2d 99 (Fla. 1st DCA 1978), that the state is liable for interest and costs beyond the $50,000 limit. ¹ In our view, the court there gave unwarranted meaning to the provision in Section 768.28, which states that "liability shall not include punitive damages or interest for the period prior to judgment." Employing a single rule of statutory construction, expressio unius exclusio alterius, the court in Yant concluded from the specific exclusion of pre-judgment interest that post-judgment interest and costs not specifically excluded, were necessarily included and recoverable. ² Cognizant of the fundamental rule that we must consider the statute as a whole in determining legislative intent, State v. Rodriquez, 365 So.2d 157 (Fla.1978); Wilensky v. Fields, 267 So.2d 1 (Fla.1972), we discern the Legislature's intent to be to stringently circumscribe the authority of courts to make awards against the state. Accordingly, we construe the statute to declare that recovery of punitive damages or pre-judgment interest is always precluded, that is, even where the total recovery is less than $50,000; and that post-judgment interest and costs are recoverable, but only to the extent that the total of the judgment for damages and the post-judgment interest and costs does not exceed $50,000. ³ See Anderson v. State, 26 Ill.Ct.Cl. 119 (1967) (attorneys' fees may be paid from award providing total does not exceed $100,000 statutory limit). In a word, the Legislature has said $50,000, whatever the components may be, is the most the Legislature will permit a court to award a claimant. ⁴ Abiding by this dictate, we affirm.

Affirmed.

SCHWARTZ, Judge (dissenting).

I would follow State, Board of Regents v. Yant, 360 So.2d 99 (Fla. 1st DCA 1978) and State, Department of Transportation v. Knowles, 388 So.2d 1045 (Fla. 2d DCA 1980) ¹ and reverse. In my view, the authorization of the recovery and payment of a $50,000 judgment necessarily carries with it the obligation to pay both the costs required to secure that judgment as mandated in all actions at law by Section 57.041, Florida Statutes (1979), see, Kendall East Estates, Inc. v. Banks, 386 So.2d 1245, 1247 (Fla. 3d DCA 1980), and interest on that amount under Section 55.03, Florida Statutes (1979), which likewise has general application. See, Florida Insurance Guaranty Association v. Gustinger, 390 So.2d 420, 421, n.2 (Fla. 3d DCA 1980). The majority's position on the latter point permits unlimited delay in the satisfaction of a duly entered judgment without any adverse effect whatever upon the judgment debtor. I cannot believe that the legislature intended any such result.

1 To the extent that State, Department of Transportation v. Knowles, 388 So.2d 1045 (Fla. 2d DCA 1980), follows Yant in this regard, we decline to follow it as well. The separate holding in Knowles that a single claimant can recover more than $50,000 where there is more than one claimant and the total claims do not exceed $100,000, involves a construction of a distinct clause of Section 768.28, which we are not asked to construe. See also Department of Health and Rehabilitative Services v. McDougall, 359 So.2d 528 (Fla. 1st DCA 1978). If the separate holding in Knowles is correct, then the cost award there of $741.75, still within this $100,000 limit, would be permissible under our reading of the statute.

2 In our view, the rule of statutory construction employed in Yant eviscerates the manifest legislative intent, see...