City of Winter Haven v. Allen

• Decision Date: 17 March 1989
• Docket Number: No. 87-3425,87-3425
• Citation: 541 So.2d 128,14 Fla. L. Weekly 702
• Parties: 14 Fla. L. Weekly 702 CITY OF WINTER HAVEN, a Florida municipal corporation, Appellant, v. Elaine ALLEN, as Personal Representative of the Estate of Waymon D. Allen, on behalf of the Estate and the Survivors, Elaine Allen and Clinton Carl Allen, Appellee.
• Court: Florida District Court of Appeals

Page 128

541 So.2d 128

14 Fla. L. Weekly 702

CITY OF WINTER HAVEN, a Florida municipal corporation, Appellant, v. Elaine ALLEN, as Personal Representative of the Estate of Waymon D. Allen, on behalf of the Estate and the Survivors, Elaine Allen and Clinton Carl Allen, Appellee.

No. 87-3425.

District Court of Appeal of Florida,

Second District.

March 17, 1989.

Clifford J. Schott of Schott & Dale, P.A., Lakeland, for appellant.

Robin Gibson of Gibson & Lilly, Lake Wales, for appellee.

Robert A. Butterworth, Atty. Gen., and Louis F. Hubener, Asst. Atty. Gen., Tallahassee, amicus curiae on behalf of the State of Fla.

CAMPBELL, Chief Judge.

Appellant, City of Winter Haven, appeals the final judgment against it awarding appellee, the personal representative of the estate of Waymon Allen, damages in the amount of $600,000. Appellant carried liability insurance in the amount of $1,000,000. The jury found appellant liable for the May 29, 1986 shooting incident in which Polk County Sheriff's Deputy Waymon Allen was struck by a shot that was fired by a Winter Haven police officer during a sheriff's department drug raid in Winter Haven. We find that the trial court correctly held that the case of Avallone v. Board of County Commissioners of Citrus County, 493 So.2d 1002 (Fla.), on remand, 497 So.2d 934 (Fla. 5th DCA 1986), rather than the subsequently enacted chapter 87-134, Laws of Florida (1987), amending section 768.28, Florida Statutes (1985), prevailed as to the collectability of any judgment against appellant. We will discuss that issue in more detail later.

Appellant raises three other issues in this appeal. We find we must reverse and remand for a new trial on the ground that the trial court erred in directing a verdict against appellant on the issue of comparative negligence and by failing to give appellant's requested jury instruction regarding the justifiable use of force standard found in section 776.05, Florida Statutes (1985). We find that appellant's other two issues, the trial court's directed verdict against appellant on its section 440.11, Florida Statutes (1985) affirmative defense of worker's compensation immunity on a "borrowed servant" theory, and the alleged denial of its constitutional right to a fair trial, are both without sufficient merit to warrant our discussion.

The facts reveal that on May 29, 1986, Polk County Sheriff's Deputy Allen obtained a search warrant for one room of a rooming house in Winter Haven. That afternoon, Allen contacted the Winter Haven Police Department and requested one or more of their officers to come to the briefing to be held before the drug raid that evening. The city provided Officers Kirkland and Clouse.

Sergeant Hart was the supervisor for the sheriff's department in charge of the raid and Allen was the case agent. Allen advised the team members that other people could be inside the house. Allen had knowledge that a suspect inside the premises might be armed with a .357 magnum.

As part of the plan, a confidential informant made a drug buy and then informed Hart and Allen that the suspect had a female companion with him. Although the officers had established at the briefing the order in which they would enter the rooming house, upon arriving, Allen entered first without waiting to verify if Officers Kirkland and Clouse were in position at the rear of the house as had apparently been the plan. Kirkland and Clouse had been issued Polk County Sheriff's Department radios so that they could be in communication with Hart. As Allen entered the house, a large black man began to run down the hall toward the rear of the house and was pursued by Sheriff's Officer Davilla.

A later taped statement by Allen indicated that the door to the suspect's room in the house opened almost immediately after Davilla began pursuing the other fleeing man. The suspect waved what appeared to be a long stick at Allen. Allen shot his revolver twice at the suspect. Deputy Russo, who was behind Allen, testified that he did not know what caused Allen to fire his weapon. The suspect retreated back into his room. Hart advanced up the hall toward the suspect's room and asked who was doing the firing. He received no answer, but heard three more shots. Allen later stated that he fired these shots without being in visual contact with the suspect.

Meanwhile, Officers Kirkland and Clouse had approached the house from a side street. They were not yet in their pre-planned position at the rear of the house when they heard the shots fired from inside. They entered the rear of the house to attempt to assist. They saw Hart who, having received no answer to his earlier question and having heard three more shots, thought he was under fire from the suspect or an accomplice and began running, dodging and weaving down the hall toward the rear of the house. Because of Hart's zigzagging down the hall, Kirkland and Clouse believed that he had either been shot or was dodging bullets. Kirkland grabbed Hart and forced him to the ground, and to protect himself and the others, Clouse fired his shotgun once down the hall toward a muzzle flash at the front of the house. This shot apparently struck Allen.

It was first thought by members of the raid team that Allen had been shot by the suspect, and there was a disputed issue of fact at trial as to who shot Allen.

Several months after the raid, Allen returned to work and assumed his duties at the sheriff's department. Less than a year later, on March 15, 1987, Allen was fishing in a boat with a neighbor when he fell backward into the water and died.

Before Allen died, he had filed a personal injury suit based on the shooting. After Allen died, the trial court permitted appellee, Allen's personal representative, to refile his pending personal injury suit as a wrongful death action.

During the subsequent trial on the wrongful death action, both sides presented expert testimony as to Allen's cause of death. The jury, in awarding appellee $600,000 in damages, obviously agreed with appellee's expert that the cause of death was cardiac arrest caused by a brain lesion or bruise resulting from the gunshot wound Allen received when Clouse fired his shotgun down the hall of the house.

Appellee pursued her wrongful death action against appellant on the basis of the waiver of sovereign immunity statute, section 768.28, Florida Statutes (1985). The jury returned its verdict against appellant in the amount of $600,000 in November 1987. Appellant's liability insurance in the amount of $1,000,000, exceeded the maximum exposure limitations of section 768.28. At the time Allen was shot and at the time appellee filed her wrongful death action, the holding of the supreme court in Avallone would have permitted appellee to collect any judgment rendered in her behalf for damages caused by appellant up to the $1,000,000 liability limits of appellant's policy. The Florida Supreme Court held in Avallone 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." Avallone, 493 So.2d at 1004, 1005.

After appellee filed her amended wrongful death action, but prior to trial, the legislature amended paragraph (5) of section 768.28 by enacting chapter 87-134, Laws of Florida, which became law on June 30, 1987. Sections 3 and 5 of Chapter 87-134 contained the following pertinent provisions:

Notwithstanding the limited waiver of sovereign immunity provided herein, the state or an agency or subdivision thereof may agree, within the limits of insurance coverage provided, to settle a claim made or a judgment rendered against it without further action by the Legislature, but the state or agency or subdivision thereof shall not be deemed to have waived any defense of sovereign immunity or to have increased the limits of its liability as a result of its obtaining insurance coverage for tortious acts in excess of the $100,000 or $200,000 waiver provided above.

....

This act shall take effect upon becoming a law and shall apply to all causes of action then pending or thereafter filed, but shall not apply to any cause of action to which a final judgment has been rendered or in which the jury has returned a verdict unless such judgment or verdict has been or shall be reversed.

The obvious intent and apparent effect of the amendment was to abrogate the holding in Avallone and to limit the liability of the state, its agencies or subdivisions, to the maximum of $100,000/$200,000 as provided in section 768.28(5), regardless of whether the state or such agencies or subdivisions carried liability insurance in excess of those amounts.

The trial court, at the request of appellee, ruled that the amendment could not be constitutionally applied to this action against appellant, even though the action was pending as of June 30, 1987, the effective date of the amendment to section 768.28. The trial court held: "Chapter 87-134, Laws of Florida, cannot be retroactively applied to violate Plaintiff's vested rights, in that Plaintiff's cause of action had accrued and the litigation commenced prior to the law's effective date." After rejecting the applicability of section 768.28(5) as amended, the trial court held that the rule established in Avallone would apply to the collectability of any judgment entered against appellant.

We agree with the ruling of the trial court on the basis of the general principle that retroactive legislation is constitutionally invalid if it impairs a vested right. Young v. Altenhaus, 472 So.2d 1152 (Fla.1985). The issue is therefore whether appellee, after suit was filed but prior to a judgment or verdict, had a vested property right to seek to collect by suit and judgment up to $1,000,000 in damages from appellant.

Appellant argues that a vested right is something more than a...