DeBolt v. Department of Health and Rehabilitative Services, AL-19

• Decision Date: 14 February 1983
• Docket Number: No. AL-19,AL-19
• Citation: 427 So.2d 221
• Parties: David DeBOLT, Individually, and as father and next friend of Douglas DeBolt, a minor, Appellant, v. The DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 221

427 So.2d 221

David DeBOLT, Individually, and as father and next friend of Douglas DeBolt, a minor, Appellant, v.The DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, State of Florida, Appellee.

No. AL-19.

District Court of Appeal of Florida First District.

Feb. 14, 1983.

Rehearing Denied March 18, 1983.

Stan Trappe, Brian A. Dusseault and Pamela Dru Sutton, Panama City, for appellant.

John A. Bussian, III of Isler, Brown, Smoak, Harrison, Nabors & Bussian, Panama City, for appellee.

ERVIN, Judge.

In this appeal we are asked to determine whether the trial court erred in granting summary judgment in favor of appellee, the Florida Department of Health and Rehabilitative Services(HRS), thus precluding appellants, Douglas and David DeBolt, from proceeding against HRS on a negligence theory.Appellants contend that the trial court erred, first, in finding that HRS enjoys complete tort immunity by operation of Section 402.34, Florida Statutes(1981), and, second, in concluding that no genuine issues of material fact remain in dispute.We agree with appellants on both points and reverse the summary judgment entered below.

In 1978, Douglas DeBolt, then a minor, was placed under the temporary custody of HRS after being accused of committing a delinquent act.¹Determining that some form of detention was warranted, DeBolt was placed by HRS in the custody of George Martin, a Panama City policeman, whose home had been designated an "attention home"² by virtue of a contract entered into by HRS, Martin, and his wife on June 23, 1978.³While DeBolt was in the Martins' custody at their home, he was shot in the leg with a .22 caliber rifle by the Martins' three-and-a-half year old son.⁴

A complaint seeking damages on behalf of the minor, Douglas DeBolt, and his father, David DeBolt, alleging negligence on the part of HRS and its agents or employees, the Martins, followed.HRS subsequently moved for summary judgment or judgment on the pleadings on the grounds that: (1) the selection of "attention home" parents was a discretionary, planning level decision for which HRS is immune from tort liability; ⁵(2) HRS cannot be vicariously liable for the negligence of "attention home" parents, ⁶ and (3) HRS is completely immune from tort liability by operation of section 402.34, Florida Statutes.The record shows that the trial court based its decision to grant summary judgment on the second and third grounds raised by HRS, and on that court's conclusion that no material issues remained in dispute.

Appellants first contend that HRS does not enjoy complete tort immunity under Section 402.34, Florida Statutes, which provides:

The department is a body corporate and shall adopt and have a corporate seal.It shall have the power to contract and be contracted with, to sue and be sued in actions in ex contractu but not in torts, and to have and to possess corporate powers for all purposes necessary to administer this chapter.The department shall have the power to accept payment for services rendered pursuant to rules and regulations of the department.

(e.s.)The issue of HRS' sovereign immunity is instead governed, they argue, by Section 768.28, Florida Statutes(1981), which in general terms provides that the State of Florida has "waive[d] sovereign immunity for liability for torts" for itself as well as for "its agencies or subdivisions."They further contend that the court's construction of section 402.34 as authorizing HRS to be barred from an action in tort, when neither the state nor its subdivisions are so exempt, constitutes a denial to them of their rights to equal protection of the laws and access to the courts.HRS responds that the legislature clearly intended that it be excluded from the state's general waiver of sovereign immunity and that section 402.34, being a statute specifically relating to its immunity from tort liability must prevail over section 768.28, a statute limiting sovereign immunity only in general terms.We agree with appellants' position on the non-constitutional grounds advanced and reject HRS' claim of complete immunity from tort liability.⁷

Where, as in this case, two statutes are found to be in conflict, rules of statutory construction must be applied to reconcile, if possible, the conflict.We are aided in this task by the maxim that "legislative intent is the pole star by which we must be guided in interpreting the provisions of a law."Parker v. State, 406 So.2d 1089, 1092(Fla.1981).In our attempt to discern the legislative intent behind the conflicting statutes, we must consider "the history of the Act, the evil to be corrected, the purpose of the enactment, and the law then in existence bearing on the same subject."State Board of Accountancy v. Webb, 51 So.2d 296, 299(Fla.1951).A review of the legislative history of section 402.34, as well as the wording of the statute, convinces us that the legislature's purpose was not to grant unlimited immunity to HRS from actions in tort but rather to provide the then newly created department with the "corporate" powers essential to its functioning.⁸Our interpretation of section 402.34 is consistent with our recent recognition that section 402.34 does nothing more than define HRS' capacity to sue or be sued.SeeBergen Brunswig Corporation v. State, Department of Health and Rehabilitative Services, 415 So.2d 765(Fla. 1st DCA1982).⁹The lack of a clear legislative intent is certainly not evident from a reading of section 768.28, which exposes the state and its subdivisions to tort claims "in cases where a private person would be liable."SeeJetton v. Jacksonville Electric Authority, 399 So.2d 396, 397(Fla. 1st DCA1981).¹⁰The "evil" to be corrected by section 768.28's sweeping changes was unquestionably the prior system of absolute sovereign immunity which denied, to anyone having the misfortune of being injured due to the negligence of a governmental entity or its agents, the right to recover damages for such injuries in court.The obvious inequities of the old system led the Florida Supreme Court to observe that

[i]n our view, section 768.28, rather than denying equal protection, has in fact brought fairness, equality, and consistency to an area of the law which for over one hundred years has been beset with contradiction, inconsistency, and confusion....Clearly, the even-handed application of immunity under section 768.28 furthers equal protection of the law under our constitution rather than denies it.

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It is our decision that, in this state, sovereign immunity should apply equally to all constitutionally authorized governmental entities and not in a disparate manner.

Cauley v. City of Jacksonville, 403 So.2d 379, 385, 387(Fla.1981)(e.s.).

In considering the different legislative purposes behind both statutes, it is next our task to reconcile their conflicts, if possible.We are urged by appellants to find section 402.34 unconstitutional on the grounds of equal protection and access to the courts.We will decline to do so if the relief requested may be granted on nonconstitutional grounds.See, Curless v. County of Clay, 395 So.2d 255(Fla. 1st DCA1981).Because we conclude that the conflict between sections 768.28and402.34 may be resolved by application of the rule of "implied repeal,"we do not reach the constitutional issues presented by appellants.The interpretative rule of "implied repeal," generally stated, means that a

general statute covering an entire subject-matter, and manifestly designed to embrace all the regulations of the subject, may supersede a former statute covering a portion only of the subject, when such is the manifest intent, even though the two are not wholly repugnant.

Sparkman v. State ex rel. Bank of Ybor City, 71 Fla. 210, 71 So. 34, 39(1916)(e.s.).Mindful that a "repeal by implication is not favored,"State v. Dunmann, 427 So.2d 166, 168(Fla.1983), we nevertheless conclude that the implied repeal rule is particularly applicable in this case in which a specific statute(section 402.34), purportedly dealing with the sovereign immunity of a particular agency, conflicts with a general statute(section 768.28) that expresses the legislative intent to revise completely the law of Florida regarding sovereign immunity.Our conclusion is particularly influenced by the Florida Supreme Court's decision in Oldham v. Rooks, 361 So.2d 140(Fla.1978), wherein the rule of implied repeal was applied to resolve a similar statutory conflict.At issue in Oldham were two statutes, one specific and one general, relating to standards of conduct for public officials and employees.That court refused, as do we, to reach the constitutional issues presented, but instead determined that the more specific statute had been "repealed by implication" by the enactment of Chapter 112, Florida Statutes, which was intended to "deal pervasively with the subject matter of conflict between the official duties and private interests of public officials and employees."Id. at 142.Recognizing the general presumption that the legislature, in enacting a statute, is aware of prior statutes on the same subject, it was nevertheless found that

when the legislature makes a complete revision of a subject it serves as an implied repeal of earlier acts dealing with the same subject unless an intent to the contrary is shown.Orange City Water Co. v. Town of Orange City, 255 So.2d 257(Fla.1971);State v. Newell, 85 So.2d 124(Fla.1956);Brevard County v. Board of Public Instruction of Brevard County, 159 Fla. 869, 33 So.2d 54(1947).

Id. at 143.The continuing vitality of the Oldham decision was evidenced by the court's recent opinion in State v. Dunmann, which relied on Oldham in finding that Florida's Anti-Fencing Act, Chapter 77-342, Laws of Florida, which was intended to revise completely the law concerning a broad range of criminal activities, had impliedly repealed section 812.041, the so-called "joy-r...