Keck v. Eminisor

• Decision Date: 15 November 2012
• Docket Number: No. SC10–2306.,SC10–2306.
• Citation: 104 So.3d 359
• Parties: Andreas KECK, Petitioner, v. Ashleigh K. EMINISOR, Respondent.
• Court: Florida Supreme Court

104 So.3d 359

Andreas KECK, Petitioner,

v.Ashleigh K. EMINISOR, Respondent.

No. SC10–2306.

Supreme Court of Florida.

Nov. 15, 2012.

Cindy A. Laquidara, General Counsel, Sean Bryan Granat, Assistant General Counsel, Howard Mason Maltz, Deputy General Counsel, City of Jacksonville, Office of General Counsel, Jacksonville, FL, for Petitioner.

Stephen John Pajcic, and Thomas Fitzpatrick Slater of Pajcic & Pajcic, P.A., Jacksonville, FL; and William A. Bald of Dale, Bald, Showalter, Mercier & Green, P.A., Jacksonville, FL, for Respondent.

Sanford Arthur Minkoff, President of the Florida Association of County Attorneys, Tavares, FL, and Herbert William Albert Thiele, and Patrick Todd Kinni, Assistant County Attorneys, Tallahassee, FL; and Pamela Jo Bondi, Attorney General, Louis F. Hubener, III, Chief Deputy Solicitor General, and Diane G. DeWolf, Deputy Solicitor General, Tallahassee, FL, for Amici Curiae.

PER CURIAM.

In this case, we consider whether an employee who claims the benefit of sovereign immunity pursuant to section 768.28(9)(a), Florida Statutes (2005), which entitles that employee not to be held “personally liable in tort or named as a party defendant” for acts within the scope of her or his employment, may obtain interlocutory review of an adverse trial court ruling where the question turns on an issue of law. In Keck v. Eminisor, 46 So.3d 1065 (Fla. 1st DCA 2010), the First District Court of Appeal declined to exercise certiorari review over a trial court's order denying summary judgment based on such a claim of individual immunity pursuant to section 768.28(9)(a). The First District certified the following question as one of great public importance:

Whether review of the denial of a motion for summary judgment, based on a claim of individual immunity under section 768.28(9)(a) without implicating the discretionary functions of public officials, should await the entry of a final judgment in the trial court?

Id. at 1068. We have jurisdiction. Seeart. V, § 3(b)(4), Fla. Const. We rephrase the certified question as follows:

Should review of the denial of a motion for summary judgment based on a claim of individual immunity under section 768.28(9)(a), Florida Statutes, await the entry of a final judgment in the trial court to the extent that the order turns on an issue of law?

For the reasons set forth below, we answer the rephrased question in the negative and quash the First District's decision. Because section 768.28(9)(a) specifies that an employee of the State shall not be “named as a party defendant” in a lawsuit unless the employee acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard, we conclude that Keck should be entitled to interlocutory review in this case, as the resolution of that issue turns on a question of law. In accordance with our approach to the issue of individual immunity in Tucker v. Resha, 648 So.2d 1187, 1189–90 (Fla.1994), we conclude that a claim of individual immunity from suit under section 768.28(9)(a) should be appealable as a non-final order under Florida Rule of Appellate Procedure 9.130, obviating the necessity of determining whether common law certiorari would alternatively be available. We also consider Keck's underlying claim of immunity and hold that Keck is entitled to the individual immunity provided in section 768.28(9)(a).

BACKGROUND

This case arises from a negligence action filed by Ashleigh Eminisor against Andreas Keck, the Jacksonville Transit Authority (JTA), and the Jax Transit Management Corporation (JTM). Specifically, in her complaint, Eminisor alleged that JTA owned a trolley used in mass transit that was operated by Andreas Keck with JTA's consent and that on August 4, 2005, Keck “negligently operated Defendant JTA's motor vehicle so that [it] collided with Plaintiff ASHLEIGH K. EMINISOR, who was a pedestrian crossing the street.” Eminisor sought recovery from Keck, JTM, and JTA for the injuries she sustained from this accident. Each defendant asserted immunity under section 768.28, Florida Statutes (2005). At issue in this case is Keck's claim of individual immunity pursuant to section 768.28(9)(a), which he asserts provides immunity not only from liability for the actions alleged by Eminisor, but also from being named as a defendant in the suit. Keck argues that his immunity derives from his status as an employee of JTM—a corporation acting primarily as an instrumentality of JTA—and, alternatively, as an agent of JTA.

Keck is employed by JTM, a corporation formed for the purpose of acting as an employer for unionized JTA workers. For the first several years of JTA's existence, the daily operation of Jacksonville's mass transit system continued to be controlled by Jacksonville Coach Company (Coach Company), the private corporation that had run the transit system prior to the formation of JTA. Although JTA had assumed responsibility for running the transit system, the Coach Company continued to control the system's day-to-day operations. Seeking to exercise greater control over the day-to-day operations of the transit system in the early- to mid–1980s, JTA created a separate corporate entity through which it could employ the Coach Company's unionized workers—primarily bus drivers and maintenance staff—while allowing them to maintain their private pension plan and right to strike. This corporate entity evolved into JTM, which was incorporated in the early 1990s and entered into a management contract with JTA in August 1992.

Although JTM is a private corporation, it is wholly controlled by and intertwined with JTA. JTM's sole function is to provide bus drivers and maintenance workers for JTA. JTM bus drivers wear JTA uniforms, carry JTA identification cards, drive routes established by JTA in buses provided by JTA, and are directly supervised by JTA employees. JTA provides all of JTM's facilities and pays all of JTM's costs of operations. JTA is the sole shareholder of JTM stock, and JTM does not own any assets. JTM maintains a zero-balance payroll account into which JTA deposits funds to meet JTM's payroll demands each week. JTM's Board of Directors—the Chairman of which is also the Executive Director of JTA—is composed primarily of managerial level JTA employees. Thus, although Keck is an employee of JTM, he works for, is supervised by, and is ultimately paid by JTA.

Based on these facts, Keck moved for summary judgment in the trial court, claiming immunity from both suit and liability pursuant to section 768.28(9)(a). The trial court denied Keck's motion, finding that JTM was neither a “state agency or subdivision” under section 768.28(2), Florida Statutes (2005), nor an agent of the State under section 768.28(9)(a), and that Keck was therefore not entitled to immunity as an employee of JTM or as an agent of the State. Eminisor v. Jax Transit Mgmt. Corp., No. 16–2006–CA–008519 at 2 (Fla. 4th Cir. Ct. order filed Dec. 4, 2009) (Trial Court Order). The trial court reasoned that its findings were supported by the fact that JTM was formed “for the express purpose of creating a private employer for the bus drivers and mechanics in Jacksonville's bus system,” rendering it “inconsistent for ... Keck to use JTM's private status in labor relations matters while claiming that JTM is a state agency for sovereign immunity purposes.” Id. at 3. The trial court also concluded that at the time JTA formed JTM, it lacked the statutory authority to do so, since it was not until 2009 that power was given to JTA to form “public benefit corporations.” Id.

Keck sought review of the trial court's denial of his motion for summary judgment. Keck, 46 So.3d at 1065. Because our rules of appellate procedure do not provide for interlocutory appeal of a trial court's order denying summary judgment based on a claim of immunity under section 768.28(9)(a), ¹ Keck petitioned the First District for a writ of certiorari. In declining to exercise certiorari review over the trial court's order, the First District distinguished this case from those where Florida appellate courts have granted certiorari review of the denial of qualified immunity claims in which public officials asserted immunity from suit based on federal civil rights claims. Id. at 1066–67 (citing Tucker v. Resha, 648 So.2d 1187 (Fla.1994); Stephens v. Geoghegan, 702 So.2d 517 (Fla. 2d DCA 1997)). The First District concluded that “[b]ecause this case involves only ordinary negligence and does not implicate other policy concerns or the discretionary functions of public officials,” certiorari review was not appropriate. Id. at 1067. Because the First District held that certiorari review was not proper, it did not address the substantive issue of whether Keck is entitled to immunity pursuant to section 768.28(9)(a).

In the analysis that follows, we first explain why we find it necessary to rephrase the certified question. We then discuss why we answer the rephrased question in the negative. Finally, we address Keck's claim of immunity under section 768.28(9)(a) and explain why Keck was entitled to summary judgment based on his claim of immunity.

ANALYSIS

The question before this Court is whether an appellate court can review a non-final order where the trial court denied an employee's motion for summary judgment based on a claim of immunity under section 768.28(9)(a). As this presents a pure question of law, we apply a de novo standard of review. Aills v. Boemi, 29 So.3d 1105, 1108 (Fla.2010); Auto–Owners Ins. Co. v. Pozzi Window Co., 984 So.2d 1241, 1246 (Fla.2008).

The certified question, as stated by the First District, focuses on whether an appellate court should await the entry of a final judgment when reviewing the denial of a motion for summary judgment as to those claims of individual immunity made pursuant to section 768.28(9)(a) that do not implicate “ the discretionary functions of public officials.” Keck, 46 So.3d at 1068 (emphasis added). Section...