Plancher v. UCF Athletics Ass'n, Inc.

• Decision Date: 28 May 2015
• Docket Number: SC13–1874.,Nos. SC13–1872,s. SC13–1872
• Citation: 175 So.3d 724
• Parties: Enock PLANCHER, etc., Petitioner, v. UCF ATHLETICS ASSOCIATION, INC., et al., Respondent. Enock Plancher, etc., Petitioner, v. UCF Athletics Association, Inc., et al., Respondent.
• Court: Florida Supreme Court

175 So.3d 724

Enock PLANCHER, etc., Petitioner

v.UCF ATHLETICS ASSOCIATION, INC., et al., Respondent.

Enock Plancher, etc., Petitioner

v.UCF Athletics Association, Inc., et al., Respondent.

Nos. SC13–1872

SC13–1874.

Supreme Court of Florida.

May 28, 2015.

Rehearing Denied Sept. 25, 2015.

Christopher Vincent Carlyle, Shannon McLin Carlyle, and David Alfred Monaco of The Carlyle Appellate Law Firm, The Villages, FL; Stacy Delayne Blank and Patrick Michael Chidnese of Holland & Knight LLP, Tampa, FL; and Charles Steven Yerrid of The Yerrid Law Firm, P.A., Tampa, FL, for Petitioner.

Matthew John Conigliaro of Carlton Fields Jorden Burt, P.A., Tampa, FL; Wendy Frank Lumish of Carlton Fields Jorden Burt, P.A., Miami, FL; and Peter D. Webster of Carlton Fields Jorden Burt, P.A., Tallahassee, FL, for Respondent.

Richard E. Mitchell of GrayRobinson, P.A., Orlando, FL, for Amici Curiae The University of Central Florida Board of Trustees, The University of Florida Board of Trustees, and The Florida State University Board of Trustees, et. al.

Opinion

POLSTON, J.

The Planchers seek review of the decision of the Fifth District Court of Appeal in UCF Athletics Ass'n, Inc. v. Plancher, 121 So.3d 1097 (Fla. 5th DCA 2013).¹ For the reasons expressed below, we approve the Fifth District's holding that UCF Athletics Association, Inc., is entitled to limited sovereign immunity but quash the Fifth District's statement remanding for entry of a judgment that shall be reduced to the statutory cap.

BACKGROUND

In 2008, Ereck Plancher, a University of Central Florida (UCF) football player, collapsed and tragically died during football practice conditioning drills.Id. at 1099. “After his death, Ereck's parents (the Planchers) filed a negligence action against UCF² and UCF Athletics Association, Inc. (UCFAA), the statutorily authorized direct-support organization responsible for administering UCF's athletics department.” Id. (footnote omitted). The trial court denied UCFAA's motion for summary judgment, which had argued that UCFAA is entitled to limited sovereign immunity under section 768.28, Florida Statutes (2008). Id. at 1106. The trial court ruled “that the undisputed evidence demonstrated that UCFAA had not been substantially controlled by UCF in either day-to-day decisions or major programmatic decisions.” Id. (footnote omitted). Subsequently, “the jury found UCFAA liable and awarded the Planchers damages in the amount of $10 million.” Id. at 1099 (footnote omitted). But, on appeal, the Fifth District reversed and held that UCFAA is entitled to limited sovereign immunity. Id.

In its analysis, the Fifth District discussed Shands Teaching Hospital & Clinics, Inc. v. Lee, 478 So.2d 77 (Fla. 1st DCA 1985), Prison Rehabilitative Industries & Diversified Enterprises, Inc. v. Betterson, 648 So.2d 778 (Fla. 1st DCA 1994), and Pagan v. Sarasota County Public Hospital Board, 884 So.2d 257 (Fla. 2d DCA 2004), and noted that “[t]he key factor in determining whether a private corporation is an instrumentality of the state for sovereign immunity purposes is the level of governmental control over the performance and day-to-day operations of the corporation.” Id. at 1106. The Fifth District rejected “the Planchers' assertion that for UCFAA to have sovereign immunity, UCF had to actually control UCFAA's day-to-day operations.” Id. at 1109.

Ultimately, “[c]omparing the facts of this case to the facts set forth in Keck [v. Eminisor, 104 So.3d 359 (Fla.2012) ], Pagan, and Betterson, [the Fifth District determined] that UCFAA primarily acts as an instrumentality of UCF” and is, therefore, entitled to limited sovereign immunity pursuant to section 768.28. Id. The Fifth District also stated that “[t]he judgment entered against UCFAA shall be reduced to $200,000 in accordance with section 768.28(5), Florida Statutes. Any amount over the statutory cap must be sought by the Planchers in a claim bill filed in the Florida Legislature.” Id. at 1109 n. 17.

ANALYSIS

The Planchers argue that UCF does not have sufficient control over UCFAA's day-to-day operations to entitle UCFAA to limited sovereign immunity under section 768.28. We disagree.³

Section 768.28 provides a waiver of sovereign immunity in tort actions but only to a specified extent. Pursuant to section 768.28(5), Florida Statutes (2008), “[t]he 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 before judgment.” The statute also sets a recovery limit of $100,000 for a claim or judgment by one person and a recovery limit of $200,000 per occurrence or incident. § 768.28(5), Fla. Stat. (2008).

Section 768.28(2), Florida Statutes (2008), defines the state entities entitled to this limited sovereign immunity:

“state agencies or subdivisions” include the executive departments, the Legislature, the judicial branch (including public defenders), and the independent establishments of the state, including state university boards of trustees; counties and municipalities; and corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities, including the Florida Space Authority.

(Emphasis added.)

It is undisputed that UCF meets the definition of a state agency or subdivision entitled to limited sovereign immunity under section 768.28. Further, in Keck, 104 So.3d at 368, this Court explained that “corporations primarily acting as instrumentalities of independent establishments of the State are included in the definition within section 768.28(2) of ‘state agencies or subdivisions.’ ” Therefore, if UCFAA is primarily acting as an instrumentality of UCF, it is a state agency or subdivision entitled to limited sovereign immunity under section 768.28.

UCF created and certified UCFAA as a university direct-support organization (DSO) pursuant to section 1004.28, Florida Statutes. A university DSO is statutorily defined as a not-for-profit Florida corporation “[o]rganized and operated exclusively to receive, hold, invest, and administer property and to make expenditures to or for the benefit of a state university in Florida or for the benefit of a research and development park or research and development authority affiliated with a state university.” § 1004.28(1)(a) 2., Fla. Stat. The statute requires “a state university board of trustees, after review, [to certify that the DSO is] operating in a manner consistent with the goals of the university and in the best interest of the state.” § 1004.28(1)(a) 3., Fla. Stat.

Besides the Fifth District's decision in this case, three Florida district court decisions have addressed whether an entity was primarily acting as an instrumentality of the state and, therefore, entitled to limited sovereign immunity under section 768.28, and all three decisions focused upon governmental control over the entity. First, in Shands, 478 So.2d at 78, the First District concluded that Shands Teaching Hospital and Clinics, Inc. was not entitled to limited sovereign immunity. The First District examined the statute authorizing the leasing of Shands to a private not-for-profit corporation as well as an appropriations act and legislative reports, concluding that “the intent of the legislature was to treat Shands as an autonomous and self-sufficient entity, one not primarily acting as an instrumentality on behalf of the state.” Id. at 79 (emphasis in original). The First District also, by analogy, looked to federal law and explained that “section 240.513 reflects that Shands' day-to-day operations are not under direct state control.” Id.

Second, in Betterson, 648 So.2d 778, the First District determined that PRIDE, a prison work program, was primarily acting as an instrumentality of the state and, therefore, entitled to limited sovereign immunity under section 768.28. Specifically, the First District concluded that “while PRIDE was accorded substantial independence in the running of the work programs, its essential operations nevertheless remained subject to a number of legislatively mandated constraints over its day-to-day operations.” Id. at 780.

Third, in Pagan, 884 So.2d at 264, the Second District affirmed the trial court's ruling that First Physicians Group was entitled to limited sovereign immunity under section 768.28 as to the particular parties involved in that case. The Second District explained that the Hospital Board and First Physicians Group “successfully argued [to the trial court] that ‘the structure dictates the control’ and that the Hospital Board had structural control of First Physicians Group and therefore First Physicians Group and its employees were ‘agencies' of the Hospital Board entitled to sovereign immunity.”Id. at 263.

Additionally, in Keck, 104 So.3d at 367, this Court examined a claim of immunity asserted by virtue of employment with Jax Transit Management Corporation (JTM). In Keck, the plaintiff had conceded that JTM was an instrumentality of the Jacksonville Transit Authority (JTA). Id. at 368. And “all parties agree[d] that JTA falls within the definition of a state agency” under section 768.28(2). Id. at 367. However, the trial court had ruled that “while JTA is an independent establishment of the State and thus is entitled to sovereign immunity, the same cannot be said as to JTM because the statutory definition in section 768.28(2) does not expressly include corporations that are acting primarily as instrumentalities or agencies of independent establishments of the State.” Id. This Court disagreed with the trial court and held that “JTM is a ‘state agenc[y] or subdivision[ ]’ under section 768.28(2) because it primarily acts as an instrumentality of JTA, which is within the statutory definition of a state agency.” Id. at 369. This Court in Keck briefly described the relationship between JTM and JTA, 104 So.3d at 361–62, but did not address the level of governmental...