Surette v. Galiardo

• Decision Date: 21 November 1975
• Docket Number: No. 74--928,74--928
• Citation: 323 So.2d 53
• Parties: Virginia L. SURETTE et al., Appellants, v. Arthur GALIARDO, Jr., et al., Appellees.
• Court: Florida District Court of Appeals

Page 53

323 So.2d 53

Virginia L. SURETTE et al., Appellants, v. Arthur GALIARDO, Jr., et al., Appellees.

No. 74--928.

District Court of Appeal of Florida, Fourth District.

Nov. 21, 1975.

Rehearing Denied Dec. 30, 1975.

Edward A. Perse of Horton, Perse & Ginsberg, Miami, and Sepler & Sussman, Hialeah, for appellants.

James E. Tribble of Blackwell, Walker, Gray & Powers, Miami, for appellee School Bd. of Broward County.

William S. Gardella of Walton, Lantaff, Schroeder, Carson & Wahl, Fort Lauderdale, for appellees School Bd. of Broward County and Pacific Indemnity Co.

MAGER, Judge.

This is an appeal by Virginia L. Surette, plaintiff below, from a final judgment entered pursuant to a directed verdict in favor of the Broward County School Board and its liability insurer, Pacific Indemnity Company, defendants below.

The cause of action arose as a result of the death of plaintiff's minor child who was struck by a car while waiting at a school bus stop site in Broward County. ¹ The complaint alleged, among other things, the school board's negligence in its designation of the school bus stop site where the accident occurred and in routing the school bus to the specific location where plaintiff's child was waiting; plaintiff further alleged, in part, that the school board did not properly mark the designated school bus location in question and was negligent in not providing a safe place for plaintiff's child to stand while awaiting the school bus pick-up.

The plaintiff's complaint further asserted that the school board had waived its sovereign immunity pursuant to sec. 455.06, F.S., by the purchase of general liability insurance from defendant Pacific Indemnity. Defendant filed an answer denying plaintiff's allegations and moved to dismiss on the basis, among other things, that the doctrine of sovereign immunity was applicable. The action was tried before a jury and at the conclusion of plaintiff's case the trial court granted a directed verdict in favor of the defendants school board and Pacific Indemnity primarily on the basis that the purchase of the liability insurance policy in question did Not constitute a waiver of sovereign immunity within the contemplation of sec. 455.06, F.S.

As a basic observation and as a general proposition the county and its agencies are immune from tort liability in the absence of a general statute permitting suit as to such liability. 8 Fla.Jur. Counties § 100; Kaulakis v. Boyd, Fla.1962, 138 So.2d 505; Brandeis v. Dade County, Fla.App.1969, 226 So.2d 873; cf. Arnold v. Shumpert, Fla.1968, 217 So.2d 116. With the enactment of sec. 455.06, F.S., the legislature adopted a general law permitting the county, the school board and certain other governmental entities to purchase liability insurance for certain purposes and thereby waive sovereign immunity from tort liability in certain instances. ² Subsection (1) of sec. 455.06 provides as follows:

'(1) The public officers in charge or government bodies, as the case may be, of Every county, District school board, governmental unit, department, board or bureau of the state, including tax or other districts, political subdivisions and public and quasi-public corporations, other than incorporated cities and towns, of the several counties and the state, all hereinafter referred to as political subdivisions, Which political subdivisions In the performance of their necessary functions own or lease and operate motor vehicles upon the public highways or streets of the cities and towns of the state or elsewhere, or own or lease and operate watercraft or aircraft or own or lease buildings or properties or Perform operations in the state or elsewhere Are hereby authorized, in their discretion, to secure and provide for such respective political subdivisions, their agents and employees while acting within the scope of their employment, insurance to cover liability for damages on account of bodily or personal injury or death resulting therefrom, to any person, or to cover liability for damage to the property of any person or both, arising from or in connection with the operation of any such motor vehicles, watercraft or aircraft, or from the ownership or operation of any such buildings or property or livestock or any other such operations, whether from accident or occurrence; and to pay the premiums therefor from any general funds appropriated or made available for the necessary and regular expense of operations of such respective political subdivisions, without the necessity of specific appropriation or specification of expense with respect thereto. Provided, that in those instances where, by general law, provision has been made for the public officer in charge or governing body of such political subdivision to provide such insurance, this section shall not be construed to impair any such previous acts but shall be construed as cumulative thereto.' (Emphasis added.)

The record reflects that the school board purchased a comprehensive general liability insurance policy from Pacific Indemnity which provided for bodily injury and property damage liability coverage for an 'occurrence' which was defined to embrace 'an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured . . .'.

The policy in question specifically Excluded bodily injury or property damage liability arising out of the ownership, maintenance, operation or use of any Automobile owned, leased or operated by the school board. Clearly, therefore, as the trial court correctly observed, the policy in question did Not cover an accident resulting from an automobile (or bus) owned, leased or operated by the school board. However, the circumstances in the instant case do not involve the ownership, maintenance, operation, use, loading or unloading Of a School bus. The plaintiff's minor child was allegedly struck and killed by an automobile driven by one Joan Galiardo who had no relation to the school board or any of its activities. The presence of the school board and its insurer in the action below was not occasioned by the ownership, maintenance, operation, use, loading or unloading of a school bus but, rather, by the school board's alleged negligence in its selection, designation, location and maintenance of school bus stop sites.

In this regard the provisions of section 234.03, providing for the purchase of liability insurance for bodily injury, damage or death resulting to pupils by reason of the ownership, maintenance, operation or use of School buses 'while said pupils are being transported to or from a school or school activity' are not controlling. The fact that a liability policy is required under sec. 234.03 for the operation of school buses does not precluded the potential application of sec. 455.06 nor is it dispositive of the issue of whether the particular activity in question falls within the terms and conditions of said sec. 455.06.

A reading of sec. 455.06 reflects the clear intent of the legislature to authorize a district school board to purchase liability insurance, when, in the performance of a 'necessary function' said school board 'performs operations in the state', i.e. operates a school bus transportation system. The purchase of insurance to cover liability for damage on account of bodily or personal injury or death resulting from 'such operations' constitutes a waiver of sovereign immunity. Section 455.06 additionally provides for the purchase of liability insurance and a corresponding waiver of tort liability where the agency, in performance of its necessary functions, owns, leases or operates motor vehicles, watercraft, aircraft or owns or leases buildings. However, we are Not concerned here with the category of motor vehicles, watercraft, aircraft, buildings or properties--but, rather, we are concerned with the category of activity, i.e. 'or perform operations in the state'. ³

A review of applicable statutes, rules and regulations pertaining to school bus transportation reflects a statutory duty, responsibility and obligation of school boards to provide bus transportation for pupils enrolled in public schools, such transportation operation encompassing not only the physical (safety) aspects of the vehicle and the driver...