Florida Bar Journal

It’s Good To Be King: When Purported Agents of the Government Seek To Wear the Crown of Sovereign Immunity

Sometimes a defendant seeks to take advantage of the sovereign immunity limitations under F.S. §768.28(5) because it purports to be a corporation primarily acting as an instrumentality or agency of the state, thus, entitling the defendant to immunity by virtue of §768.28(2). How do the Florida courts determine whether such a party was acting as an agent of the governmental entity who hired it to perform a task? This article explores the law applicable to such determinations.

Immunity Under F.S. §768.28

Section 768.28 creates sovereign immunity for tort claims under certain conditions:

[T]he state, for itself and for its agencies or subdivisions,. . . hereby waives sovereign immunity for liability for torts. . . . Actions at law against the state or any of its agencies or subdivisions to recover damages in tort for money damages. . . caused by the negligent or wrongful act or omission of any employee of the agency or subdivision while acting within the scope of the employee’s office or employment under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted. . . . ^[1]

Subsection (5)(a) provides:

The state and its agencies and subdivisions shall be liable for tort claims. . . , but liability shall not include punitive damages or interest for the period before judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $200,000 or any claim or judgment, or portions thereof, which. . . aris[es] out of the same incident or occurrence, [and] exceeds the sum of $300,000.

Immunity Under §768.28 Can Extend to Agents of the State

Depending on the Degree of Control Retained or Exercised by the State

Section 768.28(2) extends the immunity in the act to “corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities.” Therefore, private parties who are engaged in contractual relationships with the state, counties, or municipalities may be entitled to sovereign immunity, provided that such parties are acting as “agents” of the government.^[2] Whether the contracting party is an agent of the state turns on the degree of control retained or exercised by the state agency.^[3] “Agency status is a question of fact, except in those cases where the party opposing summary judgment is unable to point to any conflicting facts or inferences to be drawn from the facts.”^[4]

“[L]imited sovereign immunity is available for private parties involved in contractual relationships with the state if those parties are determined to be acting as agents of the state.”^[5] This depends on the degree of control the state agency has over the private party.^[6] Florida cases have turned out both ways, with some cases finding sufficient control and others not.^[7] “[T]he right to control depends upon the terms of the employment contract.”^[8] “Thus, the focus should be on ‘the right to control, not the actual control.’”^[9]

Contractors Claiming Sovereign Immunity

Cases involving claims of sovereign immunity by entities contracting with the state, its agencies, or its subdivisions typically arise in common situations. For example, contractors such as hospitals or medical care facilities may claim such immunity. Road maintenance contractors or transportation companies may claim immunity as an agent of the state. Security contractors who defend claims of negligent security are likely to seek the protective crown of immunity. While such contexts may be common, sovereign immunity seekers are not limited to such examples, as any contractor with the state or its subdivisions can make such a claim if supported by the facts of the case.

A Review of Cases Considering the Extension of Sovereign Immunity to State Agents

• Claims in the Health Care Context — In Stoll v. Noel, 694 So. 2d 701, 703 (Fla. 1997), the Florida Supreme Court addressed the issue of extending sovereign immunity to state “agents.”^[10] The plaintiffs sued physicians working at a facility run by the Florida Department of Health and Rehabilitative Services (HRS).^[11] The doctors claimed immunity from suit because they were employees or agents of the state through HRS.^[12]

The court explained that the issue of whether the doctors were agents of the state turned on the degree of control the facility maintained.^[13] The court noted that it previously “held that the right to control depends upon the terms of the employment contract.”^[14] The employment contract between the facility and the doctors required them to follow the terms of the HRS manual and the facility guide, which gave the facility a great deal of control over the actions of the doctors.^[15] This control required the doctors to authorize all patient services in advance, and the facility was responsible for supervising and directing the medical care of all patients.^[16]

Moreover, HRS acknowledged that the manual created an agency relationship between the facility and the physicians.^[17] HRS’s interpretation of its manual was “entitled to judicial deference and great weight.”^[18] Due to the significant control the employment contract provided, and on HRS’s acknowledgement, the Supreme Court found that the doctors were acting as agents of the state.^[19] Summary judgment was, therefore, proper in Stoll.^[20]

In Theodore v. Graham, 733 So. 2d 538 (Fla. 4th DCA 1999), the result was different. There, the trial court granted summary judgment based on the sovereign immunity defense the doctor asserted.^[21] The appellate court stated, “The existence of a true agency relationship depends on the degree of control exercised by the principal. Generally, a contractor is not a true agent where the principal controls only the outcome of the relationship, not the means used to achieve that outcome.”^[22]

Distinguishing the case from Stoll, the Fourth District found that the employment contract did not contain the type of government control over patients’ treatment as did the contract in Stoll.^[23] HRS never tried to dictate policies or procedures regarding how to diagnose or handle patients.^[24] As a result, there was at least a question of fact whether HRS controlled the doctor or subjected her to its control such that the doctor was considered an agent of the state entitled to a defense of sovereign immunity.^[25] The Fourth District reversed the summary judgment finding sovereign immunity for the doctor.^[26]

In Robinson v. Linzer, 758 So. 2d 1163 (Fla. 4th DCA 2000), the Fourth District reversed summary judgment for a physician and his employer that found entitlement to sovereign immunity. The Fourth District found that the contractual provisions were inconsistent regarding control and supervision of the emergency room physicians.^[27] The court held that even though the parties attempted to create an agency status in the contract, the contractual provisions did not necessarily control the issue.^[28] The court ruled that it is “[t]he actual relationship,. . . not the label,” that “determines whether there is an agency.”^[29]

In Bean v. University of Miami, 252 So. 3d 810, 813 (Fla. 3d DCA 2018), the Third District considered a case in which the university’s school of medicine had an affiliation agreement with the county’s public health trust. The claimant sued the university and her doctors for medical malpractice.^[30] The Third District found that the agreement showed the trust retained and exercised a degree of control over the university that created an agency agreement.^[31]

In contrast, the First District in Gradia v. Baptist Hospital, Inc., 345 So. 3d 385, 386 (Fla. 1st DCA 2022), considered a similar medical malpractice agency issue in a case not involving sovereign immunity. The trial court concluded the hospital could not be held vicariously liable for the care rendered in the emergency room because an independent contractor operated the emergency department and employed the treating physician.^[32] The appellate court, however, found that the relevant agreement and the evidence created a genuine dispute about the hospital’s right of control over the ER physician, thus, entitling the claimant to a trial.^[33]

In Robinson, the Fourth District reversed a summary judgment finding of entitlement to sovereign immunity, ruling that the actual relationship between a medical provider and the hospital district (a hospital operator) determined whether there was an agency.^[34] Although the contract between the medical provider and the hospital district provided that the physician performed as the agent of the hospital district (and would be immune from suit for tort claims under §768.28), there were other conflicting contractual provisions stating that the medical provider was responsible for the day-to-day management and supervision of the ER physicians.^[35] Accordingly, summary judgment was precluded.^[36]

• Claims Involving Security Companies — In Lovelace v. G4S Secure Solutions (United States), Inc., 320 So. 3d 178, 180 (Fla. 4th DCA 2021), the Fourth District agreed with the trial court’s grant of summary judgment finding that sovereign immunity applied due to the nature of the control the county asserted over the security company. The overwhelming (unchallenged) evidence demonstrated that the county retained and exercised “extensive control” over the security company’s operations, including evidence that a company security guard worked alongside the county’s security guards, and the company guard reported to county supervisors.^[37] Moreover, the county “had the right to review and approve security guards, remove security guards, review personnel files, audit [the company]’s records, and make changes to the security guard requirement.”^[38] Despite the language in the agreement that sought to avoid an agency relationship, the other provisions and evidence (including the county’s hiring, removal, and training of company employees) established that the county had a degree of control over the company’s operations that created an agency relationship.^[39]

Naso v. Hall, 338 So. 3d 283, 287 (Fla. 4th DCA 2022), followed Lovelace and noted that the county’s control over the company’s employees was virtually the same and the same contract applied. The Fourth District, thus, found that the security company was entitled to limited sovereign immunity under §768.28(5).^[40]

In G4S Secure Solutions (USA), Inc. v. Morrow, 210 So. 3d 92, 94 (Fla. 2d DCA 2016), the contractual provisions and evidence established that the sheriff’s office had a degree of control over the security company’s operations transporting prisoners such that it created an agency relationship. The sheriff’s office exercised extensive control over the hiring and training of the company’s employees and had the right to fire a company employee at will.^[41] Significantly, “[the plaintiff] did not present any conflicting evidence in opposition to the motion, and she d[id] not challenge any of the established facts or inferences from those facts.”^[42] Because the undisputed evidence established an entitlement to sovereign immunity, summary judgment was appropriate in that case.^[43]

While “express intent regarding agency status is to be considered in deciding the issue” of control, “it is not dispositive.”^[44] But, if “the provisions of the contract governing the state’s right to control are inconsistent with the parties’ expressed intent, the nature of the relationship controls over the label.”^[45] Although the label ascribed by the parties does not control the outcome, it appears that the way the parties specifically describe their relationship in a contract will be considered by the courts in determining agency status.

• Agency Status Is Normally a Factual Question — Villazon v. Prudential Health Care Plan, 843 So. 2d 842, 844 (Fla. 2003), considered a wrongful death negligence action against a primary care physician and a vicarious liability claim against a health care provider. The Florida Supreme Court explained that “[t]he existence of an agency relationship is normally one for the trier of fact to decide.”^[46] The court noted that it is not uncommon for parties to include conclusory statements in documents with regard to the independence of the relationship of the parties.^[47] Reflecting on its reasoning in prior cases, the court stated, “While the obvious purpose to be accomplished by this document was to evince an independent contractor status, such status depends not on the statements of the parties but upon all the circumstances of their dealings with each other.”^[48] As a result, courts ought to consider both the parties’ statement of intent regarding their relationship as well as all the other circumstances of their dealings.

“Agency status may be decided as a question of law in those cases where the party opposing summary judgment is unable to point to any conflicting facts or inferences to be drawn from the facts.”^[49] However, “an entity or business acting as an independent contractor of the government, and not as a true agent, logically cannot share in the full panorama of the government’s immunity.”^[50]

Appeals from Non-Final Orders Denying Sovereign Immunity

In Florida Highway Patrol v. Jackson, 288 So. 3d 1179, 1186 (Fla. 2020), the Florida Supreme Court concluded that Florida Rule of Appellate Procedure 9.130 insufficiently protected the interests underlying sovereign immunity. The court amended Rule 9.130 “to expand the availability of appellate review of nonfinal orders denying sovereign immunity.”^[51] Consequently, Rule 9.130(a)(3)(F) now allows a non-final appeal from a trial court order that denies a motion that “(ii) asserts entitlement to immunity under [§]768.28(9), Florida Statutes; or (iii) asserts entitlement to sovereign immunity.”^[52]

The Third District Court of Appeal noted, “The purpose of this recent amendment. . . was to include in the schedule of appealable, non-final orders those non-final orders denying motions that sought governmental immunity. Hence,. . . we now focus on the content of the underlying motion and on as much as [sic] the record as necessary.”^[53] The Supreme Court “reworked the subsection by placing focus on the underlying motion as the substantive vehicle to achieve interlocutory review.”^[54] In addition, the Third District ruled that the denial of a motion asserting the limited waiver of sovereign immunity and statutory cap on damages qualified for interlocutory review based on the plain language of the amended rule and guidance from the Supreme Court.^[55]

If an Entity Were Deemed an Agent, It Would Be Entitled Only to Capped Immunity, Not Full Immunity

An entity might seek full immunity from suit rather than just having its liability capped under the Sovereign Immunity Act. For example, a party may claim that as an agent of the state, it cannot be “held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function.”^[56] This is the same failed argument made before the Fourth District Court of Appeal.^[57]

That court determined that even when the corporation is deemed to be acting as an agent of the state, the proper limitation is found under §768.28(5), not the full immunity that applies under §768.28(9).^[58] Subsection (5), on the one hand, applies to “[t]he state and its agencies and subdivisions.”^[59] Section 768.28(2), defines “state agencies or subdivisions” to include “corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities.”^[60]

Section 768.28(9)(a), in contrast, applies to an “officer, employee, or agent of the state.”^[61] In turn, an “officer, employee, or agent” is defined as including, but not limited to, “any health care provider. . . ; any nonprofit independent college or university located and chartered in this state which owns or operates an accredited medical school, and its employees or agents. . . and any public defender or her or his employee or agent, including, among others, an assistant public defender and an investigator.”^[62]

Relying on Morrow, the Lovelace opinion ruled, “The plain language of [§]768.28 leads to the conclusion that subsection (5) would. . . apply to [the security company] in this case as well. In contrast, subsection (9) applies to an ‘officer, employee, or agent of the state.’ Further, subsection (9) states that those individuals may not be ‘personally liable.’”^[63] Lovelace further noted that the U.S. Supreme Court found that “personal” refers to individuals, not corporations.^[64]

Consequently, Lovelace held that subsection (9) did not apply to the security company — even if it were considered an agent of the state. Instead, if the security company were considered to be an agent of the state, §768.28(5) would be the applicable subsection.^[65] Under subsection (5), even if the security company were an agent of the state, its liability would be capped under subsection (5) and not precluded under subsection (9).^[66]

Concluding Remarks

Sometimes a defendant may be entitled to wear the crown of limited sovereign immunity contained in F.S. §768.28(5). This occurs when the defendant proves it is a corporation primarily acting as an instrumentality or agency of the state. The existence of such agency may be a factual question dependent upon the degree of control retained or exercised by the government in regard to the contractual relationship with the purported agent. If successful, the corporation may proudly wear the crown of the king, with the concomitant entitlement to limited sovereign immunity of the governmental entity.

This column is submitted on behalf of the Appellate Practice Section, Courtney Brewer, chair, and Sarah Roberge, Benjamin Paley, Matthew Cavender, Dimitri Peteves, Sydney Feldman-D’Angelo, and Eleanor Sills, editors.