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Increased Damage Caps on Governmental Wrongdoing in Florida

The State of Florida can now be liable for up to $200,000 per person and $300,000 per tort claim, effective Oct. 1, 2011. That’s up from the $100,000 and $200,000 caps that had been in existence for lawsuits against the state, its agencies or political subdivisions.

While the increase is welcome news to victims of governmental negligence, the new caps may still be woefully inadequate when it comes to compensating a victim for a personal injury, wrongful death, or other injuries caused by t. Suing the State of Florida is a complex process, which includes extensive pre-suit requirements and as such; Government liability claims in Florida require an experienced law firm. As these relatively modest caps indicate, identifying other entities that may be liable for damages can be critical when it comes to securing a victim adequate compensation in the wake of a serious injury or fatal accident. The sovereign immunity limits in Florida apply to schools, police departments, counties, and many other offices and agencies under state jurisdiction.

Florida Statute 768.28 sets the still relatively low damage caps, which were previously unchanged for nearly three decades. Lawmakers contend the caps have deterred claims against the state as there is also 25 percent cap on attorney fees which provide for a maximum fee of $25,000 (or $50,000 under the new cap). While that may sound adequate to some, bringing a serious personal injury, auto accident, or wrongful death lawsuit to trial can cost a law firm hundreds of thousands of dollars. Whether in Fort Myers, Naples, or Fort Lauderdale, finding a firm with the resources to properly handle your case is an important consideration when choosing an attorney. Injured claimants must also consider that their lawyer will only get paid if they are successful in making a recovery on behalf of a client.

The problem with such low and arbitrary caps is not only that they deter lawsuits by preventing all but the catastrophic claims from moving forward. It’s that they make the individual government agency less responsible for their actions, less likely to address dangerous conditions, and less accountable to the very taxpayers who are footing the bill. Lawsuits, after all, are meant to compensate victims for their loss, to correct negligent conditions and to reduce the chances others will be victimized in the future.

Dating back to Medieval times, sovereign immunity holds that “the King can do no wrong.” As a matter of common law, it means no government can be sued by one of its citizens, no matter how gross the negligence on the part of the government agency or one of its employees. The passage of 768.28 in 1975 partially opened the door to lawsuits — but made the process anything but consumer friendly. Still, when strict guidelines are met, a state agency can be held liable for negligence under the same standards as a private individual — at least up to the caps permitted under the law.

In addition to the caps in 768.28, the state has thrown up a host of other roadblocks in the form of pre-lawsuit conditions. Failure to comply with each of the notice, disclosure and service obligations under the statute can result in dismissal of your lawsuit for noncompliance. For starters, a plaintiff’s attorney must typically provide notice of intent to sue, and await the outcome of an investigation or the passage of six months — whichever occurs first. Claims are also subject to a strict statute of limitations and other conditions.

Because of these caps on damages the government knows that the most that they will ever have to pay out even of the most catastrophic of claims is the capped amount. As a result, the government rarely has any interest in settling pre-suit and they force a claimant to actually file a law suit to get a return phone call.

Attorneys on behalf of the state are already forecasting more claims, more diligence in meeting the requirements, more defense costs and higher verdict and settlement amounts. The fact of the matter is that, once adjusted for inflation, the cap would have to be set at nearly $500,000 to equate to $100,000 in 1975 when the original limits were put in place under the current law. The slight increase in Florida’s tort cap is welcome. But it’s certainly not going to signal the beginning of open season when it comes to filing lawsuits against the state.

To speak to our personal injury lawyers in Fort Lauderdale or Fort Myers, call (239) 277-2005 or (954) 524-2424

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