Sovereign Immunity

The "basic principle" in Florida law is that, “sovereign immunity is the rule, rather than the exception,” Pan-Am Tobacco Corporation, d/b/a Pan-Am Vend-Tronics v. Department of Corrections, 471 So.2d 4 (Fla.1984).

In Florida, the legislature has enacted Section 768.28, Fla. Stat., which generally controls the scope of sovereign immunity. Section 768.28, Fla. Stat., provides that "a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $200,000 or $300,000, as the case may be; and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature."

History
Sovereign immunity's roots extend to medieval England. The doctrine flows from the concept that one could not sue the king in his own courts; hence the phrase “the king can do no wrong.” The United States government fully accepted the sovereign immunity doctrine in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 5 L.Ed. 257 (1821), in which Chief Justice Marshall declared that no suit could be commenced or prosecuted against the United States without its consent. Id. at 411–12. Later, Justice Holmes explained: “A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.” Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907). The majority of American states fully embraced the sovereign immunity theory as well as the federal government. See Restatement (Second) of Torts s 895B, comment a at 400 (1979). Thus the general rule was that state governments, their agencies, and their subdivisions could not be sued in state courts without state consent.
 * ... [A]lthough suit against the king did not lie, one injured by the king's ministers could always petition the king directly for relief. In modern time, our legislative bodies are vested with the authority to grant relief for governmental wrongs through waiver of immunity.... The people of Florida vested the power to waive immunity in the Florida legislature at an early date. See art. IV, s 19, Fla. Const. (1868) (now art. X, s 13, Fla. Const.). The Florida legislature did not exercise this authority until 1973 when it enacted section 768.28. Ch. 73–313, s 1, Laws of Fla.


 * Common law sovereign immunity for the state, its agencies, and counties remained in full force until section 768.28's enactment.


 * Cauley v. City of Jacksonville, 403 So.2d 379, 381 (Fla.1981).

Miami-Dade County v. Rodriguez, 67 So. 3d 1213, 1217 (Fla. 3d DCA 2011).

Punitive Damages
“[N]o punitive damages may be recovered from the state or any of its subdivisions.” Erickson v. Hunter, 932 F. Supp. 1380, 1386 (M.D. Fla. 1996), citing Section 768.28, Fla. Stat.

Pleading
The Plaintiff must plead a specific factual basis for liability where it is seeking to overcome a sovereign immunity defense. Windham, 476 So.2d at 741, see, Cutler v. Board of Regents of the State of Florida, 459 So.2d 413 (Fla. 1st DCA 1984); Infande v. Seligman of Florida, Inc., 380 So.2d 1169 (Fla. 4th DCA 1980); Banta v. Rosier, 399 So.2d 444 (Fla. 5th DCA 1981).

Waiver
"A waiver of sovereign immunity should be strictly construed in favor of the state, and against the claimant." Windham v. Florida Dept. of Transp., 476 So.2d 735, 739 (Fla. 1st DCA 1985), citing Tampa-Hillsborough County Expressway Authority v. K.E. Morris Alignment Service, 444 So.2d 926, 928 (Fla.1983).

The purchase of liability insurance can result in a waiver of sovereign immunity. Vega v. City of Pompano Beach, 498 So. 2d 532, 534 (Fla. 4th DCA 1986)