Preferred Governmental Insurance Trust SM (PGIT) is often asked to add private entities as ‘additional covered parties’ to its members’ coverage agreements.   It is our position that public entities in the State of Florida do not have the ability to do this, and only the Florida Legislature, by clear and unambiguous act, may waive sovereign immunity.

In a Brief on this issue, filed in 2002, the Florida Solicitor General summarizes the issue thus:

“Sovereign immunity protects the state and its governmental entities from claims arising under law made by the sovereign.   By doing so, the doctrine defends the public treasury from unbridled encroachments in the form of defense costs or liability judgments.   Sovereign immunity is applicable to all state, county and municipal levels of Florida’s government.

Like most protections, sovereign immunity may be waived, but Florida’s Constitution provides, and the Florida Supreme Court has squarely held that only the Legislature, by general law, may authorize such waivers.   Art X, § 13.   Attempts by other governmental entities to waive sovereign immunity are nullities.   This allows the Legislature to control the circumstances under which governmental entities may be subject to claims for liability, including the potentially substantial costs of defending claims.

This Court’s case law has long confirmed that, based on separation of powers principles, a waiver of sovereign immunity will not be found unless it is clear, unequivocal, and not the product of implication.   All waivers are to be strictly construed in favor of the State, which represents all of Florida’s citizens.

The Legislature has enacted numerous general laws that waive sovereign immunity in various contexts.   For instance, section 768.28 waives sovereign immunity for certain tort damages subject to general limitations on the amount of any judgment.   The Florida Supreme Court has also held that each statute authorizing a governmental entity to enter an agreement contains a concomitant waiver of sovereign immunity such that the entity may be liable for breach of that agreement.   Pan-Am Tobacco Corp. v. Department of Corrections, 471 So. 2d 4 ( Fla. 1984).   However, Pan-Am is no deviation from the rule that waivers must be clear, unequivocal, and not the product of implication; an agreement that a party need not perform is not an agreement at all, and thus where the Legislature authorizes a government entity to enter an agreement, the Legislature is necessarily authorizing the entity to be bound by that agreement.”

There are very limited circumstances when an entity may indemnify a private entity, and these have been set out in statute by the Florida Legislature.   PGIT can and does provide coverage under these circumstances.   Our position is that all other requests for indemnification or hold-harmless are not enforceable, and cannot be honored.

If you would like the complete Brief from the Solicitor General, I would be happy to email it to you.   Please email me at mscholl@publicrisk.com.