Jeffrey P. Gale, P.A. // Why Florida’s Sovereign Immunity Cap Defeats Accountability and Justice

Jeffrey P. Gale, P.A. — Tue, 10 Jun 2025 20:42:06 GMT

One of the central purposes of a strong civil justice system is to promote public safety by holding wrongdoers financially accountable. When negligent individuals or corporations know they may face significant financial liability, they are far more likely to act responsibly. Short of criminal prosecution, few things are more effective at incentivizing safe conduct than the threat of losing money.

Sovereign immunity, however, undercuts this principle. Rooted in the old-world doctrine that “the king can do no wrong” (Latin: Rex non potest peccare), sovereign immunity was designed to shield monarchs from legal consequences. Today, this concept survives in modern constitutional monarchies like the United Kingdom, Japan, and the Netherlands. Unfortunately, it has also made its way into American law—particularly in states like Florida.

Florida’s Version of Sovereign Immunity

Florida has adopted a modified form of sovereign immunity for civil cases, including personal injury and wrongful death claims. Under Florida Statute § 768.28(5)(a), the state and its agencies are shielded from full liability. Compensation for damages caused by a government entity is capped at $200,000 per individual and $300,000 per incident, regardless of how catastrophic the harm may be.

So, whether someone suffers minor injuries or a family loses a loved one due to government negligence, the total financial exposure for the state remains the same. This cap applies even if a jury awards millions in damages based on compelling evidence and clear fault.

Why the Cap Undermines Public Policy

Florida’s sovereign immunity cap actively defeats the public policy it claims to serve. Instead of promoting safety and accountability, it does the opposite—discouraging justice and denying fair compensation.

1. Discourages Responsible Conduct

When the worst financial consequence a government agency faces is $300,000—no matter the harm—there’s little incentive to improve safety protocols, correct systemic failures, or admit fault. This undermines the civil justice system’s role in deterring negligence.

2. Discourages Legal Representation

Most personal injury and wrongful death attorneys won’t take sovereign immunity cases unless there’s a non-sovereign party also responsible. Why? Because:

The potential recovery is severely limited.
Government defendants often fight the hardest, spending taxpayer money to drag out litigation.
Even a large jury verdict changes nothing—the cap still applies.

3. Undermines Judicial Economy

Another core principle of civil law is judicial economy—resolving disputes efficiently and avoiding unnecessary litigation. Sovereign immunity caps frustrate this goal. In typical cases, the threat of a high jury verdict encourages settlements. But in cap cases, sovereign defendants often refuse to settle—even in clear-cut cases—because they know they’ll never owe more than the cap, no matter what happens in court.

4. Renders Florida’s Settlement Encouragement Law Toothless

Florida Statute § 768.79 allows plaintiffs to recover attorney’s fees and costs if they obtain a judgment 25% greater than a properly served settlement offer. This statute is highly effective at encouraging reasonable settlements in non-cap cases. But in cap cases, it’s practically meaningless.

For example, even if a jury awards $2 million and the plaintiff is entitled to $350,000 in attorney’s fees under § 768.79, the sovereign still only pays the cap amount. The incentive to settle is lost.

A Notable Exception: Workers’ Compensation

Interestingly, the sovereign immunity cap does not apply in workers’ compensation claims. Government employers can be held accountable for the full value of benefits under Florida’s workers’ comp system. That said, these benefits do not include compensation for pain and suffering—often the largest and most meaningful component of a personal injury or wrongful death claim. Still, sovereign exposure in workers’ comp cases can easily exceed the cap, especially in cases involving long-term disability or death.

It’s Time to Retire the Cap

The sovereign immunity cap is outdated. If it ever served a valid purpose, that time has long passed. In modern America, where governments operate complex institutions like hospitals, schools, and transportation systems, they must be held to the same standard of accountability as private actors. The current law creates two tiers of justice—one for victims harmed by private entities, and a lesser one for those harmed by the government.

A Final Word

If you or a loved one has been harmed due to the negligence of a government entity, speak with a qualified attorney to understand your rights. While sovereign immunity presents serious legal hurdles, it doesn’t mean you’re entirely without options.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

Jeffrey P. Gale, P.A. // Who Pays Attorney’s Fees and Costs Assessed Against Defendant Under Proposal for Settlement?

Jeffrey P. Gale, P.A. — Tue, 20 Dec 2022 01:39:05 GMT

In an effort to extract attorney’s fees and costs from an opponent, any party to a lawsuit may utilize Florida Statute 768.79. In cases involving substantial amounts of litigation, the award under the statute can be sizable, even in the hundreds of thousands of dollars. For this reason, the statute is also a powerful mechanism for effectuating settlements.

If the award is against an insured defendant, who pays, the defendant or the insurance company?

Florida’s Insurance Code requires policies sold in Florida to provide various types of coverage. For example, motor vehicle policies must include personal injury protection (PIP). However, the Code does not require liability insurance policies to maintain coverage for 768.79 awards.

An insurance policy is a contract between the insured and the insurer. Hence, whether a policy provides coverage for a 768.79 award comes down to policy language.

In Government Employees Insurance Company v. Macedo, 228 So.3d 1111 (Fla. 2017), the carrier contended that the policy did not cover the awarded attorney’s fees. The Florida Supreme Court disagreed. Concluding that the policy was ambiguous on this issue, it found for the insured based on the long-established rule that “any ambiguity which remains after reading each policy as a whole and endeavoring to give every provision its full meaning and operative effect must be liberally construed in favor of coverage and strictly against the insurer.” See Wash. Nat’l Ins. Corp. v. Ruderman, 117 So. 3d 943, 948, 945-950 (Fla. 2013).

Even if the Florida Supreme Court had ruled against the insured in Macedo, not all would have been lost for the insured in getting the carrier to pay the 768.79 award. The insured might have been able to recover the award from the carrier by showing that the carrier had handled the claim in bad faith. This is a topic for another blog.

Insurance policies are not the easiest documents to read and understand. They can be lengthy and verbose, and deal with subjects only seasoned lawyers understand. Nevertheless, it is advisable that the insurance applicant make an effort to understand key topics like the one discussed here.

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Contact us at 305-758-4900 or by email to learn your legal rights.