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Florida Fourth DCA rules that monetary caps on sovereign immunity waiver applied aggregately to all victims in shooting spree by estranged father previously under DCF investigation, certifies issue to Florida Supreme Court

On October 10, 2018, in State of Florida v. Barnett, No. 4D17-2840, the Florida Fourth DCA decided as a matter of first impression an issue involving the interpretation of section 768.28, Florida Statutes, governing Florida’s waiver of sovereign immunity in tort actions. Subdivision (5) of the statute limits the liability of the state or its subdivisions for tort claims to $200,000 per claimant and an aggregate of $300,000 for claims “arising of the same incident or occurrence.” In this case, an estranged father who had previously been under investigation by the Department of Children and Families (“DCF”) for threats against the family attacked several family members in their home, killing four children. The issue under review by the Fourth DCA was whether the Subdivision (5) aggregate cap applied to all the claims against DCF for negligence in the children’s deaths under the theory that the killings all arose out of the same incident or occurrence. Section 768.28 does not define “same incident or occurrence” and the issue had never previously been addressed by the Fourth DCA, so the Court turned to the limited case law from other DCAs addressing this issue. After canvassing the case law, the Court concluded that although a liberal construction of the statute would favor treatment of each death as a separate incident, strict construction was required because any waiver of sovereign immunity is an abrogation of the sovereignty of the state, citing Spangler v. Fla. State Tpk. Auth., 106 Sp. 2d 421, 424 (Fla. 1958). Under a strict construction analysis, the Court concluded that the statute did not clearly and unambiguously waive sovereign immunity to the extent that the shooting of each child constituted a separate occurrence. On January 9, 2019, the Fourth DCA certified this issue to the Florida Supreme Court as one of great importance.