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Florida Fourth DCA rules that security company hired by Broward County qualified as “state agency of subdivision” subject to $200.000/$300,000 sovereign immunity cap on tort liability

On May 12, 2021, in Lovelace v. G4S Secure Solutions (USA), Inc., No. 4D20-1434, the Florida Fourth DCA affirmed a trial court’s decision that a security company working as an independent contractor for Broward County was entitled to sovereign immunity in a premises liability case involving an accident which occurred outside the Broward Government Center. Citing Stoll v. Noel, 694 So. 2d 701, 703 (Fla. 1997), the Fourth DCA noted thatindependent contractors are not precluded from being agents of the state, thereby entitling them to statutory immunity from suit and liability. In this case, there was language in the contract between the security company and Broward County seemingly intended to avoid an agency relationship, but the Fourth DCA cited a previous decision involving the same security company stating that although “express intent regarding agency status is to be considered in deciding the issue” of control, “it is not dispositive.” G4S Secure Sols. (USA), Inc. v. Morrow, 210 So. 3d 92, 94 (Fla. 2d DCA 2016). The Fourth DCA observed that Broward County had the right to review and approve security guards, remove security guards, review personnel files, audit the security company’s records, make changes to the security guard requirements and post order for the security guards. In additional, Broward County required the security company employees to abide by the county’s rules and regulations, and Broward County set the criteria, qualifications, training, and testing requirements for the security company employees. However, the Fourth DCA concluded that the trial court erred in finding that the defendant security company was entitled to sovereign immunity under § 768.28(9), which shields officers, employees or agents of the state from personal liability unless they acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. The effect of premising sovereign liability on this provision would have exempted the security company from any liability in the case. Instead, the Fourth DCA concluded that the applicable provision was § 768.28(5), which provides a monetary limit on the liability of the state and its agencies and subdivisions (the current limit is $200,000 per claim and $300,000 per incident). The Fourth DCA noted that §768.28(2) defines “state agencies or subdivisions” to include “corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities,” and that the reference to exemption from “personal” liability in §768.28(9) was suggestive of an exemption for individuals not corporations.

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