Florida Supreme Court Amends Appellate Rule 9.130 to Clarify Scope of Interlocutory Review of Sovereign Immunity

Last week the Florida Supreme Court issued an opinion in Florida Highway Patrol v. Jackson, SC 18-4698, 2020WL370366 (Fla. Jan. 23, 2020) which clarified a government entities ability to appeal orders denying its right to sovereign immunity interlocutory (i.e. before a final judgment is entered in the case). Jackson involved the interpretation of the subdivision Florida Rule of Appellate Procedure 9.130, which allows for appellate review of orders denying sovereign immunity as a matter of law. The Court stated that sovereign immunity should be established as early in the litigation as possible. The Court recognized that the current rule as written failed to protect the sovereign immunity rights of the state and discussed its reasoning for amending the rule. The court issued a separate opinion amending the rule in In re Amendments to the Fla. Rule of Appellate Procedure 9.130, No. SC19-1734, 2020WL370367 (Fla. Jan. 23, 2020).

Jackson involves a fatal car accident that occurred on I-75. Id. at *2. The accident occurred after smoke from a brushfire caused visibility issues on the interstate. Id. Florida Highway Patrol (“FHP”) closed the interstate after two other car crashes occurred. FHP made the decision to reopen the highway and the subject car accident happened shortly after. Id. The lawsuit directly challenged FHP’s decision to open the interstate. Id. FHP filed a motion for summary judgment, arguing that it did not owe a special duty to the Plaintiff and that its decision to reopen the interstate was protected by sovereign immunity. Id. The trial court denied FHP’s motion but simply stated that material facts existed which precluded summary judgment. The order did not speak to the issue of sovereign immunity. The Florida Supreme Court affirmed the First District Court of Appeals decision which dismissed the appeal for lack jurisdiction; however, the Court made the decision to address the merits of the Rule permitting interlocutory appeal of sovereign immunity.

The issue for the Court to consider was whether the Rule permitted the appeal of a non-final order denying the government’s right to immunity if the Court did not explicitly preclude the government from using the immunity as a defense. Id. at *1. The Florida Supreme Court found that the rule as currently written does not permit review in those instances and would only permit review when the when the order denies the government its right to sovereign immunity “as a matter of law.” The Court determined, however, that the current version of the rule “insufficiently protects the interests underlying sovereign immunity.” Id. The Court also provided an excellent description of the protections of sovereign immunity stating that sovereign immunity “is immunity from liability and an immunity from suit.” Id. at *5. The Court noted that sovereign immunity should be established as early in the litigation as possible because the immunity derives from the separation of powers doctrine. Id. at * 6.

The Court also determined that the rule was “overly deferential to the trial court’s decision as to whether identified factual disputes were actually material to a party’s entitlement to sovereign immunity.” Id. The Court acknowledged that this was a difficult issue where the appellate courts have particular expertise. The Court issued a separate opinion the same day in re Amendments to the Fla. Rule of Appellate Procedure 9.130, amending Rule 9.130. The rule now provides the government a right to appeal the denial of a motion which “asserts entitlement to sovereign immunity.” Id. at *2. The amendment also includes orders denying a parties’ right to absolute or qualified immunity in civil rights claim under federal law or orders denying an individuals’ immunity under Fla. Stat. § 768.28(9).

For government entities the amendment to this rule provides a new opportunity to appeal a trial court’s order denying entitlement to sovereign immunity even if the trial court determined that disputed facts exist. This provides the opportunity to challenge orders denying immunity much earlier in the case and before the government must spend time and resources preparing for trial. It is important to consider whether an appeal should be pursued each time an order on a motion to dismiss or motion for summary judgment is denied based on the right to sovereign immunity. Do not hesitate to contact us should you have questions or concerns regarding this powerful tool for government agencies.