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

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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