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HomeMy WebLinkAboutBack-UpFlorida Senate - 2020 SB 1302 By Senator Flores 39-01004A-20 20201302 A bill to be entitled An act relating to sovereign immunity; amending s. 768.28, F.S.; providing a short title; providing an exception to certain liability for the state and its agencies and subdivisions; increasing the statutory limits on liability for tort claims against the state and its agencies and subdivisions; conforming provisions to changes made by the act; revising when a state and its agencies and subdivisions may agree to settle a claim or judgment without further action from the Legislature; requiring that the limitations on tort liability be adjusted every year after a specified date; specifying that the limitations in effect on the date a final judgment is entered apply to that judgment; requiring certain final judgment amounts to be paid without further action by the Legislature; providing liability for claims arising as a result of certain acts or omissions by certain persons; prohibiting an insurance policy from conditioning the payment of benefits on the enactment of claims bills; amending ss. 29.0081, 39.8297, 163.01, 252.36, 260.0125, 288.9625, 316.6146, 321.24, 324.022, 381.0056, 403.0862, 456.048, 458.320, 459.0085, 589.19, 616.242, 624.461, 624.462, 627.733, 760.11, 766.1115, 766.118, 768.1315, 768.135, 944.713, 984.09, 985.037, 1002.55, 1002.88, 1004.41, 1004.43, 1004.447, and 1006.261, F.S.; conforming cross- references; reenacting ss. 45.061, 110.504, 111.071, 163.01(15)(k), 190.043, 213.015, 284.31, 284.38, Page 1 of 28 CODING: Wordsst-r-m6eken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 39-01004A-20 20201302 337.19, 341.302, 373.1395, 375.251, 393.075, 403.706, 409.993, 455.221, 455.32, 456.009, 472.006, 497.167, 548.046, 556.106, 768.295, 946.5026, 946.514, 961.06, 1002.33, 1002.333, 1002.34, 1002.77, and 1002.83, F.S., to incorporate the amendment made to s. 768.28, F.S.; providing an effective date. Be It Enacted by the Legislature of the State of Florida: Section 1. Present subsections (1) through (20) of section 768.28, Florida Statutes, are redesignated as subsections (2) through (21), respectively, a new subsection (1) is added to that section, and present subsection (5), paragraphs (a) and (b) of present subsection (9), and paragraph (a) of present subsection (16) of that section are amended, to read: 768.28 Florida Fair Claims Act; waiver of sovereign immunity in tort actions; recovery limits; limitation on attorney fees; statute of limitations; exclusions; indemnification; risk management programs.— (1) This section may be cited as the "Florida Fair Claims Act." (6)(a)+-} The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period before judgment. Except as specified in paragraph (b), neither the state nor its agencies or subdivisions shall be liable to pay a e -1a' e __ _ ___ ' '-, rn _lr�-r�r�T `�--vm-r'r�rr eiEeeeels tl,e surf $299,999 eiF any claim or judgment, or Page 2 of 28 CODING: Wordss4�r-m6eken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 39-01004A-20 20201302 59 portions thereof, which, when totaled with all other claims or 60 judgments paid by the state or its agencies or subdivisions 61 arising out of the same incident or occurrence, exceeds the sum 62 of $1 million $388,988. However, a judgment or judgments may be 63 claimed and rendered in excess of this amount tl-'esc aFfteants and 64 ffiat� _lee se,ttleE and paid pursuant to this act up to $1 million 65 ; and that portion of 66 the judgment that exceeds this amount tl-iesc affieidnts may be 67 reported to the Legislature, but may be paid in part or in whole 68 only by further act of the Legislature. Notwithstanding the 69 limited waiver of sovereign immunity provided herein, the state 70 or an agency or subdivision thereof may agree, ,wi}'-l; r tl-le 4 ; mid 71 ez�sdianee—ewe-iae ff _T;m64eE', to settle a claim made or a 72 judgment rendered against it in excess of $1 million without 73 further action by the Legislature. The state or agency or 74 subdivision thereof may not be deemed to have waived any 75 defense of sovereign immunity or to have increased the limits of 76 its liability as a result of its obtaining insurance coverage 77 for tortious acts in excess of the $1 million $299,999 eia 78 $z399,994 waiver provided above. The limitations of liability set 79 forth in this subsection shall apply to the state and its 80 agencies and subdivisions whether or not the state or its 81 agencies or subdivisions possessed sovereign immunity before 82 July 1, 1974. 83 84 Beginning July 1, 2021, and every July 1 thereafter, the 85 limitations of liability in this paragraph shall be adjusted to 86 reflect changes in the Consumer Price Index for the Southeast or 87 a successor index as calculated by the United States Department Page 3 of 28 CODING: Wordsst-r-m6eken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 39-01004A-20 20201302 88 of Labor. When determining liability limits for a claim, the 89 limitations of liability in effect on the date a final judgment 90 is entered apply to the claim. 91 (b) The state and its agencies and subdivisions shall be 92 liable to pay the final judgment amount for compensatory damages 93 for claims in which an officer, employee, or agent of the state 94 or its subdivisions, in the scope of her or his employment or 95 function, committed the act in bad faith or with malicious 96 purpose or in a manner exhibiting wanton and willful disregard 97 of human rights, safety, or property. The limits in effect on 98 the date a final judgment is entered apply to the judgment. The 99 final judgment amount for compensatory damages for such claims 100 shall be paid without further action by the Legislature. 101 (10)+9+(a) No officer, employee, or agent of the state or 102 of any of its subdivisions shall be held personally liable in 103 tort or named as a party defendant in any action for any injury 104 or damage suffered as a result of any act, event, or omission of 105 action in the scope of her or his employment or function, unless 106 such officer, employee, or agent acted in bad faith or with 107 malicious purpose or in a manner exhibiting wanton and willful 108 disregard of human rights, safety, or property. However, such 109 officer, employee, or agent shall be considered an adverse 110 witness in a tort action for any injury or damage suffered as a 111 result of any act, event, or omission of action in the scope of 112 her or his employment or function. The exclusive remedy for 113 injury or damage suffered as a result of an act, event, or 114 omission of an officer, employee, or agent of the state or any 115 of its subdivisions or constitutional officers shall be by 116 action against the governmental entity, or the head of such Page 4 of 28 CODING: Wordsst-r-m6eken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 39-01004A-20 20201302 117 entity in her or his official capacity, or the constitutional 118 officer of which the officer, employee, or agent is an employee, 119 unless such act or omission was committed in bad faith or with 120 malicious purpose or in a manner exhibiting wanton and willful 121 disregard of human rights, safety, or property. The state or its 122 subdivisions shall not be liable in tort for the acts or 123 omissions of an officer, employee, or agent committed while 124 acting outside the course and scope of her or his employment. 125 However, the state or its subdivision shall be liable for 126 compensatory damages pursuant to paragraph (6)(b) and the 127 employee, officer, or agent of the state or its subdivision 128 shall be liable for all damages for any injury or damage 129 suffered as a result of any act or omission that the person, in 130 the scope of her or his employment or function, e -r- committed in 131 bad faith or with malicious purpose or in a manner exhibiting 132 wanton and willful disregard of human rights, safety, or 133 property. 134 (b) As used in this subsection, the term: 135 1. "Employee" includes any volunteer firefighter. 136 2. "Officer, employee, or agent" includes, but is not 137 limited to, any health care provider when providing services 138 pursuant to s. 766.1115; any nonprofit independent college or 139 university located and chartered in this state which owns or 140 operates an accredited medical school, and its employees or 141 agents, when providing patient services pursuant to paragraph 142 (11)(f) ; Florida Senate - 2020 SB 1302 39-01004A-20 20201302 146 authorized to be self-insured, to enter into risk management 147 programs, or to purchase liability insurance for whatever 148 coverage they may choose, or to have any combination thereof, in 149 anticipation of any claim, judgment, and claims bill which they 150 may be liable to pay pursuant to this section. Agencies or 151 subdivisions, and sheriffs, that are subject to homogeneous 152 risks may purchase insurance jointly or may join together as 153 self -insurers to provide other means of protection against tort 154 claims, any charter provisions or laws to the contrary 155 notwithstanding. An insurance policy may not condition the 156 payment of benefits, in whole or in part, on the enactment of 157 claims bills. 158 Section 2. Paragraph (b) of subsection (2) of section 159 29.0081, Florida Statutes, is amended to read: 160 29.0081 County funding of additional court personnel. - 161 (2) The agreement shall, at a minimum, provide that: 162 (b) The personnel whose employment is funded under the 163 agreement are hired, supervised, managed, and fired by personnel 164 of the judicial circuit. The county shall be considered the 165 employer for purposes of s. 440.10 and chapter 443. Employees 166 funded by the county under this section and other county 167 employees may be aggregated for purposes of a flexible benefits 168 plan pursuant to s. 125 of the Internal Revenue Code of 1986. 169 The judicial circuit shall supervise the personnel whose 170 employment is funded under the agreement; be responsible for 171 compliance with all requirements of federal and state employment 172 laws, including, but not limited to, Title VII of the Civil 173 Rights Act of 1964, Title I of the Americans with Disabilities 174 Act, 42 U.S.C. s. 1983, the Family Medical Leave Act, the Fair Page 6 of 28 CODING: Wordsst-r-m6eken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 39-01004A-20 20201302 175 Labor Standards Act, chapters 447 and 760, and ss. 112.3187, 176 440.105, and 440.205; and fully indemnify the county from any 177 liability under such laws, as authorized by s. 768.28(20) 178 X64.28(19), to the extent such liability is the result of the 179 acts or omissions of the judicial circuit or its agents or 180 employees. 181 Section 3. Paragraph (b) of subsection (2) of section 182 39.8297, Florida Statutes, is amended to read: 183 39.8297 County funding for guardian ad litem employees. - 184 (2) The agreement, at a minimum, must provide that: 185 (b) The persons who are employed will be hired, supervised, 186 managed, and terminated by the executive director of the 187 Statewide Guardian Ad Litem Office. The statewide office is 188 responsible for compliance with all requirements of federal and 189 state employment laws, and shall fully indemnify the county from 190 any liability under such laws, as authorized by s. 768.28(20) 191 X64.28(19), to the extent such liability is the result of the 192 acts or omissions of the Statewide Guardian Ad Litem Office or 193 its agents or employees. 194 Section 4. Paragraph (h) of subsection (3) of section 195 163.01, Florida Statutes, is amended to read: 196 163.01 Florida Interlocal Cooperation Act of 1969.- 197 (3) As used in this section: 198 (h) "Local government liability pool" means a reciprocal 199 insurer as defined in s. 629.021 or any self-insurance program 200 created pursuant to s. 768.28(17) , formed and 201 controlled by counties or municipalities of this state to 202 provide liability insurance coverage for counties, 203 municipalities, or other public agencies of this state, which Page 7 of 28 CODING: Wordss4�r-m6eken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 39-01004A-20 20201302 204 pool may contract with other parties for the purpose of 205 providing claims administration, processing, accounting, and 206 other administrative facilities. 207 Section 5. Paragraph (1) of subsection (5) of section 208 252.36, Florida Statutes, is amended to read: 209 252.36 Emergency management powers of the Governor. - 210 (5) In addition to any other powers conferred upon the 211 Governor by law, she or he may: 212 (1) Authorize the use of forces already mobilized as the 213 result of an executive order, rule, or proclamation to assist 214 the private citizens of the state in cleanup and recovery 215 operations during emergencies when proper permission to enter 216 onto or into private property has been obtained from the 217 property owner. The provisions of s. 768.28(10) 218 apply to this paragraph. 219 Section 6. Subsection (2) of section 260.0125, Florida 220 Statutes, is amended to read: 221 260.0125 Limitation on liability of private landowners 222 whose property is designated as part of the statewide system of 223 greenways and trails. - 224 (2) Any private landowner who consents to designation of 225 his or her land as part of the statewide system of greenways and 226 trails pursuant to s. 260.016(2)(d) without compensation shall 227 be considered a volunteer, as defined in s. 110.501, and shall 228 be covered by state liability protection pursuant to s. 768.28, 229 including s. 768.28(10) . 230 Section 7. Subsection (2) and paragraph (g) of subsection 231 (10) of section 288.9625, Florida Statutes, are amended to read: 232 288.9625 Institute for Commercialization of Florida Page 8 of 28 CODING: Wordsst-r-m6eken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 39-01004A-20 20201302 233 Technology. - 234 (2) The purpose of the institute is to assist, without any 235 financial support or specific appropriations from the state, in 236 the commercialization of products developed by the research and 237 development activities of an innovation business, including, but 238 not limited to, those defined in s. 288.1089. The institute 239 shall fulfill its purpose in the best interests of the state. 240 The institute: 241 (a) Is a corporation primarily acting as an instrumentality 242 of the state pursuant to s. 768.28(3) =. �o8.28(zT, for the 243 purposes of sovereign immunity; 244 (b) Is not an agency within the meaning of s. 20.03(11); 245 (c) Is subject to the open records and meetings 246 requirements of s. 24, Art. I of the State Constitution, chapter 247 119, and s. 286.011; 248 (d) Is not subject to chapter 287; 249 (e) Is governed by the code of ethics for public officers 250 and employees as set forth in part III of chapter 112; 251 (f) May create corporate subsidiaries; and 252 (g) May not receive any financial support or specific 253 appropriations from the state. 254 (10) The private fund manager: 255 (g) Is not a corporation primarily acting as an 256 instrumentality of the state pursuant to s. 768.28(3) 257 , for the purposes of sovereign immunity. 258 Section 8. Section 316.6146, Florida Statutes, is amended 259 to read: 260 316.6146 Transportation of private school students on 261 public school buses and public school students on private school Page 9 of 28 CODING: Wordsst-r-m6eken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 39-01004A-20 20201302 262 buses; agreement. -Private school students may be transported on 263 public school buses and public school students may be 264 transported on private school buses when there is mutual 265 agreement between the local school board and the applicable 266 private school. Any agreement for private school students to be 267 transported on public school buses must be in accordance with 268 ss. 768.28(10)(a) and 316.6145. Any agreement 269 for public school students to be transported on private school 270 buses must be contingent on the private school bus driver's 271 having adequate liability insurance through his or her employer. 272 Section 9. Subsection (5) of section 321.24, Florida 273 Statutes, is amended to read: 274 321.24 Members of an auxiliary to Florida Highway Patrol. - 275 (5) Notwithstanding any other law to the contrary, any 276 volunteer highway patrol troop surgeon appointed by the director 277 of the Florida Highway Patrol and any volunteer licensed health 278 professional appointed by the director of the Florida Highway 279 Patrol to work under the medical direction of a highway patrol 280 troop surgeon is considered an employee for purposes of s. 281 768.28 (10) . 282 Section 10. Subsection (1) of section 324.022, Florida 283 Statutes, is amended to read: 284 324.022 Financial responsibility for property damage. - 285 (1) Every owner or operator of a motor vehicle required to 286 be registered in this state shall establish and maintain the 287 ability to respond in damages for liability on account of 288 accidents arising out of the use of the motor vehicle in the 289 amount of $10,000 because of damage to, or destruction of, 290 property of others in any one crash. The requirements of this Page 10 of 28 CODING: Wordss4�r-4:eken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 39-01004A-20 20201302 291 section may be met by one of the methods established in s. 292 324.031; by self-insuring as authorized by s. 768.28(17) 293 X64.28(16); or by maintaining an insurance policy providing 294 coverage for property damage liability in the amount of at least 295 $10,000 because of damage to, or destruction of, property of 296 others in any one accident arising out of the use of the motor 297 vehicle. The requirements of this section may also be met by 298 having a policy which provides coverage in the amount of at 299 least $30,000 for combined property damage liability and bodily 300 injury liability for any one crash arising out of the use of the 301 motor vehicle. The policy, with respect to coverage for property 302 damage liability, must meet the applicable requirements of s. 303 324.151, subject to the usual policy exclusions that have been 304 approved in policy forms by the Office of Insurance Regulation. 305 No insurer shall have any duty to defend uncovered claims 306 irrespective of their joinder with covered claims. 307 Section 11. Subsection (9) of section 381.0056, Florida 308 Statutes, is amended to read: 309 381.0056 School health services program. - 310 (9) Any health care entity that provides school health 311 services under contract with the department pursuant to a school 312 health services plan developed under this section, and as part 313 of a school nurse services public-private partnership, is deemed 314 to be a corporation acting primarily as an instrumentality of 315 the state solely for the purpose of limiting liability pursuant 316 to s. 768.28(6) . The limitations on tort actions 317 contained in s. 768.28(6) _. �o8.28(5) shall apply to any action 318 against the entity with respect to the provision of school 319 health services, if the entity is acting within the scope of and Page 11 of 28 CODING: Wordss4�r-4:eken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 39-01004A-20 20201302 320 pursuant to guidelines established in the contract or by rule of 321 the department. The contract must require the entity, or the 322 partnership on behalf of the entity, to obtain general liability 323 insurance coverage, with any additional endorsement necessary to 324 insure the entity for liability assumed by its contract with the 325 department. The Legislature intends that insurance be purchased 326 by entities, or by partnerships on behalf of the entity, to 327 cover all liability claims, and under no circumstances shall the 328 state or the department be responsible for payment of any claims 329 or defense costs for claims brought against the entity or its 330 subcontractor for services performed under the contract with the 331 department. This subsection does not preclude consideration by 332 the Legislature for payment by the state of any claims bill 333 involving an entity contracting with the department pursuant to 334 this section. 335 Section 12. Subsection (4) of section 403.0862, Florida 336 Statutes, is amended to read: 337 403.0862 Discharge of waste from state groundwater cleanup 338 operations to publicly owned treatment works. - 339 (4) The limitation on damages provided by s. 768.28(6) 340 X68.28(-5 shall not apply to any obligation or payment which may 341 become due under this section. 342 Section 13. Paragraph (a) of subsection (2) of section 343 456.048, Florida Statutes, is amended to read: 344 456.048 Financial responsibility requirements for certain 345 health care practitioners. - 346 (2) The board or department may grant exemptions upon 347 application by practitioners meeting any of the following 348 criteria: Page 12 of 28 CODING: Wordsst-r-m6eken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 39-01004A-20 20201302 349 (a) Any person licensed under chapter 457, s. 458.3475, s. 350 459.023, chapter 460, chapter 461, s. 464.012, chapter 466, or 351 chapter 467 who practices exclusively as an officer, employee, 352 or agent of the Federal Government or of the state or its 353 agencies or its subdivisions. For the purposes of this 354 subsection, an agent of the state, its agencies, or its 355 subdivisions is a person who is eligible for coverage under any 356 self-insurance or insurance program authorized by the provisions 357 of s. 768.28(17). �68.''�T or who is a volunteer under s. 358 110.501 (1) . 359 Section 14. Paragraph (a) of subsection (5) of section 360 458.320, Florida Statutes, is amended to read: 361 458.320 Financial responsibility. - 362 (5) The requirements of subsections (1), (2), and (3) do 363 not apply to: 364 (a) Any person licensed under this chapter who practices 365 medicine exclusively as an officer, employee, or agent of the 366 Federal Government or of the state or its agencies or its 367 subdivisions. For the purposes of this subsection, an agent of 368 the state, its agencies, or its subdivisions is a person who is 369 eligible for coverage under any self-insurance or insurance 370 program authorized by the provisions of s. 768.28(17) 371 X68.28(16). 372 Section 15. Paragraph (a) of subsection (5) of section 373 459.0085, Florida Statutes, is amended to read: 374 459.0085 Financial responsibility. - 375 (5) The requirements of subsections (1), (2), and (3) do 376 not apply to: 377 (a) Any person licensed under this chapter who practices Page 13 of 28 CODING: Wordsst-r-m6eken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 39-01004A-20 20201302 378 medicine exclusively as an officer, employee, or agent of the 379 Federal Government or of the state or its agencies or its 380 subdivisions. For the purposes of this subsection, an agent of 381 the state, its agencies, or its subdivisions is a person who is 382 eligible for coverage under any self-insurance or insurance 383 program authorized by the provisions of s. 768.28(17) 384 . 385 Section 16. Paragraph (e) of subsection (4) of section 386 589.19, Florida Statutes, is amended to read: 387 589.19 Creation of certain state forests; naming of certain 388 state forests; Operation Outdoor Freedom Program. - 389 (4) 390 (e)l. A private landowner who provides land for designation 391 and use as an Operation Outdoor Freedom Program hunting site 392 shall have limited liability pursuant to s. 375.251. 393 2. A private landowner who consents to the designation and 394 use of land as part of the Operation Outdoor Freedom Program 395 without compensation shall be considered a volunteer, as defined 396 in s. 110.501, and shall be covered by state liability 397 protection pursuant to s. 768.28, including s. 768.28(10) 398 6Q 28 (-9 399 3. This subsection does not: 400 a. Relieve any person of liability that would otherwise 401 exist for deliberate, willful, or malicious injury to persons or 402 property. 403 b. Create or increase the liability of any person. 404 Section 17. Paragraph (c) of subsection (9) of section 405 616.242, Florida Statutes, is amended to read: 406 616.242 Safety standards for amusement rides.— Page 14 of 28 CODING: Wordsst-r-m6eken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 39-01004A-20 20201302 407 (9) INSURANCE REQUIREMENTS. - 408 (c) The insurance requirements imposed under this 409 subsection do not apply to a governmental entity that is covered 410 by the provisions of s. 768.28(17). �68.28(16). 411 Section 18. Section 624.461, Florida Statutes, is amended 412 to read: 413 624.461 Definition.—For the purposes of the Florida 414 Insurance Code, "self-insurance fund" means both commercial 415 self-insurance funds organized under s. 624.462 and group self - 416 insurance funds organized under s. 624.4621. The term "self - 417 insurance fund" does not include a governmental self-insurance 418 pool created under s. 768.28(17) . 419 Section 19. Subsection (6) of section 624.462, Florida 420 Statutes, is amended to read: 421 624.462 Commercial self-insurance funds. - 422 (6) A governmental self-insurance pool created pursuant to 423 s. 768.28(17) s. �o8.28(16) shall not be considered a commercial 424 self-insurance fund. 425 Section 20. Paragraph (b) of subsection (3) of section 426 627.733, Florida Statutes, is amended to read: 427 627.733 Required security. - 428 (3) Such security shall be provided: 429 (b) By any other method authorized by s. 324.031(2) or (3) 430 and approved by the Department of Highway Safety and Motor 431 Vehicles as affording security equivalent to that afforded by a 432 policy of insurance or by self-insuring as authorized by s. 433 768.28(17) s. �o8.28(16). The person filing such security shall 434 have all of the obligations and rights of an insurer under ss. 435 627.730-627.7405. Page 15 of 28 CODING: Wordsst-r-m6eken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 39-01004A-20 20201302 436 Section 21. Subsection (5) of section 760.11, Florida 437 Statutes, is amended to read: 438 760.11 Administrative and civil remedies; construction. - 439 (5) In any civil action brought under this section, the 440 court may issue an order prohibiting the discriminatory practice 441 and providing affirmative relief from the effects of the 442 practice, including back pay. The court may also award 443 compensatory damages, including, but not limited to, damages for 444 mental anguish, loss of dignity, and any other intangible 445 injuries, and punitive damages. The provisions of ss. 768.72 and 446 768.73 do not apply to this section. The judgment for the total 447 amount of punitive damages awarded under this section to an 448 aggrieved person shall not exceed $100,000. In any action or 449 proceeding under this subsection, the court, in its discretion, 450 may allow the prevailing party a reasonable attorney ratte Enew 451 fee as part of the costs. It is the intent of the Legislature 452 that this provision for attorney T}�Trey-L-& fees be interpreted 453 in a manner consistent with federal case law involving a Title 454 VII action. The right to trial by jury is preserved in any such 455 private right of action in which the aggrieved person is seeking 456 compensatory or punitive damages, and any party may demand a 457 trial by jury. The commission's determination of reasonable 458 cause is not admissible into evidence in any civil proceeding, 459 including any hearing or trial, except to establish for the 460 court the right to maintain the private right of action. A civil 461 action brought under this section shall be commenced no later 462 than 1 year after the date of determination of reasonable cause 463 by the commission. The commencement of such action shall divest 464 the commission of jurisdiction of the complaint, except that the Page 16 of 28 CODING: Wordsst-r-m6eken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 39-01004A-20 20201302 465 commission may intervene in the civil action as a matter of 466 right. Notwithstanding the above, the state and its agencies and 467 subdivisions shall not be liable for punitive damages. The total 468 amount of recovery against the state and its agencies and 469 subdivisions shall not exceed the limitation as set forth in s. 470 768.28 (6) . 471 Section 22. Subsection (4) and paragraphs (a) and (b) of 472 subsection (12) of section 766.1115, Florida Statutes, are 473 amended to read: 474 766.1115 Health care providers; creation of agency 475 relationship with governmental contractors. - 476 (4) CONTRACT REQUIREMENTS.—A health care provider that 477 executes a contract with a governmental contractor to deliver 478 health care services on or after April 17, 1992, as an agent of 479 the governmental contractor is an agent for purposes of s. 480 768.28(10) =. �o8.28(9), while acting within the scope of duties 481 under the contract, if the contract complies with the 482 requirements of this section and regardless of whether the 483 individual treated is later found to be ineligible. A health 484 care provider shall continue to be an agent for purposes of s. 485 768.28(10) =. �o8.28(9) for 30 days after a determination of 486 ineligibility to allow for treatment until the individual 487 transitions to treatment by another health care provider. A 488 health care provider under contract with the state may not be 489 named as a defendant in any action arising out of medical care 490 or treatment provided on or after April 17, 1992, under 491 contracts entered into under this section. The contract must 492 provide that: 493 (a) The right of dismissal or termination of any health Page 17 of 28 CODING: Wordsst-r-m6eken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 39-01004A-20 20201302 494 care provider delivering services under the contract is retained 495 by the governmental contractor. 496 (b) The governmental contractor has access to the patient 497 records of any health care provider delivering services under 498 the contract. 499 (c) Adverse incidents and information on treatment outcomes 500 must be reported by any health care provider to the governmental 501 contractor if the incidents and information pertain to a patient 502 treated under the contract. The health care provider shall 503 submit the reports required by s. 395.0197. If an incident 504 involves a professional licensed by the Department of Health or 505 a facility licensed by the Agency for Health Care 506 Administration, the governmental contractor shall submit such 507 incident reports to the appropriate department or agency, which 508 shall review each incident and determine whether it involves 509 conduct by the licensee that is subject to disciplinary action. 510 All patient medical records and any identifying information 511 contained in adverse incident reports and treatment outcomes 512 which are obtained by governmental entities under this paragraph 513 are confidential and exempt from the provisions of s. 119.07(1) 514 and s. 24(a), Art. I of the State Constitution. 515 (d) Patient selection and initial referral must be made by 516 the governmental contractor or the provider. Patients may not be 517 transferred to the provider based on a violation of the 518 antidumping provisions of the Omnibus Budget Reconciliation Act 519 of 1989, the Omnibus Budget Reconciliation Act of 1990, or 520 chapter 395. 521 (e) If emergency care is required, the patient need not be 522 referred before receiving treatment, but must be referred within Page 18 of 28 CODING: Wordsst-r-4:eken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 39-01004A-20 20201302 523 48 hours after treatment is commenced or within 48 hours after 524 the patient has the mental capacity to consent to treatment, 525 whichever occurs later. 526 (f) The provider is subject to supervision and regular 527 inspection by the governmental contractor. 528 (g) As an agent of the governmental contractor for purposes 529 of s. 768.28(10) , while acting within the scope of 530 duties under the contract, a health care provider licensed under 531 chapter 466 may allow a patient, or a parent or guardian of the 532 patient, to voluntarily contribute a monetary amount to cover 533 costs of dental laboratory work related to the services provided 534 to the patient. This contribution may not exceed the actual cost 535 of the dental laboratory charges. 536 537 A governmental contractor that is also a health care provider is 538 not required to enter into a contract under this section with 539 respect to the health care services delivered by its employees. 540 (12) APPLICABILITY.—This section applies to incidents 541 occurring on or after April 17, 1992. This section does not: 542 (a) Apply to any health care contract entered into by the 543 Department of Corrections which is subject to s. 768.28(11)(a) 544 =oi.n4 545 (b) Apply to any affiliation agreement or other contract 546 that is subject to s. 768.28(11)(f) s. 547 Section 23. Paragraph (c) of subsection (6) of section 548 766.118, Florida Statutes, is amended to read: 549 766.118 Determination of noneconomic damages. - 550 (6) LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF A 551 PRACTITIONER PROVIDING SERVICES AND CARE TO A MEDICAID Page 19 of 28 CODING: Wordsst-r-m6eken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 39-01004A-20 20201302 552 RECIPIENT.—Notwithstanding subsections (2), (3), and (5), with 553 respect to a cause of action for personal injury or wrongful 554 death arising from medical negligence of a practitioner 555 committed in the course of providing medical services and 556 medical care to a Medicaid recipient, regardless of the number 557 of such practitioner defendants providing the services and care, 558 noneconomic damages may not exceed $300,000 per claimant, unless 559 the claimant pleads and proves, by clear and convincing 560 evidence, that the practitioner acted in a wrongful manner. A 561 practitioner providing medical services and medical care to a 562 Medicaid recipient is not liable for more than $200,000 in 563 noneconomic damages, regardless of the number of claimants, 564 unless the claimant pleads and proves, by clear and convincing 565 evidence, that the practitioner acted in a wrongful manner. The 566 fact that a claimant proves that a practitioner acted in a 567 wrongful manner does not preclude the application of the 568 limitation on noneconomic damages prescribed elsewhere in this 569 section. For purposes of this subsection: 570 (c) The term "wrongful manner" means in bad faith or with 571 malicious purpose or in a manner exhibiting wanton and willful 572 disregard of human rights, safety, or property, and shall be 573 construed in conformity with the standard set forth in s. 574 768.28 (10) (a) _68.28(9)(a). 575 Section 24. Paragraph (c) of subsection (2) of section 576 768.1315, Florida Statutes, is amended to read: 577 768.1315 Good Samaritan Volunteer Firefighters' Assistance 578 Act; immunity from civil liability. - 579 (2) DEFINITIONS.—As used in this section, the term: 580 (c) "State agency or subdivision" shall have the meaning Page 20 of 28 CODING: Wordss4�r-4:eken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 39-01004A-20 20201302 581 provided in s. 768.28(3) . 582 583 Nothing in this section shall be construed as a waiver of 584 sovereign immunity. 585 Section 25. Subsection (4) of section 768.135, Florida 586 Statutes, is amended to read: 587 768.135 Volunteer team physicians; immunity. - 588 (4) As used in this section, the term "wrongful manner" 589 means in bad faith or with malicious purpose or in a manner 590 exhibiting wanton and willful disregard of human rights, safety, 591 or property, and shall be construed in conformity with the 592 standard set forth in s. 768.28(10)(a) . 593 Section 26. Subsection (2) of section 944.713, Florida 594 Statutes, is amended to read: 595 944.713 Insurance against liability. - 596 (2) The contract shall provide for indemnification of the 597 state by the private vendor for any liabilities incurred up to 598 the limits provided under s. 768.28(6) . The 599 contract shall provide that the private vendor, or the insurer 600 of the private vendor, is liable to pay any claim or judgment 601 for any one person which does not exceed the sum of $100,000 or 602 any claim or judgment, or portions thereof, which, when totaled 603 with all other claims or judgments arising out of the same 604 incident or occurrence, does not exceed the sum of $200,000. In 605 addition, the contractor must agree to defend, hold harmless, 606 and indemnify the department against any and all actions, 607 claims, damages and losses, including costs and attorney 608 T }�Treyfs fees. 609 Section 27. Subsection (3) of section 984.09, Florida Page 21 of 28 CODING: Wordsst-r-m6eken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 39-01004A-20 20201302 610 Statutes, is amended to read: 611 984.09 Punishment for contempt of court; alternative 612 sanctions. - 613 (3) ALTERNATIVE SANCTIONS.—Each judicial circuit shall have 614 an alternative sanctions coordinator who shall serve under the 615 chief administrative judge of the juvenile division of the 616 circuit court, and who shall coordinate and maintain a spectrum 617 of contempt sanction alternatives in conjunction with the 618 circuit plan implemented in accordance with s. 790.22(4)(c). 619 Upon determining that a child has committed direct contempt of 620 court or indirect contempt of a valid court order, the court may 621 immediately request the alternative sanctions coordinator to 622 recommend the most appropriate available alternative sanction 623 and shall order the child to perform up to 50 hours of 624 community -service manual labor or a similar alternative 625 sanction, unless an alternative sanction is unavailable or 626 inappropriate, or unless the child has failed to comply with a 627 prior alternative sanction. Alternative contempt sanctions may 628 be provided by local industry or by any nonprofit organization 629 or any public or private business or service entity that has 630 entered into a contract with the Department of Juvenile Justice 631 to act as an agent of the state to provide voluntary supervision 632 of children on behalf of the state in exchange for the manual 633 labor of children and limited immunity in accordance with s. 634 768.28 (12) r.C°.T,'�. 635 Section 28. Subsection (3) of section 985.037, Florida 636 Statutes, is amended to read: 637 985.037 Punishment for contempt of court; alternative 638 sanctions.— Page 22 of 28 CODING: Wordsst-r-m6eken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 39-01004A-20 20201302 639 (3) ALTERNATIVE SANCTIONS.—Each judicial circuit shall have 640 an alternative sanctions coordinator who shall serve under the 641 chief administrative judge of the juvenile division of the 642 circuit court, and who shall coordinate and maintain a spectrum 643 of contempt sanction alternatives in conjunction with the 644 circuit plan implemented in accordance with s. 790.22(4)(c). 645 Upon determining that a child has committed direct contempt of 646 court or indirect contempt of a valid court order, the court may 647 immediately request the alternative sanctions coordinator to 648 recommend the most appropriate available alternative sanction 649 and shall order the child to perform up to 50 hours of 650 community -service manual labor or a similar alternative 651 sanction, unless an alternative sanction is unavailable or 652 inappropriate, or unless the child has failed to comply with a 653 prior alternative sanction. Alternative contempt sanctions may 654 be provided by local industry or by any nonprofit organization 655 or any public or private business or service entity that has 656 entered into a contract with the Department of Juvenile Justice 657 to act as an agent of the state to provide voluntary supervision 658 of children on behalf of the state in exchange for the manual 659 labor of children and limited immunity in accordance with s. 660 768.28 (12) =.o4r�. 661 Section 29. Paragraph (1) of subsection (3) of section 662 1002.55, Florida Statutes, is amended to read: 663 1002.55 School -year prekindergarten program delivered by 664 private prekindergarten providers. - 665 (3) To be eligible to deliver the prekindergarten program, 666 a private prekindergarten provider must meet each of the 667 following requirements: Page 23 of 28 CODING: Wordsst-r-4:eken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 39-01004A-20 20201302 668 (1) Notwithstanding paragraph (j), for a private 669 prekindergarten provider that is a state agency or a subdivision 670 thereof, as defined in s. 768.28(3) =. �o8.28(zT, the provider 671 must agree to notify the coalition of any additional liability 672 coverage maintained by the provider in addition to that 673 otherwise established under s. 768.28. The provider shall 674 indemnify the coalition to the extent permitted by s. 768.28. 675 Section 30. Paragraph (p) of subsection (1) of section 676 1002.88, Florida Statutes, is amended to read: 677 1002.88 School readiness program provider standards; 678 eligibility to deliver the school readiness program. - 679 (1) To be eligible to deliver the school readiness program, 680 a school readiness program provider must: 681 (p) Notwithstanding paragraph (m), for a provider that is a 682 state agency or a subdivision thereof, as defined in s. 683 768.28(3) _. �o8.28(z'), agree to notify the coalition of any 684 additional liability coverage maintained by the provider in 685 addition to that otherwise established under s. 768.28. The 686 provider shall indemnify the coalition to the extent permitted 687 by s. 768.28. 688 Section 31. Paragraph (e) of subsection (4) and paragraph 689 (d) of subsection (5) of section 1004.41, Florida Statutes, are 690 amended to read: 691 1004.41 University of Florida; J. Hillis Miller Health 692 Center. - 693 (4) 694 (e) Shands Teaching Hospital and Clinics, Inc., in support 695 of the health affairs mission of the University of Florida Board 696 of Trustees and with the board's prior approval, may create or Page 24 of 28 CODING: Wordsst-r-m6eken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 39-01004A-20 20201302 697 have created either for-profit or not-for-profit subsidiaries 698 and affiliates, or both. The University of Florida Board of 699 Trustees, which may act through the president of the university 700 or his or her designee, may control Shands Teaching Hospital and 701 Clinics, Inc. For purposes of sovereign immunity pursuant to s. 702 768.28(3) , Shands Teaching Hospital and Clinics, 703 Inc., and any not-for-profit subsidiary which directly delivers 704 health care services and whose governing board is chaired by the 705 president of the university or his or her designee and is 706 controlled by the University of Florida Board of Trustees, which 707 may act through the president of the university or his or her 708 designee and whose primary purpose is the support of the 709 University of Florida Board of Trustees' health affairs mission, 710 shall be conclusively deemed a corporation primarily acting as 711 an instrumentality of the state. 712 (5) 713 (d) For purposes of sovereign immunity pursuant to s. 714 768.28(3) , Shands Jacksonville Medical Center, 715 Inc., Shands Jacksonville Healthcare, Inc., and any not -for - 716 profit subsidiary which directly delivers health care services 717 and whose governing board is chaired by the President of the 718 University of Florida or his or her designee and is controlled 719 by the University of Florida Board of Trustees, which may act 720 through the president of the university or his or her designee 721 and whose primary purpose is the support of the University of 722 Florida Board of Trustees' health affairs mission, shall be 723 conclusively deemed corporations primarily acting as 724 instrumentalities of the state. 725 Section 32. Subsection (1) of section 1004.43, Florida Page 25 of 28 CODING: Wordsst-r-4:eken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 39-01004A-20 20201302 726 Statutes, is amended to read: 727 1004.43 H. Lee Moffitt Cancer Center and Research 728 Institute.—There is established the H. Lee Moffitt Cancer Center 729 and Research Institute, a statewide resource for basic and 730 clinical research and multidisciplinary approaches to patient 731 care. 732 (1) The Board of Trustees of the University of South 733 Florida shall enter into a lease agreement for the utilization 734 of the lands and facilities on the campus of the University of 735 South Florida to be known as the H. Lee Moffitt Cancer Center 736 and Research Institute, including all furnishings, equipment, 737 and other chattels used in the operation of such facilities, 738 with a Florida not-for-profit corporation organized solely for 739 the purpose of governing and operating the H. Lee Moffitt Cancer 740 Center and Research Institute. The lease agreement with the not - 741 for-profit corporation shall be rent free as long as the not - 742 for-profit corporation and its subsidiaries utilize the lands 743 and facilities primarily for research, education, treatment, 744 prevention, and early detection of cancer or for teaching and 745 research programs conducted by state universities or other 746 accredited medical schools or research institutes. The lease 747 agreement shall provide for review of construction plans and 748 specifications by the University of South Florida for 749 consistency with the university's campus master plan, impact on 750 the university's utilities infrastructure, compliance with 751 applicable building codes and general design characteristics, 752 and compatibility with university architecture, as appropriate. 753 The not-for-profit corporation may, with the prior approval of 754 the Board of Governors, create either for-profit or not -for - Page 26 of 28 CODING: Wordsst-r-4:eken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 39-01004A-20 20201302 755 profit corporate subsidiaries, or both, to fulfill its mission. 756 The not-for-profit corporation and any approved not-for-profit 757 subsidiary shall be conclusively deemed corporations primarily 758 acting as instrumentalities of the state, pursuant to s. 759 768.28(3) _. �o8.28(z'), for purposes of sovereign immunity. For - 760 profit subsidiaries of the not-for-profit corporation may not 761 compete with for-profit health care providers in the delivery of 762 radiation therapy services to patients. The not-for-profit 763 corporation and its subsidiaries are authorized to receive, 764 hold, invest, and administer property and any moneys received 765 from private, local, state, and federal sources, as well as 766 technical and professional income generated or derived from 767 practice activities of the institute, for the benefit of the 768 institute and the fulfillment of its mission. The affairs of the 769 corporation shall be managed by a board of directors who shall 770 serve without compensation. The President of the University of 771 South Florida and the chair of the Board of Governors, or his or 772 her designee, shall be directors of the not-for-profit 773 corporation. Each director shall have only one vote, shall serve 774 a term of 3 years, and may be reelected to the board. Other than 775 the President of the University of South Florida and the chair 776 of the Board of Governors, directors shall be elected by a 777 majority vote of the board. The chair of the board of directors 778 shall be selected by majority vote of the directors. 779 Section 33. Paragraph (a) of subsection (2) of section 780 1004.447, Florida Statutes, is amended to read: 781 1004.447 Florida Institute for Human and Machine Cognition, 782 Inc. - 783 (2) The corporation and any authorized and approved Page 27 of 28 CODING: Wordsst-r-m6eken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 39-01004A-20 20201302 784 subsidiary: 785 (a) Shall be a corporation primarily acting as an 786 instrumentality of the state, pursuant to s. 768.28(3) 7878-(-2}, for purposes of sovereign immunity. 788 Section 34. Paragraph (b) of subsection (2) of section 789 1006.261, Florida Statutes, is amended to read: 790 1006.261 Use of school buses for public purposes. - 791 (2) 792 (b) For purposes of liability for negligence, state 793 agencies or subdivisions as defined in s. 768.28(3) =. �o8.28(ZT 794 shall be covered by s. 768.28. Every other corporation or 795 organization shall provide liability insurance coverage in the 796 minimum amounts of $100,000 on any claim or judgment and 797 $200,000 on all claims and judgments arising from the same 798 incident or occurrence. 799 Section 35. Sections 45.061, 110.504, 111.071, 800 163.01(15)(k), 190.043, 213.015, 284.31, 284.38, 337.19, 801 341.302, 373.1395, 375.251, 393.075, 403.706, 409.993, 455.221, 802 455.32, 456.009, 472.006, 497.167, 548.046, 556.106, 768.295, 803 946.5026, 946.514, 961.06, 1002.33, 1002.333, 1002.34, 1002.77, 804 and 1002.83, Florida Statutes, are reenacted for the purpose of 805 incorporating the amendment made by this act to s. 768.28, 806 Florida Statutes, in references thereto. 807 Section 36. This act shall take effect October 1, 2020. Page 28 of 28 CODING: Wordsst-r-m6eken are deletions; words underlined are additions.