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Public Employees Alleging Sovereign Immunity Do Not Have To Wait for Lawsuits to Be Resolved to Appeal Non-Final Orders

On November 15, the Florida Supreme Court (the “Court”) unanimously ruled in Keck v. Eminisor, 2012 WL 5516053 (Fla. Nov. 15, 2012) that public employees do not have to wait until lawsuits are resolved to appeal non-final orders denying summary judgment based on claims of sovereign immunity.

In 2005, Ashleigh Eminisor was struck by a Jacksonville Transit Authority (“JTA”) bus driven by Andreas Keck. Eminisor filed a negligence action against Keck, the JTA, and the Jax Transit Management Corporation (“JTM”), a nonprofit entity created to run JTA’s bus system and pay JTA’s unionized workers. Keck, who was employed by JTM, moved for summary judgment in the trial court, claiming immunity from suit and liability under F.S.A. 768.28(9)(a). The trial court denied Keck’s motion, finding that JTM was neither a “state agency or subdivision” or an agent of the state, and that Keck was therefore not entitled to immunity. Keck sought review of the trial court’s denial of his motion for summary judgment, and petitioned the First District Court of Appeal for a writ of certiorari. The First District declined to exercise certiorari review, concluding that certiorari review was improper. Keck appealed this decision to the Court.

In quashing the District Court’s decision, the Court held that an appellate court can review a non-final order where the trial court denied an employee’s motion for summary judgment based on a claim of immunity under F.S.A. 768.28(9)(a). Recognizing that its decision would require a change in the state’s appellate court rules, the Court requested the Florida Bar Appellate Court Rules Committee to submit a proposed amendment to the existing rule to accommodate the Court’s decision. The Court also reviewed the merits of Keck’s motion for summary judgment. In its analysis, the Court determined that JTM was indeed a “state agency or subdivision” because it primarily acts as an instrumentality of JTA, which is within the statutory definition of a state agency. Because Keck acted within the scope of his employment when he allegedly committed ordinary negligence, the Court held that Keck, as an employee of JTM, was entitled to individual immunity under F.S.A. 768.28(9)(a).

Chaired by Partner Matthew H. Mandel, WSH’s Litigation Division has extensive experience defending municipalities and governmental agencies in all areas of liability. The Division has successfully defended elected officials, employees, individual departments, branches and divisions in both State and Federal courts at the trial and appellate levels. The Firm specializes in cases involving negligence, tort liability, sovereign immunity, qualified immunity, civil rights, torts and common law claims. Our Appellate Practice Group, led by Partner Edward G. Guedes, handles dozens of appeals generated each year by our trial practice and successfully advocates regularly before the Florida Supreme Court and all of the Florida district courts of appeal.

You can read a copy of the Court’s Opinion here.

Categories: LitigationAppellate Law & PracticeTorts
Tags: Public EmployeesPublic EmployersGovernmental LitigationSpecial Counsel to Local GovernmentJamie A. ColeEdward G. GuedesMichael S. PopokJoseph H. SerotaLaura K. WendellMatthew H. MandelFort Lauderdale Appellate Law AttorneysMiami Appellate Law AttorneysSouth Florida Appellate Law AttorneysFort Lauderdale LitigatorsMiami LitigatorsSouth Florida LitigatorsFlorida Litigation AttorneysFort Lauderdale Civil Litigation AttorneysMiami Litigation Attorney
Author(s): Brooke P. Dolara