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In Lovelace, 320 So.3d 178, the Fourth District again accepted jurisdiction of a nonfinal order denying a motion for summary judgment as to sovereign immunity.
Summary of this case from Emerald Coast Utils. Auth. v. Thomas Home Corp.Opinion
No. 4D20-1434
05-12-2021
Kevin LOVELACE, Appellant, v. G4S SECURE SOLUTIONS (USA), INC., Appellee.
Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather & Littky-Rubin, LLP, West Palm Beach, and Alana R. Weatherstone of Gordon & Partners, Davie, for appellant. Irwin R. Gilbert and Janine McGuire of Conrad & Scherer, LLP, Fort Lauderdale, for appellee.
Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather & Littky-Rubin, LLP, West Palm Beach, and Alana R. Weatherstone of Gordon & Partners, Davie, for appellant.
Irwin R. Gilbert and Janine McGuire of Conrad & Scherer, LLP, Fort Lauderdale, for appellee.
Levine, C.J. Appellant alleged that appellee, G4S Secure Solutions (USA), Inc., was negligent in failing to detect and remove a piece of plexiglass that appellant fell on. The trial court granted summary judgment finding that sovereign immunity under section 768.28(9)(a), Florida Statutes (2015), applied due to the nature of the control that Broward County asserted over G4S. We agree with the trial court and find that G4S was entitled to sovereign immunity. However, we disagree with the trial court that subsection (9)(a) applies and find that, under the facts of this case, G4S was entitled to sovereign immunity under section 768.28(5), Florida Statutes (2015). Thus, we affirm in part and reverse in part.
Broward County contracted with G4S to provide security services at various county facilities including the Broward Government Center. Appellant allegedly slipped and fell on a piece of plexiglass lying on the ground outside the Broward Government Center. Appellant claimed that G4S was negligent in failing to detect and remove the plexiglass. G4S moved for summary judgment claiming that, as an agent of Broward County, it was entitled to sovereign immunity under section 768.28(9)(a). G4S cited to many provisions of the agreement between Broward County and G4S to demonstrate the high level of control Broward County asserted over G4S.
The agreement between Broward County and G4S contained the following various provisions relevant to the issue of control and sovereign immunity:
ARTICLE 5. INDEMNIFICATION
G4S shall at all times hereafter indemnify, hold harmless and defend County and all of County's current and former (limited to the term of this Agreement) officers, agents, servants, and employees (collectively, "Indemnified Party") from and against any and all causes of action, demands, claims, losses, liabilities and expenditures of any kind, including reasonable attorneys’ fees, court costs, and expenses (collectively, a "Claim"), raised or asserted by any person or entity not a party to this Agreement, which Claim is caused or alleged to be caused, in whole or in part, by any intentional, reckless or negligent act or omission of G4S, its current or former officers, employees, agents, or servants, arising from, relating to, or in connection with this Agreement....
ARTICLE 6. INSURANCE
6.1 G4S shall maintain, at its sole expense and at all times during the term of this Agreement (unless a different time period is otherwise stated herein), at least the minimum insurance coverage designated in Exhibit G [$1,000,000] in accordance with the terms and conditions stated in this Article.
....
ARTICLE 9. MISCELLANEOUS
....
9.3 Audit Rights, and Retention of Records. County shall have the right to audit the books, records, and accounts of G4S and its Subcontractors that are related to this Agreement. ...
G4S and its Subcontractors shall preserve and make available, at reasonable times within Broward County for examination and audit by County, all financial
records, supporting documents, statistical records, and any other documents pertinent to this Agreement for a minimum period of three (3) years after expiration or termination of this Agreement or until resolution of any audit findings, whichever is longer ....
....
9.6 Independent Contractor. G4S is an independent contractor under this Agreement. In providing Services under this Agreement, neither G4S nor its agents shall act as officers, employees, or agents of County ....
Exhibit A to the agreement between Broward County and G4S also addressed the scope of services, as well as the specifications and requirements for "security guard services." The provisions were as follows:
I. GENERAL:
A.... It is understood that such matters as total number of guard hours required, scheduling, the advertising and announcing of available services and location of posts will have to be determined and/or adjusted from time to time as the needs of the County dictate. ...
B.... The County reserves the right to request any changes in the number of guards, number of guard hours of coverage and guard work locations that may be required by the Using Agency.
....
D. The County reserves the right to add, delete or make changes to any guard requirements, including hours of coverage, post location, numbers of posts, number of guards, Guard Class, etc. ...
....
F. Upon written or verbal request of any Using Agency Representative or the Contract Administrator, the Contractor shall remove any security guard from a County site and reassign such guard or take other appropriate action. Such request may be made by the Contract Administrator or a Using Agency Representative for operational reasons, or because the appearance, demeanor, or conduct of such guard is unsatisfactory. County reserves the right to request a change in personnel without providing a specific reason.
....
II. REQUIREMENTS OF THE CONTRACTOR:
THE CONTRACTOR:
A. Shall have available qualified, competent, active knowledge of contract specifications, and experienced management staff during the hours that service is being provided who shall have the overall responsibility for supervising security services to be provided under this Agreement ....
....
E. Will ensure that Contractor's employees will abide by all rules and regulations as set forth by the Using Agencies.
....
G. Shall make available to the Contract Administrator and the Using Agencies, upon request, on an ongoing basis throughout the term of this contract, the complete personnel file of each employee to be assigned to work under this contract....
....
III. EMPLOYEE SPECIFICATION:
....
B. KNOWLEDGE, ABILITIES AND SKILLS: All employees assigned to the County under this contract must meet the following criteria:
1 Ability to establish and maintain effective working relations with the general public and other employees.
2 Ability to maintain clerical records and prepare written reports as required.
3 Ability to work effectively and efficiently without direct supervision.
4 Ability to detect and report unsafe conditions.
5 To be polite, courteous and cooperative at all times, especially during times of stress.
C. QUALIFICATIONS:
All employees assigned to County under this contract must satisfy the following criteria:
....
8 If requested by the Using Agency, guards must be reviewed and/or interviewed and receive approval by Using Agency Representative before acceptance for the assignment.
....
E. SECURITY GUARD TASKS SHALL INCLUDE AS APPROPRIATE:
(1) Reports to work on time and holds over on assigned duties until relieved as required.
(2) Maintains good personal and uniform appearance; is courteous to the public and county personnel at all times.
(3) Covers an assignment at a fixed post or patrol an area or facility for the purpose of detecting and preventing individuals or groups from committing acts which are injurious to others or to property.
(4) Intervenes to terminate injurious acts and may only attempt to detain individuals as a last resort. However, call 9-911 for local law enforcement to arrive.
(5) Communicates effectively with the public and County personnel; directs visitors to personnel and services within the facility.
(6) Visually screens and prepares written record of contents of packages/parcels being carried in and out of the facility to secure against theft; ensures that transmittal forms accompanying materials being removed from the facility contain a necessary authorizing signature.
(7) Makes patrols in accordance with routes and schedules established in the Post Orders. Where installed and in working order, the watchman reporting systems shall be used by uniformed personnel to record their presence at the designated stations.
(8) Raises and lowers flags at designated times.
(9) Verifies the security of safes and other areas where equipment or materials of value are stored.
(10) Locks and unlocks gates and doors at designated times.
(11) Turns up lighting at the beginning of each business day to permit ingress of employees, vendors and authorized personnel, reduces and/or turns off lighting as required.
(12) Ensures that only authorized personnel are permitted access to closed or restricted facilities or areas by detaining unidentified or unauthorized individuals.
(13) Responds to reports of ill or injured patrons, visitors, or employee,
renders first aid, and notifies supervisor if further assistance is considered necessary or desirable.
(14) Performs minor operations and/or records data in connection with the operation of facility utility systems when required by written instructions from the Building Manager.
(15) Reports safety hazards, malfunctioning equipment, liquid spills, and other such matters to appropriate maintenance personnel.
(16) Monitors and operates facility fire alarm and intrusion detection systems and other protection devices or facility equipment.
(17) Responds to scene of locally activated fire, burglary or other alarms, or other emergency situations, evaluate situations encountered, and takes action as prescribed in Post Orders and/or facility self-protection plans.
(18) Investigates questionable acts or behavior observed or reported on County premises and questions witnesses and suspects to ascertain or verify facts.
(19) Operates a motor vehicle where required.
(20) Maintains order and uses good judgment and discretion in handling unruly or trespassing public.
(21) Maintains daily logs and writes daily reports, incident reports, and nonemployee injury reports.
(22) Provides escort services and assists other security personnel as required.
(23) Operates Lost and Found in a manner that allows the public to claim lost items.
(24) Directs traffic, controls parking, issues parking violation warnings as authorized by the Contract Administrator.
(25) Maintains order within areas of assignment.
(26) Operates an entrance control post. Operates and enforces a system of personnel identification. Performs package inspection when directed by the Contract Administrator through Post Orders. Checks identification cards and records names of ALL PERSONNEL wishing to enter the facility after normal working hours.
(27) Conducts Screening Procedures to include x-ray machines, hand held and walk through magnetometers. Conducts pat downs when necessary to prevent unauthorized items from entering county facilities or meetings held by the Board of County Commissioners.
(28) Safeguards and protects all existing structures, utilities, service, roads, trees, shrubbery, etc. against damage or interrupted service. Contractor shall be held responsible for any damage to the property occurring by reason of the negligence of Contractor's employees or agents on the property.
(29) If requested, have the training and ability to use particular computer applications, as required by the job site.
IV. TRAINING
A. GENERAL
....
2 All employees assigned to this contract must already have completed orientation and basic training by the Contractor including at least sixteen (16) hours facility operations before the employee is allowed to perform any services for the County. Evidence
of this must be provided to the county prior to assigning the employee. This training will be at the Contractor's expense.
....
B. EVALUATION OF TRAINING
The Contract Administrator, and the Using Agencies as applicable will evaluate the quality and completeness of training provided to all Contractor personnel. Evaluations will include, but not be limited to, reviews of techniques and methods of instruction, quality of instructors, motivation, adequacy of classroom and supportive adjunct training materials, test content, and individual guards’ retentiveness. The Contract Administrator and the Using Agencies may request as applicable the work history and any of the above documents prior to an individual assignment....
....
D. COURSE OF INSTRUCTION
... A representative(s) of the Contract Administrator may visit the training classes without notice, to monitor this course.
....
F. TRAINING FOR SECURITY PERSONNEL
1. Basic Instructional Training
Each contract security guard is to receive a minimum of 40 hours total of classroom instruction, excluding firearms qualification, in the subject areas listed ["Use of Communications Equipment," "Protection of Facility," "Report Writing," "Basic First Aid – including CPR and AED," "Special Situations," and "Emergency Services"] .... [T]he proposed course of instruction [is] to be submitted to the Contract Administrator for review ....
2. Testing Requirements
As part of this training, the Contractor shall administer to each employee a two-part written test designed to confirm and evaluate the employee's level of understanding.
....
3. Site Orientation Training
The Contractor shall provide a minimum of sixteen (16) hours of onsite training for Security Guards for each shift to be worked in order to familiarize each guard with the post....
4. Refresher Training (RT)
Periodic training of each employee is required to be conducted by contract supervisors in order to insure continued understanding of and familiarity with existing or new facility conditions....
....
VI. COUNTY-FURNISHED ITEMS
....
A. FACILITY POST ORDERS
Post orders are to be prepared, with reasonable and periodic update, for each individual post by Using Agency Representative, with the advice of the Contract Administrator. The Contract Administrator shall have the responsibility for distributing a single copy of the subject post orders to the Contractor, who shall in turn be responsible for ensuring appropriate distribution of the orders to all field security personnel. The Contractor shall not make any alterations to the post orders except as specifically approved in writing by the Using Agency Representative, or the Contract Administrator.
A security guard from G4S, working on the date of the incident, testified that she worked alongside Broward County's security guards and that she supplemented the Broward County's own security team assigned to the Broward Government Center. The full staff consisted of one person at the front desk, two people watching security cameras, two people performing perimeter checks, one person inside the government center, one person outside, one person in the garage, and one person in the back of the building. Additionally, there would be two supervisors from the county. This security guard testified that she reported to the supervisors from Broward County and did not report to anybody from G4S.
Security was responsible for checking the perimeter of the Broward Government Center. According to the security guard, it was the policy of Broward County to check the perimeter once an hour.
The trial court found that G4S was an agent of Broward County. The trial court concluded that although there was language in the agreement seemingly to avoid an agency relationship, the "other provisions and evidence establish that Broward County has a degree of control over G4S's operations that creates an agency relationship." The trial court relied on the following provisions that demonstrated Broward County's extensive control: Broward County's control of hiring, removal, and training of G4S employees, the requirement to follow Broward County's standard operating procedures, Broward County's unilateral right to change the scope of services, and Broward County's right to audit the records of G4S. The trial court concluded that G4S was entitled to sovereign immunity under section 768.28(9)(a), Florida Statutes. This appeal follows.
We review the issue of sovereign immunity under the de novo standard of review. Town of Gulf Stream v. Palm Beach Cnty. , 206 So. 3d 721, 725 (Fla. 4th DCA 2016). Summary judgment is also subject to the de novo standard of review. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P. , 760 So. 2d 126, 130 (Fla. 2000). "Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Id.
I. County Limitations on G4S Employee
Article X, section 13 of the Florida Constitution provides: "Provision may be made by general law for bringing suit against the state as to all liabilities now existing or hereafter originating." The legislature subsequently exercised its authority and enacted section 768.28, which provides a limited waiver of the state's sovereign immunity for torts. The statute authorizes tort claims against "[t]he state and its agencies and subdivisions," but limits the liability for such claims to $200,000. § 768.28(5), Fla. Stat. (2015). "State agencies or subdivisions" is defined to include "corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities ...." § 768.28(2), Fla. Stat. (2015). The statute also provides:
No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function ....
§ 768.28(9)(a), Fla. Stat. (2015).
The immunity authorized by section 768.28 to the state and its subdivisions can extend to "certain private parties who are involved in contractual relationships with the state, provided that such parties are ‘agents’ of the state." M.S. v. Nova Se. Univ. Inc. , 881 So. 2d 614, 617 (Fla. 4th DCA 2004). Whether the party who contracted with the state is an agent of the state for the purposes of section 768.28, Florida Statutes, turns on the degree of control retained or exercised by the state agency or subdivision. Stoll v. Noel , 694 So. 2d 701, 703 (Fla. 1997). "[T]he right to control depends upon the terms of the employment contract." Id. Thus, the focus should be on "the right to control, not the actual control ...." Villazon v. Prudential Health Care Plan, Inc. , 843 So. 2d 842, 846 (Fla. 2003).
Independent contractors are not precluded from being agents of the state, thereby entitling them to statutory immunity from suit and liability. Stoll , 694 So. 2d at 703. "One who contracts to act on behalf of another and subject to the other's control except with respect to his physical conduct is an agent and also an independent contractor." Id. (citation omitted).
Further, 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). Significantly, "[i]f the provisions of the contract governing the state's right to control are inconsistent with the parties’ expressed intent, the nature of the relationship controls over the label." Id. ; see also Robinson v. Linzer , 758 So. 2d 1163, 1164 (Fla. 4th DCA 2000) ("The actual relationship, however, not the label, determines whether there is an agency.").
Several cases are instructive regarding the degree of control necessary to create an agency relationship. In Stoll , a patient brought a malpractice action against physicians at a clinic run by the Florida Department of Health and Rehabilitative Services ("HRS"). 694 So. 2d at 702. The consulting contract between the physicians and HRS required that the physicians abide by the terms published in the HRS manual and clinic consultant's guide. Id. at 703. Under those terms, all services provided to patients must be authorized in advance by the clinic medical director; the clinic had the responsibility to supervise and direct the medical care of all patients; and the clinic medical director had absolute authority over payment for treatments proposed by physicians. Id. Based on the degree of control retained by the clinic, the supreme court found that the physicians were agents of the state and thus entitled to statutory immunity, notwithstanding their independent contractor status. Id. at 702-03.
In Bean v. University of Miami , 252 So. 3d 810, 813-15 (Fla. 3d DCA 2018), patients brought malpractice lawsuits against a university that provided patient services at a government teaching hospital operated by a trust. The affiliation agreement between the university and the trust showed that the trust "retained and exercised a degree of control sufficient to make the university the trust's ‘agent’ for" purposes of sovereign immunity. Id. at 819. Pursuant to the agreement:
The university agreed to abide by the trust's bylaws, rules, and regulations.... [T]he university agreed that the trust was responsible for providing patient services; had final authority over all care and treatment; and "could refuse to allow a course of treatment for any patient for medical, policy, or budgetary reasons." ... [T]he university agreed that the trust set the standard of care, and had the authority to prescribe bylaws, rules, and regulations. ... [T]he university agreed that the trust would determine the activities and manner in which patient services were performed at [the] hospital. And ... the university agreed that the trust would supervise the training of medical residents; the university would teach its students consistent
with trust rules and regulations; and the trust had the authority to deny privileges to any university doctor.
Id. (citation omitted).
In Horn v. Volusia County , No. 6:08–cv–18–Orl–19DAB, 2008 WL 977179, at *1 (M.D. Fla. Apr. 9, 2008), the estate of an inmate brought a wrongful death action against Prison Health Services, Inc. ("PHS"), a private company that provided medical services to inmates. The court found that the contractual provisions between the county and PHS were sufficient to establish that PHS was an agent of the state and therefore entitled to immunity. Id. at *6. The contract stated that PHS was the county's agent; the contract required PHS to meet or exceed several standards of care, including the Florida Model Jail Standards; and the contract allowed the county to alter, delete, and revise the scope of services provided by PHS. Id.
G4S Secure Solutions (USA), Inc. v. Morrow is most instructive. In Morrow , a personal representative filed suit against G4S due to the death of a prisoner at the hands of another prisoner while being transported by G4S. 210 So. 3d at 93. G4S had an agreement with the Pinellas County Sheriff's Office to transport prisoners. Id. The agreement expressed an intent to avoid creating an agency relationship between the sheriff's office and G4S. Id. at 94. The agreement also contained an indemnification and hold harmless provision. Id. Despite the expressed intent not to create an agency relationship, the court determined that the sheriff's office had a degree of control over G4S's operation that created an agency relationship under section 768.28. Id. The court explained:
PCSO exercises extensive control over the hiring and training of G4S employees. PCSO participates in the interviews of potential G4S hires and has the final say over who is hired. PCSO also has the ability to have a G4S employee fired at will. PCSO conducts the training of G4S employees, and the employees are trained according to PCSO procedures. In fact, G4S is required to comply with all of PCSO's "standards, policies, training, and directives." G4S is also required to create and update standard operating procedures (SOPs) subject to PCSO approval.
PCSO also retains control over G4S's budget in relation to the agreement, including employee salaries and pricing schedule. PCSO has the final say over wage increases and billing rates, and G4S is subject to audits by PCSO. Additionally, G4S must obtain PCSO's prior written approval of any overtime requests and must submit monthly sign-in sheets and invoices to PCSO.
Finally, PCSO is highly involved in the day-to-day operations of G4S. G4S employees receive orders directly from PCSO's dispatch officer, and they are in constant contact. PCSO supplies and maintains the transport vehicles and equipment, and PCSO monitors the vehicles while they are in transit. G4S is required to report daily attendance records at all posts, and PCSO has the authority to change G4S employee schedules "as necessary." G4S must assign a contact person who is required to meet with PCSO's contract administrator "at a minimum of once each week/month as directed."
Id. at 94-95.
Applying all the foregoing authority, we find the trial court correctly determined that Broward County asserted a degree of control over G4S such that it was an agent of Broward County under section 768.28. Broward County had the right to review and approve security guards, remove security guards, review personnel files, audit G4S's records, and make changes to the security guard requirements. Broward County required G4S employees to abide by the county's rules and regulations, and Broward County set the criteria, qualifications, training, and testing requirements for G4S employees. G4S employees were required to comply with Broward County's post orders. In the agreement with G4S, Broward County enumerated twenty-nine tasks required of G4S's security guards. Those tasks included making patrols in accordance with routes and schedules established in the post orders, responding to reports of injuries, reporting safety hazards to maintenance personnel, and maintaining daily logs and reports of injuries.
The deposition testimony from the G4S security guard demonstrated that G4S guards worked alongside Broward County's security guards, and both the Broward County guards and the G4S guards reported to Broward County supervisors. G4S guards did not report daily to anyone from G4S.
The overwhelming evidence in fact demonstrates that Broward County created an agency relationship with G4S by virtue of "retaining and exercising extensive control over G4S's operations." Morrow , 210 So. 3d at 95. This case, like all cases regarding a potential agency relationship with a governmental entity, "turns on the degree of control retained or exercised" by the governmental body. Stoll , 694 So. 2d at 703. The record in this case supports the trial court granting summary judgment in favor of G4S regarding agency status. Agency status "may be decided as a question of law ‘in those cases where the party opposing summary judgment is unable to point to any conflicting facts or inferences to be drawn from the facts.’ " Morrow , 210 So. 3d at 96 (quoting M.S. , 881 So. 2d at 617 ).
Like in Morrow , in the present case, G4S produced the agreement and the testimony of a G4S employee demonstrating the high level of control asserted by Broward County over G4S. Appellant did "not challenge any of the established facts or inferences from those facts." Id . Although the agreement contained an indemnification clause, required G4S to maintain insurance, and expressed an intent not to create an agency relationship, like in Morrow , we find these factors are not dispositive. An "express intent regarding agency status ... is not dispositive." Id. at 94. Thus, like Morrow , the trial court did not err in finding the controls in place by the governmental body over G4S created an agency relationship under section 768.28, Florida Statutes.
II. Limitations on Liability
We next need to determine whether the trial court erred in relying on the limitation on liability pursuant to section 768.28(9), as opposed to section 768.28(5). We find that the trial court did err and that the plain language of the statute requires the limitation on liability be pursuant to section 768.28(5).
Section 768.28(5) provides:
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 .... Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $200,000 ....
"State agencies or subdivisions" is defined to include "corporations primarily acting as instrumentalities or agencies of the state, counties, or municipalities ...." § 768.28(2), Fla. Stat. (emphasis added).
In contrast, section 768.28(9)(a) states:
No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function ....
An "[o]fficer, employee, or agent" is defined as including, but not limited to:
any health care provider when providing services pursuant to s. 766.1115; any nonprofit independent college or university located and chartered in this state which owns or operates an accredited medical school, and its employees or agents, when providing patient services pursuant to paragraph (10)(f); and any public defender or her or his employee or agent, including, among others, an assistant public defender and an investigator.
§ 768.28(9)(b)(2), Fla. Stat.
In Morrow , 210 So. 3d at 96, the court affirmed summary judgment in favor of G4S based on section 768.28(5). The plain language of section 768.28 leads to the conclusion that subsection (5) would also apply to G4S in this case as well. In contrast, subsection (9) applies to an "officer, employee, or agent of the state." Further, subsection (9) states that those individuals may not be "personally liable." Black's Law Dictionary (11th ed. 2019) defines "personal liability" as "[l]iability for which one is personally accountable and for which a wronged party can seek satisfaction out of the wrongdoer's personal assets." It defines "personal" as "[o]f or affecting a person." The United States Supreme Court has found that the ordinary usage of the word "personal" refers to individuals, not corporations. FCC v. AT & T Inc. , 562 U.S. 397, 403, 131 S.Ct. 1177, 179 L.Ed.2d 132 (2011). A court must interpret a statute to effectuate its plain and obvious meaning and may not add an exclusion that the statute does not provide. Kelly v. Green Tree Servicing, LLC , 300 So. 3d 244, 245-46 (Fla. 4th DCA 2020).
This interpretation is consistent with other cases that have considered the application of subsections (5) and (9). See Pagan v. Sarasota Cnty. Pub. Hosp. Bd. , 884 So. 2d 257, 260 (Fla. 2d DCA 2004) (considering whether doctors had immunity under section 768.28(9)(a) and whether a physicians group had immunity under section 768.28(5) ); Stoll , 694 So. 2d at 703 (finding that physicians were agents of the state and thus entitled to statutory immunity under section 768.28(9) ); Keck v. Eminisor , 104 So. 3d 359, 367-77 (Fla. 2012) (finding that a trolley driver was entitled to immunity under section 768.28(9)(a) ); Theodore ex rel. Theodore v. Graham , 733 So. 2d 538 (Fla. 4th DCA 1999) (considering whether a physician was immune from suit under section 768.28(9) ); but see M.S. , 881 So. 2d at 617, 620 (finding that a genuine issue of material fact existed as to whether a preschool was an agent of the school board entitled to sovereign immunity under subsection (9)(a)). Thus, because subsection (9) does not apply to G4S under the plain language of the statute and the facts of this case, the trial court should have granted partial summary judgment in favor of G4S under section 768.28(5).
In summary, we affirm the trial court in finding that Broward County's degree of control over G4S created an agency relationship and thus, as a result, G4S fell within the limitation of liability under section 768.28. However, we reverse the finding of the trial court as to applicability of section 768.28(9) and find that section 768.28(5) is the applicable subsection. Thus, we affirm in part, reverse in part, and remand for entry of partial summary judgment in favor of G4S under section 768.28(5) and further proceedings consistent with this opinion.
See Fluid Dynamics Holdings LLC v. City of Jacksonville , 3:14-CV-1454-J-32MCR, 2017 WL 3723367, at *6 (M.D. Fla. Aug. 29, 2017), aff'd , 752 Fed. Appx. 924 (11th Cir. 2018).
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
Gross and Klingensmith, JJ., concur.