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Amendments to §768.28_ Florida Statutes by yantingting


									       Spring 2011                                                                                    News
Inside This Issue:                       Amendments to §768.28, Florida Statutes
                                         By Michael J. Roper, Esquire
The Preferred Trustees ..... 2
                                                                           During the last session, the Florida Legislature
Legislative Update:                                                        amended §768.28, F.S. which provides for a
“If Ever There                                                             limited waiver of sovereign immunity for tort
 Was A Time...”..................... 4                                     claims against the State, it agencies, and
                                                                           political subdivisions. Specifically, the monetary
Safety Source:                                                             limits on liability set forth in that statute were
“Stress, the Hidden Factor” .. 6                                           increased from the existing limits of $100,000
                                                                           per person and $200,000 per occurrence, to the
Claims Corner:                                                             new limits of $200,000 per person and $300,000
“Are There Really                                                          per occurrence. This amendment, which was
 Success Stories With                                                      signed into law by the Governor, takes effect on
 Workers’ Compensation?”... 8                                              October 1, 2011 and applies to claims arising on
                                                                           or after that date. Otherwise, the statute remains
Case Law Update ................ 9
Welcome New
Preferred Members .............. 10      On its face, this may appear to be a rather modest increase in governmental tort
                                         liability, especially when one considers that the current caps have been in place for
Breaktime Fun -n- Games .. 11            30 years. Additionally, the liability caps are still fairly conservative when compared
                                         to similar limitations on governmental tort liability which exist in other states, i.e.,
                                         Indiana - $700,000 per person and $5 million per occurrence; Nebraska - $1 million
                                         per person and $5 million per occurrence; Maine - $400,000 per claim; Idaho -
                                         abolished to the extent of insurance or $500,000 per occurrence.

                                         However, the Legislature, in its infinite wisdom, has certainly chosen an unusual
                                         time to impose this increased financial obligation upon the public sector. This
                                         change in the sovereign immunity limits, which essentially amounts to an
                                         unfunded mandate, will almost certainly result in increased expenses for Florida’s
                                         governmental entities in the form of increased litigation, larger settlements and
                                         verdicts, and corresponding higher insurance costs. Given the financial challenges
                                         already facing Florida’s public sector due to changes in the tax structure and
                                         prevailing economic conditions, it seems anomalous indeed that the Legislature
                                         would choose to further exacerbate the situation, at this particular time.

                                         Aside from the philosophical debate regarding the wisdom and timing of this
                                         action, this amendment also raises certain risk management concerns which must
                                         be considered carefully by each public entity. Many of the existing policies or
                                         insuring agreements which have been purchased by governmental entities in this
                                         State establish the insurer’s indemnity obligation, through September 30, 2011, by
                                         reference to the existing sovereign immunity limits, i.e. $100,000/$200,000. This
                                         raises the potential for a “gap” in coverage for the public entity in those scenarios
                                         where the relevant occurrence takes place prior to October 1, 2011, but the
                                         claimant’s cause of action does not accrue until after October 1, 2011.

                                                                                                    CONTINUED ON PAGE 3

          Dwight E. “Ed” Wolf, II
          City of Wildwood - Mayor

                      Charles Walsey
                      Vice Chair
                      Cypress Grove CDD - Board Member

          Joanna Wilkinson
          City of Haines City - Commissioner

                   Welton Cadwell
                   Lake Sumter Emergency Medical Services

          Joseph W. Gilliam
          Gilchrist County BOCC
          Clerk of Court

                  Thomas Rice, Sr.
                  South Indian River Water Control District

          Robert Walker
          City of Springfield


Amendments to §768.28, Florida Statutes
Admittedly, in most instances, a claimant’s cause of action will accrue on the same date on which the relevant
incident occurred, i.e., automobile accident resulting in personal injuries. However, since under Florida law,
a cause of action does not accrue until the last element constituting the cause of action occurs, there can be
limited circumstances when a claimant’s cause of action will accrue on a different date than the occurrence
of the incident giving rise to the claim. The most obvious example of this scenario would be a claim for
wrongful death where the accident occurred on September 30, 2011 but the claimant’s death did not occur
until sometime after October 1, 2011. In that situation, the cause of action for wrongful death would not accrue
until the death occurs. See Fulton County Administrator vs. Sullivan, 753 So.2d 549 (Fla. 1999). Accordingly,
the claim for wrongful death would be subject to the increased sovereign immunity limits of the new statute,
since this claim did not arise until after October 1, 2011. A similar situation could also occur in the case of
“continuing” torts, i.e., trespass, nuisance, pollution, etc., depending upon the particular circumstances.

In the scenario outlined above, if the insuring agreement, which likely has the date of occurrence as the
“trigger” for coverage, limits the insurer’s indemnity obligation to $100,000/$200,000, the entity could have up
to a $100,000 “gap” between its potential tort exposure and its available coverage. Accordingly, in order to
insure full coverage, the public entity should confirm that its insuring agreement extends coverage equal to the
monetary limitations set forth in whichever version of §768.28, F.S. is applicable to a claim brought against said
entity. Likewise, it would be important to confirm that the insurer will apply the “occurrence” date of the insuring
agreement, to provide for coverage up to the increased sovereign immunity limits which may be applicable to
this type of claim.

The public sector should also be on notice that there were significant legislative efforts to further seriously
undermine the protections of sovereign immunity. There were several House and Senate Bills which were
introduced, but which did not become law, seeking to effect much more drastic changes in Florida’s sovereign
immunity law. For example, during the legislative process, there were bills introduced which sought to effect
the following changes to Florida’s sovereign immunity laws:

1. Remove counties, municipalities and other local units of government from the umbrella of sovereign
   immunity protection.
2. Remove the per occurrence limit entirely.
3. Award Plaintiff’s attorneys an additional 5% in fees for appeals and any post-judgment actions (Claim
4. Provide for an annual increase in the liability limits based upon a component of the Consumer Price Index
   (CPI) and the CPI Medical Component.

Fortunately, those efforts were ultimately unsuccessful but obviously any single one of those proposals outlined
above, if adopted, would have much more significantly altered the sovereign immunity landscape and further
exacerbated the adverse economic consequences to the public sector. We would fully expect the plaintiff’s
bar and other special interest groups to continue their lobbying efforts to further erode the existing sovereign
immunity protections, and we would encourage Preferred’s membership to remain vigilant for those future


“If Ever There Was A Time . . .”
By J. Steve Roddenberry - Pennington, Moore, Wilkinson, Bell & Dunbar
                           Every four years a Governor of the State of Florida is elected or re-elected. In
                           November of 2006, Floridians elected Charlie Crist as its 44th Governor. Having
                           campaigned on, among other things, lowering property insurance rates, Governor
                           Crist facilitated a Special Session of the Legislature that began a week’s worth of
                           work during January 2007, commonly referred to as the honeymoon phase of Crist’s
                           first (and only) term.

                           Arguably, the property insurance market in Florida has still not recovered. In 2009
                           and so far in 2010, a majority of the major residential property insurance market
                           has, and is, losing money. Those intimately involved in this market point to a variety
                           of causes, many stemming from the infamous House Bill 1A passed during the
                           January 2007 Special Session of the Legislature. The creation of an unfunded layer
                           of the Florida Hurricane Catastrophe Fund (FHCF), the associated and mandated
                           reduction in homeowner insurance premiums (irrespective of a company’s decision to
purchase the new FHCF layer), and Crist’s commitment to continue to push homeowner insurance premiums
lower, resulted in operational losses in 2009 and 2010 for much of the State’s major residential property
insurers. Substantially contributing to the lack of net income in the personal residential property insurance
market was the Legislature’s codified way of encouraging consumers to take more initiative in “hardening” their
homes against the peril of windstorm. This declaration by the Legislature compelled the Office of Insurance
Regulation to effectively double the premium credits policyholders received for wind mitigation features on
their homes. The doubling of these credits motivated many homeowners to take advantage of this premium
reducing process. The evidence documenting the volume of dubious claims of wind mitigation features and
fraudulent certifications made by unscrupulous inspection companies is undeniable. The combined effect of
the rate suppression and the doubled wind mitigation credits has tragically affected the industry’s profitability
and this has been without any hurricanes.

With the recent election of Rick Scott as Florida’s next Governor and an overwhelmingly pro-business
demeanor of the incoming Legislature, there is hope. Whether you are a Republican, Democrat, or
Independent, there is little question that the property insurance market in Florida is in a perilous position.
Rate adequacy and stopping wind mitigation credit fraud top the list of salves identified as the most immediate
means of reversing the trends of the last four years. Scott comes from a business background that relies on
competition. In his view, the role of government should be muted and not “drive the train”. He too, will have
a honeymoon phase. The upcoming Legislative Session is expected to address a myriad things designed to
assist in the insurance market’s recovery. Principally:

• Consideration of an expansion of those commercial insurance products that are exempt from rate regulation
  by the Office of Insurance Regulation. In 2009, Senate Bill 2176 identified eight different commercial
  products that would have lower thresholds of rate oversight. Senate Bill 178, filed earlier this year by Senator
  Steve Oelrich (R), expands that list to include: professional liability; fiduciary liability and other management
  liability; general liability; nonresidential property; nonresidential multiperil; and excess property. It is obviously
  early in the process, but the general disposition of the Legislature on rate regulation has been set.

• Citizens Property Insurance Corporation will likely see some adjustments to its rating protocols such that it
  will migrate back to the “insurer of last resort” it was intended to be when it was created in 2002. Specifically,
  indications are that the rate differentials that govern eligibility for coverage by Citizens will be modified such
  that consumers will need to more aggressively seek coverage in the voluntary market before becoming
  insured through Citizens.


 Citizens’ rates are generally acknowledged to be inadequate and not actuarially-sound. Due to changes by
 prior Legislatures, access to Citizens and its inadequate rates has rendered it a competitor in the property
 market. This is not how a state-created residual market is supposed to work. Fundamental to a change in
 the property market is a tightening of the conditions under which a property owner can secure this subsidized

• Fraud in the area of automobile insurance has become the bane of those operating in that market. We
  expect to see a clarification in the “No-Fault” law, also known as “PIP”, governing attorney fees and exactly
  what part of Medicare that medical providers and insurers are to rely upon when billing and paying for
  injuries sustained in automobile accidents.

 o An intensified regulation of “PIP-clinics” is also expected to be addressed by the Legislature.
 o A recent Florida Supreme Court case, Custer Medical Center a/a/o Maximo Mases v. United Automobile
   Insurance Company is expected to prompt a change in the No-Fault law governing conduct surrounding
   examinations Under Oath (“EOU”). Conceivably, the effect of the Custer decision could “bleed” over into
   other areas of the Insurance Code that authorize or contemplate EOUs. This is a recent development
   (decision on November 4, 2010) that will require quick movement. Some class actions have already been
   filed in response to this Supreme Court decision. We will need to work quickly to clarify the statute before
   this decision is used to launch another assault on the insurance industry.

• For the first time in a while, we do not expect to see any substantive changes in Chapter 440 governing
  workers’ compensation insurance.

• After passage last year of the bill expanding the limits on sovereign immunity, we believe further changes in
  this section of the Statutes to be “off limits”, for a while.

They used to say, “Nothing is safe when the Legislature is in town.” Believe me, we still say that. But the
general feeling is that the 2011 Session will present an opportunity to arrest and even reverse some of the
adverse statutory changes that have been forced on the property and casualty insurance market over the last
four years.

It’s early yet. Most bills have not even been filed. Last year, almost 2,500 bills were filed, but only 301 were
passed. So far this year, less than 200 bills have been filed; clearly, many more are expected. But the belief
is that a return to a relatively normal property and casualty insurance market will begin with legislation passed
in the 2011 Session. Your practical experience and input during the next five months will prove invaluable to
those advocating your interests. To borrow a phrase, “Let’s get to work!”


Stress, the Hidden Factor                                   By Gina L. Hall, SPHR - GLH Consulting

Stress is a lot like wind…..we can’t see it, yet we can feel it and see it’s effect….Wind blows and we feel chilly.
Wind blows and down come trees, houses, and other structures that cause immense damage. We can’t see
stress, can’t hold it, can’t smell or taste it, yet the effects of stress can be serious, even life threatening.
However, stress like wind can have positive effects….the wind blows on a warm day and cools us. We drive
our cars and someone cuts in front of us. The “fight or flight” stress kicks in and causes us to veer out of the
way of a potential crash.

For this article let’s look at stress in the workplace...

A survey by EAP provider ComPsych revealed that:
        • 51% of employees say they have high levels of stress, with extreme fatigue/feeling out of control
        • 50% of employees miss one or two days of work per year due to stress
        • 46% of employee say they come to work one to four days a year when they are too stressed to be

So on any given day, half of your employees may be coming to work extremely stressed out. Stressed out
workers feel overwhelmed, they don’t necessarily think clearly and thus may not perform as well as they
could. These employees are talking to your customers, updating your systems, loading trucks, packing boxes,
handling cash. If they are feeling stressed, they may not represent your company in the best light and may
feel entitled to do some things that they might not do under different circumstances. We know that one of the
causes of workplace violence is stress.

So let’s focus on workplace stress, causes and cures...

Most job stress has to do with employee’s impression that they have little control over their work says Dr. Paul
Rosch, president of The American Institute of Stress. David Lee, principal of HumanNature@work indicated
that research by a client revealed that poor teamwork and ineffective supervision were the two most important
factors leading to workplace stress. Granted trying to manage people can be stressful. But, it is also stressful
to be managed by someone who doesn’t know how to manage and perhaps compensates for their insecurity
by being controlling.

So what can a company do to help reduce stress and thereby improve productivity and efficiency in the

Ask employees to submit statements about what bothers them most at work. You may want to give workers
the choice of answering the question anonymously. Once you understand the major issues in the workplace,
then you can work on reducing the stress.

Perhaps it is training supervisors on how to better manage employees. This should not be a one hour session.
It should be on-going training to help supervisors and managers coach employees. Think about it, major
league sports teams have coaches who continually direct players to perform their best, modify plays based on
the situation and provide training to enhance performance. Why should employers be any different?

Maybe it is creating a forum to listen to employees about better ways to do things, like organize a production
line, address customers concerns about “X” or better utilize technology to become more efficient or effective.


Front line workers have a lot of good ideas about what works and what doesn’t work. Management should get
in the habit of asking employees about what works and what doesn’t work and then doing something about it.
In this way employees feel more valued and acknowledged, less out of control and less stressed.

Finally here are some basics to pass along in coaching employees in stressful situations:

• Don’t make emotional decisions when upset. Typically it won’t be the decision you would make if you
  assessed the situation in a calm, rational manner.
• Walk away – if a situation is causing you to feel overwhelmed, upset, sad or mad, walk away before you act.
  Talk to someone to get past the moment so that you can respond in a manner that is productive and not
• Reframe the situation – what looks like dark, cloudy skies today may not seem so bleak tomorrow.

                             Gina Hall of GLH Consultants provides human resource consulting to public and private com-
                             panies as well as individuals. Gina worked in corporate America for more than 25 years and thus
                             applies her experiences in her consulting practice to customize realistic solutions for each client.
                             Gina has been an active member of the Society for Human Resource Management (SHRM) since
                             1990. In addition to serving on a national level as Florida State Director, she is past president of
                             the Central Florida Human Resource Association (CFHRA, the local SHRM chapter) and currently
                             on the CFHRA Board of Directors. Gina received her PHR, Professional in Human Resources in
                             1990 and her SPHR, Senior Professional in Human Resources from SHRM in 1998. She has a
                             B.A. in Communications from Auburn University.

    We would like to share your best practices,
    risk management expertise, success stories, and the
    accomplishments of your entity and employees with
    fellow members in our next news letter.
    If interested in submitting an article, please contact:
    Mike Stephens
    Safety & Risk Management Consultant
    Phone: 321-832-1658


Are There Really Success Stories
With Workers Compensation?
By Tyler Cox, Lieutenant Paramedic, Planning and Research, Brevard County Fire Rescue

Tyler Cox thinks so. I began my career with Brevard County Fire Rescue in 2001 as a Firefighter/EMT. On
January 6, 2002, I sustained a back injury while carrying a patient out of their home during an emergency call.
Not deterred, I began treatment while I continued normal job duties. In March 2003, I was diagnosed with
two herniated disks in my lower back. This led to a five back surgeries over the next seven years. After each
of the first three surgeries I was able to return to full duty as a firefighter. During this period I continued my
education. I became a State certified Paramedic, Fire Officer, Driver Engineer, Fire Instructor, a member of
the Hazmat and Special Operations Team, and promoted to Lieutenant. Additionally, I am currently enrolled at
Barry University. I am scheduled to graduate in May 2011 with a Bachelor's Degree in Public Administration.
In August 2010, I was placed at Maximum Medical Improvement. Due to the several surgeries and extent
of my injury, I will not be cleared to return to full duty. However, I have just been selected for a permanent
position with Fire Rescue Administration where I will be the Planning and Research Lieutenant. I am excited to
continue my career with Fire Rescue and Brevard County.

Tyler Cox’s Lower Back Procedure List:

Date of Injury - 01/06/2002 Received treatment including physical therapy and epidural steroid shots.

1st Surgery - April 2003, L4-L5 Microdiscectomy
       • Returned to work without restrictions June 2003.

2nd Surgery - August 2004, L5-S1 Microdiscectomy
       • Diagnosed with a staph infection two weeks post-op.

3rd Surgery - September 2004, Emergency Surgery Due to Infection
       • Returned to work without restrictions December 2004.

4th Surgery - November 2006, L5-S1 Microdiscectomy
       • Returned to Light Duty work January 2007.
       • Received treatment including physical therapy and epidural steroid shots.
       • In June 2009 I began to decline. An MRI showed both discs had re-herniated and there was obvious
         nerve impingement.

5th Surgery - January 2010, L4, L5, S1 Two Level Fusion
       • Returned to Light Duty work May 2010.
       • Selected for administrative position October 2010.

I would like to first thank Fire Rescue for their continued support and encouragement. I am thankful for the
opportunities I have been given and look forward to finishing my career with BCFR. Thank you to Dr. Homi
Cooper. He was my original doctor when I first injured my back and he has continued to monitor my progress
and guide me to a successful outcome. Of course, I must not forget my two guardian angels, Linda Allison of
Risk Management, and Wendy Hall of PGCS. Words cannot express how grateful and lucky my wife and I are
to have such wonderful people help us through the tough times. I would not be where I am today without their
support, encouragement, and counseling. You both are wonderful people and your employers are lucky to
have you as part of their staff. Keep up the great work!


Court Rejects Policy Created a
Vested Benefit for Employee
By Brian Bolton, Esquire

In Carlucci v. Demings. 31 SO. 3d 245 (Fla. 5th DCA 2010), the 5th DCA considered whether a judge erred
by dismissing a retired police officer’s lawsuit concerning whether health insurance benefits vested due to
policy language adopted by an order of the Orange County Sheriff. The appellate court affirmed the dismissal
and held that, under Florida law, policy statements contained in employment manuals do not give rise to
enforceable contract rights unless they contain specific language which expresses the parties’ explicit mutual
agreement that the manual constitutes a separate employment contract. The court had previously rejected the
theory that a contractual right was acquired when a sheriff unilaterally adopted a disciplinary procedure that
could be modified or completely revoked at will. The Sheriff’s unilateral act of implementing an internal policy
in Carlucci was subject to unilateral cancellation and could therefore not constitute a contract. Thus, the court
upheld the trial court’s final summary judgment, ruling that the policy, which was later rescinded, did not create
a vested and enforceable contract entitling employees with twenty years of service with the Orange County
Sheriff’s Office to a fully paid lifetime health insurance policy.

Care should be taken when drafting policies and procedures so as to not create a vested and enforceable
employee benefit. The Language allowing the benefit to be “revoked at will” works well to avoid this problem.

                 Entering the new year with a new look...


                Seminars                                                            Training


PREFERRED would like to welcome the following new members...
Madison County BOCC            City of South Miami
Okaloosa County BOCC           Town of Dundee
Santa Rosa County BOCC         Town of Oakland
City of Alachua                Town of Ocean Ridge
City of Apopka                 Town of Pierson
City of Gulf Breeze            Village of El Portal
City of Lake Worth             Village of Key Biscayne
City of Madison                Village of North Palm Beach
City of North Miami

Brevard Family Housing
Florida Governmental Utility Authority / MacDill Water System
Manatee County Port Authority
Municipal Public Safety Communications Consortium
Naples Airport Authority
Nature Coast EMS
Navarre Beach Fire Department
North Brevard Medical District
North Sumter County Utility Dependent District
Northwest Florida Beaches International Airport
Okaloosa Island Fire District
Port of Palm Beach District
Panama City / Bay County Airport & Industrial District

Bonnet Creek Resort CDD        Village CDD #3
Encore CDD                     Village CDD #4
Lake St. Charles CDD           Village CDD #5
Meadow Pines CDD               Village CDD #6
Palace at Coral Gables CDD     Village CDD #7
Pelican Marsh CDD              Village CDD #8
Sumter Landing CDD             Village CDD #9
Village Center CDD             Village CDD #10
Village CDD #1                 Zephyr Ridge CDD
Village CDD #2


 FLORIDA SPRINGTIME WORD SEARCH:                                                         SOURCE

                                                                               FLOWERS         MARCH
                                                                               GREEN           MAY
                                                                               GROWTH          OUTDOORS
                                                                               HIKING          PAINTING
                                                                               LILLIES         PICNIC

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iprAl losFo aDy = __ __ __ __ __ __ __ __ __ __’ __ __ __        ehoMrts yaD = __ __ __ __ __ __ __’ __ __ __
iCocn ed ayoM = __ __ __ __ __ __ __ __ __ __ __                 rtEah yaD = __ __ __ __ __ __ __ __
tilyhgDa nSsaivg = __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ tEaers = __ __ __ __ __ __

As a member of Preferred your first call should always be to your agent, if however you need help beyond
your agent please feel free to contact us as indicated below:
Marketing:                    Operations:                   Loss Control:                Claims:
321-832-1455                  321-832-1510                  321-832-1658                 866-683-7710
Kurt Heyman                   Ann Hansen                    Mike Stephens                Julius Hajas

P. O. BOX 958455
Lake Mary, FL 32795-8455

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