A Denial of a Claim of Sovereign Immunity in Tort Suits is Generally Not Reviewable by Certiorari

Recently the Florida Supreme Court clarified that an order denying a government entity’s claim of sovereign immunity in tort suits generally cannot be reviewed by a petition for a writ of certiorari. The opinion, issued in Rodriguez v. Miami-Dade County (SC11-1913), followed the 2012 decisions of the Court in Citizens Prop. Ins. Corp. v. San Perdido Ass’n, 104 So. 3d 344 (Fla. 2012) and Keck v. Eminisor, 104 So. 3d 359 (Fla. 2012) (covered by FlascBlog here and here respectively).

In Rodriguez, the plaintiff filed suit against Miami-Dade for injuries Rodriguez suffered from a police gunshot after police responded to a report of burglary at his business property. Rodriguez alleged that the police was negligent. In response, the County filed a motion for summary judgment, arguing that the facts definitively established that the police officer shot in self-defense, and that since there was no negligence the County was entitled to sovereign immunity. Rodriguez countered that there was a dispute over the facts surrounding the incident; the trial court agreed, and denied the motion. The County then filed a petition for a writ of certiorari with the Third District Court of Appeal. The Third DCA granted the petition, holding that there was no waiver of sovereign immunity implicated in this case.

The Supreme Court reversed, holding that the state could not demonstrate irreparable harm of the kind that warrants certiorari review. The Court pointed to its decision in the Citizens Property, where it held that having to defend a lawsuit did not equate to the threat of irreparable harm necessary to allow a court to invoke certiorari jurisdiction. The Court compared that holding with the result in Keck, where the Court allowed an interlocutory review of an order on whether a public employee could even be named in a lawsuit. The Court pointed out that it did not rely on certiorari power in Keck, but rather directed the Florida Bar Appellate Court Rules Committee to review the list of non-final orders that may be reviewed and determine if the list needs to be revised.

Additionally, the Court pointed out that, at best, there were facts in dispute that called into question whether the state was entitled to sovereign immunity as a matter of law. Therefore Third DCA could not have reversed the trial court’s order denying the motion for summary judgment.

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