Florida Supreme Court May Review Extension of Limited Sovereign Immunity to the UCF Athletics Association in Case Related to Football Player’s Death

By Herron Bond

Pending before the Florida Supreme Court in Plancher v. University of Central Florida Athletics Association, Inc. (SC13-1872) is an appeal seeking discretionary review of the Fifth DCA’s rulings (Case Nos. 5D11-4253 and 5D12-454 and 5D11-2710) which found that the UCF Athletics Association (UCFAA) was entitled to limited sovereign immunity after the death of a football player during a team practice in 2008.

Enock Plancher, the decedent’s father and personal representative, filed suit against UCFAA for negligence, claiming that team personnel ignored his son’s distress during practice and were never notified by UCFAA that his son tested positive for sickle cell trait, and that by their negligence they caused his son’s death. The trial court denied UCFAA’s motion for summary judgment on its affirmative defense of sovereign immunity, finding that UCFAA “has not been substantially controlled by UCF” and section 1004.28, Florida Statutes, did not explicitly extend immunity to direct support organizations. After a jury issued an award of $10 million to the plaintiff, UCFAA appealed before the 5th DCA, which found that limited sovereign immunity is appropriate because UCFAA is “wholly subject to UCF’s governance and financial and operational control.” The 5th DCA reduced the jury award to $200,000, the statutory sovereign immunity limit, and Plancher sought review by the Florida Supreme Court.

In his Jurisdictional Brief to the Court, Plancher claimed that the 5th DCA erred in reducing the jury award to $200,000. He cited to a number of decisions in which Florida courts have permitted the rendition of judgments in excess of the statutory sovereign immunity cap.
UCFAA responded by stating that section 768.28(5), Florida Statutes, allows judgments to be “claimed and rendered in excess of [the statutory sovereign immunity limit];” however, the statute does not allow a plaintiff to actually collect the excess amount. Thus, UCFAA claimed that the 5th DCA acted in accordance with section 768.28(5) when it reduced the judgment.

Next, Plancher argued that the extension of sovereign immunity to UCFAA conflicted with Florida common law. He cited to Pagan v. Sarasota Pub. Hosp. Bd., 884 So. 2d 257 (Fla. 2d DCA 2004); Shands Teaching Hospital and Clinics, Inc. v. Lee, 478 So. 2d 77, 79 (Fla. 1st DCA 1985); and Prison Rehab. Ind. and Diversified Ent., Inc. v. Betterson, 648 So. 2d 778, 780 (Fla. 1st DCA 1994), which held that the standard for determining whether a private corporation that acts as an instrumentality of the State is entitled to sovereign immunity is “the level of governmental control over the performance and day-to-day operations of the corporation.” Plancher claimed that this standard supports his argument that a state agency must “exercise actual control over the detailed physical performance and day-to-day operations of [the private corporation]” in order for sovereign immunity to apply. According to the Plancher, this standard conflicts with the 5th DCA’s ruling that “the power to control is sufficient” and UCF may “oversee [UCFAA's] day-to-day operations as much or as little as it sees fit.”

UCFAA responded by pointing out that the standard articulated in Pagan, Shands, and Betterson “examines the degree of control imposed and available, not whether a government official was actually directing the corporation’s day-to-day activities at issue.” For example, in Pagan, the Court found that a private physicians’ group acting as an instrumentality of the State was entitled to sovereign immunity “even though the Sarasota County Hospital Board was not actually controlling how the doctors practiced medicine on a daily basis.”

Finally, Plancher contended that the Court erred in extending sovereign immunity to UCF’s liability insurer. He argued that such a holding defeats the purpose of sovereign immunity and harms taxpayers by allowing insurers “to charge premiums for full liability coverage, but then refuse to pay the amounts due under the policy if the insured tortfeasor is entitled to sovereign immunity.” Furthermore, he claimed that the ruling conflicts with Michigan Millers Mutual Ins. Co. v. Bourke, 607 So. 2d 418, 420-22 (Fla. 1992), in which the Florida Supreme Court ruled that an insurer cannot raise sovereign immunity as a defense.

UCFAA argued that there is no conflict with Michigan Millers because the 5th DCA did not address the issue in their opinion. Furthermore, UCFAA distinguished Michigan Millers by pointing out that insurance company itself claimed sovereign immunity in Michigan Millers, whereas the present case involves “a liability insurer whose insured’s liability to a third party is limited by sovereign immunity.”

The Supreme Court has not ruled on whether it will accept jurisdiction of this case. If the Court does accept jurisdiction, it will have the opportunity to clarify some very important aspects of sovereign immunity law.

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