Thursday, May 10, 2018

17 dead + 17 injured = $300,000, says outdated Florida law | Editorial

Sun Sentinel Editorial Board May 10, 2018

We got rid of our king in 1776, but the American people still suffer from the notion that he could do no wrong and could not be sued.

“Sovereign immunity,” a legal fiction as outdated as the divine right of royalty, explains the harsh warning that the families of Marjory Stoneman Douglas High School have been hearing from the Broward School District’s insurance company.

Despite the massive casualties in the Valentine’s Day massacre, state law limits the district’s total liability to $300,000.

That’s $300,000 no matter that 17 students and staff died, 17 survived gunshot wounds and many more will need professional care to cope with the memories of being hunted from room to room by a ruthless killer and seeing their classmates lying dead in pools of blood.

Juries might award greater damages, but the families would have to lobby the Legislature to get it.

Whether the school system is to blame to any extent is a legal question for the courts to answer. The ridiculous limit on damages, though, is an outrage for the Legislature to set right — now.

Rep. Evan Jenne, D-Dania Beach, and Sen. Kevin J. Rader, D-Boca Raton, introduced identical bills last January to enable political subdivisions — counties, cities, hospital and school districts and others — to purchase up to $15 million in insurance to pay claims without a need for legislation. Neither bill got a hearing.

“The claims procedure is a throwback to the Stone Age and it is absolutely inconceivable that any modern legislature should have to sit up here and do this." — Rep. Donald Reed Jr., who led the Republican minority in the House.

Sovereign immunity is nowhere mentioned in the Florida Constitution. It comes from long-ago judicial opinions that the immunity of kings carried over to our republic. If a sovereign could not be sued, it didn’t matter whether the sovereign wore a crown or consisted of the people themselves.

However, Congress waived sovereign immunity on the federal government’s part in a series of laws culminating in the Tort Claims Act of 1946. And for one brief, enlightened year, Florida waived it, too.

In 1969, the Florida Legislature suspended sovereign immunity for the 1969-1970 budget year. The House voted in 1971 to make the waiver permanent, but the Senate defeated the legislation. The major factor was pressure from school boards facing higher premiums and restrictions from their insurance companies. In both chambers, legislators opposed to sovereign immunity complained of having to vote on claims bills for injuries the courts were better equipped to handle.

“The claims procedure is a throwback to the Stone Age and it is absolutely inconceivable that any modern legislature should have to sit up here and do this,” said Rep. Donald Reed Jr. of Boca Raton, who led the Republican minority in the House.

The waiver was replaced by the present law, which consents to lawsuits against the state and its political subdivisions, but limits awards to $200,000 per person or $300,000 per occurrence.

Claimants may sue for more and juries often award larger damages. But any amount over the ceiling requires a claims bill passed by both houses and signed by the governor. Dozens are introduced every year. Few pass. This year, only four did.

A string of impersonators are pretending to be shooting victims and their family members. Some have asked for money.

One of them, possibly pertinent to the Parkland situation, awarded $360,000 from the Palm Beach School District to the parents of a physically disabled 14-year old boy, Jean Pierre Kamel, who was shot and killed in January 1997 outside Conniston Middle School by another student who had been bullying him.

The claims bill states that the school took no steps to protect Kamel and that the school police officer, who might have prevented the killing, was not at his post that day.

His parents won a $1.6 million judgment. After losing an appeal, the school board paid them the maximum $200,000 and agreed to settle the rest of the claim for another $360,000 — if a claims bill passed the Legislature. It finally did — in 2018.

The long saga was not an exception. It took 13 years for the parents of Devaughn Darling to receive a $2 million settlement from Florida State University for the death of their son, who had sickle cell anemia and died during an intensive football practice in 2001. Until last year, the Legislature was indifferent to the claim, despite the university’s support for it.

Another recent claims-bill outrage involves Wendy Berger, the Florida appellate judge recently nominated by President Trump to be a federal district judge. The Senate should consider the case before confirming her.

A jury had awarded $10 million to the parents of Ereck Plancher, a 19-year-old football player at the University of Central Florida, who died during a rigorous conditioning drill in 2008. He had tested positive for sickle cell and there was testimony that some coaches and trainers knew it. The jury also heard that when the youth collapsed and buddies tried to help him, then-coach George O’Leary told them to “back the f--- up.” An unidentified coach shouted, “Put his ass down and make him walk.” Or so witnesses said. The verdict went against UCF and its Athletic Association, a voluntary support organization that ran the program for the school and claimed the benefit of its sovereign immunity.

When the case reached a three-judge panel at Florida’s Fifth District Court of Appeal, the court cut the award to $200,000. Berger commented on the cruelty implied by the testimony. Even so, she wanted to overturn the verdict entirely on the premise of a liability waiver the boy had signed.

On appeal, the Florida Supreme Court in May 2015 restored the original verdict, but limited the required payout to $200,000. For anything more, it said, “the Planchers must look to the Legislature.” In a troublesome footnote, the court said sovereign immunity would apply as well to the association’s $10-million insurance policy, for which it had been paying six-figure premiums.

The insurance company must have doubted how that would come out in a federal appeal or before the Legislature because it reportedly reached a confidential settlement with the Planchers. It took them nearly a decade after Ereck’s death to get it.

In the wake of the Parkland tragedy, there are already $8.2 million in contributions that the Broward Education Foundation can distribute to victims. But that hardly seems sufficient for so much injury and loss. Rather than put the families through years of costly and emotionally draining litigation and lobbying, the Legislature should see to adequate compensation — now.

And repeal sovereign immunity as well.

Editorials are the opinion of the Sun Sentinel Editorial Board and written by one of its members or a designee. The Editorial Board consists of Editorial Page Editor Rosemary O'Hara, Elana Simms, Andy Reid and Editor-in-Chief Julie Anderson.