Suing the Government for Injuries in Florida: Sovereign Immunity Caps and the 768.28 Notice

A Metrobus rear-ends your car on Biscayne Boulevard. You slip on a wet floor at a Miami-Dade County building. A City of Miami sanitation truck backs into you. In each case the defendant is a government body, and the ordinary rules of a Florida injury claim change. Section 768.28, Florida Statutes, sets the terms on which the State of Florida and its subdivisions agree to be sued. It caps what you can recover, requires a written notice before any lawsuit, and adds procedural steps that do not exist in a claim against a private driver or business. Miss a step and the court can dismiss the case regardless of how clear the negligence was.

Who Counts as the Government Under § 768.28

The statute reaches the state, its agencies, and its "subdivisions." In Miami, that includes:

• Miami-Dade County, including Miami-Dade Transit (Metrobus, Metrorail, Metromover), the Miami-Dade Police Department, the Aviation Department at Miami International Airport, and the Water and Sewer Department
• The City of Miami and its police, fire-rescue, and public works departments
• The Public Health Trust of Miami-Dade County, which operates Jackson Memorial Hospital and the Jackson Health System
• The School Board of Miami-Dade County
• State agencies operating locally, such as the Florida Department of Transportation, the Florida Highway Patrol, and the Department of Children and Families
• State universities and colleges, including Florida International University and Miami Dade College

Under § 768.28(9)(a), the individual employee who caused the harm is generally not a proper defendant. The bus driver, the deputy, or the nurse is personally immune unless he or she acted in bad faith, with malicious purpose, or with wanton and willful disregard of human rights or safety. The claim runs against the employing agency.

What Immunity Is Waived, and What Is Not

Section 768.28(1) waives immunity for injury or loss caused by a negligent or wrongful act of an employee acting within the scope of employment, in the same manner and to the same extent as a private person, subject to the limits in the statute. The Florida Supreme Court has drawn a line between planning-level decisions and operational acts. A decision about whether to build a traffic signal at a given intersection is a planning function and remains immune. Failing to maintain a signal that has already been installed, or failing to warn of a known hazard on public property, is operational and can support a claim. Premises claims against public buildings follow the same duty analysis as claims against private property owners, which we discuss on our page about Florida premises liability for business invitees.

The Damage Caps in § 768.28(5)

Florida limits what a government defendant will pay on a judgment or settlement:

• $200,000 per person: the most any one claimant can collect for a single incident.
• $300,000 per occurrence: the most all claimants combined can collect from the same incident, regardless of how many people were hurt.

Section 768.28(8) also bars punitive damages and prejudgment interest against a government defendant. Attorney's fees are capped at 25 percent of any judgment or settlement.

A worked example shows how the occurrence cap operates. A Metrobus runs a red light and strikes a sedan carrying four passengers. Each passenger has medical bills and lost wages that a jury values at $150,000. Their combined damages are $600,000. The county's exposure under § 768.28(5) is $300,000 total, so each passenger would recover $75,000 unless the Legislature acts. Now suppose one passenger alone suffers $900,000 in damages. That claimant's recovery is limited to $200,000, and the remaining $100,000 of the occurrence cap is available to the others.

A court may enter judgment for the full verdict. The portion above the cap simply cannot be collected without a claim bill, which is a private act passed by both chambers of the Florida Legislature and signed by the Governor. Claim bills are rare, take years, and are political rather than legal proceedings. A government body that carries liability insurance above the cap may settle within its policy limits under § 768.28(5)(a), but buying insurance does not waive the cap or increase the entity's liability.

Comparative fault still applies. If the jury finds you 30 percent at fault, your damages are reduced by 30 percent before the cap is applied. If you are found more than 50 percent at fault, you recover nothing under the modified comparative negligence rule adopted in HB 837.

The Written Notice Requirement in § 768.28(6)

Before you may file suit, § 768.28(6)(a) requires you to present the claim in writing to the appropriate agency. For most defendants you must also present it to the Florida Department of Financial Services (DFS). The statute exempts claims against a municipality or a county from the DFS requirement. The exemption does not extend to school boards, hospital districts, or state agencies. In Levine v. Dade County School Board, 442 So. 2d 210 (Fla. 1983), the Florida Supreme Court dismissed a claim against the school board because the claimant notified the board but not the state.

Section 768.28(6)(c) dictates the contents of the notice. It must state the claimant's date and place of birth and Social Security number (or federal identification number for a business), and it must disclose whether the claimant has any adjudicated unpaid claim in excess of $200 owed to the state, including the case style, tribunal, and amount. A notice that omits this information is defective. In practice, the notice should also identify the date, location, and nature of the incident, the employees or vehicles involved, the injuries, and the amount claimed. Send it by certified mail with return receipt and keep the green card.

Deadlines: Notice, Waiting Period, and Suit

Three separate clocks run on a government injury claim:

1. Notice deadline: the written claim must be presented within 3 years after the claim accrues. For wrongful death, the notice deadline is 2 years. § 768.28(6)(a).
2. Waiting period: you may not file suit until the agency (and DFS, where applicable) denies the claim in writing. If no denial issues within 6 months, the claim is deemed denied under § 768.28(6)(d). For medical malpractice and wrongful death claims, the deemed-denial period is 90 days.
3. Filing deadline: under § 768.28(14), a negligence action against a government defendant must be filed within 4 years after the claim accrues. Medical malpractice and wrongful death claims follow the shorter limitation periods in § 95.11, which are tolled while the agency reviews the notice.

The trap is that the 4-year filing deadline for ordinary negligence is not tolled during the 6-month waiting period. Consider a claimant hit by a county vehicle on May 1, 2024. The 3-year notice deadline is May 1, 2027, and the 4-year filing deadline is May 1, 2028. If the claimant mails the notice on April 15, 2027, within the notice period, the county has until October 15, 2027 to respond. If it stays silent, the claim is deemed denied and suit can be filed. But a claimant who waits and mails the notice on February 1, 2028 will not reach a deemed denial until August 1, 2028, three months after the filing deadline has passed. Filing suit before the waiting period ends is a separate defect the defendant will raise. The safe practice is to send notice as early as the facts permit and no later than six months before the filing deadline. Our page on the Florida personal injury statute of limitations after HB 837 covers how these periods compare to claims against private defendants.

Medical Negligence at Jackson and Other Public Providers

A malpractice claim against the Public Health Trust or another public hospital triggers two presuit systems at once. You must satisfy the § 768.28(6) notice to the Trust and to DFS, and you must complete the § 766.106 presuit investigation, including the corroborating affidavit from a qualified medical expert and the 90-day investigation period. The two processes can run at the same time, and the deemed-denial period for the 768.28 notice is 90 days rather than 6 months. The 2-year medical malpractice limitation period is tolled during the agency review. We explain the medical presuit steps on our page about Florida medical malpractice presuit under § 766.106 in Miami.

Pleading and Serving the Government Defendant

The complaint must allege that all conditions precedent, including the written notice and the denial, have been satisfied. Under § 768.28(7), process must be served on the head of the agency and, for defendants other than a municipality or county, on DFS as well. Service on a receptionist or a department attorney is not enough. Once a case settles, the entity will require a written release before it issues payment, and the settlement documents will reflect the statutory caps.

You can contact the Law Offices of Albert Goodwin by phone at 786-522-1411 or by email at [email protected].