LTC 099-2024 Court Victory in Juan A. Garcia, Jr. v. Cuyahoga Wrecking CorpMIAMI BEACH
OFFICE OF THE CITY ATTORNEY
L TC No.
___099-2024____ _ LETTER TO COMMISSION
TO: Mayor Steven Meiner and Members of the City Commission
FROM:
DATE:
Rafael A. Paz, City Attorney �
March 20, 2024
SUBJECT: Court Victory in Juan A. Garcia, Jr. v. Cuyahoga Wrecking Corp.
The purpose of this L TC is to advise you of last week's court victory in Juan A. Garcia, Jr.
v. Cuyahoga Wrecking Corp., whereby the City obtained a final summary judgment in its
favor on indemnity claims brought by the Florida Department of Environmental Protection
("FDEP") and worth potentially millions of dollars.
The lawsuit arises from an incident on February 1, 1989, when plaintiff Juan A. Garcia,
Jr. allegedly dove into the water near the then-recently-demolished South Beach Pier and
suffered a serious bodily injury. The plaintiff claims he struck his head on underwater
debris from the demolition, and that the City and FDEP were each negligent in their
management of the beach area and the demolition process/cleanup.
The plaintiff and his parents ("Plaintiffs") filed their lawsuit in 1991. The City hired an
outside law firm to represent its interests and, in 1997, reached a full settlement with
Plaintiffs for $1.25 million, which was paid in full pursuant to a legislative claim bill passed
in 1998.
However, the City and FDEP had pre-existing contractual relationships via a beach
Management Agreement from 1982 and a related Permit from 1984. These contracts
included a provision that the City indemnify FDEP for all claims of liability arising out of
the use of the beach property, to the extent allowed by the Laws of Florida, or arising out
of work authorized by the Permit.
Despite the City having resolved Plaintiffs' claims against it more than two decades ago,
Plaintiffs' claims against FDEP have not yet been resolved. On January 10, 2020, FDEP
filed a Third-Party Complaint against the City for contractual and common-law indemnity
based on FDEP's potential exposure of liability to Plaintiffs-which could possibly total
millions of dollars.
We ore committed to providing excellent public service and safety to o/1 who live, work, and ploy in our vibrant, tropical, historic community.
Letter to Commission
March 20, 2024
Page 2
The City’s in-house litigation team has vigorously defended the City against these claims.
Last Thursday, Judge Vivianne Del Rio entered an Order granting summary
judgment in the City’s favor on the entire Third.Party Complaint, and on Friday, the
Court entered final judgment for the City.
Judge Del Rio held that FDEP’s claims against the City were not timely asserted and
therefore barred under the doctrines of laches and/or waiver, due to the prejudice suffered
by the City. Specifically, FDEP sat on its hands for over 20 years before filing the Third-
Party Complaint, and in the meantime, the City’s outside counsel’s law firm had
disbanded and the City destroyed its case file, consistent with public records retention
policies of the State of Florida. FDEP’s decades-long delay in filing their indemnity claims
put the City at an unfair disadvantage, given the extreme passage of time. In addition, the
Judge further held that FDEP’s claims were barred by sovereign immunity.
The City’s summary judgment motion was litigated entirely in-house by First Assistant
City Attorney Henry J. Hunnefeld and Senior Assistant City Attorney Freddi Mack.
A copy of the Court’s Order is attached. The Order is not yet considered final, as FDEP
still has the opportunity to appeal.
As always, please feel free to contact me or Rob Rosenwald for further information about
this or any City litigation matter.
RAP/RFR/ag
We are committed to providing excellent public service and safety to all who live, work, and play in our vibrant, tropical. historic community.
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL
CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO: 1991-026591-CA-01
SECTION: CA05
JUDGE: Vivianne Del Rio
Garcia, Juan A (Jr)
Plaintiff(s)
vs.
Cuyahoga Wrecking Corp
Defendant(s)
____________________________/
ORDER GRANTING CITY OF MIAMI BEACH'S MOTION FOR FINAL SUMMARY
JUDGMENT ON THIRD-PARTY COMPLAINT
THIS CAUSE came before the Court on Third-Party Defendant, THE CITY OF MIAMI
BEACH, FLORIDA’s (the “City”), Motion for Final Summary Judgment on Third-Party
Complaint (D.E. 95) (the “Motion”).
THE COURT has considered the Motion, the response filed by Third-Party Plaintiff,
FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION (“FDEP”) (D.E. 110) (the
“Response”), the City’s reply (D.E. 112), and pertinent parts of the record. The Court also heard
argument of counsel on February 28, 2024 (see D.E. 109), and requested the submission of
competing proposed orders.
Being duly advised in the premises, it is ORDERED AND ADJUDGED that the Motion is
GRANTED for the reasons set forth below.
STATEMENT OF UNDISPUTED MATERIAL FACTSI.
The Court finds that the following facts are undisputed:
Case No: 1991-026591-CA-01 Page 1 of 18
Filing # 194063696 E-Filed 03/14/2024 05:35:29 PM
The Underlying ComplaintA.
This case arises from alleged injuries sustained by the underlying plaintiff, JUAN A.
GARCIA, JR. (“Plaintiff”), when he dove into the water at South Beach in Miami Beach,
Florida on or about February 1, 1989 (the “Incident”).
1.
As a result of his alleged injuries, Plaintiff and his parents (collectively, “Plaintiffs”) sued the
City and FDEP,[1] among others, for negligence in the above-captioned case. A true and
correct copy of the underlying Fourth Amended Complaint (the “Underlying Complaint”) is
attached as Exhibit A to the Third-Party Complaint, which is Exhibit 1 to the City’s Motion.
2.
As it relates to this case, the relationship between FDEP and the City arises from a 1982
Management Agreement, and a related 1984 Permit, whereby the City agreed to manage and
supervise a portion of South Beach owned by FDEP, including by demolishing a pier located
on FDEP’s property. See Third-Party Compl. ¶¶ 10–14.
3.
Plaintiffs allege that the City demolished the South Beach Pier and failed to adequately
remove debris in the water. See Underlying Compl. ¶¶ 77–78.
4.
Plaintiffs further allege that Plaintiff dove into the water at the South Beach Pier and hit the
underwater debris, causing him to suffer permanent injury. See id. ¶ 16.
5.
But FDEP—not the City—owned the property. See Third-Party Compl. at Ex. B
(Management Agreement); see also Underlying Compl. ¶ 59.
6.
According to the Underlying Complaint, FDEP had exclusive and/or concurrent power and
control of the planning, design, engineering, construction, repair and/or operation of flood
control, beach erosion and hurricane projection projects pursuant to applicable Federal Laws.
See Underlying Compl. ¶ 62.
7.
According to the Underlying Complaint, FDEP further owed a duty to the general public to
maintain, operate, and/or control South Beach in a reasonably safe manner pursuant to an
8.
Case No: 1991-026591-CA-01 Page 2 of 18
agreement made with the United States of America under the Florida Control Act. See id.
¶¶ 63–65.
Importantly, the Underlying Complaint’s sole count against FDEP is based on FDEP’s own
direct negligence for, inter alia, allowing a known unreasonably dangerous condition to
exist, failing to warn the public, and allowing the demolition of the pier and the clean up and
removal of the debris therefrom to be performed without compliance with the issued permits.
See id. ¶¶ 58–73.
9.
The Underlying Complaint does not contain any vicarious liability cause of action. In other
words, FDEP is not alleged to be vicariously liable for the City’s alleged negligence. See
generally Underlying Complaint.
FDEP Sends a May 30, 1996 Pre-Suit Letter to the City, But Takes No Further
Action Against the City for Nearly 23 Years
B.
10.
By letter dated May 30, 1996, FDEP sent a pre-suit letter to the City, tendering Plaintiffs’
claim against it. See Third-Party Compl. at Ex. D.
11.
FDEP then sat on its rights and took no further action against the City until sending a
renewed demand dated January 14, 2019—nearly 23 years later. See Third-Party Compl. at
Ex. E.
The City is Subject to, and Satisfies, a $1.25 Million Consent JudgmentC.
12.
In the interim, the City reached a full and final settlement with Plaintiffs for Plaintiffs’ claims
against the City only. This settlement was approved via entry of a Consent Final Judgment
dated February 21, 1997 and recorded at the Miami-Dade County Official Records Book
17539, Page 2220. Copies of the subject Settlement Agreement and the Consent Final
Judgment are attached to the City’s Motion as Exhibits 2 and 3, respectively.
13.
The Settlement Agreement and Consent Final Judgment fully and finally resolved and 14.
Case No: 1991-026591-CA-01 Page 3 of 18
released all of Plaintiffs’ claims against the City arising out of the Incident but purported to
preserve Plaintiffs’ claims against all other parties. See Mot. Ex. 2 & 3.
The City satisfied the Consent Final Judgment in the amount of $1,250,000 pursuant to a
legislative claim bill, HB 1771 (1998) (the “Claim Bill”), authorizing/directing the City to
appropriate the settlement funds to pay Plaintiffs. A copy of the Claim Bill is attached to the
City’s Motion as Exhibit 4.
15.
The Claim Bill became law on April 4, 1998. See Bill History, attached to the City’s Motion
as Exhibit 5.
16.
The City promptly satisfied the Consent Final Judgment via two checks: Check # 1000847
(in the amount of $200,000, the statutory sovereign immunity cap) and Check # 1001758 (for
the balance of $1,050,000, as authorized by the Claim Bill). See City’s Motion at Exhibit 6,
Affidavit of Robert Aragon at ¶ 5.
17.
On July 2, 1998, in recognition of the judgment satisfaction, the Court docketed its Order of
Dismissal with Prejudice as to the City, recorded at the Miami-Dade County Official Records
Book 18175, Page 0910 and attached to the City’s Motion as Exhibit 7.
18.
The City’s claim file for Plaintiffs’ claim was closed on January 23, 2002. See Mot. Ex. 6,
Aragon Affidavit ¶ 6.
19.
At all material times prior to January 23, 2002, the City was represented by outside
counsel—namely, the law firm of Zack Kosnitzky P.A., a/k/a Zack Hanzman Ponce Tucker
P.A., a/k/a Zack Sparber et al. This law firm no longer exists. See id. ¶ 7.
More than Two Decades Later, FDEP Files the Third-Party Complaint Seeking
Indemnity Against the City
D.
20.
After the City satisfied the Consent Final Judgment in 1998, the City was not a party to any
further litigation concerning this case for more than two decades. See Mot. Ex. 6 at ¶ 9.
21.
Case No: 1991-026591-CA-01 Page 4 of 18
In the meantime, the City had closed the claim file; the City’s outside counsel’s law firm had
been disbanded; and the City’s underlying litigation file had been destroyed consistent with
state-law document retention policies. Id. at ¶¶ 6–8.
22.
However, on January 10, 2020—more than 23 years after it sent the pre-suit demand letter
dated May 30, 1996, and more than 20 years after the City satisfied the Consent Final
Judgment to Plaintiffs—FDEP filed the Third-Party Complaint against the City, seeking
indemnification for Plaintiffs’ claims against FDEP. See Third-Party Complaint; see also
Mot. Ex. 6 at ¶ 10.
23.
Specifically, the Third-Party Complaint asserts the following counts against the City: (1)
Declaratory Judgment Action, seeking a declaration that the City owes a duty of defense and
indemnity to FDEP; (2) Contractual Indemnification Under the 1982 Management
Agreement; (3) Contractual Indemnification Under the 1984 Permit; and (4) Common Law
Indemnity. See Third-Party Complaint.
24.
These third-party causes of action were available to FDEP at least as early as May 30, 1996.25.
The City is and was prejudiced by FDEP’s delay in asserting the claims in the Third-Party
Complaint given that critical information is no longer available to the City. See Mot. Ex. 6 at
¶ 11.
26.
SUMMARY JUDGMENT STANDARDII.
Effective May 1, 2021, the Florida Supreme Court amended Florida Rule of Civil Procedure
1.510(c) to adopt the Federal summary judgment standard of Celotex Corp. v. Catrett, 477 U.S. 317
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); and Matsushita Electric Industrial
Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). See In re: Amendments to Florida Rule of Civil
Procedure 1.510, 309 So. 3d 192 (Fla. 2020).
“[T]he federal summary judgment standard ‘mirrors’ the standard for a directed verdict.” Id.
Case No: 1991-026591-CA-01 Page 5 of 18
(citing Anderson, 477 U.S. at 250). Summary judgment is appropriate if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law. Fla. R. Civ. P. 1.510(c). The movant may meet its burden by demonstrating that
there is a lack of evidence to support the essential elements that the nonmovant must prove at trial.
Celotex, 477 U.S. at 322–23. If the movant satisfies that standard, the burden shifts to the
nonmovant to “come forward with specific facts showing that there is a genuine issue for trial.”
Matsushita, 475 U.S. at 587 (quotation marks and citation omitted). For a nonmovant to avoid
summary judgment, a factual dispute must be both material and genuine. Anderson, 477 U.S. at
247–48. A fact is “material” if it “might affect the outcome of the suit under the governing law.” Id.
at 248. To raise a “genuine” dispute, the nonmovant must point to enough evidence that “a
reasonable jury could return a verdict” for it. Id.; see also In Re: Amendments to Florida Rule of
Civil Procedure 1.510, 317 So. 3d 72 (Mem.) (Fla. 2021).
AS A MATTER OF LAW, THE CITY IS ENTITLED TO SUMMARY JUDGMENT
ON WAIVER/LACHES GROUNDS
III.
Calling this case “unique” would be an understatement. The underlying Incident occurred in
February of 1989—more than 35 years ago from the date of this Order. The Underlying Action has
been pending since 1991—approximately 33 years. The City “bought peace” via the Settlement
Agreement, Consent Final Judgment, and Claim Bill more than 20 years before FDEP filed its
Third-Party Complaint. The undisputed facts show that the City has been highly prejudiced by
FDEP’s delay in filing the Third-Party Complaint. The more than two-decades-long period between
FDEP’s 1996 pre-suit letter and its 2020 filing of the Third-Party Complaint put the City off its
guard and led the City to believe that FDEP had waived the alleged indemnity right.
The extreme facts of this case—a 20-plus year delay by FDEP in bringing the Third-Party
Complaint—are such that the only reasonable result is to grant summary judgment to the City on
the basis of waiver/laches.
Case No: 1991-026591-CA-01 Page 6 of 18
Laches requires “proof of (1) lack of diligence by the party against whom the defense is
asserted, and (2) prejudice to the party asserting the defense.” McCray v. State, 699 So. 2d 1366,
1368 (Fla. 1997) (quoting Costello v. United States, 365 U.S. 265, 282 (1961)). Likewise, “waiver
is the intentional or voluntary relinquishment of a known right and may be inferred from conduct or
acts putting one off his guard and leading him to believe that the demanding party has waived the
right sought to be enforced.” Popular Bank of Fla. v. R.C. Asesores Financieros, C.A., 797 So. 2d
614, 619 (Fla. 3d DCA 2001). Under either test, the City is entitled to summary judgment.
Here, FDEP’s conduct in delaying the filing of the Third-Party Complaint by more than two
decades after the City reasonably believed it was fully out of this case rises to the level of
waiver/laches. FDEP possessed all the material facts to assert the Third-Party Complaint but failed
to do so. FDEP’s decades-long inaction put the City off its guard and led the City to believe that
FDEP waived any indemnity rights it may have. See Popular Bank, 797 So. 2d at 619. Further,
FDEP’s lack of diligence in filing the Third-Party Complaint has caused the City significant
prejudice—namely, the unavailability of critical records and the inaccessibility of the City’s former
law firm, which has since been disbanded. See McCray, 699 So. 2d at 1368.
The McCray case is instructive here. There, a convicted criminal defendant waited fifteen
years to bring a habeas corpus petition based on an alleged error at his trial (reference to a collateral
crime). Id. The Court noted that this presented “a perfect example of why the doctrine of laches
should be applied” in the face of such delay: the defendant offered no representation as to the
reason for his delay, and the facts had been available to him for at least the full fifteen years. Id.
The prejudice to the State was evident in the State’s inability to cogently respond to the claim: “As
time goes by, records are destroyed, essential evidence may become tainted or disappear, memories
of witnesses fade, and witnesses may die or be otherwise unavailable.” Id. All in all, the claim
“could and should have been raised many years ago” and was barred by laches. Id.
This case is just the same. FDEP could and should have filed its Third-Party Complaint
Case No: 1991-026591-CA-01 Page 7 of 18
decades ago, so that when the City was resolving its claims by Plaintiffs, it could have globally
resolved any purported indemnity claim. The City reasonably believed that its $1.25 million
Consent Final Judgment, entered in 1997, was buying peace. After satisfying that judgment in
1998, the City disposed of its litigation file and no longer has access to its outside counsel’s law
firm, which has been disbanded. It is highly prejudicial for FDEP to assert the indemnity claims
more than 20 years later when it knew about the claims well before the Consent Final Judgment
was entered.
It is true that a claim for indemnity does not accrue “until the indemnitee has paid a
judgment, or has made a voluntary payment of its legal liability to an injured party.” Scott &
Jobalia Const. Co. v. Halifax Paving, Inc., 538 So. 2d 76, 79 (Fla. 5th DCA 1989). Thus,
technically, FDEP’s indemnity claims against the City still have not accrued. But this is not the
City’s fault.
“Where strong equities appear, of course, laches may be applied before the statute of
limitations has expired.” Smith v. Branch, 391 So. 2d 797, 798 (Fla. 2d DCA 1980). For example,
in the case of Idoni v. Ungurean, the plaintiff knew that his car racing parts had been unlawfully
taken (conversion), placed in another vehicle, and subsequently sold to multiple purchasers, but he
“sat on his rights for approximately eight years” before filing a conversion and replevin lawsuit.
No. 6:14-cv-102-Orl-41GJK, 2016 WL 7177619, at *6 (M.D. Fla. Mar. 25, 2016) (applying Florida
law). The claims were not barred by the statute of limitations, based on the date that the defendants
purchased the vehicle, id. at *4, but the claims were nevertheless barred by laches because of the
prejudice the defendants suffered on account of the plaintiff’s delay, id. at *6. “Thus, even though
Plaintiff's causes of action are not barred by the statute of limitations, this case presents the scenario
where ‘strong equities’ require the application of laches ‘before the statute of limitations has
expired.’” Id. (quoting Smith, 391 So. 2d at 798).
It is hard to imagine a set of facts with stronger equities than the present case. As explained
Case No: 1991-026591-CA-01 Page 8 of 18
at length in the Motion, the City fully settled the claims against it in 1997 and satisfied the Claim
Bill in 1998. FDEP took no action against the City for over two decades. In the meantime, the
City had closed the claim file; the City’s outside counsel’s law firm had been disbanded; and, upon
information and belief, the City’s underlying litigation file had been destroyed consistent with
state-law document retention policies.
Through no fault of the City’s, Plaintiffs’ claim against FDEP has languished. The City
would suffer tremendous prejudice by being dragged back into this case and being forced to litigate
its alleged negligence, after already paying for and being released from such liability, and after the
loss of critical files and witnesses. In sum, even if the statute of limitations on an indemnity claim
has not accrued, FDEP’s decision to sit on its rights for over twenty-three (23) years calls for
summary judgment on the City’s waiver/laches defense. Cf. McCray, 699 So. 2d at 1368.
It is important to note that indemnity claims are a rare breed under Florida law: they can be
filed even before they have accrued. See, e.g., Rea v. Barton Protective Servs., Inc., 660 So. 2d 772,
773 (Fla. 4th DCA 1995) (authorizing indemnification claims to be filed “prior to the resolution of
the defendant’s liability to the plaintiff”), cited with approval by Dade Cnty. Sch. Bd. v. Radio
Station WQBA, 731 So. 2d 638, 643–44 (Fla. 1999); see also Mims Crane Serv., Inc. v. Insley Mfg.
Corp., 226 So. 2d 836, 840–42 (Fla. 2d DCA 1969) (explaining that the reason for permitting an
indemnity claim to be filed together with the underlying action is to avoid expense and delay);
Jerome Naglebush, Inc. v. Frank J. Rooney, Inc., 342 So. 2d 121, 122 (Fla. 3d DCA 1977) (same);.
For waiver/laches purposes, this means that FDEP has no justification for sitting on its rights. It
could have filed the Third-Party Complaint in 1996, or 1997, or 1998, 1999, 2000, 2001, and so
on—at some point in time before the City suffered the loss of crucial information to defend itself.
Waiver/laches bars FDEP’s long-delayed indemnity claims.
AS A MATTER OF LAW, SOVEREIGN IMMUNITY BARS THE CITY FROM
INDEMNIFYING FDEP
IV.
Case No: 1991-026591-CA-01 Page 9 of 18
Additionally, or alternatively, the City is entitled to summary judgment based on the
doctrine of sovereign immunity. This is so for at least three reasons.
The Sovereign Immunity Statute and Public Policy Bar the City from
Indemnifying FDEP for FDEP’s Own Negligence
A.
First, by operation of Florida Statutes section 768.28(19)[2]: a contract between any two
subdivisions of the State of Florida “must not contain any provision that requires one party to
indemnify or insure the other party for the other party’s negligence or to assume any liability for
the other party’s negligence.” An examination of the Underlying Complaint reveals that Plaintiffs
hope to hold FDEP liable for FDEP’s own negligence—not the City’s. Thus, the City cannot
indemnify FDEP.
The Third District Court of Appeal has already ruled that, because FDEP owned the beach
where the Incident occurred, FDEP owed a non-delegable duty of care to swimmers like Plaintiff.
Garcia v. State, Dep’t of Natural Res., 707 So. 2d 1158 (Fla. 3d DCA 1998), approved in relevant
part and reversed on other grounds, 753 So. 2d 72 (Fla. 2000). The performance of FDEP’s duty
could be delegated to the City, but the actual responsibility for the duty cannot. Garcia, 707 So. 2d
at 1159–60. A claim against a property owner for breach of a non-delegable duty is a direct claim,
not a vicarious one. See, e.g., Armiger v. Associated Outdoor Clubs, Inc., 48 So. 3d 864, 874 (Fla.
2d DCA 2010) (noting that “liability for the breach of a nondelegable duty arises from
direct—instead of imputed—liability” (emphasis in original) and collecting cases).[3]
Plaintiffs did not plead any vicarious liability cause of action against FDEP, see Underlying
Complaint. This is germane because “Florida law is clear that in order to pursue a vicarious liability
claim, the claimant must specifically plead it as a separate cause of action.” General Asphalt Co. v.
Bob’s Barricades, Inc., 22 So. 3d 697, 699 (Fla. 3d DCA 2009) (citing Goldschmidt v. Holman,
571 So. 2d 422 (Fla. 1990)).
In General Asphalt, an injured motorist sued General Asphalt (a contractor) and Bob’s
Case No: 1991-026591-CA-01 Page 10 of 18
Barricades (General Asphalt’s subcontractor). Id. at 698. [In this case, General Asphalt is
comparable to FDEP, and Bob’s Barricades is comparable to the City.] Bob’s Barricades settled
with the injured motorist, and the settlement preserved any claims the motorist might have against
General Asphalt for General Asphalt’s direct negligence. Id. When General Asphalt sued Bob’s
Barricades for indemnification, Bob’s Barricades moved for summary judgment, saying it had
satisfied its duties. Id. The Third District Court of Appeal affirmed summary judgment for Bob’s
Barricades, holding that (1) Bob’s Barricades settled the claims of its own negligence, (2) the
motorist “failed to allege any vicarious liability claims in her complaint” so General Asphalt could
not be held vicariously liable for Bob’s Barricades’ negligence, and (3) the only remaining claim
was for General Asphalt’s own direct negligence. Id. at 699.[4]
General Asphalt is directly applicable to the facts here. The City settled all claims relating
to its direct negligence. There are no vicarious liability counts in the Underlying Complaint.[5]
What remains is only Plaintiffs’ claim that FDEP was directly negligent. Thus, Section 768.28(19)
is triggered: the City cannot indemnify FDEP for FDEP’s own negligence.[6]
For the same reason, FDEP’s common-law indemnification count (Count IV) fails. At
common law, only a completely faultless party can seek indemnity from the party who is wholly at
fault. See, e.g., Houdaille Indus., Inc. v. Edwards, 374 So. 2d 490, 492–93 (Fla. 1979); Dade Cnty.
Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 642 (Fla. 1999) (“[T]he party seeking
indemnification must be without fault, and its liability must be vicarious and solely for the wrong
of another.”). Common-law indemnity “can only be applied where the liability of the person
seeking indemnity is solely constructive or derivative and only against one who, because of his
act, has caused such constructive liability to be imposed.” Houdaille Indus., 374 So. 2d at 493
(emphasis added). By contrast, where—as here—the party seeking indemnity (FDEP) is not facing
liability solely because of vicarious liability, but rather is facing its own direct liability, then
indemnity is unavailable. See id.; see also id. at 494 (where two parties were each at fault, “no
Case No: 1991-026591-CA-01 Page 11 of 18
matter how slight the fault of the former,” one party could not seek indemnity from the other).
In sum, because FDEP was directly negligent (if at all) because of its non-delegable duty to
Plaintiff, the City cannot indemnify FDEP for its own negligence, so the indemnity claims in the
Third-Party Complaint must be denied
“Cap-Stacking” is ImpermissibleB.
Second, sovereigns like FDEP have authorized a limited waiver of sovereign immunity for
tort, and only to the extent expressly provided for in Florida Statutes section 768.28. The damages
cap under section 768.28 applies in the aggregate, and a plaintiff cannot “stack” the cap amounts by
getting successive judgments against different government entities. See, e.g., Vasquez v. Bd. of
Regents, State of Fla., 548 So. 2d 251, 254 (Fla. 2d DCA 1989) (citing Gerard v. Dep’t of Transp.,
472 So. 2d 1170 (Fla. 1985)).
In Vazquez, the plaintiff brought a medical negligence action against several individual
doctors as well as two separate sovereigns: (1) the Hillsborough County Hospital Authority and (2)
the Board of Regents that implemented an educational function carried out through the College of
Medicine and its faculty. Id. at 251–52. The plaintiff settled her claim against the Hospital
Authority and the resident physicians for the limit of the sovereign immunity cap (then $100,000).
Id. at 252. Nevertheless, the plaintiff continued to pursue her claim against the Board of Regents.
Id. On summary judgment, the trial court determined that, under section 768.28, “the maximum
amount recoverable from all defendants was $100,000; that the Hospital Authority’s settlement
with [plaintiff] represented the maximum recovery allowable; and that the release of [the resident
physicians] and the Hospital Authority acted, as a matter of law, as a release of . . . the BOR from
any vicarious liability arising from [the physicians’] negligence.” Id. The Second District Court of
Appeal affirmed the trial court’s ruling, noting: “In Gerard v. Department of Transportation, 472
So.2d 1170 (Fla.1985), the Florida Supreme Court flatly rejected the notion that a plaintiff can
‘stack’ sovereigns and exceed the statutory limits.” Id. at 254.
Case No: 1991-026591-CA-01 Page 12 of 18
Here, just like in Vazquez, because Plaintiffs have exhausted the statutory cap against the
City, they cannot obtain a successive judgment against FDEP.[7] Even if they could, they cannot
essentially obtain “double recovery” from the City for the same alleged negligence, having already
exceeded the sovereign immunity cap against the City by and through the fully-paid-out Claim Bill
in 1998. Summary judgment is thus warranted under the doctrine against cap-stacking.
Plaintiffs’ Claim Against FDEP is Premised on FDEP’s Alleged Negligence in
Delegating Performance of its Duties to the City—an Inherently Planning-Level
Decision
C.
Third, sovereign immunity also bars any claim that FDEP was negligent simply by
choosing to delegate to the City the performance of FDEP’s non-delegable duty.
Sovereigns like FDEP are protected from both liability and suit under the doctrine of
sovereign immunity. Fla. Highway Patrol v. Jackson, 288 So. 3d 1179, 1185 (Fla. 2020). In
Florida, “sovereign immunity is the rule, rather than the exception.” Pan-Am Tobacco Corp. v.
Dep’t of Corr., 471 So. 2d 4, 5 (Fla. 1984). Florida may waive sovereign immunity, but any waiver
of sovereign immunity must be “clear and unequivocal.” Rabideau v. State, 409 So. 2d 1045, 1046
(Fla. 1982). The doctrine is “designed to protect the public treasury from what would otherwise be
countless claims filed by vast number of citizens affected by actions of a government.” S.
Roadbuilders, Inc. v. Lee Cty., 495 So. 2d 189, 190 n.1 (Fla. 2d DCA 1986). The immunity “is a
positively necessary and rational safeguard of taxpayer’s money.” Id.
Derived exclusively from the separation of powers provision found in article II, section 3 of
the Florida Constitution,[8] sovereign immunity prohibits the judiciary from “second guess[ing] the
political and police power” decisions of coordinate branches of government “absent a violation of
constitutional or statutory rights.” See Trianon Park Condo. Ass’n v. City of Hialeah, 468 So. 2d
912, 918 (Fla. 1985); Wallace v. Dean, 3 So. 3d 1035, 1045 (Fla. 2009). The doctrine of separation
of powers mandates that “certain [quasi-legislative] policy-making, planning or judgmental
governmental functions cannot be the subject of traditional tort liability.” Commercial Carrier
Case No: 1991-026591-CA-01 Page 13 of 18
Corp. v. Indian River Cty., 371 So. 2d 1010, 1020 (Fla. 1979). Consequently, where governmental
actions are deemed discretionary, the government has absolute immunity from suit. Id. at 1020–22.
For example, decisions on how the sovereign allocates its resources, enforces its laws, formulates
policy, or protects the public are matters usually protected from judicial interference. Trianon, 468
So. 2d at 918–20.
To the extent Plaintiffs’ claim against FDEP is based on a theory that FDEP was negligent
in deciding to delegate to the City the performance of FDEP’s non-delegable duties, see Underlying
Compl. ¶¶ 59–72, that decision is a discretionary, planning-level one that is protected from a tort
suit. Indeed, when this very case went up before the Florida Supreme Court in the year 2000,
Justice Wells identified this same sovereign immunity concern:
The concept of nondelegable duty is contrary to our distinction, for purposes of
determining the existence of sovereign immunity, between governmental planning-
level and operational-level decisions, upon which Commercial Carrier v. Indian
River County, 371 So.2d 1010 (Fla.1979), and its progeny are based. The proper
analysis does not determine whether a governmental entity can or cannot delegate a
function. Rather, the appropriate question is whether a governmental entity
performed an operation itself and, if so, whether the entity exercised reasonable
care. The decision as to whether to delegate control or whether to perform a
particular operation is a discretionary, planning-level governmental decision
into which the courts cannot intrude. Trianon Park Condominium Ass'n, Inc. v.
City of Hialeah, 468 So.2d 912, 918 (Fla.1985).
Garcia, 753 So. 2d at 78–79 (Wells, J., dissenting) (emphasis added). Ultimately, however, the
majority had no occasion to reach this sovereign immunity argument because it had not been
properly presented by the parties. See id. at 78 (declining to probe “the issue of the nondelegable
duty raised by the dissent”).
Now, of course, the issue is properly presented before this Court. Commercial Carrier and
Trianon lead to the inescapable conclusion that FDEP cannot be deemed negligent simply for
making the planning-level decision to delegate the performance of beach maintenance to the City.
To hold otherwise would violate sovereign immunity.
Case No: 1991-026591-CA-01 Page 14 of 18
CONCLUSIONIII.
For the foregoing reasons, the Court GRANTS the City’s motion for final summary
judgment on the basis of waiver/laches and (additionally or alternatively) on sovereign immunity
grounds. The Court will separately enter final judgment on the Third-Party Complaint in favor of
the City and against FDEP.
[1] FDEP’s predecessor-in-interest, named in the Underlying Complaint, is the State of Florida,
Department of Natural Resources (“DNR”). For ease of reference, the parties and the Court use the
name FDEP throughout.
[2] Formerly subsection (18).
[3] It is true that there is case-law using the term “vicarious” when describing the liability for
breach of nondelegable duty (see Response at 11–18), but as the Armiger Court cogently explained,
that term is mere shorthand rather than an accurate description of the basis of the liability (which is,
in fact, direct): “The concepts of nondelegable duty and vicarious liability are frequently confused
and conflated. … Nevertheless, the occasional imprecision in analysis and joint classification for
the purpose of convenience in discussion does not alter the fundamental differences between direct
liability for the breach of a nondelegable duty and vicarious liability for the tortious acts of
another.” Armiger, 48 So. 3d at 874, 876.
[4] At the hearing on the Motion, FDEP attempted to distinguish General Asphalt by pointing out
that the settlement agreement in that case released both direct and vicarious liability claims. See 22
So. 3d at 698. That fact is true but immaterial. The Third District Court of Appeal’s ruling was
based not on the language of the settlement release, but rather on the language of the underlying
complaint: “Bob’s Barricades had a duty to indemnify General Asphalt for any vicarious liability
claims. However, the injured motorist failed to allege any vicarious liability claims in her
complaint.” Id. at 698–99. So too here.
[5] Because the Underlying Complaint asserts no vicarious liability count, FDEP’s arguments about
partial setoff for the amounts the City paid (Response at 18–20) are inapposite.
[6] FDEP contends that applying section 768.28(19) to the contractual indemnity claims would
amount to an unconstitutional impairment of contract. Response at 8–11. But none of FDEP’s cited
cases involve a contract between two political subdivisions of the State of Florida. The State is free
to regulate its subdivisions, including contracts between them. And the codification of then-section
768.28(18) (now section 768.28(19)) reflects a settled public policy that each subdivision should
remain liable for its own negligent acts or omissions, rather than shifting the cost to one
Case No: 1991-026591-CA-01 Page 15 of 18
subdivision’s taxpayers for the negligence of the second separate subdivision. See Am. Home Assur.
Co. v. Nat’l R.R. Passenger Corp., 908 So. 2d 459, 481 (Fla. 2005) (Quince, J., concurring in part)
(recounting legislative Staff Analysis accompanying the enactment of then-section 768.28(18)).
Courts routinely refuse to enforce contracts that contravene public policy. E.g., Young v.
Progressive S.E. Ins. Co., 753 So. 2d 80 (Fla. 2000); Claire’s Boutiques v. Locastro, 85 So. 3d
1192 (Fla. 4th DCA 2012).
[7] FDEP contends that the Third District Court of Appeal “has already ruled” on the City’s cap-
stacking argument. See Response at 20–21. The Court disagrees. The case relied upon by FDEP
arose from a separately-filed declaratory judgment case between FDEP and Plaintiffs—to which
the City was not a party. See State, Dep’t of Envt’l Protection v. Garcia, 99 So. 3d 539 (Fla. 3d
DCA 2011). In that case, the Court held that it was improper for FDEP to file a separate
declaratory-judgment suit “presenting the issue of whether section 11.065(2) precluded the Garcias
from presenting a claims bill for any excess judgment” in lieu of moving for summary judgment in
the Underlying Action here, and further held that the trial court lacked jurisdiction to enter such a
declaratory judgment. State, Dep’t of Envt’l Protection v. Garcia, 99 So. 3d 539, 542–45. The
Third District then assumed without deciding that Plaintiffs could obtain an excess judgment
against FDEP; if that were to occur, the Third District commented that section 11.065(2) did not
bar Plaintiffs from requesting a second claim bill, as
the decision whether or not to pass a claims bill and pay any or all of a claim is entirely a
legislative function completely independent of judicial intervention. As a result, not only is
the determination regarding whether a claims bill may be submitted premature at this point,
it is not clear how a judicial determination whether a claims bill may be submitted to the
Legislature can have any real effect when the Legislature conducts it own independent, de
novo hearing to determine whether to expend public funds to pay the claim.
Id. at 545. Moreover—and critically here—the Court noted that Plaintiffs do not even need to
obtain an excess judgment in order to request a second claim bill: “[Plaintiffs] are always free to
go directly to the Legislature with their claim against [FDEP], without a judgment in hand, and
pursue the non-judicial, purely legislative, claims bill process.” Id. at 546. But because the Court’s
ultimate holding was that the trial court lacked jurisdiction over the declaratory action, these
comments about the claim bill process are only dicta.
In short, the Third District was only considering whether there was a bona fide, actual, present need
for a declaration on the effect of section 11.065(2), Florida Statutes, on Plaintiffs’ ability to request
a second claim bill. See id. at 544–45. The Third District was not asked to, and did not, decide
whether any other law would preclude Plaintiffs from obtaining a judgment in excess of the
statutory cap.
Case No: 1991-026591-CA-01 Page 16 of 18
The City’s Motion is different. It does not make a section 11.065(2) argument at all. Instead, the
City explains that sovereign immunity waivers must be “strictly construed” and that the expressly-
imposed “cumulative per-incident limitation on aggregate recovery” found in section 768.28(5),
Florida Statutes, applies “regardless of whether the source of payment is a single governmental
entity or multiple governmental entities.” Gerard, 472 So. 2d at 1172. In other words, a plaintiff
cannot exhaust the cap in section 768.28(5) from one sovereign and then “stack” judgments in
excess of the cap from other sovereigns. Vasquez, 548 So. 2d at 254. That is precisely what
Plaintiffs here propose to do.
[8] Article II, section 3 of the Florida Constitution provides that: “The powers of the state
government shall be divided into legislative, executive and judicial branches. No person belonging
to one branch shall exercise any powers appertaining to either of the other branches unless
expressly provided herein.”
DONE and ORDERED in Chambers at Miami-Dade County, Florida on this 14th day of March,
2024.
1991-026591-CA-01 03-14-2024 5:01 PM
Hon. Vivianne Del Rio
CIRCUIT COURT JUDGE
Electronically Signed
No Further Judicial Action Required on THIS MOTION
CLERK TO RECLOSE CASE IF POST JUDGMENT
Electronically Served:
Alexander R Rodriguez, arodriguez@areceslaw.com
Alexander Rodriguez, arodriguez@areceslaw.com
Alexander Rodriguez, mareces@areceslaw.com
Alvaro F Areces, fareces@areceslaw.com
Benjamin Z Braun, benjaminbraun@miamibeachfl.gov
Benjamin Z Braun, sandraperez@miamibeachfl.gov
Benjamin Z Braun, merarimotola@miamibeachfl.gov
Freddi Rebecca Mack, freddimack@miamibeachfl.gov
Case No: 1991-026591-CA-01 Page 17 of 18
Freddi Rebecca Mack, merarimotola@miamibeachfl.gov
Freddi Rebecca Mack, sandraperez@miamibeachfl.gov
Henry J Hunnefeld, henryhunnefeld@miamibeachfl.gov
Henry J Hunnefeld, sandraperez@miamibeachfl.gov
Henry J Hunnefeld, merarimotola@miamibeachfl.gov
Mark Fishman, markfishman@miamibeachfl.gov
Mark Fishman, bonniestewart@miamibeachfl.gov
Patrick Alexander Alayon, palayon@alayonlaw.com
Patrick Alexander Alayon, pleadings@alayonlaw.com
Patrick Alexander Alayon, nboix@alayonlaw.com
Richard A. Alayon, pleadings@alayonlaw.com
Richard A. Alayon, ralayon@alayonlaw.com
Robert F. Rosenwald Jr., robertrosenwald@miamibeachfl.gov
Robert F. Rosenwald Jr., miriammerino@miamibeachfl.gov
Robert F. Rosenwald Jr., robertrosenwald@aim.com
Yoe Lopez, yoelopez@miamibeachfl.gov
Yoe Lopez, bonniestewart@miamibeachfl.gov
Physically Served:
Case No: 1991-026591-CA-01 Page 18 of 18