Key Points

  • The First District reversed the denial of summary judgment to the Florida Department of Children and Families and ordered summary final judgment for the department, holding that sovereign immunity bars the estate's negligent-placement and negligent-investigation claims.
  • The court held that the trial judge erred by treating sovereign immunity as a fact question; immunity is a threshold legal question for the court, and it turns on the nature of the challenged conduct rather than proof of the facts alleged.
  • In a companion appeal, the court held that Crandall Medical Consulting, LLC and its employee Braandon Davis were agents of the state under section 768.28(9)(a) because the evidence of the Agency for Persons with Disabilities' control went undisputed, and a contract clause calling Davis an independent service provider was not dispositive.
  • The court reasoned in a footnote that the limited sovereign immunity applied to corporations acting as state instrumentalities does not apply to Crandall Medical because an LLC is not a corporation under Florida law.
  • Judge Bilbrey wrote both opinions; Judges M.K. Thomas and Long concurred.

A Florida appeals court on Oct. 7 ordered judgment for the Florida Department of Children and Families and for a private disability-services contractor in a lawsuit over the care of a young man with complex medical needs. The court held that sovereign immunity bars the claims against them.

Judge Bilbrey wrote both opinions for a unanimous panel of the First District Court of Appeal, joined by Judges M.K. Thomas and Long. The panel reversed orders by Alachua County Circuit Judge Gloria R. Walker that had denied summary judgment to the department and, in a separate appeal, to Crandall Medical Consulting, LLC and its employee, Braandon Davis.

In both cases, the trial judge had denied summary judgment after finding too many disputed issues of fact. The appeals court said that approach was wrong as a matter of law. "Sovereign immunity is a threshold legal question for the court, not a fact question for the jury," Judge Bilbrey wrote. The contractor ruling also holds that a contract calling a state contractor an "independent service provider" did not defeat its immunity when the evidence of the state's control went unrebutted.

The suit was brought by John L. Gainey on behalf of his nephew, Nazariah Brown. According to the opinions, Mr. Brown lived with his mother and other family members until August 2022, when the family lost the lease on their home. The department had become involved that May at his mother's request. To keep him from becoming homeless, department personnel placed him on an emergency basis in "the only facility they could find that agreed to accept him."

Days later, the Agency for Persons with Disabilities, the state agency that serves people with developmental disabilities, assumed responsibility for his services. The department then received two reports about Mr. Brown through its central abuse hotline in September and October 2022. Its Adult Protective Services staff investigated both and closed them as "unsubstantiated." Mr. Brown died while the lawsuit was pending, and Gainey, his former guardian, was substituted as personal representative of his estate.

Against the department, Gainey alleged negligent training and supervision, negligent placement in a facility that did not meet Mr. Brown's needs, and negligent investigation and closure of the hotline reports. On appeal, Gainey conceded that the training and supervision claims were barred, and the court accepted the concession.

Judge Walker had found "there are too many disputed issues of fact involving the issue of negligence" and concluded that "based on the record evidence, sovereign immunity does not apply." The appeals court noted that the trial court made no ruling on whether the challenged conduct involved planning or operational functions. Florida courts use that distinction to identify the discretionary governmental functions that remain immune from tort liability. "The trial court misapplied the law when it denied summary judgment by treating sovereign immunity as an issue of fact," Judge Bilbrey wrote.

The panel held that the hotline claims, to the extent they rested on the adult-protection statute, could not proceed because the state's tort-waiver statute does not reach statutory claims. It held that the common-law negligent-investigation claim failed because a plaintiff suing the government must show a duty owed to the plaintiff individually rather than to the public at large. Even if the placement created such a duty, the court wrote, placement decisions are themselves immune. It quoted a 1995 Florida Supreme Court decision holding that the department's predecessor agency "is vested with broad discretion in exercising its placement authority."

The second appeal turned on section 768.28(9)(a) of the Florida Statutes. That provision bars suits against an "officer, employee, or agent of the state" personally unless the person acted in bad faith, with malicious purpose or with wanton and willful disregard of human rights, safety or property. The amended complaint made no such allegations against Crandall Medical or Davis. Gainey alleged that the company and Davis were responsible for preparing Mr. Brown's waiver support coordination plan and monitoring his providers, and that they failed to move him to a facility that could meet his needs.

Davis testified that the disability agency assigned him to Mr. Brown's case in late October or early November 2022 and that he had no discretion to reject the assignment. He said he worked only on referrals from the agency, used its forms, completed its training and reported through a platform it monitored. Gainey did not contest that testimony. He relied instead on a 2018 Medicaid Waiver Services Agreement stating that Davis acted "as an independent service provider" and "not as an officer, employee, or agent of APD."

The panel held that the label did not settle the question, because agency status turns on the state's right to control the contractor. "Gainey's reliance on the contractual provision making Appellants 'independent service providers' did not negate Appellants' deposition evidence of the degree of APD's control over their services," Judge Bilbrey wrote. The trial court's finding of disputed facts about that control, the court wrote, "was unsupported by any admissible evidence submitted by Gainey."

In a footnote, the court explained why the company received the absolute immunity of section 768.28(9) rather than the limited sovereign immunity that some courts have applied to corporations under sections 768.28(2) and (5). Crandall Medical is a limited liability company, and the limited immunity reaches only the state and its agencies and subdivisions, a category the statute defines to include corporations primarily acting as state instrumentalities. "But an LLC such as Crandall Medical is not a corporation under Florida law," Judge Bilbrey wrote.

Lawyers for Crandall Medical and Davis included Rogelio J. Fontela of Dennis, Jackson, Martin, & Fontela, P.A. Gainey was represented by David A. Paul of Paul Trial Group, among others.

Both cases return to the circuit court with instructions to enter judgment for the department, Crandall Medical and Davis. Neither opinion is final until the court disposes of any timely and authorized motion under the appellate rules. The caption of the department's appeal also lists other defendants, including World Wide Webb, LLC, and the opinions do not address the claims against them.