City of Miami v. Robinson

Third DCA

City of Miami v. Robinson
3d DCA
5/31/23, Judge Bokor

Topics: Affirmative Defenses; Sovereign Immunity; Summary Judgment

Appellee Lyn M. Robinson sued the City of Miami for negligence as a result of an automobile accident with a City of Miami-owned vehicle driven by a City employee, Fire-Rescue Lieutenant Karen Salinas. The City answered and asserted sovereign immunity pursuant to section 768.28, Florida Statutes. Due to discovery violations, the trial court struck the City’s answer and affirmative defenses.

Despite the order striking the affirmative defense, the City argued that sovereign immunity could be raised at any time, and it moved for summary judgment. The trial court denied the motion, and the City appealed. There was no real factual dispute—the employee was merely driving to work and was not at work when the accident occurred. Under the “going and coming” rule, she was not in the course and scope of her employment with the city at the time of the accident.

Section 768.28(1), Fla. Stat., only waives sovereign immunity for tort claims where the employee was acting within the course and scope of employment.

Despite the fact that the DCA stated, in a footnote, that they “do not address the propriety of sanctions for the conduct alleged, as the sanctions order is not before us on appeal,” the DCA still addressed the merits of the stricken defense. The only explanation the DCA provides for addressing the merits of a stricken defense is this: “The fact that the trial court struck the City’s defenses changes nothing. Much like subject matter jurisdiction, sovereign immunity isn’t an affirmative defense, and it can be raised at any time.” The DCA cited cases holding that the issue of sovereign or governmental immunity is jurisdictional, not an affirmative defense. (NOTE: This still does not answer the question fully. Other portions of the opinion state that the government may waive sovereign immunity, whereas a party cannot waive a lack of subject matter jurisdiction. The DCA made it clear that the sanctions order had not been appealed and that they were not reviewing the merits of the sanction order. Failure to challenge the sanctions order would ordinarily mean that the issue has been waived by the party. But the DCA appears to apply a different rule here.) 102332_i.pdf

Terry P. Roberts
Director of Appellate Practice Fischer Redavid PLLC
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