School Board of Broward County, Florida v. State Farm Mutual Auto Insurance Company

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

SCHOOL BOARD OF BROWARD COUNTY a/k/a

BROWARD COUNTY SCHOOL BOARD,

Appellant,

v.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

Appellee.

Nos. 4D2022-3144 & 4D2023-0722

____________________________________________________________________

THE PALM BEACH COUNTY SCHOOL BOARD a/k/a

SCHOOL DISTRICT OF PALM BEACH COUNTY d/b/a

SCHOOL BOARD OF PALM BEACH COUNTY,

Appellant,

v.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

Appellee.

No. 4D2023-0256

[July 3, 2024]

Consolidated appeals from the County Court for the Seventeenth

Judicial Circuit, Broward County; Kathleen McHugh and Corey Amanda

Cawthon, Judges; L.T. Case Nos. COCE22-018110 and COSO22-000994;

and the County Court for the Fifteenth Judicial Circuit, Palm Beach

County; Frank S. Castor, Judge; L.T. Case No. 502022CC000293.

Hudson C. Gill of Johnson, Anselmo, Murdoch, Burke, Piper &

Hochman, P.A., Fort Lauderdale, and Paula C. Kessler of Catri, Holton,

Kessler & Kessler, P.A., Fort Lauderdale, for appellant School Board of

Broward County.

Sean Fahey of Office of General Counsel, School Board of Palm Beach

County, West Palm Beach, for appellant School Board of Palm Beach

County.

Nancy A. Copperthwaite, Marcy Levine Aldrich, and Joni Armstrong

Coffey of Akerman LLP, Miami, for appellee.

Robert J. Hauser of Sniffen & Spellman, P.A., West Palm Beach, for

Amicus Curiae Florida School Boards Insurance Trust in support of

appellants.

KLINGENSMITH, C.J.

In these consolidated cases, the School Boards of Broward and Palm

Beach Counties (collectively the “School Boards”) appeal three county

court final judgments entered against them on State Farm’s claims for

reimbursement of PIP benefits paid to persons injured in separate school

bus accidents. The issue presented here is one of statutory

interpretation—whether the Florida Legislature waived the sovereign

immunity of school boards for PIP reimbursement claims brought under

section 627.7405(1), Florida Statutes (2019). Our sister court addressed

this same issue in Lee County School Board v. State Farm Mutual

Automobile Insurance Co., 276 So. 3d 352 (Fla. 2d DCA 2019), and held

that chapter 627 clearly and expressly waives the sovereign immunity of

school boards for such claims. For the reasons set forth below, we disagree

and certify conflict with that decision.

I. Background

A. School Board of Broward

State Farm filed two nearly identical county court complaints against

the Broward School Board seeking reimbursement of PIP benefits paid to

its insureds who were involved in separate school bus accidents. In each

complaint, State Farm cited Lee County for the proposition that it could

sue the Broward School Board for reimbursement under section

627.7405(1).

The Broward School Board moved to dismiss each complaint, arguing

(1) it was entitled to sovereign immunity, and (2) the Florida Legislature

did not intend that school boards be held liable for PIP reimbursement,

citing legislative history materials in support. After the county courts

denied the motions to dismiss, the Broward School Board answered the

complaints, raising the same defenses. Ultimately, the county courts

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entered final summary judgments in favor of State Farm, holding in part

that the Broward School Board was not entitled to sovereign immunity

under Lee County. 1

B. School Board of Palm Beach County

State Farm filed a third county court complaint against the Palm Beach

School Board seeking PIP reimbursement under section 627.7405(1). The

Palm Beach School Board answered the complaint, raising sovereign

immunity as an affirmative defense.

State Farm then moved for summary judgment, arguing the Palm

Beach School Board was not entitled to sovereign immunity from its

reimbursement claim under Lee County. The Palm Beach School Board

cross-moved for summary judgment, acknowledging that it was not

entitled to immunity under Lee County, but arguing that case was wrongly

decided.

After a hearing, the county court entered summary judgment for State

Farm, holding the Palm Beach School Board was not entitled to sovereign

immunity. Although that lower court’s judgment did not cite to Lee

County, its reasoning closely follows the Second District’s rationale.

II. Analysis

A. Sovereign Immunity

The applicability of sovereign immunity is a purely legal issue subject

to de novo review. Town of Gulf Stream v. Palm Beach County, 206 So. 3d

721, 725 (Fla. 4th DCA 2016) (citing Plancher v. UCF Athletics Ass’n, 175

So. 3d 724, 725 n.3 (Fla. 2015)). More specifically, whether a legislative

enactment waives sovereign immunity is reviewed de novo. Fla. Fish &

Wildlife Conservation Comm’n v. Hahr, 326 So. 3d 1165, 1167 (Fla. 1st

DCA 2021) (quoting State, Dep’t of Elder Affs. v. Caldwell, 199 So. 3d 1107,

1109 (Fla. 1st DCA 2016)).

In Florida, sovereign immunity protects the state and its subdivisions

from suit unless it is waived, i.e., “immunity is the rule, rather than the

1 We take no issue with the county court’s reliance on Lee County in rendering

its decision because it was bound to follow that case. See State v. Hayes, 333

So. 2d 51, 53 (Fla. 4th DCA 1976) (holding a trial court is bound to follow the

opinion of a “foreign” district court of appeal in the absence of a contrary decision

from the district court where trial court sits).

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exception.” Town of Gulf Stream, 206 So. 3d at 725 (citing Pan–Am Tobacco

Corp. v. Dep’t of Corrs., 471 So. 2d 4, 5 (Fla. 1984)). Under the Florida

Constitution, only the legislature is vested with the power to abrogate the

state’s sovereign immunity. See Art. X, § 13, Fla. Const. (“Provision may

be made by general law for bringing suit against the state as to all liabilities

now existing or hereafter originating.”).

Any statute “purportedly waiving immunity should be strictly

construed.” Dep’t of Highway Safety & Motor Vehicles v. Hightower, 306

So. 3d 1193, 1196 (Fla. 1st DCA 2020) (citing Spangler v. Fla. State Tpk.

Auth., 106 So. 2d 421, 424 (Fla. 1958)). Accordingly, any waiver of

sovereign immunity “must be clear and unequivocal.” Am. Home Assur.

Co. v. Nat’l R.R. Passenger Corp., 908 So. 2d 459, 472 (Fla. 2005) (citing

Manatee County v. Town of Longboat Key, 365 So. 2d 143, 147 (Fla. 1978)).

Further, a waiver “should not be found where it can only be inferred from

or implied by the text of a statute.” Hightower, 306 So. 3d at 1196 (citing

Spangler, 106 So. 2d at 424). Still, “no particular magic words are

required” for the legislature to clearly waive immunity. Id. (quoting Klonis

v. State, Dep’t of Revenue, 766 So. 2d 1186, 1189 (Fla. 1st DCA 2000)).

These rules of strict construction pertaining to waivers of sovereign

immunity exist “for the obvious reason that the immunity of the sovereign

is a part of the public policy of the state,” which is enforced “as a protection

of the public against profligate encroachments on the public treasury.”

Spangler, 106 So. 2d at 424. Separation of powers principles also

underpin the doctrine of sovereign immunity. Am. Home Assur. Co., 908

So. 2d at 471 (citing Commercial Carrier Corp. v. Indian River County, 371

So. 2d 1010, 1022 (Fla. 1979)).

B. Chapter 627, Florida Statutes

Under section 627.7405(1), an insurer providing PIP benefits on a

“private passenger” motor vehicle has a right of reimbursement against the

owner or the insurer of a “commercial” motor vehicle. The statute reads,

in pertinent part, as follows:

(1) Notwithstanding ss. 627.730-627.7405, an insurer

providing personal injury protection benefits on a private

passenger motor vehicle shall have, to the extent of any

personal injury protection benefits paid to any person as a

benefit arising out of such private passenger motor vehicle

insurance, a right of reimbursement against the owner or

the insurer of the owner of a commercial motor vehicle .

...

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§ 627.7405(1), Fla. Stat. (2019) (emphasis added).

Section 627.732(3)(b), Florida Statutes (2019), defines a commercial

motor vehicle as including vehicles used in “public school transportation,”

i.e., public school buses. The statute reads as follows:

(b) A “commercial motor vehicle,” which is any motor vehicle

which is not a private passenger motor vehicle.

The term “motor vehicle” does not include a mobile home

or any motor vehicle which is used in mass transit, other

than public school transportation, and designed to

transport more than five passengers exclusive of the operator

of the motor vehicle and which is owned by a municipality, a

transit authority, or a political subdivision of the state.

§ 627.732(3)(b), Fla. Stat. (2019) (emphasis added).

C. Lee County

In the Second District’s Lee County decision, the court held—as a

matter of first impression—that a private motor vehicle insurer may sue a

school board for reimbursement under section 627.7405(1) when the

private insurer pays PIP benefits to cover injuries sustained in a school

bus accident. Lee County, 276 So. 3d at 358.

The court reasoned that, because section 627.732(3)(b) includes

vehicles used for “public school transportation” in the definition of a

commercial motor vehicle, and section 627.7405(1) creates a right of

reimbursement against the owner of a commercial motor vehicle, “the

legislature has clearly and unequivocally waived sovereign immunity” for

PIP reimbursement actions brought against school boards to recover

benefits paid in connection with school bus accidents. Id. at 355-56. In

finding a clear waiver of sovereign immunity, the Lee County court gave

significant weight to the history and unique phrasing of the statutory

definition of a commercial motor vehicle. Id. at 354-56.

The court stressed that, prior to 1997, section 627.732 excluded public

school buses from the commercial motor vehicle definition. Id. at 355.

Then, in 1997, the legislature amended the statute to its current form,

which not only includes vehicles used for public school transportation in

the definition of a commercial motor vehicle, but also excludes “other

vehicles ‘used in mass transit’ and ‘owned by a municipality, a transit

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authority, or a political subdivision of the state.’” Id. at 355-56 (quoting §

627.732(3)(b), Fla. Stat. (2015)). In the court’s view, unless the legislature

intended to waive a school board’s sovereign immunity for section

627.7405(1) PIP reimbursement claims, the express exclusion of other

government vehicles from the definition of a commercial motor vehicle

would have been unnecessary. Id. at 356 (citing Gordon v. Fishman, 253

So. 3d 1218, 1220 (Fla. 2d DCA 2018)).

In sum, the court held that, by expressly including public school buses

“in the definition of vehicles subject to a statutory cause of action for

reimbursement,” the legislature expressly waived the sovereign immunity

of school boards “in actions brought pursuant to section 627.7405(1).” Id.

D. Our Disagreement with Lee County

Under our court’s reading of the applicable statutes, the plain language

of chapter 627 does not clearly and unequivocally waive the sovereign

immunity of school boards for PIP reimbursement claims. Although

section 627.732(3)(b) clearly includes school buses in the category of

vehicles covered by section 627.7405(1), chapter 627 does not identify a

school board or any government entity as a proper party to be sued for

reimbursement. Therefore, a finding that chapter 627 waives sovereign

immunity would require us to infer that section 627.7405(1) authorizes

PIP reimbursement suits against school boards, which cannot form the

basis of a waiver. See Hightower, 306 So. 3d at 1196.

When evaluating if a statute clearly and expressly waives sovereign

immunity, Florida courts have given significant weight to whether the

statute in question includes government entities in its definition of the

party to be sued on a cause of action. For example, in Maggio v. Florida

Department of Labor & Employment Security, 899 So. 2d 1074 (Fla. 2005),

the Florida Supreme Court held the Florida Civil Rights Act, chapter 760,

Florida Statutes, unequivocally waived sovereign immunity for

employment discrimination claims because it included state entities in its

definition of the proper party to be sued for discrimination. Id. at 1078.

Specifically, the relevant provisions of the Act: (1) created a cause of action

against any “employer,” (2) defined “employer” as any “person” employing

15 or more employees, and (3) separately defined “person” to include “the

state; or any governmental entity or agency.” Id. (quoting §§ 760.10(1)(a),

.02(6)-(7), Fla. Stat. (2003)). Taken together, the Court reasoned that the

“inclusion of the State in the definition of ‘person’ and, hence, ‘employer’

evidences a clear, specific, and unequivocal intent to waive sovereign

immunity.” Id. at 1078-79 (citing Klonis, 766 So. 2d at 1190).

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Likewise, other Florida cases deciding whether a statute contains a

clear sovereign immunity waiver turn on whether the statute defines the

party to be sued on a cause of action as including state entities. Compare

Bifulco v. Patient Bus. & Fin. Servs., Inc., 39 So. 3d 1255, 1256-57 (Fla.

2010) (finding the Workers’ Compensation Law, chapter 440, Florida

Statutes, waives immunity for retaliation claims because it creates a cause

of action against any “employer” and defines “employer” to include the

state and its subdivisions); with Hightower, 306 So. 3d at 1200 (holding

the Florida Uniformed Servicemembers Protection Act, chapter 250,

Florida Statutes, does not waive sovereign immunity, in part, because it

does not “define[] the State as a defendant subject to a private cause of

action for damages.”).

Here, section 627.7405(1) creates a right of reimbursement against the

“owner” or the “insurer” of a commercial motor vehicle, and section

627.732(3)(b) includes public school buses in the definition of a

“commercial motor vehicle.” However, unlike the statutes addressed by

the Florida Supreme Court in Maggio and Bifulco, chapter 627 does not

include state entities in the definition of the party subject to suit for

reimbursement, i.e., the “owner” or “insurer” of such a vehicle. Instead,

section 627.732(5) merely defines an “owner” as a “person” who holds the

legal title to a motor vehicle, and chapter 627 does not separately define

the terms “person” or “insurer.” 2

The importance of this distinction between chapter 627 and those

statutes clearly stating a waiver of sovereign immunity is well-illustrated

in State, Department of Elder Affairs v. Caldwell, 199 So. 3d 1107 (Fla. 1st

DCA 2016), where the First District held that a statutory scheme similar

to chapter 627 did not clearly waive sovereign immunity because it did not

specifically include state entities in its definition of the proper party to be

sued. See id. at 1109-10.

In Caldwell, the plaintiff sued the Department of Elder Affairs under

chapter 400, Florida Statutes (2011). Id. at 1108. One section created an

ombudsman program to address conditions in long-term care facilities

“without interference by an executive agency.” Id. at 1109 (emphasis

added) (quoting § 400.0061, Fla. Stat. (2011)). A separate section made it

2 We note that—except for the Second District’s decision in Lee County—appellee

has not identified, either in its briefing to the court or at oral argument, another

published opinion finding a clear and express statutory waiver of sovereign

immunity where, as here, the statutory scheme at issue does not specifically

include state entities in its definition of the party to be sued on a cause of action.

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unlawful for any “person” or “other entity” to “willfully interfere with a

representative of the office” and created a civil cause of action for such

interference. Id. (emphasis added) (quoting § 400.0083(1), (3)(a), Fla. Stat.

(2011)). The trial court held that chapter 400 waived the Department’s

sovereign immunity, and the First District reversed. Id. at 1108-09.

On review, the First District emphasized that section 400.0083 created

a cause of action against a “person” or “other entity.” Id. at 1109.

However, chapter 400 did not define those terms to include “the state or

its agencies.” Id. “Under these circumstances,” the First District held

there was “no clear and unequivocal waiver of sovereign immunity for

claims under section 400.0083.” Id. at 1110. Further, although section

400.0061 expressed an intent for the ombudsman program to operate

without “interference by an executive agency,” chapter 400 gave no

indication that the legislature “specifically intended to permit the

Department to be sued” for interfering with the program. Id. The First

District stated that, even if it could infer the legislature meant to authorize

suits against the Department, “such an inference is not sufficient to

constitute a clear and unequivocal waiver of sovereign immunity.” Id.

(citing Fla. Dep’t of Transp. v. Schwefringhaus, 188 So. 3d 840, 846 (Fla.

2016)).

Here, section 627.7405(1) creates a cause of action for PIP

reimbursement against the “owner” or the “insurer” of a commercial motor

vehicle. However, like the statutes at issue in Caldwell, chapter 627 does

not define those terms to include school boards or any other state entity.

Therefore, while school buses are included in the category of vehicles

subject to PIP reimbursement, chapter 627 does not expressly authorize

reimbursement suits against the state as a party. If we could infer—

without an express textual statement—that the legislature meant to

authorize reimbursement claims against the state, such an inference

would not constitute a clear and unequivocal sovereign immunity waiver.

See id.; Hightower, 306 So. 3d at 1196 (citing Spangler, 106 So. 2d at 424).

Primarily because Lee County seemingly draws that inference in finding

chapter 627 waives the sovereign immunity of school boards, we

respectfully disagree with that decision. There, the Second District relied

heavily on the 1997 amendment to chapter 627, which first defined school

buses as commercial motor vehicles. 3 The Second District reasoned that,

3 Because the language of chapter 627 is clear, we believe that resorting to

legislative history materials associated with that amendment as interpretive aids

is not necessary to reach the proper result.

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by classifying school buses, but not other government-owned mass transit

vehicles, as commercial motor vehicles, the legislature meant “to waive the

School Board’s sovereign immunity” for PIP reimbursement claims. Lee

County, 276 So. 3d at 356. Otherwise, “exclusion of other government-

owned vehicles from the definition of ‘commercial motor vehicle’ would be

unnecessary.” Id. Stated differently, the Second District inferred that

chapter 627 must permit reimbursement suits against school boards

because a right of reimbursement exists against the owner of a commercial

vehicle, and school buses are defined as “commercial motor vehicles,” but

other government vehicles are not.

We decline to infer that chapter 627 authorizes reimbursement suits

against school boards for two reasons. First, because chapter 627 does

not name any state entity as a proper party to be sued for PIP

reimbursement, that inference is not based in the text of chapter 627.

Second, that inference assumes only the state and its subdivisions, i.e.,

school boards, can be owners of school buses; thus, a waiver of sovereign

immunity must have been created. However, Florida Administrative Code

Rule 6A-3.0171 (2021) specifically recognizes that school boards can

contract with private entities to provide transportation to public school

students. See Fla. Admin. Code R. 6A-3.0171 (1), (5), and (8). Therefore,

we believe section 627.7405(1) allows for the potential reimbursement of

PIP benefits from those private owners of school buses serving public

schools who are not otherwise entitled to sovereign immunity and their

insurers. 4 However, chapter 627 does not create a waiver of school boards’

sovereign immunity.

Importantly, to the extent we could reasonably infer that the inclusion

of school buses in the class of vehicles subject to PIP reimbursement was

intended to waive the sovereign immunity of school boards, i.e., public

owners of school buses, we cannot find a waiver by inference. See

Spangler, 106 So. 2d at 424 (noting that a statutory waiver of sovereign

immunity “will not be reached as a product of inference or implication”).

III. Conclusion

The plain language of chapter 627 does not clearly and unequivocally

waive the sovereign immunity of school boards for PIP reimbursement

claims. While public school buses are included in the category of vehicles

4 We express no view as to whether a private owner of a school bus who contracts

with a school board to provide transportation for public school students might be

entitled to sovereign immunity from a section 627.7405(1) PIP reimbursement

claim in an appropriate case.

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subject to PIP reimbursement, chapter 627 does not expressly define any

state entity as a proper party to be sued for reimbursement. Therefore, a

waiver can be found only by inferring that section 627.7405(1) authorizes

reimbursement suits against state entities, including school boards. Such

an inference, even if reasonable, cannot form the basis of a sovereign

immunity waiver. See Hightower, 306 So. 3d at 1196 (citing Spangler, 106

So. 2d at 424).

Strictly construing chapter 627, as we must, we are “constrained to

hold” that school boards retain their sovereign immunity from section

627.7405(1) PIP reimbursement claims absent a “clear and unequivocal”

legislative expression to the contrary. See Spangler, 106 So. 2d at 424.

Accordingly, we reverse the final summary judgments on review, remand

for entry of judgments in the School Boards’ favor and certify conflict with

Lee County School Board v. State Farm Mutual Automobile Insurance Co.,

276 So. 3d 352 (Fla. 2d DCA 2019).

Reversed and remanded; conflict certified.

GROSS and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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