The Florida International University Board of Trustees v. Signal Safe, Inc., a Florida Corporation

Third District Court of Appeal

State of Florida

Opinion filed May 22, 2024.

Not final until disposition of timely filed motion for rehearing.

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No. 3D22-2123

Lower Tribunal No. 17-29075

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The Florida International University Board of Trustees,

Appellant/Cross-Appellee,

vs.

Signal Safe, Inc., a Florida Corporation,

Appellee/Cross-Appellant.

An appeal from a non-final order from the Circuit Court for Miami-Dade

County, Oscar Rodriguez-Fonts, Judge.

Dutton Law Group P.A., and Sheridan Weissenborn, for

appellant/cross-appellee.

VLP Copenhaver Espino, Mike Piscitelli, and Kristen M. Jimenez (Fort

Lauderdale), for appellee/cross-appellant.

Before SCALES, LINDSEY, and MILLER, JJ.

MILLER, J.

This dispute implicates the application of sovereign immunity.

Appellant, The Florida International University Board of Trustees (“FIU”),

appeals from an order denying its motion to dismiss a negligence action filed

by appellee, Signal Safe, Inc. Signal Safe cross-appeals the dismissal of its

breach of contract claim. We have jurisdiction. See Fla. R. App. P.

9.130(a)(3)(F)(ii). For the reasons set forth below, we reverse as to the

appeal and affirm as to the cross-appeal.

BACKGROUND

The facts underlying this case are not unfamiliar to the court. This is

the third appeal before us involving a series of contracts executed between

the Florida Department of Transportation (“FDOT”) and FIU for the testing of

a patented traffic control device. In a companion case, Irwin v. Signal Safe,

Inc., 382 So. 3d 766 (Fla. 3d DCA 2024), we reversed an order denying the

application of sovereign immunity against an individual FIU employee and,

in doing so, articulated the facts relevant to the instant analysis. See also

Zisis v. Signal Safe, Inc., 382 So. 3d 772, 777 (Fla. 3d DCA 2024) (finding

sovereign immunity barred similar claim against second employee). As

salient here,

This dispute finds its genesis in a series of contracts

executed between the Florida Department of Transportation

(“FDOT”) and FIU. Under the terms of the contracts, FIU agreed

to evaluate the performance of traffic reinforcement devices

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manufactured by Signal Safe in simulated storm conditions using

the Wall of Wind, an engineering testing facility located on

campus. Dr. Irwin was designated as a “co-principal

investigator.” After performing testing, the team of professionals

involved reported unfavorable results to FDOT. Dr. Irwin

allegedly also published the findings in a public presentation to

FDOT.

Signal Safe subsequently filed suit in the circuit court

against FIU, Dr. Irwin, and Dr. Ioannis Zisis, the “principal

investigator” assigned to the project. . . .

The complaint proceeded through several different

iterations. In the operative pleading, the Fifth Amended

Complaint, Signal Safe alleged that Dr. Irwin exceeded the scope

of his employment by opining as to the efficacy of the traffic

devices and engaging in unlicensed engineering that extended

beyond the bounds of the teaching exception codified in section

471.0035, Florida Statutes (2022). See id. (“For the sole purpose

of teaching the principles and methods of engineering design,

. . . a person employed by a public postsecondary educational

institution . . . is not required to be licensed under the provisions

of this chapter as a professional engineer.”). In addition, Signal

Safe asserted Dr. Irwin committed defamatory torts by publishing

and presenting the results of the testing.

Irwin, 382 So. 3d at 769.

As against FIU, the operative complaint asserted negligence and

breach of contract claims. The breach of contract count alleged that Signal

Safe was an intended third-party beneficiary of the contracts between FIU

and FDOT. Both counts contained general damages clauses premised upon

the theory that the state suspended further use of Signal Safe’s traffic control

device as a precautionary measure pending the completion of further

research.

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FIU moved to dismiss the complaint. Included among its asserted

bases for relief was the two-fold contention that: (1) sovereign immunity

precluded the negligence claim because any damages were purely

economic; and (2) any notion Signal Safe was an intended third-party

beneficiary was soundly refuted by the attachments to the complaint. The

trial court dismissed the breach of contract claim, and this appeal and cross-

appeal followed.

STANDARD OF REVIEW

We conduct a de novo review of an order adjudicating the application

of sovereign immunity. See Dist. Bd. of Trs. of Mia. Dade Coll. v. Verdini,

339 So. 3d 413, 417 (Fla. 3d DCA 2022). In considering the propriety of a

ruling on a motion to dismiss, the reviewing court is constrained by

consideration of only those facts alleged within the four corners of the

complaint, along with any incorporated attachments. See Univ. of S. Fla. Bd.

of Trs. v. Moore, 347 So. 3d 545, 547–48 (Fla. 2d DCA 2022).

ANALYSIS

In Florida, the state and its subdivisions are shielded from civil liability,

unless sovereign immunity is waived by legislative enactment or

constitutional amendment. See Art. X, § 13, Fla. Const. Because sovereign

immunity is the rule, not the exception, a state agency is insulated from

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liability absent an explicit and unambiguous waiver. See City of Miami v.

Robinson, 364 So. 3d 1087, 1091 (Fla. 3d DCA 2023).

The Florida Legislature has waived sovereign immunity for tort claims,

“subject to the limitations specified in [section 768.28, Florida Statutes

(2022)].” § 768.28(1), Fla. Stat. That statute provides, in pertinent part:

In accordance with [article X, section 13 of the Florida

Constitution], the state, for itself and for its agencies or

subdivisions, hereby waives sovereign immunity for liability for

torts, but only to the extent specified in this act. Actions at law

against the state or any of its agencies or subdivisions to recover

damages in tort for money damages against the state or its

agencies or subdivisions for injury or loss of property, personal

injury, or death caused by the negligent or wrongful act or

omission of any employee of the agency or subdivision while

acting within the scope of the employee's office or employment

under circumstances in which the state or such agency or

subdivision, if a private person, would be liable to the claimant,

in accordance with the general laws of this state, may be

prosecuted subject to the limitations specified in this act.

Id.

By the plain language, the tort waiver self-limits to claims involving

“injury or loss of property, personal injury, or death caused by the negligent

or wrongful act or omission” of a state agent. Id. Consistent with this narrow

language, reviewing courts have determined that suits seeking purely

economic damages are barred by sovereign immunity. See City of Fort

Lauderdale v. Tropical Paradise Resorts, LLC, 372 So. 3d 663, 667 (Fla. 4th

DCA 2023); see also City of Pembroke Pines v. Corr. Corp. of Am., Inc., 274

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So. 3d 1105, 1113 (Fla. 4th DCA 2019) (finding claims for “economic

damages framed in counts for declaratory relief, promissory estoppel,

tortious interference with contract, and tortious interference with

advantageous business relationship” were barred by sovereign immunity

because they “lack[ed] a claim for personal injury, wrongful death, or injury

or loss of property”); County of Brevard v. Miorelli Eng’g, Inc., 677 So. 2d 32,

33–34 (Fla. 5th DCA 1996), quashed on other grounds, 703 So. 2d 1049

(Fla. 1997) (holding claim for “[f]raud in the inducement causing only

economic loss” was barred under doctrine of sovereign immunity because it

did not “fit within any of those categories of injury or loss enumerated in the

statute”).

While there is no explicit analogous statutory provision waiving

sovereign immunity for breach of contract claims, it is well-settled that “where

the state has entered into a contract fairly authorized by the powers granted

by general law, the defense of sovereign immunity will not protect the state

from action arising from the state’s breach of that contract.” Pan-Am

Tobacco Corp. v. Dep’t of Corr., 471 So. 2d 4, 5 (Fla. 1984). This waiver,

however, is narrowly restricted to express, written contracts. See id. at 6;

see also Dep’t of Transp. v. United Cap. Funding Corp., 219 So. 3d 126, 135

(Fla. 2d DCA 2017) (“[W]here the government has entered into an express

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written contract that it is statutorily authorized to enter, sovereign immunity

cannot protect it from the same contract rules that govern the performance

of the express written contract obligations of a private party to a contract.”).

Against these principles, we examine the instant case. FIU contends

that the allegations in the negligence count were insufficient to overcome

sovereign immunity because Signal Safe failed to identify any injury or loss

of property, as is statutorily required, in the operative complaint. We agree.

Signal Safe alleged only that it suffered generalized economic damages as

the result of the suspension of use of its product.

Nonetheless, Signal Safe urges affirmance on the grounds that

negligence rendered its patent entirely valueless and caused it to incur

business losses. While arguably sufficient to satisfy the statute, this theory

of liability was not framed within the complaint. See Gulbrandsen v.

Gulbrandsen, 22 So. 3d 640, 644 (Fla. 3d DCA 2009) (confirming “a patent

is personal property” in equitable distribution case); Krauser v. BioHorizons,

Inc., 903 F. Supp. 2d 1337, 1348 (S.D. Fla. 2012), aff’d, 622 Fed. Appx. 890

(11th Cir. 2015) (“Patents have attributes of personal property and therefore

may be assigned and transferred.”).

Further, to the extent that Signal Safe contends in the cross-appeal

that the trial court erred in rejecting its breach of contract claim, it is well-

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settled that a non-signatory must establish it was an intended third-party

beneficiary “[t]o claim the protection of th[e] contract.” Esposito v. True Color

Enters. Constr., Inc., 45 So. 3d 554, 555 (Fla. 4th DCA 2010). Indeed, a

non-signatory may not sue to enforce the terms of a contract if the benefit is

merely incidental or consequential. See Caretta Trucking, Inc. v. Cheoy Lee

Shipyards, Ltd., 647 So. 2d 1028, 1030–31 (Fla. 4th DCA 1994).

Consequently, third-party beneficiary status is only conferred “if the parties

to the contract clearly express, or the contract itself expresses, an intent to

primarily and directly benefit the third party.” Id. at 1031.

Here, the complaint alleged “Signal Safe was an intended third-party

beneficiary of the Agreement,” but the integrated contractual documents

were devoid of any such intent. Instead, the original contract and work

orders reflected that FDOT “retain[ed] [FIU] to furnish certain services,

information and items as described in specific, separate [orders],” and “[a]ll

work under each [order]” was to be “performed by [FIU] to the satisfaction of

[FDOT].” As attachments to the complaint are controlling in the face of

contradictory conclusory allegations, we find no error in the dismissal of this

count. See Skupin v. Hemisphere Media Grp., Inc., 314 So. 3d 353, 356

(Fla. 3d DCA 2020); see also Ginsberg v. Lennar Fla. Holdings, Inc., 645 So.

2d 490, 494 (Fla. 3d DCA 1994) (“[W]here the allegations of the complaint

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are contradicted by the [attachments], the plain meaning of the [attachments]

will control.”); Hoffman v. Boyd, 698 So. 2d 346, 349 (Fla. 4th DCA 1997)

(“The plain language of the written contracts attached as an exhibit to the

complaint would control over any contrary allegations in any subsequent

amended complaint.”); Haslett v. Broward Health Imperial Point Med. Ctr.,

197 So. 3d 124, 127 (Fla. 4th DCA 2016) (“Where the exhibits negate the

cause of action asserted, they must control.”). Accordingly, we reverse the

order on appeal and affirm the order on cross appeal.1

Affirmed in part; reversed in part; and remanded for further

proceedings.

1

Our reversal is without prejudice to amending the complaint.

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