Florida Highway Patrol, a division of the Florida Department of Highway Safety and Motor Vehicles, Appellant,
Lashonta Renea Jackson, as personal representative of the Estate of Vontavia Kiara Robinson, Appellee.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Alachua County. Monica J.
Jo Bondi, Attorney General, and Britt Thomas, Chief Assistant
Attorney General, Tallahassee, for Appellant.
J. Fine and Melissa Susan Sheldon of Fine, Farkash &
Parlapiano, P.A., Gainesville, for Appellee.
from suit is meaningless if a court denies immunity to a
party entitled to it, forcing the party to stand trial and
appeal the improper denial of immunity. This case concerns
our jurisdiction to hear an interlocutory appeal of an order
denying immunity to a party claiming entitlement to it. The
trial court denied a motion for summary judgment filed by the
Florida Highway Patrol (FHP), which had argued, among other
things, that it was immune from suit. FHP asserts that we
have jurisdiction under Florida Rule of Appellate Procedure
9.130(a)(3)(C)(xi), which permits appellate review of
non-final orders that determine "as a matter of
law" that a party is not entitled to sovereign immunity.
Because the order under review did not explicitly determine,
as a matter of law, that FHP was not entitled to sovereign
immunity, we dismiss this appeal. But because we perceive an
inconsistency between the Florida Supreme Court's
decision in Beach Community Bank v. City of
Freeport, 150 So.3d 1111 (Fla. 2014), and other cases
regarding the specificity with which a court must deny an
immunity motion "as a matter of law" to permit
interlocutory appellate review, we certify a question of
great public importance to the Florida Supreme Court.
January 28, 2012, a brush fire started on Paynes Prairie
Preserve in Alachua County. Near midnight on January 29,
2012, two traffic crashes occurred, one on I-75 and one on
US-441, both of which included reduced visibility from the
fire as a contributing factor. Both roads were closed due to
the crashes and visibility concerns, and traffic was diverted
onto smaller roads. Several hours later, FHP weighed the
safety risks involved with keeping both roads closed,
determined that visibility conditions had improved, and
reopened I-75. Shortly after, the decedent Vontavia Robinson
was driving on I-75 when he was involved in a fatal
multiple-vehicle collision due to a sudden deterioration in
Renea Jackson, as personal representative of Robinson's
estate, filed an action against FHP alleging negligence in
the reopening of I-75. FHP filed a motion for summary
judgment asserting that sovereign immunity protected its
discretionary decision to reopen the interstate. The trial
court denied FHP's motion, finding that disputed factual
issues precluded summary judgment. FHP appeals from this order.
Appealability of non-final orders denying immunity
recently were the rules of appellate procedure amended to
permit interlocutory appeals of orders denying sovereign
immunity. In re Amendments to Fla. Rule of Appellate
Procedure 9.130, 151 So.3d 1217, 1218 (Fla. 2014). In
order to understand how this rule should be applied here, a
review of the background leading to the amended rule is
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), the
United States Supreme Court addressed the pre-trial
appealability of an order denying qualified immunity, which
protects public officials from federal civil-rights claims
under certain circumstances. The Court described such
immunity as not simply a defense to liability, but an
immunity from suit, which "is effectively lost if a case
is erroneously permitted to go to trial." Id.
Accordingly, "denial of a claim of qualified immunity,
to the extent that it turns on an issue of law"
is subject to interlocutory review. Id. at 530
the Florida Supreme Court encountered this issue in
state-court suits, it noted that the Florida Rules of
Appellate Procedure at the time did not permit appellate
review of non-final orders denying most types of immunity.
Tucker v. Resha, 648 So.2d 1187, 1189 (Fla.
1994). Citing Mitchell, the Court agreed
that qualified immunity is immunity from suit, and not merely
a defense to liability, and that such immunity is lost and
cannot be restored on appeal if one is erroneously required
to litigate. Id. "[I]f orders denying summary
judgment based upon claims of qualified immunity are not
subject to interlocutory review, the qualified immunity of
public officials is illusory and the very policy that
animates the decision to afford such immunity is
thwarted." Id. at 1190. In order to make such
immunity real rather than illusory, the Court requested an
amendment to Rule 9.130 providing that "an order denying
summary judgment based upon a claim of qualified immunity is
subject to interlocutory review to the extent that the order
turns on an issue of law." Id. at 1190
years after deciding Tucker, the Florida Supreme
Court refused to extend the Tucker rule to
governmental claims of sovereign immunity. Dep't of
Educ. v. Roe, 679 So.2d 756, 757 (Fla. 1996). The Court
stated, "[o]ftentimes, the applicability of the
sovereign immunity waiver is inextricably tied to the
underlying facts, requiring a trial on the merits. Thus, many
interlocutory decisions would be inconclusive and in our view
a waste of judicial resources." Id. at 758. The
Court found that sovereign immunity, unlike qualified
immunity, is not rooted on a worry of undue influence on
public officials, and its applicability would not have a
chilling effect on public officials doing their jobs.
Id. at 759. As such, the benefit of sovereign
immunity "will not be lost simply because review must
wait until after final judgment, " and the Court
declined to permit interlocutory appeals of orders denying
sovereign immunity. Id.
Court later analyzed the individual immunity protections of
section 768.28(9)(a), Florida Statutes, and determined that
this immunity is more similar to qualified immunity, as
described in Tucker, than to sovereign immunity, as
described in Roe. Keck v. Eminisor, 104
So.3d 359 (Fla 2012) As such, the Court held that
interlocutory review of orders denying the immunity
protections of section 76828(9)(a) would be permitted
"where the issue turns on a question of law"
Id. at 366 In a concurring opinion, a majority of
the Court requested a review as to whether Rule 9130 should
be expanded so that "the denial of any claim ...