• Florida’s Apparent Increase on Caps for Damages Recoverable in Cases Against Providers of Foster Care Services Is Misleading
  • June 12, 2015 | Author: Andrea L. Diederich
  • Law Firm: Marshall Dennehey Warner Coleman & Goggin, P.C. - Orlando Office
  • Key Points:
    • After applying the 5 percent inflation increase, the new caps are actually a decrease from the prior caps, allowing a plaintiff to recover less.
    • The caps do not apply in cases involving culpable negligence or willful and wanton disregard that results in injury or death.
    • The caps may be overcome by a claims bill under special circumstances.
    • The caps will be applied prospectively.
    Effective July 1, 2014, the statutory caps on damages recoverable in cases involving providers of foster care and related services were amended. See § 409.993, Fla. Stat. (2014). As before, the new statute provides caps on both economic damages and noneconomic damages in such cases. However, despite what appears to be an increase on its face, the new caps actually serve to decrease the amount recoverable due to the 5 percent annual inflation increase applicable to both the old and new caps.

    In the new statute, § 409.993, Fla. Stat. (2014), the phrase “lead community-based provider” is replaced with “community-based care lead agency.” However, the current definition has no significant changes from the prior definition. Per the 2014 statute, “a ‘community-based care lead agency’ or ‘lead agency’ means a single entity with which the Department of Children and Families has a contract for the provision of care for children in the child protection and child welfare system in a community that is no smaller than a county and no larger than two contiguous judicial circuits.”

    The prior statute, § 409.1671, Fla. Stat. (now repealed), imposed caps on economic and noneconomic damages recoverable by a plaintiff from “lead community-based providers” of foster care and related services and their subcontractors. Under the old statute, economic damages were limited to $1 million per liability claim, including past and future medical expenses, wage loss and loss of earning capacity, to be offset by any collateral source payments. Noneconomic damages, such as pain and suffering, loss of capacity for the enjoyment of life or mental anguish, were capped at $200,000 per claim. In automobile claims brought against “lead community-based providers” and their subcontractors, net economic damages were capped at $100,000.

    Per the new statute, caps on net economic damages recoverable by a plaintiff from “community-based care lead agencies” and their subcontractors are increased to $2 million per liability claim, as compared to $1 million per the prior statute. Noneconomic damages are now capped at $400,000 per claim, as compared to $200,000 per the prior statute. In automobile claims brought against a lead agency or employee, net economic damages are now capped at $200,000, as compared to $100,000 per the prior statute.

    However, it is critical to note that the prior caps were subject to a 5 percent inflation increase each year, beginning in 1999 when the caps were implemented. Thus, as of 2014, prior to the July 1, 2014, amendment, the applicable caps would be calculated as follows: (1) $2,078,928.18 for economic damages; (2) $415,785.64 for noneconomic damages; and (3) $207,892.82 for automobile claims. Thus, all of the caps were significantly higher in 2014 under the prior statute than they are under the new statute.

    The current statute also includes a 5 percent inflation increase each year, prorated from July 1, 2014, to the date at which damages subject to such limitations are awarded by final judgment or settlement. Thus, within a year of enactment-by July 1, 2015-the caps will be calculated as follows: (1) $2,100,000 for economic damages; (2) $420,000 for noneconomic damages; and (3) $210,000 for automobile claims.

    Under both the prior and current statute, the caps are not applicable to any lead agency or subcontractor who acts in a culpably negligent manner or with willful and wanton disregard or unprovoked physical aggression when such acts result in injury or death or such acts proximately cause such injury or death. Culpable negligence is defined as reckless indifference or grossly careless disregard of human life. This standard has been compared to the level of conduct necessary for manslaughter.

    Under both the prior and current statute, a claims bill may be brought on behalf of a claimant pursuant to § 768.28, Fla. Stat. for any amount exceeding the amount of the caps. Any offset of collateral source payments made as of the date of the settlement or judgment shall be in accordance with § 768.76, Fla. Stat. The lead agency is not liable in tort for the acts or omissions of its subcontractors or the officers, agents or employees of its subcontractors.

    While claims bills often take years to push through the legislature, there have been instances where claims bills involving DCF/foster care children have been approved over the last several years. For example, in 2008, Governor Charlie Crist signed a claims bill awarding nine-year-old Marissa Amora $18.2 million in a case where the girl was negligently released to her biological mother and her mother’s boyfriend, despite allegations of physical abuse. After returning to her mother’s care, she was hospitalized with severe brain injuries and fractures due to extreme physical abuse. As a result, Marissa can only eat with a feeding tube, is unable to walk and has the developmental skills of a three year old. Thus, the caps can be overcome by plaintiffs, typically in cases involving particularly troubling facts and tragic outcomes.

    The Florida legislature did not include any language in § 409.993, Fla. Stat. outlining to which claims it should be applied. However, in the absence of a clear intent to apply a statute retroactively, it may only be applied prospectively. See Basel v. McFarland & Sons, 815 So. 2d 687, 695 (Fla. 5th DCA 2002). Thus, the current statute will likely be applied only to causes of action accruing on or after July 1, 2014, and to damages awarded by final judgment or settlement on or after the effective date of July 1, 2014.