Florida's waiver of sovereign immunity is among the most procedurally demanding in the nation. The statute that creates the waiver—Fla. Stat. § 768.28—simultaneously opens a door for tort recovery against the state and its subdivisions and sets a series of technical tripwires that, if missed, produce dismissal with prejudice regardless of the merits. Every plaintiffs' lawyer who handles personal injury, wrongful death, or civil rights matters arising from governmental conduct in Florida must have § 768.28 mastered before the first demand letter goes out.
The Statutory Framework: Waiver and Its Limits
Section 768.28 embodies Article X, Section 13 of the Florida Constitution, which authorizes the legislature to waive sovereign immunity "by general law." The waiver is a legislative grace, not a right—meaning its conditions are strictly enforced and the legislature retains the prerogative to condition, limit, and revoke the waiver as it sees fit.
Scope of the waiver. Under § 768.28(1), the state, its agencies, and its subdivisions waive immunity "for liability for torts." The waiver extends to negligence, gross negligence, and most intentional torts committed by government employees acting within the scope of employment. Punitive damages and prejudgment interest are excluded. Fla. Stat. § 768.28(5).
Covered entities. "Agencies or subdivisions" within the waiver include state agencies, counties, municipalities, school boards, port authorities, the Florida Space Authority, and other governmental bodies. A county sheriff's office is a covered subdivision. A state university is a covered agency.
The Damages Caps: Current Law
The cap provision in § 768.28(5) limits recovery to $200,000 per person and $300,000 per incident (i.e., when claims from the same occurrence are aggregated). These caps have been the law since Florida Statutes § 768.28 was first enacted and have not been increased by a general law as of the 2024 statutory compilation.
Important legislative context. The Florida Legislature has considered raising these caps in recent sessions. As of this writing, legislation pending in the 2026 session would increase caps to $300,000 per person and $450,000 per incident (Senate version) or higher (House version), with possible future CPI-based adjustments. No general cap increase has been signed into law yet; practitioners should monitor the legislature's official website for any changes to these amounts. Claims that have accrued will generally be governed by the caps in effect on the date of accrual.
The claims bill mechanism. A court may enter a judgment in excess of the statutory caps, but the excess portion cannot be collected absent a special "claim bill" passed by the Florida Legislature. Pursuing a claim bill is a separate, lengthy legislative process requiring individual legislative action for each case. In practice, many excess judgments languish without claim bill passage, limiting actual recovery to the statutory caps. The legal strategy of simultaneously pursuing the damages claim and the claim bill is standard practice in high-value governmental tort cases.
Insurance. A governmental entity may settle a claim for an amount within its insurance coverage even if that amount exceeds the statutory caps, without the need for a claim bill, provided the entity has obtained insurance coverage for acts above the caps. § 768.28(5). Investigating whether a governmental defendant carries excess liability insurance is therefore an essential early step.
The Pre-Suit Notice Requirement
Section 768.28(6)(a) imposes a mandatory pre-suit notice requirement:
"An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality, county, or the Florida Space Authority, presents such claim in writing to the Department of Financial Services, within 3 years after such claim accrues."
Wrongful death exception. For wrongful death claims, the notice period is shortened: the claim must be presented to the Department of Financial Services within 2 years after the claim accrues. § 768.28(6)(a)(2).
To whom notice must be sent. The claim must be sent to two recipients: (1) the appropriate state agency, and (2) the Department of Financial Services (DFS), except that claims against a municipality, county, or Florida Space Authority need only be sent to that entity—not to DFS. In practice, sending notice to both DFS and the relevant governmental entity is the safer course even for county and municipal claims, as some courts have scrutinized the notice to the appropriate agency alone.
Form and content of notice. The claim should be in writing and describe: the identity of the claimant; the circumstances of the injury, including the date, time, location, and governmental actors involved; the nature and extent of the claimed damages; and—critically—a statement identifying any prior adjudicated penalties, fines, fees, or other judgments in excess of $200 owed by the claimant to the state, its agencies, or its subdivisions. § 768.28(6)(c). The failure to include the setoff disclosure does not automatically void the notice, but it can delay or complicate the claim.
Actual Receipt: The Simmons Trap
The most common and most devastating § 768.28 notice error is mailing the notice on the last day of the limitations period without ensuring actual receipt before expiration. Florida courts have held that "presenting" a claim requires actual receipt—not mere mailing. If the notice is mailed on day 1,095 (three years after accrual) but received on day 1,097, the notice is untimely and the claim may be dismissed with prejudice.
This rule derives from the Florida Supreme Court's interpretation in cases holding that "present" means the claim must be received by the agency and DFS before the period expires. Practitioners must allow adequate time for delivery, use delivery confirmation methods, and build in a cushion of several days before the deadline.
The 180-Day Waiting Period
Once proper notice is given, the governmental entity has up to 180 days to investigate and respond. § 768.28(6)(a). During this period, suit may not be filed. If the agency makes a final denial before 180 days, the claimant may file suit upon receipt of the denial. If no final disposition is made within 180 days, the lack of response is deemed a final denial.
In medical malpractice cases and wrongful death cases, the agency's response deadline is shortened to 90 days. § 768.28(6)(a).
This waiting period interacts critically with Florida's statutes of limitations. HB 837 (signed March 2023) reduced the general negligence statute of limitations from four years to two years for claims accruing on or after March 24, 2023. Fla. Stat. § 95.11(3)(a). For claims against governmental entities, you must now give 3-year (or 2-year for wrongful death) notice and wait 180 days and file within two years of accrual. The overlapping deadlines require immediate calendar management from the date of the injury.
Substantial Compliance
Florida courts have recognized a "substantial compliance" doctrine that may save a defective notice in limited circumstances. Substantial compliance requires that the purpose of the notice—informing the agency of the claim so it may investigate—was actually served despite a technical deficiency. However, this doctrine does not rescue untimely notice: if notice was not received by the agency before the statutory period expired, no amount of substantial compliance saves the claim. The doctrine applies primarily to content deficiencies (e.g., an incomplete setoff disclosure), not to timeliness deficiencies.
Officers and Employees: Personal Liability
Section 768.28(9)(a) provides that an officer, employee, or agent of the state or subdivision acting within the scope of employment is not personally liable in tort except as provided in the act, and the governmental entity's immunity for the employee's acts may be raised only by the entity. However, § 768.28(9)(a) carves out personal liability for "act[s] or omission[s] of commission [which] constitute criminal, fraudulent, malicious, intentional, willful, or outrageous conduct." For § 1983 claims (which are federal claims, not state tort claims), § 768.28 does not apply—but the entity may raise its statutory caps as to state-law claims brought alongside § 1983.
Naming officers personally. Where a government officer acts with malice, intentional misconduct, or in a criminal manner, § 768.28(9) allows personal-capacity tort claims against the officer in addition to the governmental entity claim. However, the notice requirements of § 768.28(6) apply to the governmental entity claim, and the personal-capacity claim against the officer directly requires separate analysis of sovereign immunity, qualified immunity (if § 1983 is also pled), and any applicable statute of limitations.
§ 768.28 and § 1983 Claims
Florida's pre-suit notice requirement does not apply to § 1983 federal civil rights claims—those are governed by federal law under 42 U.S.C. § 1983, not by Florida's sovereign immunity waiver. However, state tort claims (negligence, wrongful death) that accompany a § 1983 case in state or federal court do require § 768.28 compliance. Failing to comply with the notice requirement as to the state-law claims while preserving the § 1983 claims is a viable litigation strategy, but it means state-law damages (including pain and suffering up to the caps) may be forfeited.
Practice Checklist
- Determine the accrual date and calculate the notice deadline immediately. For general negligence/personal injury: 3-year notice period. For wrongful death: 2-year notice period. Both must be received—not mailed—before expiration.
- Identify the correct agency and DFS. For claims against a county or municipality, send to the governmental entity. For state agency claims, also send to DFS at its Tallahassee address.
- Allow adequate delivery time. Build in at least five to seven business days before the deadline. Use certified mail, return receipt requested, or hand delivery with written acknowledgment.
- Include all required content. Include setoff disclosure, full identification of the claimant, factual description, and claimed damages.
- Calendar the 180-day waiting period. Note the date by which suit may be filed. Do not miss the applicable statute of limitations even while waiting—file suit promptly after the 180-day period or after a denial.
- Investigate insurance coverage early. Document whether the governmental entity carries insurance above the statutory caps. This determination affects recovery ceiling and settlement strategy.
- Preserve § 1983 claims. If the underlying conduct violates federal constitutional rights, § 1983 claims are not subject to § 768.28 and may be filed in federal court independently of the state tort compliance track.
Where the Law Is Moving
The pending 2026 legislative proposals to increase the caps signal growing recognition that the $200,000/$300,000 figures—unchanged for decades in real-dollar terms—have been eroded by inflation to a fraction of their original purchasing power. Advocates for victims of governmental negligence should monitor these developments closely and be prepared to advise clients on whether to accelerate or delay resolution based on the caps in effect at accrual versus those potentially applicable at settlement.
Talk to Yates Anderson
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Informational only. Not legal advice. No attorney-client relationship is created by reading this post. Consult a licensed attorney in your jurisdiction.