Immunity and the Appeal of Non-final Orders, Part II

In Keck v. Eminisor the Supreme Court considered whether a non-final order denying a claim of sovereign immunity by an employee of an ‘instrumentality of the state’ for acts committed under the scope of employment could be reviewed on interlocutory appeal.
Plaintiff Eminisor was struck by a trolley owned by the Jacksonville Transit Authority (JTA) and operated by Keck under the scope of his employment for a corporation that was wholly controlled by the JTA. Eminisor alleged that Keck was negligent in the operation of the trolley. Keck responded that section 768.28(9)(a), Florida Statutes, provides that no employee of the state or instrumentality of the state can be held personally liable or named as a defendant in a tort action unless acting in bad faith, with malicious intent, or with wanton and willful disregard for others. None of these exceptions was alleged. Keck’s motion for summary judgment in the trial court was denied, and he filed a petition for a writ of certiorari to the First District Court of Appeal. Noting that proceeding through litigation generally is not considered irreparable harm under certiorari analysis, the First DCA denied the petition.
In addressing the question of whether an interlocutory appeal should be available to Keck, the Supreme Court examined the history and nature of immunity claims in Florida. The Court first turned to Tucker v. Resha, 648 So. 2d 1187 (Fla. 1994), a case involving a suit in state court based on alleged federal civil rights violations. In Tucker, the Supreme Court held that an interlocutory appeal should be available to individuals who are entitled to immunity from suit in federal civil rights claims as a matter of law. Denying such persons the ability to immediately appeal a denial of a claim of immunity would be irreparable harm, in that the protections that are meant to be provided by a statutory grant of immunity from suit would be eviscerated if such persons were required to continue through the litigation process.
The Court acknowledged that while sovereign immunity claims outside of the federal civil rights context were not allowed to form the basis of an interlocutory appeal in Department of Education v. Roe, 679 So. 2d 756 (Fla. 1996), the policy considerations in this case, which involved an individual and not a state agency, were more akin to the reasoning in Tucker than to Roe. While the state has waived immunity from suit for itself in certain proceedings under section 768.28, Florida Statutes, it has not done so for its individual officers and employees.
The Court apparently did not, however, grant an extraordinary writ. Rather, it concluded its opinion by quashing the order below and recommending that the Florida Bar Appellate Rules Committee consider amending Rule 9.130 to expressly allow appeals of non-final orders denying claims of immunity under section 768.28(9)(a), Florida Statutes.
A concurring opinion by Justice Pariente, which was joined in by a majority of the Court, suggested to the Rules Committee that it consider addressing interlocutory appeal for various categories of immunity claims.