IN THE SUPREME COURT OF FLORIDA. Case No.: SC ENOCK PLANCHER, as Personal Representative of the Estate of ERECK MICHAEL PLANCHER, II,

Transcription

1 Electronically Filed 10/11/ :53:18 PM ET RECEIVED, 10/11/ :53:37, Thomas D. Hall, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA Case No.: SC ENOCK PLANCHER, as Personal Representative of the Estate of ERECK MICHAEL PLANCHER, II, Petitioner, vs. UCF ATHLETICS ASSOCIATION, INC., and GREAT AMERICAN ASSURANCE COMPANY, Respondents ON REVIEW FROM THE FIFTH DISTRICT COURT OF APPEAL DAYTONA BEACH, FLORIDA JURISDICTIONAL BRIEF OF PETITIONER ENOCK PLANCHER Christopher V. Carlyle, B.C.S. Shannon McLin Carlyle, B.C.S. THE CARLYLE APPELLATE LAW FIRM 1950 Laurel Manor Drive, Suite 130 The Villages, Florida Stacy D. Blank HOLLAND & KNIGHT LLP P.O. Box 1288 Tampa, FL C. Steven Yerrid THE YERRID LAW FIRM, P.A. 101 E. Kennedy Blvd. Suite 3910 Tampa, FL 33602

2 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF CITATIONS... ii INTRODUCTION... 1 STATEMENT OF THE CASE AND FACTS... 2 SUMMARY OF THE ARGUMENT... 5 ARGUMENT... 5 CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF TYPEFACE COMPLIANCE i

3 TABLE OF CITATIONS Cases Page Berek v. Metro. Dade Cnty., 422 So. 2d 838 (Fla. 1982)... 6 Dep't of Envir. Prot. v. Garcia, 99 So. 3d 539 (Fla. 3d DCA 2011)... 6 Dorse v. Armstrong World, Ind., Inc., 513 So. 2d 1265 (Fla. 1987)... 8 Ford Motor Co. v. Kikis, 401 So. 2d 1341 (Fla. 1981)... 6 Gerard v. Dep't of Trans., 472 So. 2d 1170 (Fla. 1985)... 6 Keck v. Eminsor, 104 So. 3d 359 (Fla. 2012)... 9 Michigan Millers Mut. Ins. Co. v. Bourke, 607 So. 2d 418 (Fla. 1992)... 2, 6, 9, 10 Neilson v. City of Sarasota, 117 So. 2d 731 (Fla. 1960)... 6 Pagan v. Sarasota County Public Hosp. Bd., 884 So. 2d 257 (Fla. 2d DCA 2004)... 8 Paushter v. S. Broward Hosp. Dist., 664 So. 2d 1032 (Fla. 4 th DCA 1995)... 6 Pinellas Cnty. v. Bettis, 659 So. 2d 1365 (Fla. 2d DCA 1995)... 6 Prison Rehab. Ind. and Diversified Ent., Inc. v. Betterson, 648 So. 2d 778 (Fla. 1 st DCA 1994)... 8 Robinson v. Linzer, 758 So. 2d 1163 (Fla. 4 th DCA 2000)... 8 ii

4 S. Broward Topeekeegeeyugnee Park Dist. v. Martin, 564 So. 2d 1265 (Fla. 4 th DCA 1990)... 6, 7 Shands Teaching Hospital and Clinics, Inc. v. Lee, 478 So. 2d 77 (Fla. 1 st DCA 1985)... 7, 8 UCFAA v. Plancher, Case No. 5D (Fla. 5 th DCA 2013)... 1, 6, 7 Wallace v. Dean, 3 So. 3d 1035 (Fla. 2009)... 6 STATUTES AND RULES Rule 9.030(a)(2)(A)(iv), Florida Rules of Appellate Procedure... 6 Section , Florida Statutes... 6, 7, 9, 10 Section , Florida Statutes... 5 iii

5 INTRODUCTION [A]s the jury found, it was both the coaching staff's actions and inactions that led to the tragic death of Ereck Plancher. It is difficult to comprehend how one human being can ignore another in obvious distress or prevent someone else from offering aid to one in distress, but, inexplicably that is what happened here. 1 It is equally incomprehensible that our judicial system can ignore the unnecessary death of a young man and the subsequent disavowal of responsibility exhibited by UCF Athletics Association, Inc. ("UCFAA") in this case. To relieve UCFAA, a private corporation, from the consequences of its negligent conduct, the Fifth District's decision misapplies and directly conflicts with Florida law, thereby dramatically expanding sovereign immunity in Florida. Mr. Plancher respectfully requests this Court exercise its discretionary jurisdiction and accept this appeal. First, the Fifth District's decision orders the $10 million judgment against UCFAA and its insurer, Great American Assurance Company ("Great American"), be reduced to $200,000, the statutory sovereign immunity cap. The decision misapplies and, both expressly and directly, conflicts with extensive authority from this Court and Florida's other district courts of appeal holding a judgment shall not be reduced to the amount of the statutory cap. Second, the decision adopts a new legal test for determining when a private corporation acts as an agency or instrumentality of the State and is thereby entitled to sovereign immunity. Under 1 UCFAA v. Plancher, Case No. 5D , pgs , n. 21 (Fla. 5 th DCA 2013) (Berger, J. concurring in part, dissenting in part). 1

6 this decision, the State need not exercise control over private corporations who seek to share in the State's sovereign immunity. The decision conflicts with authority from other district courts of appeal regarding the legal test for sovereign immunity. Finally, the decision extends to insurers the sovereign immunity of their insureds. The decision misapplies and conflicts with this Court's holding in Michigan Millers Mut. Ins. Co. v. Bourke, 607 So. 2d 418 (Fla. 1992) on this point. Fundamental fairness and core principles of justice warrant Florida Supreme Court review of this case. The decision dramatically expands sovereign immunity beyond any legislative grant. It permits private corporations to secure sovereign immunity for themselves, and then confer sovereign immunity on other private companies, free from actual State control -- in effect eliminating the condition precedent to sovereign immunity. The decision compounds this result by extending sovereign immunity to insurers who have charged the State for full liability coverage. The practical effect is to transfer to insurers the restitution intended for injured citizens of Florida. By ignoring the proper test for sovereign immunity, the decision deprives Florida citizens of the ability to hold corporations and their insurers accountable for even an incomprehensible disregard for human life. STATEMENT OF THE CASE AND FACTS UCFAA was formed as a private, not-for-profit corporation to operate the athletics program at the University of Central Florida ("UCF"). UCFAA's Director 2

7 of Athletics explained that privatizing the athletics program allowed UCFAA to hire coaches "without having it, you know, be public." (R ). Ereck Plancher ("EP") was born in Naples, Florida to Haitian immigrant parents. He was a real-life example of the American dream. He was a scholar and gifted athlete. With his parents' support, he agreed to play football at UCF. On March 18, 2008, EP collapsed and died during a conditioning session. (R. 721 at Ex. 15). During the drills, which were extremely intense and caused numerous players to vomit, coaches were screaming at players. (T , 3722). EP was in obvious distress and collapsed during sprints. (T. 1861, 1872). When teammates attempted to help him, UCFAA Head Coach George O'Leary told them to "back the f up." (T. 1873). As EP struggled, UCFAA coaches refused to help, but instead yelled at him to get up and finish. (T , ). In the last minutes of EP's life, coaches and trainers ignored his distress. In the huddle after the drills, O'Leary criticized EP's performance, berating him with profanities. (T , 1882). During the cool down, EP was dazed and lost, unable to perform jumping jacks. (R. 6303; T , 3739). He collapsed a second time and, still, no trainer responded. (T. 1891, 3516). As teammates began to carry him off the field, a UCFAA coach demanded they "put his ass down and make him walk." (T ). His teammates put him on the ground, where he lay motionless. (T. 1423). A trainer finally told players to carry EP out of the 3

8 fieldhouse. (Id.). The head football trainer, who was in another building doing paperwork, was finally summoned. (T ). On her arrival, she called 911. (R. 721 at Ex. 6). Before the 911 call ended, EP stopped breathing and had no pulse. (R. 721 at Ex. 6). He could not be revived. The Medical Examiner concluded that EP died as the result of "dysrhythmia, due to acute exertional rhabdomyolosis with sickle cell trait. (R. 721 at Ex. 15). UCFAA adopted a policy to ensure the safety of student-athletes with sickle cell trait. (Ex. 31). The policy imposed mandatory testing for African-Americans, and required the athlete, coaches, and trainers be informed of a positive test result. (Id.). UCFAA tested EP for sickle cell trait twice. Both test results were positive, but no one from UCFAA informed EP of those results. (R ; T. 1798). Although Head Coach O'Leary knew of EP's positive test results, the other coaches, trainers, and physicians were not advised EP had sickle cell trait. (T. 2668, 2809, ). After EP's death, UCFAA publicly stated all the coaches knew EP had sickle cell trait. (T. 2809). Assistant coach Tim Salem, however, testified "I remember reading the release that UCF had that all the coaches knew, you know, that Ereck Plancher had sickle cell. I was like, shit, I didn't know." (Id.). EP's position coach also did not know of EP's condition. (Id.). Enock Plancher, EP's father, sued UCFAA for negligence. UCFAA moved for summary judgment on its affirmative defense of sovereign immunity. (R. 17, 4

9 23, 36). The trial court denied UCFAA's motion, rejecting the argument Section , Florida Statutes, and UCFAA's corporate documents gave UCF control over UCFAA. The trial court held the Legislature could have, but did not, expressly grant sovereign immunity to university DSOs in Section (R. 3225). Prior to ruling, the trial judge advised he spent 100 hours reviewing the evidence. He also conducted a half-day hearing to determine whether UCF exercised control over UCFAA. The trial court concluded UCFAA "has not been substantially controlled by UCF in either the day-to-day decisions or major programmatic decisions." (Id.). After a three-week trial, the jury returned a verdict against UCFAA and awarded EP's parents $5,000,000 each. The Fifth District reversed in part, holding UCFAA is entitled to sovereign immunity. SUMMARY OF THE ARGUMENT The decision below erroneously orders the judgment against UCFAA and Great American reduced to the amount of the sovereign immunity cap, adopts a new legal test for determining when private corporations are entitled to sovereign immunity, and extends to private insurance companies the sovereign immunity of their insureds. The decision below misapplies and expressly and directly conflicts with decisions of this Court and other district courts of appeal on each point. ARGUMENT The Fifth District's decision misapplies and, both expressly and directly, 5

10 conflicts with prior decisions of the Florida Supreme Court and other district courts of appeal on several points of law, any one of which supports the Court's exercise of conflict jurisdiction. See Fla. R. App. P (a)(2)(A)(iv); Wallace v. Dean, 3 So. 3d 1035, (Fla. 2009); Ford Motor Co. v. Kikis, 401 So. 2d 1341, 1342 (Fla. 1981); Neilson v. City of Sarasota, 117 So. 2d 731, 734 (Fla. 1960). First, the decision misapplies and conflicts with authority from this Court by ordering the $10 million judgment against UCFAA and Great American be reduced to $200,000, the amount of the statutory sovereign immunity cap. The decision orders the judgment against UCFAA "shall be reduced to $200,000 in accordance with section (5), Florida Statues." UCFAA, pg. 20, n.17. This Court has repeatedly held the exact opposite. This Court and other Florida district courts of appeal have concluded a plaintiff is entitled to rendition of a judgment in excess of the amount the State can be required to pay under Section , Florida Statutes. See, e.g., Michigan Millers Mut. Ins. Co. v. Bourke, 607 So. 2d 418, 421 (Fla. 1992); Gerard v. Dep't of Trans., 472 So. 2d 1170, (Fla. 1985); Berek v. Metro. Dade Cnty., 422 So. 2d 838, (Fla. 1982); Paushter v. S. Broward Hosp. Dist., 664 So. 2d 1032, 1033 (Fla. 4 th DCA 1995) (J. Pariente); S. Broward Topeekeegeeyugnee Park Dist. v. Martin, 564 So. 2d 1265, 1267 (Fla. 4 th DCA 1990); Dep't of Envir. Prot. v. Garcia, 99 So. 3d 539, 545 (Fla. 3d DCA 2011); Pinellas Cnty. v. Bettis, 659 So. 2d 1365, (Fla. 2d DCA 6

11 1995). As the Fourth District explained in Martin, "[t]hese cases make it clear that the mere fact the legislative act places a cap upon the amount of damages recoverable against the governmental entity does not affect the plaintiff's right to a judgment for his full damages." 564 So. 2d at The decision below misapplies and expressly and directly conflicts with the cited authority from this Court, and the Second, Third, and Fourth Districts, on this precise point. Next, the Fifth District's decision adopts a new, unacceptable test for determining when a private corporation acts as an agency or instrumentality of the State under Section (2), Florida Statutes, and is thereby entitled to sovereign immunity. It rejects long-standing Florida law requiring UCF to exercise actual control over the detailed physical performance and day-to-day operations of UCFAA as a condition precedent to sovereign immunity. Instead, the decision holds that the State need not exercise any control to entitle a private corporation to sovereign immunity. UCFAA, pg. 19. The decision concludes, " we reject the Planchers' assertion that for UCFAA to have sovereign immunity, UCF had to actually control UCFAA's day-to-day operations. Instead, we determine that the power to control is sufficient." Id. (emphasis added). The court further opined UCF may "oversee [UCFAA's] day-to-day operations as much or as little as it sees fit." Id. That holding expressly and directly conflicts with, among others, decisions of the First District in Shands Teaching Hospital and Clinics, Inc. v. Lee, 478 So. 7

12 2d 77, 79 (Fla. 1 st DCA 1985); and Prison Rehab. Ind. and Diversified Ent., Inc. v. Betterson, 648 So. 2d 778, 780 (Fla. 1 st DCA 1994). Shands and Betterson hold the proper test to determine whether a private corporation is an agency or instrumentality of the State is the extent to which the State exercises "direct control" over its "detailed physical performance" and "day to day operations." Those cases require the actual exercise of control by the State, not merely the power to control. See also Dorse v. Armstrong World Ind., Inc., 513 So. 2d 1265, 1268 n.4 (Fla. 1987); Robinson v. Linzer, 758 So. 2d 1163, (Fla. 4 th DCA 2000). This has been the test applied by trial and appellate courts, including the trial court in this case, until now. The only prior articulation of the Fifth District's new test is in a concurring opinion in Pagan v. Sarasota County Public Hosp. Bd., 884 So. 2d 257 (Fla. 2d DCA 2004), which was not adopted by the majority. The Fifth District's decision results in a judicial expansion of sovereign immunity far beyond that granted by the Florida Legislature, or previously determined by this Court or other Florida appellate courts. Every Florida public university appeared before the Fifth District as amicus curiae and asserted this case has "state-wide importance and impact." The Florida Legislature did not expressly extend sovereign immunity to all university direct support organizations, but the Fifth District's decision does so. The decision automatically grants sovereign immunity to more than 80 existing university direct support organizations 8

13 ("DSOs") merely by virtue of their statutory and corporate structures -- and further paves the way for the creation of new university DSOs who will likewise enjoy sovereign immunity free from any requirement of actual State control. Moreover, the decision reaches far beyond university DSOs. If the decision stands, private corporations, themselves agencies or instrumentalities of the State, 2 may confer sovereign immunity on other private corporations in exchange for a mere reservation of the "right to control." By eliminating the requirement of actual State control over a private company claiming sovereign immunity, the holding may well result in the unfettered expansion of sovereign immunity to private corporations many tiers removed from the State. Lastly, the Fifth District's decision misapplies and directly conflicts with authority from this Court on whether sovereign immunity is available to a liability insurer. In Michigan Millers Mutual Ins. Co. v. Bourke, 607 So. 2d 418, (Fla. 1992), the Court held a sovereign immunity defense under Section may not be raised by an insurer. This Court held that the plain language of the sovereign immunity statute defeats any contention that an insurer is entitled to share in the sovereign immunity of its insured. Under Section (5), a claim 2 In Keck v. Eminsor, 104 So. 3d 359 (Fla. 2012), this Court held that a private corporation may act as an agency or instrumentality of another agency or instrumentality of the State. The facts in Keck, however, revealed extensive actual State control over the day-to-day operations of the company seeking sovereign immunity. The Fifth District's decision dispenses with the requirement of actual State control, thereby dramatically expanding sovereign immunity. 9

14 may be settled or a judgment paid in an amount that exceeds the statutory payment cap but falls within the amount of available liability insurance. If an insurer were entitled to the sovereign immunity of its insured, the insurer's payment obligation would likewise be capped at the statutory maximum, and the insurer could not be required to pay the excess settlement or judgment specifically authorized by the statute. In extending sovereign immunity to insurers, the panel's decision misapplies and expressly and directly conflicts with Michigan Millers. Moreover, the decision below defeats the purpose of sovereign immunity to protect the State's treasury. The decision permits insurers to charge premiums for full liability coverage, but then refuse to pay the amounts due under the policy if the insured tortfeasor is entitled to sovereign immunity. Such a twisted result does not protect Florida taxpayers, but rather perverts the fundamental purpose of sovereign immunity to the advantage of insurance companies and to the very great detriment of those who rely on that illusory insurance coverage. CONCLUSION For the foregoing reasons, Mr. Plancher requests the Court exercise its discretion to grant review and resolve the conflicts created by the decision below. /s/ Stacy D. Blank /s/ C. Steven Yerrid Stacy D. Blank C. Steven Yerrid Florida Bar No Florida Bar No stacy.blank@hklaw.com syerrid@yerridlaw.com HOLLAND & KNIGHT LLP THE YERRID LAW FIRM, P.A. Post Office Box E. Kennedy Blvd., Suite

15 Tampa, FL Tampa, FL Telephone: (813) Telephone: (813) Fax: (813) Fax: (813) and Attorneys for Petitioner Enock Plancher CERTIFICATE OF SERVICE Christopher V. Carlyle, B.C.S. Florida Bar No THE CARLYLE APPELLATE LAW FIRM The Carlyle Building 1950 Laurel Manor Drive, Suite 130 The Villages, Florida Telephone (352) Facsimile (352) I HEREBY CERTIFY that on the 11 th day of October, 2013, a true and correct copy of the foregoing and accompanying appendix have been furnished by to: Wendy F. Lumish, Esq. Carlton Fields, P.A Bank of America Tower 100 Southeast Second Street Miami, FL wlumish@carltonfields.com; aabuakel@carltonfields.com; miaecf@cfdom.net Matthew J. Conigliaro, Esq. Joshua D. Moore, Esq. Carlton Fields 200 Central Avenue, Suite 2300 St. Petersburg, FL mconigliaro@carltonfields.com; smartindale@carltonfields.com; stpecf@cfdom.net jmoore@carltonfields.com; aortiz@carltonfields.com; orlecf@cfdom.net 11

16 Richard E. Mitchell, Esq. GrayRobinson, P.A. 301 East Pine Street, Suite 1400 Orlando, FL /s/ Stacy D. Blank Attorney CERTIFICATE OF TYPEFACE COMPLIANCE Counsel for petitioner Enock Plancher certifies that this Jurisdictional Brief is typed in 14-point (proportionately spaced) Times New Roman. /s/ Stacy D. Blank Attorney # _v4 12