Miami-Dade County v. Dr. David Fintan Garavan

• Court: District Court of Appeal of Florida
• Decided: March 25, 2026
• Docket: 3D2025-0014
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed March 25, 2026. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D25-0014 Lower Tribunal No. 20-7339-CA-01 ________________

Miami-Dade County, Appellant,

vs.

Dr. David Fintan Garavan, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Valerie R. Manno Schurr and Barbara Areces, Judges.

Geraldine Bonzon-Keenan, Miami-Dade County Attorney, and Leona N. McFarlane, Assistant County Attorney, for appellant.

Sharp Law Firm, P.A., and Christopher C. Sharp (Fort Lauderdale); Law Office of Richard E. Johnson, and Richard E. Johnson (Tallahassee), for appellee.

Before FERNANDEZ, GORDO and GOODEN, JJ.

GORDO, J. Miami-Dade County (“County”) appeals from a final judgment entered

in favor of Dr. David Garavan (“Dr. Garavan”) following a jury trial. We have

jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). We affirm in all respects except

we reverse that portion of the final judgment which awards non-economic

damages.

I.

Dr. Garavan was an employee of the Miami-Dade County Medical

Examiner’s Office. He filed the underlying action against the County,

challenging his demotion and subsequent termination under the Florida

Public Whistleblower Act (“FPWA”). After trial, the jury returned a verdict in

his favor, awarding both economic and non-economic damages. The County

moved to set aside the verdict on noneconomic damages as excessive. The

trial court denied the motion and entered final judgment, finding substantial

evidence of emotional distress and reputational harm. This appeal followed.

II.

“The issue of sovereign immunity is a legal issue subject to a de novo

standard of review.” Miccosukee Tribe of Indians v. Lewis Tein, P.L., 227

So. 3d 656, 660 (Fla. 3d DCA 2017) (quoting Plancher v. UCF Athletics

Ass'n, Inc., 175 So. 3d 724, 725 n.3 (Fla. 2015)). “Whether a legislative

enactment has waived the defense of sovereign immunity is a pure question

2 of law reviewed de novo.” Fla. Fish & Wildlife Conservation Comm’n v. Hahr,

326 So. 3d 1165, 1167 (Fla. 1st DCA 2021) (quoting State, Dep’t of Elder

Affs. v. Caldwell, 199 So. 3d 1107, 1109 (Fla. 1st DCA 2016)).

III.

The County argues the jury’s award of non-economic damages to Dr.

Garavan is barred as a matter of law because the County is entitled to

sovereign immunity and Dr. Garavan’s recovery is limited to those damages

expressly waived.1 We agree.

A.

We begin our analysis by addressing whether non-economic damages

are recoverable against the sovereign absent an express, clear and

unequivocal legislative waiver. The doctrine of sovereign immunity “provides

1 While Dr. Garavan argues the County did not raise the issue of sovereign immunity in the proceedings below, we have repeatedly held that like subject matter jurisdiction, sovereign immunity may be asserted at any time— including for the first time on appeal—which was done here. See City of Miami v. Robinson, 364 So. 3d 1087, 1091 (Fla. 3d DCA 2023) (“Much like subject matter jurisdiction, sovereign immunity . . . can be raised at any time.”); State, Dep’t of Highway Safety & Motor Vehicles, Div. of Highway Patrol v. Kropff, 491 So. 2d 1252, 1254 n.1 (Fla. 3d DCA 1986) (“Sovereign immunity relates to subject matter jurisdiction. Parties may not confer subject matter jurisdiction by waiver, failure to object, or consent where none is given by law. Governmental immunity may be raised at any time.”); Schmauss v. Snoll, 245 So. 2d 112, 113 (Fla. 3d DCA 1971) (“A state’s immunity from suit relates to subject matter jurisdiction . . . . Lack of jurisdiction over the subject matter may be raised at any time[.]”).

3 that a sovereign cannot be sued without its own permission[.]” Am. Home

Assurance Co. v. Nat’l R.R. Passenger Corp., 908 So. 2d 459, 471 (Fla.

2005). This principle “has been a fundamental tenet of Anglo–American

jurisprudence for centuries and is based on the principle that ‘the King can

do no wrong.’” Id. “The doctrine was a part of the English common law when

the State of Florida was founded and has been adopted and codified by the

Florida Legislature.” Id. (citing § 2.01, Fla. Stat.).

“The original justification for incorporating the doctrine into American

jurisprudence was ‘the logical and practical ground that there can be no legal

right as against the authority that makes the law on which the right depends.’”

Id. (quoting Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907)). “Florida

law has enunciated three policy considerations that underpin the doctrine of

sovereign immunity.” Id. “First is the preservation of the constitutional

principle of separation of powers.” Id. “Second is the protection of the public

treasury.” Am. Home Assurance Co., 908 So. 2d at 471. “Third is the

maintenance of the orderly administration of government.” Id.

“The immunity of the State of Florida and its agencies from liability for

claims arising under Florida law or common law is absolute absent a clear,

specific, and unequivocal waiver by legislative enactment.” Daly v. Marion

Cnty., 265 So. 3d 644, 650 (Fla. 1st DCA 2018) (quoting State, Dep’t of Elder

4 Affairs v. Caldwell, 199 So. 3d 1107, 1109 (Fla. 1st DCA 2016)) (emphasis

added). Consistent with that principle, our Florida Constitution allows the

Legislature to waive the State’s sovereign immunity from liability for claims

arising under Florida law or common law. See Art. X, § 13, Fla. Const.

(“Provision may be made by general law for bringing suit against the state

as to all liabilities now existing or hereafter originating.”). “Only the

Legislature has authority to enact a general law that waives the state’s

sovereign immunity.” Am. Home Assurance Co., 908 So. 2d at 471.

The Florida Supreme Court has required that any legislative waiver of

sovereign immunity be clearly expressed and strictly construed. See Gerard

v. Dep’t of Transp., 472 So. 2d 1170, 1172 (Fla. 1985) (“[S]tatutory waiver of

sovereign immunity must be clearly expressed and strictly construed[.]”);

Am. Home Assurance Co., 908 So. 2d at 472 (“[A]ny waiver of sovereign

immunity must be clear and unequivocal. In interpreting such legislative

waivers of sovereign immunity, this Court has stated that it must strictly

construe the waiver.”).

In accordance with our Supreme Court’s jurisprudence, we have

repeatedly held that, for us to find “the [sovereign] waived its immunity, the

party claiming the waiver must ‘show a clear, express and unmistakable

waiver of sovereign immunity by the [sovereign].’” Miccosukee Tribe of

5 Indians v. Lewis Tein, P.L., 227 So. 3d 656, 661 (Fla. 3d DCA 2017) (quoting

Cupo v. Seminole Tribe of Fla., 860 So. 2d 1078, 1079 (Fla. 1st DCA 2003)).

This follows from the principle that “immunity of the state and its agencies is

an aspect of sovereignty” and “[w]aiver will not be reached as a product of

inference or implication.” Spangler v. Fla. State Tpk. Auth., 106 So. 2d 421,

424 (Fla. 1958). “This is so for the obvious reason that the immunity of the

sovereign is a part of the public policy of the state.” Id.

Thus, if the sovereign has not expressly, clearly and unequivocally

waived a specific category of damages—such as non-economic damages—

we conclude that those damages are not recoverable against the sovereign.

See City of Miami v. Robinson, 364 So. 3d 1087, 1091 (Fla. 3d DCA 2023)

(“Sovereign immunity bars a claim against a governmental entity, with

exception for claims brought under the federal or state constitutions, claims

based on a ‘clear and unequivocal’ legislative waiver of sovereign immunity,

or contractual claims based on an express, written agreement with a

governmental entity.” (quoting Univ. of Fla. Bd. of Trs. v. Rojas, 351 So. 3d

1167, 1170 (Fla. 1st DCA 2022))).

B.

We next consider whether the County is entitled to sovereign immunity

for non-economic damages under the FPWA, section 112.3187, Florida

6 Statutes. The FPWA forbids state agencies from taking adverse personnel

actions against employees in retaliation for disclosing information protected

by the Act. The FPWA provides several prescribed forms of relief:

(9) RELIEF.—In any action brought under this section, the relief must include the following: (a) Reinstatement of the employee to the same position held before the adverse action was commenced, or to an equivalent position or reasonable front pay as alternative relief. (b) Reinstatement of the employee’s full fringe benefits and seniority rights, as appropriate. (c) Compensation, if appropriate, for lost wages, benefits, or other lost remuneration caused by the adverse action. (d) Payment of reasonable costs, including attorney’s fees, to a substantially prevailing employee, or to the prevailing employer if the employee filed a frivolous action in bad faith. (e) Issuance of an injunction, if appropriate, by a court of competent jurisdiction. (f) Temporary reinstatement to the employee’s former position or to an equivalent position, pending the final outcome on the complaint, if an employee complains of being discharged in retaliation for a protected disclosure and if a court of competent jurisdiction or the Florida Commission on Human Relations, as applicable under s. 112.31895, determines that the disclosure was not made in bad faith or for a wrongful purpose or occurred after an agency’s initiation of a personnel action against the employee which includes documentation of the employee’s violation of a disciplinary standard or performance deficiency.

7 § 112.3187(9)(a)–(f), Fla. Stat.

When a plaintiff seeks a particular category of damages from a

governmental entity, the dispositive question is whether the Legislature has

expressly authorized that type of liability or compensation. See Spangler,

106 So. 2d at 424. By its plain language, the FPWA does not include non-

economic damages as a form of relief. See City of Miami Beach v. Rocio

Corp., 404 So. 2d 1066, 1069 (Fla. 3d DCA 1981) (“The plain language of a

statute must be read to mean what it says.”); Carson v. Miller, 370 So. 2d

10, 11 (Fla. 1979) (same); Phil’s Yellow Taxi Co. v. Carter, 134 So. 2d 230,

232 (Fla. 1961) (same).

The statute provides compensation for objectively verifiable monetary

losses—such as reinstatement and compensation for lost wages, benefits,

or other lost remuneration—but says nothing about subjective, non-monetary

harms such as pain, suffering, or emotional distress. While the list is not

exhaustive, every other damage expressly authorized is a quantifiable

economic loss damage. Where, as here, the Legislature enumerates

specific categories of relief, those categories define the scope of the waiver.

Under the settled canon of ejusdem generis, the inclusion of particular forms

of economic compensation signals that any authorized recovery is confined

to damages of the same kind or class as those expressly listed. See Circuit

8 City Stores, Inc. v. Adams, 532 U.S. 105, 114–15 (2001) (“The wording of

[the statute] calls for the application of the maxim ejusdem generis, the

statutory canon that ‘where general words follow specific words in a statutory

enumeration, the general words are construed to embrace only objects

similar in nature to those objects enumerated by the preceding specific

words.’” (quoting 2A N. Singer, Sutherland on Statutes and Statutory

Construction § 47.17 (1991))).

While the statute provides that the list is not exhaustive, the remedies

identified are uniform in character and limited to economic loss. In the

sovereign immunity context—where waivers must be express, clear and

unequivocal—we will not extend that carefully drawn list to encompass

qualitatively different, non-economic damages the Legislature did not

include. See In re Advisory Op. to Att’y Gen. re Use of Marijuana for Certain

Med. Conditions, 132 So. 3d 786, 801 (Fla. 2014) (explaining that when

general words in a statute follow specific words or phrases, the meaning of

the general words are construed as being restricted to include only those of

the same kind or class of those specifically mentioned); Sun Coast Int’l Inc.

v. Dep't of Bus. Regul., Div. of Fla. Land Sales, Condo. & Mobile Homes,

596 So. 2d 1118, 1121–22 (Fla. 1st DCA 1992) (applying the maxim of

ejusdem generis to conclude that general statutory language authorizing

9 agency action was limited by the specific language immediately preceding it,

and rejecting an argument that the general language implied the agency

could provide broader relief).

We emphasize that when the Legislature intends to authorize a

particular category of damages, it does so expressly and unambiguously.

Indeed, other employment statutes demonstrate that the Legislature knows

how to provide for noneconomic damages when it chooses to do so. See §

760.11(5), Fla. Stat. (authorizing recovery for “mental anguish, loss of

dignity, and any other intangible injuries, and punitive damages” under the

Florida Civil Rights Act); § 112.0455(15)(a)(2), Fla. Stat. (authorizing

recovery of “noneconomic damages,” subject to specified limitations, under

the Drug-Free Workplace Act, which applies to state agencies and their

employees).

Critical to our analysis, Florida’s private sector Whistleblower Act

expressly authorizes additional relief in the form of “[a]ny other

compensatory damages allowable at law,” which has been found to include

noneconomic damages. § 448.103(2)(e), Fla. Stat.; see Aery v. Wallace

Lincoln-Mercury, LLC, 118 So. 3d 904, 913 (Fla. 4th DCA 2013) (finding the

phrase “any other compensatory damages allowable at law” authorized

noneconomic compensatory damages under the private sector act).

10 In sum, sovereign immunity may be waived only by express, clear and

unequivocal statutory language, as it is for the political branches—not the

courts—to assess the costs and benefits of subjecting the government to

certain types of civil liability. Because the FPWA does not expressly and

unequivocally waive sovereign immunity for non-economic damages, we find

that such damages cannot be recovered against the County under the Act. 2

See Agency for Pers. with Disabilities v. Toal, 406 So. 3d 978, 981-983 (Fla.

1st DCA 2025) (“Noneconomic damages are not specified as a form of relief

under the Whistleblower’s Act, full stop. . . . At any rate, we do not employ

scale-tipping cannons in the absence of statutory ambiguity. Here, there is

none. The Legislature delineated the precise forms of relief that must be

awarded to a prevailing plaintiff. And it chose not to include uncapped

noneconomic damages within this comprehensive framework. Even if

ambiguity were hypothetically acknowledged, there would be no valid waiver

of sovereign immunity. Sovereign immunity can be waived only through

2 To the extent Dr. Garavan relies on our holding in Iglesias v. City of Hialeah, 305 So. 3d 20 (Fla. 3d DCA 2019), that decision does not control because it does not appear that sovereign immunity was ever raised in that case. The opinion contains no discussion of waiver doctrine. See MVW Mgmt., LLC v. Regalia Beach Developers LLC, 230 So. 3d 108, 114 (Fla. 3d DCA 2017) (“It has long been the law of Florida that ‘no decision is authority on any question not raised and considered[.]’” (quoting State ex rel. Helseth v. Du Bose, 99 Fla. 812, 816 (1930))).

11 statutory language that is clear and unequivocal, as it is ‘the province of the

political branches, not the courts, to weigh the costs and benefits of exposing

the government to civil litigation.’ Because the Whistleblower’s Act does not

clearly and unequivocally waive sovereign immunity to authorize the

recovery of noneconomic damages, the trial court erred by denying the

Agency's motion to dismiss Toal’s claim for such relief.” (quoting Robinson

v. U.S. Dep’t of Educ., 917 F. 3d 799, 801 (4th Cir. 2019))).

Accordingly, we reverse the portion of the final judgment awarding non-

economic damages and remand for entry of a corrected judgment limited to

the forms of relief authorized by section 112.3187(9), Florida Statutes.

Affirmed in part, reversed in part and remanded with instructions.