Can a Govt Entity Indemnify Another Govt Entity for the Second's Negligence ?
In Florida Department of Natural Resources v. Garcia, 753 So. 2d 72 (Fla. 2000), the Court addressed an indemnification clause in a management agreement between the City of Miami Beach and the State of Florida for the management of South Beach.
This indemnification agreement required the City to reimburse the State for any liability arising solely from ownership of the beach.
The State argued that the indemnification provision was prohibited by section 768.28(18), which prohibits one government entity from indemnifying a second government entity for the second's negligence.
This Court concluded that the plain language of the statute did not prohibit this agreement whereby the City agreed to indemnify the State for the City's own negligence. Id. at 77.
The Court noted that this interpretation of section 768.28(18) was consistent with the common law right of indemnification in that a non-negligent party who is vicariously liable for the tortious actions of another can seek indemnification from the tortfeasor.
Thus, at common law, the State would have been able to seek indemnity from the City if the State was without fault and held vicariously liable for the City's failure to keep South Beach reasonably safe. Id. at 78.
The legislative history of this subsection explains that it was the Legislature's intent that "each entity [remain] liable for its own negligent acts or omissions." Fla. S. Comm. on Govtl. Ops., SB 1730 (1993) Staff Analysis (final Mar. 2, 1993) (on file in State Archives).
If a government entity cannot indemnify another government entity for the second's negligence without express statutory authorization, why should a government entity be able to indemnify a private entity for the private entity's negligence without similar express authorization? It should not.