Third District Court of Appeal
State of Florida
Opinion filed January 25, 2023.
Not final until disposition of timely filed motion for rehearing.
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Nos. 3D22-483 & 3D22-488
Lower Tribunal No. 19-28710
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Florida Department of Highway Safety and Motor Vehicles, et al.,
Appellants,
vs.
Odalys Fortes, etc.,
Appellee.
Appeals from a non-final order from the Circuit Court for Miami-Dade
County, William Thomas, Judge.
Geraldine Bonzon-Keenan, Miami-Dade County Attorney, and Richard
Schevis, Assistant County Attorney, for appellant Miami-Dade County;
Quintairos, Prieto, Wood & Boyer, P.A., and James M. Fishman, for
appellant Florida Department of Highway Safety and Motor Vehicles.
Armand & Dieguez, P.A., and Arturo A. Armand and Manuel A.
Dieguez; Raposo & Lukacs, PLLC, and John C. Lukacs, Jr., and Jose A.
Raposo, Jr., for appellee.
Before LOGUE, SCALES and HENDON, JJ.
PER CURIAM.
Appellants Florida Department of Highway Safety and Motor Vehicles
and Miami-Dade County appeal a February 21, 2022 non-final order denying
appellants’ motions seeking summary judgment on the issue of whether they
are sovereignly immune from the wrongful death action brought by appellee
Odalys Fortes, as personal representative of the Estate of Annie Becerra.
The challenged order also recites the legal duty that, according to the trial
court, appellants owed to Ms. Becerra. 1
We dismiss, for lack of jurisdiction, that portion of the appeal seeking
interlocutory review of the trial court’s order determining the legal duty
appellants owed to Ms. Becerra. See 1560-1568 Drexel Ave., LLC v. Dalton,
323 So. 3d 273, 274 (Fla. 3d DCA 2021) (recognizing that a district court’s
jurisdiction to review a portion of a non-final order does not extend to the
portion of the same order not included in rule 9.130’s schedule of reviewable
non-final orders); Fla. R. App. P. 9.130(a)(3). We affirm the trial court’s
determination that appellants are not sovereignly immune from appellee’s
claims. Fla. Dep’t of Highway Safety & Motor Vehicles, Div. of Highway
1
According to the summary judgment order, appellants “owed a common
law duty to render aid to the injured victim of an accident that they are or
should be aware of when they undertake to respond to and investigate the
accident.”
2
Patrol v. Kropff, 491 So. 2d 1252, 1255 (Fla. 3d DCA 1986) (“A governmental
entity is not immune from liability where, as in the instant case, a member of
its police force fails to use reasonable care in the performance of an
operational level function.”); see Commercial Carrier Corp. v. Indian River
Cnty., 371 So. 2d 1010, 1021 (Fla. 1979) (“Planning level functions are
generally interpreted to be those requiring basic policy decisions, while
operational level functions are those that implement policy.”).
Affirmed in part, dismissed in part.
3