
    HILLSBOROUGH COUNTY HOSPITAL AND WELFARE BOARD d/b/a Tampa General Hospital, Appellant, v. Lottie TAYLOR, as guardian of the person and property of Irma Jean Payne, incompetent, Appellee.
    No. 87-2350.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 1988.
    On Motion for Rehearing and Rehearing En Banc Dec. 14, 1988.
    
      Michael N. Brown of Allen, Dell, Frank & Trinkle, and Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellant.
    Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, and Wagner, Cunningham, Vaughan & McLaughlin, P.A., Tampa, for appellee.
    Robert C. McCurdy, Fort Myers, for Amici Curiae Hosp. Bd. of Directors of Lee County, d/b/a Lee Memorial Hosp. and Florida Hosp. Ass’n.
   HALL, Judge.

The appellant challenges the trial court’s order which finds chapter 80-510, Laws of Florida, unconstitutional and awards the appellee $2,500,000 in damages.

The appellee, as guardian of the person and property of Irma Jean Payne, brought suit against the Hillsborough County Hospital and Welfare Board, d/b/a Tampa General Hospital. Payne became comatose as a result of anesthesia complications during an operation at Tampa General Hospital. The hospital admitted liability and agreed that Payne incurred damages in the amount of $2,500,000 because of the hospital’s negligence, thereby resolving all factual issues. However, the hospital asserted that its liability was limited to $50,000 pursuant to section 768.28(5), Florida Statutes (1980 Supp.). Section 768.28(5), which partially waives sovereign immunity of governmental agencies, provides:

The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period prior to judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $50,000 or any claim or judgment, or portions thereof, which when totalled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $100,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $50,000 or $100,000, as the case may be, and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature. The limitations of liability set forth in this subsection shall apply to the state and its agencies and subdivisions whether or not the state or its agencies or subdivisions possessed sovereign immunity prior to July 1, 1974.

The hospital points out that the Florida Supreme Court in Cauley v. City of Jacksonville, 403 So.2d 379 (Fla.1981), upheld the constitutionality of section 768.28(5), and that in Eldred v. North Broward Hospital District, 498 So.2d 911 (Fla.1986), the court held that a hospital district created by special act of the legislature was a governmental entity for purposes of section 768.28. Therefore, the hospital argues that under case law and general statutory law it is a governmental entity entitled to the limitation of liability provisions of section 768.28(5).

In 1980, the legislature abolished the Hillsborough County Hospital and Welfare Board in chapter 80-509 and transferred all of the powers and functions of the Board to the newly created Hillsborough County Hospital Authority by special act, chapter 80-510, Laws of Florida. The appellee challenged the constitutionality of chapter 80-510 because the title to the act failed, to make any reference to the hospital’s sovereign immunity, in violation of article III, section 6 of the Florida Constitution.

Alternatively, the appellee argued that, even if the act was constitutional, the hospital waived sovereign immunity under section 286.28, Florida Statutes (1979), by creating a trust fund in compliance with section 768.54(2)(c), Florida Statutes (1980 Supp.).

In chapter 77-86, Laws of Florida, the legislature authorized the state and its agencies to become self-insured, or to purchase liability insurance, for any claim, judgment, and claims bill they might be liable to pay pursuant to section 768.28. See § 768.28(14), Fla.Stat. (1977). Section 768.54 required all hospitals to contribute to the Florida Patient’s Compensation Fund or to establish an alternative form of self-insurance. Rather than contributing to the fund, the Hillsborough County Hospital and Welfare Board established an escrow account known as the Medical Malpractice Self-Insurance Trust Fund in the total amount of $4,250,000. Tampa General Hospital was allotted $2,500,000 of the trust fund.

The appellee argued that she was entitled to $2,500,000 (the amount of stipulated damages) from the trust fund since the fund was set up to pay malpractice claims such as hers. She argued that the trust fund was actually liability insurance, as described in section 286.28.

The appellee filed a motion for court determination of all legal questions. A hearing on the motion was conducted on June 28,1987. The trial court held that the appellee was entitled to the entire $2,500,-000 from the trust fund since the establishment of the fund constituted a waiver of sovereign immunity. Additionally, the trial court found that chapter 80-510, Laws of Florida, was unconstitutional on the ground that the “primary purpose” of the act was “to limit the Authority’s liability under the doctrine of sovereign immunity” and that the act “failed to make any reference to the foregoing attempt to limit its liability in its title” in violation of article III, section 6 of the Florida Constitution.

In this appeal, Tampa General Hospital argues that the primary purpose of chapter 80-510 was to restructure the hospital and welfare functions in Hillsborough County, not to create sovereign immunity for the Hillsborough County Hospital Authority. It further argues that article X, section 13 of the Florida Constitution prohibits waiver of sovereign immunity except by general law and that 80-510 was a special law without the power to create or waive sovereign immunity. Therefore, it argues, since the act could not create sovereign immunity, such immunity could not be the primary purpose of the act and need not have been mentioned in the title. Further, the hospital argues that it had already acquired sovereign immunity by general act in 1977, under chapter 77-86, Laws of Florida, and thus, the language in chapter 80-510 pertaining to sovereign immunity added nothing to its powers.

We agree with the hospital’s arguments on this point. When the legislature amended section 768.28 by general law in chapter 77-86, the legislature expressly created sovereign immunity for all governmental entities, even if they possessed no immunity prior to July 1, 1974. The hospital was one of those governmental entities that was cloaked with sovereign immunity by chapter 77-86, and thereafter the public was placed on notice as to its sovereign immunity. Since article X, section 13 of the Florida Constitution prohibits waiver of sovereign immunity except by the passage of a general law of the legislature, any waiver of sovereign immunity or attempts to create sovereign immunity by special act would be null and void and any provisions of chapter 80-510 as to sovereign immunity would be surplusage. Therefore, the primary purpose of this act was not to create sovereign immunity, but to restructure the hospital and welfare functions of Hillsborough County. Accordingly, we reverse the trial court’s finding that chapter 80-510, Laws of Florida, is unconstitutional.

We find no merit in the other points raised by the hospital.

We also agree with the trial court’s finding that the Medical Malpractice Self-Insurance Trust Fund created by the hospital is insurance or its equivalent, as is covered by section 286.28, Florida Statutes (1979).

As the supreme court stated in Avallone v. Board of County Commissioners, 493 So.2d 1002, 1004 (Fla.1986): “Political subdivisions are authorized to purchase liability insurance pursuant to the conditions of sections 286.28(1) and 768.28(10)_ When liability insurance is purchased, there will be no assertion of sovereign immunity, up to the coverage limits of the policy, regardless of whether such defense would be otherwise valid. § 286.28(2).”

The trust fund in this case complies with the provision of section 768.54(2)(c), Florida Statutes (1980 Supp.), which allowed for the creation of a fund to cover malpractice claims. The fund is the equivalent of the purchase of insurance. The trial court was correct in finding that the hospital waived its sovereign immunity up to $2,500,000, the-amount allotted to Tampa General Hospital in the trust fund, and in awarding that amount to the appellee.

We, therefore, affirm that part of the judgment awarding the appellee $2,500,000, but amend the trial court’s order to allow execution to issue only against the proceeds of the Hillsborough County Hospital and Welfare Board Medical Malpractice Self-Insurance Trust Fund.

Reversed in part and affirmed in part.

RYDER, A.C.J., concur.

PARKER, J., dissenting with opinion.

PARKER, Judge,

Dissenting.

I respectfully dissent.

While I agree with the majority that chapter 80-510, Laws of Florida, is constitutional, I disagree with their conclusion that the creation of the Medical Malpractice Self-Insurance Trust Fund (the trust fund) is the equivalent of the purchase of insurance. Section 286.28, Florida Statutes (1979) (now repealed), which is relied upon by the trial court and the majority, utilized terms and phrases including “pay the premiums,” “insurance contract,” and “insurer.” The trust fund established by the appellant has no premiums; there is no insurance contract; there is no insurer. I, therefore, cannot conclude that the trust fund is the equivalent of insurance. Insurance is a contract by which a party pays a premium and shifts a specified risk to another party. If appellant had paid a premium to an insurance company to procure liability coverage for á negligent act, pursuant to section 286.28, its sovereign immunity would have been waived up to the amount of insurance coverage. However, where, as here, appellant had fully funded the trust fund and retained the risk, this, in my opinion, was not the equivalent of insurance.

Although not directly applicable to this appeal, it is instructive to note that section 624.02, Florida Statutes (1979) defined the term “insurance” as a “contract whereby one undertakes to indemnify another or pay or allow a specified amount or a determinable benefit upon determinable contingencies.” When the appellant placed some of its own assets in an escrow account, there was no contract whereby any party was indemnifying appellant. The trust fund simply does not comply with this definition of insurance.

The issue presented here appears to be one of first impression in Florida. A court, however, has addressed the analogous issue of whether self-insurance should be considered “other collectible insurance” for the purpose of an insurance contract’s excess coverage provision. In State Farm Mut Auto. Ins. Co. v. Universal Atlas Cement Co., 406 So.2d 1184 (Fla. 1st DCA 1981), petition for review denied, 413 So.2d 877 (Fla.1982) the court found that self-insurance, even when administered by a third party, does not fall within the definition of “other collectible insurance” as used for a policy’s excess coverage. Although there is a split of authority, the tendency is for courts not to regard self-insurance as “insurance.” 8A J. Appleman, Insurance Law and Practice § 4912 (rev. ed. 1981); see Am. Family Mut. Ins. Co. v. Missouri Power & Light Co., 517 S.W.2d 110 (Mo.1974); United Nat’l Ins. Co. v. Philadelphia Gas Works, 221 Pa.Super. 161, 289 A.2d 179 (1972); Universal Underwriters Ins. Co. v. Marriott Homes, Inc., 286 Ala. 231, 238 So.2d 730 (1970); and Allstate Ins. Co. v. Zellars, 452 S.W.2d 539 (Tex.Civ.App.), modified on other grounds, 462 S.W.2d 550 (Tex.1970). But see Aetna Casualty & Surety Co. v. Market Ins. Co., 296 So.2d 555 (Fla. 3d DCA 1974); Southern Home Ins. Co. v. Burdette’s Leasing Serv., Inc., 268 S.C. 472, 234 S.E.2d 870 (1977).

Further, the Supreme Court of South Dakota responded to its governor’s request for an opinion on the exact issue presented in this appeal. In re Request for Opinion of the Supreme Court Relative to the Constitutionality of SDCL 21-32-17 and Construction of SDCL 21-32-16, 379 N.W.2d 822 (S.D.1985). South Dakota law authorized the state to purchase liability insurance (similar to sections 286.28(1) and 768.28(13)). Another South Dakota law provided that sovereign immunity would be waived to the extent that liability insurance was purchased (similar to section 286.28(2)). The governor inquired whether the government’s establishment of a fund for the payment of claims would waive sovereign immunity. The supreme court opined that sovereign immunity would not be waived by the establishment of the self-insurance fund.

American Nurses Association v. Passaic General Hospital, 192 N.J.Super. 486, 471 A.2d 66 (Super.Ct.App.Div.), reversed on other grounds, 98 N.J. 83, 484 A.2d 670 (1984), although factually different, also supports the conclusion that self-insurance is not insurance. The court stated:

We start from the premise that so-called self-insurance is not insurance at all. It is the antithesis of insurance. The essence of an insurance contract is the shifting of the risk of loss from the insured to the insurer. The essence of self-insurance, a term of colloquial currency rather than of precise legal meaning, is the retention of risk of loss by the one upon whom it is directly imposed by law or contract.

192 N.J.Super. at 491, 471 A.2d at 69. There, however, is authority contrary to my position. See Martin v. Georgia Dep’t of Pub. Safety, 257 Ga. 300, 357 S.E.2d 569 (1987) (If a state establishes a self-insurance fund, the state waives sovereign immunity and the self-insurance fund stands on the same footing as proceeds available from a policy issued by a private carrier.)

Although there appears to be no Florida cases directly on point, it is my opinion that the better-reasoned view is that the trust fund is not insurance as contemplated by section 286.28, Florida Statutes. My position, therefore, is that the appellant is only liable for $50,000, pursuant to section 768.-28(5), Florida Statutes (1980 Supp.).

ON MOTION FOR REHEARING AND REHEARING EN BANC

HALL, Judge.

The appellant having filed a motion for rehearing and motion for rehearing en banc of this court’s opinion filed August 10, 1988, the motion for rehearing en banc is denied and the motion for rehearing is denied except to the extent that we agree to certify the following questions to the Florida Supreme Court as being of great public importance:

1. WHETHER THE ESTABLISHMENT OF A SELF-INSURANCE TRUST FUND OR ESCROW ACCOUNT BY THE GOVERNMENTAL HOSPITAL IS EQUIVALENT TO THE PURCHASE OF INSURANCE?
2. WHETHER A GOVERNMENTAL HOSPITAL WHICH HAS ESTABLISHED A SELF-INSURANCE TRUST FUND WAIVES SOVEREIGN IMMUNITY AGAINST CLAIMS UP TO THE AMOUNT OF THE FUND UNDER SECTION 286.-28, FLORIDA STATUTES (1979)?

RYDER, A.C.J., concurs.

PARKER, J., concurs in part and dissents in part.

PARKER, Judge,

concurring in part and dissenting in part.

I concur with the certification of the questions to the Florida Supreme Court as being of great public importance. Otherwise, I would grant the motion for rehearing for the reasons set forth in my dissent of the original decision of the panel filed August 10, 1988. I believe the majority misapprehended the law as it relates to the effect that the voluntary establishment of a self-insurance trust fund has on sovereign immunity. Further, I would grant the motion for rehearing en banc because this case, in my opinion, is of exceptional importance. See Fla.R.App.P. 9.331(a). 
      
      . The thrust of section 286.28 is relatively simple. Political subdivisions are authorized to spend public money for the purchase of liability insurance. However, if such insurance is purchased and is within the purview of the statute, the contract shall prohibit the assertion of sovereign immunity to the extent of the coverage, even if it is otherwise a valid defense.
      
        Avallone v. Board of County Commissioners, 493 So.2d 1002, 1004 (Fla.1986).
     
      
      . Section 768.54(2)(c) provides:
      Any hospital that can meet one of the following provisions demonstrating financial responsibility to pay claims and costs ancillary thereto arising out of the rendering of or the failure to render medical care or services and for bodily injury or property damages to the person or property of any patient arising out of the insured’s activities in this state shall not be required to participate in the fund:
      
        
      
      2. Establish an escrow account in an amount equivalent to $10,000 per claim for each hospital bed in said hospital, not to exceed a $2,500,000 annual aggregate, to the satisfaction of the Department of Health and Rehabilitative Services.
     
      
      . Article X, section 13 provides: “Suits against the State. Provision may be made by general law for bringing suit against the state as to all liabilities now existing or hereafter originating.”
     