
    RODRIGUEZ v MOSCOSO, et al.
    Case No. 88-46931 CA 20
    Eleventh Judicial Circuit, Dade County
    July 6, 1989
   OPINION OF THE COURT

FRED MORENO, Circuit Judge.

ORDER DISMISSING DEFENDANT MOSCOSO’S COUNTERCLAIM

THIS CAUSE came before the Court on the Plaintiffs Motion to Dismiss Defendant’s Counterclaim and Third Party Complaint.

The Court, having heard counsels’ arguments, GRANTS the Plaintiffs Motion to Dismiss.

Pursuant to Florida Statute § 768.28(9)(a), a state employee acting within the scope of his employment may not be held liable in tort for any injury or damage suffered as a result of any act performed in the scope of his employment.

Further, in Rabidian v State, 409 So.2d 1045 (Fla. 1982), the Supreme Court of Florida held that an employee’s conduct is within the scope of his employment if it is the kind he is employed to perform, and any waiver of sovereign immunity must be clear and unequivocal.

As stated in the defendant’s own counterclaim, plaintiff Andres Rodriguez was acting within the scope of his employment in the capacity of a police officer for the City of Hialeah Police Department at the time of the alleged accident.

WHEREFORE, it is hereby ORDERED and ADJUDGED that the Plaintiff’s Motion to Dismiss the Counterclaim is GRANTED.

DONE and ORDERED this 6th day of July, 1989.  