ARNOLD J. HARRISON, INDIVIDUALLY AND ON BEHALF OF R.H.

v.

DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF STATE GROUP INSURANCE, BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC., ET AL.

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

No. 1D2023-1674

ARNOLD J. HARRISON, individually and on behalf of R.H. and all those similarly situated,

Appellant,

v. DEPARTMENT OF MANAGEMENT

SERVICES, DIVISION OF STATE

GROUP INSURANCE, an agency of the State of Florida, and BLUE

CROSS AND BLUE SHIELD OF

FLORIDA, INC., a Florida not for profit corporation,

Appellees.

On appeal from the Circuit Court for Leon County.

J. Lee Marsh, Judge.

May 21, 2025

PER CURIAM.

AFFIRMED.

BILBREY and KELSEY, JJ., concur; TANENBAUM, J., concurs with opinion.

2

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or

9.331.

TANENBAUM, J., concurring. The appellant purported to sue the Department of Management Services as part of his underlying second amended complaint against Florida Blue. Yet, as the appellant admitted at oral argument, he did not assert a single count stating a cause of action or prayer for relief against the department. The appellant, instead, sued the department almost literally as a “nominal” party—the department was a “defendant” only because that is how the complaint’s caption labeled it, the complaint itself simply stating that the appellant was suing the department as an “indispensable party,” yet providing no details as to why or how this might be.

The trial court dismissed the appellant’s third effort to sue the department, and we review that order here. Cataloged below are the most salient reasons for affirming. I For persons or entities to be considered “defendants” in a civil suit, there must be claims for relief sought against them. See § 45.011, Fla. Stat. (defining “defendant,” in the context of civil suits, as “any party against whom [affirmative] relief . . . is sought”); cf. Fla. R. Civ. P. 1.110(b), (c) (requiring a pleading to provide a “short and plain statement of the ultimate facts” supporting entitlement to relief and “a demand for judgment for [that] relief”; and requiring a pleader to answer with a “short and plain” statement of its defenses to each claim asserted” (emphasis supplied)); Fla. R. Civ. P. 1.140(b) (requiring that “[e]very defense in law or fact to a claim for relief in a pleading must be asserted in the responsive pleading”). Because the appellant did not seek any relief against the department, it was not even a party in the underlying action.

L. REV. 731 (Sept. 1941) (discussing history and nature of joinder theory developed in equity jurisprudence); Geoffrey C. Hazard, Jr., Indispensable Party: The Historical Origin of a Procedural Phantom, 61 COLUM.

L. REV.

1254 (Nov. 1961) (same); Howard P. Fink, Indispensable Parties and the Proposed Amendment to Federal Rule 19, 74 YALE L.J. 403 (Jan. 1965) (same). The appellant’s suit asserted only typical common-law causes of action (e.g., breach of contract, negligence, breach of fiduciary duty), so even if the “nominal party” approach he tried were otherwise permissible under the civil rules, there

III

The appellant’s suit essentially challenges health insurance coverage determinations for mental health patients under Florida’s group insurance program. This program exists only because the Legislature said so—an effort to “offer a comprehensive package of health insurance . . . to allow state employees the option to choose benefit plans which best suit their individual needs.” § 110.123(3)(b), Fla. Stat. It is a set of “public rights”—“rights pertaining to claims brought by or against” the government. Granfinanciera, S.A v. Nordberg, 492 U.S. 33, 68 (1989) (Scalia, J., concurring); see also Stern v. Marshall, 564 U.S. 462, 490–91 (2011) (noting that a right is “‘public’ rather than private” if it “is integrally related to particular [government] action”); Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 584 U.S. 325, 334 (2018) (characterizing matters of public rights as those that “arise between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments”).

The state government, as sovereign, ordinarily is immune from suit, so when the Legislature waives immunity to allow adjudication of public-right claims against it, “[t]he mode of determining matters of this class is completely within [legislative] control,” meaning the Legislature can “reserve to itself the power to decide, may delegate that power to executive officers, or may commit it to judicial tribunals.” Bakelite Corp., 279 U.S. 438, 451 (1929); see also McElrath v. United States, 102 U.S. 426, 440 (1880) (observing how a legislature, in consenting to suit, can attach conditions of its choosing, so it “can declare in what court [the government] may be sued” and “restrict the jurisdiction of the court to a consideration of only certain classes of claims against” it); Bakelite Corp., 279 U.S. at 452 (explaining that a legislature may condition its consent to suit on the claims being “brought in a legislative court specially created to consider them”); Oil States Energy Servs., LLC, 584 U.S. at 334 (noting the “significant latitude” given by precedent to the legislative power “to assign adjudication of public rights to entities other than [] courts” vested with sovereign judicial power).

Regardless of whether the appellant pursued remedies administratively, he still cannot sue the department in the judicial branch for benefits under the group insurance program unless both the Legislature consented to that suit and the appellant has complied with any conditions tied to that consent. See Art. X, § 13, Fla. Const. (authorizing the Legislature to make provision “for bringing suit against the state as to all liabilities now existing or hereafter originating”).

To be sure, the Legislature enacted a general waiver of sovereign immunity for suits in tort, but that waiver is limited to those suits that could be brought against “a private person.” § 768.28(1), Fla. Stat.; cf. Henderson v. Bowden, 737 So. 2d 532, 535 (Fla. 1999) (explaining that “there can be no governmental liability unless a common law or statutory duty of care existed that would have been applicable to an individual under similar circumstances”).

There is no such private-person analog here. The department, by statute, retains full authority to make “[f]inal decisions concerning enrollment, the existence of coverage, or covered benefits under the state group insurance program,” authority that cannot “be delegated or deemed to have been delegated by the department.” § 110.123(5), Fla. Stat. In other words, the Legislature has given the department, the power of judgment and discretion to determine claims as part of its overall administration of the program. The general immunity waiver, then, cannot apply to a suit like the appellant’s—challenging a determination made under section 110.123(5)’s authority. See Pollock v. Fla. Dep’t of High. Patrol, 882 So. 2d 928, 933 (Fla. 2004) (noting how “basic judgmental or discretionary governmental functions are immune from legal action,” notwithstanding section 768.28, Florida Statutes).

There otherwise being no specific consent to suit pertaining to the department’s coverage and claim determinations, the appellant must pursue his claim against the department using the one pathway generally designated by the Legislature to contest the

Michael Fox Orr, Kevin B. Cook, and Kathleen H. Crowley of Orr | Cook, Jacksonville, for Appellant.

Jason Gonzalez, Taylor Greene, and Vivekka Suppiah of Lawson Huck Gonzalez, PLLC, Tallahassee; Timothy J. Conner, Jennifer

A. Mansfield, and Laura B. Renstrom of Holland & Knight LLP,

Jacksonville, for Appellees.