       Third District Court of Appeal
                               State of Florida

                          Opinion filed May 27, 2015.

                               ________________

                                No. 3D14-2122
                          Lower Tribunal No. 00-17596
                              ________________


University of Miami d/b/a University of Miami School of Medicine,
                                   Petitioner,

                                       vs.

Michael A. Ruiz, by and through his Parents and Legal Guardians,
     and Juanita Ruiz and Miguel Angel Ruiz, individually,
                                  Respondents.

     On Petition for Writ of Certiorari to the Circuit Court for Miami-Dade
County, Jerald Bagley, Judge.

       Fowler White Burnett P.A., and Marc J. Schleier and Christopher E. Knight,
for petitioner.

      Lincoln J. Connolly, for respondents.

   On Motion for Clarification and Certification to the Florida Supreme Court


Before SUAREZ, ROTHENBERG, and LOGUE, J.

      ROTHENBERG, J.
         We deny the University of Miami’s motion for certification to the Florida

Supreme Court, but we grant the University of Miami’s motion for clarification,

withdraw our opinion issued February 11, 2015, and substitute the following in its

stead.

         The University of Miami, doing business as The University of Miami

School of Medicine (“UM”), petitions this Court for certiorari relief from the trial

court’s order denying its motion for summary judgment on the plaintiffs’ claims

for medical malpractice based on UM’s contention that it is entitled to immunity

from suit under Florida’s Birth-Related Neurological Injury Act, § 766.301, Fla.

Stat., et seq. (1998) (“NICA”). We hold that the trial court departed from the

essential requirements of the law by denying summary judgment as to the portion

of the plaintiffs’ claims alleging direct liability for medical malpractice, but that it

did not depart from the essential requirements of the law by denying UM’s motion

for summary judgment as to the portion of the malpractice claim based on UM’s

vicarious liability for its employees. We accordingly grant in part and deny in part

UM’s petition.

                FACTUAL AND PROCEDURAL BACKGROUND

         Michael A. Ruiz (“Michael”) was born on August 14, 1998, at Jackson

North Maternity Center (“Jackson”), a hospital owned by the Public Health Trust

of Miami-Dade County (“the PHT”). Two doctors from UM’s OB/GYN practice,



                                           2
Dr. Paul Norris and Dr. Bel Barker, provided obstetrical services to Michael’s

mother, Juanita Ruiz, during the birth. Tragically, Michael suffered a serious brain

injury caused by oxygen deprivation during the course of labor and delivery.

      Michael’s parents, Miguel and Juanita Ruiz, filed a complaint on behalf of

Michael and also on their own behalf (collectively, “the plaintiffs”) against UM

and the PHT for medical malpractice, alleging that Michael’s injuries are a result

of negligent medical care provided during the labor and delivery. The plaintiffs

asserted that UM and the PHT were directly negligent and also pleaded various

theories of vicarious liability based on the actions of their employees, Drs. Norris

and Barker.1 The plaintiffs have not asserted any causes of action against the

doctors themselves.

      After the plaintiffs filed suit, the case was abated to allow an administrative

law judge (“ALJ”) to determine whether the injury was compensable under NICA.

The plaintiffs filed a claim with the Division of Administrative Hearings

(“DOAH”) to receive compensation from the Florida Birth-Related Neurological

Injury Association (“the Association”), which was established to provide no-fault

compensation to claimants meeting the statutory requirements of NICA. See §

766.303, Fla. Stat. (1998).    The ALJ determined that Michael’s injury was

compensable under NICA and approved the statute’s maximum award of $100,000

1 As is true of many physicians working at Jackson Memorial, the doctors are at
least arguably employed both publicly by the PHT and privately by UM.

                                         3
in addition to attorney’s fees and future medical care costs. See § 766.31, Fla. Stat.

(1998). The ALJ also specifically found that the PHT had provided the plaintiffs

with notice that it participated in the NICA plan, as required by section 766.316 of

the Florida Statutes (1998) (“NICA’s Notice Provision”), but that Drs. Norris and

Barker had not complied with the notice requirements. The ALJ made no finding

whether UM itself had given or was required to give notice of NICA participation

under the statute.2

      UM timely appealed the ALJ’s finding that its doctors had not given the

required notice of NICA participation. This Court, however, affirmed the ALJ’s

order. Univ. of Miami v. Ruiz, 916 So. 2d 865 (Fla. 3d DCA 2005). That appeal

essentially ended the administrative portion of the proceedings and cemented the

plaintiffs’ ability to receive NICA benefits from the Association. However, the

plaintiffs have neither accepted nor declined the award to this date, opting instead

to hold in abeyance their decision whether to accept NICA benefits as their

exclusive remedy while pursuing their civil suit against UM.

      In April 2011, UM filed a motion for summary final judgment claiming

immunity from suit under section 766.303 of NICA (“NICA’s Immunity

2 The ALJ has “exclusive jurisdiction to determine whether a claim filed under
[NICA] is compensable.” § 766.304, Fla. Stat. (1998). The ALJ also has
jurisdiction to make findings whether a participating physician or hospital has
given the statutorily required notice of NICA participation to the patient. Fla.
Birth-Related Neurological Injury Comp. Ass’n v. Fla. Div. of Admin. Hearings,
948 So. 2d 705, 717 (Fla. 2007).

                                          4
Provision”), which mandates compensation from the Association as the exclusive

remedy for injuries found to be compensable under NICA. Further, UM argued

that because it is not a participating hospital or doctor, it was not required to give

notice under section 766.316 and should therefore be immune from suit. The

plaintiffs responded by arguing that Drs. Norris and Barker are employed by UM

and, because Drs. Norris and Barker failed to give notice, UM is not immune from

suit.   The trial court denied UM’s motion for summary judgment without

explanation on August 5, 2014. UM timely filed this petition for writ of certiorari.

                                    ANALYSIS

        This certiorari petition presents a narrow legal issue. We must determine if

and when an entity that is neither a hospital nor a physician participating in the

NICA plan may invoke NICA’s immunity from suit when its employees are

participating doctors who have waived their personal NICA immunity by failing to

comply with NICA’s Notice Provision. We hold that NICA immunity applies to

such entities when the allegations of the complaint indicate that they were “directly

involved” in the medical care provided during or immediately after labor and

delivery, but that NICA immunity does not apply when the allegations are based

on such entities’ vicarious liability for the medical malpractice of their employees

when those employees have failed to comply with NICA’s Notice Provision.

Because the plaintiffs have alleged both direct liability against UM and vicarious



                                          5
liability based on the actions of Drs. Norris and Barker, we grant UM’s petition in

part and deny UM’s petition in part.3

    I.      Jurisdictional Standard for Certiorari Relief

         Because this issue is before us on UM’s petition for certiorari, UM must

establish that the trial court’s order denying summary judgment departed from the

essential requirements of the law in a way that will cause irreparable harm in order

to obtain relief. Citizens Prop. Ins. Corp. v. San Perdido Ass’n, 104 So. 3d 344,

351 (Fla. 2012). As a jurisdictional threshold, we must first address whether the

trial court’s denial of UM’s motion for summary judgment based on its asserted

immunity under NICA’s Immunity Provision, if error, is the type of error that

would cause irreparable harm to UM not subject to redress on plenary appeal. Id.

         A party typically cannot invoke an appellate court’s certiorari jurisdiction

based on the denial of a motion to dismiss or a motion for summary judgment

because such orders can generally be remedied by a final appeal. See San Perdido,

104 So. 3d at 351-52. However, when the motion for summary judgment hinges

on the application of a complete statutory immunity from suit—in contrast to mere

3 We note that the Florida Supreme Court declined to opine on a very similar issue
because it had not been fully briefed in Florida Birth-Related Neurological Injury
Comp. Ass’n v. Dep’t of Admin. Hearings, 29 So. 3d 992, 999-1000 (Fla. 2010).
Instead the Florida Supreme Court remanded the matter to the Second District
Court of Appeal, id., which, in turn, remanded the matter to the ALJ handling the
case for further findings. All Children’s Hosp., Inc. v. Dep’t of Admin. Hearings,
55 So. 3d 670, 672-73 (Fla. 2d DCA 2011). We appear to be the first Florida
appellate court to render an opinion on this particular issue.

                                           6
immunity from liability—requiring a party entitled to that immunity to continue

litigating the suit constitutes irreparable harm in and of itself. See id. at 351-55

(explaining the distinctions between immunity from liability and immunity from

suit).

         Every court that has addressed this issue has construed NICA’s Immunity

Provision to grant immunity from suit, not immunity from liability. Pediatrix Med.

Grp. of Fla., Inc. v. Falconer, 31 So. 3d 310, 311 (Fla. 4th DCA 2010); Orlando

Reg’l Healthcare Sys., Inc. v. Alexander, 932 So. 2d 598, 600 (Fla. 5th DCA

2006). We therefore have certiorari jurisdiction over this case. We also hold that

the trial court departed from the essential requirements of the law by denying

UM’s claim of immunity from suit on the direct liability portion of the plaintiffs’

medical malpractice claim, but that it did not err in denying the same to the

plaintiffs’ claims based on vicarious liability through respondeat superior.

   II.     An Overview of NICA and Controlling Law

         In determining whether the trial court departed from the essential

requirements of the law by denying UM’s claim for NICA immunity, we have

carefully examined NICA, the case law interpreting NICA’s provisions, and the

common law doctrines of vicarious liability and respondeat superior.

         A. NICA’s Immunity Provision




                                          7
      NICA was passed and the Association was created “to provide a no-fault

alternative remedy for a ‘limited class of catastrophic [birth-related neurological]

injuries that result in unusually high costs for custodial care and rehabilitation.’”

Ruiz, 916 So. 2d at 868 (alteration in original) (quoting § 766.301(2), Fla. Stat.

(1998)). In passing NICA, the legislature sought to shelter medical personnel

providing obstetrical services from the increasingly high costs of medical

malpractice insurance, particularly given the likelihood of suit and the magnitude

of potential damages when a baby is delivered with a neurological injury. §

766.301, Fla. Stat. (1998). To effectuate this relief, NICA provides an exclusive

set of rights and remedies for claimants with injuries meeting the NICA definition4

and expressly prohibits claimants from commencing civil medical negligence

actions against “any person or entity directly involved with the labor, delivery,

or immediate postdelivery resuscitation during which such injury occurs,

arising out of or related to a medical negligence claim with respect to such

injury.”   § 766.303(2) (emphasis added).5       Thus, assuming that an injury is

4 These rights and remedies allow a claimant to file a claim in the DOAH for an
ALJ to determine whether the claim is compensable. If the claim is found to be
compensable under the requirements and definitions established throughout NICA,
the ALJ must award actual expenses for medically necessary and reasonable
medical care and related costs for the child’s lifetime, § 766.31(1)(a), a payment to
the child’s parents of up to $100,000 if living or $10,000 if deceased, §
766.31(1)(b), and reasonable expenses incurred in filing the NICA claim, including
attorney’s fees, § 766.31(1)(c). These remedies are provided regardless of fault by
any party.
5 Section 766.303(2) provides an exception from this immunity “where there is



                                         8
compensable under NICA, the sine qua non for a defendant to invoke NICA’s

Immunity Provision is direct involvement in the labor and delivery.6 Every

person or entity directly involved in the labor and delivery is presumed immune

from civil suit for medical negligence.

      B. NICA’s Notice Provision

      NICA’s Notice Provision requires participating physicians and hospitals

with participating physicians to give patients notice that the doctors and/or

hospitals participate in the NICA plan so the patients are aware they may be

waiving their right to civil suit in the event of a birth-related neurological injury.

NICA’s Notice Provision provides in full:

      766.316. Notice to obstetrical patients of participation in the plan
             Each hospital with a participating physician on its staff and
      each participating physician, other than residents, assistant residents,
      and interns deemed to be participating physicians under s.
      766.314(4)(c), under the Florida Birth-Related Neurological Injury
      Compensation Plan shall provide notice to the obstetrical patients as
      to the limited no-fault alternative for birth-related neurological
      injuries. Such notice shall be provided on forms furnished by the
      association and shall include a clear and concise explanation of a
      patient’s rights and limitations under the plan. The hospital or the
      participating physician may elect to have the patient sign a form
      acknowledging receipt of the notice form. Signature of the patient
      acknowledging receipt of the notice form raises a rebuttable

clear and convincing evidence of bad faith or malicious purpose or willful and
wanton disregard of human rights, safety, or property,” but no such allegations are
involved in the present dispute.
6 The statute grants immunity to anyone “directly involved with the labor, delivery,

or immediate postdelivery resuscitation during which such injury occurs,” but we
will refer to this as “labor and delivery” for ease of reference.

                                          9
      presumption that the notice requirements of this section have been
      met. Notice need not be given to a patient when the patient has an
      emergency medical condition as defined in s. 395.002(8)(b) or when
      notice is not practicable.

§ 766.316.

      Although NICA’s Notice Provision makes no reference to NICA’s

Immunity Provision or discusses waiver of immunity in the statute itself, it is now

well-established Florida law that a party who is required to give notice under

NICA’s Notice Provision and fails to do so waives its right to assert the exclusivity

of remedies defense provided in NICA’s Immunity Provision. Galen of Fla., Inc.

v. Braniff, 696 So. 2d 308, 309-10 (Fla. 1997). Further, due to the inclusion of the

conjunctive word “and” in section 766.316, the Florida Supreme Court has

interpreted NICA’s Notice Provision to require independent notice from both

participating physicians and participating hospitals—notice by one does not satisfy

the notice requirement for the other. Fla. Birth-Related Neurological Injury Comp.

Ass’n v. Dep’t of Admin. Hearings, 29 So. 3d 992, 998 (Fla. 2010) (“NICA v.

DOAH”).

      The Florida Supreme Court also held in NICA v. DOAH that the waiver of

immunity for failure to comply with NICA’s Notice Provision is severable as to

each entity required to give notice:

      [W]e hold that [NICA’s] notice provision is severable with regard to
      defendant liability. Consequently, under our holding today, if either
      the participating physician or the hospital with participating


                                         10
      physicians on its staff fails to give notice, then the claimant can either
      (1) accept NICA remedies and forgo any civil suit against any other
      person or entity involved in the labor or delivery, or (2) pursue a civil
      suit only against the person or entity who failed to give notice and
      forgo any remedies under NICA.

Id. at 999 (footnote omitted).

      Thus, when there is compliance with NICA’s Notice Provision by some but

not all of the NICA participants, the claimant is faced with the choice of accepting

the NICA benefits to the exclusion of any and all civil remedies he or she may

have against any entities directly involved in the delivery, or the claimant can

eschew the NICA benefits and take his or her chances in a civil suit against the

party or parties who have waived NICA immunity by failing to comply with the

NICA Notice Provision.

      Because there appeared to be some confusion at oral argument regarding the

entitlement to immunity and the waiver of immunity due to the interplay of

NICA’s Immunity Provision and NICA’s Notice Provision, we take this

opportunity to clarify the issue. Giving a patient notice of NICA participation does

not entitle a party to immunity; rather, a party’s direct involvement in the labor

and delivery of a child who suffers a NICA-compensable injury entitles that party

to invoke NICA’s Immunity Provision. § 766.303(2). The only effect NICA’s

Notice provision has on a party’s immunity is that a party’s failure to give notice

when it is required to do so under NICA’s Notice Provision will constitute a



                                         11
waiver of the NICA immunity to which it would otherwise be entitled by virtue of

the party’s direct involvement in the labor and delivery. Because only hospitals

with participating physicians and participating physicians themselves are required

to give such notice, § 766.316, only those two categories of people could ever

waive NICA immunity when they are directly involved in the labor and delivery.

Every other person or entity directly involved in the labor and delivery is entitled

to immunity that cannot be waived regardless of any notice that is or is not

provided.

      C. The Doctrines of Vicarious Liability and Respondeat Superior

      The common law doctrine of respondeat superior provides that an employer

may be held liable for the actions of its employee if the employee was acting

within the scope of his employment when he committed the tortious act. Mercury

Motors Exp., Inc. v. Smith, 393 So. 2d 545, 549 (Fla. 1981). The historical

underpinnings of the doctrine of respondeat superior are to hold the master

responsible for the acts of his servant because the master alone is able to direct the

servant:

            The basis for the common-law liability of the master or
      principal for the conduct of the servant or agent is stated in the Latin
      maxim, “qui facit per alium, facit per se”—“he who acts through
      another, acts through himself.” This liability of the master or principal
      is sometimes referred to as transferred, vicarious, derivative or
      imputed liability. Where the relationship of master-servant or
      principal-agent exists, the doctrine is referred to as “respondeat
      superior.”


                                         12
1 Modern Tort Law: Liability and Litigation § 7:2 (2d ed.) (footnotes omitted).

      The doctrine of respondeat superior is well recognized in Florida law, and

our Supreme Court has held:

      An employer is vicariously liable for compensatory damages resulting
      from the negligent acts of employees committed within the scope of
      their employment even if the employer is without fault. This is based
      upon the long-recognized public policy that victims injured by the
      negligence of employees acting within the scope of their employment
      should be compensated even though it means placing vicarious
      liability on an innocent employer.

Mercury Motors, 393 So. 2d at 549. In such cases, the employer essentially stands

in the shoes of the negligent employee for whom it is responsible. See Am. Home

Assurance Co. v. Nat’l R.R. Passenger Corp., 908 So. 2d 459, 467-68 (Fla. 2005)

(“The vicariously liable party is liable only for the amount of liability apportioned

to the tortfeasor.”); Williams v. Hines, 86 So. 695, 697-98 (Fla. 1920) (“[T]he

employer is liable [for the negligent acts of an employee], not as if the act was

done by himself, but because of the doctrine of respondeat superior—the rule of

law which holds the master responsible for the negligent act of his servant,

committed while and servant is acting within the general scope of his employment

and engaged in his master’s business.”); see also Buford v. Williams, 88 So. 3d

540, 548 (La. Ct. App. 2012) (“An employer’s liability in respondeat superior

shares the nature of the employee’s act for which the employer is liable, because

for vicarious liability, the employer is standing in the shoes of the employee.”).


                                         13
       As well-established common law doctrines, vicarious liability and

respondeat superior apply to negligence claims for medical malpractice, even those

stemming from NICA-compensable injuries, unless NICA “unequivocally states

that it changes the common law, or is so repugnant to the common law that the two

cannot coexist.” Thornber v. City of Ft. Walton Beach, 568 So. 2d 914, 918 (Fla.

1990). There is no such provision in NICA, nor has any case interpreting NICA

determined that vicarious liability should not apply.

       Thus, assuming that any negligent acts occurred within the scope of the

employment, an employer will be held liable for the negligence of its employees to

the extent those claims rely on vicarious liability through the doctrine of

respondeat superior.

    III.   UM is immune for any direct involvement it had in the medical
           malpractice, but is subject to vicarious liability for its doctors

       With these legal principles in mind, we turn now to the facts of the case

before us. In the DOAH administrative proceedings, the ALJ found that the PHT

had complied with NICA’s Notice Provision but that the individual doctors, Drs.

Norris and Barker, had not.7 This Court affirmed those findings. Ruiz, 916 So. 2d

at 870. The doctors have thus indisputably waived their ability to claim NICA

immunity by failing to comply with NICA’s Notice Provision.


7 The PHT was removed from the litigation long ago, and its liability is not at issue
in this case.

                                         14
       The plaintiffs have filed suit against the doctors’ employer, UM, for medical

negligence. In their complaint, the plaintiffs allege medical negligence against

UM in a single count, in which they plead both that UM has direct liability for its

own seemingly direct acts or omissions giving rise to Michael’s injuries and also

that UM is vicariously liable for the acts or omissions of its agents or employees,

Drs. Norris and Barker, who were allegedly acting within the scope of their duties

as UM employees when the negligence occurred. Although these claims were

unartfully pled and should have been separated into two causes of action,8 we

address each claim separately because the analysis is distinct as to each theory of

liability.

       A. UM is immune for any direct acts of negligence

       To the extent the plaintiffs have pled direct liability against UM for actions

related to Michael’s birth, UM is entitled to immunity. As explained above,

NICA’s Immunity Provision applies to any person or entity directly involved in the

labor and delivery. § 766.303(2). The plaintiffs’ direct negligence claims against

UM allege that UM is directly responsible for actions related to the birth and

delivery of Michael. Because the plaintiffs have alleged that UM is “directly

involved” in the labor and delivery, and UM is clearly entitled to immunity under


8 At oral argument, counsel for the plaintiffs admitted that the complaint was not
pled as precisely as it could have been, but he stated that the plaintiffs had always
intended to prove their claims primarily through vicarious liability.

                                         15
the terms of NICA’s Immunity Provision under the plaintiffs’ “directly involved”

theory, the trial court departed from the essential requirements of the law by

denying UM immunity from suit for any alleged direct liability.

      As previously stated, the only way a party who is otherwise entitled to

NICA Immunity can waive its immunity is by failing to comply with NICA’s

Notice Provision when it is required to do so. Braniff, 696 So. 2d at 309-10. UM

is neither a “hospital with a participating physician on its staff” nor a “participating

physician,” and it is therefore not required to give notice of NICA participation

under the terms of NICA’s Notice Provision. See § 766.316 (“Each hospital with a

participating physician on its staff and each participating physician, . . . shall

provide notice . . . .”). Because there is no NICA notice requirement for UM, it

cannot have waived any immunity to which it would otherwise be entitled by

failing to give notice. Thus, the plaintiffs cannot proceed on their theory of direct

liability against UM, and the trial court departed from the essential requirements of

the law by failing to grant summary judgment as to that portion of the plaintiffs’

claim against UM.

      B. UM is not immune for the vicarious liability of its doctors

      The plaintiffs have also pled that UM is vicariously liable for the medical

negligence of its employees, Drs. Norris and Barker, under the theory of

respondeat superior. Under this theory of vicarious liability, UM is not being sued



                                          16
for its own direct negligence related to the labor and delivery, but rather by mere

virtue of being the employer of the allegedly negligent Drs. Norris and Barker.

These claims essentially state that Drs. Norris and Barker were negligent during

their direct involvement in the labor and delivery and that UM, although it has no

direct involvement in the labor and delivery, can be held responsible for its

doctors’ actions due to its legal status as their employer. See Mercury Motors, 393

So. 2d at 549. Accordingly, this portion of the plaintiffs’ claim specifically relies

on the notion that UM is not directly involved in the labor and delivery. As

explained above, NICA’s Immunity Provision applies only to those “person[s] or

entit[ies] directly involved” with the labor and delivery of the child with a NICA-

compensable injury.     See § 766.303.      Thus, because the plaintiffs’ vicarious

liability claim is not premised on UM’s “direct involvement” in the labor and

delivery giving rise to the injury, UM is unable to invoke NICA’s Immunity

Provision.   The fact that UM has no obligation to provide notice of NICA

participation, § 766.316, and therefore could not possibly waive any immunity to

which it was entitled, is irrelevant because UM cannot invoke NICA immunity for

its indirect involvement in the labor and delivery in the first place.

      We therefore hold that UM cannot claim NICA immunity from vicarious

liability based on the alleged negligence of its doctors who waived their right to

invoke NICA’s Immunity Provision by failing to provide the statutorily-required



                                          17
notice of NICA participation.9      Thus, the trial court did not depart from the

essential requirements of the law by failing to grant UM’s motion for summary

judgment on the plaintiffs’ theory of vicarious liability. Of course, if the plaintiffs

elect to proceed with their civil suit against UM rather than accept their benefits

under NICA, they must still prove that Dr. Norris and/or Dr. Barker were

negligent, that they were employed by UM at the time of their negligence, and that

they were acting within the scope of their employment with UM when the

negligence occurred. Mercury Motors, 393 So. 2d at 549.

      Petition granted in part; denied in part.10

9 We do not reach the issue of whether UM, as an employer, could be held liable if
Drs. Norris and Barker had in fact provided the required NICA notice and
therefore not waived their immunity from suit. Although an employer’s vicarious
liability typically rises and falls on the liability of its agent or employee, Bankers
Multiple Line Ins. Co. v. Farish, 464 So. 2d 530, 532 (Fla. 1985) (holding that
“when a principal’s liability rests solely on the doctrine of respondeat superior, a
principal cannot be held liable if the agent is exonerated”), there appears to be an
exception to this rule where an agent or employee cannot be held liable due to an
immunity from suit specific to that employee, see May v. Palm Beach Chem. Co.,
77 So. 2d 468, 472 (Fla. 1955) (‘“[I]f an agent has an immunity from liability as
distinguished from a privilege of acting, the principal does not share the
immunity.”’ (quoting Restatement (First) of Agency § 217 (1933))). The statutory
immunity of an agent may potentially be invoked by a principal, however, if the
rationale underlying the agent’s personal immunity also applies to the principal.
Hook v. Trevino, 839 N.W.2d 434, 441 (Iowa 2013). We are skeptical whether the
rationale in support of holding a principal liable when its agent is personally
immune is sound in cases of NICA immunity, and the issue of whether a
vicariously liable principal can invoke a negligent agent’s personal immunity
defense is a very complicated question on which jurisdictions across the county are
divided. It is, however, a question we need not answer based on the facts of this
case.
10 We note that the plaintiffs have neither accepted nor rejected the ALJ’s NICA



                                          18
compensation award of the statutory maximum $100,000 payment plus medical
and legal expenses. Although no court has conclusively determined when a
claimant must elect whether to accept NICA’s benefits or to proceed with
litigation, and NICA itself does not provide a clear cutoff date, every court that has
discussed the matter has assumed and implied that a claimant/plaintiff must forgo a
NICA award to which it is entitled prior to filing civil suit. See NICA v. DOAH,
29 So. 3d at 999 (holding that a plaintiff must forgo any remedies under NICA in
order to “pursue a civil suit”); Anderson v. Helen Ellis Mem’l Hosp. Found., Inc.,
66 So. 3d 1095, 1100-01 (Fla. 2d DCA 2011) (stating that plaintiffs must reject
NICA benefits if they wish to continue pursuing their civil claim for medical
negligence).
        These rulings appear to be premised on the belief that allowing a NICA
award to remain in limbo until a plaintiff is able to ultimately determine whether a
civil suit will yield a higher award would defeat the legislative purpose of the
statute. These cases hold that when an ALJ determines that a claimant’s injuries
are compensable under NICA and approves an award, the claimant must elect prior
to filing suit whether to accept the ALJ’s award and forego any rights to a civil suit
against those directly involved in the labor and delivery, or expressly waive any
rights to the NICA award and proceed with his civil suit against any defendants not
subject to immunity. Although this issue was discussed at oral argument, it was
not raised or argued in the parties’ briefs. We therefore also decline to resolve this
issue until a time if and when it has been fully developed and is properly before us.


                                         19
