Univeristy of Miami, School of Medicine v. Ruiz , 2015 Fla. App. LEXIS 7980 ( 2015 )


Menu:
  •        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