author: OVERTON, Justice. SUNDBERG, Chief Justice,

text:
    Cheryl M. CAULEY and Cecil Cauley, her husband, Appellants, v. CITY OF JACKSONVILLE, a body politic and corporate, Appellee.
    No. 57756.
    Supreme Court of Florida.
    July 16, 1981.
    Rehearing Denied Oct. 2, 1981.

      Wayne E. Hogan of Brown, Terrell & Hogan, Jacksonville, for appellants.
    Dawson A. McQuaig, Gen. Counsel and William Lee Allen and Donald R. Hazouri, Asst. Counsels, Jacksonville, for appellee.
    Joel D. Eaton of Podhurst, Orseck & Parks, Miami, for the Academy of Florida Trial Lawyers, amicus curiae.
    Claude L. Mullís, Tallahassee, for Florida League of Cities, Inc., amicus curiae.

      . Section 768.28(5) provides:
      (5) 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 totaled 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 and subdivisions possessed sovereign immunity prior to July 1, 1974.

   OVERTON, Justice.

This is an appeal from a circuit court decision holding constitutional section 768.-28(5), Florida Statutes (1977), which by its terms limits the amount of money damages recoverable in tort against a municipality to $50,000 per person and $100,000 per incident. We have jurisdiction, and affirm.

The facts are undisputed. Appellant Cheryl Cauley was injured in an automobile accident allegedly caused when the right front wheel of her automobile dropped from the road surface into a long-existing and dangerous depression in the road shoulder, causing the vehicle to go out of control and collide with another automobile. Mrs. Cau-ley alleged that the city had knowlege of this dangerous condition and had consequently breached its duty to exercise reasonable care in the repair and maintenance of the roadway and duty to warn of the dangerous condition. A jury assessed Mrs. Cauley’s total damages at $400,000 and awarded a $200,000 consortium claim to her husband. The jury found Mrs. Cauley to be seventy-five percent responsible for the accident, and the trial court accordingly reduced the amount and entered a total judgment of $150,000 for the plaintiffs. The city filed a motion to limit the judgment to $100,000 in accordance with section 768.-28(5). The trial court granted the motion and expressly found that this statutory section was constitutional.

The question we must decide concerns the validity of that portion of section 768.28(5) which limits compensatory damages against municipalities for negligent performance of operational-level or proprietary functions. The issue is narrow because this Court has previously held constitutional that portion of section 768.28(5) which waives sovereign immunity and establishes a statutory cap for compensatory recovery against the state and county governments for operational-level negligence. Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). Appellants concede the statute’s validity as applied to the state and county governments and as applied to those municipal functions which were previously immune.

In answering the instant question, a historical perspective is useful. Sovereign immunity’s roots extend to medieval England. The doctrine flows from the concept that one could not sue the king in his own courts; hence the phrase “the king can do no wrong.” The United States government fully accepted the sovereign immunity doctrine in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 5 L.Ed. 257 (1821), in which Chief Justice Marshall declared that no suit could be commenced or prosecuted against the United States without its consent. Id. at 411-12. Later, Justice Holmes explained: “A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.” Kawananakoa v. Polyblank, 205 U.S. 349, 353, 27 S.Ct. 526, 527, 51 L.Ed. 834 (1907). The majority of American states fully embraced the sovereign immunity theory as well as the federal government. See Restatement (Second) of Torts § 895B, comment a at 400 (1979). Thus the general rule was that state governments, their agencies, and their subdivisions could not be sued in state courts without state consent.

At this point, it should be noted that, although suit against the king did not lie, one injured by the king’s ministers could always petition the king directly for relief. In modern time, our legislative bodies are vested with the authority to grant relief for governmental wrongs through waiver of immunity. Congress eliminated immunity in part and granted leave for suit against the United States federal government in 1946. Federal Torts Claims Act, Pub. L. No. 79-601, Ch. 753, 60 Stat. 842 (1946) (current version codified at 28 U.S.C. §§ 1291, 1346, 1402, 1504, 2110, 2401, 2402, 2411, 2412 (1976)). The people of Florida vested the power to waive immunity in the Florida legislature at an early date. See art. IV, § 19, Fla.Const. (1868) (now art. X, § 13, Fla.Const.). The Florida legislature did not exercise this authority until 1973 when it enacted section 768.28. Ch. 73-313, § 1, Laws of Fla.

Common law sovereign immunity for the state, its agencies, and counties remained in full force until section 768.28’s enactment. Unlike the state and county governments, however, the case law establishing and construing municipal sovereign immunity has been confusing as a result of inconsistent application. Prior to 1776, the common law doctrine of sovereign immunity applied without distinction between governmental entities. The first generally reported attempt at suit specifically against a local government was in the English case of Rus sell v. The Men of Devon, 100 Eng.Rep. 359 (1788). In that case, a claim was made against the inhabitants of unincorporated Devon County for injuries resulting from the county’s failure to maintain a bridge. The court refused to hold the county liable and specifically stated that no precedent existed for such an action and that it could not be maintained because suit did not lie against the public. Devon became the standard for local government sovereign immunity.

In 1850, the Florida Supreme Court distinguished Devon and its applicability to municipalities in City of Tallahassee v. Fortune, 3 Fla. 19 (1850). The Fortune court determined that the City of Tallahassee could be held liable for a mare which died after falling into a negligently maintained city ditch. The Court based its decision on the City of Tallahassee’s corporate fund which was available to pay damages; no fund was available in Devon.

Fortune is the first of a line of Florida decisions which began to except certain municipal activities from the sovereign immunity rule. These cases, while recognizing the doctrine, began to prune away its applicability. Prior to Fortune, other states had reacted to municipal immunity’s dissonant effects and, reasoning that municipal corporations were the same as private corporations in some circumstances, bifurcated municipal activities into governmental functions and proprietary or corporate functions. See, e. g., Bailey v. Mayor of New York, 3 Hill 531 (N.Y.1842). As to the governmental functions, the courts determined that cities remained immune from suit, but, as to proprietary acts, immunity was abolished. Florida accepted this view. Ballard v. City of Tampa, 124 Fla. 457, 168 So. 654 (1936); Brown v. City of Eustis, 92 Fla. 931, 110 So. 873 (1926); City of Orlando v. Pragg, 31 Fla. 111, 12 So. 368 (1893). In turn, a problem soon arose in determining which municipal functions were governmental, and thus immune from suit, and those which were proprietary, and thus not immune. As Florida courts continued to erode away municipal immunity by placing more and more municipal functions into the proprietary category, inconsistencies developed which defied both logic and common sense. Several examples make this clear.

The general rule was that cities could not be held liable for the unlawful or negligent actions of municipal officers. Brown v. Town of Eustis Thus, a municipality was immune from suit when its police department unlawfully battered an arrestee, City of Miami v. Bethel, 65 So.2d 34 (Fla.1953), and falsely arrested and imprisoned an arrestee, Kennedy v. City of Daytona Beach, 132 Fla. 675, 182 So. 228 (1938). However, at the same time municipalities were supposedly immune, city police were held accountable for not providing medical aid at the time of an arrest, Britt v. Ocala, 65 So.2d 753 (Fla.1953), a death-causing fire at a police station, Williams v. Green Cove Springs, 65 So.2d 56 (Fla.1953), injuries resulting from a police cruiser’s defective brakes, City of Avon Park v. Giddens, 158 Fla. 130, 27 So.2d 825 (Fla.1946), and a prisoner’s venereal disease contracted at the city jail, Lewis v. City of Miami, 127 Fla. 426, 173 So. 150 (1937).

Similarly, under the same general rule, municipal fire departments should have been immune. But this Court held that municipalities were liable for damages resulting from a negligently driven fire truck en route to a fire, Maxwell v. City of Miami, 87 Fla. 107, 100 So. 147 (1924); City of Tallahassee v. Kaufman, 87 Fla. 119, 100 So. 150 (1924).

Still another inconsistency was the Court’s general rule that cities were liable for damages resulting from the negligent operation and maintenance of city streets and sidewalks. Woods v. City of Palatka, 63 So.2d 636 (Fla.1953) (pothole in road); City of Miami Beach v. Quinn, 149 Fla. 326, 5 So.2d 593 (1942) (depression in road surface); City of Tallahassee v. Fortune. But a municipality was held immune from damages caused by the negligent maintenance of the grass-covered area between a city sidewalk and street, Kitchen v. City of Jacksonville, 158 Fla. 621, 29 So.2d 441 (1947), and an improperly functioning traffic signal, Avey v. City of West Palm Beach, 152 Fla. 717, 12 So.2d 881 (1943).

This Court recognized the inconsistency and confusion in Florida municipal sovereignty law in Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (1957), where Justice Thornal stated: “The problem in Florida has become more confusing because of an effort to prune and pare the rule of immunity rather than to uproot it bodily and lay it aside as we should any other archaic and outmoded concept. This pruning approach has produced numerous strange and incongruous results.” Id. at 132. Justice Thor-nal’s decision, a landmark in this state, receded from the Court’s prior decisions delineating municipal functions as governmental or proprietary and liability based thereon, reasoning that “[t]he modern city is in substantial measure a large business institution . . . . ” Id. at 133. The Court warned, however: “We think it advisable to protect our conclusion against any interpretation that would impose liability on the municipality in the exercise of legislative or judicial, or quasi-legislative or quasi-judicial functions . . . Id. In addressing the merits of the facts before it, the Hargrove court concluded that the City of Cocoa Beach would have to answer for the negligence of its police department under the respondeat superior doctrine.

After Hargrove, the Court readdressed municipal sovereign immunity in Modlin v. City of Miami Beach, 201 So.2d 70 (1967). The Modlin decision limited Hargrove to situations where a city owed the plaintiff a special duty.

The Fourth District Court of Appeal, in Gordon v. City of West Palm Beach, 321 So.2d 78 (Fla. 4th DCA 1975), subsequently analyzed the status of the law as a result of Hargrove, Modlin, and their progeny as follows:

1) as to those municipal activities which fall in the category of proprietary functions a municipality has the same tort liability as a private corporation;
2) as to those activities which fall in the category of governmental functions “. . . a municipality is liable in tort, under the doctrine of respondent [sic] superior, [. . .] only when such tort is committed against one with whom the agent or employee is in privity, or with whom he is dealing or is otherwise in contact in a direct transaction or confrontation.” City of Tampa v. Davis, Fla.App. 1969, 226 So.2d 450;
3) as to those activities which fall in the category of judicial, quasi judicial, legislative, and quasi legislative functions, a municipality remains immune. Hargrove v. Town of Cocoa Beach, supra; Modlin v. City of Miami Beach, supra.

Id. at 80 (emphasis deleted).

In our recent decision of Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979), we recognized the problems and criticisms of the governmental-proprietary and special duty-general duty analyses which had previously encompassed municipal sovereign immunity law. The Court determined that with the enactment of section 768.28 and the legislature’s express inclusion of municipalities within that statute, the rules previously governing municipal immunity had been eliminated: “We conclude that Modlin and its ancestry and progeny have no continuing validity subsequent to the effective date of section 768.-28.” Id. at 1016.

The Commercial Carrier decision further held that section 768.28 had waived county and state governmental immunity, within the set limits, in “operation-level” functions, but that the “planning” or “decision-making” levels remained immune. Under the Commercial Carrier facts, a county was held liable for negligence in maintaining the letters “stop” painted on the pavement at a highway intersection, an “operational-level” obligation.

The instant question is whether section 768.28’s $50,000/$100,000 cap on municipal liability is valid for the identified proprietary functions for which this Court has previously said there is no sovereign immunity. Appellants contend that the trial court committed five constitutional errors in upholding the legislature’s limitation on municipal tort recovery. Specifically, the Cauleys assert that the statute (1) denies them access to courts under the Florida Constitution; (2) violates both the due process of law and equal protection clauses of the United States and Florida Constitutions; (3) denies the right to trial by jury under the Florida Constitution; (4) violates the separation of powers mandate of the Florida Constitution by depriving the courts of jurisdiction over judgments, by transferring judicial powers and duties to the legislative and executive branches, and by prescribing a procedure for the enforcement of judgments contrary to rule 1.570, Florida Rules of Civil Procedure; and (5) deprives the circuit courts of their power under the Florida Constitution to issue writs of mandamus and all writs necessary in the exercise of their jurisdiction. We reject all these contentions.

The qualified power of a legislative body to impose a ceiling on claims recoverable in a court proceeding was expressly upheld in Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978). In Duke Power, Congress had limited liability to $560 million for any nuclear accident resulting from federally licensed privately owned nuclear power plants. Similarly, we have previously upheld the legislative authority to establish a workmen’s compensation insurance system and a no-fault automobile insurance system, each of which alters and restricts the means of traditional tort recovery. See Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239 (Fla.1977) (workers’ compensation); Lasky v. State Farm Insurance Co., 296 So.2d 9 (Fla.1974) (no-fault). Substantially the same constitutional attacks as asserted in the instant case were asserted to defeat each of those legislative schemes and were expressly rejected by this Court.

The subject legislative act has not abolished or unreasonably restricted an individual’s cause of action against a municipality. Initially there was no such cause of action and only by court pruning of the sovereign immunity doctrine were some causes of action allowed. In Kluger v. White, 281 So.2d 1 (Fla.1973), asserted by appellants to mandate full recovery without limitation, we set forth the standard for the legislative elimination of causes of action:

We hold, therefore, that where a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla. Stat. § 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.

Id. at 4 (emphasis ours). There was no statutory right to recover for a municipality’s negligence predating the adoption of the declaration of rights contained in the Florida constitution nor was there a cause of action at common law as of July 4, 1776, adopted under section 2.01, Florida Statutes. Consequently, the strictures of Kluger v. White are not applicable.

In our view, section 768.28, rather than denying equal protection, has in fact brought fairness, equality, and consistency to an area of the law which for over one hundred years has been beset with contradiction, inconsistency, and confusion. Appellants’ position is contrary to consistency. The inequities of such view are easily illustrated. In the instant factual circumstance, Mrs. Cauley was injured because a severe drop-off from the road surface to the road shoulder caused loss of vehicle control. Appellants assert that because the accident occurred within the Jacksonville city limits, the statutory cap should not apply and that their recovery should be unlimited. It is conceded, however, that if the accident had occurred from identical road conditions in adjacent unincorporated Clay or Nassau Counties, that the recovery would be limited by section 768.28(5)’s $50,000/$100,000 ceiling; and that, before section 768.28’s enactment, no recovery would have been allowable at all. Appellants’ argument, in other words, would allow an unlimited recovery in the instant case simply because the road surface was maintained by a municipality rather than a county or by the state.

Another illustration of the inconsistency in appellants’ argument is exhibited in the situation where, within municipal city limits, a police officer attempts to make a traffic arrest, but because of defective brakes, the officer’s police cruiser causes personal injury to passersby. Under appellant’s contention, if the patrolman is a city officer, the injured persons would be allowed an unlimited recovery. However, if the officer was a state trooper making an arrest for the same offense in the same location, immunity would prohibit recovery except as allowed under section 768.28(5). Clearly, the even-handed application of immunity under section 768.28 furthers equal protection of the law under our constitutions rather than denies it.

We note that section 768.28 also furthers the philosophy of Florida’s present constitution that all local governmental entities be treated equally. Since 1968, municipal corporations, counties, and school districts have been in constitutional parity with one another and possess equal taxing powers. Art. VIII, Fla.Const. See City of Sarasota v. Mikos, 374 So.2d 458 (Fla.1979). We also note that our present constitutional scheme allows municipal-county total or partial consolidation as an option for municipal and county governments to provide more efficient services. Art. VIII, §§ 3-4, Fla.Const. If we were to adopt appellants’ view that a different immunity standard should apply to a municipal corporation as opposed to a county government, we would next have to determine which standard to apply when consolidation has occurred, because Duval County and the City of Jacksonville have in fact consolidated. See, e. g., In re Advisory Opinion to the Governor Request of July 12, 1976, 336 So.2d 97 (Fla.1976) (whether municipal or county standards applied to suspension of mayor under consolidated government; county standards held applicable). Our decision that section 768.28 applies to both municipal and county governments eliminates the need for such a determination.

Municipalities can no longer be identified as partial outcasts as opposed to other constitutionally authorized local governmental entities. Our cities currently provide a substantial portion of our public services, funded in part with state and federal revenues. Municipal ordinances are now enforced in state courts by state officials. Cities furnish the majority of our police and safety protection; provide a substantial portion of our public recreational facilities; and maintain a significant portion of public streets. In a similar light, our twenty-three-year-old statement that the “modern city is in substantial measure a large business institution,” Hargrove, 96 So.2d at 133, can no longer justify disparate treatment of our municipalities. Many of our metropolitan counties now function in an identical capacity.

The sovereign immunity issue has been regularly before the courts because prohibition against recovery for governmental negligence is harsh and resulted in considerable injustice. Pruning sovereign immunity on a case-by-case basis to offset this factor, however, has itself resulted in inequitable treatment. In this light, some jurisdictions have partially or totally abolished the doctrine.

It is our decision that, in this state, sovereign immunity should apply equally to all constitutionally authorized governmental entities and not in a disparate manner. We find that section 768.28 provides a responsible method for this equal application. While the section does limit recovery allowable- against municipalities, it substantially broadens recovery allowable against state governmental entities generally. It is important to note that, although section 768.-28 imposes a $50,000/$100,000 ceiling on tort recovery against government in the judicial forum, the section specifically provides that one suffering injuries in excess of the ceiling may seek additional relief by petition to the legislature.

In conclusion, we hold that the statute clearly relates to a permissible legislative objective and is neither discriminatory, arbitrary, nor oppressive in its application. The statute does not violate the right to due process, jury trial, access to the courts, or the separation of powers rule. It provides a fair means of recovery against governmental entities for the negligent acts of their employees and officials.

For the reasons expressed, we affirm the trial court and uphold the constitutional validity of section 768.28(5), Florida Statutes (1977).

It is so ordered.

BOYD, ALDERMAN and McDONALD, JJ., concur.

ENGLAND, J., concurs in result only.

SUNDBERG, C. J., dissents with an opinion in which ADKINS, J., concurs.

SUNDBERG, Chief Justice,

dissenting.

I dissent from the majority opinion. In attempting to reach a simple result for a complex problem, the majority has misconstrued case law and blurred traditional distinctions between immunity for state, county and municipal governments.

One such misapplication is the majority’s reliance on Commercial Carrier Corp. v. Indian River County. Commercial Carrier dealt with a single narrow issue — the scope of the waiver of sovereign immunity for the state and counties under section 768.28, Florida Statutes (1975). It did not, as the majority asserts, totally abrogate the rules regarding municipal immunity. It merely held that the legislature did not intend for the rules of municipal sovereign immunity to be applicable to the state and counties. Additionally, Commercial Carrier dealt with a waiver of immunity for the state and counties where there had previously been total immunity. Such is not the case here. Municipalities have never enjoyed total immunity in Florida. There is a vast difference in waiving immunity by increasing recovery from nothing to a maximum of $50,000/$100,000, and “creating” immunity by lowering recovery from full compensation to a $50,000/$100,000 limitation. The former is acceptable; the latter is not. Thus, the majority errs in attempting to apply and extend Commercial Carrier to the case before us.

I believe the majority is also mistaken in its application of the principles of Kluger v. White. This case clearly involves a Kluger problem and may be disposed of by reference to its guidelines and holding. Kluger set forth the following standard for the legislative elimination of a cause of action;

We hold, therefore, that where a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla. Stat. § 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.

Contrary to the assertion of the majority, there was a cause of action at common law as of July 4, 1776 which was adopted under section 2.01, Florida Statutes (1979). This common law cause of action is expressed in the legal maxim that where an individual sustains an injury by the neglect of another, the law gives him a remedy. The remedy required was full and just compensation. Kluger holds that the legislature may not abolish such rights unless two conditions are met: (1) a showing of “overpowering public necessity for the abolishment of the right” and (2) the absence of any reasonable alternative. It is clear that neither requirement is met in this case. First, there was no necessity shown for the abolition of this common law right by legislative history or findings expressed in the legislation. Second, even if such necessity had been demonstrated, the lack of a reasonable alternative was not shown. The effect of section 768.28(5) is to force a plaintiff to give up a common law right and receive nothing in return. Such a result is contrary to the dictates of Kluger v. White; thus this portion of the statute should be struck down.

The majority attempts to bolster its argument by citing several cases which have upheld restrictions on the means of traditional recovery: Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239 (Fla.1977); and Lasky v. State Farm Insurance Co., 296 So.2d 9 (Fla.1974); Duke Power Company v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978). A careful reading of these cases, however, demonstrates that they are distinguishable and, indeed, actually support this writer’s view. Halligan involved various aspects of the worker’s compensation insurance system. In upholding the limitations on traditional means of recovery, this Court stated: “In the case sub judice, the claimant was . . . supplied with an alternative remedy of compensation for injury without regard to proof of negligence .... This remedy is a reasonable alternative for appellee’s relinquishing his right of action against other subcontractors under the then-existing law.” 344 So.2d at 244 (emphasis added). Lasky involved certain sections of Florida’s no-fault insurance law which altered traditional tort recovery. This Court upheld the alterations, stating that “a reasonable alternative” had been provided because the injured party could recover in certain instances without having to prove fault. Duke Power Company, although a federal case, is distinguishable for similar reasons. First, the Price-Anderson Act, which placed a $560-million limitation on damages arising from a nuclear accident, allowed recovery without proof of fault. Second, the United States Supreme Court found a compelling interest that required a change in the traditional methods of recovery and that the waiver of defenses clause provided a reasonable alternative. An additional distinction between Duke Power Company and the present case is that there is no federal counterpart to Florida’s guarantee of access to the courts. Kluger v. White held this section was violated when a common law right of action adopted under section 2.01, Florida Statutes, was abolished without fulfillment of the requirements discussed above. Thus, the majority’s reliance on the above cases merely highlights the weakness of its reasoning.

Two final arguments the majority submits in upholding the $50,000/$100,000 cap against municipalities are: (1) section 768.-28 makes all governmental entities equal, and (2) to hold otherwise would cause difficulties when dealing with consolidated areas. The first contention is specious. Even if such a result satisfies this Court’s sense of symmetry, it is totally unsupported historically or legally. Since the case of City of Tallahassee v. Fortune, 8 Fla. 19 (1850), this Court has recognized the distinction between a municipal corporation and the state and its political subdivisions insofar as liability for tort is concerned. Even though the labels used to identify the activities for which a municipality may be held liable have been less than satisfactory, the principles upon which liability attached to a municipal corporation where none attached to the state have been clear.

With regard to the difficulty of applying the law of municipal tort liability to consolidated entities, I need only respond that difficulty of decision should not be a consideration in determining the proper rule of law in a given situation. Hard cases often make bad law, but they also most often lead to the right result.

In conclusion, I disapprove the majority’s construction and application of Commercial Carrier Corp. v. Indian River County to the present case. Furthermore, I would apply the holding of Kluger v. White to the facts of this case and hold the damage limitation of section 768.28(5) unconstitutional as applied to municipalities.

ADKINS, J., concurs.

      . The 1981 Florida Legislature increased the amount recoverable against the state, a county, or a municipality to $100,000 per person and $200,000 per incident. See ch. 81-317, Laws of Fla.

      . Art. V, § 3(b)(1), Fla.Const. (1972).

      . For an expansive history of the sovereign immunity doctrine in both England and the United States, see generally 1 W. Blackstone, Commentaries *236; 10 W. Holdsworth, A History of English Law 651 (1938); 1 F. Pollock & F. Maitland, The History of English Law Before the Time of Edward I 511 (2d ed. 1903); Borchard, Government Liability in Tort, 34 Yale L.J. 1 (1924); Jaffe, Suits Against Governments & Officers: Sovereign Immunity, 77 Harv.L.Rev. 1 (1963); James, Tort Liability of Governmental Units & Their Officers, 22 U.Chi.L.Rev. 610 (1955).

      . Before waiver of sovereign immunity, one suffering injury at the hands of the state could always petition for legislative relief by means of a claims bill. At present, if a claim exceeds the statutory limit, the legislature will still entertain a petition for a claims bill for the excess amount. See §§ 11.065, 768.28(5), Fla.Stat. (1979).

      . The Devon court cited as authority R. Brooke, LaGraunde Abridgement 93 (1573), a work published more than two centuries before the Devon decision.

      . Municipal sovereign immunity in Florida and the continuing confusion surrounding it has spawned much comment. See, e. g., Budetti & Knight, The Latest Event in the Confused History of Municipal Tort Liability, 6 Fla.St.L.Rev. 927 (1978); Drake & Oldham, The King Is Dead, Long Live the Emperor: Commercial Carrier Decision & the Status of Governmental Immunity in Florida, 53 Fla.B.J. 504 (1979); Price & Smith, Municipal Tort Liability: A Continuing Enigma, 6 U.Fla.L.Rev. 330 (1953); Seligman & Beals, The Sovereignty of Florida Municipalities: In-Again, Out-Again, When-Again, 50 Fla.B.J. 338 (1976); Note, An Insurance Program to Effectuate Waiver of Sovereign Tort Immunity, 26 U.Fla.L.Rev. 89 (1973); Note, A Statutory Approach to Governmental Liability in Florida, 18 U.Fla.L.Rev. 653 (1966); Note, The Tort Liability of Florida Municipal Corporations, 16 U.Fla.L.Rev. 90 (1963); 18 U.Fla.L.Rev. 173 (1965).

        . Accord, Bradley v. City of Jacksonville, 156 Fla. 493, 23 So.2d 626 (1945); Phair v. Byder, 155 Fla. 677, 21 So.2d 208 (1945); Gerschwiller v. City of Winter Haven, 95 Fla. 427, 115 So. 846 (1928).

      . Accord, City of Miami v. Simpson, 172 So.2d 435 (Fla.1965) (based on Hargrove, municipal liability extended to intentional torts of employees). But cf. Fisher v. City of Miami, 172 So.2d 455 (Fla.1965) (municipalities not liable for punitive damages).

      . Accord, Faulkner v. Allstate Ins. Co., 367 So.2d 214 (Fla.1979).

      . See Russell v. The Men of Devon, 100 Eng. Rep. 359 (1788); R. Brooke, LaGraunde Abridgement 93 (1573).

      . We note that the First District Court of Appeal has recently upheld section 768.28 from constitutional attack in Jetton v. Jacksonville Electric Authority, 399 So.2d 396 (Fla. 1st DCA 1981). In addressing the asserted Kluger problem, the court said because section 768.28 merely narrowed the right to sue municipal government rather than abolished it, no constitutional infirmity presented itself. See Abdin v. Fischer, 374 So.2d 1379 (Fla.1979); McMillan v. Nelson, 149 Fla. 334, 5 So.2d 867 (Fla.1942).
      Our holding that Kluger does not apply because no right existed at common law makes it unnecessary for us to consider the First District’s reasoning.

      . As of 1979, municipal police departments employed 10,606 sworn law enforcement personnel while county sheriff’s departments only employed 7,227. State law enforcement personnel are not included in these figures. See [1979] Fla.Dept. of Law Enforcement Ann.Rep., Crime in Florida 218.

      . Some jurisdictions have abrogated sovereign immunity by judicial fiat. See Stone v. Arizona Highway Comm’n, 93 Ariz. 384, 381 P.2d 107 (1963); Muskopf v. Corning Hosp. Dist., 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457 (1961) (immunity currently governed by Cal. [Gov’t] Code div 3.6 (Deering 1973)); Proffitt v. State, 174 Colo. 113, 482 P.2d 965 (1971) (immunity reinstated to limited extent by Colo.Rev.Stat. § 24-10 (1973); Campbell v. State, 259 Ind. 55, 284 N.E.2d 733 (1972); Haney v. City of Lexington, 386 S.W.2d 738 (Ky.1964) (municipal immunity abolished based on Hargrove); Board of Comm’rs v. Splendour Shipping & Enterprises Co., 273 So.2d 19 (La.1973) (subsequently reabolished by La.Const. art. XII, § 10); Davies v. City of Bath, 364 A.2d 1269 (Me.1976); Nieting v. Blondell, 306 Minn. 122, 235 N.W.2d 597 (1975); Jones v. State Highway Comm’n, 557 S.W.2d 225 (Mo.1977); Brown v. City of Omaha, 183 Neb. 430, 160 N.W.2d 805 (1968); Johnson v. Municipal Univ. of Omaha, 184 Neb. 512, 169 N.W.2d 286 (1969) (immunity currently governed by Tort Claims Act, Neb.Rev.Stat. §§ 81-8,209 to -8,239 (1976)); Merrill v. City of Manchester, 114 N.H. 722, 332 A.2d 378 (1974) (municipal immunity abolished, citing Hargrove, with leave for the legislature to limit recovery); Willis v. Department of Conservation & Economic Dev., 55 N.J. 534, 264 A.2d 34 (1970) (immunity currently governed by New Jersey Tort Claims Act, 59 N.J.Rev.Stat. tit. 59 (Supp.1980)); Hicks v. State, 88 N.M. 588, 544 P.2d 1153 (1975) (currently governed by Tort Claims Act, N.M.Stat.Ann. §§ 41-4-1 to -25 (1978)); Mayle v. Pennsylvania Dept. of Highways, 479 Pa. 384, 388 A.2d 709 (1978) (governmental immunity abolished in Ayala v. Philadelphia Bd. of Pub. Educ., 453 Pa. 584, 305 A.2d 877 (1973)); municipal immunity currently governed by 53 Pa.Cons.Stat. §§ 5311.201-.202 (Supp.1980); Becker v. Beaudoin, 106 R.I. 562, 261 A.2d 896 (1970) (abolishes municipal immunity citing Hargrove); Long v. City of Weirton, 214 S.E.2d 832 (W.Va.1975) (municipal immunity abolished); Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618 (1962) (abolishes municipal immunity); Jivelekas v. City of Worland, 546 P.2d 419 (Wyo.1976).
      Still other jurisdictions have waived sovereign immunity by statute but limited recovery. See Alaska Stat. § 09.50.250 (1973); Colo.Rev.Stat. § 24-10-101 et seq. (1973) (waives immunity to extent of governmental insurance); State Tort Liability Act, Hawaii Rev.Stat. ch. 662 (1976); Idaho Code §§ 6-901 to -928 (1979); Ill.Const. art. XIII, § 4 (liability limited to $100,000); Iowa Tort Claims Act, Iowa Code ch. 25A (1979) (administrative remedies must be exhausted); Kan.Stat.Ann. § 74—4716 (1972) (immunity abolished to extent of governmental insurance; repealed in 1979 Kan.Laws ch. 186 § 33); La.Const. art. XII, § 10; Mont.Rev. Codes Ann. §§ 2-9-101 to -114 (1979) (limits liability for economic damage to $300,000 per person and $1 million per incident; no recovery available for noneconomic damage); Nev.Rev.Stat. §§ 41.031-.039 (1979) (liability limited to $50,000); N.H.Rev.Stat.Ann. tit. 4, § 412:3 (Supp.1979) (immunity abrogated to extent of governmental insurance; statute upheld in Estate of Cargill v. City of Rochester, 119 N.H. 661, 406 A.2d 704 (1979)); New Jersey Tort Claims Act, N.J.Rev.Stat. tit. 59 (Supp.1980); Tort Claims Act, N.M.Stat.Ann. §§ 41-4-1 to -25 (1978) (liability limited to $100,000 per occurrence for property damage, $300,000 for personal injury, and a total of $500,000 per incident); N.D.Cent. Code § 39-01-08 (1980) (immunity waived to extent of governmental insurance); Ohio Const. art. I, § 16; Or.Rev. Stat. §§ 30.260-.300 (1979) (liability limited to $50,000 for property damage per person, $100,-000 for personal injury, and $300,000 total per incident); R.I.Gen. Laws §§ 9-31-1 to -12 (Supp.1980) (liability limited to $50,000); Tex. [Public Offices, etc.] Code Ann. tit. 110A, art. 6252-19 (Supp.1980) (liability limited to $100,-000 per person and $300,000 per incident); Utah Gov’t Immunity Act, Utah Code Ann. §§ 63-30-1 to -34 (1978); Vermont Stat.Ann. tit. 12, §§ 5601-5605 (1973) (liability limited to $75,000 per person and $300,000 per incident); Wash.Rev. Code chs. 4.92, .96 (1979).

      . See also note 5 supra.

      . 371 So.2d 1010 (Fla.1979).

      . 281 So.2d 1 (Fla.1973).

      . Id. at 4.

      . It is interesting to note that the case which is cited as the “standard for local government sovereign immunity” (Russell v. The Men of Devon) was not decided until 1788, some 16 years after our Declaration of Independence. Thus, one could argue that since this was the first sovereign immunity case, full recovery was previously allowed as the common law norm. Additionally, Florida’s first case on the subject, City of Tallahassee v. Fortune, 3 Fla. 19 (1850), distinguished Devon and allowed recovery against a municipality.

      .281 So.2d at 4.

      . Art. I, § 21, Fla.Const.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Roy McKENNON, Appellant, v. STATE of Florida, Appellee.
    No. 54172.
    Supreme Court of Florida.
    July 28, 1981.
    Rehearing Denied Oct. 2, 1981.

      Bartley, Kenneth Vickers, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Roy McKennon appeals his conviction of murder in the first degree and sentence of death. We affirm his conviction but reverse his death sentence.

On November 28, 1977, in the shoeshine area of his employer’s barbershop located in the Jacksonville International Airport, McKennon allegedly murdered his employer by beating her head against the floor and wall, strangling her, slicing her throat, breaking ten of her ribs, and stabbing her. He was indicted for premeditated murder, and the jury found him guilty of murder in the first degree. The jury also returned an advisory sentence of life, but the trial court sentenced McKennon to death.

McKennon challenges his conviction on the basis of error committed by the trial court in instructing the jury on robbery as it related to felony murder where there was no basis in the evidence for the robbery instruction. McKennon’s trial counsel acquiesced in the court’s giving the jury the standard instructions on premeditated murder and felony murder but objected to the trial court’s giving any instruction on robbery. Over McKennon’s objection, the trial court gave the following instruction:

The crime of robbery is defined as the taking of money or any property of any value whatsoever from the person or custody of another by force, violence or assault or putting in fear. If a person kills another in trying to do or commit any robbery, the killing is in perpetration of or in an attempt to perpetrate such crime.

When a trial judge submits a case to a jury on a felony-murder theory, he is obliged to define the underlying felony, State v. Jones, 377 So.2d 1163 (Fla.1979); Robles v. State, 188 So.2d 789 (Fla.1966), but if the facts do not support an underlying felony the case should not be submitted to the jury on that theory.

The state contends that a discrepancy in the amount of money shown in bookkeeping records and the amount contained in the cash register in the barbershop after the murder constituted a sufficient basis for the robbery instruction. Alternatively, the state maintains that the instruction, if erroneous, was harmless error because there was overwhelming evidence to sustain the first-degree murder conviction.

We disagree with the state’s first contention but agree with the second. We find no basis in the evidence for the robbery charge. The purported bookkeeping discrepancy did not prove beyond a reasonable doubt that any funds were taken from the deceased and hence was insufficient to prove commission of a robbery. We therefore hold that the court erred in instructing on felony murder and robbery. See Bradley v. State, 82 Fla. 108, 89 So. 359 (1921).

This holding does not require or justify reversal, however, because the state sought a conviction for murder based upon premeditation. The victim suffered multiple blows to the head, manual strangulation, and multiple wounds of the neck. There is ample evidence to conclude that McKennon inflicted these wounds. The prosecutor made only a passing remark about the so-called robbery and did not argue felony murder to the jury. Just as in Knight v. State, 394 So.2d 997 (Fla.1981), the record reflects that there is not only sufficient but overwhelming evidence of premeditated murder. It is clear that the jury convicted McKennon of murder based on premeditation and that he was in fact guilty of premeditated murder. Neither Jones nor Robles applies here. We are satisfied beyond a reasonable doubt that the submission of the felony murder charge to the jury was not prejudicial and did not contribute to the appellant’s conviction. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Frazier v. State, 107 So.2d 16 (Fla.1958).

Because we sustain the conviction, we must review the sentence of death. The jury recommended a life sentence. The trial court found only one aggravating factor (that the murder was cruel, atrocious, and heinous) and one mitigating circumstance (that McKennon was eighteen when he committed the murder). We are unable to sustain the trial judge’s sentence of death in this instance. There was a rational basis for the jury’s recommendation, and there was no indication that the jury was misled. See Burch v. State, 343 So.2d 831 (Fla.1977); Chambers v. State, 339 So.2d 204 (Fla.1976); Jones v. State, 332 So.2d 615 (Fla.1976); Tedder v. State, 322 So.2d 908 (Fla.1975); Swan v. State, 322 So.2d 485 (Fla.1975).

The conviction is affirmed, but the sentence is reduced to life imprisonment without eligibility for parole for twenty-five years.

It is so ordered.

SUNDBERG, C. J., and BOYD, OVER-TON, ENGLAND, ALDERMAN and MCDONALD, JJ., concur.

ADKINS, J., concurs as to conviction and dissents as to sentence.

      . The following dialog took place:
      [The Court] Would you agree on the second page of murder in the first degree, Page 69 in the standard?
      The only one I would see that would be possible in this would be robbery.
      MR. TASSONE: Correct, Your Honor.
      MR. VICKERS: Your Honor, I would object to that on the grounds that I think I’ve argued that probably sufficiently about the accountant’s records and that there was no proof that any money was in there. There is no proof that any money was taken and there is no proof of the intent at the time the murder took place which was important.
      THE COURT: Right.
      MR. VICKERS: Because the Jury is only going to speculate, first of all, if any money was taken and then they can only speculate as to whether it was an afterthought or a motive for a murder.
      THE COURT: How do you propose I give the instruction then on murder in the first degree?
      MR. VICKERS: Premeditation and to give the felony murder without giving the robbery instruction. I think you have to give the felony murder instruction there and everything like that, but as far as defining robbery or anything like that, I don’t think that would be proper.
      THE COURT: Okay.

      . In Larry v. State, 104 So.2d 352, 354 (Fla.1958), we stated that:
      Evidence from which premeditation may be inferred includes such matters as the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed, and the nature and manner of the wounds inflicted.


author: ADKINS, Justice. SUNDBERG, Chief Justice,

text:
    Paul Norman ADAMS, et al., Appellants/Cross-Appellees, v. William F. WRIGHT, Jr., Appellee/Cross-Appellant.
    No. 57474.
    Supreme Court of Florida.
    July 23, 1981.
    Rehearing Denied Oct. 5, 1981.

      Elsie T. Apthorp, and Jacqueline R. Griffin, of Dempsey & Slaughter, Orlando, for appellants/cross-appellees.
    William L. Ross, Jr. of the Law Office of William L. Ross, Jr., New Smyrna Beach, for appellee/cross-appellant.
    Jim Smith, Atty. Gen., and Craig B. Willis, Asst. Atty. Gen., Tallahassee, for amicus curiae.
   ADKINS, Justice.

This is a direct appeal from the Circuit Court of Volusia County which held that section 768.043, Florida Statutes (1977) concerning remittitur and additur actions arising out of the operation of motor vehicles, is constitutional. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. (1972).

For clarity we refer to the parties as they appeared in the trial court; appellants as defendants and appellee as plaintiff.

The facts of this case are relatively simple and straightforward. The plaintiff sought punitive and compensatory damages for injuries he sustained while riding in an automobile driven by defendant, Paul Adams, owned by defendant, Ira Adams, and insured by defendant, Fidelity and Casualty Company of New York. The case was tried before a jury, which returned a verdict for the plaintiff in the amount of $8,500.00. Plaintiff moved for a new trial, alleging inter alia, that the verdict was inadequate. The trial court denied this motion but granted plaintiff’s motion for additur. The defendant would not agree to the additur so the trial judge ordered a new trial pursuant to section 768.043, Florida Statutes (1977), solely for the purpose of determining plaintiff’s damages. This appeal is from that order.

In addition, plaintiff filed a cross-appeal challenging the trial court’s failure to give certain instructions, to admit certain expert testimony, and to grant plaintiff’s motion for a new trial because the verdict was inadequate. As to the matters alleged in the cross-appeal, it is the opinion of this Court that no reversible error has been committed by the trial court. We therefore turn to the main issue in this case, whether section 768.043, Florida Statutes (1977), is constitutional.

Section 768.043 prescribes a remedy whereby a trial judge is empowered to modify a verdict in a motor vehicle liability suit which is clearly excessive or inadequate. Subsection (2) of the statute provides the criteria to be considered by the trial judge in determining whether the verdict is excessive or inadequate. (See footnote 1.)

Defendants argue that the methods established by section 768.043 for review of a jury verdict are procedural in that they set forth a procedure for a trial judge to equitably revise a jury verdict at the trial level. Such a procedural enactment, they argue, amounts to a legislative intrusion into the rule-making province of the judiciary.

Plaintiff, on the other hand, argues that the right of a litigant to pursue an additur under section 768.043 is a substantive right, and may properly be provided by the legislature.

While the specific issue now before us is one of first impression, the question of whether a rule or statute relates to substantive law or to practice and procedure is one which constantly arises. “The entire area of substance and procedure may be described as a ‘twilight zone’ and a statute or rule will be characterized as substantive or procedural according to the nature of the problem for which a characterization must be made.” In re Florida Rules of Criminal Procedure, 272 So.2d 65, 66 (Fla.1972) (concurring opinion of Adkins, J.). The distinction between substance and procedure was discussed further:

Practice and procedure encompass the course, form, manner, means, method, mode, order, process or steps by which a party enforces substantive rights or obtains redress for their invasion. “Practice and procedure” may be described as the machinery of the judicial process as opposed to the product thereof.
Examination of many authorities leads me to conclude that substantive law includes those rules and principles which fix and declare the primary rights of individuals as respects their persons and their property. As to the term “procedure,” I conceive it to include the administration of the remedies available in cases of invasion of primary rights of individuals. The term “rules of practice and procedure” includes all rules governing the parties, their counsel and the Court throughout the progress of the case from the time of its initiation until final judgment and its execution.

Id.

To give effect to the evident legislative intent in promulgating section 768.043, we construe the statute as being remedial in nature, granting authority to the trial judge to modify a clearly excessive or inadequate verdict in a motor vehicle liability suit. A remedial statute is “designed to correct an existing law, redress an existing grievance, or introduce regulations conducive to the public good.” It is also defined as “[a] statute giving a party a mode of remedy for a wrong, where he had none, or a different one, before.” Black’s Law Dictionary, 5th Ed., 1979.

Subsection (3) of section 768.043 provides as follows:

(3) It is the intent of the Legislature to vest the trial courts of this state with the discretionary authority to review the amounts of damages awarded by a trier of fact, in light of a standard of exces-siveness or inadequacy. The Legislature recognizes that the reasonable actions of a jury are a fundamental precept of American jurisprudence and that such actions should be disturbed or modified [only] with caution and discretion. However, it is further recognized that a review by the courts in accordance with the standards set forth in this section provides an additional element of soundness and logic to our judicial system and is in the best interests of the citizens of Florida.

(Footnote omitted) (emphasis added).

We therefore hold that section 768.-043, Florida Statutes (1977), is a remedial statute designed to protect the substantive rights of litigants in motor vehicle-related suits. We also hold, contrary to defendants’ contention, that there is no conflict between the statute and Fla.R.Civ.P. 1.530. Rule 1.530 delineates the procedures for granting a new trial. Section 768.043 in no way alters or conflicts with Rule 1.530. The statute merely provides an alternative means of redress for an existing grievance of a litigant.

Defendants next contend that the statute substantially abridges the right to a jury trial. We disagree. The statute clearly provides for a new trial in the event the party adversely affected by the remittitur or additur does not agree with the remitti-tur or additur. In other words, the complaining party need not accept the decision of the judge with respect to remittitur or additur. The party may have the matter of damages submitted to another jury. Defendants’ attack on the constitutionality of the statute is without merit.

The second prong of defendants’ attack on the ruling of the trial court is based on a claim that the court abused its discretion in granting the motion for additur and ordering a new trial. A careful reading of the record and of the criteria set forth in the statute leads us to agree. Paragraph (2) of the trial judge’s order holding the statute constitutional, and granting a new trial provides:

(2) [T]he verdict returned by the Jury in the amount of $8,500.00 as reviewed by the standards enumerated in section 768.-043, Florida Statutes, is clearly inadequate in light of the facts and circumstances presented to the Jury and does not bear a reasonable relation to the amount of damages proved and the injury suffered by the Plaintiff; in making this finding the undersigned notes that no defense of contributory negligence or assumption of risk existed which could diminish the Plaintiff’s recovery, that he is a young man who, according to uncon-troverted evidence, will suffer significant impairment in the use of his mouth for the rest of his life, with embarrassment and mental anguish as a result thereof[.]

It is the opinion of this Court that the order for a new trial is deficient because it does not contain reference to the record in support of its conclusion that addi-tur of the jury award is necessary to cure the inadequacy of the verdict (the basis for requiring new trial). We, therefore, have made an independent review of the record in search of support of that conclusion, and we find none. As we held in Wackenhut Corp. v. Canty, 359 So.2d 430, 434 (Fla.1978), superior vantage point does not give a trial judge unbridled discretion to order a new trial. “The trial judge does not sit as a seventh juror with veto power. His setting aside a verdict must be supported by the record, ... or by findings reasonably amenable to judicial review.” Laskey v. Smith, 239 So.2d 13, 14 (Fla.1970).

Our review of the record in this instance does not support the conclusion of the trial judge that additur is necessary to cure an inadequacy in the jury verdict.

We therefore affirm that part of the trial judge’s order upholding the constitutionality of section 768.043, Florida Statutes (1977), and reverse that portion of the order finding the jury award inadequate and providing for additur in the amount of $16,-500.00, and providing for a new trial only on the issue of damages awardable to the plaintiff.

It is so ordered.

OVERTON, ALDERMAN and MCDONALD, JJ., concur.

SUNDBERG, C. J., dissents with an opinion in which BOYD and ENGLAND, JJ., concur.

SUNDBERG, Chief Justice,

dissenting.

Although I hesitate to enter the procedural-substantive fray, I find it impossible to resist these better instincts when confronted with Florida’s remittitur/additur statute. According to the weight of authority across the country this statute is procedural and is therefore invalid because it usurps the rule-making authority of this Court provided under article V, section 2(a), Florida Constitution (1972), in violation of article II, section 3, Florida Constitution. See Markert v. Johnston, 367 So.2d 1003 (Fla.1978). I perforce dissent.

Additur and remittitur both have their purpose in bringing the amount of damages awarded by a jury into accord with the trial judge’s opinion, without the necessity of a new trial. “Clearly, then, the practice of additur and remittitur emanate from the power of a court to grant a new trial on the ground of inadequacy or excessiveness of the amount of damages awarded by the jury verdict.” The practice of remittitur, which is alone allowed in federal courts, is a derivative power found under Rule 59(a) of the Federal Rules of Civil Procedure, the rule governing new trials. See 6A Moore’s Federal Practice § 59.05 (2d ed. 1979); 11 C. Wright & A. Miller, Federal Practice and Procedure §§ 2815, 2816 (1973). In Florida, as other states, matters governing or incident to new trials are procedural. See Fla. R.Civ.P. 1.530; Cal.Civ.Proc.Code § 657 (Deering 1973); Minn. Court Rules 59.01(5) (1980). Likewise, the federal courts have found that the process governing new trials in diversity cases is procedural, and hence controlled by federal procedure. Pitts v. Electro-Static Finishing, Inc., 607 F.2d 799, 802 (8th Cir. 1979).

Courts from various states have also found in near unanimity that remittitur and additur are procedural devices. Facing a choice of laws problem, the court in Stevens v. Missouri Pacific Railroad, 355 S.W.2d 122 (Mo.1962), found remittitur was a “procedural problem governed by the law of the forum.” Id. at 133. Courts in California, Michigan and New Jersey have characterized remittitur and additur as procedural devices. Jehl v. Southern Pacific Railroad, 66 Cal.2d 821, 832, 427 P.2d 988, 995, 59 Cal.Rptr. 276, 283 (1967); Tomei v. Bloom Associates, Inc., 75 Mich.App. 661, 669, 255 N.W.2d 727, 731 (1977); Keeley v. Big W Discount Supermarkets, Inc., 113 N.J.Super. 157, 160, 273 A.2d 364, 366 (1971). The Supreme Court of New Jersey adopted the following position on remittitur and additur: “ ‘The power to impose such terms [remittitur and additur] is inherent in the court and is regulated by the rules of the Supreme Court. . . . This is one of the constitutional prerogatives of the court, which cannot be interfered with by legislation.’ ” Fisch v. Manger, 24 N.J. 66, 78, 130 A.2d 815, 821-22 (1957). This procedural characterization is echoed by the commentators. See Comment, Additur—Procedural Boon or Constitutional Calamity, 17 DePaul L.Rev. 175, 175-76 (1967). In sum, virtually every legal authority views remittitur and additur as procedural.

But even more convincing is that every state which has either a statute or rule governing remittitur and/or additur has characterized the statute or rule in the nature of civil procedure. About one-half of these states has a codified procedural statute; the other half has a court rule. Conversely, no state has a statute dealing with remittitur or additur outside the area of procedure. Although known for its pioneering laws, I fear that the legislature is treading on rather swampy grounds with this very singular statute.

For these reasons I dissent from the majority’s principal holding, and would find that because additur is a procedural process, the legislature has unconstitutionally usurped the rule-making powers of this Court, and that section 768.043, Florida Statutes (1977), is therefore invalid.

BOYD and ENGLAND, JJ., concur.

      . 768.043 Remittitur and additur actions arising out of operation of motor vehicles.—
      (1) In any action for the recovery of damages based on personal injury or wrongful death arising out of the operation of a motor vehicle, whether in tort or in contract, wherein the trier of fact determines that liability exists on the part of the defendant and a verdict is rendered which awards money damages to the plaintiff, it shall be the responsibility of the court, upon proper motion, to review the amount of such award to determine if such amount is clearly excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact. If the court finds that the amount awarded is clearly excessive or inadequate, it shall order a remittitur or additur, as the case may be. If the party adversely affected by such remittitur or additur does not agree, the court shall order a new trial in the cause on the issue of damages only.
      (2) In determining whether an award is clearly excessive or inadequate in light of the facts and circumstances presented to the trier of fact and in determining the amount, if any, that such award exceeds a reasonable range of damages or is inadequate, the court shall consider the following criteria:
      (a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact.
      (b) Whether it clearly appears that the trier of fact ignored the evidence in reaching the verdict or misconceived the merits of the case relating to the amounts of damages recoverable.
      (c) Whether the trier of fact took improper elements of damages into account [or] arrived at the amount of damages by speculation or conjecture.
      (d) Whether the amount awarded bears a reasonable relation to the amount of damages [proved] and the injury suffered.
      (e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.
      (3) It is the intent of the Legislature to vest the trial courts of this state with the discretionary authority to review the amounts of damages awarded by a trier of fact, in light of a standard of excessiveness or inadequacy. The Legislature recognizes that the reasonable actions of a jury are a fundamental precept of American jurisprudence and that such actions should be disturbed or modified [only] with caution and discretion. However, it is further recognized that a review by the courts in accordance with the standards set forth in this section provides an additional element of soundness and logic to our judicial system and is in the best interests of the citizens of Florida. (Footnotes omitted).

      . RULE 1.530. MOTIONS FOR NEW TRIAL AND REHEARING; AMENDMENTS OF JUDGMENTS.
      (a) Jury and Non-Jury Actions. A new trial may be granted to all or any of the parties and on all or a part of the issues. On a motion for a rehearing of matters heard without a jury, including summary judgments, the court may open the judgment if one has been entered, take additional testimony and enter a new judgment.
      (b) Time for Motion. A motion for a new trial or for rehearing shall be served not later than 10 days after the rendition of verdict in a jury action or the entry of judgment in a non-jury action. A timely motion may be amended to state new grounds in the discretion of the court at any time before the motion is determined.
      (c) Time for Serving Affidavits. When a motion for a new trial is based on affidavits, they shall be served with the motion. The opposing party has ten days after such service within which to serve opposing affidavits, which period may be extended for an additional period not exceeding twenty days either by the court for good cause shown or by the parties by written stipulation. The court may permit reply affidavits.
      (d) On Initiative of Court. Not later than ten days after entry of judgment or within the time of ruling on a timely motion for a rehearing or a new trial made by a party, the court of its own initiative may order a rehearing or a new trial for any reason for which it might have granted a rehearing or a new trial on motion of a party.
      (e) When Motion for Unnecessary; Non-Jury Case. When an action has been tried by the court without a jury, the sufficiency of the evidence to support the judgment may be raised on appeal by an assignment of error whether or not the party raising the question has made any objection thereto in the trial court or made a motion for rehearing, new trial or to alter or amend the judgment.
      (f) Order Granting to Specify Grounds. All orders granting a new trial shall specify the specific grounds therefor. If such an order is appealed and does not state the specific grounds, the appellate court shall relinquish its jurisdiction to the trial court for entry of an order specifying the grounds for granting the new trial.
      (g) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later than ten days after entry of the judgment except that this rule does not affect the remedies in Rule 1.540(b).

      . Bender, Additur—The Power of the Trial Court to Deny a New Trial on the Condition That Damages Be Increased, 3 Cal.W.L.Rev. 1, 1 (1967).

      . Only one decision in this country has approached holding that additur is a substantive right. McCoy v. Wean United, Inc., 67 F.R.D. 495 (E.D.Tenn.1975). Though apparently holding additur substantive, the district court in contradiction relied on Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958), which required federal courts to follow state procedural rules which bear substantially on the litigation. The reliance on Byrd seems the main thrust of the opinion, undercutting the viability of McCoy.

      .Seventeen states have either procedural statutes or court rules which directly support the practices of remittitur and/or additur. The states that have court rules often use the same new trial rule number [59] as the Federal Rules of Civil Procedure. Ala.R.Civ.Proc. 59(f) (1975) (Rules of Ala.Sup.Ct., remittitur); Ariz.Rev.Stat. § 12-2104 (1956) & Ariz.Civ.Rules 59(i) (1973) (Courts & Civ.Proc., remittitur & additur); Ark.Stat.Ann. § 27-1903 (1979) (Civ. Proc., remittitur); Conn.Gen.Stat. § 52-228 (1981) (Rules of Civ.Proc.—Civ.Actions, limited to correcting mistakes); Ind.Rules of Court 59 (Burns Cum.Supp.1980) (Trial Proc.Rules, remittitur & additur); La.Code Civ.Pro.Ann. art. 1813 (West 1961) (remittitur & additur); Me.R.Civ.Proc. 59(a) (West 1970) (Me.Civ.Practice, remittitur & additur); Mass.Civ.Rules 59(a) (Law.Co-op 1974) (Civ. & Appellate Proc., re-mittitur & additur); Miss.Code Ann. § 11-1-55 (Cum.Supp.1980) (Civ.Practice & Proc., remittitur & additur); N.D.R.Civ.Proc. 59(b)(5) (1974) (remittitur); Tenn.Code Ann. §§ 20-10-101, 102, 103 (1980) (Civ.Proc., remittitur & additur); Tex.R.Civ.Proc. 328 (West 1981) (Tex. Sup.Ct.Rules, remittitur); Vt.R.Civ.Proc. 59(a) (1971) (remittitur & additur); Va.Code § 8.01-383.1 (1977) (Civ.Remedies & Proc., remittitur by implication); W.Va.Code § 58-2-5 (Michie 1966) (Appeal & Error, limited to correcting mistakes); Wash.Rev.Code § 4.76.030 (1979) (Civ.Proc.—New Trials, remittitur & additur); Wis.Stat.Ann. § 805.15(6) (West 1977) (Civ.Proc., remittitur & additur).


author: McDONALD, Justice. SUNDBERG, Chief Justice,

text:
    STATE DEPARTMENT OF REVENUE, Petitioner, v. Robert N. ANDERSON, etc., Respondents.
    No. 58994.
    Supreme Court of Florida.
    July 23, 1981.
    Rehearing Denied Sept. 29, 1981.

      Jim Smith, Atty. Gen. and Linda C. Proc-ta, Asst. Atty. Gen., Tallahassee, for petitioner.
    Howard Hochman of the Law Offices of A. John Goshgarian, Miami, for respondents.
   McDONALD, Justice.

The Court accepted jurisdiction to review alleged conflict between Anderson v. State Department of Revenue, 380 So.2d 1083 (Fla. 3d DCA 1980), and Pioneer Oil Co., Inc. v. State Department of Revenue, 381 So.2d 263 (Fla. 1st DCA 1980), approved, 401 So.2d 1319 (Fla.1981). Art. V, § 3 (b)(3), Fla.Const. Although we consolidated these cases for oral argument, we choose to issue separate opinions. We disapprove the Third District’s decision.

Anderson and Out Island Charters, Inc., sold, leased, repaired, and chartered yachts. From 1973 through 1976 Anderson, the principal of Out Island, sold yachts to individuals who entered into agreements whereby Out Island leased the yachts on a “bare boat” basis to third parties. Anderson did not collect sales tax from the purchasers, but did collect sales tax on third-party leases. When Anderson sold the yachts, none of his purchasers were registered dealers as required by chapter 212, Florida Statutes (1975 and Supp.1976). Anderson believed the transactions exempt from sales tax because the purchases were for rental purposes.

After an audit, the Department of Revenue (DOR) assessed more than $26,000 in sales tax, penalties, and interest. At Anderson’s request, most of the purchasers subsequently executed both affidavits stating that the yachts were used exclusively for leasing and certificates of resale; most also registered with DOR as dealers. On appeal from an adverse administrative decision, the Third District ruled that a taxpayer may avoid a tax assessment by showing that use was for an exempt purpose even though such taxpayer failed to file the required dealer’s certificate at the time of purchase.

We disagree with this basic holding. The principal purpose of chapter 212 is to raise revenue. See Gaulden v. Kirk, 47 So.2d 567 (Fla.1950). Section 212.05 declares that selling tangible personal property at retail is a taxable privilege and imposes a sales tax on such transactions. Sales tax is due and owing as of the moment of sale. § 212.06(1)(a), (3), Fla.Stat. Section 212.-02(3)(a) defines a retail sale as “a sale to a consumer or to any person for any purpose other than for resale” and further states that resales “must be in strict compliance with rules and regulations and any dealer making a sale for resale which is not in strict compliance with rules and regulations shall himself be liable for and pay the tax.” (Emphasis supplied.) A “sale” is defined to include lease or rental. § 212.02(2)(a), Fla.Stat. Additionally, anyone who wants to engage in business as a dealer must register with DOR. § 212.18(3), Fla.Stat.

Pursuant to its rule-making authority, DOR promulgated rule 12A-1.38, Florida Administrative Code, to implement the resale provisions of section 212.02(3)(a). The parts of rule 12A-1.38 pertinent to this case read as follows:

(1) It is the specific legislative intent that each and every sale, admission, use, storage, consumption or rental is taxable under Chapter 212, F.S., unless such sale, admission, use, storage, consumption or rental is specifically exempt. The exempt status of the transaction must be established by the dealer. Unless the dealer shall have taken from the purchaser a certificate to the effect that the property or service was purchased for resale and bearing the name and address of the purchaser and the number of his dealer’s certificate of registration or a certificate bearing the number of his consumer’s exemption certificate, the sale shall be deemed to be a taxable sale at retail.
(2) A resale certificate is required from every purchaser who purchases tangible personal property or service for resale. Otherwise the dealer will be required to collect and remit the tax to the Department of Revenue ....
(3) A dealer shall refuse to accept a resale certificate . . . and shall collect the tax unless the purchaser has obtained a dealer’s certificate of registration from the Department of Revenue and the number of his dealer’s certificate of registration is stated on the resale certificate.
(4) Any resale certificate containing the statement to the effect that a purchase is for resale which contains the date, purchaser’s name, address and dealer’s certificate of registration number and dealer’s signature shall be sufficient compliance with the law only to the extent provided by this rule. Such certificate shall show that the property or service was purchased (a) for resale or . . . (b) for some other purpose which is exempt under the law. Certificates issued under classification (a) may be given only by a purchaser who has obtained a dealer’s certificate of registration from the Department of Revenue, and the number of this certificate of registration must appear on the resale certificate. Certificates issued under classification (b) should bear the purchaser’s consumer’s certificate of exemption number when applicable.

(Emphasis supplied.)

By statute, therefore, a dealer who makes a sale for resale which does not comply with chapter 212 and DOR’s rules is himself liable for payment of the sales tax. By both statute and rule, a dealer must register with DOR. Finally, by rule, purchasers of items for resale must give their sellers certificates of resale bearing the name and address of the purchaser and the number of his dealer’s certificate of registration.

Although taxing statutes are strictly construed against a taxing authority, exemptions are strictly construed against the taxpayer. State ex rel. Szabo Food Services, Inc. v. Dickinson, 286 So.2d 529 (Fla.1973); United States Gypsum Co. v. Green, 110 So.2d 409 (Fla.1959). The legislature, besides giving DOR rule-making power and expressly requiring compliance with DOR’s rules and regulations, has stated its intent that any exemptions granted be subject to conditions pertaining to those exemptions. § 212.21(2), Fla.Stat. In the transactions in the instant case, the method of demonstrating exemption, as provided by statute and rule, was not followed. At the time of sale, none of Anderson’s purchasers was registered as a dealer and none gave; or even could have given, a valid certificate of resale. Unlike the district court, we do not find that the later registration and tender of certificates by some of the purchasers establishes their exempt status at the time of sale.

The power to make rules is essentially administrative and necessary to the complete administration of the law. See Richardson v. Baldwin, 124 Fla. 233, 168 So. 255 (1936). The legislature has given DOR rule-making power, which DOR has exercised in a reasonable manner. We realize that our ruling may impose a hardship on individuals in isolated instances, but any such hardship is outweighed by public policy considerations. Chapter 212 imposes a tax on the privilege of doing business, computed upon the price of the commodity sold or the service rendered. It is the responsibility of those benefitting from the privilege to comply with the statute and the rules promulgated pursuant thereto.

The district court’s reference to “double taxation” (380 So.2d at 1087) is unclear. We do not find that upholding this assessment will result in double taxation. See Ryder Truck Rental, Inc. v. Bryant, 170 So.2d 822 (Fla.1964); American Video Corp. v. Lewis, 389 So.2d 1059 (Fla. 1st DCA 1980). We disapprdve the court’s first holding.

We also disagree with the district court’s holding that DOR changed its position regarding the taxability of the instant transactions and that Anderson had a right to rely on the interpretation originally set forth.

In March 1973 Anderson purchased a sailing vessel and paid the applicable sales tax. He later incorporated Out Island Charters, and that corporation became registered as a dealer in July 1973. Because the vessel was being leased out, Anderson felt that his original purchase should have been exempt. In 1974 a refund of the sales tax paid by Anderson was made to Out Island.

The DOR examiner who corresponded with Anderson regarding the refund is now an area office coordinator for the department. Through a deposition received into evidence by the hearing officer, he testified that late registration as a dealer and late tender of a resale certificate would not prevent exemption of a sale for resale such as occurred in this case. In response to a subpoena requesting evidence of all such past transactions, however, this area coordinator could produce only one example where DOR had acknowledged such conduct as a tax exempt purchase. In opposition to this testimony, an examiner, another area office coordinator, and DOR’s executive director all testified that late registration and/or late tender of a resale certificate would not make a transaction exempt from sales tax.

In reaching its holding, the district court relied on Outdoor Advertising Art, Inc. v. Florida Department of Transportation, 366 So.2d 114 (Fla. 1st DCA 1979). In that case, the First District found the Department of Transportation’s (DOT’s) longstanding practice of not removing advertising signs even though permit fees were late constituted an administrative construction of the applicable statutes. The court regarded that policy as persuasive and refused to allow DOT to change it.

Given the conflicting testimony, we do not agree that DOR has a long-standing policy of allowing late registration as a dealer to relate back to the time of a sale in order to demonstrate an exemption. Therefore, we find the district court’s reliance on Outdoor Advertising to be misplaced.

As a general rule, equitable estop-pel will be applied against the state only in rare instances and under exceptional circumstances. North American Co. v. Green, 120 So.2d 603 (Fla.1959). Another general rule is that the state cannot be estopped through mistaken statements of the law. Department of Revenue v. Hobbs, 368 So.2d 367 (Fla. 1st DCA), appeal dismissed, 378 So.2d 345 (Fla.1979); Austin v. Austin, 350 So.2d 102 (Fla. 1st DCA 1977), cert. denied, 357 So.2d 184 (Fla.1978). In order to demonstrate estoppel, the following elements must be shown: 1) a representation as to a material fact that is contrary to a later-asserted position; 2) reliance on that representation; and 3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon. Greenhut Construction Co. v. Henry A. Knott, Inc., 247 So.2d 517 (Fla. 1st DCA 1971). Anderson failed to show the existence of these elements. If anything, the record demonstrates that Anderson knew, at least by the time of receiving the refund in 1974, that registration as a dealer and tender of a resale certificate were necessary to establish an exemption on a sale for resale.

We therefore disapprove the district court’s decision and remand this case for issuance of orders consistent with this opinion.

It is so ordered.

BOYD, OVERTON, ENGLAND and ALDERMAN, JJ., concur.

ADKINS, J., concurs in result only.

SUNDBERG, C. J., dissents with an opinion.

SUNDBERG, Chief Justice,

dissenting.

Because the hearing examiner found that the department had changed its policy or practice regarding the necessity for the dealer’s certificate during the progress of its determination of the tax due from the sale of respondent’s boats, which finding was accepted by the district court of appeal, I would approve the decision of the district court upon this alternative holding. See section 120.68(12)(b), Florida Statutes (1979); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Westerman v. Shell’s City, Inc., 265 So.2d 43 (Fla.1972).

      . In a “bare boat” lease, the lessor either does not provide a crew or else does provide a crew which is hired by the lessee under a separate employment contract.

      . Due to the time span involved in this case, the pertinent statutes are from 1971, 1973, 1975, and the 1976 Supplement. Statutory references are to the last two years because any amendments to the prior statutes are not pertinent to the disposition of this case.

      . The “other than for resale” language, therefore, includes merchandise to be rented or leased out after purchase.

      . “Dealer” includes persons who rent or lease tangible personal property. § 212.06(2)(e), Fla.Stat.

      . §§ 212.17(6), 212.18(2), Fla.Stat.

      . The record does not reflect that DOR was aware that an unregistered individual paid the tax and that a subsequently registered corporation received the refund.