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A Primer On Florida's 2023 Tort Reform

April 28, 2023

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<p style="text-align: justify;">The following contains an outline of the recent changes to Florida’s <a href="https://www.wcmlaw.com/wp-content/uploads/2023/04/Tort.pdf">Tort</a> law. A more detailed, but still limited, synopsis of some of the important changes follows the outline. The changes in Florida’s tort law are far reaching and a full reading of the enacting Bill, which is attached, is necessary to understanding the scope of Florida’s 2023 tort reform.</p>
<p style="text-align: justify;">Section 57.104, F.S was amended to create a rebuttable presumption that a lodestar fee is a sufficient and reasonable attorney fee in most civil actions; providing an exception where the only way to hire an attorney is by contingency.</p>
<p style="text-align: justify;">Section 86.121, F.S. was amended to authorize a court to award attorney fees in certain declaratory actions and to prohibit the transfer, assignment, or acquisition of the right to such attorney fees except by specified persons; providing applicability.</p>
<p style="text-align: justify;">Section 95.11, F.S. was amended to reduces the statute of limitations in negligence actions to 2 years, excepting certain actions involving service members.</p>
<p style="text-align: justify;">Section 624.155, F.S. was amended to establishes standards for bad faith insurance actions and established procedures for the distribution of insurance proceeds when two or more third-party claims arising out of a single occurrence exceed policy limits.</p>
<p style="text-align: justify;">Section 624.1552, F.S. was amended to provide for applicability of specified offer of judgement provisions to civil actions involving insurance contracts.</p>
<p style="text-align: justify;">Section 768.0427, F.S. was amended to providing definitions; establish standards for the admissibility of evidence to prove the cost of damages for medical expenses in certain civil actions; to require certain disclosures with respect to claims for medical expenses for treatment rendered under letters of protection; to specify the damages that may be recovered by a claimant for the reasonable and necessary cost of medical care.</p>
<p style="text-align: justify;">Section 768.0701, F.S. was created to require the trier of fact to consider the fault of certain persons who contribute to an injury.</p>
<p style="text-align: justify;">Section 768.0706, F.S. was created to provided definitions; to provide that the owner or principal operator of a multifamily residential property which substantially implements specified security measures on that property has a presumption against liability for negligence in connection with certain criminal acts that occur on the premises; to require the Florida Crime Prevention Training Institute of the Department of Legal Affairs to develop a proposed curriculum or best practices for owners or principal operators; to provide construction.</p>
<p style="text-align: justify;">Section 768.81, F.S. was amended to provide that a party in a negligence action who is at fault by a specified amount may not recover damages under a comparative negligence action; to provide applicability.</p>
<p style="text-align: justify;">Sections 626.9373 and 627.428, F.S. relating to attorney fees awarded against surplus lines insurers and insurers, respectively were repealed.</p>
<p style="text-align: justify;">Section 627.756, F.S. was amended to provide for the award of costs and attorney fees in certain actions.</p>
<p style="text-align: justify;">Sections 475.01, 475.611, 517.191, 624.123, 624.488, 627.062, 627.401, 627.441, 627.727, 627.736, and 628.6016, F.S. were amended to conform with the changes enacted.</p>
<p style="text-align: justify;">Sections 631. 70 and 631.926, F.S., relating to attorney fees were repealed.</p>
<p style="text-align: justify;">Section 632.638, F.S. was amended to conform with the changes enacted; amended to provide a directive to the Division of Law Revision; providing applicability and construction of the amendments and providing an effective date.</p>
<p style="text-align: justify;">MODIFIED COMPARATIVE NEGLIGENCE</p>
<p style="text-align: justify;">The Bill establishes modified comparative negligence; under modified comparative negligence, a plaintiff that is more negligent than the defendant may not recover.</p>
<p style="text-align: justify;">TWO-YEAR STATUTE OF LIMITATIONS FOR GENERAL NEGLIGENCE CLAIMS</p>
<p style="text-align: justify;">The Bill reduces the statute of limitations for general negligence from 4 years to 2 years.</p>
<p style="text-align: justify;">EVIDENCE ON PAST AND FUTURE MEDICAL EXPENSES</p>
<p style="text-align: justify;">The Bill details the evidence plaintiffs may introduce to establish past and future medical expenses:</p>
<p style="text-align: justify;">The evidence offered to prove the amount of past medical bills that have been paid at the time of trial is limited to the evidence of the amount actually paid, regardless of the source of payment. For unpaid past medical bills, the evidence allowed will depend on whether the plaintiff has health care coverage, Medicare, or Medicaid:</p>
<p style="text-align: justify;">Where plaintiff has health care coverage but obtains treatment under letter of protection or does not submit charges, evidence of amount that health care coverage would have paid to satisfy charges, plus plaintiff’s share of medical expenses, is admissible. Evidence of reasonable amounts that were billed to plaintiff for medically necessary treatment or services is also admissible.</p>
<p style="text-align: justify;">If plaintiff does not have insurance, or has Medicare or Medicaid, evidence of 120 percent of Medicare reimbursement rate in effect is admissible.</p>
<p style="text-align: justify;">If there is no applicable Medicare rate, evidence admissible is 170 percent of applicable state Medicaid rate.</p>
<p style="text-align: justify;">Recoverable damages cannot include amounts exceeding the bills in evidence. The amount may not exceed the sum of the amounts actually paid, amounts necessary to satisfy charges due and owing, and the amounts necessary for reasonable and necessary future medical treatment and services.</p>
<p style="text-align: justify;">When determining future medical damages, the “usual and customary” amount depends on whether the plaintiff has health care coverage:</p>
<p style="text-align: justify;">Where the plaintiff has health care coverage other than Medicare or Medicaid, evidence of amount that could be satisfied if charges were submitted, in addition to portion of medical expenses under insurance contract, is admissible.</p>
<p style="text-align: justify;">If plaintiff does not have insurance, or has Medicare or Medicaid, evidence of 120 percent of Medicare reimbursement rate in effect is admissible.</p>
<p style="text-align: justify;">If there is no applicable Medicare rate, evidence admissible is 170 percent of applicable state Medicaid rate.</p>
<p style="text-align: justify;">LETTERS OF PROTECTION AND REFERRALS</p>
<p style="text-align: justify;">The Bill requires that Letters of Protection be disclosed and that all bills for medical expenses be itemized and coded. Where plaintiff is referred for treatment under a letter of protection that must be disclosed, along the referrer, including plaintiff’s attorney (overturning Worley v. Central Florida Young Men’s Christian Ass’n, Inc., 228 So. 2d 18 (Fla. 2017)).</p>
<p style="text-align: justify;">INSURANCE BAD FAITH CLAIMS GENERALLY</p>
<p style="text-align: justify;">The Bill creates in a duty, on the part of the insured, claimant and representatives, to act in good faith in providing information, making demands, setting deadlines, and attempting to settle insurance claims. The trier of fact may consider whether the insured, claimant and/or their representative acted in good faith and may reasonably reduce the damage awarded if they have not. Negligence alone is insufficient to support a claim for bad faith against an insurer.</p>
<p style="text-align: justify;">There is no bad faith where the insurer tenders the lesser of the policy limits or the amount demanded by the plaintiff within 90 days of receiving actual notice of the claim and sufficient evidence supporting the claim. Failure to tender is not bad faith, and the existence of the 90 days is inadmissible in a bad faith action. Where the insurer does not tender, the statute of limitations is extended by 90 days.</p>
BAD FAITH WHERE MULTIPLE CLAIMS EXCEED POLICY LIMITS
<p style="text-align: justify;">Where multiple claims arising out of a single occurrence exceed the policy limits, an insurer will not be liable for damages based on failure to pay any or all of the policy limits within 90 days where:</p>
<p style="text-align: justify;">The insurer interpleads for a determination of all claims, and where the damages exceed the policy limits, the claimants will share on a prorata basis share; or</p>
<p style="text-align: justify;">The insurer tenders its policy limits during binding arbitration, in which the arbitrator will determine each claimants’ pro rata share of policy limits after considering comparative fault and the likely outcome at trial. Where a claim is resolved by the arbitrator, the settling claimant must give the insured party a release.</p>
<p style="text-align: justify;">NEGLIGENT SECURITY</p>
<p style="text-align: justify;">The Bill modifies negligent security law. Where a person lawfully on the property is harmed by the criminal act of a third party, the trier of fact must now apportion fault all persons, including the criminal, that contributed to the injury or death. A party attempting to or engaged in a criminal act on the property may not hold the owner or operator of the property liable in negligence.</p>
<p style="text-align: justify;">HB 837 also creates a presumption against negligence, in negligent security cases, in favor of the owner or operator of a multifamily residential properties where the owner / operator demonstrates “substantial compliance” with crime assessments, crime and safety training for employees, and safety and security measures including:</p>
<p style="text-align: justify;">Security camera system at exit and entry points that maintains video retrievable for 30 days;
A lighted parking lot from dusk to dawn;
Lighting in common areas, porches, walkways, and laundry rooms from dusk to dawn;
A deadbolt measuring at least one inch in every door;
Locking devices on every window and sliding door;
Locked gates at pool fence areas; and
A peephole or viewer on door that does not have a window or window next to the door.</p>
<p style="text-align: justify;">LODESTAR FEE CALCULATION PRESUMPTION</p>
<p style="text-align: justify;">The Bill creates a strong presumption that a lodestar fee calculation, i.e., the number of hours reasonably been spent by the attorney multiplied by a reasonable hourly rate, is reasonable and sufficient. Th presumption may be overcome “in rare and exceptional” cases where the evidence shows that competent counsel cannot be retained without a contingency fee multiplier.</p>
<p style="text-align: justify;">ATTORNEYS’ FEES IN INSURANCE CASES</p>
<p style="text-align: justify;">The Bill limits one way attorney’s fees in insurance cases to declaratory judgment actions where the insurer has denied coverage for the claim. Establishes that providing a defense under a reservation of rights is not a denial of coverage. Establishes that where an insurer denies coverage and an insured obtains a declaration of coverage, the court must award the insured a reasonable attorneys' fee for the fees incurred in the declaratory judgment action. Precludes assignment of the insured’s rights to recover prevailing party attorney’s fees in declaratory judgment actions. Limits the recovery of prevailing party attorney’s fees to declaratory judgment actions “to determine coverage of insurance issued under the Florida Insurance Code.”</p>
<p style="text-align: justify;">The Bill also makes § 768.79, F.S., Florida’s offer of judgment / proposal for settlement statute, applicable to civil actions involving insurance contracts.</p>
<p style="text-align: justify;">Thanks to Charles “Chip” George for this post. Please contact Chip with any questions.</p>

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