House and Senate tort bills coming together
The Senate Judiciary Committee has signed off on sweeping litigation reforms, many long demanded by industry to combat “lawsuit abuse,” “nuclear verdicts,” and “billboard attorneys.”
The committee voted 8-4 on March 14 to approve a revised SB 236 by Sen. Travis Hutson, R-Palm Coast.
Hutson noted that the number of witnesses who submitted appearance cards fell from 250 at the first committee to 150 and suggested that changes resulting from negotiations with the House are mollifying critics.
“There are bad actors on both sides of the aisle,” he said, referring to insurers and trial attorneys. “Ultimately, the goal is to strike a balance.”
In nearly three hours of debate, critics, including Democrats, veteran trial lawyers, human trafficking survivors, the father of a Parkland school shooting victim, and others, blasted the proposal, saying it would deny just compensation to Florida’s most vulnerable.
Supporters, including the Florida Chamber of Commerce, Associated Industries of Florida, the Florida Insurance Federation, the National Federation of Independent Business, and the Florida Justice Reform Institute, urged the sponsors to protect businesses and insurers from predatory lawsuits.
Democrats on the committee continued to complain that sponsors are rushing myriad changes to a complex system that is designed to protect people harmed by the actions of others.
“I continue to have some of the same concerns with the bill that I expressed the last time that I saw it,” said Sen. Geraldine Thompson, D-Orlando. “It flips the duty to act in good faith to the consumer, even though it’s the insurance company that acted in bad faith.”
Hutson offered a 34-page “delete everything” amendment that he said makes the Senate proposal nearly identical to HB 837 by Rep. Tommy Gregory, R-Lakewood Ranch. The House is poised to begin debating the companion March 16.
Among other things, HB 837 called for repealing Florida’s fee-shifting statute that for decades has required insurers to pay a policyholder’s attorney fees and costs if a court determines that the company unfairly denied or underpaid a claim.
Both chambers have since agreed to permit fee shifting in limited circumstances, Hutson said.
However, Hutson acknowledged that the reforms would still require many plaintiffs to pay their own legal fees.
Sen. Thompson said she doubted plaintiffs could find a lawyer willing to work on a contingency basis.
“How likely is it that an individual, an attorney, is going to put in all the work, without the assurance that they are going to be compensated?” she asked.
Hutson predicted the reforms would drive down the cost of legal services as plaintiffs shop for lower fees.
“So, we’re going to create competition with this, and it’s going to be good for the consumers,” he said.
Other provisions would reduce the statute of limitations for negligence actions from four years to two and move Florida from a “pure” to a “modified” comparative negligence standard.
The change would mean that a plaintiff who is found more than 50% at fault would be denied damages – or a defendant who is found only 49% at fault would pay nothing.
But both chambers have agreed to exempt medical malpractice from the modified standard, Hutson said.
Sen. Gayle Harrell, R-Stuart, said she was concerned the exemption will blunt the benefits of the reforms.
“Why are we eliminating medical malpractice from this?” she said.
But Hutson said that’s where he draws the line.
“I think a doctor that commits 49% damages should still be on the hook as far as it relates to a patient still receiving full damages for a suit,” he said.
Both chambers now agree on revised process for protecting insurers from a bad-faith actions, Hutson said.
The House proposed giving insurers 120 days after a policy holder makes a claim to offer to pay the claim, or the policy limits, whichever is less, to avoid bad-faith liability.
Both chambers now agree that the insurer should have 90 days from when the claim is filed to make the offer, Hutson said.
The Florida Justice Association warned that a “damages transparency” section of the original House proposal would limit damages for some severely injured plaintiffs to 140% of the Medicaid reimbursement rate. Hutson said the House and Senate have agreed to raise that provision to 170% of the Medicaid rate.
The thrust of damages transparency, supporters say, is to prevent plaintiffs from presenting “phantom” or inflated medical expenses to juries to artificially inflate damages.
Much of the debate in Senate Judiciary Committee focused on a premises liability provision.
The reforms seek to protect apartment and other multi-family housing property owners from liability when a criminal kills or injures a resident.
Property owners who take certain precautions, such as securing access, video monitoring, and lighting, would receive immunity.
To remain in compliance, the property would have to undergo periodic inspection. Hutson said the Senate demanded more frequent inspections, and the House relented.
But critics, including MADD and other victim advocates, strenuously oppose a provision that would allow juries in premises liability cases to apportion part of the blame to the criminal defendant.
Rep. Mike Gottlieb, D-Plantation, and a lawyer, tried unsuccessfully to strip the provision from the House bill, arguing that Florida courts have always resolved civil and criminal cases in separate forums. Critics predicted that jurors in civil suits would apportion blame to criminal defendants who are the least able to pay damages.
Jeff Binkley told the panel he filed a civil suit after his 21-year-old daughter, Maura, an FSU senior, was killed in a Tallahassee yoga studio mass shooting in November 2018.
Had the reform measures been in place, the defendant would have risked going to trial instead of accepting responsibility and agreeing to settle, Binkley said.
“This is a hammer in search of a nail, and if you pass this, that hammer is going to land on victims,” he said.
Another opponent told the committee that her 17-year-old son was killed by a stray bullet at a complex where the owners allowed gang violence to fester.
“It would be reprehensible for the condominium to avoid responsibility by pointing the finger at the killer,” she said.
Curry Pajcic, president of the Florida Justice Association, warned that a young woman who was savagely assaulted at an apartment complex would be “forced to share the verdict form” with her assailant in a civil trial.
“Who’s the jury going to blame more, that animal who raped her, or the apartment complex?” he said. “That jury is going to blame that animal. You would do it — I would do it.”