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Legislature passes comprehensive tort legislation

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Sen. Travis Hutson

Sen. Travis Hutson

The Florida Legislature has passed sweeping litigation reforms proponents say will combat lawsuit abuse, rebalance the justice system, and rein in “billboard lawyers.”

“We have a fundamental problem in Florida when you turn on your TV or radio and the ad says if you have been injured call an attorney first, do not call your insurance, call an attorney,” Sen. Travis Hutson, R-Palm Coast, said moments before the Senate voted 23-15 on March 23 to approve HB 837. “That is a problem. It’s not right and it is because current law allows this to happen and people believe they won the jackpot with a litigation lottery.”

Hutson said the reality in Florida is that insurance rates are skyrocketing.

“We have two heavyweight titans going at it right now,” he said. “One side wants to keep as much money in their pockets as possible while the other side wants to take far more money than is reasonable. And while these two industry giants are fighting back and forth, it is our constituents and our businesses that are being hurt and affected.”

Hutson said the bill being sent to the governor will help fix the problem.

Opponents say the bill  weakens accountability for insurance companies and will push more cases into an already underfunded court system.

Describing the measure a day earlier, Hutson said the bill specifies the admissibility of evidence in personal injury and wrongful death cases so that the juries get an accurate picture of medical damages; sets clear guidelines for insurance companies, claimants, and insureds in third-party claims cases in order to reduce third-party bad faith incidents and lawsuits; and changes Florida from a “pure” to a “modified” comparative negligence standard jurisdiction.

“This means that a party that is majority at fault for their own injuries cannot recover damages,” Hutson said.

That means a plaintiff found more than 50% at fault would be denied damages — or a defendant who is found only 49% at fault would pay nothing.

Medical malpractice cases are exempt from the modified standard.

The bill repeals Florida’s fee-shifting statute in most cases 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.

Another provision reduces the statute of limitations for negligence actions from four years to two, Hutson said, noting that provision does not apply to service members on active duty.

“We address premises liability to require the fault of all parties to be considered in certain circumstances,” Hutson said. “This allows the jury to receive full transparency of what actually happened in the case and are able to make a decision with parties at fault.”

Hutson also said the bill requires multi-family apartment unit owners to “regularly review and beef up their security for their premises in order to gain a presumption of non-negligence.”

Hutson noted nothing in the bill isn’t already being done in other states.

Sen. Erin Grall

Sen. Erin Grall

Before the bill was rolled over to third reading, Sen. Erin Grall, R-Vero Beach, unsuccessfully tried to amend sections of the bill pertaining to bad faith, the verdict form, and the enactment date.

“For 85 years when insurance companies failed to protect their insured in bad faith, the policyholders could hold the insurance companies accountable because it exposed them to excess judgments,” said Grall, a trial lawyer. “This bill strips those protections by giving insurance companies a pass when they don’t act in their policyholder’s best interest.”

Grall said the justice system is “very complete” in the way evidence is presented with the standards that must be met under Daubert when lawyers put experts on the stand testifying under oath with scientifically backed evidence, facts, and methodologies.

“I keep hearing everything about slick trial lawyers, slick trial lawyers, slick trial lawyers,” Grall said. “People don’t get how a conservative Republican can be a trial lawyer and it’s awful; it is so uncomfortable. At the core of my principles is personal responsibility and I believe it is at the core of a number of you who serve on this body. And that is what our system is built on and that is how it survives. We should be rewarding people who buy insurance to make sure they are taken care of in their worst times. We should make sure we are holding them up and protecting them against an industry that may not have their best interest at heart when it comes to paying out a claim and they know they are responsible.”

In debate, Grall said her firm prides itself on settling 90% of its cases, but that takes time and the new timeframes in the bill will force firms to file suits to preserve their claims that will then have to be handled by an already underfunded and understaffed court system.

REP. GERALDINE THOMPSON“This bill tells us that the problem is with billboard lawyers,” said Sen. Geraldine Thompson, D-Orlando. “Nobody talks about the complicity of and the responsibility of the insurance companies in creating the problem that we have and insurance premiums have gone up more than double in the state of Florida.”

Sen. Jim Boyd

Sen. Jim Boyd

But Sen. Jim Boyd, R-Bradenton, who works in the insurance industry, says claims are filed and handled every day.

“I’ve said it over and over and I’ll say it again, by and large insurance companies treat their customers fairly,” Boyd said. “Guess what, if they didn’t, they would not be in business for very long.”

Boyd said insurance companies want to settle claims fairly, promptly, and efficiently, but admits that occasionally insurance companies act poorly and this bill provides a way to hold them accountable.

“This bill takes nothing away from their ability to seek redress in the courts if they are treated maliciously or poorly,” he said. “What it does take away are claimants getting $1,000 and attorneys getting $50,000 or $100,000 to represent them on that $1,000 claim.”

Curry Pajcic, president of the Florida Justice Association, says the legislation creates roadblocks for the average Floridians to be able to access the courts.

“In just three short weeks, Florida lawmakers rushed through some of the largest rights-grabbing legislation in recent history,” Pajcic said in a statement. “This bill significantly limits the ability of Floridians to hold wrongdoers accountable and effectively gives Big Insurance the keys to our state and our court process.”

Supporters included 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.

“We are grateful to have strong leaders in Florida who have moved to combat the plague of frivolous lawsuits,” said Scott Shalley, president and CEO of the Florida Retail Federation. “Costly, unjust litigation is extremely harmful to retail businesses, costing them millions, putting jobs at risk and forcing them to increase costs on consumers just to break even. With this legislation, we’re bringing justice back to the justice system, increasing protections for both businesses and consumers.”

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