Florida Issues - ATRA

Phantom Damages Reform

Attorney General Sunshine / Private Attorney General Sunshine

Reforms

Attorney General Sunshine: H.B. 437; Fla. Stat. § 16.0155

Florida

Prohibited the Department of Legal Affairs of the Office of

Prohibited the Department of Legal Affairs of the Office of the Attorney General from entering into contingency fee contracts with private attorneys unless the Attorney General made a written determination prior to entering into such a contract that contingency fee representation was both cost effective and in the public interest. Required the Attorney General, upon making his or her written determination, to request proposals from private attorneys to represent the Department of Legal Affairs on contingency-fee basis unless the Attorney General determined in writing that requesting such proposals were not feasible under the circumstances. Provided that written determination did constitute final agency action, and provided that requests for proposals and contract awards were not subject to challenge under the Administrative Procedure Act. Required maintenance of specified records, limited the amount of contingency fee that may be paid to private attorney pursuant to contract with the Department of Legal Affairs, and required Internet posting of specified information

Appeal Bond Reform

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Appeal Bond Reform: SB 2198 (2009)

Florida|2009

Limits the amount a defendant can be required to pay

Limits the amount a defendant can be required to pay to secure the right to appeal to $200 million. The limit applies to Engle progeny litigation, and creates an overall appeal bond cap for all of these cases combined. The entities covered by the statute include signatories to the Master Settlement Agreement, successors, and affiliates.

Unchallenged

Appeal Bond Reform: H.B. 841 (2006); Fla. Stat. § 45.045

Florida|2006

Limits the amount a defendant can be required to pay

Limits the amount a defendant can be required to pay to secure the right to appeal in any civil action, except for certified class actions subject 768.733, to $50 million.

Unchallenged

Class Action Reform

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Class Action Reform: S.B. 2198 (2009)

Florida|2009

Provides that a stay of judgment is executed during interlocutory

Provides that a stay of judgment is executed during interlocutory appeal.

Unchallenged

Class Action Reform: H.B. 7529 (2006)

Florida|2006

Prohibits out-of-state residents from filing lawsuits in Florida courts unless

Prohibits out-of-state residents from filing lawsuits in Florida courts unless the claim occurred or emanated from the state. Requires claimants to prove actual damages in order to maintain certain types of class actions. Would not preclude the Attorney General from bringing a class action to cover statutory penalties.

Unchallenged

Joint and Several Liability

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Joint and Several Liability Reform: H.B. 145 (2006); Fla. Stat. § 768.36, Fla. Stat. § 768.098; Amending Fla. Stat. § 768.81.

Florida|2006

Bars application of joint and several liability in the recovery

Bars application of joint and several liability in the recovery of all damages.

Joint and Several Liability Reform: HB 775 (1999); Fla. Stat. Ann. § 768.81.

Florida|1999

Bars application of the rule of joint and several liability,

Bars application of the rule of joint and several liability, where the plaintiff is at fault, and where the defendant is 10% or less at fault. Limits joint liability to $200,000, where the plaintiff is at fault, and where the defendant is more than 10% but less than 25% at fault. Limits joint liability to $500,000, where the plaintiff is at fault, and where the defendant is at least 25% but not more than 50% at fault. Limits joint liability to $1 million, where the plaintiff is at fault, and where the defendant is more than 50% at fault. Bars application of the rule of joint and several liability, where the plaintiff is not at fault, and where the defendant is less than 10% at fault. Limits joint liability to $500,000, where the plaintiff is not at fault, and where the defendant is at least 10% but less than 25% at fault. Limits joint liability to $1 million, where the plaintiff is not at fault, and where the defendant is at least 25% but not more than 50% at fault. Limits joint liability to $2 million, where the plaintiff is not at fault, and where the defendant is more than 50% at fault.

Judgement Interest Reform

Medical Liability Reform

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Medical Liability Reform: H.B. 479 (2011)

Florida|2011

Requires an M.D., D.O., or D.D.S. licensed in another state

Requires an M.D., D.O., or D.D.S. licensed in another state to obtain an expert witness certificate before being able to provide expert testimony in Florida.

Gives the Boards of Medicine, Osteopathic Medicine, and Dentistry the specific authority to discipline any expert witness, both those licensed in state and those with an expert witness certificate, who provide deceptive or fraudulent expert witness testimony.

Requires the Board of Medicine and the Board of Osteopathic Medicine to create a standard informed consent form that sets forth the recognized risks related to cataract surgery. Provides that an incident resulting from a recognized specific risk is not considered an adverse incident.

Deletes the provision in current law that prohibits an insurance company from selling a malpractice insurance policy to a physician that gives the physician the authority to control settlement decisions.

Excludes from evidence in any medical negligence action any information regarding an insurer’s reimbursement policies or reimbursement determinations.

Provides that the breach of, or failure to comply with, any federal requirement is not admissible as evidence in a medical negligence case.

Provides that the expert witness who submits the pre-suit verified expert medical opinion is no longer immune from discipline.

Creates a new pre-suit form, the “authorization for release of protected health information.” This will make it easier for a physician to obtain the patient’s health care information in a malpractice suit.

Provides that volunteer team physicians are immune from suit when gratuitously rendering care at a school athletic event.

Unchallenged

Medical Liability Reform: Expert Evidence: H.B. 7015 (2013)

Florida|2013

Provides that a witness qualified as an expert by knowledge, skill,

Provides that a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion as to the facts at issue in a case under certain circumstances. It requires the state to interpret and apply the principles of expert testimony in conformity with the United States Supreme Court’s decision in the Daubert case.

Noneconomic Damages Reform

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Medical Liability Reform: Noneconomic Damages Reform: CS SB 2-D (special session 2003).

Florida|2003

Provides for emergency room practitioner limits on noneconomic damages of

Provides for emergency room practitioner limits on noneconomic damages of $150,000 per claimant, with an aggregate of $300,000. Provides for emergency room facility limits on noneconomic damages of $750,000 per claimant, with an aggregate of $1.5 million and full setoffs for practitioner payments. Provides for non-practitioner limits on noneconomic damages of $750,000 per claimant, with an aggregate for all claimants. Provides for practitioner limits on noneconomic damages of $500,000 per claimant, with an aggregate limit for all claimants of $1 million, but no single practitioner shall be liable for more than $500,000 regardless of the number of claimants.

Challenged and Struck Down

The Florida Supreme Court held the limit on noneconomic damages unconstitutional in Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014).

Automobile Liability Reform: HB 775 (1999).

Florida|1999

Limits the liability of an owner or lessor of an

Limits the liability of an owner or lessor of an automobile to $100,000 per person or $300,000 per incident for bodily injury, and $50,000 for property damage. Limits the liability of an uninsured or under-insured person to $500,000 for economic damages only. The reform does not apply in cases involving commercial vehicles used in the ordinary course of business and the transportation of hazardous materials.

Product Liability

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Government Rules Defense: H.B. 775 (1999)

Florida|1999

Provides a rebuttable presumption of liability if the product violated

Provides a rebuttable presumption of liability if the product violated any such standards. Provides a rebuttable presumption that a product is not defective if the product met federal or state standards.

Unchallenged

State of the Art Defense: H.B. 775 (1999)

Florida|1999

Requires a jury to consider the state of the art

Requires a jury to consider the state of the art of scientific and technical knowledge that existed at the time when the product was manufactured.

Unchallenged

Punitive Damages

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Medical Liability Reform: Nursing Homes: Punitive Damages: SB 1202 (2001).

Florida|2001

Requires a plaintiff to prove punitive damages by clear and

Requires a plaintiff to prove punitive damages by clear and convincing evidence in cases against nursing home facilities. Limits punitive damages against nursing home facilities to the greater of three times the award of compensatory damages or $1 million. Limits punitive damages against nursing home facilities to the greater of $4 million or four times the award of compensatory damages, where conduct is proven to be motivated by financial gain. Sets no limit on the award of punitive damages against nursing home facilities, where intentional harm is proven.

Punitive Damages Reform: HB 775 (1999)

Florida|1999

Limits punitive damages to the greater of three times the

Limits punitive damages to the greater of three times the award of compensatory damages or $500,000. Limits punitive damages to he greater of four times compensatory damages or $2,000,000, where the defendant’s wrongful conduct was motivated by an unreasonable financial gain or the likelihood of injury was known. Prohibits the award of multiple punitive damages awards based on the same act or course of conduct unless the court makes a specific finding that earlier punitive damages awards were insufficient. Requires a plaintiff to prove by clear and convincing evidence that a defendant acted with intentional misconduct or gross negligence for the award of punitive damages. Outlines circumstances when an employer is liable for punitive damages arising from an employee’s conduct. The reform does not apply to cases involving abuses to the elderly or children, or cases where the defendant is intoxicated.

Unchallenged

Miscellaneous

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Property Insurance Reform – S.B. 2-D (Special Session)

Florida|2022

Assignment of Benefits Prohibits assignment of the right to obtain

Assignment of Benefits

Prohibits assignment of the right to obtain attorney fees in suits arising out of a property insurance policy to persons other than a named or omnibus insured or a named beneficiary under the policy. Result is that assignment agreements may occur, but the assignee vendor will no longer be able to recover attorney fees in suits against an insurer. Applies to property insurance lawsuits brought by vendor assignees against authorized insurers and surplus lines insurers. Eliminates statutory language detailing the methodology for awarding attorney fees to plaintiffs or defendants in litigation brought by an assignee of benefits under a property insurance policy. The language is no longer necessary because the bill prohibits assignment of the right to recover attorney fees in suits arising out of a property insurance policy. Revises the definition of “assignment agreement” to include assignments executed by a party that inspects the property, clarifies that public adjuster fees are not an assignment agreement, and clarifies the requirement to provide a Notice of Intent to Initiate Litigation before filing suit. Requires that a valid AOB must specify that the assignee will hold harmless the assignor from all liabilities, including attorney fees.

Attorney Fee Multipliers

Creates a new standard for the award of an attorney fee multiplier in property insurance litigation. Creates a presumption that in property insurance cases, attorney fee awards based on the Lodestar methodology are sufficient and reasonable. Attorney fee multipliers may only be awarded under rare and exceptional circumstances with evidence that competent counsel could not be hired in a reasonable manner. Allows a court to award attorney fees when a first-party claimant’s property insurance suit is dismissed without prejudice for failure to provide a Notice of Intent to Initiate Litigation.

Attorney Fees Dismissal for Failure to Provide Notice

Provides that a defendant insurer may obtain attorney fees and costs associated with securing a dismissal without prejudice for failure to provide the required Notice of Intent to Initiate Litigation at least 10 days before filing a suit against a property insurer.

First Party Bad Faith

Requires a claimant to establish a property insurer breached the insurance contract in order for the claimant to prevail in a bad faith claim for extracontractual damages under s. 624.155(1)(b), F.S. Applies to civil remedy actions based upon a property insurer: not attempting in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for his or her interests; making claims payments to insureds or beneficiaries not accompanied by a statement setting forth the coverage under which payments are being made; or except as to liability coverages, failing to settle claims promptly, when the obligation to settle a claim has become reasonably clear, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy.

Unchallenged

Property Insurance Reform – S.B. 2-A (Special Session)

Florida|2022

Arbitration A property insurance policy may not require that a

Arbitration

A property insurance policy may not require that a policyholder participate in mandatory binding arbitration unless all of the following apply: (1) the mandatory binding arbitration requirements are contained in a separate endorsement attached to the property insurance policy; (2) the premium that a policyholder is charged for the policy includes an actuarially sound credit or premium discount for the mandatory binding arbitration endorsement; (3) the policyholder signs a form electing to accept mandatory binding arbitration. The form must notify the policyholder of the rights given up in exchange for the credit or premium discount, including, but not limited to, the right to a trial by jury; (4) the endorsement establishes that an insurer will comply with the mediation provisions set forth in s. 627.7015 before the initiation of arbitration; and (5) the insurer also offers the policyholder a policy that does not require that the policyholder participate in mandatory binding arbitration.

Assignment of Benefits

Prohibits the assignment, in whole or in part, of any post-loss insurance benefit under any residential property insurance policy or under any commercial property insurance policy issued on or after January 1, 2023.

Attorney Fees in Property Insurance Cases

Provides that the one-way attorney fee provisions are not applicable in a suit arising under a residential or commercial property insurance policy. Reinstates application of the civil offer of judgment statute to civil actions arising under a residential or commercial property insurance policy and allows joint offers of settlement in property insurance litigation contingent on acceptance of all joint offerees. Removes provisions regarding attorney fees relating to the alternative procedure for resolution of disputed sinkhole insurance claims.

Bad Faith Failure to Settle Actions against Property Insurers

Provides that bad faith litigation for failure to settle a property insurance claim may not be filed until after the insured has established through adverse adjudication by a court that the insurer breached the insurance contract and a final judgment or decree has been rendered against the insurer.

Claim Filing Deadline

Reduces the deadline for policyholders to report a claim under the policy from 2 years to 1 year for a new or reopened claim, and from 3 years to 18 months for a supplemental claim.

Unchallenged

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