2023 Issues Book

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P R OT EC T I N G & P R E S E RV I N G J U S T I C E

2023 FJA ISSUES BOOK

Our Mission The Florida Justice Association® (FJA), formerly the Academy of Florida Trial Lawyers (AFTL), is dedicated to strengthening and upholding Florida’s civil justice system and protecting the rights of all Floridians.

All Floridians benefit when all have a fair chance to seek justice in our state’s courts and all Floridians are safer when large corporations and industries are held to a high ethical standard and accept fair responsibility for their actions.

FJA works in the legislative, political and public arenas to ensure that Floridians know and understand the importance of their rights and to make certain that our 7th Amendment right to a jury trial and our Florida constitutional right of access to the courts, are safeguarded and protected.

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I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its Constitution.

President Thomas Jefferson

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Contents 1 Preserving Affordability 05 Responsibility-Based Roadways 06 Protecting Drivers & Passengers 10 Trucking Liability 12 Protecting Consumers and Businesses 14 Preserving Floridians’ Rights 18

2 Protecting Floridians 20 Preserving Justice for All 22 Preserving Fairness for Victims 24 Defending Property Owners 26 Protecting Property Owners from Negligent Builders 32

3 Preserving Access to the Courts

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Harming Victims 36 Protecting Injured Victims 39 Medical Records 41 Asbestos 42 Solicitation of Non-Medical Services 44

We the People In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

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SECTION 1

PRESERVING AFFORDABILITY

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PRESERVING AFFORDABILITY

RESPONSIBILITY BASED ROADWAYS Florida is one of only two states in the nation that do not require drivers to carry liability insurance for injuries they cause to others.

Florida is far behind the rest of the country when it comes to protecting its citizens from staggering economic losses and higher insurance costs for all drivers - meaning we all pay higher auto insurance rates.

Currently, there is no requirement that drivers carry the kind of responsibility-based liability insurance that can protect drivers against the high-dollar value losses that can occur in moderate – let alone serious – car crashes.

We need a return to responsible roadways in Florida.

Lawmakers can pass legislation allowing the state to join the 48 other states that require all motorists to have a reasonable amount of bodily injury liability insurance, marking a return to responsible roadways in Florida.

In Florida, current law only requires car owners to carry $10,000 in “Personal Injury Protection” coverage (PIP) and $10,000 in property damage liability insurance. These are among the worst and lowest financial responsibility requirements in the country.

FLORIDA ROADWAYS Florida roadways are some of the most dangerous in the country. In 2022, Florida statistics show:

389,453 total crashes

248,025

of the crashes resulted in injuries

3,442

of the crashes resulted in fatalities

Two out of three Floridians carry responsibility-based bodily injury liability auto coverage. As a result of our omission of bodily injury liability requirements, Floridians who want “full coverage” need to buy “uninsured motorist” insurance coverage.

66% Ensuring that all motorists carry uninsured motorist (UM) coverage will put Florida on the path to responsible roadways in Florida and lower the cost of car insurance for all drivers.

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SELECT YEAR 2022

SELECT CRASH COUNTY

All SELECT CRASH TYPE ALL CRASHES

DATA IN THIS VIEW COVERS CRASHES OCCURING BETWEEN 1/1/2022 AND 12/31/2022.

DATA IS CONSIDERED PRELIMINARY AS OF 01/28/2023

ALL CRASHES

FATALITIES FROM ALL CRASHES

389,453

INJURIES FROM ALL CRASHES

248,025

3,442

TOTAL FATAL CRASHES HOLMES

3,202

SANTA ROSA

WASHINGTON

BAY

TOTAL INJURY CRASHES

GADSDEN

NASSAU

HAMILTON JEFFERSON

LIBERTY

BAKER SUWANNEE

WAKULLA TAYLOR

160,261

ST JOHNS

BRADFORD

FRANKLIN GILCHRIST

PUTNAM FLAGLER LEVY

TOTAL BICYCLE CRASHES

MARION VOLUSIA

CITRUS

7,109

PERCENTAGE OF ALL CRASHES INVESTIGATED BY EACH LAW ENFORCEMENT AGENCY TYPE

TOTAL BICYCLE FATALITIES

LAKE

SEMINOLE

HERNANDO PASCO

BREVARD OSCEOLA

HILLSBOROUGH INDIAN RIVER

208 MANATEE

HARDEE OKEECHOBEE

SARASOTA

TOTAL MOTORCYCLE CRASHES Sheriff Dept.

29.11% (113,355)

9,095

FHP 29.96% (116,691)

CHARLOTTE

LEE

GLADES

HENDRY

COLLIER

TOTAL MOTORCYCLE FATALITIES Other 0.09% (358)

586 TOTAL PEDESTRIAN CRASHES

9,965

BROWARD

MIAMI-DADE

Police Dept.

40.84% (159,049) © 2023 Mapbox © OpenStreetMap

TOTAL PEDESTRIAN FATALITIES

TOTAL HIT AND RUN CRASHES

TOTAL HIT AND RUN FATALITIES

TOTAL HIT AND RUN INJURIES

104,931

266

22,884

756

TOTAL CRASHES

PALM BEACH

DATA IN THIS VIEW COVERS CRASHES OCCURING BETWEEN 1/1/2022 AND 12/31/2022.

30,000 20,000 10,000

DATA IS CONSIDERED PRELIMINARY AS OF 01/28/2023.

0 Jan 2022

Mar 2022

May 2022

Jul 2022

Sep 2022

Nov 2022

FJA supports legislation that ensures drivers have access to quality and timely repairs from shops they trust, the option to have replacement windshields that meet OEM specifications, and promotes safety for everyone on Florida’s roads.

FJA supports legislation that repeals PIP and replaces it with mandatory bodily injury insurance coverage with policy limits of at least $25,000 per person/$50,000 per incident and considering options such as recurring coverage for emergency medical care.

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Currently, there is no requirement that drivers carry the kind of responsibility-based liability insurance that can protect drivers against the high-dollar value losses that can occur in moderate – let alone serious – car crashes.

FLORIDA ROADWAYS Florida roadways are some of the most dangerous in the country. In 2018, Florida statistics show:

As a result of insufficient financial responsibility laws, Florida taxpayers lose millions of dollars to higher taxes every year, picking up the tab for the treatment and care of victims of negligent drivers who are either uninsured or, more commonly, underinsured.

$46 Million Medical Costs

$4.35 Billion

This shifting of costs from the responsible to the innocent is an inconsistent policy. Florida should join the 48 other states that require all motorists to have a reasonable amount of bodily injury liability insurance.

Work Loss Costs

$4.40 Billion

In fact, two out of three Floridians already carry responsibility-based bodily injury liability auto coverage. As a result of our omission of bodily injury liability requirements, Floridians who want “full coverage” need to buy “uninsured motorist” insurance coverage.

Total cost of traffic crash deaths in Florida.

3,442 People are killed annually in Florida in motor vehicle traffic crashes.

No-fault laws and fraud. Florida, Michigan, New York and Pennsylvania have no-fault laws in place, and unfortunately, no-fault states tend to have higher rates of fraud, which pushes the cost of car insurance up in these states.

SOURCE: enter for Disease Control and Prevention, National Center for Injury Prevention and Control, 2018, www.cdc. gov/motorvehiclesafety/statecosts

SOUTHERN STATE CRASH FATALITIES STATS Total Population in 2018 (MM)

Traffic crash death costs in 2018

Florida

21.3 M

$4.40 B

North Carolina

10.4 M

$2.26B

Georgia

10.5 M

$2.10B

South Carolina

5.1 M

$1.56B

Tennessee

6.8 M

$1.54B

Alabama

4.9 M

$1.53B

Kentucky

4.5 M

$1.06B

Mississippi

3.0 M

$1.00B

SOURCE: Forbes Advisor, Car Insurance Rates By State For 2023, January 3, 2023.

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A Responsible Approach Eliminating Florida’s inefficient, no-fault/PIP system and replacing it with a responsibility-based system that holds bad drivers financially accountable for the crashes they cause would put Florida in line with 48 other states.

This includes blocking any legislative provisions that would weaken the law and create avenues for insurance companies to act in bad faith.

Good legislation reforming the state’s auto insurance requirements would mark a return to responsible roadways in Florida and lower the cost of car insurance for Floridians.

Following other states’ successful leads, the Florida Justice Association supports legislative initiatives to reform Florida’s obsolete auto liability environment, including requiring mandatory bodily injury liability coverage with policy limits of at least $25,000 per person/$ 50,000 per incident and considering options such as recurring coverage for emergency medical care.

FJA supports legislation that repeals PIP and replaces it with mandatory bodily injury insurance coverage with policy limits of at least $25,000 per person/$50,000 per incident and considering options such as recurring coverage for emergency medical care and limits bad faith changes to 45day safe harbor 9

PRESERVING AFFORDABILITY

PROTECTING DRIVERS & PASSENGERS Companies with large trucking fleets tend to insure themselves at far greater levels than the mandated minimum because it makes economic sense—they want insurance to cover their costs and not leave them picking up the excess costs caused by a crash. However, 90% of trucking companies operate six trucks or less, and these smaller companies are notorious for operating with bare minimum levels of insurance. Faced with paying damages from a truck crash, these companies frequently close down and then “reincarnate” with a different name. The FMCSA has long battled these so-called “chameleon” companies, but they have proven nearly impossible to stop.1

Examine the feasibility of an industry-wide insurance surcharge passed on to shippers; Conduct a cost-benefit analysis on raising the minimum insurance level.

The rate of truck crashes and fatalities has more than doubled over the last 10 years.

The federal minimum levels of insurance were set in 1980, have not changed in 41 years, and are now completely inadequate. Florida’s minimums are even lower.

Trucking insurance is decreasing in cost and makes up only around 4% of operating costs.

Raising insurance minimums will not only better compensate crash victims but also allow insurance to function properly and provide an economic incentive for companies to operate safely.

1 What Are Chameleon Carriers and Why Are They Dangerous? Trucks.com, September 14, 2015, https://www.trucks.com/2015/09/24/whatis-a-chameleon-carrier-and-why-are-theydangerous/.

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AUTO SAFETY GLASS Motor vehicle lenders often require borrowers to also purchase comprehensive motor vehicle insurance coverage. As a result, a Florida consumer who owes money on a motor vehicle often pays for auto glass repair/replacement coverage as part of their insurance policy.

Prompt, quality windshield repair is a matter of public safety. Damaged windshields represent the primary safety hazard on automobiles because they cause visual impairment and put the safety of drivers and others at risk.

For modern cars, the safety and even the structural integrity of the vehicle depend on manufacturer’s original equipment (OEM) glass.

Florida law has no specific requirements applicable to insurance claims made for damaged auto safety glass except that deductibles are prohibited. Instead, these claims are handled according to the terms of the auto insurance policy paid for by the consumer.

Current law allows drivers to choose their repair shops freely while fostering a healthy, competitive, free-market environment for Florida businesses. This allows drivers to choose repair facilities that specialize in auto glass repairs, including ensuring any installations meet the exact specifications of the car’s manufacturer - often referred to as original equipment manufacturer (OEM).

FJA supports insurance minimums for all motor carriers increasing to reflect the much higher costs of catastrophic truck crashes compared to 40 years ago.

FJA opposes any legislation that would lessen the insurance requirements for trucking companies.

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PRESERVING AFFORDABILITY

TRUCKING LIABILITY Highways have become deadlier. The number of people injured in large truck crashes has more than doubled over the last 10 years, while fatalities increased 43%.

According to the Federal Motor Carrier Safety Administration (FMCSA), the rate of truck crashes and fatalities has more than doubled over the last 10 years.

Fatalities 65% INCREASE1

In 2018, the most recent year for which data is available, over 150,000 people were injured in truck crashes and over 5,000 were killed.1 Not surprisingly, the vast majority of people killed in crashes involving trucks are the occupants of cars that are hit. A passenger in a vehicle that collides with a truck is four times more likely to die than the truck driver.2

Raising insurance minimums will not only better compensate crash victims but also allow insurance to function properly and provide an economic incentive for companies to operate safely.1

Injury Crashes 95.7% INCREASE1

3,619

5,560

9,300

90,601

2009

2021

2009

2021

The minimum levels of insurance were set in 1987, have not changed in 34 years, and are now completely inadequate.1

Property Damage Only Crashes 1

2x the number of truck crashes and fatalities over the last 10 years.1

2009 2019

287,000

Trucking insurance is decreasing in cost and makes up only around 4% of operating costs.1

65% INCREASE

474,000

1 Large Truck and Bus Crash Facts 2018, Federal Motor Carrier Safety Administration (FMCSA), 2020, https://www.fmcsa.dot.gov/safety/data-and-statistics/large-truckand-bus-crash-facts-2018. 2 https://injuryfacts.nsc.org/motor-vehicle/road-users/larg

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REPORT:

“How the Cash Rich Insurance Companies Fake Crisis and Create Social Inflation” Before analyzing the insurance data in this area, it is worth examining the troubling safety record of the trucking industry. In 1999, the U.S. Department of Transportation Inspector General (DOT IG) told Congress there were so many large truck- and bus-related injuries and fatalities on U.S. roads that motor carrier safety had become “the number one public safety issue in the Department of Transportation.”

Yet 2018 marked the highest number of largetruck occupant fatalities since 1988. As of June 2019, fatalities in crashes involving large trucks or buses had grown from 4,455 in 2013 to 4,949 in 2018, an 11 percent increase.

In 2017, there were 102,000 injury crashes involving large trucks, a 5 percent increase from the previous year and a 59 percent increase from a decade earlier. Of the nearly 5,000 people killed in these crashes each year, 82 percent of victims are not large-truck occupants.

Truck crash deaths jump 13% to ‘crisis’ level “This crisis on our roads is urgent and preventable,” commented NHTSA Deputy Secretary Steven Cliff. “We will redouble our safety efforts and we need everyone — state and local governments, safety advocates, automakers and drivers — to join us. All of our lives depend on it.”3

The danger posed by large trucks is increasing while the compensation for those killed or injured is shrinking or effectively disappearing. Truck drivers are pushed to ignore safety measures, delay repairs, and drive in a fatigued state.

3 https://www.fmcsa.dot.gov/safety/data-and-statistics/large-truck-and-bus-crashfacts-2020#A5

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PRESERVING AFFORDABILITY

PROTECTING CONSUMERS & BUSINESSES Insurer Responsibility Through Bad Faith Protections Current Florida law requires that insurance companies treat their policyholders in good faith.

This is because policyholders not only expect to rely upon insurance companies’ expertise, but they have to surrender complete control to the insurance companies when facing claims.

“Bad faith” laws create accountability for insurers to uphold their duties to policyholders and that consumers can have the confidence that insurance companies will act diligently and efficiently to settle claims.

Bad faith accountability provides good consumer protections, as well as protections for businesses, who are often consumers of the biggest liability insurance policies.

FLORIDA CONSTITUTION SECTION 21.

ACCESS TO COURTS. The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.

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Sebo Exposes Insurance Companies Anti-Consumer Claims Handling Practices Insurance companies generally try to hide claims file documents and other internal materials showing how a claim was handled. Further, internal documents showing the company’s claims directives and culture are often not turned over without court intervention. The Sebo claims practice lawsuit was delayed by such non-disclosure and resulted in a reported appellate decision in 2021.1 The Florida Second District Court of Appeal, quoting prior Florida Supreme Court precedent, raised this fundamental question: “How is one to ever determine whether an insurance company has processed, analyzed, or litigated a claim in a fair, forthright, and good faith manner if access is totally denied to the underlying file materials that reflect how the matter was processed and contain the direct evidence of whether the claim was processed in ‘good’ or ‘bad’ faith?”

The appellate court noted that underlying claims documents need to be turned over even if there are objections based on the “work product” privilege from the underlying litigation: “The Ruiz court noted that section 624.155, Florida Statutes (2005), is a ‘statutory remedy [that] essentially extended the duty of an insurer to act in good faith and deal fairly in those instances where an insured seeks first-party coverage or benefits under a policy of insurance.’. . . Therefore, ‘work product protection that may otherwise be afforded to documents prepared in anticipation of litigation of the underlying coverage dispute does not automatically operate to protect such documents from discovery in the ensuing, or accompanying, bad faith action.’ …

1 Am. Home Assur. Co. v. Sebo, 324 So.3d 977 (Fla. 2d DCA 2021).

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The supreme court held: ‘that in connection with evaluating the obligation to process claims in good faith . . . , all materials, including documents, memoranda, and letters, contained in the underlying claim and related litigation file material that was created up to and including the date of resolution of the underlying disputed matter and pertain in any way to coverage, benefits, liability, or damages, should also be produced in a first-party bad faith action.’ . . . the general magistrate correctly determined that the requested documents were not shielded by the work product doctrine, because the claims materials are needed to determine whether AHAC acted in bad faith.”

Bad Faith Protections Preserves Insurer Responsibility Bad faith laws protect consumers and businesses by ensuring when there is a claim, insurance companies investigate, evaluate, and communicate settlement offers to the customer.

Insurers must attempt to provide the services and expertise necessary to settle the case on behalf of the policyholder.

Bad faith laws ensure policyholders have all the information they need to responsibly settle claims.

Bad faith laws prevent insurers from simply choosing not to pay the policy limits and walking away during a large case with a multi-million-dollar judgment against the insured, resulting in the insured consumer having no remedy against their insurance company who caused them to get sued.

Bad faith laws ensure the duty of good faith is owed to the insured—the defendant in the case who is liable. The defendant picks his insurance company but obviously can’t pick who the plaintiff’s lawyer will be. The duty owed by the insurance company to its insured should be the same, regardless of whether the plaintiff’s lawyer is considered cooperative or not.

If settlement proves to be impossible because of the plaintiff’s obstruction or for any other reason, there is NO bad faith. Imposing a new condition that can take away the rights of the insured because of a potentially uncooperative adverse lawyer is unnecessary and contrary to the close fiduciary relationship that should exist between an insurance company and its own customer.

Florida’s bad faith laws maintain consumer protections that hold insurance companies responsible and discourage them from failing to properly pay valid claims.

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What is Insurer Bad Faith?

An insurance company acts in bad faith when it intentionally minimizes the value of a claim by:

Knowingly underestimating damages;

Misrepresenting facts or policy provisions; or Ignoring requests and evidence.

All with the goal of underpaying, delaying or denying payment of legitimate claims.

FJA opposes any legislation that would weaken insurer bad faith law and create avenues for insurance companies to act in bad faith.

FJA supports bad faith laws that protect consumers by holding insurance companies responsible and discouraging them from failing to properly pay valid claims.

FJA supports legislation that prohibits insurance companies from including bad-faith payments in their rates.

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PRESERVING AFFORDABILITY

PRESERVING FLORIDIANS’ RIGHTS Consumer Prevailing Attorney Fees (s. 627.428 F.S.) Florida law allows property owners to sue their insurers if the company denies or underpays homeowners’ claims. Included in that is Florida’s specific “consumer prevailing party attorney fee.”

The consumer prevailing attorney fee means that property owners can bring suit against your insurance company without the threat of having to pay for the insurance corporation’s costly defense lawyers.

Insurance companies convinced lawmakers to repeal Florida’s Consumer-Prevailing Attorney Fee statute in first party property cases that had effectively been in place for over 100 years during the December 2022 special session on property insurance reforms.

This law recognizes that Goliath insurance companies and corporations have the upper hand when dealing with consumers who are mandated to purchase auto and property insurance, insurance

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company lawyers write your contracts and don’t let you negotiate the terms.

Insurance companies are known to spend hundreds of thousands of dollars each year on defense attorneys, with many companies keeping an army of attorneys on retainer.

There is only one reason insurers want to remove this consumer protection: to discourage consumers from pursuing claims against them, even when they have wrongfully denied, delayed, or underpaid claims.

While insurance companies have plenty of money to pay attorneys and keep them on retainer, hiring an attorney is costly for property owners.

Particularly when in property insurance lawsuits, any dollars received from an insurer are determined to be those owed to the property owner under the insurance contract and solely for the purpose of repairing the insured property.

What does the elimination of the Consumer Prevailing Attorney Fee mean to property owners?

Florida’s consumer-wins statute has been the law since 1959, but suddenly in 2022, the insurance industry has made repealing this law a legislative priority. Repealing this important consumer protection means that homeowners now have to pay their attorneys out of the money intended to cover their loss.

FLORIDA LAW Florida law already protects insurers against attorneys that file frivolous claims. Sec. 57.105 awards attorneys fees against attorneys that file frivolous claims.

Why aren’t defendants using this law?

This anti-homeowner shift tips the scales significantly in insurance companies favor. It allows insurance companies to threaten homeowners with attorney fees on top of the already costly insurance premiums all Florida property owners pay.

This incentivizes insurance companies to deny or low-pay claims systematically, even more so than they do today.

Companies know that repealing this consumer protection law will discourage average Floridians from considering filing a lawsuit even when their insurance company violates their rights.

Homeowners will have to pay the insurance attorneys out of their own pockets. If a homeowner loses their suit against an insurance corporation, they will still have to their attorney.

This puts Florida property owners in the position of taking on significant legal debt in addition to repair costs, debt, and devastation they have already been burdened with in the wake of a catastrophic event.

Insurance industry lawyers want to take away property owners’ rights. Insurance companies know that even this threat is enough to deter many average homeowners from pursuing their claims in court.

Because they know the claims aren’t frivolous.

FJA Opposes Any further changes to s. 627.428 F.S. limiting the ability for consumers to receive statutory attorney fees. Without the protection of 627.428 insurance consumers will have to pay their attorneys by the hour, or a contingency fee basis, taking money out of victims’ pockets and lessening what they are able to recover.

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SECTION 2

PROTECTING FLORIDIANS

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PROTECTING FLORIDIANS

PRESERVING JUSTICE FOR ALL Florida lawmakers have an opportunity to ensure that citizens have access to the courts, due process, and appropriate compensation in the wake of devastating injuries or loss of life and hold public entities accountable when they fail to keep students and employees safe.

Current Florida law protects local governments, their employees, and other entities providing services on behalf of the government when they may be liable for compensating victims.

Current law caps the state and its subdivisions’ liability for claims to $200,000 per person and $300,000 per incident. The cap applies to all claims, even wrongful death actions. If damages rise above these limits, an injured party must go to trial and prove their damages to a jury.

Once a favorable verdict is obtained, the victim then must work to get a claims bill filed in the Legislature, passed, and signed into law—a challenging prospect that can be subject to shifting political winds.

A fundamental responsibility of government is to protect its citizens. When government negligently harms one of its citizens, it should be held accountable for the harm caused.

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Putting a cap on damages in lawsuits, regardless of the person, situation, or how negligent someone was, puts a government mandated price on a human life.

It is immoral to assign a specific dollar value to a human life in the law.

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Ensuring justice for all injured parties requires reforming Florida’s sovereign immunity limits and the claims bill process, including: • Repealing the “per person” and “per incident” limits and replacing them with a $1 million liability limit.

• Adding a cost-of-living provision to adjust the liability limit each year based on the U.S. Bureau of Labor Statistics Consumer Price Index.

• Speeding up the delivery of justice by allowing settlement agreements that exceed the $1 million cap to bypass the claims bill process..

• Allowing egregious claims to bypass the claims bill process.

• Prohibiting insurance companies from conditioning the payment of any benefit on the enactment of a claims bill.

• Allowing settlement agreements to exceed the limits of insurance carried by the state, its agencies, or subdivisions.

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FJA supports legislation that raises sovereign immunity limits from $200,00 to $400,000 per person and from $300,000 to $600,000 per incident.

Opioid Epidemic & Sovereign Immunity Opioid overdoses have killed more than 10,000 Floridians, and the ongoing opioid epidemic has required local municipalities to respond by spending millions to acquire life-saving medications. A statewide legislative fix is needed to recoup the growing costs of this epidemic.

In Florida, local governments are custodians of local public resources, authorized to pursue litigation to seek justice on behalf of their citizens and taxpayers. Any allowance of the Attorney General to preempt pending local government suits and settle or dismiss them without any assurances that the affected local communities would be made whole.

and, ultimately, their citizens.

It’s time that pharmaceutical companies are held responsible for the damage they have caused to our communities and families. Opioids are continuing to destroy Florida, and “big pharma” must be accountable. Our state’s civil justice system should be allowed to seek justice for victims and hold those liable who have contributed to and continue to benefit from the growing opioid crisis.

Lawyers working on behalf of the local governments are hired for their expertise and are in the best position to advocate for the best result for their clients. The attorneys retained by local governments are knowledgeable about their local government clients’ cases and are accountable to the local government’s elected representatives

FJA opposes any legislation designed to curtail local governments from filing opioid lawsuits prohibiting local and regional governmental entities from entering into contingency fee contracts above specified limits with private attorneys and law firms.

FJA supports legislation that holds pharmaceutical companies responsible for damages they have caused related to Florida’s growing opioid epidemic.

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We’re talking about removing dead bodies from our libraries, from our streets, from our parks. This is absolutely a local response, and any type of political opportunism is lost on me.

Melissa McKinlay, Palm Beach County Commissioner McKinlay said the county has spent at least $43 million over the last 10 years on battling the epidemic, which at its peak, she said killed 626 people in the county. And those dollars are a conservative estimate that do not include the cost to the sheriff’s office, she said. It also doesn’t include the costs to each city in the county for similar services.

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PROTECTING FLORIDIANS

PRESERVING FAIRNESS FOR VICTIMS Corporate special interests attack so-called “litigation funding” because it balances the scales when David takes on Goliath corporations and their army of defense attorneys. Litigation funding is merely a means by which an injured person can obtain much-needed money for their everyday expenses to get them through until their claim is resolved. Calling it litigation funding is misleading because the funds do not fund the litigation or lawsuit.

Litigation funding has served as a valuable financial resource and allows the plaintiff to focus on obtaining needed treatment and getting their livelihood back. As many lenders have stopped writing personal loans, this funding source is often the only option for these customers.

Financial hardship resulting from an injury should NOT be used against victims in a lawsuit. Litigation funding affords victims equal access to justice by relieving the inherent financial hardship of a lawsuit.

An inherent high risk and cost are associated with advancing funds on a non-recourse basis. This is because if the customer does not obtain a litigation outcome that covers the advanced funds (or no recovery at all), the financing company takes that loss, not the customer. As such, the inherent high risk of this funding requires a higher interest rate.

Legal funders are allies for victims.

This is done by advancing funds, allowing victims to pursue valid claims without having to accept an unjustly low settlement offer due to financial hardship. When legal funds are unavailable, victims are forced to abandon the lawsuit altogether or settle for a lowball offer due to the financial burdens resulting from the accident.

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Funding companies provide a non-recourse solution to victims and remove the financial burden on the individual during a time of need.

Florida courts have repeatedly acknowledged that legal funding is not prohibited in the state and a Florida Bar Opinion issued in 2002 provides guidelines for attorneys who have clients that are in desperate need of funding, including thoroughly discussing with the client the risks and benefits of entering into such agreements.

Individuals forced to file a lawsuit against an insurer on their face a behemoth in resources and experience.

Birny Birnbaum, head of the Center for Economic & Social Justice (CESJ)

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”

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At a time when people are injured - perhaps seriously - and possibly also unemployed, having a financial advocate “removes the insurer’s opportunity to bleed the injured party with a routine underpayment” of insurance settlements.

Robert Hunter, director of insurance, Consumer Federation of America.

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FJA Opposes Legislation that would remove critical rights and protections for victims by limiting or eliminating access to the litigation funding industry in Florida. This includes any legislation that would require that funding agreements entered into by victims are disclosed to the defendant.

The only reason for this is that the defendant knows the plaintiff is suffering financial hardship, giving them an advantage over the victim. With this knowledge, the corporate interests will return to the tactic of “waiting out” the injured party due to their financial hardship.

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PROTECTING FLORIDIANS

DEFENDING PROPERTY OWNERS

Hurricane Michael Damage

1,046

Open Claims (home & business)

21,763

Claims closed without receiving a single penny

Source: OIR Hurricane Michael claims data as of November 2, 2020.

Did you know?

It’s been more than four years since the Cat-5 Hurricane Michael devastated 15 Panhandle and North Florida counties in 2018, yet thousands of property insurance claims remain open and unpaid.

In the time since Hurricane Michael hit, 1,046 property owners (home and business) still have open claims, and approximately 21,763 have had their claims closed without receiving a single penny.1

property insurance reforms not once, not twice, but three times. Each time, the reforms have been touted to be necessary to lower property insurance rates in Florida, while severely limiting the rights of Florida property owners.

Failing to pay claims properly is a bad insurance industry practice that promotes delays and low payments. Policyholders should be better protected, and insurance companies should uphold their promise to policyholders by resolving claims quickly and fully.

Despite the repeated reforms, Floridians continue to pay some of the highest property insurance premiums in the country, and now, making matters worse for property owners, the new laws make it harder for property owners to hold insurance companies accountable when they don’t pay claims fully, fairly or timely.

Since 2021, the Legislature has passed significant

Homeowners Left Behind: The Albaugh Family October 10, 2018

October 2020

Hurricane Michael (Cat 5) makes landfall near Mexico Beach, Florida, demolishing over 150,000 properties, including the Albaughs family residence.

After multiple adjusters, delays, and no payments under the terms of their insurance policy, the Albaughs reach out to an attorney.

October 2018 The Albaughs returned shortly after following mandatory evacuation orders for Mexico Beach residents. They return to find their family home in ruins but begin working to salvage what belongings they can. They immediately filed a claim with their insurer FedNat.*

TIMELINE

Office of Insurance Regulation Hurricane Michael Claims Data November 2, 2020. https://www.floir.com/Office/HurricaneSeason/HurricaneMichaelClaimsData.aspx 1

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Meet Jonathan and Natalie Albaugh Jonathan and Natalie Albaugh are residents of Mexico Beach, Florida. Jonathan is a retired Air Force veteran who continues to protect and serve our country as a private counterterrorism security specialist working on Tyndall Air Force Base.

They are the proud parents of six children. Their family home was destroyed in 2018 when Hurricane Michael made landfall near Mexico Beach. Natalie was 23 weeks pregnant.

Four years post Hurricane Michael. They have yet to receive payment for their claim from their insurance company FedNat. The family of eight had been living in a travel trailer on their property until shortly before Thanksgiving 2022, when the City of Mexico Beach fined them, saying the travel trailer violated city ordinances and forced them to leave their property.

While the Albaughs fight to rebuild, receiving nothing from their insurance policy and coming out of pocket for any maintenance, repairs, and rental property while they wait to rebuild, insurance company CEOs racked in millions in compensation.

FedNat CEO Michael Braun stepped down in July 2022 as the company was on the brink of insolvency. Upon his exit, Braun received a “golden parachute” of $1.2 million.

The Albaugh family of eighthas had to live in a travel trailer on their property for four years after Hurricane Micheal destroyed their home.

August 2022 A settlement is ordered after the insurance company is found to have unfairly delayed and underpaid the Albaughs’ claim by more than $300,000.

September 2022 FedNat declares insolvency and was put into receivership in September 2022.

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November 2022

LEFT: 17-year-old Vanessa Albaugh shares her family‘s struggles to have their Hurricane Michael claim paid with Rep. Tom Leek, sponsor of House‘s property insurance legislation, during a hearing during the December 2022 special session

RIGHT: Jonathan and Natalie Albaugh brought their entire family of eight to Tallahassee during the December special Albaughs forced off their property by the City of Mexico session on property insurance to share Beach due to their travel trailer their struggles waiting for their insurance company, FedNat to pay their Hurricane violating city ordinances.

Michael claim

WHAT’S REALLY BEHIND RISING INSURANCE RATES? Insurance rates in Louisiana, Texas, and Florida are – unfortunately – consistently the highest in the country. During 2019, according to the Insurance Information Institute (III), Louisiana had the highest average rates at $2,037, followed by Florida at $1,988; Texas was third at $1,982. These rates align perfectly with the explanations given for the increase in rates nationwide: increased damage from natural disasters and increased replacement and construction costs.

These simple facts are at odds with the industry’s tortured claims that litigation is driving Florida’s rate increases. Florida’s rates are statistically tied with the two most comparable states, so if the industry report is correct and Florida represents an outsized proportion of litigation, then litigation cannot be blamed for Florida’s rates. The insurance industry has created a distraction from the real problems and pushing a narrative that supports their ongoing push for tort reform that hurts consumers.

$2,037

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$1,988

$1,982

For three years, property insurance reforms championed by the insurance industry have done nothing to reduce property insurance rates for property owners and have created some of the most egregious anti-policyholder provisions that are costly for property owners, on top of some of the highest insurance premiums in the country - and makes matters worse by removing any avenue they have to hold insurance companies accountable when they don’t uphold their contract with policyholders.

Florida’s property insurance market: Limits homeowners’ rights. Homeowners can no longer receive statutory attorney fees from insurance companies even when an insurance company has been found to have treated a policyholder unfairly by denying, delaying, or underpaying their claim. The change in law effectively replaced the prevailing consumer attorney fee law that had been in place for more than 100 years.

Creates unnecessary & costly burdens for policyholders. Requires unnecessary written notice of intent demand letter procedure 60 days before a suit can be filed. However, the Notice of Intent cannot be filed before the insurer has made a “determination of coverage” under section 627.70131 (the 90-day prompt pay law). These new time-consuming and expensive new processes will increase the insurance companies’ anti-consumer practice of delaying, denying, and underpaying legitimate claims. This means that property owners cannot fight their carrier for at least 150 days after having suffered a disaster.

Enforces extremely limiting timelines for policyholders to file claims. Property owners now only have one year to file a notice of intent on an initial claim and a mere 18 months to file a notice of a supplemental claim when the initial claim requires needed changes. If these deadlines are missed, the insurance claims are barred, and the policyholder is left on their own. These significant prompt claims burdens mean property owners must comply with these extremely burdensome timelines before they may know the full extent of the damages for which they file a claim. At the same time, the Legislature has weakened the prompt pay requirements for insurance companies.

Consumer timeline lacks enforcement. At the same time, the timeframes insurance companies have to respond to a claim, and there are not any enforcement mechanisms.

This gives insurance companies another way to delay their response to claims without an enforcement mechanism holding them accountable. Additionally, the bill allows the timeframes to be avoided if there are factors “beyond the control” of the insurance company.

“Beyond the control,” which is broadly defined and could include something as simple as “technical difficulties.”

Limits access to the courts. Property owners will only be able to hold an insurance company accountable for the claims handling requirements, thereby harming a policyholder, if there has been a trial court judgment in an underlying suit. In other words, even when an insurance company has violated its contract with homeowners and acted in bad faith, they cannot hold an insurance company accountable for not acting in good faith.

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Imposes mandatory binding arbitration on policyholders. Insurance companies can prevent access to courts by placing mandatory binding arbitration provisions in insurance policies as an enticement for lower premiums. Many property owners may opt for the savings, not understanding that it removes their constitutional right to a jury trial. Homeowners who accept a policy with a mandatory arbitration clause will not be told that they cannot get their attorney fees paid, even if they win at arbitration. They will have to pay their attorney hourly or pay their attorney out of the award meant to rebuild their home.

Unfairly burdens property owners after a loss. Homeowners are on the hook for all appraisal and arbitration costs, which can severely limit the “net” that homeowners ultimately recover from their insurance company, making it extremely difficult to have enough funds at the end of a dispute to actually repair and/or rebuild or replace damaged or destroyed contents.

“Aristocratic justice.” The recent property insurance reforms have made hiring an attorney so cumbersome and costly that most homeowners cannot afford it. This is in addition to the burdensome costs they have already had to take on due to the damage to their property.

Taxpayer-funded bailouts for insurance companies. In the May 2022 special session, lawmakers approved the $2 billion Reinsurance to Assist Policyholders Program (RAP) to help Florida property insurance companies struggling to obtain enough reinsurance and provide some premium relief for policyholders. Insurance companies received funds by reducing their rates in an attempt to lower premiums paid by consumers. However, while insurance companies are getting millions from the RAP program, policyholders are seeing little to no reduction in premiums and, in some cases, seeing their policies canceled by the companies who received funds from the bailout. For example: United Property & Casualty Insurance received $167 million from the RAP program. The company announced in early December that it would no longer offer property insurance in Florida and that its more than 140,000 policies would be canceled by May 2023, according to OIR. At the same time, UPC is struggling to cover its Florida policies. It has paid its CEO more than $4.2 million annually since 2017

Despite multiple broad-reaching property insurance reforms passed by industry supporters in the past three sessions, there have been minimal improvements to the insurance marketplace that actually benefit consumers.

None of the recent reforms will do anything to improve the environment for Florida’s property owners, no guaranteed rate relief, no rate freezes, nothing. At the same time, insurance companies are being held less accountable, facing less regulation, and continuing to receive taxpayer-funded bailouts.

Policyholders are living up to their end of the bargain under the insurance contract. It’s time the Legislature put real reforms in place to ensure insurance companies do the same.

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FJA supports the following improvements to current law to defend Florida homeowners and better protect their property • Prompt Pay Law – s. 627.70131, F.S. – Current law exists to force insurance companies to adjust and pay uncontested claims within 90 days promptly, but there is no meaningful enforcement.

The bill deletes the current law immunity, which prevents a private cause of action.

• Make the 90-day prompt pay law applicable to commercial and surplus lines insurers.

• Valued Policy Law (VPL) - s. 627.702, F.S. - Ensure insurance companies pay policy limits when there is an undisputed total loss. Insurance companies are ignoring it and blaming flood insurers for wind claims. Apply VPL to surplus lines carriers NOT regulated by OIR as to their policy forms and rates, and clarify what constitutes a total loss claim.

• Prevent surplus lines and admitted carriers from forcing insurance consumers into out-of-state arbitrations, mediations, and litigation.

• Require the use of Florida law and Florida courts to resolve claims, rather than out-of-state laws and courts.

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PROTECTING FLORIDIANS

PROTECTING PROPERTY OWNERS FROM NEGLIGENT BUILDERS The Surfside building collapse in South Florida was an unthinkable tragedy. But could it have been prevented?

Changes to Florida’s construction defect laws, if any, should protect property owners and builders and developers.

Proposals to provide broader protections to builders is bad policy and could result in more tragedies like Surfside.

IT’S TIME TO REPEAL CH 558.

Enacted in 2003, Chapter 558 is a dispute resolution process intended to resolve construction defect claims without litigation.

However, the legislature has repeatedly complicated an already cumbersome process, forcing most homeowners to retain legal counsel and engineers just to navigate the 558 process.

Repealing Chapter 558 in its entirety would allow customers and their builders to negotiate their dispute resolution process via contract. It would eliminate the expensive, time-consuming, and burdensome alternative dispute resolution process.

Unstable Ground…

Latent defects/Statute of Repose Surfside is a prime example of what happens when a building contains latent, or hidden, defects.

Many defects, especially those that are design related, won’t be discoverable for many years.

Even 10 years is arguably too short. Florida’s current statute of repose is 10 years, and even that is arguably too short when defects have the potential to cause catastrophic injury. If anything, the Legislature should consider expanding the time for identifying defects, not restricting it.

Weaking the building code Florida’s building code is one of the strongest in the country and with good reason, as we experience every hurricane season. Building code requirements are not arbitrary; they are written to keep Floridians safe and make Florida real estate a sound investment. Limiting the types of code violations that constitute a construction defect weakens the building code, endangers residents, and reduces property values.

No accountability = no safety In the wake of the collapse of Champlain Tower in Surfside, the Legislature should seek greater accountability for developers and builders, not less.

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WHAT IS SEBO? The Sebo concurrent causation coverage case is an example of why it’s important to protect homeowners’ right to address construction defects.

On December 1, 2016, the Florida Supreme Court decided Sebo v. American Home Assurance Company, Inc., 1 answering the question of whether coverage existed under an all-risk policy when there were multiple causes of loss, and at least one of the causes was excluded.

The Sebo home was destroyed by a combination of bold construction defects, rainwater, and hurricane winds.

While the property insurance policy specifically excluded damage due to construction defects,

rainwater and wind damage was covered. Since none of the provisions of Sebo’s policy prevented application of the concurrent cause doctrine, the Court found that the policy did not preclude recovery. If the policy had prevented the application of the concurrent cause doctrine, the homeowner’s loss would have been only partially covered – or possibly not at all.

Property insurance routinely excludes construction defects as a covered cause of loss. This assumes that homeowners have another avenue to pursue construction defect claims. However, if we eliminate homeowners’ ability to be made whole by the contractor or design professional, we will have more and more instances where catastrophic storm losses are denied on the basis of faulty construction.

1 Sebo v. American Home Assurance Co., Inc., SC14-897 (Fla. Dec. 1, 2016).

On June 24, 2021, at approximately 1:22 a.m. Champlain Towers South, a 12-story beachfront condominium in the Miami suburb of Surfside, partially collapsed, causing the death of 98 people.

FJA supports construction legislation that protects Floridians, including repealing Ch. 558; establishing liability for building inspectors who fail to review plans and inspect work properly; waives sovereign immunity in those cases where building inspectors have negligently carried out their duties; codifying duty for engineers to report imminently dangerous conditions.

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SECTION 3

PRESERVING ACCESS TO THE COURTS

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PRESERVING ACCESS TO THE COURTS

HARMING VICTIMS

By Limiting Medical Damages Calls for liability reform and limiting medical damages are often touted by business special interests as “truth in damages.”

The reality is they are anything but; rather, they are deception in damages.

Limiting damages in this way is forcing the government to impose a “one size fits all” approach to all victims, regardless of incident or severity of damages, which can vastly differ by each accident.

Limiting or “capping” damages is nothing more than an attempt by large corporations and insurance companies to unnecessarily insert government regulations into jury deliberations and prohibit a jury from hearing all of the evidence.

Insurance companies and retail special interests are seeking to place limits on medical costs associated with injuries their insureds or employees have caused. Their argument for limiting consumer litigation: Medical expenses drive up overall business costs and insurance premiums.

However, limiting the amount of damages to individuals who have been injured as a result of negligence, deprives injured Floridians of their 7th amendment right to a trial by jury, and instead limits their recovery to arbitrary limits set by the Legislature, which has never heard their case or the extent of the damages an individual or their family has suffered.

Such arbitrary limits disregard the jury’s role in determining damages after hearing all the evidence, and imposes a one-size-fits-all approach without regard to the facts of the case. We trust juries to decide when the government can take someone’s life, liberty, or land, we can certainly trust them to determine the appropriate measure of damages.

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What’s more, these proposals seek to block and delay the ability for injured victims and their families to move forward after an accident and would block families from seeking the medical attention they deserve to get healthy. When consumers are harmed by others, it is their right to hold the wrongdoers responsible.

Big business special interests use various tactics to block victims’ ability to seek compensation, including:

Caps on medical damages disregard the right to a jury of one’s peers to fully see the cost of medical care of someone who has been injured by another’s negligence. Such a prohibition would have the effect of creating potentially crippling medical debt to victims, through no fault of their own.

Creating a trial within the trial to determine medical rates and costs not relevant to that victim’s individual case;

Florida Standard Jury Instructions (s.501.1): Juries are instructed to base awards on what “the greater weight of the evidence shows will fairly and adequately compensate” the victim. Caps on damages strip jurors of their right to decide the damages and give that right to the business and insurance companies that may have caused the harm.

Presenting an access to care issue for injured victims and removing their ability to receive the best care possible;

A jury’s deliberative process should, and does, rely only on sound and accurate data meant to inform the case in front of them. Any attempt to deter or distract them by slowing down the court process and increasing the cost of litigation for all parties is irresponsible and detrimental to Florida’s taxpayer-funded court system.

Hurting the quality of medical care and forcing experts to defend the reasonableness of their charges.

FLORIDA STANDARD JURY INSTRUCTIONS (FS 501.1): Juries are instructed to base awards on what “the greater weight of the evidence shows will fairly and adequately compensate” the victim. Caps on damages strip jurors of their right to decide the damages and give that right to the business and insurance companies that may have caused the harm.

A jury’s deliberative process should and does rely only on sound and accurate data meant to inform the case in front of them. Any attempt to deter or distract them by slowing down the court process and increasing the cost of litigation for all parties is irresponsible and detrimental to Florida’s taxpayerfunded court system.

FJA opposes legislation that: • Doesn’t allow a jury to see the full extent of medical damages.

• Allows victims to go into medical debt while those responsible aren’t held accountable.

• Protects access to top medical care after an accident.

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PRESERVING ACCESS TO THE COURTS

PROTECTING INJURED VICTIMS Protecting Injured Victims Florida had the third largest number of medical malpractice reports filed among the country’s 50 states between 2012 and 2022, according to newly released research by NiceRx. However, while 11,410 medical malpractice lawsuits were filed last year, the total payouts totaled only $2.9 million, which ranked Florida 43rd in the country in medical malpractice payments.

Preventing medical errors will lower healthcare costs for all Floridians, reduce doctors’ insurance premiums, and protect the health and well-being of patients.

Limiting the amount of damages to individuals who have been injured as a result of medical negligence deprives injured Floridians of their 7th amendment right to a trial by jury and instead limits their recovery to arbitrary limits set by the Legislature, which has never heard their case or the extent of the damages an individual or their family has suffered.

Such arbitrary limits disregard the jury’s role in determining damages after hearing all the evidence and impose a one-size-fits-all approach without regard to the facts of the case. We trust juries to decide when the government can take someone’s life, liberty, or land, we can certainly trust them to determine the appropriate measure of damages.

What’s more, these proposals seek to block and delay the ability of innocent injured individuals and their families to move forward after an accident and would block families from seeking the medical attention they deserve to get healthy. When consumers are harmed by others, it is their right to hold the wrongdoers responsible.

Caps on medical damages disregard the right to a jury of one’s peers to fully see the cost of medical care of someone who has been injured by another’s negligence. Such a prohibition would have the effect of creating potentially crippling medical debt for victims through no fault of their own.

The scales of justice are unbalanced for victims of medical negligence in Florida: Florida prevents anyone other than a spouse or child under 25 from filing medical malpractice lawsuits against doctors or hospitals on behalf of another adult. Critics have derided this as the state’s “free kill” law.

If the victim sues a public hospital or results from actions of an employee of a public health system for medical malpractice, they can win damages only up to $200,000 against one government agency or $300,000 against multiple government agencies. This is because they have something called “sovereign immunity.”

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Victims must be able to prove that their injuries were directly caused by the doctor’s negligence. For example, if a doctor prescribed medication that conflicted with drugs a patient was already taking, however, a medical malpractice case is only possible if you can prove the interaction led to a bad outcome such as internal bleeding.

In Florida, you have two years from when you know or should have known of medical harm to file a medical malpractice lawsuit. Babies who have neurological damage have five years.On average, Floridians waited about 1½ years after the malpractice occurred to file a claim, according to an October report by Florida’s Office of Insurance Regulation that surveyed claims in 2021. On average, claims were closed about two years (733 days) after they were filed. Some of those claims were closed without a settlement or payout. 1

Florida has a “presuit Investigation” requirement which means you have to hire a medical expert to testify about how doctors should behave in similar situations and how your physician’s actions deviated from that standard. After 90 days of investigation by both sides, the potential defendants can either make a settlement offer, reject your malpractice claim, or offer to arbitrate. Additionally, in Florida, there are caps on how much you can get in arbitration.

Juries should have the ability to hold companies accountable when they hurt people.

FJA supports legislation that: •

Increases the caps on amounts that can be awarded in the arbitration to $1 million.

•

Allows parents of adult children killed by medical malpractice to have a claim for damages.

•

Allows siblings of individuals killed by medical malpractice to recover in damages for pain and suffering in wrongful death cases.

•

Eliminates current cap on custodial care (10 hours) and removes disparity between compensation rates based on the previous employment status of parents.

•

Reforms Florida statutes related to The Florida Birth-Related Neurological Injury Compensation Association (NICA) to ensure that NICA is financially capable of paying claims on an actuarially sound basis. If NICA is not in a position to pay its true projected expenses, NICA should either raise the annual assessments charged to participating hospitals and physicians pursuant to Section 766.314(7)(b), or stop accepting new claims as required by Section 766.314(9)(c) and (d), thereby allowing the injured child to pursue tort remedies outside of the NICA program.

1 Florida Office of Insurance Regulation, Medical Malpractice Financial Information Closed Claim Database and Rule Filings Annual Report, October 1, 2022. https://floir.com/docs-sf/default-source/property-and-casualty/medical-malpractice-closed-claim-database-and-rate-filing-annual-report/2022-medical-malpractice-annual-report.pdf?sfvrsn=dec05d28_2.)

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PRESERVING ACCESS TO THE COURTS

MEDICAL RECORDS Protecting Healthcare Portability and Saving Patients Money Patients are the rightful owners of their medical records. Portability of medical records, conversion from paper to electronic records, and the free exchange and review of records between practitioners have for many years been recognized as laudable goals that are in the interest of public health. Outdated Florida law places Florida healthcare providers in danger of being sued or disciplined for violating the maximum charges allowed by federal HIPAA regulations.

Current Florida law allows physicians and hospitals to charge patients wanting copies of their electronically stored medical records up to a dollar a page in “copying” fees, even though the copying involved requires nothing more than a couple of clicks of a mouse and the sending of an email.

have for years exploited Florida’s outdated laws and Florida consumers by turning routine medical records requests into “profit centers” used to pad their bottom lines at their patients’ expense.

Florida’s antiquated medical records laws fly in the face of the federal Health Insurance Portability and Accountability Act (HIPAA) and U.S. Department of Health and Human Services (HHS) guidelines, which cap copying charges at either the actual cost of hard copying (including reasonable staff time and postage) OR a flat fee of up to $6.50 per electronic record.

“Copying” charges for a one-week hospital stay can easily run several hundred dollars, most of which goes to pay for duplicate and often irrelevant records that get unnecessarily reproduced over and over again.

Physicians, hospitals, and the third-party electronic record maintenance companies they employ

FJA supports Limiting the copying fees Florida physicians, hospitals, and third-party record companies can charge to the same maximums allowed under Federal law.

Legislation making allowable copying fees uniform regardless of whether a patient has requested them or authorized a guardian, personal representative, attorney, etc., to request them.

Putting an end to the medical records “cottage industry” that for years has been soaking Floridians for millions of dollars for records that are their own property.

Promoting public health by encouraging greater medical records and healthcare portability.

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PRESERVING ACCESS TO THE COURTS

ASBESTOS Asbestos is a known “Group 1” human carcinogen responsible for countless deaths around the world, including up to 15,000 each year in the U.S. alone. Many Americans might think it’s been banned, but it has not. It’s lethal, legal, and continues to pose serious risks to millions of American families, especially our veterans, who have been disproportionately affected by the deadly carcinogen. While veterans only make up about 8 percent of the population, they account for 30 percent of all mesothelioma victims.

Coordinated efforts by the asbestos industry continue to introduce legislative proposals around the country to limit their responsibility.

These industry proposals attempt to block an individual or their family from being able to hold the parties responsible for their asbestos exposure and related debilitating disease and/or death.

From preventing a dying victim from ever bringing a claim or strategically delaying a claim until the victim dies from their from their deadly disease.

The tactic has become known as “delay and deny until they die.”

30% While veterans only make up about 8 percent of the population, they account for 30 percent of all mesothelioma victims.

The asbestos industry attempts to block victims from being able to hold the parties responsible.

The tactic has become known as “delay and deny until they die.”

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Delay tactics include:

•

Requiring a sworn statement that all claims have been filed with all eligible asbestos trusts – even if eligibility is uncertain or unknown at the time.

•

Allowing an asbestos company to file unlimited trial delays by alleging that the victim has not filed with a specific asbestos trust. The asbestos company can repeat this delay tactic, thereby delaying the case until after the victim dies from the disease.

•

Requiring the court to delay and stop the litigation until 60 days after the victim files a claim with a trust identified by the asbestos company and all documents related to that claim are produced to the company.

•

Proposing changes to the rules of evidence just for asbestos cases by creating a presumption that all trust-related documents are admissible at trial, thereby removing all appropriate rules of court procedures.

Legislative proposals related to asbestos claims are nothing short of a predatory solution to a problem that does not exist:

“

•

Asbestos companies are already entitled to an apportionment of fault with other at-fault parties and only pay their apportioned share;

•

The asbestos companies are already entitled, and the courts are equipped, to grant discovery requests of asbestos trust documents;

•

The current rules of evidence permit relevant and authenticated documents into evidence at trial; and

•

The rules of discovery already require a claimant to disclose information known to them, including which asbestos trusts with which they have filed claims.

“For decades, manufacturers and distributors of asbestos intentionally kept hidden information on what they knew to be a dangerous product.

This decision by those companies resulted in tens of thousands of veterans being exposed to asbestos and all of the illnesses that come with it. The Florida House should not move forward any legislation that makes it harder for these bad actors to be held accountable.”

Christopher Vedvick, Commander, Military Order of the Purple Heart Department of Florida, 2020 Letter to House Judiciary Chairman Paul Renner regarding proposed asbestos legislation.

FJA opposes legislation blocking a victim or their family’s ability to hold at-fault corporations accountable.

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”

PRESERVING ACCESS TO THE COURTS

SOLICITATION OF NON-MEDICAL SERVICES Legislative proposals to block the solicitation of nonmedical services have been created by the pharmaceutical industry in an attempt to shift the attention away from defective drug manufacturers and defectives medical devices.

The legislation seeks to limit free speech and prevent the public from being made aware of defective and harmful drugs and medical devices. In many cases, these legal advertisements serve as public service announcements and are often the only way the public is aware of potential product issues.

CONSIDER THIS: Are you aware of the Takata airbag recall? Are you aware of it because one of the 19 car manufacturers using the airbag notified you? Or are you aware of it because a law firm brought it to your attention?

The regulation and policing of attorney advertising in Florida is the responsibility of the Florida Bar, which falls under the purview of the Florida Supreme Court. The Florida Bar has enacted some of the strictest advertising regulations in the country.

This comes down to the preservation of our fundamental rights and the protection of all Floridians. A similar law from West Virginia was declared unconstitutional on First Amendment grounds.

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These advertisements are often the only way consumers are aware of potential product defects.

What restrictions are placed on pharmaceutical advertising? Can pharmaceutical companies keep advertising a product even after they know it has problems?

Drug manufacturers have NO regulations on how much money they can spend to promote their product. Now they want to put an end to the advertisements that hold them accountable. This is not in the best interest of the general public.

The Florida Bar rules regulating attorney advertising already protect the consumer through the following:

Deceptive Advertising

Legally Inaccurate Materials

Prohibiting misleading or deceptive advertising. (Fla. Bar Rule 4.713(a));

Prohibiting material statements that are factually or legally inaccurate. (Fla. Bar Rule 4-7.13(a)(1));

Notate a Name Requiring that an advertisement contain the name of at least one lawyer, the law firm, or the qualifying provider responsible for the advertisement. The name must be legible and audible or otherwise reasonably prominent. (Fla. Bar Rules 4- 7.12(a)(1) and Rule 4-7.12(d)).

FJA opposes restrictions on advertisements that inform the public of potential problems with pharmaceuticals and other products

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JUSTICE. LIBERTY. RESPONSIBILITY. ACCOUNTABILITY. The Florida Justice PAC looks for opportunities to build real relationships between local lawyers and candidates, relationships that ensure legislators understand what their decisions mean for civil justice and the everyday people they represent.

Learn More https://www.myfja.org/fj-pac/

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218 South Monroe Street Tallahassee, Florida 32301

Staff Contacts PAUL D. JESS

LYDIA CLAIRE BROOKS

Executive Director pjess@myfja.org

Deputy Political Director lcbrooks@myfja.org

JEFF PORTER

LAURA YOUMANS

Deputy Executive Director, Legislative and Political Director jporter@myfja.org

Legislative Counsel lyoumans@myfja.org

LYNN MCCARTNEY

WILLIAM T. COTTERALL, ESQ.

Deputy Legislative Affairs Director lmccartney@myfja.org

General Counsel wcotterall@myfja.org

@florida_justice facebook.com/floridajusticeassociation twitter.com/floridajustice

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