What Florida’s NEW TORT REFORM LAW Means For You

On Friday, March 24, Florida Governor Ron DeSantis signed into law House Bill (HB) 837, Civil Remedies. Unlike many other laws recently passed by the Florida legislature, Florida’s new tort reform law went into immediate effect when the Governor signed it into law.

HB 837 made sweeping changes to the pre-existing legal landscape, especially in the areas of personal injury, bad faith and negligence. This article serves to summarize these important changes and what they can mean for you and your clients.

Negligence

Prior to the new tort reform law, under §95.11, Fla. Stat. (2023), the statute of limitations for negligence claims was four years. With Florida’s new tort reform law, the Florida legislature cut the statute of limitations in half for negligence claims, changing it from four years to two years, in Florida Statute Section 95.11(4)(a). However, the statute of limitations change only applies to negligence claims which accrue after March 24, 2023.

Additionally, Florida’s revised tort reform law changed Florida’s comparative negligence standard. Under Florida’s 1986 Tort Reform and Insurance Act, Florida became a “pure comparative negligence jurisdiction” and abolished joint and several liability in most negligence cases. Under Florida’s previous pure comparative negligence standard, the jury would apportion fault to each respective party, including the plaintiff if the plaintiff was negligent, and then the court would enter judgment against each party based upon their apportioned fault. Importantly, even if the plaintiff was found more than 50 percent at fault for their damages, each defendant would still be liable for their apportioned fault.

Now, however, by amending Florida Statute Section 768.81, Florida changed its comparative negligence standard from a “pure comparative negligence” standard to a “modified comparative negligence” standard. Under the new “modified comparative negligence standard,” if the plaintiff is found to be more than 51 percent liable for their own damages, the plaintiff will not recover anything from the defendants. That’s even if the defendants, either individually or collectively, are 49 percent at fault for the plaintiff’s damages. This change is expected to largely curtail cases where the plaintiff significantly contributed to their own damages.

Premises Liability Cases

Previously, if a criminal injured a plaintiff during the commission of a crime, and then the plaintiff sued the property owner or manager in a civil premises liability suit, the third party criminal’s fault could not be considered by the jury, because the third party criminal was an intentional tortfeasor who committed an intentional criminal act, rather than a negligent one. Previously, the third party’s intentional criminal conduct had no bearing on whether the property owner or manager was also negligent in failing to maintain, protect or secure the premises. Now, however, under Florida Statute Section 768.0701, the fact finder must allocate fault to all parties who contributed to the plaintiff’s injuries. This includes the criminal, even if they are a third party.

This, coupled with Florida’s newly modified comparative negligence standard, means that in many premises liability cases, the intentional tortfeasor (i.e. the criminal) will be the only person who can be held civilly liable for the plaintiff’s injuries, because if the factfinder finds the criminal more than 51 percent responsible for the plaintiff’s injuries, then the defendant property owner or holder will not be liable to the plaintiff at all.

Further, Florida Statute Section 768.0706 creates a rebuttable presumption against negligent security liability for the owner/operator of “multifamily residential property,” if the owner/operator implements certain safety and security measures. If you are a practitioner who represents multifamily residential property owners or operators, you may want to review Florida Statute Section 786.0706 with your clients to ensure they have properly complied with the statute.

Damages for Medical Expenses

Under Florida Statute 768.0427, the new law restricts the evidence a plaintiff can use to try to prove past, present and future medical expenses. There can be a sizable difference between the healthcare provider’s initial invoice for medical expenses, and the amount the healthcare provider actually accepts for full payment later on. Previously, these initial invoices were admissible, and the plaintiff could try to use these invoices to prove their damages.

Under the new law, however, a plaintiff can only seek damages for medical expenses actually paid, necessary to satisfy charges not yet satisfied, and reasonable and necessary expenses to satisfy the cost of care in the future. Under certain circumstances, the new law also allows the parties to admit evidence of expenses paid to healthcare providers by private insurance, Medicare and Medicaid.

Letters of Protection and Referrals

A Letter of Protection means “any arrangement by which a health care provider renders treatment in exchange for a promise of payment for the claimant’s medical expenses from any judgement or settlement of a personal injury or wrongful death action,” per §768.0427(1)(d), Fla. Stat. (2023).

Under the new law, for a plaintiff to recover medical expenses incurred under a Letter of Protection, the plaintiff must: (i) disclose the agreement; (ii) produce an itemized bill for all medical expenses; (iii) identify any company who bought the plaintiff’s medical expenses as an account receivable; (iv) disclose the existence of any healthcare coverage at the time services were rendered; and (v) disclose any referrals made under the letter of protection. §768.0427(3), Fla. Stat. (2023).

Previously, a plaintiff would not have to disclose a relationship between plaintiff’s counsel and any referring physicians. These relationships were protected from disclosure by the attorney-client relationship. Under the new law, however, these referral relationships are no longer protected by the attorney-client privilege and must be disclosed.

Bad Faith Claims

Previously under Florida common law, if an insurer was merely negligent, the insured could not bring a bad faith claim against the insurer. That law remains good law, but it has now been codified into statute in §624.155(a), Fla. Stat. (2023). In addition, the insured has a duty to act in good faith when providing information, making demands, setting deadlines and attempting to settle the claim with the insurer. However, this duty does not create a separate cause of action. The trier of fact may consider whether the insured acted in good faith. If not, the trier of fact may reasonably reduce the amount of damages awarded against the insurer.

Additionally, the new law creates a safe harbor period of 90 days, during which the insurer may tender coverage and avoid bad faith liability. However, if the insurer fails to tender coverage within those 90 days, the insured cannot use that failure as evidence of the insurer’s bad faith.

Attorneys’ Fees

Widely considered one of the law’s most significant changes, the new tort reform law changed attorney fee claims in insurance bad faith actions. Previously, Florida was known as a “one way” attorney fee jurisdiction for these types of claims. This meant that, if the insured prevailed in their bad faith claim against the insurer, the insured could be entitled to their attorneys’ fees. But, if the insurer successfully defended against the insured’s bad faith claim, the insurer was not entitled to collect its attorney’s fees from the insured.

By repealing Florida Statute Sections 627.428 and 626.9373 in their entirety, and creating a new statute, Florida Statute Section 86.121, Florida substantially narrowed the application of one-way prevailing insured attorneys’ fees claims. Insured one-way attorneys’ fees claims now only apply in declaratory relief actions where the parties seek to determine insurance coverage after the insurer totally denies the insured’s claim.

Further, the new law clarified that Florida’s offer of judgment statute, Florida Statute Section 768.79, applies in any civil action involving an insurance contract. Now, insureds may be significantly less likely to pursue litigation, because insureds run a new risk of having to pay their carrier’s attorney’s fees and costs if they lose.

Further, HB 837 changed when fee multipliers should be used when awarding attorney’s fees. Under Florida Statute Section 57.104(2), fee multipliers should only be considered “in rare and exceptional circumstances with evidence that competent counsel could not otherwise be retained,” per §57.104(2), Fla. Stat. (2023). Consequently, the use of multipliers will likely become a far rarer occurrence. This means practitioners may be far more wary of taking a contingency fee case, especially if they would otherwise be counting on a multiplier that is now far harder to substantiate.

In conclusion, HB 837 made several profound and sweeping changes to Florida law. The impacts of the law will likely be far reaching and are hard to quantify. Any lawyer practicing in civil litigation should review the new law and see how they can best assist their clients with these new changes.