THE TALLAHASSEE TSUNAMI

This year’s Florida Legislative Session started in Tallahassee on March 7, and is currently underway with numerous bills being drafted, introduced, debated, amended, voted upon and signed into law. It is scheduled to adjourn on May 5, 2023.

This article will explain how Tallahassee politicians and Governor Ron DeSantis have caused a “tsunami” of civil litigation lawsuits to be filed throughout the State, and how the Civil Justice System has to absorb this drastic increase in cases. The wave of litigation started with a pro-insurance bill drafted by the insurance lobby and pushed by Tallahassee politicians, known as “House Bill 837,” “HB 837,” or “Tort Reform.”

What Is Tort Reform?

Plainly, it is a way of limiting Floridians access to the courts for personal injury cases. Torts are civil wrongs that cause injury to a person. Car and trucking crashes, medical malpractice incidents, slip and fall occurrences, defectively designed and manufactured products, and nursing home abuse are just a few examples.

In theory, by limiting people’s ability to bring negligence cases, there will be less of them in the civil justice system. As a result, people’s insurance premiums will come down. In practicality, you prevent people who have been injured due to someone’s carelessness, greed or negligence from being able to seek legal redress for their injuries through the civil justice system. Constitutionally, this seems totally out of line with many of the rights we hold so dear. The main one is a Floridian’s access to the courts and the strongest pillar of our democracy – the jury trial! Without these two mainstays in our governmental system of checks and balances, justice becomes the exception and not the rule!

On March 7, the very first day of the Legislative Session in 2023, HB 837 was already fully drafted and read in committee. It was hurriedly pushed through committee, then passed by the House on March 17, with 80 votes in favor and 31 against. Next, the Senate adopted the House version of the Bill, and rushed it through committee and reading, with very few amendments or changes. On March 23, it was passed by the Senate with 23 votes in favor and 15 against. The next day, Governor DeSantis signed the bill into law, which went into effect on March 25.

Breaking Down the Tort Reform Legislation

So what specifically caused the great wave of litigation? First, the new law changed the statute of limitations from four (4) years to two (2) years – cutting the time for Floridians to seek help in half. Second, the new law changed how a jury apportions liability between parties at trial from a pure comparative negligence standard to a modified version, that can result in a defense verdict even if a Defendant is found by a jury to be legally at-fault or liable.

Third, the new law changed the manner in which a Plaintiff can calculate their past medical bills and future medical needs. This makes it more difficult to extrapolate the cost of future care over time, especially in the current environment of high inflation. Fourth, the new law creates legal shields for insurance companies who fail to put the needs of their premium-paying policyholders over the insurance company’s own bottom line.

As this bill was fast tracked through the House and Senate, and nearly all proposed amendments failed, it became evident to Florida personal injury practitioners that this bill was going to pass and be signed into law in a hurry. Once signed into law, the legal landscape of a tort case in Florida would literally change overnight.

In order to protect the rights of injured Floridians, personal injury lawyers pushed many cases into litigation, in a beat-the-clock type scenario, before the Governor signed the bill into law changing the personal injury landscape overnight.

The Governor could have vetoed the bill or refused to sign it until an amendment was passed that alleviated the influx of new cases into the civil justice system. The senate could have proposed an amendment to do the same. Or, the changes in the new law could have been rolled out over the next few years to prevent a huge influx of cases.

Also, the House and Senate could have gathered data to gain a better understanding of how, when and by how much this legislation would lower insurance rates in Florida, before rushing it through and passing it blindly. Or, there could have been a timeline built into the legislation for Florida insurers to provide legislators with data on rates, claims, cases and settlements, before enacting each change in phases to make sure that rates were decreasing.

Additionally, there could have been an automatic required rate cut over the next 3-4 years. This would have ensured that, with the changes in the substantive law on torts, premiums were actually moving downward as the bill was slowly implemented. Or, the Governor could have issued an executive order capping insurance rates in Florida for the next year as the new bill is rolled out. Unfortunately, none of these remedies were implemented by our State legislators.

What that means for the young lawyer practicing in personal injury is that the next 10-24 months are going to be very stressful, difficult and challenging. Try to roll with it as best you can.

Court calendars will be a nightmare, which means longer docket soundings, case management conferences and trial calls. Judges won’t have availability for hearings on important motions, making it near impossible to comply with the form Case Management Plans that are required in every case. Discovery is going to take twice as long because depositions, mediations and non-binding arbitrations will be impossible to book due to court reporter, mediator and arbitrator availability. Expert discovery will take twice as long and trial dockets are going to double in size, which means every single time you are up for trial (and need to be trial-ready) the chances of you actually going will be slim to none.

The Tallahassee Tsunami is coming, and it is going to be wild. Get your surfboard, re-apply sunscreen and get ready for what could be the ride of our careers!

1. Be ready for anything and everything so that you can pivot quickly, if needed.

2. Remember that opposing counsel is also going to be feeling the heat, so always try to remain cordial and professional with them.

3. Try to settle cases where liability is not in dispute early, so you can focus on your cases where liability is not known or is challenging.

4. Stay organized and focused with a good spreadsheet and very detailed daily Outlook calendar.