Florida Gov. Ron DeSantis signed a far-reaching tort reform invoice, numbered CS/CS/HB 837 (HB 837), into legislation on March 24, 2023. A rush to the courthouse with negligence lawsuits upfront of its efficient date on the identical day means that HB 837 will curtail the general tort legal responsibility confronted by all types of firms working in Florida.
The invoice replaces Florida’s system of pure comparative negligence with a modified comparative negligence regime, shortens the statute of limitations for normal negligence actions from 4 years to 2, amends the usual for bad-faith insurance coverage claims, outlines the proof {that a} factfinder calculating medical damages in private damage or wrongful loss of life actions ought to think about, requires new disclosures about letters of safety used to acquire medical therapy, limits the usage of contingency-fee multipliers when calculating attorneys’ charges, and replaces joint and several other legal responsibility with comparative negligence in sure negligent safety instances.
Modified Comparative Negligence Turns into Legislation
With slim exceptions, states throughout the nation use one among three negligence legal responsibility techniques: 1) contributory negligence, 2) pure comparative negligence or 3) modified comparative negligence. Till March 24, 2023, Florida had primarily a pure comparative negligence legal responsibility system. Plaintiffs might get well in proportion to the defendants’ share of accountability for the plaintiff’s accidents whatever the plaintiff’s legal responsibility. So, if a defendant was 40 % chargeable for the plaintiff’s accidents, the plaintiff might get well 40 % of the damages related to the damage towards that defendant, even when the plaintiff was 60 % liable. The plaintiff had 4 years to file a negligence lawsuit.
On March 24, 2023, Florida changed its pure comparative negligence system with a modified comparative negligence system. Underneath this method, a plaintiff can get well in proportion to the defendants’ share of accountability provided that the plaintiff’s personal share of accountability is 50 % or much less. If a plaintiff bears greater than 50 % legal responsibility, the plaintiff can not get well from the defendant. Furthermore, the plaintiff should file a negligence motion in two years as an alternative of 4 years. Nevertheless, private damage and wrongful loss of life claims arising out of medical negligence are nonetheless topic to the pure comparative negligence normal. The statute of limitations for these claims, which was two years already, is unchanged.
Unhealthy-Religion Insurance coverage Claims and Price Awards Are Modified
HB 837 additionally made adjustments to bad-faith insurer legal responsibility and repealed a number of sections referring to the restoration of attorneys’ charges and prices by the insured. First, HB 837 clarifies that negligence alone is inadequate to represent insurance coverage dangerous religion. The act additionally imposes on insureds and people representing them an obligation to behave in good religion when furnishing data concerning the declare, making calls for of an insurer, setting deadlines and trying to settle a declare. Underneath the brand new legislation, the factfinder is ready to think about any bad-faith conduct of the insured in assessing damages.
HB 837 creates a secure harbor from bad-faith legal responsibility if a legal responsibility insurer tenders the lesser of the coverage limits or the quantity demanded by the claimant inside 90 days after receiving precise discover of a declare accompanied by adequate proof to help its quantity. The existence of this secure harbor (and any refusal of an insurer to return inside its attain) isn’t admissible to help an allegation of an insurer’s dangerous religion. The invoice tolls the statute of limitations to permit a plaintiff to convey a declare if cost continues to be refused after 90 days. The legislation gives comparable secure harbors for insurers dealing with competing claims from a number of third events arising from a single prevalence that, in complete, exceeds coverage limits. Underneath these secure harbors, an insurer can keep away from bad-faith legal responsibility by making use of interpleader or arbitration procedures set forth within the invoice.
The invoice additionally repeals sections of the Florida Statutes that beforehand allowed insureds to get well attorneys’ charges when prevailing in sure insurance coverage protection disputes. Going ahead, insureds, omnibus insureds and named beneficiaries will be capable of get well attorneys’ charges solely in actions for declaratory aid to find out insurance coverage protection after an insurer has completely denied protection for a declare except one other foundation for charges exists. This restricted proper to attorneys’ charges, nonetheless, doesn’t apply to any motion arising beneath a residential or business property insurance coverage coverage.
LOP Disclosures Are Required
HB 837 additionally requires disclosures regarding the usage of letters of safety (LOP) to acquire medical therapy. A LOP is a mechanism by which a plaintiff’s medical supplier agrees to droop efforts to gather previous medical payments in alternate for a proper to cost from any restoration made by the plaintiff in litigation. Underneath the brand new Part 768.0427, Florida Statutes, a plaintiff utilizing a LOP should disclose:
a duplicate of the LOP
all billings for the rendered medical bills, with specific coding as relevant that enables for comparability of the medical expense to different suppliers or amenities
the title of any third social gathering that has acquired the proper to cost for the providers and the greenback quantity paid for the acquisition of this proper
any healthcare protection that the plaintiff had on the time of therapy
anybody who might have referred the plaintiff for therapy beneath a LOP
Considerably, on this final disclosure, the newly created part voids any attorney-client privilege over communications related to a lawyer’s act of referring the shopper for therapy.
Proof to Show Medical Damages Are Outlined
HB 837 additionally creates a brand new part of Chapter 768, Florida Statutes, which outlines the proof {that a} factfinder calculating medical damages in private damage or wrongful loss of life actions should think about. The Legislature’s objective, in keeping with legislative workers evaluation, is to seize the “standard and customary” quantity of the price of the healthcare at concern in every plaintiff’s state of affairs. First, factfinders should think about proof of the quantity already paid for previous medical therapy or providers, whatever the supply of cost. Second, for medical therapy or providers which have been carried out however not but paid for, factfinders should think about proof of damages in quantities that fluctuate in keeping with whether or not the plaintiff has personal insurance coverage, Medicare or Medicaid, or obtained the providers via use of a LOP. The act implements an identical framework for proof of prices of future medical therapy. Importantly, the act additionally states that the factfinder should think about any proof of cheap quantities billed to the claimant for medically vital therapy or providers.
Along with adjustments to the kind of proof that ought to be thought of in instances involving medical damages, the invoice prescribes steerage for the calculation of these medical damages. Particularly, the invoice prohibits an award of medical damages from exceeding the full of the quantity really paid by or on behalf of the plaintiff to the healthcare supplier, the quantity of costs for medical providers which are owed on the time of trial and the quantity of costs for any cheap and vital future medical therapy.
Use of Contingency-Price Multipliers Are Restricted
HB 837 additionally makes adjustments to the legislation governing the calculation of attorneys’ charges. As background, beneath the “lodestar methodology” of calculating attorneys’ charges, a court docket will decide the variety of hours moderately expended by an lawyer on the case and an inexpensive hour price. The court docket will then multiply these values to reach at a “lodestar” quantity for assessing attorneys’ charges. Florida legislation additionally beforehand allowed for changes to the lodestar quantity in contingency price instances by a “multiplier” comparable to 1.5 or 2 primarily based on sure components to account for the chance of nonpayment.
HB 837 adjustments this authorized framework by including a statute directing that “[i]n any motion through which lawyer charges are decided or awarded by the court docket, there’s a robust presumption {that a} lodestar price is adequate and cheap.” Underneath the brand new legislation, this presumption “could also be overcome solely in a uncommon and distinctive circumstance with proof that competent counsel couldn’t in any other case be retained.” The legislation thus makes the lodestar quantity the presumptive price absent distinctive circumstances.
Premises Legal responsibility Legislation Is Modified Associated to Sure Negligent Safety Claims
Lastly, HB 837 modifies premises legal responsibility legislation. The act creates a “presumption towards legal responsibility” for negligent safety claims towards house owners and operators of “multifamily residential property,” comparable to an house or condominium neighborhood, the place the proprietor or operator has applied sure safety measures on its property. The invoice additionally creates a brand new part of the Florida Statutes that replaces joint and several other legal responsibility with comparative negligence in sure negligent safety lawsuits involving damage from a 3rd social gathering’s prison act on business or actual property.
HB 837 Is Efficient Now However Largely Applies to Causes of Motion Filed After the Efficient Date
HB 837 took impact upon turning into legislation, however lots of the adjustments will apply solely to causes of motion filed after the efficient date. The change to the statute of limitations for negligence actions applies to causes of motion accruing after the efficient date. With respect to insurance coverage contracts, HB 837 will not be interpreted to impair rights beneath insurance coverage contracts arising earlier than the efficient date, and the legislative adjustments will apply to insurance coverage contracts issued or renewed after the efficient date of the act.
Contact Us
For extra details about HB 837 and its sweeping adjustments to Florida negligence legal responsibility, insurance coverage and different legal guidelines, please contact the authors.
Data contained on this alert is for the overall training and data of our readers. It’s not designed to be, and shouldn’t be used as, the only real supply of data when analyzing and resolving a authorized downside, and it shouldn’t be substituted for authorized recommendation, which depends on a selected factual evaluation. Furthermore, the legal guidelines of every jurisdiction are completely different and are always altering. This data isn’t meant to create, and receipt of it doesn’t represent, an attorney-client relationship. When you’ve got particular questions concerning a selected reality state of affairs, we urge you to seek the advice of the authors of this publication, your Holland & Knight consultant or different competent authorized counsel.
