TORT REFORM IN FLORIDA: WHAT YOU NEED TO KNOW
Florida recently enacted HB 837 into law, which greatly modified existing law applicable to injury and wrongful death actions as well as insurance bad faith lawsuits.
It is important to recognize that there are now significant changes which greatly
impact a plaintiff’s claim, including:
A reduction of the Statute of Limitations time period to file negligence actions from four years down to two years from the date of the incident. Previously, the two-year time period was only applicable to professional malpractice actions. Please note that this modification only applies to acts which occur after this law was enacted.
A return to the contributory negligence standard in which any claimant (other than medical malpractice claimants) found to be responsible for more than fifty percent of their damages will not be able to recover damages from a third party. This is a radical departure from the previous “pure comparative” standard which did not a percentage limitation.
The use of only evidence as to the amount actually paid by or on behalf of a plaintiff in determining the accurate value of medical damages for past or future medical care in personal injury or wrongful death actions. Previously there was a division between the courts in Florida regarding the admissibility of the total medical charges vs. the amount for which the plaintiff was responsible at the time of trial.
The disclosure of letters of protection regarding medical expenses as a condition precedent to assert a claim for medical expenses in personal injury and wrongful death cases. A plaintiff will now be required to disclose the letter of protection, the identity of the individual who made the referral (including an attorney) and whether any medical insurance coverage was applied.
The requirement that a jury consider the fault of all persons who may have contributed to the injury, establishes a presumption against negligent security liability in certain specified situations, and further expands immunity for a property owner in an injury action brought by a person who was the victim of a crime when lawfully on the property.
The presumption in favor owners of multifamily residential property which substantially implement certain security measures in actions involving criminal acts which occur on the premises.
The repeal of the attorney fee provisions for insurance cases, which previously awarded incurred attorney’s fees and costs to individuals (but not insurance companies) who prevailed in coverage actions.
The statutory changes also provide much needed benefit to insurance companies as:
The bad faith standard is now raised as clarify that the insurers’ negligence in handling a claim standing alone is not enough to demonstrate bad faith. The Florida courts had been moving in this direction since the Florida Supreme Court’s decision in Harvey v. GEICO in 2018.
The requirement that a policyholder or claimant (as well as their representatives) must act in good faith as to providing information, asserting demands, establishing deadlines, and negotiating the resolution of the claim, thereby significantly reducing the likelihood of the “set up” previously utilized by many plaintiff’s attorneys.
The ability of an insurance company to avoid bad faith liability to a third party if the insurer tenders its policy limits or the demand amount within 90 days after receiving first notice of the claim, including actions involving multiple claimants. Previously, these issues were considered inherently factual which precluded resolution on summary judgment.
The limitation of the use of a contingency fee multiplier of an attorney fee award in only very limited circumstances, which is consistent with the methodology utilized by federal courts.
Please note that the changes regarding insurance policies will only apply to those policies issued going forward and will not impact the rights and obligations under prior policies.The other provisions, however, are effective for actions filed after the effective date of this law.
As you can see, these changes will clearly benefit business owners and insurance companies in lawsuits in which they are named as defendants. By contrast, plaintiffs (as well as their counsel) will now be forced to provide increased and more specific information during the litigation process. This factor, in particular for those defendants who are also at fault, will likely reduce both the number of lawsuits as well as their duration going forward.
As always, if you would like further information on the above topic, or a presentation on this and other topics, Shendell & Pollock would be pleased to do so for your group. For more about the firm, please visit http://www.shendellpollock.com. Shendell & Pollock is a full-service litigation and business law firm providing a comprehensive range of services to a wide variety of clients, including public traded companies, privately owned businesses, banks and insurance companies, financial institutions, private lenders & more.
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