Written by: G. Jeffrey Vernis, Managing Partner, Florida Bar Board Certified Civil Trial Lawyer, Vernis & Bowling
The Florida Legislature recently passed sweeping tort reform legislation which has already impacted claims and litigation. The new legislation prompted Plaintiff’s attorneys to file tens of thousands of lawsuits in anticipation of the effective date of the new laws. The new laws reduce the statute of limitations for negligence claims, gives insurers a 90-day grace period for bad faith claims, changes comparative fault to contributory negligence, and other procedural changes to “even the playing field.” The new law became effective on March 24, 2023, but the effective date has been challenged resulting in a few very favorable Trial Court rulings applying portions of the new law retroactively to pending litigation. Here are some of the significant changes in the law:
Attorney’s fees: The new law eliminates one-way attorney’s fees for Plaintiffs in first party cases. One-way attorney’s fees is now limited to instances when the insurer denies coverage and the insured prevails in a declaratory action. Additionally, Florida Statute § 57.104 was amended to eliminate attorney’s fee multipliers and limits the amount of attorney’s fees to the reasonable lodestar fee, (reasonable hourly rate) and only in rare and exceptional circumstances may a court award a multiplier to the fees.
Statute of Limitations for Negligence: The new law Legislature reduces the statute of limitations for claims based on negligence from four years to two years. This would be effective for any causes of action (date of accident) on or after March 24, 2023. It is unlikely that this would be applied retroactively to pending claims.
Service members: Florida has codified the Servicemembers Civil Relief Act, 50 U.S.C. §§ 501 into Florida law. The Act in keeping with the Federal law provides relief from civil litigation to service members on active duty.
Comparative Fault: In a substantial departure from existing Florida law, the new law moves Florida closer to a contributory negligence state. Under the new law, in any negligence action, if a Claimant is found to be more at fault than the Defendant, the Plaintiff will be generally barred from any recovery from that Defendant. For example, if the Plaintiff is found to be greater than 50% at fault for their own injury or harm, they may not recover any damages.
Premises Liability-Negligent Security: The jury can now “consider the fault of all persons who contributed to the injury.” Previously, Florida law precluded a jury from apportioning fault to the active tortfeasor/assailant. However, the new law permits the jury to consider the fault or actions of the intentional actor/assailant, thereby reducing the fault on the potentially negligent premises owner. Additionally, the new law provides a presumption of no negligence in favor of the property owner who complies with specific safety measures set forth in the new statute.
Bad Faith: In a broad and significant way, the Legislature addressed numerous issues including bad faith set-ups in the new law. No statutory or common law bad faith claim can be brought if (a) the insurer tenders its policy limits or (b) tenders the amount demanded by the claimant within 90 days after receiving actual notice of a claim “which is accompanied by sufficient evidence to support the amount of the claim.” The new law also states that “mere negligence alone is insufficient” to constitute an insurer’s bad faith. Additionally, the new law places a duty on the insured and their counsel to act in good faith and allows the admission of the actions of the insured/claimant and their counsel in any bad faith action. For multi-claimants competing for a single occurrence and limited policy limits, the law now allows (a) the filing of an interpleader or agreeing to binding arbitration and (b) provides immunity to the insurer beyond policy limits if the insurers avail themselves to these new procedures. These changes provide significant protection to insurers from the bad faith set-ups and the actions of Plaintiff’s attorneys hiding in the shadows of their clients which may result in obstruct the claims process.
Medical Bills/Letter of Protection: In an effort to address the excessive medical charges under agreements between the medical providers and the Plaintiff’s attorneys, the new law includes specific language on letters of protection and limits the amounts that may be charged by the provider and what may be admitted into evidence and recovered. The medical charge evidence now may only be the amount that has been actually paid, regardless of the source of payment. If the medical bills have not been paid by any source and the person does not have health insurance coverage or has Medicare or Medicaid, the provider may only charge 120% of the Medicare reimbursement amounts. If the Plaintiff has health insurance, providers may only charge the health insurer’s reimbursement rate. The law also provides limits and conditions on letters of protection requiring disclosure and limits on the amounts charged by the provider. Further, the law sets forth what damages are recoverable for medical treatment, limiting the amounts to actually paid by claimant or the health insurance carrier. It is also important to note the law only allows for recovery for future medical treatment that the Claimant “will receive in the future” as opposed to the previous standard of “reasonably certain to incur” in the future.
While the new statute expressly states that the new law applies only to cases and claims filed after March 24, 2023, certain Courts have ruled that the applicability of the new law is up to the Courts and is dependent on whether the Court determines that the specific provision is procedural or substantive. It is important to check with your Florida Counsel to discuss the applicability of any of these new laws to your current claim or case.
For more information, please contact G. Jeffrey Vernis or Robert Bowling.