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Florida Tort Reform is Here!

April 3, 2023

Governor Ron DeSantis signed House Bill 837 into law on March 24, 2023, enacting sweeping changes to civil litigation in the state. The new law touches on issues ranging from attorney’s fees to negligence standards to bad faith claims, and applies to all claims that accrue after the law’s March 24, 2023 effective date. For evidence of the impact these changes are expected to have, one need look no further than new case filings across the state. In the weeks leading up to the law’s passage, approximately 100,000 new suits were filed, which is over three-quarters of the number of filings since the first of the year. We have been monitoring the progress of this law closely, and summarize the major changes and their potential impacts below. 
Fees, fees, fees.
Perhaps no issue received more attention as the bill progressed through the legislature than its effect on attorney’s fees claims. Florida has long been known for its “one way” attorney’s fees statutes, which required courts to award attorney’s fees to an insured when they prevailed in an action against their insurer. Fee claims are much more limited under the new law, as it repeals these statutes, §627.428 and §626.9373, in their entirety. However, the law also creates a new statute providing that the Offer of Judgment statute, §768.79, applies in civil actions involving insurance contracts. And, it adds a provision to Florida’s Declaratory Judgment Act, providing for an award of fees to an insured who obtains a declaratory judgment determining coverage in their favor, but only when the insurer has totally denied coverage. Importantly, a defense offered under a reservation of rights is not considered a denial, the fee claim is non-transferable, and the statute does not apply to actions arising under residential or commercial property insurance policies. Several other statutes were amended to reflect the repeal of §627.428 and §626.9373, most notably §627.756, which addresses attorney’s fees claims in certain construction disputes. That statute now independently provides for an award of fees against surety insurers in actions brought by owners, contractors, subcontractors, laborers, or material men under payment or performance bonds. 
The law also changes the way attorney’s fees awards are calculated in contingency fee cases. Previously, Florida courts have applied “contingency fee multipliers” based on the likelihood of success at the outset of the case. Under the new law, there is a “strong presumption” that the lodestar fee—which is based on the number of attorney hours reasonably expended on the matter multiplied by the reasonably hourly rate—is a sufficient and reasonable award. Multipliers are now limited to “rare and exception circumstances” where competent counsel could not be otherwise retained. 
New rules for negligence claims.
Previously, under Florida’s “pure” comparative negligence scheme, defendants were required to pay damages based on their percentage of fault in causing harm to the plaintiff. The new law institutes a “modified” comparative negligence standard, which bars recovery if a plaintiff is found to be more than fifty-percent negligent. This provision is expected to reduce the number of cases brought in which the plaintiff was a significant contributor to their own injuries.  
The law also creates new liability standards for certain negligence cases. One important change is in premises liability actions where the plaintiff was harmed by the criminal act of a third party. Previously, third parties could only be placed on the verdict form for apportionment of fault if their action constituted negligence. Thus, a third party criminal who injured or killed an invitee, guest, or tenant on a landowner’s property could not be deemed “at fault” in a resulting civil negligence action. Under the new law, the fact finder will be required to consider the fault of all parties who contributed to the injury, including the criminal themselves. This means the criminal third party can be apportioned a percentage of fault as a Fabre or third party defendant, or even potentially defaulted on liability. 
In negligent security claims, the new law creates a presumption against liability for the owner or operator of a “multifamily residential property” in connection with criminal acts committed on the property by third parties, if the owner or operator demonstrates “substantial compliance” with certain security measures designated by the statute. These measures include periodic crime assessments and crime and safety training for employees, as well as equipping the property with security cameras, lighted parking lots and other common areas, deadbolts and locking devices on dwelling doors and windows, peepholes, and locked gates along pool fence areas. This change will provide a potent defense where the property owner can demonstrate their compliance with the statute. 
Finally, the law shortens the statute of limitations for negligence actions from four years to two years. This shortened timeline is expected to cause plaintiffs to evaluate and file their claims sooner, increase the ability to obtain evidence and testimony, and create incentive to settle where liability is contested. However, it only applies to claims accruing after the law’s effective date. This means the date of injury will be important in evaluating new negligence lawsuits, as injuries occurring prior to March 24, 2023 will generally be subject to the old four-year timeframe. 
Medical expenses and letters of protection.
Several recent cases, including from the Florida Supreme Court, have addressed the issue of the proper measure of a plaintiff’s recovery for past and future medical expenses where full amount of the plaintiff’s bills were satisfied for a lesser amount. Until now, plaintiffs were generally permitted to introduce the full amount of their medical bills into evidence, without consideration of what was actually paid. Adjustments or reductions were addressed via post-trial setoffs, except in cases involving Medicare or Medicaid, in which only the amount actually paid to the medical provider was admissible. Some opinions expressed discomfort with this system, finding it incompatible with the principal that compensatory damages should address losses the plaintiff actually sustained. 
Under HB 837, plaintiffs will be limited to introducing evidence of the amount actually paid to satisfy their medical bills, regardless of who paid. If the plaintiff has health coverage, evidence of the amount that the insurer paid the provider will be admissible. If the plaintiff has health coverage but opts to obtain treatment under a letter of protection, evidence of the amount the plaintiff’s insurer would have paid is admissible, plus reasonable amounts billed to the plaintiff for medically-necessary treatment. If the plaintiff does not have health coverage, or has coverage through Medicare or Medicaid, evidence of 120% of the applicable Medicare rate is admissible. And, if there is no applicable Medicare rate, evidence of 170% of the state Medicaid rate is admissible. 
Future medical expenses will also factor in the plaintiff’s available health coverage. If the plaintiff has coverage other than Medicare or Medicaid, evidence of the amount the insurer would pay for future treatment, plus the plaintiff’s reasonable share, is admissible. If the plaintiff does not have health coverage, or has Medicare or Medicaid, evidence of 120% of the applicable Medicare rate is admissible. And, if there is no applicable Medicare rate, evidence of 170% of the state Medicaid is admissible. 
On a related point, where a plaintiff receives treatment under a letter of protection, the letter must be disclosed, as must all bills for medical expenses. The bills must be itemized and coded according to whether the provider is billing at a provider level, a facility level in a clinical or outpatient setting, or a facility level in an inpatient setting. The sale of a plaintiff’s account to a third party must also be disclosed, including the dollar amount. Most notably, where the plaintiff is referred by their attorney for treatment under a letter of protection, that referral must be disclosed, along with the relationship between the attorney and the medical provider, as relevant to the issue of bias of the provider. This provision overturns the Florida Supreme Court’s decision in Worley v. Central Florida Young Men’s Christian Association, Inc., 228 So. 3d 18 (Fla. 2017), under which the referral relationship between plaintiff’s attorneys and providers was protected by attorney-client privilege.  
New standards for bad faith claims.
Last, but certainly not least, HB 837 makes multiple changes to Florida’s bad faith law. The law creates a safe harbor for bad faith liability where a liability insurer tenders the lesser of its policy limits or the amount demanded by the claimant within 90 days of receiving actual notice of the claim and sufficient evidence to support the amount of the claim. The existence of this safe harbor period is inadmissible in an action seeking to establish bad faith, and, if the insurer does not tender in that time period, the statute of limitations is extended for 90 days. 
Next, the law establishes that an insurer’s negligence alone is insufficient to establish bad faith. And, the law imposes a duty on the insured, claimant, and any representative to act in good faith in furnishing information, making demands of an insurer, setting deadlines, and attempting to settle a claim. The fact finder will now be able to consider any bad faith conduct of the insured, claimant, or their representatives in assessing bad faith damages.
Where an insurer faces competing demands from multiple third parties arising from a single occurrence which in total exceed policy limits, the insurer can insulate itself from bad faith liability by filing an interpleader action or arbitration. In an interpleader action, if the third-party claims are found to be in excess of the policy limits, the claimants are entitled to a prorated share of the limits as determined by the trier of fact. Importantly, the filing of an interpleader action does not alter the insurer’s duty to defend. Similarly, in an arbitration, the insurer is required to make the full policy limits available for payment to the competing claimants, who would have their claims determined by a qualified arbitrator based on the comparative fault, if any, of the claimants, and the total likely outcome at trial based on the total of economic and noneconomic damages.
The implications of the new law are far reaching. Many of the issues touched upon here will undoubtedly result in litigation and appeals. 

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