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Insurers cheer GOP assault on ‘judicial hellhole’

BY Alexandra Glorioso - |01/18/2019 05:04 AM EST

Ron DeSantisInsurers are looking to the newly elected governor to rein in lawsuits and curb non-economic and punitive damage awards for personal injury, medical malpractice and other torts. Alex Wong/Getty Images

TALLAHASSEE — After decades playing defense against trial lawyers, Florida insurers and business groups are welcoming new friends in high places who promise to make the state’s judicial system more welcoming to corporate America.

Republican Gov. Ron DeSantis, only weeks into his term, already has swung the state Supreme Court to the right as he replaces retiring members of the tribunal’s liberal bloc. The court in the past has repeatedly struck down business-backed legislation.

With the high court no longer an obstacle, Senate President Bill Galvano has stacked key committees with insurance industry allies and put legal reform on the agenda, including legislation to rein in assignment of benefits contracts, personal injury payouts, and workers’ compensation.

Insurers and medical providers are cheering what promises to be a broad shift to the right on civil liability issues that have made Florida a “judicial hellhole” for industry. They’re looking to DeSantis and the Legislature to rein in lawsuits and curb non-economic and punitive damage awards for personal injury, medical malpractice and other torts.

“We’re not looking for every plaintiff’s case to be rejected,” said Tiger Joyce, president of the American Tort Reform Association, an industry lobbying group in Washington. “The court has taken a very, we think, hostile position with respect to key civil justice issues and we hope that’s what will be addressed.”

Under Galvano’s leadership, state Sen. Doug Broxson (R-Gulf Breeze), an insurance agent, will take over the Banking and Insurance Committee. Sen. David Simmons (R-Altamonte Springs), will helm the Judiciary Committee.

For Galvano, the fight is partly personal. While trial lawyers have supported moderate Republicans since redistricting in 2012, they worked against the party in the November midterm elections, an effort pushed by incoming minority leader — and trial lawyer — state Sen. Gary Farmer (D-Fort Lauderdale).

“They absolutely supported our opponents in almost every single one of our seats and spent significant dollars there,” Galvano fundraiser Nancy Texeira said. “They actively and aggressively worked against us, with Sen. Gary Farmer leading that charge.”

Farmer said he raised money to elect candidates “to effectuate the policies we want to effectuate.”

“It goes back to wanting to win races,” he said.

Ryan Banfill, a spokesperson for the Florida Justice Association, which represents trial lawyers, said it’s a mistake to view the group through a partisan prism.

“We’ve enjoyed a long-standing, good relationship with President Galvano and, if you look at past campaign finance reports, have significantly supported his leadership,” Banfill said.

Florida has consistently topped the American Tort Reform Association’s list of “judicial hellholes”, an annual ranking of states where courts are considered hostile to insurers, health care providers and businesses writ large.

Trial lawyers and their consumer allies for decades directed the makeup of Florida’s courts, and the state’s jurists — like their peers in neighboring Alabama and Georgia — have stymied pro-business legislation, Joyce said.

“When the Legislature enacts a statute, it ought to have more significance than going through the process and getting rejected,” Joyce said.

Florida’s court is one of several flipping in favor of the insurance and business community, Joyce said. Others include Texas and Alabama.

Florida conservatives are gleeful at the dismantling of one of the state’s last liberal bastions.

“Groups like the Florida Medical Association will be chomping at the bit given the makeup of the new Florida Supreme Court,” said U.S. Rep. Matt Gaetz (R-Fla).

The medical association was the first major statewide group to back DeSantis in his gubernatorial primary and is expected to have influence over administration health care policy.

The doctors’ group has watched in recent years as medical liability reforms were passed by the Legislature and signed by the governor, only to be struck down by the Supreme Court.

One of those measures was a 2003 cap on non-economic damages for medical patients, a law that ultimately was nullified by the Supreme Court. The issue came up most recently in a June 2017 case in which the Supreme Court ruled that caps on damages violate the state constitution.

“In our view, it was a bad decision,” FMA general counsel Jeff Scott said.

Doctors and insurers saw eye to eye on that case, but they could soon be at odds over legislation. A bill filed by state Sen. Kelli Stargel (R-Lakeland), FL SB80 (19R), would affect how damages are calculated in personal injury cases.

The issue last came up in an April 2017 trip-and-fall lawsuit against the Central Florida YMCA. The YMCA’s lawyer accused the plaintiff’s lawyer and doctor of inflating her medical bills as part of a “cozy agreement.” The Supreme Court said that any effort to uncover any such agreement would harm client-attorney privilege.

William Large, president of the Florida Justice Reform Institute, which lobbies on behalf of insurers and businesses, backs Stargel’s bill.

Large expects to see other insurance-friendly bills this session, including measures to cap attorney’s fees on workers’ compensation cases and assignment of benefits contracts.