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Tort reform group again slams Florida as ‘judicial hellhole’

By Erin Clark / December 16, 2016 / News 

A newly released report by the American Tort Reform Association finds that residents of the Sunshine State are living in a very warm place indeed.

The 2016-2017 Judicial Hellholes rankings are out, and Florida came in at an ignoble 4th.  Florida follows St. Louis, Missouri; California; and New York City Asbestos Litigation as home to the most unfair civil courts in the nation.

The report specifically singles out the Florida Supreme Court for what ATRA president Tiger Joyce called in a statement accompanying the report “liability-expanding decisions that ignore state lawmakers’ prerogatives and motivate South Florida’s plaintiffs’ bar to become even more aggressive.”

One area of focus is the Florida Supreme Court’s rulings on workers’ compensation cases.  

In the April decision for Castellanos v. Next Door Co., the court made it possible for plaintiffs’ lawyers to collect large fees for filing relatively small worker’s comp claims.  The Florida Supreme Court’s ruling overthrew the legislature’s previous efforts at normalizing fee structures.

“No state high court in recent years has been more brazenly inclined to disregard the will of the legislative and executive branches of the government, and thus disregard the will of the voters who elect those lawmakers, than has the Florida Supreme Court,” the ATRA report states.

In the Castellanos case, the plaintiff’s attorney sought $36,818 in fees from the defendants.  The suit itself involved $828 in benefits.

Bill Herrle, Florida executive director of the National Federation of Independent Business, said the ruling “will allow workers’ compensation litigation to explode, and that is unsustainable for the business community. … Without immediate legislative action, this decision will result in a devastating rise in workers’ compensation insurance rates that will adversely affect our economy, job growth and small businesses.”

The Office of the Judges of Compensation Claims found that “the impact of the Castellanos and Westphal decisions was immediate.” Westphal v. City of St. Petersburg, which the Supreme Court ruled on two months after Castellanos, reaffirmed a 2013 ruling that increased the length for temporary workers’ compensation benefits from two years to five years.

The decisions proved costly.

“In May 2016, the National Council on Compensation Insurance sought a 17.1% rate increase based upon the Castellanos decisions and the legislative adjustments to the Florida medical fee schedule,” according to OJCC’s 2016 Annual Report.  The report states that ultimately the Florida Office of Insurance Regulation approved a 14.5% rate increase, effective Dec. 1.

In addition to Supreme Court overreach, the ATRA report emphasized South Florida’s culture of lawsuit abuse. 

The Florida Record singles out Miami as a hotbed of class-action lawsuits. Lawyer Yvonne McKenzie of Pepper Hamilton LLP attributes this in part to the Florida Deceptive and Unfair Trade Practices Act, which she says enables “lawyer-driven litigation.”

“Look who actually benefits in this litigation,” McKenzie told the Record.  “Lawyers are kind of emboldened to bring these claims.  Specifically in Florida, the laws are very plaintiff friendly.”

Changing the system faces strong opposition from those who benefit most.

In an October press release, Sick of Lawsuits Florida reported that Florida personal injury lawyers contributed $6.2 million to state political campaigns and super PACs in the 2016 election cycle. Spokeswoman Julie Griffiths said that “Florida’s political system is becoming increasingly dominated by personal injury lawyer influence. The massive influx of campaign contributions encourages lawmakers to promote personal injury lawyer interests — namely, finding more ways to sue.”

Florida’s fourth-place finish marks a mild improvement from its bronze medal in the 2015-2016 Judicial Hellhole race.

William Large, president of the Florida Justice Reform Institute, told Watchdog that he was “disappointed to see that Florida has made this list again,” but expressed some optimism that Gov. Rick Scott’s Friday appointment of C. Alan Lawson to the Florida Supreme Court boded well for the future.

ATRA’s Joyce noted that “there has been legislative reform in the past, but no positive activity this year.  But we’re hopeful for further legislative activity, which can go a long ways towards addressing these problems.”