CIVIL LITIGATION REFORM PACKAGE REVISED AND MOVED OUT OF HOUSE JUDICIARY
Mar 10, 2023 By Jim Ash
Rep. Tommy Gregory
A House panel voted Wednesday to approve a revised civil litigation reform package, despite continued warnings that it would deny Florida’s most vulnerable citizens access to justice.
The House Judiciary Committee voted 16-8 to approve HB 837 by Chair Tommy Gregory, R-Lakewood Ranch. The measure goes next to the House floor.
After nearly five hours of debate, Gregory took a swipe at sponsors of a poisoned pill amendment that forced Republicans to vote against creating a negligence action for the death of an unborn child.
“We’re here to talk about balance,” Gregory said. “You wonder what kind of games people play in court? You’ve witnessed some of them here today.”
Critics complained that reformers are rushing fundamental and complex changes to a system that is supposed to serve as a bulwark for victims of another’s wrongdoing.
Rep. Yvonne Hinson, D-Gainesville, noted that sponsors unveiled a 35-page “strike everything” amendment at the last minute.
“For the record, we got this dropped on us just a few minutes before the meeting,” she said.
HB 837 originally called for, among other things, repealing one-way attorney fees for all lines of insurance, switching Florida from a “pure” to a “modified” comparative negligence standard, and making it easier for insurance companies to avoid liability for “bad faith” claims.
Other provisions would condense the statute of limitations for filing negligence claims from four years to two and limit the awarding of attorney fee multipliers to rare and unusual circumstances.
A “damages transparency” section would cap some awards at 140% of the Medicaid rate.
The Civil Justice Subcommittee voted 12-6 to approve the measure at its first committee stop on February 24.
But the revised version no longer calls for repealing Chapter 627.428, a law that for 130 years has protected policy holders by forcing insurers to pay their attorney fees if a court determines the company unfairly denied or underpaid a claim.
The revision also exempts medical malpractice claims from the modified comparative negligence standard. The measure would still prevent other plaintiffs from collecting damages if they are found to be more than 50% at fault. Critics warned that means people who cause a serious accident could avoid paying damages if they are found only 49% at fault.
Rep. Kristen Arrington, D-Kissimmee, asked Gregory to explain “the policy” reason for moving Florida away from pure comparative negligence.
“The policy reason I think is pretty clear,” Gregory said. “You shouldn’t recover damages when you are more to blame for the incident.”
Sponsors also softened a provision that protects insurance companies from liability in “bad-faith” claims.
The original measure would have given insurers 90 days after a lawsuit is filed to offer the disputed amount or the policy limits, whichever is less, to avoid liability.
The revised version gives insurers 120 days after a policy holder makes a claim.
The bill’s co-sponsor, Rep. Tom Fabricio, R-Hialeah, said the change will make insurance companies respond much faster.
“No lawsuit filing will be necessary,” he said.
Critics focused much of their attention on a premises liability provision that seeks to shield multi-family housing owners from liability when a criminal kills or injures a resident.
The bill would allow jurors in those civil actions to consider “the fault of all parties” — including the perpetrator — if the property owner can demonstrate that certain safety measures, such as security lighting, were in place.
Crime victim advocates argued the provision would shift the burden to a party who may be in prison and least able to pay.
Rep. Mike Gottlieb, D-Plantation and an attorney, said the criminal and civil justice systems have always operated separately.
“Why are you considering the actions taken by the tortfeasor?” he asked, referring to the perpetrator. “Are there any guidelines in the bill in terms of telling the jury how they are supposed to apportion that?”
Fabricio said the bill does not specifically address jury instructions.
“The jury will get to determine whether there was in fact liability on the criminal tort feasor,” he said.
Supporters include the Florida Chamber of Commerce, Associated Industries of Florida, the National Federation of Independent Business, the Florida Trucking Association, the Florida Justice Reform Institute, insurance companies, and others.
Reformers say the changes are necessary to curb the “lawsuit abuse” that is driving up the cost of consumer goods and every Floridian’s insurance rates.
Florida Justice Association President Curry Pajcic, a prime opponent, thanked the sponsors for agreeing to make changes, but continued to speak against the measure.
“It’s getting better, but we still have a long way to go,” he said.
A Southwest Florida civil trial lawyer, who described himself as a “proud billboard attorney,” said the reforms represent a transfer of wealth from consumers and taxpayers to the insurance industry. He noted that State Farm just reported $89.3 billion in revenue.
But Gregory urged the committee to put that figure in perspective.
“Looking at that in vacuum, it’s an interesting fact, but it ignores all of the insurance companies that went bankrupt and left the state of Florida,” he said.
Meanwhile, the Senate Banking and Insurance Committee voted 8-3 on March 7 to approve a companion, SB 236 by Sen. Travis Hutson, R-Palm Coast.
Hutson called the measure “a moving target,” and said he continues to negotiate with House sponsors to bring the measures closer together.
SB 236 faces two more hearings, in the Judiciary and Fiscal Policy committees, before reaching the Senate floor.
Senate President Kathleen Passidomo, R-Naples, and House Speaker Paul Renner, R-Palm Coast, and Gov. Ron DeSantis — all three of them attorneys — support civil litigation reforms.
With Republican supermajorities in both chambers, passage seems all but assured.
Sen. Victor Torres, D-Kissimmee, told the Banking and Insurance Committee he could not support any measure that makes it harder for his constituents to seek justice.
“My constituents sent me up here to protect their rights,” he said. “And when they’re sick or injured is when they need their rights the most.”