Christine Jordan Sexton - March 16, 2023
The Florida business community’s top priority for the 2023 Legislative Session — a sweeping bill to limit lawsuits against insurance companies and businesses — was center stage Thursday.
The Senate Fiscal Policy Committee voted 13-6 to pass SB 236 by Sen. Travis Hutson and the full House debated its version of the proposal, HB 837 by Reps. Tommy Gregory and Tom Fabricio, before agreeing to roll the bill to third reading ahead of a likely Friday vote.
While Democrats tried to amend the bills on Thursday, Republican supermajorities in the House and Senate successfully beat back their efforts.
Associated Industries of Florida President & CEO Brewster Bevis issued a statement following the lengthy meeting and vote.
“We applaud members of the Committee on Fiscal Policy for supporting these important policy changes that will help stop out-of-control lawsuit abuse in our state. By rebalancing Florida’s legal system, lawmakers are rightfully putting the interests of businesses and consumers above the profits of billboard lawyers. AIF will continue to stand in strong support of Florida’s leaders as they tackle our state’s toxic tort climate this Session.”
The Fiscal Policy Committee was the third Senate panel to advance SB 236, which now heads to the full Senate.
The high-priority legislation is endorsed by Republican legislative leaders and Gov. Ron DeSantis. Not all Republicans are on board, however.
Port Orange Republican Sen. Tom Wright said Thursday he was voting against the measure after hearing from constituents.
“You have 150 ‘nos’ and three ‘yesses,'” Wright told Hutson. “They voted me in so I will be down on this vote today.”
Other Senate Republicans who previously voted against the bill, such as Sen. Jay Trumbull and Sen. Nick DiCeglie, supported it on Thursday. DiCiegle told the committee that while he had concerns with the bad faith provision in the bill that the bottom line was he wanted to support tort “reform.”
Sen. Linda Stewart, a Democrat from Orlando, also voted for the bill.
Orlando trial attorney and self-described “lifelong Republican” Alexander Clem, told members of the Fiscal Policy Committee that personal responsibility has always been a cornerstone principle of the GOP. Yet the “omnibus” bill, Clem said, abandons that principle.
Clem recalled when his father served in the Legislature in the early 1970s. It was a time, he said, when there were fewer than 30 Republicans serving in the House and Senate.
“(My father) fought for personal responsibility. I know about the political pressure. I can see it. I’ve talked to you all. It’s intense. It is intense and I get it and I am sympathetic to it. But remember this, please. When you make decisions in this body, the laws that you put on the books are there forever. It’s forever time. You are here for a short time, but the laws are on the books for a forever time. This is the time to do what’s right,” he said.
The bills contain many provisions that business associations and insurers have tried to secure for the past two decades.
Included in the bills are provisions to change Florida’s negligence system from a “pure” comparative negligence system to a “modified” comparative negligence system, which would prohibit plaintiffs from collecting damages if they are more than 50% at fault for their own injuries.
The change would not apply to medical malpractice claims.
Juries considering premise liability cases also will be allowed under the bills to consider the fault of all people who contributed to an injury, including criminals.
Specific to attorney fees, the bills build off a decision the Legislature made in a December Special Session to eliminate one-way attorney fees for homeowner claims. While Florida law has long allowed a policyholder who successfully sues their insurance company to recoup their legal fees, the bills eliminate that perk.
There is an exception, however. One-way attorney fees will remain in place for declaratory judgments for coverage denial claims.
Headed into the 2023 Legislative Session, Florida Justice Reform Institute President William Large said cracking down on letters of protection — a vehicle designed to guarantee payments to certain medical providers ahead of litigation — was a top priority.
Large and other bill proponents maintain that letters of protection, or LOPs, enable plaintiffs’ attorneys to inflate the costs of past medical bills.
Large hypothesizes that LOPs can inflate the costs of settlements by four times the amount. Business groups initially pushed to ban the use of LOPs and require health care providers to either accept commercial insurance reimbursement for insured patients or agree to Medicare or Medicaid rates for uninsured patients.
Ultimately, the bills allow the continued use of LOPs. But the bills would allow juries to see the amount that was paid to settle past medical bills. Additionally, juries would be able to see evidence of what a provider would accept for payment outside of a LOP.
For an insured patient, the jury could see evidence of what the insurer or HMO would have been required to pay, plus the claimant’s care expenses under the insurance policy.
For patients on Medicare or Medicaid, juries could be shown reimbursement rates. The bill allows juries to see reimbursement at 120% of the Medicare rate. If the service isn’t covered by Medicare, the jury would see 170% of the Medicaid rate.