orlandosentinel.com/news/politics/orl-aseccsx20052008may20,0,5961562.story

May 20, 2008

TALLAHASSEE — When Sen. Paula Dockery needed friends to help derail Central Florida's commuter-rail deal, she did something once unthinkable for a Republican legislator: She appealed to the state's trial lawyers.

Dockery was up against a political dream team. Central Florida supporters of commuter rail and Jacksonville-based CSX Corp. had public-relations firms in Tallahassee, Orlando and Tampa. The city of Orlando employed uber-lobbyists Southern Strategy Group.

And two powerful legislators — Senate Majority Leader Daniel Webster of Winter Garden and Rep. Dean Cannon of Winter Park, in line to be speaker in 2010 — were leading the charge.

"I couldn't fight them all off. They were attacking from every single angle," said Dockery, who opposed the deal because it meant more freight trains running through her home city of Lakeland.

So Dockery seized on a little-noticed element of the $650million deal — an agreement to give contractors who would run the 61-mile commuter-rail system immunity from lawsuits — to get the attention of the Florida Justice Association, the lobbying arm of the trial lawyers.

The lawyers saw this proposed protection from big jury verdicts as an attack on the rights of injured parties. And after funneling millions of dollars to Republican legislators and Gov. Charlie Crist to build bridges in the GOP-controlled capital, they were in a strong position to both marshal allies and threaten opponents.

In the end, the defeat of commuter rail was not just about the power of the trial lawyers. It was a classic illustration of the way Tallahassee works, how personal relationships and legislative agendas can intertwine to form improbable but functional coalitions.

But for the lawyers, it was nonetheless a signature win.

"It seems to be, under the current administration, more acceptable for legislators to stand up to corporate America when access to the courts is threatened," says FJA president Frank Petosa.

Gov. Jeb Bush despised trial lawyers, and so did his legislative allies.

The state's plaintiff lawyers backed Democrat Buddy MacKay against Bush in 1998 and trial lawyer Bill McBride four years later. They supported mostly Democratic legislators as well.

"They're powerful, no doubt about it," Bush said in 2003. "And they tried to take me out."

Once elected, Bush took on the trial bar. Legislators passed new limits on lawsuits against corporations, doctors and insurance companies.

In 2006, Bush left office with what the trial bar concedes was a "crushing" victory — the repeal of a practice called "joint and several liability" that forced big companies to pay huge injury awards even when other less-affluent defendants were found to be more at fault.

But with Bush gone, the lawyers launched a comeback.

Candidate Crist was a lawyer. He picked a trial attorney, Jeff Kottkamp, as his running mate. Trial lawyers poured more than $1million into Crist's election.

And with Marco Rubio, a lawyer from the trial bar's traditional South Florida stronghold, ascending to House speaker, the FJA pumped more than $372,000 to GOP legislative contests. Though they gave Democrats more — $845,000 — the shift was dramatic.

"Rubio is the first Republican House speaker we've had a good relationship with for a long time," said FJA general counsel Paul Jess.

During this spring's 60-day legislative session, the trial lawyers defeated Attorney General Bill McCollum's attempt to cap contingency fees when the state hires outside lawyers, and a bill to extend immunity from lawsuits to emergency-room doctors.

But perhaps their biggest win was gaining a new right to sue property-insurance companies that are late paying claims — a provision in a reform bill sponsored by the likely next Senate president, Sen. Jeff Atwater.

That win came at a crucial time for Atwater.

The North Palm Beach Republican is being challenged for re-election by former Sen. Walter "Skip" Campbell, a prominent Broward County trial lawyer who ran for state attorney general in 2006.

But while Jess called both lawmakers "friends" who have trial-lawyer support, he said the Florida Justice Association has decided to sit out the fight.

Said Jess: "It's one of the truisms of politics: you support the people who support you."

In the Florida Senate, no one owes more to trial-lawyer support than Sen. Alex Villalobos.

The Miami Republican had been targeted for defeat in 2006 by Bush and business allies angered by his key vote against Bush's school-voucher program. The trial lawyers, organized labor and teacher unions spent more than $1.6million — more than $1million from the lawyers alone — to help Villalobos narrowly beat a Bush-picked challenger.

Senate President Ken Pruitt — a St. Lucie Republican whom trial lawyers also supported over the years — then named him chair of the powerful Judiciary Committee.

Ultimately, Villalobos was a key obstacle who helped keep commuter rail from even coming to a vote in the Senate.

The liability deal for CSX was complicated and little understood by rank-and-file lawmakers. That enabled Dockery and the trial lawyers to paint the deal as a blanket protection for CSX if it caused a commuter-rail wreck.

In fact, the deal created a $200million "no-fault" insurance policy to pay for both freight and commuter-rail accidents, similar to what South Florida has in place for its Tri-Rail commuter operation.

Separately, it also allowed the government to extend its "sovereign immunity" to the private companies that would be hired to repair and guard the rail lines and dispatch the trains. The legal principle dates back centuries and essentially holds that a government can't be sued by its people.

CSX, and both commuter-rail operations, would be covered by the insurance policy — but not sovereign immunity.

Sovereign immunity — which caps claims at $100,000 per individual and $200,000 per accident unless the Legislature approves more — allows Tri-Rail to pay less to companies that handle security and repairs, because the companies don't have to buy their own insurance.

Ironically, hardly anyone paid attention when the Legislature granted that immunity in 2002. It was in a single paragraph of a 176-page transportation "train" — an omnibus package of dozens of tweaks to road rules lawmakers sandwich together every year.

It passed 114-1 in the House and 36-0 in the Senate. Dockery and most of the critics of this year's plan voted for it — although they now say they didn't know what was in the bill.

"The fact is, with these big transportation bills, we usually find out what's in them after the fact," Dockery said.

Not this year, thanks to Dockery and the trial lawyers.

In the final days of the session, FJA lobbyists showed lawmakers a direct-mail piece they promised to send out attacking any legislator who voted for commuter rail.

The message: Vote for CSX, and you pay a price.

"When they get motivated on an issue, they are tough to beat," said Sen. Dave Aronberg, D- Greenacres, who was shown the mailer.

On the session's next-to-last day, the Department of Transportation made a desperation offer, agreeing to take the immunity language out of the bill for both commuter-rail lines.

"Two months earlier, we would have probably [accepted]," said Jess. "But by the end of the session, if they were going to solve our problem, they had to solve everybody's problems."

Aaron Deslatte can be reached at adeslatte@orlandosentinel.com or 850-222-5564.

Copyright © 2008, Orlando Sentinel