By David Bishop -December 14, 2018
The Florida Legislature already has a plate full of meaty issues for the upcoming 2019 session. There’s one though that may have the biggest impact on the state’s economy — lawsuit reform. Despite two decades of Republican-control of state government, Florida’s civil legal system is decidedly weighed in favor of trial lawyers. A study released last week by the American Tort Reform Foundation listed Florida as the second ranked “judicial hellhole” in the country only behind California.
How is this possible, you ask? It’s a combination of factors but first and foremost is the Florida Supreme Court. Four of the court’s 7 members are considered liberal and tend to side with the trial lawyer industry. That four judge majority has overturned legislative-created laws that were meant to provide better balance in civil lawsuits.
All that, however, will soon change. Florida’s Constitution mandates that once a judge turns 70, he or she must retire. That impacts 3 of the 4 liberal judges on the State Supreme Court. When Governor-elect Ron DeSantis takes office on January 8, he’ll immediately have three vacancies to fill. During the campaign, he promised to appoint more conservative judges. Once those appointments are made, the state high court will lean decisively to the right, clearing the way for the legislature to pass meaningful reform.
“It gives you a chance to put people on the court who understand the separation of powers, who understand that the job of the judge is not to legislate but to apply the law,” said Gov.-elect DeSantis. “If the legislature is enacting reforms your job is to apply that law, not to rewrite it because your disagree with it.”
DeSantis’ three appointments are significant. In the first weeks of his administration, he will match the number of appointments Governors Jeb Bush and Rick Scott had in the combined 16 years they served.
The issue, however, doesn’t rest solely with the Florida Supreme Court. The legislature, in particular the Senate, has provided stumbling blocks along the way. The House has always complained that its conservative reforms tend to die in the more moderate Senate.
With a more conservative Senate and new governor committed to substantive tort reform, 2019 could be the year the legislature gets something done.
“Change is in the air. We look forward to working with new legislative leadership and a new administration to enact important civil justice reforms on issues like assignment of benefits, truth in damages, and bad faith,” said William Large, president of the Florida Justice Reform Institute.
So how is the average Floridian impacted by the state’s currently tilted civil justice system? Judicial and legislative failures cost most of us money.
Automobile insurance is one of the major problems. Florida has some of the highest car insurance rates in the country. Why? Trial lawyers have prevented the legislature from passing reforms in the “no fault” system of personal injury protection (PIP) automobile insurance coverage.
Assignment of Benefits (AOB) is another money sucker. AOB was meant to speed up repairs, for example with non-storm water damage claims. But there’s a loophole in the law. Lawyers and contractors have found a way to run-up costs and force insurance companies to pay for unneeded repairs. Instead of fighting the claims in court, insurance companies are forced to pay them. Those insurance companies then pass that added cost onto the consumer. A legislative bill that would have fixed this problem didn’t pass in the 2018 legislative session.
Another sign the political tide could be turning against trial lawyers came in the 2018 election cycle. When Republicans took control of state government in 1998, the trial lawyers knew they had to rebuild their political influence. They turned their sights on the moderate state Senate and began recruiting and contributing to candidates who supported them on their issues. And they’ve had success. For instance, the most recent legislative presiding officers, Senate President Joe Negron and House Speaker Richard Corcoran, both attorneys, supported the trial bar. Their two-year reign in office prevented the passage of civil law reforms.
In 2018, trial lawyers – believing the Democrats had a chance to take control of the Florida Senate – returned to their base and set their sites on two Republican candidates: incumbent Senator Dana Young and Senate candidate Manny Diaz. Trial lawyers invested heavily in Young’s opponent, Representative Janet Cruz, who narrowly defeated Young for the Tampa seat. Diaz won his Miami-Dade Senate seat, but not before the Senate Republican Committee had to spend more than they intended to keep the seat in GOP hands.
In the House, new Speaker Jose Oliva will likely lead the passage of civil legal reforms and Republicans in the Senate may finally have the appetite to weaken the trial lawyers’ grip on the upper chamber – whether it be for political revenge or good public policy.
Sources says Senate President Bill Galvano has an interest in addressing tort reform and particularly wants to look at Assignment of Benefits, PIP and Workers’ Compensation.
Business groups, which largely financed Republican reelection campaigns and committees, now wait to see if proposed reforms are just more talk or if 2019 is the year Floridians may finally see some action.