Six Florida bills, reconfigured Supreme Court boost tort reform prospects
The Supreme Court of the State of Florida in Tallahassee, Fla.
Tort reform is a seemingly perpetual priority for Florida lawmakers, with many going into legislative sessions vowing to address the state’s much-maligned “lawsuit climate” but few adjourning from Tallahassee achieving anything substantive.
In January, however, newly-elected Gov. Ron DeSantis installed three new justices on the state Supreme Court, turning a 4-3 conservative minority into a 6-1 bloc on the bench.
The new configuration of the state’s highest court could mean tort reform or “bad faith” bills that previously may not have survived inevitable legal challenges now, with conservatives dominating the bench, have a greater chance of being upheld and implemented.
At least four House bills and two Senate bills proposing tort reforms, including two proposing caps on lawsuit awards and “bad faith” provisions requiring alternates to personal injury lawsuits are working their way through committees.
The 21-member House Commerce Committee is expected next week to review House Bill 17, which would place a $1 million cap damages for pain and suffering, and HB 301, which would give parties additional time to complete appraisal and resolve disputes without lawsuits.
Flaws in the state’s liability laws are widely cited.
According to the U.S. Chamber of Commerce Institute for Legal Reform's "Lawsuit Climate Survey,” Florida has the fifth-worst liability system in the nation.
The American Tort Reform Foundation's (ATRF) annual report ranks Florida the second-worst "judicial hellhole" in the U.S., alleging state courts “systematically apply laws and procedures unfairly towards defendants in civil cases.”
According to ATRF, Florida has the highest tort system costs among states as a percentage of state GDP, at 3.6 percent. In 2016, the total costs and compensation paid within the state’s tort system averaged $4,442 for each Florida household.
The ATRF states that “excessive tort costs in Florida are estimated to annually cost the state economy:
• $7.6 billion in direct costs
• $11.8 billion in annual output
• 126,139 jobs
• $614.8 million in state revenues
• $516 million in local government revenues
Over the past few decades, Florida lawmakers have unsuccessfully attempted to reduce the costs of the tort system by prohibiting courts from awarding unreasonable or inaccurate damages. Below is a roundup of 2019’s proposed tort reform bills:
• House Bill 17, sponsored by Rep. Tom Leek, R-Ormond Beach, was approved March 6 by the House Civil Justice Subcommittee in a 10-5 vote.
It goes before the House Commerce Committee next week and must be heard by the House Judiciary Committee before being presented for a floor vote.
A companion Senate bill, SB 1320, sponsored by Sen. Kelli Stargel, R-Lakeland, awaits hearings before the Senate Judiciary, Health Policy and Rules committees.
If passed, HB 17 would cap at $1 million the amount of damages for pain and suffering that can be awarded in personal-injury or wrongful-death lawsuits. It also states that judges couldn't tell juries about the limit.
The bill would also change the way plaintiffs are reimbursed for medical costs and monetary awards would have to be based on actual costs, not billed costs.
The bill was approved by the House Civil Justice Subcommittee in a partisan vote but several Republicans who voted for it said they want a higher cap than $1 million.
The bill would eliminate “phantom” health-care costs the difference between what health-care providers bill for services and what they agree to accept for payment and “letters of protection” issued by law firms.
• House Bill 301, originally filed in January by Rep. David Santiago, R-Deltona, but now jointly sponsored by the House Civil Justice and Insurance & Banking subcommittees.
HB 301 was approved Feb. 13 by the House Insurance & Banking Subcommittee in a 9-4 vote and by the Civil Justice Subcommittee on March 11 in a 15-0 vote. It goes before the House Commerce Committee next week, the last stop before being presented for a floor vote.
A companion Senate bill, SB 1320, sponsored by Sen. Jeff Brandes, R-St. Petersburg, was approved unanimously on March 11 by the Senate Banking & Insurance Subcommittee and awaits hearings before the Senate Judiciary and Rules committees.
“HB 301 gives the parties some additional time to complete appraisal and resolve their dispute without more lawsuits,” Johanna W. Clark with the Florida Justice Reform Institute in a statement. "We have a problem with the bad faith law in Florida. Appraisal is great because either party can invoke this balanced process used solely to determine the amount owed under the insurance policy when a dispute arises.
“The problem now,” Clark concludes, “is that the clock to a bad faith lawsuit is ticking during the appraisal process.”
Tallahassee-based Florida Justice Reform Institute (FJRI) is among advocacy groups supporting the tort reform initiatives.
• House Bill 7077 was filed March 15 and is sponsored by the House Civil Justice Subcommittee. It was approved as PCB CJS 19-02 by the subcommitteeon March 11 in a 9-6 vote. It has not as yet been assigned to committees. No companion bill has been filed in the Senate.
HB 7077 gives defendants the right to review records and interview witnesses in the same manner as plaintiffs, re-enacts caps on noneconomic damages in medical malpractice claims, and limits medical damage awards “to the real dollar amounts medical providers actually accept to provide treatment.”
"In a medical malpractice case, often the most valuable providers of expert testimony are prior and subsequent treating physicians," FJRI attorney Tom Dukes said. "Under our system of justice, both sides should have the same right to learn the facts of the case from those treating physicians, without one side having an advantage. This bill cures that problem."
Dukes said HB 7077 reverses the Florida Supreme Court's decisions in McCall and Kalitan by re-enacting caps on noneconomic damages in medical malpractice claims.
"Finally," he added, "the greatest element of economic damages in a personal injury lawsuit is often the cost of medical treatment. Because unsubstantiated 'billed charges' can mislead a jury as they calculate a damage award, the bill properly limits recovery to what the medical provider actually accepted, or would accept in payment under the Medicare program."
• House Bill 751, ‘The Duty of Good Faith Act,’ originally filed in February by Rep. Alex Andrade, R-Pensacola, now sponsored by the House Civil Justice Subcommittee, which approved it on March 13 in an 11-5 vote. No companion bill has been filed in the Senate.
HB 751, another bill relating to “bad faith,” awaits hearing before the Government Operations and Technology Appropriations Subcommittee; Judiciary Committee
"This bill goes a long way to addressing the bad faith crisis in Florida by equalizing how the law treats first and third party bad faith claims," FJRI attorney Rick Parker said.