Trial Bar's Tort Battle Could Have Huge Implications in 2020
Jordan Kirkland - @JKirklandFL
The Florida Report - @TheFlaReport
Following a successful 2019 legislative session where Florida Republicans championed the most comprehensive tort reform legislation in years, conservative officials around the state are gearing up for another push to protect businesses in the 2020 session.
But the push-back from trial lawyers looking to mount an assault against the pro-business agenda being propelled by Gov. Ron DeSantis and Republicans is expected to be as heavy as ever.
While consumers in the Sunshine State have a lot to lose if frivolous lawsuits continue to plague the businesses around the state, damage left unchecked by fraudulent attorneys could have a ripple effect for the Republican hold on the State Senate, as well as in the White House.
With Gov. DeSantis doubling-down on the fight to alleviate the legal strain that continues to cripple Florida's business community, insiders say that the trial bar is currently refining political ammo to launch a full-scale attack on Republicans who seek to pass more legislation that will restore responsibility in the insurance claims process.
While the trial bar will have to be on the defensive this upcoming legislative session, behind-the-scenes the group is already planning how to shift the narrative in the state and turn Florida blue in 2020. If successful, the consequences could have huge ramifications throughout the state -- both short and long term -- and could ultimately lead to the demise of President Donald Trump's second term.
Here is how that chain-reaction could play out.
While the goal in Florida is to enact change in the Republican-led House and Senate, the trial bar is planning on doing everything to curtail the tort reform momentum in 2020.
To halt the progress made by Republicans, the trial bar will look to secure their stranglehold on consumers and businesses by targeting big-time Senate seats up for grabs in 2020.
The trial bar knows they are within a few seats of bringing the Senate to another decade of standstill on tort reform. With a slim margin of 23-17 in favor of Republicans, the trial bar is slowly drawing battle lines for the upcoming election.
Hoping to stifle the pro-business movement in the state, the trial bar has its sights set on three key races: Senate District 9, Senate District 37, and Senate District 39.
In the race for Senate District 9, Republican Jason Brodeur is looking to pick up the mantle left by term-limited Republican David Simmons. Brodeur has raised money like a madman in his pursuit to keep SD 9 red. With the help of Senate Majority Leader Kathleen Passidomo, who will be a pro-reform Republican leader in 2020, a Brodeur could be a vital piece of the tort reform puzzle.
As it stands, Brodeur's only opponent at the moment is the nonviable Rick Ashby. Democrats, however, promise to field a strong candidate to flip the long-held Republican seat in an Orlando market that is within the margin necessary for a Democrat to win.
Meanwhile, Senate District 37 is a Democratic stronghold that the trial bar hopes to maintain. To secure their future in the state, they plan to line the coffers of Senate Democrats to keep incumbent Democrat Jose Javier Rodriguez in place.
The Miami-Dade Democrat is one of the more left-leaning members of the Senate, and his desire to open the illegal immigration floodgates could prove costly for businesses and consumers around the state.
Finally, and most importantly, the trial bar will do everything in their power to keep Rep. Ana Maria Rodriguez from replacing Republican Sen. Anitere Flores, who will be termed out of office next year, in Senate District 39. Like most South Florida seats, SD 39 is foreign real estate for conservatives. The area is typically considered a Democratic stronghold, and any GOP candidate running for the seat is already facing an uphill battle.
While Rodriguez has the backing of another pro-tort reform advocate in incoming Senate President Wilton Simpson, she's got the daunting task of winning another purple district that could make or break the political landscape in the Senate.
While the departure of Pinecrest Councilwoman Anna Hockhammer -- who was leading in fundraising -- left a temporary hole for Democrats to fill, the Democratic Caucus swiftly endorsed Rep. Javier Fernandez to win back a district that they say is the most important race in the state.
SD 39 covers Monroe County and parts of Miami-Dade County.
While the conservative foothold in the House is unwavering, the lukewarm Senate is always one election away from wreaking havoc on the progress made by conservatives in the state. With a rapidly thinning Republican rank, the trial bar will look to capitalize on these tight contests.
And with many of the 2020 contests still in their infancy, the trial bar will have their sights set on geographic areas that contain massive pools of blue precincts that, if activated, could be the difference-maker in the Senate.
Florida's Business Environment
Consumers sick of being taken advantage of by scheming contractors across Florida received a monumental victory this past session -- courtesy of Rep. Bob Rommel, Rep. Tom Leek, and Sen. Doug Broxson -- when GOP lawmakers passed legislation aimed at curbing skyrocketing insurance costs, protecting consumers, and restoring accountability in the insurance claims process.
Under the state's broken system, homeowners were duped into signing over the benefits of their insurance policies to contractors and attorneys, essentially allowing them to assume the role of the homeowner. In doing so, these third-parties racked up additional costs that were not used towards the repair. This practice would then lead to fraud and frivolous lawsuits. with these contractors suing insurance companies for failing to comply, thus driving up costs for consumers across the state.
Ending a seven-year battle to reform Florida's insurance industry, Florida lawmakers passed an assignment of benefits (AOB) bill that is a consumer-friendly law that will bring relief to Florida policyholders. The law went into effect on July 1.
Some of the provisions include:
• Define “assignment agreement” and establish requirements for the execution, validity and effect of agreements
• Prohibit certain fees and alter policy provisions related to managed repairs in an assignment agreement
• Transfer pre-lawsuit duties under the insurance contract to the assignee and shift the burden to the assignee to prove that any failure to carry out such duties has not limited the insurer’s ability to perform under the contract
• Require each insurer to report specified data on claims paid in the prior year under assignment agreements by Jan. 30, 2022, and each year thereafter
• Allow an insurer to make available a policy prohibiting assignment, in whole or in part, under certain conditions
• Revise Florida’s one-way attorney fee statute to incorporate an attorney fee structure in determining the fee amount awarded in suits by an assignee against an insurer
• Require service providers to give an insurer and the consumer prior written notice of at least 10 business days before filing suit on a claim
• Consumer advocates and industry experts say the rampant abuse caused higher insurance premiums in the state, making insurance harder to obtain.
Following the passing, Gov. DeSantis immediately signed the bill into law.
“I thank the Florida Legislature for passing meaningful AOB reform, which has become a racket in recent years,” DeSantis said in a statement back in May. “This legislation will protect Florida consumers from predatory insurance practices.”
From the moment he assumed office, Gov. DeSantis made tort reform a key issue in the state. He only solidified his desire to redesign the embattled legal community with his appointments to Florida's Supreme Court. The three conservative jurists -- Justices Barbara Lagoa, Robert Luck, and Carlos Muniz -- replaced three liberal justices who were forced to retire due to age limits. Consequently, the state Supreme Court’s 4-3 liberal majority tuned into a 6-1 conservative majority following DeSantis's election last November, giving conservatives around the state more flexibility to enact tort reform legislation. While it is likely that DeSantis will have to replace Lagoa and Luck following their nomination to the 11th Circuit Court of Appeals in Atlanta by President Trump, the timetable for their departure is unknown.
Regardless of how the layout of the Florida Supreme Court ends up, tort reform is expected to be public enemy no. 1 again this upcoming session.
Looking ahead to 2020, DeSantis and Republicans will continue to take the fight to bad actors in the state. One of the most important issues left on the table in 2020 deals with "phantom damages." A growing trend in many states, the term refers to an unethical practice in which plaintiffs attempt to collect the costs of medical care that were billed, but never actually paid.
"There are many substantive issues the Florida legislature can be working on. One of those issues includes addressing inflated past medicals in tort cases," said William Large, President of the Florida Justice Reform Institute. "Currently, the plaintiffs bar is introducing phantom damages into evidence and this needs to be addressed."
"Another two issues the legislature needs to address is third party bad faith reform as well as the unnecessary use of attorney fee multipliers," he continued.
While Republicans should be able to follow-up their performance this session with another solid showing on the topic of tort reform, legislation could be for naught if a blue realignment occurs in the Senate in 2020.
Taking one step forward and two steps back, however, would be catastrophic for Republicans looking to reestablish accountability in Florida. But if the trial bar is able to win a few elections, the rear view mirror will quickly become Florida's new destination. And with a blue Senate and a business community being farmed by shady lawyers, it is only a matter of time before a change occurs in...
The White House
With a progressive push both in the Senate and in the business climate, it would only be a matter of time before the Democrats take back the White House. With the Senate districts mentioned above up for grabs in 2020, Republicans in Florida have little room for error next election cycle.
Apart from SD 37 and 39 being liberal bastions in South Florida, the two areas voted heavily for Hillary Clinton in the 2016 election. Couple that with the fact that SD 9 was narrowly decided by less than 2 percentage points in the last election, and it's easy to see why the trial bar would target these purple districts.
With Florida being decided by a little more than 100,000 votes in 2016, the race in 2020 could be another close contest for Trump and the Republicans. With that said, conservatives will need to remain in power in both the House and Senate if they want to see a second term. And in order to do that, they have to make sure the trial bar doesn't renew their footing in Florida.
While certain to be a staple in next year's legislative session, the issue of tort reform is certain seep into 2020's Senate campaign cycle, and ultimately bleed into the national spotlight. How Florida tackles the complex issue could either solidify the state as a conservative beacon for years to come or completely erode a conservative bedrock that so many have fought to establish.