February 2006 – Florida Justice Reform Institute

Liability Business is Back

February 26, 2006/in St. Petersburg Times

The votes may be lined up for business-friendly changes in Florida’s civil courts.

The St. Petersburg Times – JONI JAMES
Published February 26, 2006

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Five more votes.

That’s all the Florida business lobby needed last year to pass a law that would have lessened liability for businesses when someone is injured in a crime occurring on their property.

But in the dramatic floor vote on the 59th day of the 60-day legislative session, 10 members of the Senate’s 26-member Republican caucus wouldn’t go for it, effectively killing the bill 24-16.

It was a stunning defeat for the Florida Chamber of Commerce, Associated Industries of Florida and every other major business association.

The outcome killed not only the premises liability bill but also the lobby’s hopes for more dramatic business-friendly changes to Florida’s civil courts.

Now, just nine months later, the business lobby is back. It’s better prepared, better organized and better positioned than ever in its 10-year push to rewrite tort law.

Senate President Tom Lee, as a personal favor to House Speaker Allan Bense, has promised a Senate floor vote on a repeal of “joint-and-several” liability, the granddaddy of all tort reform proposals.

The centuries-old legal doctrine, first established by British courts, says that deep-pocket defendants can be required to pay more than their share of liability to insure that an injured plaintiff is fully compensated.

What does that mean? Two drivers found equally at fault in an accident that hurt a third party may end up paying different amounts to the victim. Why? One of them has more assets than the other.

But repealing that basic premise in tort law would have a significant impact.

Supporters contend it would result in much lower liability insurance premiums for businesses, which would inevitably lower prices for a business’ customers.

Opponents argue that in the worst cases, plaintiffs with life-changing injuries wouldn’t be able to recoup adequate compensation, eventually forcing them into government medical and social service programs.

But underneath the debate is also a historical lawyer-business grudge that has reached its sharpest tension in an election year with the governorship and other Cabinet jobs on the line. Lee, for example, is running for the chief financial officer’s job and could use the business-friendly issue to help his primary fight against Rep. Randy Johnson, R-Orlando.

This session is also Republican Gov. Jeb Bush’s last. And the business lobby has no guarantee his successor will be so friendly to their cause, even if he’s a Republican. Chief Financial Officer Tom Gallagher has openly backed such reforms, but Attorney General Charlie Crist has largely sidestepped the issue while collecting significant contributions from the trial bar. The two are vying for the GOP nomination.

Stakes are just as high for trial attorneys. Any significant changes to joint-and-several liability law would rewrite the basic incentive system for trial attorneys, who usually take tort cases on a contingency basis. Without being able to go after a defendant with deep pockets, trial lawyers might be less likely to bring suits.

The issue could also have a long-term impact on Democrats, who traditionally have been the biggest beneficiaries of the trial bar’s contributions to political campaigns.

The impact has already been felt in presession meetings for the 2006 Legislature, particularly in the Senate. Whether that means the business lobby will get the five more votes it needs there, however, is anyone’s guess.

Lee, R-Valrico, hasn’t promised the repeal will pass, though he supports it. He’s merely promised to force a vote

* * *

Essentially, joint-and-several liability refers to court cases in which more than one party may be responsible for an injury. For centuries, the courts have ruled that when two or more defendants share liability for someone’s injury, they share the burden to make the victim whole.

The Florida’s Legislature last tweaked joint-and-several liability law in 1999. Bush was fresh in office, and Republican control of the Legislature was just three years old. While an outright repeal of joint-and-several failed, lawmakers did create a new, complex matrix that courts use to assign additional economic damages to deep-pocketed defendants.

Under the system, noneconomic damages or payments for “pain and suffering” are not subject to joint-and-several liability. But economic damages are. How much more a wealthier defendant can end up paying depends on two key variables: whether a plaintiff contributed to the injury, and what percentage of fault a defendant is found liable for.

Defendants found to be less than 10 percent at fault for an injury aren’t responsible for any other defendants’ damages, regardless of the plaintiff’s role in the injury.

Defendants found at fault between 11 percent and 25 percent can be held accountable for up to $500,000 more if the plaintiff was faultless or $200,000 if the victim shares some blame; those amounts rise to $1-million or $500,000 for defendants 26 to 50 percent at fault; and $2-million or $1-million for defendants at 51 percent and higher.

Opponents of repealing joint-and-several liability argue the matrix has fixed a system that at times appeared outrageous. The most-quoted example in Tallahassee: a 1987 Florida Supreme Court ruling against Walt Disney World.

In that case, the court upheld a ruling that Disney could be made to pay 86 percent of the damages to a woman injured on the park’s bumper car ride, even though a jury found the company only 1 percent responsible for injury.

However, under today’s law, Disney would owe only 1 percent. Nonetheless, repeal supporters still mention the case, as they did before the House Judiciary Committee last month.

“I find the reference to the Walt Disney Case is offensive,” said Rep. Jeff Kottkamp, R-Cape Coral, who is a lawyer and one of two Republicans who voted against the bill that day. “It weakens the whole argument for the need for this bill.”

Rep. Jack Seiler, D-Wilton Manors, argued that the bill was merely “a solution in search of a problem,” noting that legislative leaders, despite years of lobbying by business interests, had never taken advantage of a provision in the 1999 reform that called for a study of that law’s impacts on tort settlements.

“If this is such a pressing issue, why hasn’t anyone gathered that data?” Seiler asked.

But repeal supporters argue no study could adequately quantify the “hidden tax” of joint-and-several liability that comes from businesses constantly playing defense to avoid any risk of liability – including settling a claim before a lawsuit is even filed to avoid a more costly legal fight.

And they argue the trial bar, not businesses, has long hijacked the state’s court system. “There is no better organized pressure group in Tallahassee than the Academy of Florida Trial Lawyers,” William Large, president of the business-backed Florida Justice Reform Institute, told the Kissimmee Chamber of Commerce this month.

The House bill sponsor argues it’s a matter of fairness. “People should pay for what they did wrong, not for the wrong of another,” said Rep. Don Brown, R-DeFuniak Springs.

* * *

The joint-and-several repeal fight has already gotten ugly, twice.

The opening scene was last month in the House Judiciary Committee, packed wall-to-wall with well-suited lawyers and businessmen. Large’s institute had a video camera taping the discussion and vote. Representatives of the Academy of Florida Trial Lawyers pulled individual members out of the room to talk.

House members on both sides cried foul.

Kottkamp saw the video camera as intimidation.

“Yesterday we were told that there were going to be cameras here today, sound bites taken today and used against at least one of the members of the committee in an election cycle,” he said. “Frankly, if you are so afraid of the exchange of ideas in the process that you have to intimidate members, your ideas must not be very good.”

But Rep. Sheri McInvale, a former Democrat from Orlando who switched parties last month, said she felt “strong-armed” by a trio of trial attorneys who pulled her out of the committee room. She said they alluded to fielding a candidate to oppose her in the 2006 election cycle if she voted against them.

“I am deeply offended,” she said publicly.

Lobbyists on both sides rebutted the lawmakers’ allegations. Large said his footage was strictly for personal study. The trial bar denied any threats.

The vote went about as expected, 7-5 to repeal joint-and-several liability, with Kottkamp and another attorney, Rep. Kevin Ambler, R-Lutz, joining three Democrats to vote no.

After clearing another committee Wednesday, the House bill is ready for a floor vote. But the bitterness lingers. Last weekend, Ambler came home to Tampa Bay to find a mass mailing paid for by a Florida Retail Federation-backed group attacking him for his no vote.

And an even nastier fight played out this month among the Senate’s GOP majority. Senate Majority Leader Alex Villalobos, a moderate Miami Republican and former prosecutor, saw his clear ascension to the 2008 Senate presidency evaporate in a party caucus squabble.

Among the reasons his former supporters gave for defecting to his challenger, Sen. Jeff Atwater, R-North Palm Beach: Villalobos’ lack of passion for repealing joint-and-several liability.

“This isn’t something that will get solved behind the scenes,” Seiler said. “There’s too much at stake.”

The next likely battleground is the Senate Judiciary Committee, where Villalobos is expected to again play a significant role as one of five Republicans in an eight-member committee.

Villalobos, who has voted for some tort reform changes in the past, won’t say if he’ll vote for an outright repeal of joint-and-several. Nor is bill sponsor and committee chairman Daniel Webster, R-Winter Garden, expecting it.

“I don’t know how it will get out of committee,” Webster told reporters this month. “That’s not my job.”

Lee won’t comment on strategy, either, in a chamber where several Republicans, including Senate President-elect Ken Pruitt of Port St. Lucie, have received significant campaign finance support from the trial bar.

“It will get to the floor,” Lee said. “That’s all I’ve promised.”

Joni James is the Times deputy Tallahassee bureau chief. She can be reached at 850 224-7263 or [email protected]

Lawsuit industry is taxing all Floridians

February 26, 2006/in Florida Justice Reform Institute News

By William Large
My View
February 26, 2006

Thanks to Florida’s trial attorneys, there’s no running allowed on playgrounds.

Swings, merry-go-rounds, teeter-totters and sandboxes are also rapidly becoming extinct. You can blame the trial attorneys for that, too.

Because they are constantly targeted by personal injury attorneys in search of easy paydays, school districts are now forced to put warning labels on childhood fun.

According to a recent newspaper account, one South Florida school district has paid out more than $560,000 to settle 189 claims for playground accidents since 1999.

That school district isn’t a corporate wrongdoer or a criminal enterprise. Yet money that should be spent to pay teachers and educate children is instead being spent on attorney fees and injury claims that defy common sense. That money feeds Florida’s boomin lawsuit industry – Trial Lawyer Inc.

Sadly, schools aren’t the only victims of Trial Lawyer Inc. Small-business owners, entrepreneurs, corporations and even homeowners all have to deal with the constant threat of lawsuits.

The consequences go far beyond the silly warning labels we now see on playgrounds and consumer products. (Have you seen the warning label on the kitchen knife that reads “Never try to catch a falling knife,” or the baking pan that warns “Ovenware will get hot when used in oven”?)

Where does the money come from when people and businesses are forced to defend themselves from abusive lawsuits? It comes out of your pocket, in the form of taxes, and higher costs for goods and services.

According to an economic analysis by Tillinghast-Towers Perrin, the cost of the U.S. tort system for 2003 was $246 billion, or $845 per citizen. Little of that goes to help real victims – less than 22 cents on the dollar of those costs pay for actual economic loss to claimants.

The real beneficiaries of this “tort tax” are the wealthy trial attorneys who pocket huge fees.

Proponents of legal reform in Florida say current law and abuses by aggressive trial lawyers limit even childhood fun.

Opponents say proposed changes would help companies at the expense of citizens.

Sadly, schools aren’t the only victims of Trial Lawyer Inc. Small-business owners, entrepreneurs, corporations and even homeowners all have to deal with the constant threat of lawsuits.

Lawsuit abuse is a real problem that hurts everybody in Florida, and it’s time the Florida Legislature helped put a stop to it.

Not surprisingly, wealthy trial attorneys see reform as a threat to their wallets. The Academy of Florida Trial Lawyers is one of the richest lobbies in Tallahassee, and it uses its money to spread misinformation and intimidate legislators.

In one recent legislative hearing, reported in the Tallahassee Democrat, representatives were considering legislation that would ensure economic damage awards are allocated based on actual fault for an accident. In other words, if you are 15-percent responsible for an accident, you should pay 15 percent of the economic damages.

Sounds fair, right? But when a room full of trial attorneys realized that the legislators were actually going to approve such a common-sense measure, they resorted to the unrefined tactic of threatening a legislator. The message was: Vote against us and we will make sure you are defeated in your next election.

When confronted with the greed that makes every business or person a lawsuit target, trial attorneys typically hide behind the victims. But the trial attorney’s reaction to this year’s centerpiece reform – the repeal of joint and several liability – reveals the truth behind this claim. In fact, the trial attorneys are running a sophisticated political machine that uses money and intimidation for one purpose – protect the paydays for Trial Lawyer, Inc.

Nothing in joint and several liability reform makes it harder for a victim of wrongdoing to sue. Nothing makes it harder to collect a fair share of economic damages from deep-pocketed defendants.

Trial lawyers, however, will keep working to render the repeal of joint and several liability meaningless. Their latest suggestion is to allocate fault only to those they choose to name in lawsuits, and not any other parties who may be responsible. That way, attorneys can cherry-pick the deep pockets.

Allocating economic damage awards based on a proportion of fault, among all the parties responsible for an accident, is fair. It ensures defendants are held responsible for their wrongdoing. It works so well that this is currently how Florida allocates jury awards for noneconomic damages.

It’s been said that a good idea sells itself. Here’s a good idea: Make sure defendants pay their fair share – no more and no less.

William Large is president of the Florida Justice Reform Institute (www.fljustice.org), a coalition of citizens and organizations formed to fight wasteful civil litigation through legislation, promote equitable legal practices and provide information about the state of civil justice in Florida.

See Full Article

Push to Reform

February 24, 2006/in Gulf Coast Business Review

FRIDAY, FEB. 24, 2006

Business groups unite to repeal a law they say unfairly forces business to pay up to $2 million more in a lawsuit when a co-defendant can’t pay. The issue is at the top of the chamber’s legislative agenda.

by: Adam Hughes Staff Writer By Janet Leiser | Senior Editor

Florida Chamber of Commerce Executive Vice President Mark Wilson says this might just be the year the Legislature finally repeals joint and several liability – over the loud protests of trial lawyers.

If not, he has a stern warning for legislators who vote against reform.

“Be very aware it’s an election year,” Wilson says. “The business community in Tallahassee is more united than I’ve ever seen it.”

The chamber, which represents 137,000 businesses, has teamed up with the Florida Justice Reform Institute and about 25 other associations to change the law that requires businesses to pay more in economic damages in negligence lawsuits because they have the ability. The 2006 session begins March 7.

William Large, president of the Florida Justice Reform Institute, says: “It’s a fundamental doctrine of fairness. A business should pay its fair share, no more, no less.”

Associated Industries of Florida, a pro-business group, says reform is needed to “create a fair and predictable judicial system, which is crucial for attracting new business and keeping established businesses in our state.”

The majority of voters also support legal reform, Wilson says, adding that polls show two-thirds of Florida voters think a defendant in a negligence lawsuit should only pay only what the jury finds he’s responsible for.

Chamber President Frank M. Ryll Jr. says Florida has the 42nd worst legal climate in America. “Repealing joint and several liability is the single most important justice option we have,” he adds.

Last year, a bill to change the law passed the House but didn’t get out of the Senate, Wilson says. Chamber leaders expect this year’s session to be more productive.

“The reason we’re so bullish on legal reform is legislators are going to make a very important choice between policy and politics,” Wilson says. “Do they listen to the political threats of the trial lawyers or do they champion the policy wishes of the voters?”

The bill, sponsored by Rep. Dan Brown, a Republican from DeFuniak Springs, is expected to pass the House and make it to the Senate floor by the end of March or beginning of April, Wilson says.

“The Senate will determine whether or not we’re going to have legal reform this year,” he says.

Senate President Tom Lee is “providing good leadership,” Wilson says. Still, it’s a vote he expects “to go down to the wire.”

The chamber has a $5 million legislative budget and 25 lobbyists, he says, adding: “We’re not spread thin. We’re focused like a laser beam on this issue.”

Large says he’s cautiously optimistic the Legislature will adopt the reform, which is also supported by Gov. Jeb Bush.

In the Senate, Dan Webster, a Republican from Winter Gardens, introduced the companion bill.

More issues

There are several other business related issues the Chamber and other busines groups will be focusing on this session. To protect against special interest groups, the chamber would like to make constitutional amendments harder to amend. “Florida has the easiest constitution in the nation to change,” Wilson says.

Any special interest group with deep pockets can hire a signature-gathering company to get an issue on the ballot, he says. And once an issue gets on the ballot it’s likely to win approval. Since 1968, voters approved 77% of all issues on the ballot.

“If you’ve got $2 million burning a hole in your pocket, you hire a Nevada-based signature gathering company and they’ll get your issue on the ballot,” Wilson says.

To protect against fraud, the chamber wants the law changed so that petition gatherers aren’t paid by the signature, and those who collect signatures are required to wear a badge showing they’re being paid. Plus, the state should adopt a system to verify adequately that signatures belong to registered voters, he says.

In addition, the chamber is placing an initiative on the ballot this fall. If it passes, any issue that will cost Florida more than $53 million annually must be approved by two-thirds of all voters for passage.

“We want to add some fairness back into the system,” Wilson says, “not shut it down.”

Economic growth

The chamber supports a tax exemption on research and development that’s expected to cost the state $25 million annually.

“Everyone wants higher paying, high tech jobs in Florida,” he says. “Companies create those jobs. We need to create an incentive for these companies to move to Florida.”

A bill to eliminate the sales tax manufacturers pay on the purchase of machinery and equipment is expected to pass this session, he says. To qualify for the tax break, a manufacturer must expand output by at least 10%.

Business vs. NRA

In an unusual twist, the chamber finds it’s up against the National Rifle Association, which is pushing for a law to allow gun owners to carry a gun to work.

“We’re not interested in taking anyone’s guns away,” Wilson says. “But this bill would attempt to take away the property rights of home owners and business owners.”

Employees should leave guns in the car or at home while working, he says. And they shouldn’t carry them into someone’s home without permission.

The NRA bill, being pushed in every state, is an attempt by the group to boost its membership, Wilson says. The group has created a solution to a problem that’s nonexistent, he says, adding, “now it has become a major issue.”

Small business threats

Unions across the country are pushing the so-called Wal-Mart bill or fair-share health care bill. It requires companies with 10,000 or more employees to pay 9% of payroll on health insurance. Pro-business groups have criticized bills like these in Massachusetts and Maryland.

Wilson says the Massachusetts model shows it’s not a good idea. That state’s legislature lowered the number to 50 employees. Such a bill could destroy small businesses.

“This is a very dangerous bill,” he says, “and we will do everything we can to stop it.”

AT A GLANCE

JOINT AND SEVERAL LIABILITY

The following is an overview of how economic damages are currently apportioned under state law:

Defendant’s fault is more than 10% but not more than 25%

• If plaintiff is partially at fault for accident, defendant is jointly and severally liable for economic damages up to $200,000 over his share of damages.

• If plaintiff has no fault, defendant is jointly and severally liable for economic damages up to $500,000 over his share of damages.

Defendant’s fault is more than 25% but not more than 50%

• If plaintiff is partially at fault, defendant is liable for economic damages up to $500,000 over his share of damages.

• If plaintiff is not at fault, defendant is jointly and severally liable for economic damages up to $1 million over his share of damages.

Defendant’s fault is more than 50%

• If plaintiff is partially at fault, defendant is jointly and severally liable for economic damages up to $1 million over his share of damages.

• If plaintiff has no fault for accident, defendant is jointly and severally liable for economic damages up to $2 million over his share of damages.

Source: Florida Justice Reform Institute www.fljustice.org

https://www.businessobserverfl.com/article/push-reform

Lobbyist Implores Kissimmee Chamber to Back Tort Reform or Risk Hefty Lawsuit

February 9, 2006/in Lakeland Ledger

Lobbyist Implores Kissimmee Chamber to Back Tort Reform or Risk Hefty Lawsuit
By MIKE GROGAN / The Reporter

Posted Feb 9, 2006 at 12:01 AM

KISSIMMEE — A lobbyist who is pushing tort reform in the Florida Legislature has urged small-business owners in Osceola County to get behind the effort that would make them less vulnerable to expensive lawsuits.

William Large, president of the Florida Justice Reform Institute, a business advocacy group based in Tallahassee, told members of the Kissimmee-Osceola County Chamber of Commerce on Friday that they need to get involved in tort reform to have any hope of succeeding against lobbyists for lawyers who make their livings from civil litigation.

“There is no better organized pressure group in Tallahassee than the Academy of Florida Trial Lawyers,” Large said. “We need businesspeople doing the same thing.”

Appearing as guest speaker for the chamber’s monthly Breakfast of Champions meeting at the Kissimmee Civic Center, Large said one measure currently working its way through the legislature is House Bill 145, which is sponsored by State Rep. Don Brown, R-De Funiak Springs. It concerns civil cases in which there are multiple defendants.

Under current state law, Large said, defendants who share fault in a civil case often end up paying more than the percentage of liability would dictate. That, he noted, is because liability is set in percentage of increments: 10 to 25 percent, 25 to 50 percent and 50 percent or greater.

That means that someone at the lower end of one of the increments can actually be forced to pay a percentage at the higher end.

“The bill would ensure that if any business gets a percentage of fault, that’s the percentage they pay — no more, no less,” he said.

But, he said, tort reform is very difficult to get through the legislature because of the strong lobbying effort being made by trial lawyers.

“It is something that is very definitely affecting the business community in Florida,” Large said. “That’s why change is needed.”

He added that among the other types of tort reform on which his group is working is changing the state’s class action laws in which multiple plaintiffs gather to file an action. It is also seeking to reform the way premises liability cases are viewed under state statutes.

Attending the breakfast meeting for the first time, lawyer Mel Pearlman of Celebration questioned whether passing tort reform laws would open the door for businesses to provide shoddy and unsafe goods.

“Assuming you’re successful, what incentive would companies have to make sure they provide quality and safe products?” Pearlman asked.

“I don’t know any business that intentionally creates a product that is unsafe,” Large, a former trial lawyer himself, responded.

Pearlman said civil cases are not necessarily determined by whether a company acted intentionally, but are most often decided because of negligence that has led to injury — or worse.

To that, Large answered that monies that businesses now have to spend as a result of high liability insurance rates due to enormous payouts in civil lawsuits would be better used to address safety issues. And when Pearlman asked if he thought companies would use those savings to improve quality and safety, Large answered that he did, indeed, think that would be the case.

The Breakfast of Champions is held on the first Friday of each month at 7:45 a.m. The chamber started the program in August to provide a morning event for businesspeople.

“We’ve been very pleased with how its worked out,” said Mike Horner, the chamber’s president. “We’ve had attendance figures ranging from 70 to 200 people, depending on the time of the year and who the speaker is.”

He said the event is mainly for small-business people to give them a chance to network and exchange ideas with other small business owners in the community.

https://www.theledger.com/news/20060209/lobbyist-implores-kissimmee-chamber-to-back-tort-reform-or-risk-hefty-lawsuits

The votes may be lined up for business-friendly changes in Florida’s civil courts.

FRIDAY, FEB. 24, 2006

Business groups unite to repeal a law they say unfairly forces business to pay up to $2 million more in a lawsuit when a co-defendant can’t pay. The issue is at the top of the chamber’s legislative agenda.

by: Adam Hughes Staff Writer By Janet Leiser | Senior Editor

Florida Justice Reform Institute

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