March 2006 – Florida Justice Reform Institute

Legal Vote a Big Win for Big Business

March 31, 2006/in St. Petersburg Times

Jennifer Liberto – March 31, 2006

The Senate gave a resounding 27-to-13 nod on Thursday to scrubbing a long-debated legal doctrine that makes sure winning plaintiffs get their jury awards by forcing wealthy defendants to pay more than their share of fault.

It was arguably the biggest battle in the Legislature yet pitting big business against the trial lawyers.

The trial lawyers lost. Again.

The repeal of what’s called “joint and several liability” – which Gov. Jeb Bush has vowed to sign – is the third major blow to the trial lawyers’ groups in three years. And some are wondering if the most recent loss signals the waning power of what historically has been the only major interest group with enough money and muscle to challenge the business and insurance interest groups.

Trial lawyers say they’re increasingly frustrated at the “big business” lock on the political process that has developed under Bush’s eight-year tenure. The governor even personally lobbied some wobbly senators this week on the tort measure.

“There are no more checks and balances on the insurance industry and the excesses of big business,” said Scott Carruthers, executive director of the Academy of Florida Trial Lawyers.

While the debate over joint and several liability spans nearly three decades, some say the trial lawyers’ political prowess really started to falter in 2003 with medical malpractice reform.

That year, the Legislature capped malpractice jury awards. Trial lawyers were able to soften the blow by negotiating higher dollar thresholds than what Gov. Jeb Bush and the House had wanted.

A bigger setback came in 2004, with constitutional Amendment 3, which trial lawyers failed to fight off. The measure, pushed by the Florida Medical Association, sought to cap fees paid to lawyers who file medical malpractice suits on contingency.

The Academy of Florida Trial Lawyers spent $25-million fighting Amendment 3, but they lost, 64 to 36 percent.

“Politicians take notice when you spend that much money and lose that badly; and obviously lobbying the Legislature hasn’t been any easier,” said Tallahassee trial lawyer Lance Block, past president of the Academy. “That said, the shellacking we took over Amendment 3 doesn’t justify handing big business the abolishment of joint and several liability.”

Last session, the Legislature passed a measure that gave immunity to companies that design safe traffic patterns while roads are under construction. They also made it harder to file some asbestos claims. However, the Senate continued to ignore efforts to repeal joint and several liability.

This year, the business lobby, including the Florida Chamber of Commerce, Associated Industries of Florida and the Florida Retail Federation, among others, made the repeal of joint and several liability their priority.

The timing was right. In December, House Speaker Allan Bense, R- Panama City, allowed discussion on the House floor for a bill banning gifts from lobbyists, a priority of Senate President Tom Lee’s that passed.

In return, Lee, R-Valrico, said Thursday he owed the House speaker a “courtesy” to get joint and several liability at least heard in the Senate. Lee said Thursday that there was no quid pro quo trade, and he did not ask senators to vote for the repeal.

Nevertheless, just getting heard in the Senate was a victory for the business lobby. The bill sailed through the probusiness House in the first weeks of the session.

The groups lobbied Democrats in the House and Senate about the issue for the first time.

William Large of the Florida Justice Reform Institute, an advocacy group funded by business groups, has concentrated all his efforts on the repeal for months, several business lobbyists said.

Probusiness lobbyists hired a cameraman to record representatives who voted against the bill in its first House committee. They also produced attack campaign pamphlets against Rep. Kevin Ambler, R- Lutz, who voted against the measure.

“The cameras at the first (committee) stop was bad. That did not need to happen,” Bense said Thursday.

“The letters to Kevin Ambler’s district did not need to happen. There are times to play hardball in politics and business and there are times when you don’t play hardball. To me this issue just sold itself on its merits.”

By the time the measure came to a final Senate floor vote, it was expected to pass, but the margin of victory was surprising. Three Democrats voted for it: Larcenia Bullard of Miami, Mandy Dawson of Fort Lauderdale and Gwen Margolis of Aventura. Only two Republican senators voted against it: Dennis Jones of Seminole and Alex Villalobos of Miami.

Five senators who voted Wednesday for an amendment that would have softened the bill switched sides Thursday, including Victor Crist of Tampa and Nancy Argenziano of Dunnellon.

Crist said he received a hundred calls from angry constituents who had heard about his impassioned speech advocating the amendment. He said he decided to switch Thursday morning after cooling down.

Trial lawyers say the defeat has only strengthened their resolve, as they target bill supporters who are up for re-election this fall, a group of 10 Republicans that includes Crist.

“We’re going to be more involved than ever in the election cycle,” said Carruthers of the lawyers’ academy.

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Bill eliminating `joint, several’ liability passes

March 31, 2006/in South Florida Sun-Sentinel

By Jason Garcia – March 31, 2006

South Florida Sun-Sentinel Tallahassee Bureau

TALLAHASSEE

The Florida Senate gave final approval Thursday to a measure toppling a centuries-old principle of civil law that will make it harder for people to collect damages when they’re injured in an accident. After an intense lobbying campaign, senators voted 27-13 for a bill (HB 145) eliminating what’s known as “joint and several” liability.

The doctrine, which businesses have wanted to abolish for years, says that a defendant in a lawsuit can be forced to pay most or all of the damages awarded to a victim, even if it is only partially to blame for the injury.

The Florida House, where Speaker Allan Bense made the issue his top priority this year, overwhelmingly approved the bill earlier this month.

The two-month session has not yet reached its midpoint and the bill is already headed for Gov. Jeb Bush’s desk.I look forward to signing this important legislation, removing an unfair burden on Florida businesses and making our state more competitive in our efforts to recruit high-paying jobs,” Bush said in a statement.

Opponents warned that without “joint and several,” innocent victims would wind up paying expenses such as medical costs.“Someone has to pay for the hospital bills. Someone has to pay for the fact that someone is out of work,” said Sen. Ron Klein, D-Boca Raton. “An innocent party should not have to go through that.”But supporters, spurred on by legions of business lobbyists, called “joint and several” liability unfair. A defendant — whether it is a company or an individual — should never have to pay more than its degree of fault in an accident, they said.“This is not about big business. This is about being fair,” said Sen. Burt Saunders, R-Naples.

Jason Garcia can be reached at jrgarciaorlandosentinel.com or 850-222-5564.

http://www.sun-sentinel.com/news/local/florida/sfl-flaw31mar31,0,5937550.story?coll=sfla-news-florida

Senate passes bill to change how lawsuit damages are divided

March 31, 2006/in Sarasota Herald-Tribune

Senate passes bill to change how lawsuit damages are divided

By David Royce

Associated Press –March 31, 2006

TALLAHASSEE, Fla. – Defendants in lawsuits would be insulated from having to pay the damages of codefendants who are broke under a bill Gov. Jeb Bush said he would sign after the Senate easily passed it Thursday.

The Senate vote was 27-13 on the measure, which would eliminate a doctrine in civil law that requires some defendants to pick up the damages assigned to another party who can’t afford to pay. Bush in the past has called the doctrine a “job killer.”

The bill (HB 145) was the top priority of the business community, which claims that too often businesses with “deep pockets” get added onto lawsuits. It was also the top priority of House Speaker Allan Bense, R-Panama City. The House had passed a similar measure earlier.

“This allows people to pay for the mistakes that they make, but not the mistakes of others,” said Sen. Daniel Webster, R-Winter Park, the Senate sponsor of the bill.

Supporters said it was a simple tenet of fairness that a defendant found to be responsible for 30 percent of damages should only have to pay 30 percent, and not have to pay more simply because another defendant can’t afford to pay.

“Every defendant in a civil justice suit will (now) pay their fair share,” said William Large, head of the Florida Justice Reform Institute, which pushed for the change.

But it wouldn’t be fair for everyone, opponents said, arguing some victims won’t be able to collect what they’re due.

What is a victim “can only collect 10 percent of the money you have to pay to the local hospital?” asked Sen. Ron Klein, D-Boca Raton. “Where’s the fairness there? You, the injured party, you now have to fend for yourself.”

Or the cost of injured victims’ medical care will be shifted to taxpayers through public hospitals and government programs that care for the indigent, said Scott Carruthers, executive director of the Academy of Trial Lawyers.

“Someone is going to pay the medical costs,” Carruthers said. “The Legislature said, ‘We’re going to let the guilty go free and make victims and taxpayers pay.'”

Backers of the change said it was also a question of economics. Bush was among those, saying he would sign the bill into law “with great joy,” in part because the doctrine has been a hindrance to economic development.

“Repealing the law removes a barrier for businesses considering relocating to Florida,” Bush said.

Slade O’Brien, a spokesman for Florida Stop Lawsuit Abuse, a group of mostly small businesses that promote measures to insulate business from lawsuit losses, said the current law leads businesses to charge more for goods and services, because they have to insure themselves against big losses.

“There’s that fear that you’re going to end up getting stuck with more than you’re responsible for, so often they’re encouraged to go ahead and settle,” said O’Brien.

While the measure is often portrayed as a help primarily to big corporations that are often thought of as “deep pockets,” smaller businesses have been hurt by the doctrine as well, O’Brien and other supporters said.

Bill Spann, vice president of the Associated General Contractors of Greater Florida, said builders who contract out part of their work are among those at risk for having to pay someone else’s damages. “Very often the general contractors are held accountable for the performance of others” involved in a building contract, Spann said. “This legislation will ensure that the financial responsibility for any errors it apportioned fairly.”

A few members of each party did cross the aisle to vote party lines, with Republicans mostly backing the business position and Democrats largely against the bill, aligned with plaintiffs’ lawyers who represent victims of accidents, negligence or wrongdoing.

Stakes High In Tort Reform Struggle

March 15, 2006/in The Tampa Tribune

Stakes High In Tort Reform Struggle

By JEROME R. STOCKFISCH – Published: Mar 15, 2006

TALLAHASSEE – In Miami, a nurse anesthetist is socked with an extra $230,000 in damages in a wrongful death case. An uninsured colleague who is more at fault cannot pay his share of damages.

Is that fair?

In Orlando, a woman suffers a horrifying infection after giving birth and has all four limbs amputated. If some of the parties at fault cannot pay, she could be forced into public assistance.

Is that fair?

These real-life scenarios are being discussed in Tallahassee as lawmakers weigh the latest push to overhaul Florida’s civil litigation system, an effort commonly known as tort reform. Today the full House will debate a bill seeking to eliminate the doctrine of joint-and-several liability, which allows a victim to collect damages from a defendant that may exceed that defendant’s degree of fault.

The bill would restrict defendants’ financial responsibility to their degree of fault and no more.

To the business lobby, Gov. Jeb Bush and the pro-business legislative leadership, it’s not only a matter of judicial fairness but also a push to make the state more business-friendly. Joint-and-several is “a job-killer in the first degree,” Bush said in his recent state-of-the-state speech.

“The whole concept is that you should pay your percentage of fault. No more, no less,” said William Large, head of the Florida Justice Reform Institute, which advocates the repeal.

Repeal Would ‘Raise Our Taxes’

Sean Domnick, a member of the executive committee of the Academy of Florida Trial Lawyers, refers to the attempt to repeal joint-and-several as “the effort to raise our taxes.”

He maintains that anyone held responsible for a wrongful act should be required to make a victim whole. In the case of multiple defendants – with some destitute, bankrupt, uninsured or even missing – joint-and-several ensures that some entity, even if it is only one of the defendants, compensates the victim.

Otherwise, Domnick said, those victims could be forced to use all their personal assets and revert to a taxpayer-funded program such as Medicaid.

“It’s the innocent victim and the innocent taxpayer that is going to bear the burden of this when they let the guilty go free,” Domnick said.

Tort-reform advocates say that too often, plaintiffs’ attorneys seek deep-pocket defendants to take advantage of the state’s joint-and-several provision. In some cases, that defendant is a corporation only marginally involved in the incident.

Advocates for repeal point to a mid-1980s case in which a man injured his fiancé when he rammed her at a bumper-cars ride at Walt Disney World. The man was found 85 percent at fault; the victim, 14 percent; and Disney, 1 percent. Under state joint-and-several provisions at the time, Disney was required to pay 86 percent of the damages, or $64,500.

The state Legislature has overhauled the law twice since that Disney case, and such a ruling could not occur under current law.

Today, joint-and-several does not apply to defendants less than 10 percent at fault. It applies only to economic damages, not pain and suffering. And the amount of economic damages that can be passed on to another defendant is capped.

That sliding cap ranges from $200,000 for defendants 11 percent to 24 percent at fault in cases in which the victim also has some degree of fault to $2 million if the defendant is greater than 50 percent at fault and the victim is faultless.

Although the 1999 package was lauded by tort-reform advocates, Large considers it merely “a step in the right direction.”

Strong Arguments

With such big stakes and such powerful lobbies squared off, there is little room for subtlety.

E. Clay Parker, an Orlando trial lawyer, recently argued before a House committee against a repeal of joint-and-several. He displayed a color photo of his client, the woman who in April 2005 checked into an Orlando hospital to give birth and ended up losing her limbs.

“Why should some person who has had a catastrophic injury be forced onto the streets or forced to be destitute or have to have the taxpayers of Florida pay millions of dollars for their care because someone screwed up?” Parker said in a recent interview.

This week, Large pored over an August 2005 verdict sheet in the case of a woman who died of internal bleeding after giving birth in a Miami hospital.

Large calculated that the nurse anesthetist eventually was responsible for 58 percent of the economic damages in the case, although jurors found her only 20 percent responsible for the tragedy.

“For me, it’s an issue of fundamental fairness,” he said.

http://news.tbo.com/

Businesses have agenda at Legislature

March 6, 2006/in Miami Herald

Businesses have agenda at Legislature

Lawmakers tackle issues from tax credits to tort reform

Monday, Mar. 06, 2006

Business groups will try again this year to get rid of a Florida statute where accident victims can receive full compensation from any one defendant if the others can’t pay their share.

The attempt to repeal ”joint and several liability” tops the priority list for business interests this legislative session. Other measures may include limiting liability for what happens on private property and class-action lawsuits.

The elimination of joint and several liability would mark ”the culmination of 33 years worth of work,” said William Large, president of the Florida Justice Reform Institute, which is backed by the Florida Chamber of Commerce. “It’s a tort-reform issue that affects nearly every potential industry, big business and small.”

Some business groups believe they have a good chance this time around. Senate President Tom Lee, R-Brandon, supports the bill and has indicated it will come to the Senate floor for a vote, according to his office.

Another bill trying to do the same thing passed the House but never made it to the Senate last year because it was bogged down by other measures, said Rep. Don Brown, R-DeFuniak Springs, its sponsor.

This time the bill is stand-alone.

”I think we have a good chance of getting it passed, but I’m not taking anything for granted,” Brown said.

State Sen. Skip Campbell, D-Tamarac, isn’t ready to concede failure.

”If the Senate president brings it up for a vote and he lets everybody vote their conscience, then I say it doesn’t pass,” Campbell said. However, it’s a different story if Lee tries to ”lock down” support from Senate Republicans, which he indicated he would not do, Campbell added.

Senate Republicans outnumber Democrats 26-14 and only 21 votes are needed to repeal the law.

Business interests have long complained that joint and several liability is unfair. If one party is held 40 percent responsible for an injury but has no insurance or assets, for example, the plaintiff can pursue the full amount from the other party held 60 percent responsible.

”The way the system is right now, you can pay more than what you’re adjudicated guilty of. That’s not American,” said Barney T. Bishop III, president of Associated Industries of Florida, a business lobbying group.

Business groups claim so-called ”deep-pocket” rules encourage speculative lawsuits. Opponents counter that doing away with joint and several liability will shift the burden to the injured party and possibly taxpayers.

Paul Jess, general counsel for the Academy of Florida Trial Lawyers, offered this example: A patient goes into the hospital to have a leg amputated. The nurse marks the wrong leg and the mistake isn’t caught by the doctor, who doesn’t have enough insurance to cover his share of fault.

Joint and several liability allows the patient to pursue the full amount of damages from the hospital. The hospital then can pursue the doctor’s part of the damages.

Otherwise, the hospital would only be responsible for its share of fault. That could leave the patient with unpaid medical costs and lost wages.

”If you’re the guy with no legs, wouldn’t you want to be compensated by the wrongdoers?” Jess asked. “Why would you want to be on Medicare or welfare? Why would you as a taxpayer want to pay for someone else’s wrongdoing?”

Joint and several liability is no different than criminal or contract law, Jess said. If you co-sign for someone’s car loan, you could be liable if the borrower doesn’t pay, he said.

The Legislature has whittled away at joint and several liability through the years. In 1986, it changed the law to no longer apply to non-economic damages such as pain and suffering. In 1999, it said a guilty party must be at least 10 percent at fault for the law to apply. Economic damages were capped at $2 million.

The Legislature’s auditing arm must report in 2007 on the impact of the 1999 change.

”The results aren’t in, so it’s not time to move ahead” with changes, said Bill Newton, executive director of the Florida Consumer Action Network in Tampa.

If joint and several liability is eliminated, the doctrine would still apply to pollution and securities cases, among others.

Miami Herald staff writer Niala Boodhoo contributed to this report.

https://www.miamiherald.com/

By Jason Garcia – March 31, 2006

South Florida Sun-Sentinel Tallahassee Bureau

TALLAHASSEE

Florida Justice Reform Institute

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