Florida Justice Reform Institute

Four things that could affect Florida business this summer. One involves flood insurance.

/in

 

Tampa Bay Times

Four things that could affect Florida business this summer. One involves flood insurance.

The state has already had a pile of big business stories this year.

Blue-green algae enveloping an area along the St. Lucie River in Stuart, on the east coast of Florida. Associated Press

Blue-green algae enveloping an area along the St. Lucie River in Stuart, on the east coast of Florida. Associated Press

By Graham Brink
Published May 30
Updated May 31

It’s already been a busy year for Florida business.

The governor signed off on 350 miles of new toll roads, Amazon struck a deal to bring an air cargo hub to Lakeland, and several South Florida companies were caught up in the largest Medicare scam in history.

Closer to home, health care giant Centene announced the purchase of WellCare Health Plans, one of the area’s largest corporations, and home sales kept chugging along, though they have shown signs of wavering.

What happens next? I’m no fortune teller, but here are four things to keep an eye on this summer.

Algae watch

Reports of slimy green algae plagued the state last summer. The worst of the toxic brew flowed out of Lake Okeechobee and contaminated the St. Lucie and Caloosahatchee rivers, killing fish and other marine life. It smelled awful and hurt businesses, from fishing guides to name-brand hotels. Photos and video of the brightly colored ooze beamed across the world. Not a good look for a state so reliant on tourism.

Are we in for a repeat performance?

So far, experts have spotted only a few small algae blooms on the lake, which didn’t stick around long and were only mildly toxic. More good news: Nutrient levels aren’t as high as recent years.

The Army Corps of Engineers has also kept the lake’s water levels lower, which reduces the risk of needing a large-scale discharge into the two rivers as the state enters the rainy season.

Flood insurance

Late last year, Congress extended the National Flood Insurance Program until May 31, the 10th short-term continuation since September 2017. That’s 10 failed opportunities for lawmakers to come up with a long-term fix.

More recently, the flood program was caught up in the fight over a $19.1 billion disaster aid package that lawmakers have argued over for months. The bill extends the flood program until September, pushing the problem off until the middle of hurricane season.

On Thursday, lawmakers approved an emergency 14-day extension of the flood program, so it wouldn’t expire while they fight over the disaster aid package.

The idea is for lawmakers to figure out a permanent solution for the program, which has hemorrhaged money since Hurricane Katrina in 2005 and Hurricane Sandy in 2012. The debt load — now more than $20 billion — got worse after Hurricane Harvey deluged Houston in 2017 and Hurricane Irma raked Florida the same year.

Mortgage companies require many homeowners to buy flood insurance, but few private insurers offer the coverage. That leaves the tattered national program, which can’t go on losing money. It needs a major overhaul, but it’s hard to believe that Congress will come up with a remedy soon. Expect them to punt again.

Assignment of benefits

You may have heard the buzz about “assignment of benefits” lawsuits. They involve policyholders who grant third parties like construction contractors or windshield repair companies the right to bill insurers on their behalf.

The lawsuits have become all the rage. In 2004, there were less than 10,000, according to the Florida Justice Reform Institute. By 2017, the number nearly hit 100,000.

Florida’s “one-way” attorney fee law helped drive the increase. In assignment of benefit cases, insurers could be held liable for all attorneys’ fees if they lost a case. Plaintiffs, on the other hand, were not obligated to pay the insurers’ attorneys fees. The idea was to level the playing field for consumers when they took on large insurance companies.

Plaintiffs’ attorneys argued that the arrangement helped ensure that insurers paid a fair price, instead of letting them get away with lowball estimates. Critics pushed back in recent years, saying contractors and attorneys abused the system by running up large legal bills, especially in water damage cases. Insurers complained that the numerous lawsuits forced them to increase rates, contributing to the high cost of insurance in Florida.

Gov. Ron DeSantis came down on the side of the insurers. He recently signed a bill that limited attorneys’ fees in assignment of benefits lawsuits filed by contractors. The bill also allows insurers to offer policies that restrict or ban people from signing their rights over to a third party.

The changes to the law should curtail the number of lawsuits, unless cagey attorneys find a way around it.

The law takes effect July 1.

Rays attendance

The Tampa Bay Rays are winning a lot of games. They play a fun brand of baseball, and the players are easy to get behind.

Still, Tropicana Field feels like a graveyard.

On Tuesday night, the Rays drew a record-low turnout of 5,786 against the Toronto Blue Jays. The Tampa Bay Rowdies, a second-division soccer team, averaged better than that last year.

If it was just a one-game blip, it wouldn’t matter. But Rays attendance has been dismal for years. If the popular New York Yankees and Boston Red Sox didn’t come to town several times a year, the numbers would look even worse.

The Rays have explored stadium sites in Tampa. The team also has been linked with moves to other cities including Las Vegas, Charlotte and Portland. They won’t be going anywhere soon, but the rationale for staying in St. Petersburg is hanging by a thread.

Will another summer of lousy attendance end the argument once and for all?

Contact Graham Brink at [email protected]. Follow @GrahamBrink.

https://www.tampabay.com/business/four-things-that-could-affect-florida-business-this-summer-one-involves-flood-insurance-20190530/

Florida Justice Reform Institute

Whats up with FL new Supreme Court?

/in

 

Tampa Bay Times

What’s up with Florida’s new Supreme Court? This case helps explain.

The Court just made class action lawsuits a lot harder to win.

Florida Supreme Court

The Florida Supreme Court. [News Service of Florida]

May 24, 2019

TALLAHASSEE — In a move that left little doubt about the new direction of the Florida Supreme Court, justices on Thursday reversed a controversial 2017 decision about the testimony of expert witnesses in lawsuits.

While drawing relatively little public attention, the expert-witness issue has been a political battleground for business groups and plaintiffs’ attorneys. The ruling Thursday effectively sided with the position of business groups and Republican lawmakers — and cemented that the newly revamped Supreme Court is willing to reverse course on past decisions.

After taking office in January, Republican Gov. Ron DeSantis appointed justices Barbara Lagoa, Robert Luck and Carlos Muniz to replace longtime justices Barbara Pariente, R. Fred Lewis and Peggy Quince, who were forced to leave because of a mandatory retirement age. The appointments have turned what was widely viewed as a liberal court into a conservative court.

The 5-2 ruling Thursday was rooted, at least in part, in a 2013 law approved by the GOP-controlled Legislature and then-Gov. Rick Scott. The business-backed law tightened a standard for expert witnesses, whose testimony can play a pivotal role in complicated civil and criminal cases.

Supporters of the 2013 law argued that the state needed to prevent testimony that is “junk science.” Lawmakers decided to move to what is known in the legal world as the “Daubert” standard, which is more-restrictive than the state’s longstanding expert-witness standard, known as the “Frye” standard. Federal courts use the Daubert standard, but opponents of using it in Florida courts said it would make cases more expensive and time-consuming.

In 2017, however, the Supreme Court, which has the power to set court procedures, blocked the move to the Daubert standard. The majority in that 4-2 decision — Pariente, Lewis, Quince and Justice Jorge Labarga — pointed to “grave constitutional concerns” about the Legislature’s effort to change the standard. Dissenting in the case were justices Charles Canady and Ricky Polston.

On Thursday, however, Canady, Polston, Lagoa, Muniz and Justice Alan Lawson made up a majority that said it had decided to “recede” from the earlier decision. As a basis, it pointed to “this court’s exclusive rule-making authority and longstanding practice of adopting provisions of the Florida Evidence Code as they are enacted or amended by the Legislature.”

“Whereas the Frye standard only applied to expert testimony based on new or novel scientific techniques and general acceptance, Daubert provides that ‘the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable,’ ” the opinion said. “Moreover … the Daubert amendments will create consistency between the state and federal courts with respect to the admissibility of expert testimony and will promote fairness and predictability in the legal system, as well as help lessen forum shopping.”

But Labarga, in a dissent, pointed to recommendations from a Florida Bar committee that played a role in the Supreme Court’s 2017 decision to not change the standards.

“I agree with the committee that the Daubert amendments create a significant risk of usurping the jury’s role by authorizing judges to exclude from consideration the legitimate but competing opinion testimony of experts,” Labarga wrote. “Where evidence is not based upon new or novel science, juries should be permitted to hear the testimony of experts, evaluate their credibility, and analyze and weigh their opinions and conclusions to reach a just determination on the issues presented by the case.”

Luck, one of the DeSantis appointees, also dissented, saying the Supreme Court did not follow its procedures before issuing the decision Thursday. Those procedures involve committees and The Florida Bar Board of Governors studying proposed court rule changes and making recommendations.

“Because we established mandatory procedures for exercising our rulemaking authority (under part of the Florida Constitution), we are as required to follow them as everyone else,” Luck wrote. “There is no exception for administrative ease, and there is no proviso for we’ve-heard-it-all-before.”

Since DeSantis appointed the new justices, speculation has swirled about issues that the court could address — and possibly revisit. The News Service of Florida reported this week, for example, that justices are weighing whether to undo a major 2016 ruling in death-penalty cases.

William Large, president of the Florida Justice Reform Institute, a group that lobbied for the 2013 expert-witnesses law, pointed to potentially far-reaching ramifications of Thursday’s decision.

“The Florida legislature passed the Daubert expert evidence standard in 2013, but a previous majority of the Florida Supreme Court refused to acknowledge that change,” Large said. “The court’s decision today to finally adopt the Daubert standard will change the face of Florida jurisprudence.”

http://www.tampabay.com/florida-politics/buzz/2019/05/24/whats-up-with-floridas-new-supreme-court-this-case-helps-explain/

Florida Justice Reform Institute

Florida enacts changes for attorney fees in assignment of benefits suits

/in

 

CQ Roll Call

Florida enacts changes for attorney fees in assignment of benefits suits

(May 24, 2019) – Florida enacted changes to attorney fee awards that some say will solve problems related to assignment of benefits lawsuits within the state.

Gov. Ron DeSantis signed the changes (HB 7065) into law on May 23, after the legislature had passed them in April.

The new legislation sets rules for awarding attorneys’ fees in lawsuits disputing claims made under assignment of benefits agreements in residential or commercial property insurance policies.

Assignment of benefits agreements allow third parties to make insurance claims. For example, home restoration companies may offer to make repairs while telling customers they will file claims with customers’ insurance companies, David Sampson, CEO of the American Property Casualty Insurance Association, described to CQ in February.

The policyholder doesn’t pay a deductible, but also doesn’t know the amount the vendor bills the insurance, because the policyholder assigned rights to the vendor through a contract.

“In many cases it’s multiples of what it would cost to actually fix the windshield or replace the windshield,” Sampson said.

 If the vendor sues the insurance company regarding the claim and wins, the insurance company then has to pay the vendor’s attorney fees. Nearly 135,000 lawsuits over assignment of benefits agreements were filed in Florida in 2018 through Nov. 9, an increase of 70 percent from the total filed over the last five years, according to the Institute’s report.

Under the new legislation, the amount of attorney fees awarded depends on the difference between the damages recovered by the repair company and the payment offer the insurance company made in response to the notice of intent to sue.

If that difference is less than a quarter of the disputed amount, the insurer can be awarded “reasonable” attorneys’ fees, the law says. If that difference is at least a quarter, but less than half of the disputed amount, neither party can receive attorneys’ fees.

If that difference is at least half of the disputed amount, the repair company can receive “reasonable” attorneys’ fees.

Commissioner David Altmaier of Florida’s insurance regulation office praised the bill signing. “We will better protect consumers from those who would take advantage of them by abusing the Assignment of Benefits process,” he said in    a statement.

“Florida also has a unique attorney fee structure as it relates to AOB agreements as the current one-way attorney fee structure incentivizes abusive litigation in our insurance market,” Altmaier said in an April 11 statement after House  passage of the changes.

“As a result, Florida remains unique as we are one of the only states currently battling a cottage industry that profits off the systemic abuse of AOBs. However, the impacts of this abuse are not so unique as every policyholder across our state is facing an insurance product affordability and availability crisis,” he said.

Other issues might remain, though. Florida Justice Reform Institute President William Large told CQ before the Senate’s passage that he was disappointed the House bill didn’t include a fix related to auto glass.

“All the principles that we’ve been arguing about the need for AOB reform in property litigation is just as true in windshield auto glass litigation,” he said.

The industry’s focus in lobbying might explain why auto glass was omitted. Large said, “I think Citizens Property Insurance did an excellent job of educating legislators about costs associated with property litigation. Because Citizens was focused on property insurance issues, I think legislators didn’t understand the impact … auto glass litigation was having in the state.”

By Zoe Sagalow, CQ Roll Call

© 2019 Congressional Quarterly Inc. All Rights Reserved

https://urldefense.proofpoint.com/v2/url?u=https-3A__1.next.westlaw.com_Document_Ieb4b886b7e6611e9adfea82903531a62_View_FullText.html&d=DwMFaQ&c=14jPbF-1hWnYXveJ5rixtS_Fo3DRrpL7HUwJDAc4HIc&r=j3OEs-Fy-wXfQz8bCnLyudWUI_qJxfs3_DwuiU2vr90&m=SJVxo85ld-qYy166R-LM-Ddva_xm7hesRSg3hcsI6B0&s=3v6WW1gMmbSZ7F8pHN_VbVHDJ99eEM0Ve4_4EZmbbPI&e=

Florida Justice Reform Institute

Florida Supreme Court reverses course on expert witnesses

/in

 

News 4 Jax

Florida Supreme Court reverses course on expert witnesses

By Jim Saunders, The News Service Florida
Posted: 4:10 PM, May 23, 2019
Updated: 4:10 PM, May 23, 2019

Florida Supreme Court

TALLAHASSEE, Fla. – In a move that left little doubt about the new direction of the Florida Supreme Court, justices on Thursday reversed a controversial 2017 decision about the testimony of expert witnesses in lawsuits.

While drawing relatively little public attention, the expert-witness issue has been a political battleground for business groups and plaintiffs’ attorneys. The ruling Thursday effectively sided with the position of business groups and Republican lawmakers — and cemented that the newly revamped Supreme Court is willing to reverse course on past decisions.

After taking office in January, Republican Gov. Ron DeSantis appointed justices Barbara Lagoa, Robert Luck and Carlos Muniz to replace longtime justices Barbara Pariente, R. Fred Lewis and Peggy Quince, who were forced to leave because of a mandatory retirement age. The appointments have turned what was widely viewed as a liberal court into a conservative court.

The 5-2 ruling Thursday was rooted, at least in part, in a 2013 law approved by the GOP-controlled Legislature and then-Gov. Rick Scott. The business-backed law tightened a standard for expert witnesses, whose testimony can play a pivotal role in complicated civil and criminal cases.

Supporters of the 2013 law argued that the state needed to prevent testimony that is “junk science.” Lawmakers decided to move to what is known in the legal world as the “Daubert” standard, which is more-restrictive than the state’s longstanding expert-witness standard, known as the “Frye” standard. Federal courts use the Daubert standard, but opponents of using it in Florida courts said it would make cases more expensive and time-consuming.

In 2017, however, the Supreme Court, which has the power to set court procedures, blocked the move to the Daubert standard. The majority in that 4-2 decision — Pariente, Lewis, Quince and Justice Jorge Labarga — pointed to “grave constitutional concerns” about the Legislature’s effort to change the standard. Dissenting in the case were justices Charles Canady and Ricky Polston.

On Thursday, however, Canady, Polston, Lagoa, Muniz and Justice Alan Lawson made up a majority that said it had decided to “recede” from the earlier decision. As a basis, it pointed to “this court’s exclusive rule-making authority and longstanding practice of adopting provisions of the Florida Evidence Code as they are enacted or amended by the Legislature.”

“Whereas the Frye standard only applied to expert testimony based on new or novel scientific techniques and general acceptance, Daubert provides that ‘the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable,’ ” the opinion said. “Moreover … the Daubert amendments will create consistency between the state and federal courts with respect to the admissibility of expert testimony and will promote fairness and predictability in the legal system, as well as help lessen forum shopping.”

But Labarga, in a dissent, pointed to recommendations from a Florida Bar committee that played a role in the Supreme Court’s 2017 decision to not change the standards.

“I agree with the committee that the Daubert amendments create a significant risk of usurping the jury’s role by authorizing judges to exclude from consideration the legitimate but competing opinion testimony of experts,” Labarga wrote. “Where evidence is not based upon new or novel science, juries should be permitted to hear the testimony of experts, evaluate their credibility, and analyze and weigh their opinions and conclusions to reach a just determination on the issues presented by the case.”

Luck, one of the DeSantis appointees, also dissented, saying the Supreme Court did not follow its procedures before issuing the decision Thursday. Those procedures involve committees and The Florida Bar Board of Governors studying proposed court rule changes and making recommendations.

“Because we established mandatory procedures for exercising our rulemaking authority (under part of the Florida Constitution), we are as required to follow them as everyone else,” Luck wrote. “There is no exception for administrative ease, and there is no proviso for we’ve-heard-it-all-before.”

Since DeSantis appointed the new justices, speculation has swirled about issues that the court could address — and possibly revisit. The News Service of Florida reported this week, for example, that justices are weighing whether to undo a major 2016 ruling in death-penalty cases.

William Large, president of the Florida Justice Reform Institute, a group that lobbied for the 2013 expert-witnesses law, pointed to potentially far-reaching ramifications of Thursday’s decision.

“The Florida legislature passed the Daubert expert evidence standard in 2013, but a previous majority of the Florida Supreme Court refused to acknowledge that change,” Large said. “The court’s decision today to finally adopt the Daubert standard will change the face of Florida jurisprudence.”

https://www.news4jax.com/news/florida/florida-supreme-court-reverses-course-on-expert-witnesses 

Florida Justice Reform Institute

Florida Supreme Court today ‘righted’ wrong Daubert decision issued last fall, FJRI president says

/in

 

Florida Record

Florida Supreme Court today ‘righted’ wrong Daubert decision issued last fall, FJRI president says
By Karen Kidd | May 23, 2019

Florida Supreme Court

Florida Supreme Court. Front row, from left, Justice Ricky Polston, Chief Justice Charles T. Canady
and Justice Jorge Labarga. Back row, from left, Justice Robert J. Luck, Justice Alan Lawson, Justice Barbara Lagoa and
Justice Carlos G. Muñiz.

TALLAHASSEE  — The Florida Supreme Court’s amendments to state evidence rules issued earlier today puts right a previous court decision to not follow legislative mandated changes, the head of a Tallahassee-based tort reform advocacy group said.

“The Florida Legislature passed the Daubert expert evidence standard in 2013, but a previous majority of the Florida Supreme Court refused to acknowledge that change,” Florida Justice Reform Institute President William Large said in an email to the Florida Record. “The Court’s decision today to finally adopt the Daubert standard will change the face of Florida jurisprudence.”

The high court decided 5-2 to adopt the Daubert evidence standard over what is considered the more lenient Frye standard, the latter of which had been established by the court last fall as “the appropriate test in Florida courts.”

Chief Justice Charles T. Canady and justices Ricky Polston, Alan Lawson, Barbara Lagoa and  Carlos G. Muñiz concurred in the rules amendment while justices Jorge Labarga and Robert J. Luck dissented.

The Supreme Court’s decision to adopt the Daubert standard comes less than a year after previous justices on the court went in the opposite direction. In October, in DeLisle v Crane Co., et al the previous court invalidated 2013 legislative changes to Florida’s evidence code that adopted Daubert. The court’s decision then affirmed the Frye standard in Florida.

“We recognize that Frye and Daubert are competing methods for a trial judge to determine the reliability of expert testimony before allowing it to be admitted into evidence,” then Florida Supreme Court Justice Peggy Quince wrote in the 4-3 majority DeLisle decision. “Both purport to provide a trial judge with the tools necessary to ensure that only reliable evidence is presented to the jury. Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used. With our decision today, we reaffirm that Frye, not Daubert, is the appropriate test in Florida courts.”

The DeLisle decision was issued before major changes occurred on the Florida Supreme Court three months later. In January, Quince, along with Justices Barbara Pariente and Fred Lewis, left the Florida Supreme Court after reaching mandatory retirement age and were replaced the same month by appointees of incoming Republican Gov. Ron DeSantis, who picked justices Barbara Lagoa, Robert J. Luck and Carlos Muñiz.

Including DeSantis appointments, all seven justices on the high court were appointed by a Republican governors.

In its amendments to Florida’s evidence code issued today, the high court avoided “readdressing the correctness” of the DeLisle decision but noted that DeLisle “did not address the amendment to” the state’s evidence code.

“Therefore, the court has not determined the extent to which that amendment may be procedural,” the court said in today’s rule amendment.

In his dissent to the rule amendment adopting Daubert, Justice Luck maintained the state Supreme Court lacks authority to adopt the rule amendment and said that switching from Frye to Daubert should not be considered until the court has “a proper case or controversy.”

Luck wrote that he understood the court held in DeLisle that portions of the then existing rules were “not substantive” and “did not create, define or regulate a right.”

“But we were wrong and acted without jurisdiction in DeLisle, and I look forward to the day we have a proper case or controversy so we can revisit our holding,” Luck continued in his dissent. “While DeLisle is our precedent until that day, I would not build upon its shaky foundation by relying on its erroneous holding so we can adopt a new procedural rule. We shouldn’t compound one error by, on our own initiative, shoveling another case on top of it.”

In his special concurrence, Justice Lawson countered that the court is authorized only to adopt or amend its rules.

“As explained in the majority’s per curiam opinion, that process was followed here, with the result that the Court has had the benefit of Florida Bar recommendations, oral argument and extensive public comments, pro and con,” Lawson wrote. “All that this Court is doing now is reconsidering its earlier administrative (i.e., non-adjudicative) decision not to adopt the proposed Daubert amendments.”

https://flarecord.com/stories/512563225-florida-supreme-court-today-righted-wrong-daubert-decision-issued-last-fall-fjri-president-says 

Florida Justice Reform Institute

Florida Passes ‘Catch All’ Insurance Bill Impacting Surplus Lines, Catastrophe Fund

/in

 

Insurance Journal

Florida Passes ‘Catch All’ Insurance Bill Impacting Surplus Lines, Catastrophe Fund

By Amy O’Connor | May 13, 2019

Florida State Capitol

A Florida bill that the insurance industry says will help modernize the state’s surplus lines system, as well as impact property insurer contracts under the Florida Hurricane Catastrophe Fund and reduce “bad faith” lawsuits, is now awaiting the governor’s signature after being passed by state lawmakers.

House Bill 301, sponsored by Representative David Santiago, was dubbed an omnibus bill because it included several insurance-related provisions, including:

•  Increasing reimbursement from the Florida Hurricane Catastrophe Fund for loss adjustment expenses from 5 percent to 10 percent of reimbursed losses beginning with contracts issued after June 1, 2019
•  Provides that workers’ compensation insurance applicants and their agents are not required to have their sworn statements notarized
•  Prohibits an insured from filing a civil remedy notice with 60 days after an appraisal is invoked
•  Expands the allowance of multiple policy discounts in certain circumstances
•  Reduces the minimum amount of premium that must be collected for motor vehicle insurance at the initial issuance of a policy

Many in the surplus lines industry praised other parts of the bill that they say will give the state’s Florida surplus lines industry a much-needed update. The bill eliminates a prescriptive cap on surplus lines agent policy fees and replaces it with the requirement that the fee be “reasonable” and separately disclosed to the customer, according to the Wholesale & Specialty Insurance Association (WSIA), which worked with the Florida Surplus Lines Association (FSLA) to support the legislative reform effort.

The law previously stated surplus lines agents could not charge more than $35 for filing surplus lines policies.

“Currently, Florida is one of the few states that caps the surplus lines broker policy fee. Once this legislation is signed into law by the governor, Florida will join a majority of states that permit reasonable fees to be charged in a surplus lines transaction,” WSIA said in a statement. “This simple revision not only modernizes Florida’s laws, but it promotes increased options for consumers and a prosperous Florida economy.”

The provision also impacts surplus lines export eligibility by decreasing the residential structure dwelling replacement cost to $700,000 from $1 million as it relates to “diligent effort” procedures. Agents must currently make a “diligent effort” and have been rejected by at least three authorized admitted insurers before seeking coverage from the surplus lines market for a policy. However residential structures with a value of $1 million or more need only be rejected by one insurer. The new provision reduces the dwelling replacement cost threshold from $1 million to $700,000.

FSLA President Elect Michael Franzese of R-T Specialty in Tampa called the passage of HB301 “great news for the surplus lines insurance industry and ultimately Florida businesses of every size.”

“As our industry has modernized over the years, keeping up with technology and new industries, the laws surrounding us had not. These changes will help us operate efficiently and promote a growing Florida economy,” he said.

FSLA, which supported the legislation and lobbied for other surplus lines changes this session that were not passed, said Florida is one of the top three consumers of surplus lines insurance in the country, with the industry writing more than $2 billion in premium for commercial property in the state annually. FSLA said there are currently 1,079 surplus lines agents in Florida actively writing policies, according to the Florida Surplus Lines Service Office.

Surplus lines insurance is “important to Florida consumers, businesses and the health of Florida’s economy,” said Joel Cavaness, WSIA president.

But not everyone in Florida agreed the surplus lines changes were positive for the state. Lisa Miller, a former Florida Deputy Insurance Commissioner and current advocate for the state’s admitted market, said the changes in HB 301 make it easier for surplus lines insurers to compete with Florida’s admitted market for high value personal residential homes and called it “bad public policy and ultimately bad for consumers.”

“…It’s the consumers who will lose, not at the time of policy issuance where prices may be artificially lower by surplus lines carriers but at the time of a claim when past history shows their poor claim handling performance simply because surplus lines answers to no one,” said Miller.

FSLSO said it is still analyzing the bills that passed and failed and will have more information in the coming week on what impacts the surplus lines community.

The Florida Office of Insurance Regulation said it had no comment on HB 301.

Florida Hurricane Catastrophe Fund

The FHCF was established in 1993 after Hurricane Andrew to operate as a form of reinsurance for residential property losses. Property insurers in Florida are currently reimbursed by the state-administered tax-exempt trust fund for a selected percentage of hurricane losses to residential property above the insurer’s deductible. According to the bill’s analysis, property insurers doing business in the state are required to enter into reimbursement contracts with FHCF to “protect and advance the state’s interest in maintaining insurance capacity in Florida by providing reimbursements to insurers for a portion of their catastrophic hurricane losses.”

Insurers are charged the “actuarily indicated premium” for the coverage FHCF provides based on the insurer’s relative exposure to hurricane losses. FHCF also is required to reimburse insurers for adjustment expenses (LAE) at a current rate of 5 percent. Under HB 301 that rate increases to 10 percent beginning with contracts issued after Jan. 1, 2020.

Civil Remedies Against Insurers

HB 301 also contained a provision designed to reduce “bad faith” litigation by saying a civil remedy notice may not be filed within 60 days after appraisal is invoked by any party in a residential property insurance claim. It was included to address a decision in the case of Cammarata v. State Farm

In this case, a Florida Fourth District Court of Appeals held that the insurer’s liability for coverage and the extent of damages, and not the insurer’s liability for breach of contract, must be determined before a bad faith action became ripe.

The Florida Justice Reform Institute praised the passage of the provision in HB 301.

“By giving appraisal time to work, and removing simple valuation as an issue in dispute, the bill should reduce the likelihood of a claimant subsequently moving forward with a claim of bad faith,” said William Large, president of the FJRI.

Florida HB 301

Correction: This story has been updated from an earlier version that incorrectly stated the effective date for changes to the Florida Hurricane Catastrophe Fund reimbursement for loss adjustment expenses. The correct date is for contracts issued after June 1, 2019.

https://www.insurancejournal.com/news/southeast/2019/05/13/526135.htm

Florida Justice Reform Institute

Fort Lauderdale says it has no intention of filing suit against fossil fuel companies over climate change

/in

 

Florida Record

Fort Lauderdale says it has no intention of filing suit against fossil fuel companies over climate change

By John Breslin | May 6, 2019

Lauderdale

Fort Lauderdale officials say their 165 miles of canals, which serve as a drainage
system, are no longer effective against rising seas and heavier rainfalls. City of Fort Lauderdale

FORT LAUDERDALE – Efforts by environmental groups to encourage Florida cities and counties to sue fossil fuel companies appear to be foundering as one city lobbied says it has no intention of filing one.

Municipalities, counties, and even states have filed suits against oil and gas companies, including giants such as Exxon, claiming the companies knew that burning fossil fuels contributed to damaging climate change, but concealed the information.

Last October, the Fort Lauderdale City Commission heard from Earthrights International (ERI), a Washington D.C.-based environmental advocacy group involved in a number of similar suits in various parts of the country.

ERI appears to have worked with other groups in pushing cities in Florida to file suits, according to emails obtained by the Florida Record. One of those groups, the Institute for Governance & Sustainable Development (IGSD), was represented by Miami Beach lobbyist, Seth Platt, of LSN Partners.

  Seth Platt, a lobbyist with LSN Partners.

Representatives attempted to persuade the commission to file suit, arguing that fossil fuel companies should be liable for the cost to the municipality to combat the effects of climate change, including rising sea levels. It has not worked, yet.

“We have no intention of filing a lawsuit,” Alain E. Boileau, city attorney, told the Florida Record after the city was asked for an update following last October’s presentation.

Other government entities in south Florida were reported to be in contact with the environmental organizations, including Miami-Dade County

But a spokesperson for Mayor Carlos Gimenez told the Florida Record: “We’ve checked with the county attorney’s office, and there has been no discussion regarding any such lawsuits.”

Another reported target was the City of Miami Beach. In a brief statement to the Florida Record,Mayor Dan Gelber’s spokesperson, Melissa Berthier, said, “Regrettably, the City of Miami Beach is disinclined to discuss this subject matter.”

More than a dozen lawsuits have been filed across the country, from California, to Colorado, to New York City. Most are filed by coastal municipalities.

But, in one consequential decision, a suit filed by San Francisco and Oakland arguing under public nuisance laws was dismissed by a federal court in California.

Judge William Alsup, of the U.S. District Court for the Northern District of California, found that the issue of climate change “deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case.” An appeal was filed.

Some of the suits involved ERI, which promises to help organize legal action at no cost to a municipality. The group managed to secure a hearing before the Fort Lauderdale City Commission last October.

ERI program director Marco Simons, told the commissioners the suits “primarily seek reimbursement for some of the costs of adapting to climate change and its impacts – which likely requires billions of dollars for Fort Lauderdale.”

“It is that the fossil fuel industry, for years, pursued a strategy of reckless production while knowing that it would result in serious climate impacts – and both concealing and misleading the public about that knowledge,” Simons said.

Emails were sent earlier in the year to Fort Lauderdale Mayor Dean Trantalis and his chief of staff, Scott Wyman, referring to upcoming meetings.

One sent in June was from lobbyist Platt, who stated his client was IGSD. One of its projects, the Center for Climate Integrity, is headed by Richard Wiles, who also publishes Climate Liability News (CLN).

The Center for Climate Integrity’s “central goal is to accelerate corporate and governmental policy changes that speed the energy transition from fossil fuels to clean energy sources and that otherwise contribute to a safe climate,” according to the IGSD. “One way to advance this goal is to require fossil fuel producers to bear the cost of the damage caused by their products.”

Platt, in an email June 2018, referring to an upcoming meeting, stated his client was trying to collaborate with an organization called the Environmental Research Institute and an individual, Jorge Mursuli, whom he said was working with the City of Miami to file a lawsuit against the fossil fuel companies.

“I have invited Jorge Mursuli to the meeting,” Platt wrote in the email, which also contained a run down of relevant information, including ongoing cases and a survey of Florida residents, which he wrote “overwhelmingly support making polluters pay.”

The second email, from Mursuli to the mayor, with Wyman and Platt cc’d, was sent in the middle of July and also referred to an upcoming meeting. Mursuli made clear that ERI “(not Environmental Research Institute) was leading the efforts to explore the possibility of litigation.”

He added that “it makes sense that our lead counsel at Earthrights comes see you and your team to best discuss potential strategy.”

Platt is registered as a lobbyist in Fort Lauderdale for IGSD, but not ERI. He did not reply to several messages asking for comment.

William Large, of the Florida Justice Reform Institute said many want to blame a problem on a “company with deep pockets.”

“An essential element of every tort case is ‘causation’,” Large told the Florida Record. “There is no evidence that fossil fuel companies ‘caused’ climate change. As such, these type of lawsuits lack merit.”

https://flarecord.com/stories/512480648-fort-lauderdale-says-it-has-no-intention-of-filing-suit-against-fossil-fuel-companies-over-climate-change 

Florida Justice Reform Institute

Legislature approves upping county lawsuit threshold

/in

 

Fla Pol

Court room

Legislature approves upping county lawsuit threshold
The bill would raise the maximum damages handled in county court cases to $30,000 on Jan. 1

By Drew Wilson on May 3, 2019

The House and Senate voted unanimously Friday to for a bill that could see more lawsuits handled in county courts.

Since 1992 there has been a $15,000 limit on damages in civil suits, also called “small claims,” filed on the county level.

Lawsuits above that threshold are handled in circuit courts.

HB 337 would raise the maximum damages handled in county court cases to $30,000 on Jan. 1, 2020, and to $50,000 by Jan. 1, 2022. The $15,000 limit would remain in place for cases filed before Dec. 31, 2019.

Lawmakers have cited the current caseloads in circuit courts as the reason for the change.

“We have an overburdened circuit court at this point,” Sen. Gayle Harrell, a Stuart Republican, said last month.

The Florida Supreme Court has recommended the threshold be increased to $25,000. The Florida Justice Reform Institute noted the high court found the increase to $50,000 to be of most concern.

With Friday’s votes, the bill heads to Gov. Ron DeSantis.

https://floridapolitics.com/archives/295584-legislature-approves-upping-county-lawsuit-threshold

Florida Justice Reform Institute

Lee credits Sprowls for saving opioid bill

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Politico

Lee credits Sprowls for saving opioid bill

BY ALEXANDRA GLORIOSO
|05/03/2019 04:20 PM EDT

OpioidsGov. Ron DeSantis has already said he intends to sign the bill, which Walgreens and others in the drug industry have quietly lobbied against.AP Photo/Rich Pedroncelli

TALLAHASSEE —In the final weeks of session, Rep. Chris Sprowls rescued a floundering measure that could bring in roughly a billion dollars to fight the state’s opioid crisis.

Sprowls, an attorney and likely next speaker of the House, assuaged privacy concerns related to a bill FL HB1253 (19R) that would allow Attorney General Ashley Moody to access certain patient information in a state drug database. After unease about the bill surfaced a few weeks ago, it wasn’t evident the measure would pass in the Senate.

Today it did, clearing the upper chamber on a 39-0 vote after Sprowls, a Republican from Palm Harbor, jumped in with an amendment to sunset the provision in 2021. Gov. Ron DeSantis has said he’ll sign the bill into law.

“He stepped forward and put his legal energy and his experience to work to try to overcome the objections,” said state Sen. Tom Lee (R-Thonotosassa), the bill sponsor, on the Senate floor Friday. “He got that bill out of the House and down here to the Senate.”

Gov. Ron DeSantis has already said he intends to sign the bill, which Walgreens and others in the drug industry have quietly lobbied against.

“There are people who believe that corporations in this state should be immune,” Lee said.

With the bill’s passage, Moody will have patient-level access to certain information in the drug database beginning in July. She intends to use the information to make a legal case against the pharmacies Walgreens and CVS, the drug manufacturer Purdue Pharmaceuticals, and other companies named in Florida’s opioid lawsuit.

The case has the potential to bring in a billion dollars for drug treatment programs related to the epidemic, which kills 17 people a day in Florida.

Since taking office in January, DeSantis has pointed to Oklahoma’s $270 million settlement, saying Florida should expect one that’s much larger, given the size of the state and the scope of its opioid problem.

On Thursday, DeSantis said the drug database bill would help deliver Florida’s settlement.

“These companies knew that this stuff was very addictive and yet you see the way they conducted themselves,” said DeSantis Thursday in Brevard County. “Purdue Pharmaceutical is just one of them. But, certainly, that is one that is likely going to have to pay the piper, not only here, but throughout the country.”

William Large, president of the Florida Justice Reform Institute, which is funded by business interests, has been the bill’s most vocal opponent. Large doesn’t represent Walgreens but a member of his board works for the company.

Large’s organization lobbies to limit large legal settlements in cases brought against corporate interests. He acknowledges his group speaks for companies that don’t want to publicly clash with Moody, a Republican Cabinet member, but he said he fought the bill because it was the right thing to do.

“While we obtained several important concessions, we remain concerned that the bill makes a bad problem worse,” Large said in a statement Friday.

Large said he believes Moody is going after Walgreens and CVS because they have deep pockets, not because of their roles, if any, in the opioid crisis. He said individual doctors aren’t named as defendants in the state’s complaint because they’re not worth pursuing financially.

With patient-level information from the state’s drug database, Moody wants to prove that Walgreens and CVS, which own more than 1500 pharmacies across the state, knew they were filling too many prescriptions for an addictive substance and had a responsibility to intervene, but didn’t out of financial greed.

In his remarks on the floor, Lee thanked Moody for explaining the bill’s importance to wary lawmakers. He also thanked Senate President Bill Galvano and Rules Chair Lizbeth Benacquisto for “breaking this bill loose and letting it to be heard on this floor.”

Galvano on April 19 told POLITICO he had doubts about the bill’s ability to protect patients’ personal information. Benacquisto, who didn’t comment for that story, refused to hear it in her final Rules Committee on April 23, even though Lee had been requesting a hearing since April 9.

After the sunset provision was amended to the House bill, Galvano said he was reconsidering his position. He still hadn’t committed to hearing the bill as of Wednesday.

“We believe that privacy was protected when the bill was first introduced,” Moody told reporters after the Senate vote. To win over reluctant legislators, she mainly had to “correct misinformation,” she said.

https://subscriber.politicopro.com/article/2019/05/03/lee-credits-sprowls-for-saving-opioid-bill-1006539 

Florida Justice Reform Institute

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