MSP Recovery Dodged Ruling on What Attorneys Called Its Go-To Litigation Tactic

January 17, 2023/in Daily Business Review

(l-r) Third DCA Chief Judge Ivan F. Fernandez, and Judges Bronwyn C. Miller and Alexander S. Bokor (Courtesy photos)

January 17, 2023 – Michael A. Mora

“Litigation should work as follows: sue first, discover second. MSP has a business model of discover first, sue second. That business model is no longer tenable in Florida,” William Large, president of the Florida Justice Reform Institute, argued.

What You Need to Know

• An appellate court in Florida ruled against appellant on jurisdictional grounds.

• The appellate court avoided ruling on whether appellant correctly stated a cause of action for a pure bill of discovery.
• An amicus brief challenged whether the appellant’s business model is tenable, due to unfavorable rulings on its use of the pure bill of discovery tactic.

Florida’s Third District Court of Appeal delivered a blow against a subsidiary of a public company in a Medicare reimbursement case that some attorneys said also revealed cracks in its multibillion-dollar business model.

William Large, the Florida Justice Reform Institute president, filed an amicus brief in support of defendant, Coloplast Corp., taking a position adverse to plaintiffs, including MSP Recovery Claims Series LLC. The Third DCA affirmed Miami-Dade Circuit Judge Mark Blumstein’s ruling to dismiss MSP’s second amended complaint and incorporated memorandum of law with prejudice.

William Large, President of the Florida Justice Reform Institute

And Large said the personal-jurisdiction ruling “was more of a threshold issue,” rather than whether the complaint correctly stated a cause of action for a pure bill of discovery.

Still, since the lower court ruling denied plaintiffs’ entitlement to a pure bill of discovery, that could be bad news for MSP, as attorneys claimed that the company heavily relied on that litigation tactic to win cases.

“While the Third DCA didn’t create precedent on the point, the trial court’s ruling still helps, and will likely be used as persuasive authority in future attempts to use a pure bill of discovery,” Large said in a statement. “Litigation should work as follows: Sue first, discover second. MSP has a business model of discover first, sue second. That business model is no longer tenable in Florida.”

‘Exclusive and Novel Case Approach’

However, Janpaul Portal, of counsel at the MSP Recovery Law Firm who represented MSP, said the Third DCA in Coloplast agreed, in part, with their position that the lower court exceeded its authority on the issue before it, by ruling on the pleading requirements to maintain a pure bill of discovery in this case.

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“While other issues revolving around jurisdiction are fact-specific to the defendants in the case, MSP established the necessary substantive elements of a pure bill complaint,” Portal said. “MSP’s exclusive and novel case approach of employing proprietary data analytics, continues to be successful. By harnessing this technology, we will continue to pursue just results for our clients and accountability by responsible parties.”

Read the Opinion:

The underlying case involved pelvic surgical mesh products that Coloplast designed, manufactured, and sold, which caused several Floridians to sustain personal injuries, according to court documents.

Meanwhile, MSP’s assignors are Medicare Advantage organizations and related Medicare entities that provided comprehensive healthcare coverage for their Medicare beneficiaries in the Sunshine State, per court documents. Medicare paid for medical care and treatment that the Florida enrollees received to treat injuries resulting from these mesh products.

When MSP filed its second amended complaint for a pure bill of discovery against Coloplast in which plaintiff sought reimbursement of the claims paid by Medicare, defendant successfully moved to dismiss based upon two claims. These claims were that the trial court lacked personal jurisdiction and that MSP was not entitled to a pure bill of discovery.

On appeal, MSP argued that the trial court had personal jurisdiction over Coloplast based on three provisions of the Florida long-arm statute: “section 48.193(1)(a)(6), Coloplast caused personal injury; section 48.193(1)(a)(2), Coloplast committed torts; and section 48.193(1)(a)(1), Coloplast engaged in a business or business venture.”

Now, MSP struck out on all three arguments before Third DCA Chief Judge Ivan F. Fernandez, and his colleagues on the bench, Judges Bronwyn C. Miller and Alexander S. Bokor.

The Third District Court of Appeal

Among the reasons the Third DCA provided was that “this case is a Medicare reimbursement case, not a personal injury action.”

The Third DCA found that MSP’s cause of action did not substantively connect to the personal injury suffered by Florida residents.

As a result, the appellate court concluded that the economic damages suffered by plaintiff did not fall within Florida’s long-arm statute.

And the Third DCA applied the same analysis to plaintiffs’ claim of torts that justified application of Florida’s long-arm statute, by concluding that Coloplast did not commit any torts against Medicare individually. Finally, MSP itself failed to provide any facts supporting its argument that personal jurisdiction over Coloplast was warranted based upon it engaging in a business in the Sunshine State, the panel found.

Meanwhile, the Third DCA avoided the circuit court ruling that MSP failed to state a cause of action. Still, Williams, the Florida Justice Reform president—joined in the amicus by the U.S. Chamber of Commerce and the Pharmaceutical Research and Manufacturers of America—said in a brief that courts have lost patience with the alleged tactic.

Williams argued that MSP failed to abide by basic pre-filing diligence and pleading requirements necessary to substantiate the pure bill of discovery “for strategic business reasons,” which could limit future investor returns, if judges limit the tactic to its original intention, for “exceptional purposes.”

“This lawsuit mirrors scores like it filed in federal courts throughout the country that have all the earmarks of abusive litigation and indeed have drawn intense criticism from many a federal judge,” the U.S. Seventh Circuit Court of Appeals previously ruled against MSP, as cited in the brief. “The plaintiffs should think hard before risking a third strike within our circuit.”

https://www.law.com/dailybusinessreview/2023/01/17/msp-recovery-dodged-ruling-on-what-attorneys-called-its-go-to-litigation-tactic/

New Florida Insurance Law Is Poised to Put a Damper on Property Claims Litigation

December 21, 2022/in Daily Business Review

12.21.22 By Michelle Kaske

What You Need to Know

· Gov. Ron DeSantis signed a statute aiming to overhaul Florida’s property insurance market.

· Lawmakers had been focused on changing the market as rates increased and insurers pulled out of the state.

· Now, the new law may affect insurance lawyers across the state.

Last week, Gov. Ron DeSantis signed a law that seeks to fix Florida’s spiraling property insurance market, and insurance lawyers are paying close attention.

In recent years, Florida has seen property insurance rates rise, prompting insurers to leave the state. This has caused a crisis within the insurance market that has been a focus for Florida lawmakers, especially as housing costs continue rising and natural disasters threaten the state. The new bill signed into law aims to limit lawsuits over insurance claims, which will have a direct effect on some insurance lawyers.

Although the new legislation may lead to less insurance litigation, Cole, Scott & Kissane partner Aram Megerian is enthusiastic about its consequences.

Megerian heads the firm’s first-party trial and coverage division, which helps insurance carriers fight claims. He also helped the Florida Justice Reform Institute lobby for the legislation, despite its effect on his practice area, arguing that it does three crucial things.

First, it repeals attorney fees.

“The plaintiffs lawyer knows that all they have to do is prove that it costs $500 more than what was paid and they get all of their attorney fees paid,” he said of the state’s prior system allowing “one-way” attorney fees.

He argues that the new legislation removes the incentive for attorneys to take the claim into costly and time-consuming litigation.

Assignments of benefits were also eliminated with the new law, meaning that policyholders can’t enable third parties to file claims and make other decisions for them.

Lastly, an insured now has to file a civil remedy notice and obtain a judgment that the insurance company breached a contract in order to initiate a bad-faith claim, adding an extra obstacle before a claim goes into a court battle.

“It’s going to make it a much more palatable market for insurance companies and reinsurers,” Megerian said.

He argues that the friendlier insurance market will avoid bankruptcies, which could ultimately have led to no insurers being able to take claims in the state.

“We want to help the insurance market,” he said. “I’m tired of dealing with a water claim coming into our office and having five different lawsuits emanating from the same water claim.”

Although it may mean less litigation down the line, Megerian says there’s still plenty of cases to deal with from the old law. Additionally, Hurricane Ian-related lawsuits are set to start piling up soon.

Meanwhile on the plaintiffs’ side, insured people are facing the prospects of attorney

fees coming out of their own pockets if they want to dispute a claim, said Sanjay Kurian, a managing shareholder at Becker & Poliakoff.

Kurian argues that that may disincentive claimants from fighting claims, even if they have a legitimate case.

There’s also concern surrounding who will be willing to pick these claims up now that the legislation has eliminated lawyer fees, he said.

“I think that there’s going to be a category of claimants that are going to look at this and say, ‘There’s no one who’s going to be able to pick up and pursue these claims because there’s no benefit for the lawyer to pursue those claims for them,’” he said. “Those folks will probably get hurt.”

Kurian usually handles commercial residential insurance, meaning his clients are typically large condominiums. He predicts his work won’t be significantly affected because clients don’t typically engage in assignments of benefits and also because getting attorney fees back isn’t such a driving force in his cases.

But language having to do with arbitration is one unknown area that may affect both small and big claimants, according to Kurian.

In order for an insurance dispute to go into arbitration, the insurer must now offer lower premiums thanks to the new law, Kurian said. But the wording does not restrict the location of the arbitration venue.

That could allow insurers to put provisions in insurance policies that choose arbitration venues outside of Florida that may be friendly to the insurers, he said.

“I think you’re going to see arbitration pop up with all these various carriers in all sorts of forums other than Florida,” Kurian said.

law.com/dailybusinessreview/2022/12/21/new-florida-insurance-law-is-poised-to-put-a-damper-on-property-claims-litigation

Contractors Challenge New Florida Insurance Law

June 1, 2022/in Daily Business Review

Contractors Challenge New Florida Insurance Law

Contractors in the past have been able to recover their attorney fees from insurers if they are successful in the lawsuits, a concept known as “prevailing party fees.” But the new law stripped contractors of being able to recover prevailing-party fees when they are assigned benefits.
June 01, 2022 at 11:23 AM – By Jim Saunders

Credit: whyframeshot/Adobe Stock

Less than a week after Florida lawmakers rushed to make property-insurance changes, a contractors group Tuesday filed a constitutional challenge that targets a new restriction on attorney fees in lawsuits against insurance companies.

The Restoration Association of Florida and Air Quality Assessors, LLC, an Orlando firm that does work such as mold testing and leak detection, filed the lawsuit in Leon County circuit court.

It came after lawmakers last week passed a measure (SB 2-D) to try to bolster a troubled property-insurance market that has led to homeowners losing coverage and seeing spiraling premiums. Lawmakers gave final approval to the bill on Wednesday, and Gov. Ron DeSantis signed it on Thursday.

Insurers have long blamed litigation and attorney fees for driving up costs. The new law took a series of steps to try to address those issues, but the constitutional challenge focuses on part of the measure that deals with what is known as “assignment of benefits.”

In assignment of benefits, homeowners sign over their insurance claims to contractors, who then seek payment from insurance companies — often spurring lawsuits about claims and payments.

Homeowners can still recover prevailing-party fees if they file lawsuits directly against insurers, but the contractors cannot. The lawsuit alleges that the change violates equal-protection and due-process rights and denies contractors access to courts.

“Claims submitted to insurers for work performed by contractors under an AOB (assignment of benefit) are generally not large in monetary amount,” the lawsuit said. “When the insurer delays, underpays or does not pay a claim at all, contractors are forced to commence an action against the insurer to recover the full amount due for the work performed. Without the corresponding right to recover prevailing party fees, SB 2-D makes it economically unfeasible for the contractor to pursue its lawful rights and remedies in court.

Invoices for work performed by contractors under AOBs are generally not significant enough for a lawyer to agree to represent the contractor on a contingency fee basis and it is not economically reasonable for the contractor to … pay a lawyer on an hourly basis to recover the amount(s) owed.”

The lawsuit said invoices for work done by Air Quality Assessors and many other members of the association often total $2,500 to $3,000.

“The inability to recover prevailing party attorneys’ fees will effectively shut the courthouse door to plaintiffs because it will be cost-prohibitive to pay an attorney for these types of small claims,” the lawsuit said.

But William Large, president of the Florida Justice Reform Institute, a business-backed group that lobbies to reduce litigation, said in a statement after the law passed that “property insurance lawsuits have exploded over the last several years, overwhelming Florida’s insurance market.”

“Senate Bill 2-D contains significant litigation reforms and gets to the heart of escalating rates and limited coverage — lawsuit abuse,” Large said.

Assignment of benefits has long been a contentious issue in the insurance industry. The Legislature in 2019 put additional restrictions on assignment of benefits, at least in part because of an increase in residential water-damage claims.

But contractors contend that assignment of benefits helps homeowners who are unfamiliar with making sure insurance claims are handled properly.

“AOBs are not new and have been used for a long time, especially during emergency weather situations,” the lawsuit said. “In Florida, AOBs are prevalent in the residential property context when homeowners suffer damage to their home and need to hire contractors to repair the issues.”

The lawsuit, which includes seeking a preliminary injunction against the law, names as defendants Melanie Griffin, secretary of the state Department of Business and Professional Regulation, and Donald Shaw, executive director of the Construction Industry Licensing Board. The case has been assigned to Leon County Circuit Judge Layne Smith, according to an online docket.

https://www.law.com/dailybusinessreview/2022/06/01/contractors-challenge-new-florida-insurance-law/?slreturn=20220501114315

Florida Insurance Crisis: Attorney Fees Slashed, but Are the Reforms Enough?

June 1, 2022/in Daily Business Review

Florida Insurance Crisis: Attorney Fees Slashed, but Are the Reforms Enough?

Law.com Credit: A_StockPhoto/Shutterbox.com

Melea VanOstrand – June 01, 2022 at 04:26 PM

As more and more insurers are leaving Florida, going through liquidation and canceling policies, Gov. Ron DeSantis has signed legislation aimed at stabilizing the market, but many are wondering whether it will be enough.

It’s a property insurance crisis that’s left homeowners with fewer insurance options and tighter underwriting processes, while the high premiums and exodus of insurers have been largely blamed on fraudulent claims and the threat of weather-related damage.

The increased insurance premiums that state-backed Citizens Property Insurance Corp. has seen are a direct result of excessive litigation, the way Florida Justice Reform Institute president William Large sees it. He said the new law—which creates a $2 billion fund to help insurers pay potential hurricane damages and changes rules on coverage denials and attorney fees—will help curb abuses.

Large said some found a loophole in the system and took advantage of the original purpose of one-way attorney fee statutes meant to level the playing field for insurers.

“It was never meant for third-party vendors,” said Large. “Under these statutes, litigation is ‘risk-free’ because, if the plaintiff prevails against a defendant insurer, he or she can recover his or her attorney fees from the insurer. But, conversely, the insurer cannot recover fees if it prevails. As a consequence, the very existence of these statutes invites litigation over marginal disputed amounts, particularly by third-party vendors armed with the assignment of benefit agreements.”

Now, the new law prohibits the assignment of any right to attorney fees. The second issue the law addresses is the attorney fee multiplier.

“Such multipliers have been used to drastically increase attorney fee awards even in run-of-the-mill property insurance cases, spurred largely by the Florida Supreme Court’s concerning decision Joyce v. Federated National Insurance Co.,” said Large. “This legislation makes the multiplier similar if not identical to federal law, that they should be used in rare and exceptional circumstances.”

Joyce v. Federated National Insurance Co. held that a multiplier can be applied regardless of whether the lodestar amount represents a reasonable fee.

The bill also addresses first-party bad faith. The problem, Large said, was the interpretation of the civil remedy notice statute that turned every alleged breach of an insurance policy into a claim for extra-contractual damages before a breach was even found.

“This would correct the course set by some errant court decisions and confirm that, for an insurer to face a claim for extra-contractual damages under the statute, the insurer must have actually breached their agreement with the insured,” he said.

Fees Were ‘Meant to Be a Punishment’
Mintz Truppman insurance litigator Adrian Neiman Arkin is more skeptical. She said the effects of the law remain to be seen, since many major legislation changes over the last year have not yet come to fruition.

“Nothing they’ve passed in this last legislation will lower anybody’s rates. We saw the same behavior from the insurance company during the Personal Injury Protection crisis. They created all these laws and not once has my premium gone down due to any of the PIP laws that were passed,” said Arkin. “What we see is a pattern of insurance companies asking for various ways of relief, but what they’re really asking for is relief from not making as much in profit as they would like.”

Arkin said insurers will now have total control over what they do and don’t cover in their policies.

“Instead of having to rely on the reinsurance companies, they now are being reinsured by the state, and they can do that without having to pay the proper surcharges like some companies have to do,” said Arkin.

Although there are property insurance attorneys who take cases to make money from fees, Arkin stressed that’s not the norm.

“It happens a thousand times a day that an insurance company does not pay the claim of its homeowner. That doesn’t mean that the attorney prosecuting that claim is the bad guy,” said Arkin. “The attorney fee portions were meant to be a punishment to the insurance companies.”

Greenberg Traurig Fort Lauderdale shareholder Fred Karlinsky, however, felt this was an issue that needed to be addressed. The co-chair of Greenberg’s insurance regulatory and transactions practice group applauded DeSantis for signing the bill.

“Reform is necessary to curb the growth of fraudulent insurance claims and frivolous lawsuits, stem insurers’ financial losses, and provide relief to policyholders, who currently face higher rates and few insurance choices,” said Karlinsky.

‘The Houses They Do Not Like’
The highest-risk properties for insurers are those built prior to 1978 and with roofs older than 10 years, according to Whitney Dutton of The Dutton Group at Remax First in Fort Lauderdale.

“Those are the houses they do not like. It, unfortunately, happens to be the majority of all the homes in the East Fort Lauderdale area,” said Dutton. “My target market is that $400,000 to $800,000 house for first or second-[time] home buyers. Because of that price range, many of them have older roofs and are older built.”

Dutton said his customers usually pay very high premiums due to the risks of the market, and many who bought homes a few years ago saw insurance increasing 25% to 30% every year.

“For no reason, no claims, just because insurers are dropping out of the market,” said Dutton.

Those high premiums result in property owners getting priced out of their homes, and many insurance companies becoming defunct, believing they can’t make enough money in the state.

Citizens Insurance to the Rescue?
Dutton said state-backed Citizens, which is considered by many to be the last resort, generally picks up policyholders who are dropped by their property insurers.

Arkin said she believes Citizens doesn’t get enough credit.

“The state of Florida is not going out of business. There’s nothing wrong with Citizens,” said Arkin. “They’ve never been an overwhelmed company. It’s in good financial shape and always has been. What they don’t like is that the money doesn’t go to private individuals. It stays with the taxpayers. That’s what the legislatures are complaining about.”

With inflation running wild and hurricane season beginning, Arkin questions whether the law promises to do enough and noted it won’t be very effective if a hurricane strikes this year.

“I’m a little concerned about the fact that they’ve made the state reinsurance fund simply because it will get used instead of when the state of Florida really needs it. There are better ways to guarantee reinsurance,” said Arkin.

Whatever happens, Dutton said it’s crucial for insurance attorneys to prepare for the change.

“Most of the attorneys I know are operating within the law in the way that the legislation is written. Be prepared to pivot,” said Dutton. “It’s the same industry, but different ways to skin the cat, and now some of the lenders are pivoting from refinance work to home purchase. It’s going to be a little bit of an industry change.”

https://www.law.com/dailybusinessreview/2022/06/01/florida-insurance-crisis-attorney-fees-slashed-but-are-the-reforms-enough/

DeSantis Stays Quiet on Coronavirus Lawsuit Protection Issue

July 22, 2020/in Daily Business Review

DeSantis Stays Quiet on Coronavirus Lawsuit Protection Issue

Gov. Ron DeSantis did not sign on to a letter by 21 Republican governors sent to congressional leaders arguing that businesses, health care workers and schools need lawsuit protections because of the COVID-19 pandemic.

By Christine Sexton | July 22, 2020 at 12:28 PM

Ron DeSantis

Florida Gov. Ron DeSantis

Twenty-one Republican governors sent a letter this week to congressional leaders arguing that businesses, health care workers and schools need lawsuit protections because of the COVID-19 pandemic, but Florida Gov. Ron DeSantis did not sign on.

Congress is considering another COVID-19 relief package, and many Republicans contend that liability protections need to be part of any legislation that is ultimately passed and sent to President Donald Trump.

“To accelerate reopening our economies as quickly and as safely as possible, we must allow citizens to get back to their livelihoods and make a living for their families without the threat of frivolous lawsuits,” the letter to House Speaker Nancy Pelosi, House Minority Leader Kevin McCarthy, Senate Majority Leader Mitch McConnell and Senate Minority Leader Charles Schumer said. “As public policymakers, it is our duty to provide clarity, consistency, and stability to our citizens and their businesses, and the uniformity that federal law provides is critical to America’s industries that work across state lines.”

DeSantis’ office didn’t immediately respond to The News Service of Florida’s request for comment or explain why he didn’t sign onto the document, which was touted by the Republican Governors Association. DeSantis was one of five Republican governors who did not sign on to the request, along with the governors of Georgia, Massachusetts, South Dakota and Vermont.

It wasn’t the first time that DeSantis, who is an attorney, has been mum on the issue of lawsuit protections.

DeSantis received letters in April from associations representing hospitals and nursing homes asking him to issue an executive order protecting their members from liability amid the pandemic. The Florida Health Care Association, the state’s largest nursing-home association, sent a letter to DeSantis on April 3 requesting he provide nursing homes with civil and criminal protections, including safeguards from suits stemming from staffing or resource shortages.

Florida Health Care Association spokeswoman Kristen Knapp on Tuesday declined to comment on this week’s letter. “We’re going to keep our focus on ensuring our facilities have the resources they need to keep their residents safe and protected right now,” Knapp said in an emailed statement to the News Service.

The Florida Hospital Association sent a similar letter to DeSantis on April 22 requesting that he temporarily provide legal protections to hospitals. The association proposed that the protections from civil and criminal suits last through Oct. 1. Attempts to contact the hospital association Tuesday were not immediately successful.

The first groups to ask DeSantis for protections amid the pandemic were doctors. The Florida Medical Association and the Florida Osteopathic Medical Association joined with the Florida Justice Reform Institute, an organization that focuses on lawsuit limits, and asked DeSantis in March to issue an executive order limiting liability and providing sovereign immunity protections for doctors who were complying with emergency orders that shut down optional health-care services. The letter also asked DeSantis to extend the state’s “Good Samaritan Act” to apply to physicians working during the pandemic.

DeSantis did not issue any of the requested executive orders and avoided answering media questions about the requests.

Attempts to limit lawsuits, an issue commonly known as tort reform, often spur fierce political battles in Tallahassee, with plaintiffs attorneys squaring off against business and health care groups. Opponents of such limits generally contend that they penalize people who are injured because of the actions of businesses or health care providers.

Despite DeSantis’ lack of action on the issue during the pandemic, Florida Justice Reform Institute President William Large said Tuesday that legal protections still are necessary.

In part, Large said a time frame people have to file lawsuits against businesses or health care providers should be shortened from the current four years to one year. Large also said evidentiary standards and culpability standards also need to be heightened to provide protections businesses need.

While DeSantis didn’t approve the requests, Large said he remains optimistic that the governor supports lawsuit protections.

“The first opportunity the Legislature addresses any subject dealing with COVID-19, such as the budget, we will ask for appropriate liability [protections],” Large said.

Christine Sexton reports for the News Service of Florida.

https://www.law.com/dailybusinessreview/2020/07/22/desantis-stays-quiet-on-coronavirus-lawsuit-protection-issue/

Bill Proposing $50,000 Jurisdictional Limit for County Courts Advances in Florida House

March 22, 2019/in Daily Business Review

Bill Proposing $50,000 Jurisdictional Limit for County Courts Advances in Florida House

If signed into law, HB 337 would take effect in July 2021. The bill is sponsored by Florida Rep. Tom Leek of Ormond Beach and contains a provision allowing defendants to challenge the amount of damages sought by plaintiffs in a lawsuit. Plaintiffs would have to provide evidence early in the litigation showing they are likely to recover the sum sought, or risk having their cases dismissed.
By Zach Schlein | March 22, 2019 at 12:34 PM

FL State Capitol

Florida State Capitol/Photo: Joseph Sohm/Shutterstock.com

A proposed Florida bill stands to dramatically alter the case composition of Florida courts.

Florida House bill 337 is intended to overhaul statewide provisions of Florida county and circuit courts. Following an amendment entered Tuesday by the bill’s sponsor, Republican Rep. Tom Leek of Ormond Beach, adjustments would increase the jurisdictional limit of county courts to $50,000.

HB 337 outlines a plan for the change to take place over a two-year period. The bill calls for raising the limit to $30,000 by July 1 before instituting the new standard of $50,000 by July 1, 2021.

The bill received a favorable vote by the Civil Justice Subcommittee on Wednesday afternoon, paving the way for it to be heard next in the Justice Appropriations Subcommittee and the Judiciary Committee. Its Senate counterpart, SB 328, calls for the jurisdictional limit of Florida circuit courts to be raised to $50,000 by Jan. 1, 2022.

The legislation also establishes a means for defendants to formally question the award sought by plaintiffs in civil cases. In its current form, the bill allows for defendants to “demand proof of the reasonableness of the alleged amount in controversy within 30 days,” according to an analysis shared by the Civil Justice Subcommittee. The defendant would not be required to provide evidence or arguments backing the veracity of their challenge. It would then fall upon the plaintiff to provide a preponderance of evidence that there is a “reasonable likelihood” they’ll recover at least the amount of damages alleged in the complaint. If they fail to do so, the case would then be transferred by the court to the appropriate jurisdiction.

An earlier iteration of the bill was stricter in its standards, requiring litigants to justify the sum sought with “clear and convincing evidence.” The penalty for failing to do so was similarly steep, as those who failed to make their case would have their litigation dismissed with prejudice in the jurisdiction in which it had been filed.

Additionally, a section of the bill allows for Florida Supreme Court justices residing outside of Leon County to have an office in the district they permanently reside in.

Read HB 337 here:

HB 337 is the latest iteration of an effort to reorient what cases will be heard in Florida’s county and circuit courts. In 2018 Rep. Leek sponsored HB 7061, which provided for an institution of a $50,000 jurisdictional limit that would be raised every five years. Leek did not respond to requests for comment on the bill by deadline.

William Large, president of the Florida Justice Reform Institute, criticized the prospective raise in the jurisdictional limit for circuit courts.

“A Florida Supreme Court work group recommended raising that jurisdictional limit to $25,000,” Large said in a statement. “As amended in the House Civil Justice Subcommittee today, HB 337 phases in a doubling of the Court’s recommended limit, to $50,000.”

Noting that costly cases heard by the District Court of Appeals would now be handled in circuit court, Large said “circuit courts may not be able to handle the results.”

“Circuit court judges don’t have the resources, like law clerks, to help them with this larger, more complicated workload,” he said. “We support the Florida Supreme Court’s recommendation of a $25,000 jurisdictional limit and then studying the impact.”

However, others see the prospective raise as a much-needed and long overdue shift to the system. Jeffrey Gilbert, a partner with Cozen O’Connor’s Miami office, called the raise a good idea and noted the jurisdictional limits haven’t been changed in more than 25 years.

“It definitely will alleviate a lot of the pressure on the circuit courts for cases where damages are alleged,” Gilbert said. He commented the change would arrive at an interesting time in Miami-Dade County with the construction of the new circuit courthouse.

“Most of the county courts at this point are located not only downtown, but also in satellite courthouses throughout the county,” he said. He noted the influx of cases into county court would necessitate the review of its buildings and personnel for capacity and qualification purposes.

Fowler White Burnett shareholder James Hurley said “there’s no reason” county court judges couldn’t hear cases once handled in circuit court.

“The county court judges I’ve been front of … there isn’t a whole lot of differences between them and circuit court judges in terms of experience,” he said. “The nature of litigation has changed. You have far more cases now that exceed the $15,000 threshold. … There needs to be a redistribution of how these cases are handled, otherwise it just takes too long to be resolved.”

Rep. Leek touted his 22 years’ worth of experience as a practicing lawyer when discussing the legislation with the Daily Business Review. the limit set in 1992 was already pretty

“The limit that was set in 1992 was pretty low,” Leek said. He added the changes would put Florida “more in line with what other states are doing” with their court systems.

“There are so many advantages to going through county court that it just made sense,” he said. “Cases move quicker, you’re able to get more attention on your cases, and it’s just time.”

https://www.law.com/dailybusinessreview/2019/03/22/bill-proposing-50000-jurisdictional-limit-for-county-courts-advances-in-florida-house/?slreturn=20190225101050

Not Just ‘Small’ Claims: County Courts Might Soon Handle Cases Up to $50,000

February 23, 2018/in Daily Business Review

By: Samantha Joseph – February 23, 2018

Under Florida law, county courts handle cases with up to $15,000 at stake, but that limit could more than triple under proposed legislation.

Proposed legislation making its way through the Florida House and Senate would increase the county court jurisdictional limit to $50,000, potentially clearing thousands of cases from circuit court dockets.

Under Florida law, county courts handle cases with up to $15,000 at stake, while circuit courts adjudicate controversies above that limit.

But proposed legislation – HB 7061 and its Senate companion SB 1384 – could more than triple the county court threshold, potentially freeing circuit courts from thousands of trials involving vehicle repossession, credit card debt collection and other civil litigation. The bills would also link the jurisdictional limit to inflation and the unadjusted consumer price index for all urban consumers, keeping the $50,000 threshold in place until June 30, 2020, but then increasing it every five years.

“As a general proposition, all of the chief judges … are in favor of the jurisdictional change,” Broward Chief Judge Jack Tuter said. “What we’re uncertain about … is what are the ramifications?”

Broward satellite courthouses in Hollywood and Deerfield Beach, for instance, aren’t equipped for large trials. Thousands of parking ticket cases already heading to these courthouses would mean new staffing considerations and a plan for small parking lots that can’t accommodate an influx of new users, Tuter said. Plus, 12 of Broward’s county court courtrooms are in satellite buildings, meaning administrators would have to navigate several logistical issues, including sending jurors to far-flung outposts for civil trials now centralized in circuit courtrooms.

“We have a lot of unknown questions,” Tuter said. “Some of them won’t be answered until we see what lawyers are asking for and where they’re filing.”

Across the state, administrators are grappling with the proposed legislation.

“The courts recognize the need to look at the jurisdictional amount,” Miami-Dade Chief Judge Bertila Soto said. “The change will make an impact on the courts, but at this juncture, it’s still too early to determine what those impacts would be. As always, our goal will be to continue to provide timely and fair administration of justice for the public we serve.”

The bills – by Sen. Jeff Brandes, R-St. Petersburg; Rep. Tom Leek, R-Ormond Beach; and Rep. Daniel Perez, R-Miami – passed the Senate’s Appropriations Subcommittee on Criminal and Civil Justice and the House’s Judiciary and Justice Appropriations subcommittees. They aim to accelerate circuit court adjudication, and include provisions to add five county and two circuit judges.

But critics say the proposed law would have the opposite effect: clogging circuit court dockets as big-dollar cases jump to higher courts on appeal. While few litigants raise appeals to pursue relatively small sums now before county courts, critics say bigger controversies will likely result in more dogged litigation.

In other words: Cases cleared from circuit dockets will make their way back to their courts’ appellate panels.

“At first blush it sounds like good news,” said William W. Large, president of Florida Justice Reform Institute, a Tallahassee-based think tank working on tort reform. “Unfortunately, the bill doesn’t contemplate or outline what to do with appellate issues.”

Large testified three times before legislators as part of the FJRI’s advocacy against the proposed law. His arguments hinge on insufficient resources at the county-court level, less experienced judges, and inconsistent rulings as courts across counties fail to follow the doctrine of stare decisis and adhere to each other’s prior rulings.

“Florida is best suited to have our appeals go to our district courts of appeal,” Large said. “It’s hard to give legal advice when your get different results from different panels. The beauty of appellate law is that it gives you the same result.”

https://www.law.com/dailybusinessreview/2018/02/23/not-just-small-claims-county-courts-might-soon-handle-cases-up-to-50000/

Environmental Proposal Delayed Amid Business Outcry

December 12, 2017/in Daily Business Review

Environmental Proposal Delayed Amid Business Outcry

A proposed constitutional amendment that would redefine legal standing for Floridians when environmental problems occur was put on hold Tuesday as…

October 12, 2012

Jacqui Thurlow-Lippisch

A proposed constitutional amendment that would redefine legal standing for Floridians when environmental problems occur was put on hold Tuesday as opposition mounts from powerful business groups.

With critics arguing the measure is too vague and would create legal gridlock, Jacqui Thurlow-Lippisch, a member of the state Constitution Revision Commission, said she requested more time to work on her proposal (P 23), as it appeared on the verge of being voted down by the commission’s Judiciary Committee.

“The No. 1 thing I’m trying to do is to keep this thing alive,” Thurlow-Lippisch, a former mayor of the Martin County city of Sewall’s Point, said after Tuesday’s committee meeting. “If it had died today, it would be gone. So I’m trying to keep it alive, I’m trying to work on it. But at the end of the day I will not just lean over and say we’ll take out all the tough stuff and just put in flower language again.”

The committee agreed, before postponing the measure until January, to amend it to more narrowly define that people seeking to challenge environmental rules must be Florida residents.

The change, backed by Thurlow-Lippisch, still wasn’t enough for opponents who argued the overall proposed constitutional amendment would lead to increased litigation on environmental issues.

“No longer would standing require a particularized interest, but rather a general interest in order to bring a legal challenge,” said lobbyist David Childs, who represents groups such as Farmland Reserve and the Florida Chamber of Commerce. “It creates kind of a rule of one: one resident amongst our 20 million plus residents would have a constitutional right to oppose the road, the row crop, the power plant, the list goes on based upon a purported infringement even if the litigant is in Pensacola and the project is in Key Largo.”

William Large, president of the business-backed Florida Justice Reform Institute, said the language of the proposal, even amended, remains purposefully ambiguous.

“It removes the Legislature from ability to pass legislation with respect to environmental issues,” Large said. “Likewise, it removes the rule-making process from agencies being able to use the statutory authority created by the Legislature to pursue rule-making with respect to environmental issues.”

The 37-member Constitution Revision Commission, which meets every 20 years, is reviewing proposed constitutional amendments that could go on the 2018 ballot.

On Monday, a group of 28 state business groups announced their opposition to Thurlow-Lippisch’s proposal. Among the groups signing onto a letter were Associated Industries of Florida, Florida Citrus Mutual, Florida Farm Bureau, the Florida Forestry Association, the Florida Fruit & Vegetable Association, the Florida Home Builders Association, the Florida Ports Council and the Florida Retail Federation

“By granting this broad right to challenge any government entity, business or private citizen — even if they are in full compliance with existing laws or valid permits — CRC Proposal 23 would allow delay or defeat of currently legal activities in our state,” the business groups said in the letter. “This amendment circumvents existing avenues to address concerns over air and water quality and instead encourages frivolous lawsuits, which would inevitably drive up business costs and threaten future economic development in Florida.”

Thurlow-Lippisch, who was appointed to the commission by Senate President Joe Negron, R-Stuart, said she has tried to work with the business groups. She said she filed the proposal because the Constitution might appear friendly to the environment, but often offers contradictory language that nullifies preservation efforts.

“Florida should have higher expectations than we do. We’re the best state in the nation in most things, but not the environment,” said Thurlow-Lippisch, whose community has been at the center of a fight against declining water quality, including outbreaks of toxic algae, in the St. Lucie Estuary.

“I bet if you look at permitting since 1998, it’s become less stringent instead of more stringent,” she added.

Jim Turner reports for News Service of Florida.

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Supreme Court Says 1936 Road Deal Requires State to Pay

April 11, 2016/in Daily Business Review

Supreme Court Says 1936 Road Deal Requires State to Pay

Jim Saunders, News Service of Florida, Daily Business Review

April 11, 2016

Photo: Radisa Zivkovic/iStockphoto.com

As it sought to build a road in then-rural Pasco County, the state in 1936 reached an agreement with Seaboard Air Line Railway Co.

In exchange for being able to build a road that crossed Seaboard’s railroad tracks, the state agreed to compensate the company for any losses or damages stemming from the road.

Now, 80 years later, the agreement will cost the state Department of Transportation more than $500,000.

The Florida Supreme Court on April 7 ruled that the state is required to pay $502,462 to CSX Transportation Inc., Seaboard’s successor company, because of a legal settlement and expenses related to a fatal traffic accident on the road in 2002.

The justices, in a unanimous decision, rejected the transportation department’s arguments that the agreement, known as an “indemnity clause,” was invalid. In finding that the state was bound by the 1936 deal, the Supreme Court upheld a ruling by the Second District Court of Appeal.

“In this case, the crossing agreement necessitated the expenditure of funds for the DOT to construct and maintain the road it was licensed to build,” said the 14-page decision, written by Justice Peggy Quince. “The indemnity provision was merely an additional performance obligation that required the DOT to expend funds. The authorization to fulfill one’s performance under a contract does not disappear merely because the performance obligation happens to implicate tort law. Accordingly, we find that the DOT is bound by the crossing agreement—including the indemnity clause.”

The dispute began after an October 2002 fatal accident on State Road 52, now a heavily traveled highway cutting across Pasco County. Robert and Dorthy Schwefringhaus were in a car traveling eastbound on the road, when a westbound truck went over tracks owned by CSX. A trailer behind the truck disconnected, and a load of lumber hit the couple’s car, killing Robert and injuring Dorthy, the ruling said.

Dorthy Schwefringhaus in 2004 filed a lawsuit against CSX, which later agreed to a $125,000 settlement. CSX then sought to recover from the state the $125,000 and $377,462 in expenses related to the case.

While the Second District Court of Appeal sided with CSX, it also asked the Supreme Court to take up the issue. In the 2013 appeals court opinion, then-Judge Chris Altenbernd wrote that the state in 1936 wanted to build a road on abandoned right-of-way of an old logging railway that had served the community of Fivay, which Altenbernd described as “little more than a ghost town by the mid-1930s.” To build the road, however, the state had to cross an active Seaboard railroad line.

“The State Road Department built this rural road, State Road 210 [its name at the time], and the crossing agreement undoubtedly was filed away in the filing cabinets of one or both parties,” Altenbernd wrote. “One imagines that on a daily basis a few cars and a few horse-drawn vehicles crossed the railroad tracks in 1939 when the population of Pasco County was less than 14,000.”

The case drew attention at the Supreme Court, with the Florida Association of County Attorneys filing a friend-of-the-court brief on behalf of the transportation department, and the Florida Chamber of Commerce, Associated Industries of Florida, the Florida Justice Reform Institute and the Association of American Railroads weighing in with briefs for CSX.

William Large, president of the business-backed Florida Justice Reform Institute, pointed to a need for predictability in contract law.

“To allow FDOT to walk away from its clear and unambiguous duties under the crossing agreement would raise serious doubts concerning the fairness of our judicial system,” Large argued. “It could even call into question other contracts with governmental entities.”

Panel Urges Going Back to Frye Standard for Expert Testimony

October 20, 2015/in Daily Business Review

Panel Urges Going Back to Frye Standard for Expert Testimony

*Julie Kay, Daily Business Review***

October 20, 2015

The U.S. Chamber of Commerce Institute for Legal Reform, Florida pro-business groups and defense law firms are squaring off against plaintiffs attorneys in a major battle over admitting expert testimony in state courts.

The fight is over the Daubert standard, currently used in federal court and 27 states. It was adopted by the Florida Legislature in 2013 after three failed tries, but the Florida Bar code and rules of evidence committee is recommending its rejection.

The issue came up at the Florida Bar board of governors meeting Friday but was tabled until December.

Business interests accuse plaintiffs lawyers of foot-dragging to avoid implementing a law passed by the Republican-controlled Legislature.

The Daubert standard was adopted to replace the Frye standard, which has been in use in Florida since 1923.

Daubert represents a far stricter standard for allowing experts and expert testimony in court and requires judges to hold mini-hearings, including possible depositions, over whether experts and their testimony should be admitted in criminal and civil cases.

Plaintiffs attorneys and their statewide advocacy group, the Florida Justice Association, argued a change in standards is unnecessary, would add to judges’ clogged calendars and amounts to a delaying tactic by insurance companies and defense lawyers.

“This has thrown a giant monkey wrench into the system, slowing things down considerably,” said Keith Mitrik, lead trial counsel at Morgan & Morgan, one of the major forces behind the move to overturn Daubert. “For 50 years judges have been acting as gatekeepers and keeping junk science out of the courtroom. Judges are smart. That’s why they were elected. This is a pure, stinking maneuver pushed through the Legislature by the insurance companies. It’s imposed utter and complete havoc on a strained judicial system.”

Statewide organizations representing prosecutors and public defenders also opposed the legislation but are staying neutral in the rules fight.

Junk Science

The Florida Justice Reform Institute and the U.S. Chamber of Commerce Institute for Legal Reform, two tort reform groups, plus corporate defense lawyers have a different view. They said the Daubert standard keeps “junk science” out of the courtroom.

“We support the Daubert standard because good science makes good law,” said William Large, president of the Florida Justice Reform Institute. “The Daubert standard allows a judge to act as a gatekeeper and to size up an expert’s testimony and determine whether it’s valid. It does not favor any side in litigation. All it does is favor sound scientific evidence.”

Lawyers for some of the state’s largest law firms wrote to the Florida Bar committee, urging adoption of the Daubert standard. Those lawyers include Hilarie Bass, co-president of Greenberg Traurig; Mark Delegal, a Tallahassee partner at Holland & Knight; and Anthony Upshaw, a Miami partner at McDermott Will & Emery.

“The Daubert standard for the admission of expert witness testimony is a sound doctrine that requires some degree of reliability for all expert witness testimony,” Upshaw wrote. “Adopting Daubert will simply bring Florida into conformity with the majority of jurisdictions on the issue.”

The committee narrowly voted to reject the Daubert standard by a vote of 16-14. The issue must still be voted on by the Florida Bar board of governors, which will forward the issue to the Florida Supreme Court for a final decision.

More than 100 plaintiffs lawyers wrote to thank the committee for voting down the Daubert standard and urging the Florida Bar board of governors to also do so. Most of the letters came from attorneys at Morgan & Morgan in Orlando and the West Palm Beach law firm Searcy Denney Scarola Barnhart & Shipley; many appeared to be form letters.

North Palm Beach plaintiffs attorney Patrick Tighe of X1Law argued the law raises constitutional issues.

“It not only calls into question the separation of powers … but its practical impact will violate the rights of thousands of Floridians of access to the courts,” he wrote. “Daubert may or may not be appropriate for some of the larger cases that find their way to federal court, but not for run-of-the-mill tort cases which thousands of people bring to Florida courts. Frye is adequate to safeguard against truly new or novel methodology that has not been adequately tested or practiced.”

(l-r) Third DCA Chief Judge Ivan F. Fernandez, and Judges Bronwyn C. Miller and Alexander S. Bokor (Courtesy photos)

William Large, President of the Florida Justice Reform Institute

The Third District Court of Appeal

12.21.22 By Michelle Kaske

Environmental Proposal Delayed Amid Business Outcry

Supreme Court Says 1936 Road Deal Requires State to Pay

Panel Urges Going Back to Frye Standard for Expert Testimony

Julie Kay, Daily Business Review

Florida Justice Reform Institute

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*Julie Kay, Daily Business Review***