Group offers proposal for liability protections

Essential businesses would be exempt from COVID-19 litigation.

By News Service Of Florida on September 24, 2020

Forty lobbyists and association representatives met over the summer to discuss ways to protect businesses from what some fear will be a flood of lawsuits related to COVID-19.

Co-chaired by Marc Salm, vice president of risk management at Publix Super Markets, and William Large, president of the Florida Justice Reform Institute, the group, dubbed the RESET Task Force, finalized a proposal that would exempt “essential businesses” from any COVID-19 related litigation and would change litigation rules for “non-essential businesses” that could be sued.

The task force is not proposing that the changes be applied retroactively to cover businesses. Essentially, the group is proposing that scores of businesses identified as “essential” in executive orders issued by Gov. Ron DeSantis be given immunity from COVID-19 related suits.

Those employers include hospitals, doctors’ officers, dentists’ offices, urgent care centers, clinics, rehabilitation facilities, nursing homes, assisted living facilities, child care facilities,  grocery stores, farmers’ markets, farm and produce stands, food banks, convenience stores, gas stations, auto-supply stores and banks.

For businesses that could still face lawsuits, the task force is recommending that the Legislature raise the bar for culpability in COVID-19 claims from simple negligence to gross negligence.

The task force also wants lawmakers to change  evidentiary standards for COVID-19 claims by upping it from a current “greater weight of the evidence” standard to  “clear and convincing evidence.”

Another recommendation is that the Legislature put into law for businesses a rebuttable presumption that people who interacted with the businesses were not infected with COVID-19. But the recommendation would allow that presumption to be overcome by clear and convincing evidence that the businesses had knowledge otherwise.

Breaking his silence on liability limitations amid the pandemic, DeSantis said Tuesday the Legislature could consider a bill to give liability protections to “run-of-the-mill businesses” during a Special Session that also could involve his controversial plan to crack down on disorderly protesters.

DeSantis unveiled the plan about protesters Monday and suggested Tuesday that a Special Session could be held when lawmakers return to Tallahassee for a Nov. 17 post-election organization Session.

“There is a lot of concern about liability,” DeSantis said. “I believe it holds the economy back.”

Members of the RESET Task Force include representatives of groups and companies such as the Florida Home Builders Association, the Florida Council of 100, Travelers Insurance, the Florida Trucking Association, the Florida Health Care Association,  the Florida Bankers Association, the Florida Retail Federation, Associated Industries of Florida, Florida Realtors and Walgreens.

https://floridapolitics.com/archives/369349-group-offers-proposal-for-liability-protections

Doctors seek protection from liability lawsuits as confirmed coronavirus cases increase
The worry stems from the Governor’s Executive Order suspending elective surgeries.

By Ryan Nicol on March 27, 2020

Some doctors are warning the Governor’s Executive Order suspending elective surgeries could cause confusion — and even lawsuits — as Florida continues to respond to the COVID-19 pandemic.

The Governor has said doctors are given some latitude to make the determination of what qualifies as essential or nonessential procedures. Several medical associations are warning that leaving the decision to doctors could open them up to liability.

Ronald F. Giffler, President of the Florida Medical Association, was one of several to call for increased clarity Thursday.

“We ask Gov. DeSantis to immediately consider these medical professional liability protections to allow health care providers to make the necessary decisions without fear of lawsuits as a result of those decisions, under Executive Order No. 20-72,” Giffler said.

The groups proposed some potential paths to protect doctors from liability. One is to issue an Executive Order making doctors “immune to civil liability for any injury or death alleged to have been sustained directly as a result of an act or omission by such health care provider.”

Another option would be to extend the principle of sovereign immunity to health care providers — establishing them as agents of the Department of Health. Sovereign immunity serves to protect government officials from lawsuits stemming from the routine carrying out of government functions.

“The Florida Osteopathic Medical Association (FOMA) joins other providers in seeking guidance under the executive order and believe these suggested solutions will allow physicians to provide much needed care for Florida patients,” added Eric A. Goldsmith, the group’s President.

DeSantis’ original executive order limited elective procedures in order to maintain stockpiles of medical materials needed to treat the increasing rise in confirmed COVID-19 cases.

William Large, President of the Florida Justice Reform Institute, also pushed the Governor to act further in light of doctors’ concerns.

“Gov. DeSantis’ bold leadership on this issue will require medical providers to make tough decisions,” Large said.

 “We’re all in this together, and medical providers’ first priority should be taking care of the sick, not worrying about being sued for trying to comply with a government order in a national emergency.”

https://floridapolitics.com/archives/325495-doctors-seek-protection-lawsuits-coronavirus

House subcommittee OK’s PIP repeal legislation

Most of the opponents’ concerns centered on Florida’s bad faith laws.

By Sarah Mueller on February 4, 2020

Legislation sponsored by Rep. Erin Grall (HB 771) to repeal Personal Injury Protection faced a slew of opposition in the House Insurance and Banking Subcommittee Tuesday.

Most of the concerns centered on the state’s bad faith laws, which establishes an obligation on behalf of insurance companies to defend their policyholders against third-party lawsuits. Despite that, the bill easily passed the committee.

Grall’s bill would replace PIP no-fault vehicle insurance with bodily injury coverage. It would require drivers carry at least $25,000 in liability for the death or injury of one person in a crash and $50,000 for the injury or death of two or more people in a crash. It would retain the existing $10,000 coverage for property damage. The bill would also mandate insurance companies offer drivers $10,000 in medical payments unless consumers opt out in writing.

Grall argues that despite changes lawmakers passed in 2012 to PIP, premiums continue to rise.

“It is time that we make a policy decision that favors personal responsibility over that no-fault system,” she said.

Several subcommittee members voiced frustration with the PIP system. Democratic Rep. Al Jacquet said as a legislator and a defense attorney, he supported Grall’s legislation.

“I can’t help but think when we make sure that Floridians have a higher amount of coverage, we’re actually helping the costs go down,” Jacquet said.

But opponents were less optimistic about the potential results of Grall’s legislation. Insurance companies said they opposed the bill unless lawmakers also tackle changes to Florida’s bad faith law.

“Right now, a claimant can refuse to provide documents and ignore phone calls and emails, but then set arbitrary deadlines for a settlement,” said Kathy Maus, an attorney with Florida Justice Reform Institute. “They’re hoping the insurer misses the deadline, so they can sue the insurer for 100 times the policy limits or more.”

Grall argues that PIP lawsuits are already a major driver of litigation in the state. She said there were 60,000 lawsuits in 2017, up 20,000 from the previous year.

Opponents also took issue with the opt-out provision. They said that because it’s on the consumers to take action, most drivers will retain that coverage without realizing it’s optional. Some insurance companies said they fear premiums will rise.

Physician groups also opposed the legislation. Chris Nuland with the Florida Chapter of American College of Surgeons said the group is concerned health insurance premiums will go up, causing more Floridians to become uninsured. About 12% of state residents currently don’t have health insurance.

Senate Infrastructure and Security Committee Chairman Tom Lee is sponsoring a similar bill (SB 371). His legislation would require drivers opt-in for the medical payments, rather than opt-out as Grall’s bill does. Lee’s bill passed his committee and is waiting for action in the Senate Banking and Insurance Committee.

floridapolitics.com/archives/318096-house-subcommittee-oks-pip-repeal-legislation

Sunburn — The morning read of what’s hot in Florida politics — 1.21.20
All the news that fits, and more: Your first look at Sunshine State politics and policy news.

House panel tackles deceptive legal advertising — The House Civil Justice Subcommittee held a panel workshop on misleading and deceptive legal advertising focusing especially on ads presented as medical, health, or consumer alerts. Testifying on behalf of the Florida Justice Reform Institute, President William Large said: “The issues have to do with provocative ads that say, ‘medical alert’ or ‘warning.’ The problem is not Florida Bar members; the problem is out-of-state lead generators and aggregators who run these ads.” Chair Bob Rommel agreed the ads confuse patients, especially the elderly: “If I don’t take [my medicine] I may die, if I take it I may die, what do I do?” Sen. Tom Wright has filed SB 1288 in the Senate.

https://floridapolitics.com/archives/316393-sunburn-the-morning-read-of-whats-hot-in-florida-politics-1-21-20 

Senate panel cracks windshield repair benefit reform with tie vote

Contentious bill dead for 2020 Session.

By A.G. Gancarski on December 10, 2019

On Tuesday, the Senate Banking and Insurance Committee did what they couldn’t do last time they met: cast a vote on SB 312.

The bill was voted down, but not before a failed motion to temporarily postpone for a second time.

Sen. Jeff Brandes noted the 4-4 vote allowed any member to reconsider the bill, but he withdrew his motion, adding last-minute drama to a discussion that sprawled over two committee meetings.

The legislation, carried by Orlando Democratic Sen. Linda Stewart, would have ended the ability of auto repair shops to incentivize assignment of benefits.

“Gift cards, cash, coupons … anything of value,” Stewart said would be banned.

The practice has led to upticks in litigation, with thousands of people unwittingly named as co-defendants when auto repair shops sue insurers to claw back the difference.

Stewart said these claims jacked up premiums, according to her constituents.

The committee had taken up the bill last meeting, but it was temporarily postponed. Tuesday saw a similarly wide-ranging discussion before the vote.

The Florida Justice Reform Institute, in support, noted an “inorganic” pattern: five lawyers file half of the expected 17,000 suits about windshield repair benefits, suits largely in Hillsborough and Orange Counties regardless of where the damage was inflicted.

Mark Delegal, representing State Farm, noted that “over 90% of [State Farm] litigation on auto glass is in the state of Florida.”

“Florida’s the problem … an outlier,” Delegal said.

Sen. Annette Taddeo noted “a lot of concerns” with the bill ahead of the vote.

“I thank you for getting to this point,” Stewart said. “There’s a lot of concerns here in this room on both sides and I think we should continue to talk about it.”

However, the bill failed, and that conversation is over for 2020.

https://floridapolitics.com/archives/313069-windshield-repair-payola