More opportunities for personal injury suits seen in wake of Florida high court ruling

By Michael Carroll | Jan 20, 2020

William Large

TALLAHASSEE – A Florida Supreme Court decision handed down last month will make it easier for plaintiffs to pursue personal injury lawsuits in pollution-related cases, according to those familiar with the case.

“I think the case is significant,” William Large, president of the Florida Justice Reform Institute, told the Florida Record. “Florida law now allows a statutory strict liability right of action for personal injury damages resulting from a discharge or other condition of pollution. Now a plaintiff can bring such a personal injury claim without having to prove negligence or causation.”

The state’s high court handed down its ruling on Dec. 19 in the case of Charles Lieupo v. Simon’s Trucking. A trial court initially awarded Lieupo, a tow truck driver, $5.2 million for injuries he sustained while coming into contact with corrosive battery acid after responding to a big-rig accident in north-central Florida, near Jasper.

The cause of the crash was due to the driver of the Simon’s truck suffering a heart attack, not negligence,

The First District Court of Appeal invalidated the damages award, based on its interpretation of a 1983 state water quality law. The appeals court found that a related 1970 statute did not permit recovery of damages for personal injury.

But the state Supreme Court last month stepped back from its decision in a previous case that the appeals court relied on and concluded the 1983 law does indeed allow for recovery for such damages.

Armando Edmiston, a personal injury attorney in Tampa, said the decision could expose businesses to a wide array of personal injury claims, even when the plaintiff is unable to show the defendant acted in a negligent manner.

“If you’re a business owner, you need regulations in place so you’re disposing of potentially harmful components in the correct manner,” Edmiston told the Record. He added that mass torts against companies handling materials improperly could also result from the ruling.

Lieupo’s initial damages award has been controversial because he also said he came into contact with fire ants while responding to the accident. Simon’s Trucking argued during the trial that Lieupo’s skin injuries may have been related to ant bites and a pre-existing condition.

https://flarecord.com/stories/523730322-more-opportunities-for-personal-injury-suits-seen-in-wake-of-florida-high-court-ruling

 

FLORIDA RECORD

Advocates hope insurance reform soon extends to auto glass fraud
REFORM

By Sarah Downey | Sep 9, 2019

While passage of reforms to homeowners’ assignment of benefits (AOB) insurance law was hailed by business interests in the last legislative session, advocates now have sights set on advancing auto glass AOB reform.

 Ashley Kalifeh

“As to why legislation wasn’t successful last year, I think that there was a lot of support for property AOB reform, and while some of us were very vocal about the need for reform on auto glass, I think property was the centerpiece,” Ashley Kalifeh, an attorney and consultant to the Florida Justice Reform Institute (FJRI) in Tallahassee, told the Florida Record. “Additionally, some of the auto glass vendors and attorneys who use this business model have gotten more organized in the last year or so, and were opposed to such reforms.” 

The FJRI supports changing AOB auto glass legislation on several fronts, including prohibiting third parties from obtaining attorney fees in auto glass AOB litigation, requiring full informed consent when a policyholder signs an auto glass AOB, and allowing a policyholder to rescind an auto glass AOB within a certain window of time.

“Regarding efforts for this year, I believe that is something that both the insurance committees and civil justice committees will be looking at,” Kalifeh said. “I know they want to be data driven in their analysis, and so FJRI is working hard to provide research and information to add to the depth of that conversation.”

Florida’s chief financial officer has advocated further reform of AOB in the upcoming legislative session, with auto glass coverage a primary focus.

In a video posted by the Florida Chamber of Commerce last month, state CFO Jimmy Petronis noted that AOB litigation had increased drastically in recent years, from about 400 suits in 2006 to more than 35,000 expected this year.

“The lion’s share of that exploitation is the windshield glass fraud that takes place,” Petronis said in the video. “The auto glass version of AOB has got to be dealt with.”

https://flarecord.com/stories/513524287-advocates-hope-insurance-reform-soon-extends-to-auto-glass-fraud 

 

FLORIDA RECORD

 By John Breslin | Aug 9, 2019

Report details funding of climate change litigation through well-heeled foundations, non-profits

Organizations and attorneys involved in legal action against companies over the impact of climate change are being supported and funded by a network of non-profit foundations, according to a new report.

Several legal actions, by municipalities, counties, and states, are ongoing against the fossil fuel industry that either argue they are liable for costs to mitigate against the impact of climate change, or, as in New York, it is claimed investors were misled because a company, ExxonMobil, knew decades ago of the potential damage, but did not reveal what it knew.

The Manufacturers’ Accountability Project, set up in 2018 by the National Association of Manufacturers to argue against, and combat, climate change litigation recently published a report on the funding of some of the legal actions.

“Far from a David-versus-Goliath endeavor, this effort is being waged by a coordinated network of individuals, nonprofit organizations and academics, and is backed by some of the most powerful private funders in the United States,” the report concludes.

The report notes that the Niskanen Center, which it is claimed is involved in a lawsuit in Boulder, Colorado, has “received at least $3.37 million from the William and Flora Hewlett Foundation, Rockefeller Brothers Foundation (RBF), and Energy Foundation since 2015.”

The Niskanen Center is a Washington, D.C.-based think tank that advocates environmentalism, immigration reform, civil liberties, and a national defense policy based on market principles. The center is named after the late William A. Niskanen, a former economic adviser to President Ronald Reagan

Further, the report states that “the William and Flora Hewlett Foundation has donated $1.5 million to EarthRights International (ERI).” ERI is involved in the Boulder litigation, in an action in California, and made a presentation to a coastal city in Florida, Fort Lauderdale, whose spokesperson has told the Florida Record it has no plans to sue.

The lawsuits are absurd, according to Brewster B. Bevis, senior vice president of state and federal affairs with Associated Industries of Florida, a NAM affiliate.

“The importance of this report is that once you peel the onion, you can find out who is truly funding these frivolous lawsuits,” Brewster told the Florida Record.

The suits, though known to have been filed in Florida, are certainly “not a good way of enticing businesses” to the state, Brewster argued, adding that he believes that elected officials involved in instigating such actions do not understand how business can be affected, and the atmosphere they create.

Companies are not likely to be attracted “a city that is suing businesses because of a perceived threat to climate,” he said. “And it scares businesses that are there now because of the perceived the implications of climate change.”

The business advocate also argues that American manufacturers do realize emissions are an issue and have moved to reduce them using the best science available. A lawsuit, he added, is going to do no good moving forward.

He said the foundations funding litigation are “perfectly within their rights” to do so but, ultimately, it is consumers who will pay for the cost of companies of “fighting these absurd lawsuits.”

William Large, president of the Florida Justice Reform Institute, which also opposes litigation against fossil fuel companies, said it may be time “to look at re-instituting the old common law doctrines of Champerty and Maintenance.”

Large explained, “These were doctrines established to make sure litigation was being brought by the true party in interest.”

“It appears as if climate litigation is being funded from outside sources. At the very least, the public needs to know who is behind funding these lawsuits,” Large told the Florida Record.

Among the other findings contained in the report, MAP noted that the Global Warming Legal Action Project (GWLAP), involved in the first climate suit in  Connecticut “received nearly $900,000 from organizations including the Wallace Global Fund, RBF, the Nathan Cummings Foundation, the Energy Foundation, and the Tides Foundation.”

The report also delves into the development of the campaign, drawing a line from a 2012 conference in La Jolla, California, to a meeting in 2016 that crafted a plan of attack that, it is claimed, led directly to the lawsuits being filed.

https://flarecord.com/stories/512960149-report-details-funding-of-climate-change-litigation-through-well-heeled-foundations-non-profits

 

FLORIDA RECORD

Citizens Property Insurance: AOB reform good for consumers, ‘jury still out’ on litigation portion

By Karen Kidd | Jul 20, 2019

TALLAHASSEE (Florida Record) – Assignment of benefits (AOB) reforms that took effect earlier this week will be a boon for consumers but it isn’t clear whether litigation provisions will reduce lawsuit abuse in Florida, according to a spokesman for the state-backed Citizens Property Insurance Corporation.

“The jury is still out,” Citizens Property Insurance media relations manager Michael Peltier told Florida Record, noting that litigation provisions AOB reform went into effect when it was signed in May. “It’s still too early to tell. We don’t have any hard numbers on litigation trends.”

AOB litigation reform is intended to benefit consumers by forcing parties, generally insurance companies and contracts, in an AOB lawsuit to consider reasonable offers, Peltier said.

“In a situation where you have an AOB, the law sets up parameters for who pays attorneys fees based on how different the final claims amount is from what was originally offered,” Peltier said. “If both offers are reasonable – and ‘reasonable’ is something that has to be determined – if generally speaking both parties provide reasonable offers, then each side pays their own attorney fees.”

Under AOB reform, if final award in a case is much higher than the original estimate, then the insurance company will pay attorney fees, but if final award comes out to be close to or less than what the insurance company originally offered, then the contractor pays attorney fees, Peltier said.

“It puts skin in the game for all parties in AOB suits,” he said. “In situations where homeowners are on their own, the law hasn’t changed.”

The Florida legislature created Citizens Property Insurance Corporation in August 2002 to be a  not-for-profit, tax-exempt, government entity with a goal of providing insurance protection to Florida policyholders who can’t find private property insurance.

The Florida Office of Insurance Regulation defines an assignment of benefits as “a document signed by a policyholder that allows a third party, such as a water extraction company, a roofer or a plumber, to ‘stand in the shoes’ of the insured and seek direct payment from the insurance company.”

AOBs, in themselves, don’t have to be especially problematic. AOBs are common in health care, where providers will bill insurance companies on behalf of patients.

AOBs became a problem in Florida, where they became prevalent in water and roof claims across the state, according to the Office of Insurance Regulation’s website.

Reform advocates for years asserted that unscrupulous contractors devised a way to game the system of AOBs at the expense of insurance companies and their policyholders and the problems mounted from there. A study issued by the Florida Justice Reform Institute reported that 11 attorneys filed about 25 percent of all AOB-related cases in Florida between 2013 and 2016.

Each new natural disaster seemed to create blooms of AOB-based litigation in Florida.

In May, Florida Gov. Ron DeSantis signed the major assignment of benefits (AOB) reform, Senate Bill 122, which passed the general assembly the previous month.

AOB reforms in the new law took effect July 1, while litigation reforms took effect the day DeStanis signed the legislation, Peltier said.

“As of July 1, consumers will have a little more time to make up their minds as far as AOBs are concerned,” he said. “If they change their mind after they have signed one, the law gives them a little more time to weigh their options and make decisions after the fact.”

That’s important because consumers often make decisions about singing AOBs when they are under stress, Peltier said.

“Often times with AOBs, you have situations like water spewing out of your water heater at 2 in the morning,” Peltier said. “Someone comes to your house and you’re willing to sign anything just to get the water to stop. The underpinnings of this reform is to give consumers more of a chance made educated decisions about what can be a very expensive repair.”

Consumers in Florida now have 14 days after signing an AOB to cancel that agreement if they want, Peltier said. Victims of natural disasters such as a hurricane, who find it difficult to find a contractor, now are able to cancel AOBs if after 30 days no substantial progress has been made toward repairs, he said.

AOB reform also is intended to make things easier on the consumer who finds their repairs the subject of litigation by strongly encouraging insurance companies and contractor to be agreeable about final costs, Peltier said.

“The consumer is the one who has to wait out the legal process,” he said. “The faster that both parties can come to an agreement, the quicker repairs are made and the consumer can be made whole.”

https://flarecord.com/stories/512691993-citizens-property-insurance-aob-reform-good-for-consumers-jury-still-out-on-litigation-portion

 

Legal group says raising limit on civil suit damages ‘goes beyond recommendation’ from state court

By Carrie Bradon | Jun 20, 2019

TALLAHASSEE — Gov. Ron DeSantis signed House Bill 337 into law May 24, which will raise the limit for damages in civil suits that are currently filed at the county level.

According to FloridaPolitics.com, HB337 will raise the damages for county court cases to $30,000 by Jan. 1, 2020 and $50,000 by Jan. 1, 2022. The current limit of $15,000 will remain in place for all cases that have been filed prior to Dec. 31, 2019.

Although the bill has been largely met with support, some groups oppose the changes it would bring, fearing that the disbursement of cases will be too disruptive to courts that will be unable to handle the onslaught of cases due to increase damages.

The Florida Justice Reform Institute, for example, has been outspoken in their opposition to the new limits set by HB337.

“While the institute shares the legislation’s goal of making Florida’s civil justice system more efficient, the impacts of increasing county court jurisdiction on workload and circuit court appellate jurisdiction require greater consideration before any adjustment is made law,” William Large, president of FJRI told Florida Record.

Large fears that by increasing the damage limits, county courts will be unable to handle as many cases as before, which will overburden the larger courts.

“Increasing the jurisdictional limit of county courts would also increase the number of appeals sent to circuit courts instead of the state’s main appellate courts, the district court of appeals,” Large said.

FJRI believes that the jurisdictional limits set by HB337 are too vast and should be more modest, raising them only to $25,000, which would result in a workload that could be better handled by the court system’s current resources.

“The Florida Supreme Court recommended a modest increase in the jurisdictional limit to $25,000 and further review of that amount in five years,” Large said, “Unfortunately, HB337 goes beyond that recommendation.”

https://flarecord.com/stories/512585810-legal-group-says-raising-limit-on-civil-suit-damages-goes-beyond-recommendation-from-state-court