The votes may be lined up for business-friendly changes in Florida’s civil courts.

The St. Petersburg Times – JONI JAMES
Published February 26, 2006

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Five more votes.

That’s all the Florida business lobby needed last year to pass a law that would have lessened liability for businesses when someone is injured in a crime occurring on their property.

But in the dramatic floor vote on the 59th day of the 60-day legislative session, 10 members of the Senate’s 26-member Republican caucus wouldn’t go for it, effectively killing the bill 24-16.

It was a stunning defeat for the Florida Chamber of Commerce, Associated Industries of Florida and every other major business association.

The outcome killed not only the premises liability bill but also the lobby’s hopes for more dramatic business-friendly changes to Florida’s civil courts.

Now, just nine months later, the business lobby is back. It’s better prepared, better organized and better positioned than ever in its 10-year push to rewrite tort law.

Senate President Tom Lee, as a personal favor to House Speaker Allan Bense, has promised a Senate floor vote on a repeal of “joint-and-several” liability, the granddaddy of all tort reform proposals.

The centuries-old legal doctrine, first established by British courts, says that deep-pocket defendants can be required to pay more than their share of liability to insure that an injured plaintiff is fully compensated.

What does that mean? Two drivers found equally at fault in an accident that hurt a third party may end up paying different amounts to the victim. Why? One of them has more assets than the other.

But repealing that basic premise in tort law would have a significant impact.

Supporters contend it would result in much lower liability insurance premiums for businesses, which would inevitably lower prices for a business’ customers.

Opponents argue that in the worst cases, plaintiffs with life-changing injuries wouldn’t be able to recoup adequate compensation, eventually forcing them into government medical and social service programs.

But underneath the debate is also a historical lawyer-business grudge that has reached its sharpest tension in an election year with the governorship and other Cabinet jobs on the line. Lee, for example, is running for the chief financial officer’s job and could use the business-friendly issue to help his primary fight against Rep. Randy Johnson, R-Orlando.

This session is also Republican Gov. Jeb Bush’s last. And the business lobby has no guarantee his successor will be so friendly to their cause, even if he’s a Republican. Chief Financial Officer Tom Gallagher has openly backed such reforms, but Attorney General Charlie Crist has largely sidestepped the issue while collecting significant contributions from the trial bar. The two are vying for the GOP nomination.

Stakes are just as high for trial attorneys. Any significant changes to joint-and-several liability law would rewrite the basic incentive system for trial attorneys, who usually take tort cases on a contingency basis. Without being able to go after a defendant with deep pockets, trial lawyers might be less likely to bring suits.

The issue could also have a long-term impact on Democrats, who traditionally have been the biggest beneficiaries of the trial bar’s contributions to political campaigns.

The impact has already been felt in presession meetings for the 2006 Legislature, particularly in the Senate. Whether that means the business lobby will get the five more votes it needs there, however, is anyone’s guess.

Lee, R-Valrico, hasn’t promised the repeal will pass, though he supports it. He’s merely promised to force a vote

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Essentially, joint-and-several liability refers to court cases in which more than one party may be responsible for an injury. For centuries, the courts have ruled that when two or more defendants share liability for someone’s injury, they share the burden to make the victim whole.

The Florida’s Legislature last tweaked joint-and-several liability law in 1999. Bush was fresh in office, and Republican control of the Legislature was just three years old. While an outright repeal of joint-and-several failed, lawmakers did create a new, complex matrix that courts use to assign additional economic damages to deep-pocketed defendants.

Under the system, noneconomic damages or payments for “pain and suffering” are not subject to joint-and-several liability. But economic damages are. How much more a wealthier defendant can end up paying depends on two key variables: whether a plaintiff contributed to the injury, and what percentage of fault a defendant is found liable for.

Defendants found to be less than 10 percent at fault for an injury aren’t responsible for any other defendants’ damages, regardless of the plaintiff’s role in the injury.

Defendants found at fault between 11 percent and 25 percent can be held accountable for up to $500,000 more if the plaintiff was faultless or $200,000 if the victim shares some blame; those amounts rise to $1-million or $500,000 for defendants 26 to 50 percent at fault; and $2-million or $1-million for defendants at 51 percent and higher.

Opponents of repealing joint-and-several liability argue the matrix has fixed a system that at times appeared outrageous. The most-quoted example in Tallahassee: a 1987 Florida Supreme Court ruling against Walt Disney World.

In that case, the court upheld a ruling that Disney could be made to pay 86 percent of the damages to a woman injured on the park’s bumper car ride, even though a jury found the company only 1 percent responsible for injury.

However, under today’s law, Disney would owe only 1 percent. Nonetheless, repeal supporters still mention the case, as they did before the House Judiciary Committee last month.

“I find the reference to the Walt Disney Case is offensive,” said Rep. Jeff Kottkamp, R-Cape Coral, who is a lawyer and one of two Republicans who voted against the bill that day. “It weakens the whole argument for the need for this bill.”

Rep. Jack Seiler, D-Wilton Manors, argued that the bill was merely “a solution in search of a problem,” noting that legislative leaders, despite years of lobbying by business interests, had never taken advantage of a provision in the 1999 reform that called for a study of that law’s impacts on tort settlements.

“If this is such a pressing issue, why hasn’t anyone gathered that data?” Seiler asked.

But repeal supporters argue no study could adequately quantify the “hidden tax” of joint-and-several liability that comes from businesses constantly playing defense to avoid any risk of liability – including settling a claim before a lawsuit is even filed to avoid a more costly legal fight.

And they argue the trial bar, not businesses, has long hijacked the state’s court system. “There is no better organized pressure group in Tallahassee than the Academy of Florida Trial Lawyers,” William Large, president of the business-backed Florida Justice Reform Institute, told the Kissimmee Chamber of Commerce this month.

The House bill sponsor argues it’s a matter of fairness. “People should pay for what they did wrong, not for the wrong of another,” said Rep. Don Brown, R-DeFuniak Springs.

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The joint-and-several repeal fight has already gotten ugly, twice.

The opening scene was last month in the House Judiciary Committee, packed wall-to-wall with well-suited lawyers and businessmen. Large’s institute had a video camera taping the discussion and vote. Representatives of the Academy of Florida Trial Lawyers pulled individual members out of the room to talk.

House members on both sides cried foul.

Kottkamp saw the video camera as intimidation.

“Yesterday we were told that there were going to be cameras here today, sound bites taken today and used against at least one of the members of the committee in an election cycle,” he said. “Frankly, if you are so afraid of the exchange of ideas in the process that you have to intimidate members, your ideas must not be very good.”

But Rep. Sheri McInvale, a former Democrat from Orlando who switched parties last month, said she felt “strong-armed” by a trio of trial attorneys who pulled her out of the committee room. She said they alluded to fielding a candidate to oppose her in the 2006 election cycle if she voted against them.

“I am deeply offended,” she said publicly.

Lobbyists on both sides rebutted the lawmakers’ allegations. Large said his footage was strictly for personal study. The trial bar denied any threats.

The vote went about as expected, 7-5 to repeal joint-and-several liability, with Kottkamp and another attorney, Rep. Kevin Ambler, R-Lutz, joining three Democrats to vote no.

After clearing another committee Wednesday, the House bill is ready for a floor vote. But the bitterness lingers. Last weekend, Ambler came home to Tampa Bay to find a mass mailing paid for by a Florida Retail Federation-backed group attacking him for his no vote.

And an even nastier fight played out this month among the Senate’s GOP majority. Senate Majority Leader Alex Villalobos, a moderate Miami Republican and former prosecutor, saw his clear ascension to the 2008 Senate presidency evaporate in a party caucus squabble.

Among the reasons his former supporters gave for defecting to his challenger, Sen. Jeff Atwater, R-North Palm Beach: Villalobos’ lack of passion for repealing joint-and-several liability.

“This isn’t something that will get solved behind the scenes,” Seiler said. “There’s too much at stake.”

The next likely battleground is the Senate Judiciary Committee, where Villalobos is expected to again play a significant role as one of five Republicans in an eight-member committee.

Villalobos, who has voted for some tort reform changes in the past, won’t say if he’ll vote for an outright repeal of joint-and-several. Nor is bill sponsor and committee chairman Daniel Webster, R-Winter Garden, expecting it.

“I don’t know how it will get out of committee,” Webster told reporters this month. “That’s not my job.”

Lee won’t comment on strategy, either, in a chamber where several Republicans, including Senate President-elect Ken Pruitt of Port St. Lucie, have received significant campaign finance support from the trial bar.

“It will get to the floor,” Lee said. “That’s all I’ve promised.”

Joni James is the Times deputy Tallahassee bureau chief. She can be reached at 850 224-7263 or [email protected]