The Center Square Florida – Florida Justice Reform Institute

Florida lawmakers pacing other states in COVID-19 liability bills – and their session hasn’t even started yet

February 18, 2021/in The Center Square Florida

Florida lawmakers pacing other states in COVID-19 liability bills – and their session hasn’t even started yet

By John Haughey | The Center Square contributor – February 18, 2021

lorida Rep. Colleen Burton, R-Lakeland. – Steve Cannon / AP

(The Center Square) – At least 27 states have enhanced liability protections for healthcare providers and medical facilities through legislation or via emergency executive orders since the COVID-19 pandemic emerged last March.

With 48 state legislatures across the nation now in session, adopting general COVID-19 liability protections for businesses is an urgency.

Lawmakers in Missouri, Nebraska, Montana, New Hampshire and North Dakota are among those pondering pending bills. Indiana lawmakers in January sent a broad business liability package to Gov. Eric Holcomb for signing.

Meanwhile, lawmakers in Washington, Idaho, New Jersey and Pennsylvania are among those reviewing COVID-19 liability bills that specifically address healthcare practitioners, providers, hospitals, nursing homes and assisted living facilities (ALFs).

Alabama lawmakers have already adopted a 2021 bill signed by Gov. Kay Ivey implementing COVID-19 immunity measures for ALFs and other healthcare facilities.

Florida lawmakers are trying to do both, even though their 60-day session doesn’t begin until March 2. House Bill 7 filed by Rep. Lawrence McClure, R-Dover, has already passed through three House hearings and is poised for adoption in March.

Its Senate companion, Senate Bill 72, introduced by Sen. Jeff Brandes, R-St. Petersburg, is two hearings away from the Senate floor.

HB 7/SB 72 would extend COVID-19 protections to businesses, schools, nonprofits and religious institutions that make a “good-faith effort” to follow government health guidelines, but exclude healthcare providers from its provisions.

Proposed liability shields for healthcare providers that “substantially” follow government-issued standards and guidance are addressed in SB 74, also filed by Brandes, and PCB HHS 21-01, proposed by the House Health & Human Services Committee.

Both bills extend protections to healthcare providers that “substantially” follow government-issued standards and allow plaintiffs one year to bring a COVID-19-related claims after a death, hospitalization or diagnosis. The House proposal increases liability standards for filing lawsuits from “negligence” to “gross negligence,” and from a “preponderance of evidence” to “clear and convincing.”

The House Health & Human Services Committee Wednesday approved PCB HHS 21-01 in a 17-3 vote following a two-hour discussion that ended only after chair Rep. Colleen Burton, R-Lakeland, promised more discussion on the bill in coming weeks.

“It’s a complicated issue and it’s an emotional issue – and it’s only a six-page bill,” she said, inducing four of the panel’s seven Democrats to tentatively advance the measure.

Burton said the bill would protect healthcare providers from frivolous lawsuits while providing victims of negligence an avenue to seek restitution.

“These healthcare heroes are on the front line and must not only care for themselves, but also potentially vulnerable patients and residents,” Burton said. “They have done so day-in and day-out for the last year, oftentimes without adequate PPE and while experiencing staffing shortages.”

The one-year statute of limitations and a one-year sunset will ensure the “extraordinary protections” apply only to pandemic-related claims, she said. “Hopefully the pandemic will be over within the next year,” she said.

State business interests, the Florida Justice Reform Institute and LeadingAge Florida, which represents more than 500 ALFs and 140 businesses, are among prominent proponents.

The Florida Justice Association, Florida AFL-CIO, Florida National Organization for Women and the AARP oppose the measure.

Rep. Michele Rayner, D-St. Petersburg, a civil rights attorney, said the bill hurts plaintiffs, protects corporations and is unlikely to survive legal challenges.

“I represent consumers. I represent patients. I represent hard-working people,” she said. “And my concern is – I understand we are in an unprecedented time, and I understand we have to make adjustments – let’s not do it at the cost of making sure people who are truly injured by bad actors are not able to recover.”

https://www.thecentersquare.com/florida/florida-lawmakers-pacing-other-states-in-covid-19-liability-bills-and-their-session-hasn-t/article_c3550066-7221-11eb-9272-d36e08bf136f.html

Florida no longer a ‘judicial hellhole’ but tort reform still an urgency, group says

December 9, 2020/in The Center Square Florida

Florida no longer a ‘judicial hellhole’ but tort reform still an urgency, group says

By John Haughey | The Center Square | December 9, 2020

The Florida Supreme Court building in Tallahassee, Fla.

Fotoluminate LLC / Shutterstock.com

(The Center Square) – Florida is not among the nation’s top “judicial hellholes” for the second consecutive year, according to annual rankings of court systems by the American Tort Reform Foundation (ATRF).

“Florida continued to make progress towards improving its legal climate in 2020 as a direct result of Gov. Ron DeSantis’ thoughtful and decisive leadership, as he continued to remake the Florida Supreme Court through two additional appointments,” ATRF wrote in its 2020-21 Judicial Hellhole Report released Tuesday.

Florida routinely placed in ATRF’s yearly ranking in the years after it was established in 2002, ascending to No. 1 in 2018.

It fell out the rankings in 2019 because of DeSantis’ Supreme Court appointments and state lawmakers adopting a bill to reform the state’s assignment of benefits (AOB) insurance law – after seven years of failed attempts – designed to slash excessive litigation.

Florida lawmakers, however, made little progress in 2020 addressing the state’s tort laws, ATRF maintains, and, therefore, it remains on its “watch list” because of an “aggressive personal injury bar and fraudulent, abusive litigation practices.”

“Florida appears to be a tale of two stories,” ATRF said, citing “bad faith laws, ‘no-fault’ personal injury protections and skyrocketing attorneys’ fees” among abuses still perpetuated in Florida.

The watch list also includes Oklahoma, New Jersey, Colorado, Maryland, West Virginia and the Montana Supreme Court.

The full 2020-21 Judicial Hellholes rankings were:

1. Philadelphia Court of Common Pleas and the Supreme Court of Pennsylvania

2. New York City

3. California

4. South Carolina’s asbestos litigation

5. Louisiana

6. Georgia

7. City of St. Louis

8. Cook, Madison and St. Clair counties in Illinois

9. Minnesota

The ATRF praised DeSantis for replacing “three retiring activist justices with three textualists, Barbara Lagoa, Robert Luck, and Carlos Muñiz. They joined historically conservative justices Charles Canady, Ricky Polston, and Alan Lawson, leading political observers to call the court the ‘most conservative Florida Supreme Court in decades.’ ”

After President Donald Trump appointed Lagoa and Luck to the 11th U.S. Court of Appeals, DeSantis “hit two home runs with … appointments of John Couriel and Jamie Grosshans, two justices who have proven to be restrained in their approach to their role as a judge. Based on his phenomenal selections thus far, reformers can no doubt look forward to more stalwart appointments throughout the judiciary as they become available.”

ATRF said Florida, however, still has “rampant lawsuit abuse,” especially in south Florida, which will be aggravated by the COVID-19 pandemic because lawmakers did not meet in a special session to grant businesses and employers liability protections.

“Florida is one of the states hit hardest by COVID-19, and the repercussions of the virus are amplified by the Legislature’s inaction in protecting small businesses and curbing lawsuit abuse,” ATRF President Tiger Joyce said. “Especially in south Florida, out-of-control legal advertising and trial attorney abuse of ‘letters of protection,’ bad faith laws, and assignment of benefits threaten to set back any progress made in cleaning up Florida’s courts.”

ATRF called on state lawmakers to address “bad faith lawsuits,” “multiplying attorney fees,” “inflated awards” in medical malpractice suits and the state’s no-fault personal injury auto insurance system in 2021.

The Florida Justice Association, the state’s advocacy group for trial lawyers, did not respond to requests for comment Tuesday.

Florida Justice Reform Institute President William Large responded with a tweet that praised DeSantis and the report.

“Under Gov. DeSantis, [Florida’s] legal environment is now making national headlines for the right reasons,” Large wrote. “Gov. DeSantis was spot on when he said that [Florida’s] legal system should compensate real injuries and resolve real disputes, and not be used as a game.”

https://www.thecentersquare.com/florida/florida-no-longer-a-judicial-hellhole-but-tort-reform-still-an-urgency-group-says/article_7e3b909c-39a2-11eb-9cf1-17907e413347.html

Florida business group offers plan after DeSantis calls for employer liability protections

September 25, 2020/in The Center Square Florida

Florida business group offers plan after DeSantis calls for employer liability protections

By John Haughey | The Center Square Sep 25, 2020

Florida Gov. Ron DeSantis speaks during a news conference at a drive-thru
coronavirus testing site in front of Hard Rock Stadium on Monday, March 30,
2020, in Miami Gardens, Fla.
Wilfredo Lee / AP

(The Center Square) – Florida businesses have been frustrated with Gov. Ron DeSantis’ reticence in addressing their COVID-19 liability concerns.

The governor has dismissed requests since April for a special session to provide clarity on what potential liability risks are for employers during the pandemic.

DeSantis broke his silence this week, calling for lawmakers to adopt a liability protection bill for “run-of-the-mill business” in a special session when they come to Tallahassee Nov. 17 for a post-election organizational meeting.

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

Within a day of DeSantis’ remarks, a 40-member task force of Florida business leaders submitted a plan for the governor to grant liability exemptions for essential businesses in an executive order.

RESET Task Force’s proposal also called for lawmakers to adopt bills in 2021 raising the culpability bar in COVID-19 claims and encoding “rebuttable presumption” into state code.

RESET, founded in April by Publix Vice President of Risk Management Marc Salm and Florida Justice Reform Institute President William Large, has been meeting through the summer to develop its proposals.

It is co-chaired by Associated Industries of Florida (AIF) Senior Vice President of State and Federal Affairs Brewster Bevis, Florida Retail Federation (FRF) President and CEO Scott Shalley, National Federation of Independent Business (NFIB) Florida Executive Director Bill Herrle and Florida Restaurant and Lodging Association (FRLA) President and CEO Carol Dover.

RESET recommends the governor grant liability exemptions to essential employers via executive order, such as 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 not “essential,” RESET proposes lawmakers elevate evidentiary standards for COVID-19 claims from simple negligence, which requires “greater weight of the evidence,” to gross negligence, which requires “clear and convincing evidence.”

RESET also wants lawmakers to put into law “rebuttable presumption” that a business did not cause someone’s infection without “clear and convincing evidence.”

DeSantis refrained from commenting on the liability because he thought it would be addressed in a second federal COVID-19 relief package that remains in limbo.

“The grand bargain was supposed to be liability protection for business and then aid to states,” he said. “The Dems wanted aid to states, and the Republicans wanted liability. But that hasn’t happened.”

DeSantis said it is now a state priority since there’s no guarantee Congress will address the issue.

“We’ve never done that with any other type of virus where you could be sued,” he said, noting only if “there’s some stuff going on that’s a little different than run-of-the-mill business” should there be liability.

“This is the first time I have heard the governor publicly support this, but I think he supports getting the economy open and getting everyone back to work,” Large said. “He’s a trailblazer in this respect. He is leading the way on the need to protect businesses from difficult causation lawsuits about how COVID-19 was transmitted. Businesses are in fear that if they open up they are going to be sued.”

NFIB’s Herrle said uncertainty is creating hardships.

“Business owners have been thrust into the role of being a public health officer. Every day they run their business they need to make decisions about whether Joe can come into work because he says he’s not feeling well. Should we send Joe home?” Herrle said. “Or, Joe comes in and says, ‘My wife, Mary, tested positive.’ So do we send Joe home?”

There are “hundreds of decisions (businesses) make being driven by COVID,” he said. “So we are very happy to see him do this.”

https://www.thecentersquare.com/florida/florida-business-group-offers-plan-after-desantis-calls-for-employer-liability-protections/article_143eebda-ff5a-11ea-8c4e-83137264da4d.html

House panel OKs proposed repeal of Florida No-Fault car insurance law

February 4, 2020/in The Center Square Florida

House panel OKs proposed repeal of Florida No-Fault car insurance law

By John Haughey | The Center Square – Feb 4, 2020

Florida state Rep. Erin Grall, R-Vero Beach – Steve Cannon / AP

According to the Insurance Information Institute, Floridians pay the nation’s third-highest car insurance rates despite state roads being relatively straight, flat and ice-free.

Among the most cited causes is Florida’s no-fault insurance regulations, or Personal Injury Protection (PIP) statutes. Under the state’s PIP statutes, Florida is one of only two states that does not require drivers to carry coverage for injuries or deaths if at fault in an accident.

Repealing PIP, a state study found, could save Floridians $81 per car per year, nearly $1 billion collectively, but bills seeking to do so have failed over the past decade.

This year, PIP repeal bills again are working through committees, with sponsors citing tweaks that make them more palatable to insurers, physicians and hospitals that have vigorously opposed past reform attempts.

Although the House Insurance & Banking Subcommittee on Tuesday approved a bill repealing Florida’s 50-year-old Motor Vehicle No-Fault Law in a 13-1 vote, opponents made it clear they’ve just begun to fight.

House Bill 771, filed by Rep. Erin Grall, R-Vero Beach, removes liability limitations provided under PIP. If adopted, beginning July 1, drivers faulted in accidents would be fully liable for damages they cause.

“It’s time we make a policy decision that favors personal responsibility over that no-fault system,” Grall said, noting there were 60,000 PIP lawsuits filed in Florida in 2017, up from 20,000 in 2016.

HB 771 now moves onto the House Government Operations & Technology Appropriations Subcommittee and Commerce Committee.

Its Senate companion, Senate Bill 378, sponsored by Sen. Tom Lee, R-Thonotosassa, has passed through the Senate Infrastructure & Security Committee and awaits hearings before the Senate Banking & Insurance and Appropriations committees.

Florida adopted no-fault in 1970. It requires vehicle owners and drivers to obtain $10,000 in medical, disability and funeral expenses insurance without regard to fault, subject to a limit of $2,500 for nonemergency medical care. In exchange for maintaining PIP, drivers are immune from tort claims.

HB 771 and SB 378 would require drivers secure bodily injury liability coverage of at least $25,000 for death or injury of one person, $50,000 for injury or death of two or more people and $10,000 for property damage.

HB 771 mandates insurers offer drivers $10,000 in medical coverage unless consumers opt-out, while SB 378 varies slightly in requiring policyholders to opt-in.

Although some committee members acknowledged adopting a tort system could have unintended consequences and suggested limiting third-party lawsuits against insurers, all expressed frustration with PIP.

“I can’t help but think when we ensure Floridians have a higher amount of coverage, we’re actually helping costs to go down,” said Rep. Al Jacquet, D-Mangonia Park.

Insurers, physicians and hospitals call the measure “a lottery” for those injured in car accidents and said the state needs to also revise “bad faith” laws.

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

The American Property Casualty Insurance Association maintains without “bad faith” law revisions, “Florida’s broken tort system,” which had “a $6.6 billion impact on premium costs” in 2017, will increase further.

Opponents argued the opt-out/opt-in provision will result in fewer people with medical coverage.

Florida Chapter of American College of Surgeons’ Chris Nuland said 12 percent of state residents don’t have health insurance, predicting increases in uninsured will result in a corresponding hikes in health-insurance premiums.

https://www.thecentersquare.com/florida/house-panel-oks-proposed-repeal-of-florida-no-fault-car/article_4251c68a-478d-11ea-b307-b71089b54a81.html

DeSantis judicial appointments, Legislature’s actions drop Florida from ‘judicial hellhole’ rankings

December 11, 2019/in The Center Square Florida

DeSantis judicial appointments, Legislature’s actions drop Florida from ‘judicial hellhole’ rankings

By John Haughey | The Center Square Dec 11, 2019

Luck and DeSantis

Former federal prosecutor and Miami appeals court judge Robert Luck, right,
speaks after being appointed for a seat on the Florida Supreme Court
by Republican Gov. Ron DeSantis, center, Monday, Jan. 14, 2019, in Miami. Lynne Sladky / AP

Gov. Ron DeSantis appointed three justices to the Florida Supreme Court in early 2019, replacing a trio of retiring judicial activists with judges with track records of judicial restraint and “fidelity to the Constitution.”

In May, the newly reconfigured Supreme Court – transformed from a 4-3 liberal bench to a 6-1 conservative bloc – adopted the “Daubert standard,” rules of evidence that define the admissibility of expert witness testimony that had been long-sought by those seeking tort reform in Florida.

Those factors are among reasons why Florida is no longer the “judicial hellhole” it once was, according to the American Tort Reform Association’s (ATRA) annual Judicial Hellholes report published Tuesday.

Florida dropped from No. 2 on ATRA’s 2018 Judicial Hellholes report to the unranked “Watch List” this year. The state was the 300-member national group’s No. 1-ranked “judicial hellhole” in 2017.

Florida “took great strides toward improving its legal climate,” the report said, stating that DeSantis’ emphasis on judicial restraint “heralded a sea change in Florida’s legal landscape.”

As a result, the state’s “new restrained” high court “is deferential to legislative efforts to stop lawsuit abuse and poised to correct the course set by the prior activist court,” the report said.

The Florida Justice Reform Institute (FJRI) applauded DeSantis for “his leadership that is directly responsible” for “Florida’s improving legal environment.”

“When Gov. DeSantis appointed Justices Barbara Lagoa, Robert Luck, and Carlos Muñiz to the Florida Supreme Court, he immediately and dramatically improved Florida’s legal environment,” FJRI President William Large said in a statement.

“Gov. DeSantis showed tremendous leadership by appointing judges who will say what the law is,” Large continued, “not what they think it should be, and who show deference to the legislature as the rightful policymaking branch of government.”

Among other factors cited by ATRA as improving Florida’s legal environment is the Legislature’s 2019 adoption of a bad faith insurance law that alters appraisal rights and, after a seven-year battle, changing its assignment of benefits (AOB) regulations to diminish the potential for lawsuits in hurricane and flood damage insurance claims.

On May 23, the Supreme Court amended sections of state law regarding opinion testimony by experts, replacing the “Frye standard” with the “Daubert standard” that is applied in most states.

Whereas the “Frye standard” only applies to expert testimony based on new or novel scientific techniques and general acceptance, the “Daubert standard” requires trial judges to ensure any and all scientific testimony or evidence admitted “is not only relevant, but reliable.”

Proponents say the “Daubert standard” will create consistency between state and federal courts on admissibility of expert testimony and will promote fairness and predictability while reducing judge or court “shopping.”

The Supreme Court had declined to adopt the “Daubert standards” in 2017.

FJRI’s Large said the group had been lobbying since 2013 to amend the state’s expert-witnesses law.

“The Florida Legislature passed the ‘Daubert’ expert evidence standard in 2013, but a previous majority of the Florida Supreme Court refused to acknowledge that change,” he told TCS in an email. “The court’s decision to finally adopt the ‘Daubert’ standard will change the face of Florida jurisprudence.”

With Lagoa and Luck nominated by President Donald Trump to the 11th U.S. Court of Appeals and confirmed by the Senate last month, Large said DeSantis has “the opportunity to permanently stamp an incredible legacy on Florida’s legal environment” when he appoints their successors.

The Philadelphia Court of Common Pleas, where a jury awarded an $8 billion verdict against Johnson & Johnson, took the No. 1 spot in ATRA’s “Judicial Hellholes” ranking while California placed second in the wake of $2 billion and $80 million judgments against Monsanto Co.

“California’s fall from the No. 1 spot in 2019 cannot be attributed to any improvement in the state’s liability climate, but rather results from the severity of the problems plaguing Philadelphia,” ATRA said. “California courts allow innovative lawsuits to proceed and the burdensome Prop-65 law is exploited by the plaintiffs’ bar. The state is a magnet for class action lawsuits, and given the courts’ and legislature’s anti-arbitration stance, it is not expected to improve.”

New York City took third; Louisiana was ranked fourth; St. Louis, Mo., fifth; Georgia sixth; Illinois’ Cook, Madison, St. Clair counties seventh; Oklahoma eighth; the Minnesota Supreme Court ninth; and the New Jersey State Legislature 10th.

https://www.thecentersquare.com/florida/desantis-judicial-appointments-legislature-s-actions-drop-florida-from-judicial/article_37f9d866-1c14-11ea-9039-dfca6a01b3a6.html

Florida Justice Reform Institute

Site Links