What Does the New Law Provide?
On March 24, 2023, Florida Governor Ron DeSantis signed House Bill 837, “Civil Remedies,” into law. This new law contains significant “tort reform” that will change civil litigation in Florida. The changes became effective on the day the bill was executed — March 24, 2023. Below is a summary of the new law.
New Modified Comparative Negligence Standard
Florida’s standard from “pure” comparative negligence has been changed to “modified” comparative negligence. Under “pure” comparative negligence, a plaintiff was entitled to recover a percentage of damages proportionate to the degree of fault of the defendant. Under “modified” comparative negligence with the tort reform, if a plaintiff is more negligent than the defendant (i.e., 51% or more), the plaintiff cannot recover.
Two-Year Statute of Limitations for General Negligence Claims Tort Reform
Section 95.11, Florida Statutes, was amended under the tort reform to reduce the statute of limitations for general negligence claims from four (4) years to two years.
Admissibility of Evidence in Past and Future Medical Expenses
The new law with the tort reform changes the evidence plaintiffs can introduce to establish past and future medical expenses. Previously, with the exception of services paid by Medicare or Medicaid, plaintiffs were permitted to ask for the full amount of medical bills charged for services rendered. This was without evidence of any adjustments or reductions and was prior to a post-verdict setoff for adjustments by private insurance. If plaintiffs had Medicare or Medicaid, only the amounts actually paid by Medicare or Medicaid were admissible as evidence of past medical expenses.
Now, the evidence offered to prove the number of damages for past medical bills that have been satisfied is limited to evidence of the amount actually paid, regardless of the source of payment. For unpaid past medical bills, admissible evidence will depend on whether the plaintiff has health care coverage, Medicare, or Medicaid.
Tort Reform for Letters of Protection and Referral Disclosure
If a plaintiff obtains medical treatment under a letter of protection, the letter of protection must be disclosed, as must all bills for medical expenses, which must be itemized and coded. Whether the plaintiff was referred for treatment under the letter of protection must also be disclosed, along with who referred the plaintiff. If the plaintiff is referred for treatment under a letter of protection by their attorney, disclosure of the referral is permitted, notwithstanding the attorney-client privilege, as the financial relationship between the law firm and the medical provider is relevant to the issue of bias of the testifying medical provider.
Bad Faith: New Duty of Insureds and Impact on Damages
Now under the tort reform, in every bad faith action in Florida, the insured, claimant, and/or their representative have a duty to act in good faith in providing information, making demands, setting deadlines, and attempting to settle the claim. A jury may consider whether the insured, claimant, and/or their representative acted in good faith and may reasonably reduce the amount of damages awarded. Negligence remains insufficient to bring a claim for bad faith against an insurer.
Bad Faith: Changes to 90-Day Period, Admissibility, and Statute of Limitations
Under the new tort reform in Florida, no bad faith action can be created if an insurer tenders the lesser of the policy limits or the amount demanded by the plaintiff within 90 days after receiving actual notice of the claim and sufficient evidence supporting the claim. It is not bad faith if the insurer does not tender, and the existence of the 90 days is inadmissible in any action seeking bad faith. If the insurer not tender, the statute of limitations is extended for an additional 90 days.
Negligent Security: New Presumption Against Liability and Consideration of Fault of All Parties
In a negligent security action against the owner or operator of real property by a person lawfully on the property who was harmed by the criminal act of a third party, the trier of fact is now required, under the tort reform, to consider the fault of all persons who contributed to the injury or death, including the criminal actor. Moreover, the owner or operator of the property cannot be held negligent for damages to a third party attempting to commit or engaged in committing, any criminal act on the property.
Tort Reform and Contingency Fee Multiplier: New Lodestar Fee Presumption
Previously, Florida allowed for courts to consider and award contingency fee multipliers to attorneys’ fees based on factors that included but were not limited to: the relevant market if contingency fee multipliers were required to obtain competent counsel, whether the attorney mitigated the risk of nonpayment; the amount involved, the results obtained, the type of fee arrangement between the attorney and client; and the likelihood of success at the outset of the action.
The new tort reform law changes the ability to obtain a contingency fee multiplier by creating a “strong presumption” that the “lodestar” fee, the number of hours which would have reasonably been spent by an attorney, and multiplying that number by a reasonable hourly rate, is sufficient and reasonable. This can only be overcome in rare and exceptional circumstances in which evidence has been presented that competent counsel could otherwise not have been retained.
One-Way Attorneys’ Fees
Previously, “one-way attorneys’ fees” applied in situations in which an insured prevailed in action against an insurer. One-way attorneys’ fees in insurance cases under the tort reform now only apply to declaratory judgment actions for the determination of insurance coverage against an insurer after a denial of coverage of a claim, which does not include a defense under a reservation of rights. If a declaratory judgment is granted in favor of the insured against the insurer, the court shall award reasonable attorneys’ fees limited to those incurred in action.