Sweeping Tort Reform May Be Coming To Florida That Would Level The Playing Field For Defendants Involved In Personal Injury Lawsuits

Robert D. Boroff By Robert D. Boroff, Devin A. Bembnister

Sweeping Tort Reform may be coming to Florida after members of the Florida House of Representatives seek to reform the state’s tort laws by introducing measures that would reduce abusive litigation and create a fairer civil justice system. The new measures in House Bill 837 (“HB 837”) would also remove major challenges faced by insurers under the current legal landscape.

Among the major and significant changes, HB 837 alters Florida’s “pure” comparative fault system to a “modified” comparative fault system, which is currently followed by 34 states. In negligence actions under the “modified” approach, any party found to be greater than 50 percent at fault for his or her own harm may not recover any damages. Currently, Florida allows plaintiffs to recover their pro rata share of damages even if they are found to be 99% at fault.

HB 837 also provides greater transparency over damages in personal injury or wrongful death cases. It allows juries to determine the accurate value of medical expenses by allowing them to see the amount the insurer was obligated to pay for the medical treatment or services, as well as medical expenses paid by the plaintiff. This improves current admissibility standards where a jury is aware only of the billed amount for medical charges, rather than the amount actually accepted as payment in full by a health provider, which can cause juries to award an inflated amount of damages.

The bill would also permit juries to see evidence of a plaintiff avoiding medical insurance coverage through the use of letters of protection. Such letters are often used to inflate medical bills by intentionally and purposely avoiding medical insurance coverage, which typically has lower contracted rates for treatment.

Additionally, HB 837 would allow juries to learn whether a plaintiff’s attorney referred an injured client to a specific medical provider or doctor, which would allow juries to fairly decide whether a doctor was incentivized to inflate medical treatment and costs based on the financial relationship with the plaintiff’s attorney.

The bill would also bring several other significant changes to Florida’s tort laws, including:

  • Reducing the statute of limitations for general negligence actions from four years to two years.
  • Protecting insurers from being liable beyond the policy limits where two or more third-party claimants make competing claims from a single incident, which taken together, would exceed the policy limits.
  • Eliminating contingency fee “multipliers”, except in rare circumstances, used to calculate attorney fees on top of a Lodestar fee – a separate formula that determines reasonable attorney fees.
  • Providing insurers a safe harbor that bars bad faith claims if the insurer pays damages or rectifies violations within 60 days of being notified
  • Ending “one-way” attorney fees, except in rare circumstances, in insurance disputes so that each party bears its own attorney fees in such disputes.

HB 837 passed in the House Civil Justice Subcommittee and will now proceed to the full House Judiciary Committee. Although a committee hearing has not been scheduled, the legislature will be in full session beginning March 7, 2023. The bill is sponsored and supported by the chairman of the Florida House Judiciary Committee as well as leadership in the Florida Senate and by Governor Ron DeSantis. While other insurance-related reform bills easily passed in the legislature last year, Florida House Speaker Paul Renner has noted that more compromise may be needed before HB 837 is passed.

As always, we will continue to monitor Florida’s legislation and similar trends throughout the country. Please contact us with any questions.