On March 24, 2023, Florida Governor Ron DeSantis signed House Bill 837 into law. This is one of the largest changes to Florida tort laws in decades, and surely has resulted in a shakeup of the Florida tort landscape. The changes were aimed at curbing frivolous lawsuits and predatory practices of injury trial attorneys. It is no secret that over the years Florida has become the billboard capital for injury attorneys, who display a perfect looking person holding a large check. Juries have somewhat become immune to seeing these large figures, which results in larger verdicts. This landmark change seeks to put the balance of equities back in order.
The law went into effect on March 24, 2023, and applies to all causes of action accruing after that date. In an attempt to avoid the impact of the tort reform on pending pre-suit cases, an estimated 100,000 lawsuits were filed during the few weeks preceding March 24, 2023. This substantial influx in cases will likely result in delays as court staff address the volume of new cases, and the defense firms seek to absorb the volume. Some venues in Florida, like Hillsborough County, have entered stay orders on all newly filed cases to allow the courts time to handle the influx. Only time will tell if other larger venues follow suit. While we have not provided a summary of all changes, below is a few key areas of the substantive modifications:
Modified Comparative Negligence
Florida has now adopted the modified comparative negligence standard, instead of pure comparative negligence previously in place. Under the pure comparative standard, the plaintiff can recover for the defendant’s percentage of responsibility of the Plaintiff’s injuries, regardless of the plaintiff’s own liability. Meaning, a plaintiff could be 99% at fault and still recover 1%. Now, if a plaintiff is found to be more than 50% at fault, then the plaintiff is barred from recovery. It is important to note that this change does not apply to actions based on medical negligence. We believe this will have a massive impact on cases in the premise liability sector, and we anticipate this will lead to a reduction in the number of cases filed where the plaintiff played a role in their own injuries.
Two Year Statute of Limitations
The new tort reform has changed the statute of limitations for general negligence claims from four years to two years. This will push plaintiffs to file cases sooner, and should limit the amount of outstanding cases as they will move through the system sooner.
Letters of Protection
An important change that comes with the tort reform is the disclosure of letters of protection. Now, if a Plaintiff treats under a letter of protection, then it must be disclosed as well as all medical expenses, which must be itemized and coded. Additionally, the Plaintiff must disclose who referred them for treatment, even if they were referred by their attorney. This disclosure is intended to reveal any potential financial relationships between the law firm and the medical provider that may bias the testifying medical provider.
Medical Expenses
A huge change has come to how the Plaintiff can board or tell the jury about their medical expenses. Namely, the Plaintiff can only board the amount actually paid for medical treatment, regardless of the source of payment. Additionally, juries may consider what is reasonable for payment of unpaid medical bills, including what the plaintiff’s health insurer would be obligated to pay; the amount the insurer would have paid had the plaintiff not treated under a letter of protection; if the plaintiff does not have health insurance, then 120% of the Medicare rate; the jury shall use 170% of the Medicaid rate if there is no Medicare rate; and or the amount a creditor, or third party, paid for the medical debt, if applicable.
Negligent Security
Florida Statute § 768.0701 was created by the tort reform, which mandates juries consider all persons who contributed to the injury in actions for damages against the owner, lessor, operator, or manager of commercial or real property brought by persons lawfully on the premises who was injured by the criminal act of a third party. Further, the intentional tortfeasor is now able to be added to the verdict form. Another statue, Florida Statute § 768.0706, was created to allow for a safe haven in negligent security. This creates a presumption against liability for criminal acts of third parties who are not employees or agents in multifamily residential premises when the following minimum security standards are implemented: (1) security camera system at points of exit and entry that maintains the video as retrievable for 30 days; (2) a lighted parking lot from dusk to dawn; (3) lighting in common areas, porches, walkways, and laundry rooms from dusk to dawn; (4) a deadbolt measuring at least one inch in every door; (5) locking devices on every window and sliding door; (6) locked gates at pool fence areas; and (7) a peephole or viewer on doors that do not have a window or window next to the door.
Undoubtedly, this is in interesting time in Florida with the practice of injury law, on both sides of the bench. We believe these changes will have a resounding impact for the defense, to help level the playing field under certain circumstances. Our liability attorneys would be happy to discuss the recent tort reform bill in more detail or to provide advice in navigating the new climate of Florida tort law.
Authored by: Daren Dorminy, Esq. and Lauren Schieffelin, Esq. Daren Dorminy is a partner in Moran Kidd’s Litigation Department, and can be contacted at 407-841-4141 or ddorminy@morankidd.com. Lauren Schieffelin is an associate attorney in Moran Kidd’s Litigation Department, and can be contacted at 407-841-4141 or lschieffelin@morankidd.com.
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