Tort

Our team has been cautiously observing the developments of the New Tort Reform Bill. This new legislation imposes several changes to the current tort laws, which will decidedly impact how personal injury cases are litigated in the State of Florida.

Synopsis of the Florida Tort Reform Bill

The bill is a comprehensive reform in seven areas of the insurance claims process and the associated lawsuits filed by claimants in Florida. There are some “easy” examples as to how this will affect you and some extremely complex/nuanced examples as well that are hard to grasp unless you’ve been through a claim before. I will attempt to break down the two major changes of this bill that will affect every Floridian.

Examples To Help Understand Changes

Underpaid and Denied Insurance Claims

First, the bill is going to take away any practical ability for you to fight a denied or underpaid insurance claim unless you are able to afford an attorney out of your pocket. This means when a tree falls on your house that results in $15,000.00 worth of damage, the insurance carrier can (and will) offer any amount they want (say $5,000.00 in this example). When you argue with the insurance carrier about the fair value of the claim, their response will be “sue us.” Currently, when that happens if you prove there was an underpayment of even a dollar, the court awards you the rightful amount of claim and a separate amount for the attorneys’ fees that you incurred fighting the underpayment. During the debate on the floor, Representative Gregory (house bill sponsor) and Representative Hutson (senate bill sponsor said) said it is time for Florida to go back to the “pay your own attorney” system. This means that you will now have to either 1) pay an attorney out of your pocket without the ability to be paid back for that expense to pursue the insurance carrier’s underpayment or 2) agree to have the attorney take a portion of the claim for their fees (in the above example that means that you would agree to pay the attorney their fees and costs out of the $10,000.00 that you would recover in the lawsuit).

The practical ability of this is that the general public will not have the money to fight underpayments of claims. A similar (but significantly smaller) type of reform recently went into effect for hurricane claims, and the insurance carriers immediately started to underpay and delay claims since there was no practical way for the common Floridian to fight them.

The above example will apply to health insurance denials and underpayments, renters insurance claims, life insurance claims, total loss claims for vehicle accidents, repairs for vehicle accidents, and any other insurance claim that you may make directly against your insurance company.

When You Cause an Injury

Second, in claims where you did something wrong and are ultimately sued, the bill takes away the current protections requiring your insurance company to defend you and attempt to settle the claim within your policy limits. Using an auto accident example, if you rear-end someone your insurance carrier has a duty to defend you and attempt to resolve your claim within whatever policy limits you have (this is referred to as the “duty of good faith”). I can assure you unless you are vastly underinsured, every personal injury attorney in Florida will provide an opportunity for your insurance carrier to resolve the claim within policy limits at some point in the claims process (explained further below).

If the insurance carrier fails to settle your claim and your case proceeds to trial resulting in a judgment above your policy limits, you can then point the finger back at your insurance company and say “Why didn’t you settle my claim within policy limits when you had the opportunity to?” If the insurance carrier didn’t act in “good faith,” the insurance carrier will then be responsible for the full payment of the judgment, regardless of your policy limit (this is referred to as “bad faith”). The new law eviscerates the practical ability to raise any bad-faith argument, meaning that the insurance carriers will be off the hook for excess judgments. Under the new law, after a judgment is entered against you the insurance carrier will pay your policy limit, then you’ll be responsible for the remaining judgment amount. You will (practically) no longer be able to point the finger back at the insurance carrier for failing to settle the claim within your policy limits. Unfortunately, this is going to devastate small businesses when their employees cause accidents and also result in garnishments and asset forfeitures against people who cause accidents.

Other Provisions Included in the Tort Reform Package

There is a lot more to the bill, including limitations on medical damages recoverable in personal injury cases (without any ability for an injured person to apply those limitations to the bill they have to pay), takes away the attorney-client privilege in certain situations (meaning that you will not be able to openly speak with your attorney about certain aspects of your claim), creates an absolute bar to recovery if you are found to be 51% for causing your injury (this will apply mainly to premises liability/slip-and-fall cases which result in some of the worst injuries I see as an attorney), provides a pass to landlords who do not keep their property safe from known dangers as long certain, very minimal, security measures are met (locks and lights along with some other requirements), reduce the time to file a claim from 4 years to 2 years (candidly this is not that big of a deal in the grand scheme), and will make it virtually impossible for victims of crime to receive compensation for their injuries (the Parkland parents adamantly opposed this bill alongside Miya Marcano’s parents).

Overview

1. 1. The statute of limitations for all negligence causes of action accruing after 3/24/23 was changed from four years to two years;
   2. Safe harbors and a clearer standard for insurance bad faith claims were enacted, and, the insured’s and his representative’s conduct are now relevant;
   3. Efficient options were created for fast-tracking court or arbitration resolution of coverage disputes where a declination of coverage has been issued (and a reservation of rights does not constitute a declination for this purpose);
   4. Comparative negligence is now hybrid; if a plaintiff is more than 50% responsible, recovery is barred, and in a related provision, judges or juries may consider the liability of bad actors who cause intentional harm in their assessments of liability;
   5. Fee multipliers are largely eliminated, and one-way attorney’s fees opportunities are greatly restricted;
   6. Greater transparency about and reasonableness keyed to amounts actually paid or payable by health care coverage, CPT codes, and Medicare/Medicare schedules are mandated as to medical bills and Letters of Protection;
   7. New protections have been created for certain premises liability defendants who institute enumerated safety precautions; compliance with some is required now, and compliance with others is required by January 1, 2025.
   8. In addition to substantive changes, the new law addresses procedural issues as well; significant litigation is expected over whether some of the procedural changes will apply retroactively, even if the substantive changes do not.
   9. Legal challenges to the new law are expected and imminent;
   10. Different approaches will be required for cases filed before and cases filed after 3/24/23.

It is our belief that state legislators should propose legislation that focuses on protecting the rights of the people and ensuring that they receive fair compensation for injuries caused by others’ negligence. It is our obligation as lawyers to fight for our clients’ rights and advocate for justice, and we stand ready to do so tirelessly.