Tort Reform Comes to Florida

At long last, Gov. Ron DeSantis signed House Bill 837, companion to Senate Bill 236, into law, finalizing significant tort reform in the state of Florida. The new law, which became effective upon being signed on March 24, 2023, will dramatically shift the landscape of civil litigation in Florida.

Specifically, HB 837 alters the comparative nature of the current framework to a modified system; standardizes the evidentiary threshold necessary to prove damages for medical expenses in certain civil actions; requires certain disclosures with respect to claims for medical expenses for treatment rendered under letters of protection; reduces the statute of limitations for negligence actions; standardizes bad-faith actions; and alters presumptions in certain negligent security matters. Herein, we will provide insight and analysis of the proposed changes.

Digging Into Details

Under Florida’s pure comparative negligence framework, a claimant’s recovery was reduced in proportion to the percentage of fault, if any, that his actions or inactions contributed to the damages or injuries sustained. Additionally, a defendant could further diminish its liability to the claimant based on the comparative fault of others. Under the new modified comparative negligence system, anyone found to be at least 51% liable for an incident cannot seek reparation from the other party.

The language of HB 837 also significantly modifies what evidence is admissible at trial to prove medical treatment and expenses. Evidence offered to prove the amount of damages for past or future medical treatment in personal-injury and wrongful-death actions will be limited generally to evidence of the amount actually paid. Evidence offered to prove the amount necessary to satisfy unpaid charges will be limited to the amount the health care provider is obligated to pay should the claimant have health care coverage other than Medicare or Medicaid.

If a claimant has health care coverage and receives treatment under a letter of protection, the claimant will only be able to board the amount the claimant’s health care coverage would pay the medical provider to satisfy the past unpaid charges under the insurance contract or applicable regulation. If the claimant does not have health care coverage, or maintains health care through Medicare or Medicaid, evidence offered at trial will be limited to 120% of the Medicare reimbursement rate in effect on the date of the incurred treatment, or 170% of the applicable state Medicaid rate.

Further, in personal-injury and wrongful-death actions, as a condition precedent to asserting any claim for medical expenses rendered under a letter of protection, the claimant must disclose the letter and an itemized billing ledger for the claimant’s medical expenses.

Additionally, HB 837 alters the statute of limitations in negligence actions. Currently, claimants in negligence actions have four years from the time of an incident to file a suit in Florida. Under HB 837, the statute of limitations will be reduced by two years. As such, claimants will only have two years from the time of an incident to file a suit.

HB 837 also radically augments Florida’s bad-faith law. Specifically, the bill explicitly mandates that mere negligence alone is insufficient to constitute bad faith in both statutory and common-law actions. Moreover, it imposes a duty on the claimant and the claimant’s attorney to act in good faith when furnishing information regarding the claim, issuing demands, setting deadlines, and attempting to settle. In this regard, the language aims to rein in claimants and their attorneys who seek to fabricate bad-faith claims by withholding information or imposing unrealistic deadlines.

The new law also creates an immunity in bad-faith actions where the insurance carrier tenders either the lesser of the policy limits or the amount demanded by the claimant within 90 days after receiving actual notice of a claim that is accompanied by evidence to support the amount at issue.

Other Implications

HB 837 also creates a mechanism for the distribution of insurance proceeds when two or more claimants make competing claims stemming from a single occurrence and the amount sought exceeds the available limits. In the aforementioned situation, the carrier can file an interpleader action or enter binding arbitration.

Further, the new law will protect apartment and other multi-family housing property owners from liability when a criminal injures a resident on the property. If the property owner takes certain precautions, such as securing video monitoring and lighting, the property owner will receive a presumption against liability. In order to obtain the presumption against liability, the owner or operation should, among other requirements:

•    Install a security camera system at points of entry and exit that maintains retrievable footage for at least 30 days.

•    Install a lighted parking lot illuminated from dusk to dawn.

•    Install lighted walkways, laundry rooms, common areas, and porches.

•    Install at least a one-inch deadbolt in each dwelling unit door.

•    Install a locking device on each window.

•    Install locked gates with key or fob access along pool fence areas.

•    Install a peephole or door view on each dwelling unit door that does not already include a window.

Per Section 28 of the law, changes to the statute of limitations will only impact cases that accrue after the effective date of the act. Similarly, pursuant to Section 29, changes in statutes pertaining to insurance policies will go into effect for policies issued after the bill is signed into law. Finally, Section 30 of HB 837 provides a catch-all applying the act to all causes of action filed after the effective date unless otherwise expressly provided therein.