Florida Pre-Tort Reform
For many years, Florida’s national reputation for litigation has been very poor. Certain “pundits” have colloquially dubbed Florida as a “Judicial “Hellhole” (actually, a trademarked term), due to the excessive litigation, frivolous lawsuits and large jury awards.[i]
On January 8, 2019, Governor Ron DeSantis was sworn in as Florida’s governor.
Florida Supreme Court Justices Pariente, Lewis and Quince each reached the mandatory retirement age (70 years old) during the second half of their then-current six-year terms, which concluded on January 7, 2019.[ii]
As a result, Governor DeSantis had an opportunity to re-shape the ideology of Florida’s Supreme Court.
Notably, Justices Pariente, Lewis and Quince, along with the swing vote of Justice Labarga, were considered by Florida-Conservatives as an activist majority (of course, Florida-Liberals held the opposite viewpoint). Regardless, these outgoing-justices had adjudicated a number of decisions, which had resulted in increases to liability, stymied attempts at tort reform, etc.
Once sworn in, Governor DeSantis quickly appointed three replacement justices: Justices Lagoa, Luck and Justice Muniz, all of whom were considered conservative/textualists (opposite of the outgoing-justices).
Since then, the composition of the Florida Supreme Court has changed due to elevations,[iii] inter alia, but, suffice it to say, the High Court continues to lean heavy-conservative, which differs from ideology make-up prior to Governor DeSantis’ various appointments.[iv]
In light of the Florida Supreme Court’s ideological shift, coupled with the Florida Executive and Legislative Branches being controlled by Florida-Conservatives, legislators saw renewed opportunities relative to enacting radical changes to the legal landscape, particularly tort reform.
Insert House Bill 837 / Senate Bill 236 (“Florida Tort Reform”)
In February 2023, the Florida Tort Reform legislation was first-introduced, then was submitted to various Committee and Subcommittees and, thereafter, underwent several amendments.[v]
On March 17, 2023, the Florida House of Representatives passed HB 837 by a vote of 80 “Yeas” to 31 “Nays”.[vi]
On March 23, 2024, the Florida Senate passed SB 236 by a vote of 23 “Yeas” to 15 “Nays”.[vii]
Both the House[viii] and Senate[ix] votes were pursuant to party lines.[x]
On March 24, 2023, Governor DeSantis signed HB 837/SB 236 into law.
Following Governor DeSantis putting pen-to-paper Florida’s Tort Reform legislation became effective immediately—well, sort of as explained further below.
Florida Tort Reform Statistics
In anticipation of Florida Tort Reform, plaintiff attorneys statewide filed a massive number of lawsuits, in order to be “grandfathered” into the then-existing laws.
In March 2023, the total number of documents filed in Florida’s EFiling Portal reached the exorbitant number of 3.58 million documents (in 2.19 million submissions).[xi]
The latter documents/submissions equated to 280,122 new lawsuits, which was 126.9% higher than the previously-held record from May 2021.[xii]
Of the 280,122 lawsuits filed in March 2023, Miami-Dade County accounted for 71,000 new lawsuits (last year, during the same timeframe, there were 15,359 new lawsuits) and Hillsborough County had 53,000 new lawsuits.[xiii]
Obviously, the massive number of lawsuits increased case-loads for judges, but also and according to Patrick Manderfield, Deputy Communications Director of the Florida Court Clerks & Comptrollers, “[t]he record numbers of case strained [clerk] resources . . . impact[ed] normal operations (opening files, processing court records and reviewing/referring cases to appropriate courts and judges).”[xiv]
While Florida’s metropolitan areas saw the largest number of filings on average, arguably, its rural jurisdictions were the most ill-equipped to handle the sheer increase in case volume due to lack of resources.
In addition to massive strains on the courts and clerks, litigators have been likewise impacted: (i) trial judges’ hearing availability – particularly special set hearings – has virtually disappeared or is many months down the road; and, (ii) not only have expert witness rates increased, but so too have their availability (e.g., inspections, compulsory medical examinations, etc.).
Compounding these difficulties, the Florida Supreme Court entered several administrative orders[xv] in response to COVID-19, which, in pertinent part, have required that all circuit civil cases (i.e. generally, a huge percentage of the tort reform cases) to be put on case management schedules/trial dockets. As a result, the tort reform lawsuits have the same/substantially-similar pre-trial deadlines/trial periods.
Florida attorneys are expected pandemonium during early-fall 2024.
Florida’s Jurisdiction Breakdown
So What Is In Florida’s Tort Reform Legislation?
Amendment To Florida’s Statute Of Limitations (“SOL”)
Historically: The SOL for negligence actions was four (4) years.
Post-Tort Reform: Fla. Stat. § 95.11 has been amended to reduce the statute of limitations for negligence actions from four (4) to two (2) years.
Further Considerations: Fla. Stat. § 95.11 at n. 2: “[t]he amendments to s. 95.11(3)(c) . . . made by this act [Florida Tort Reform] apply to any action commenced on or after the effective date of this act [Florida Tort Reform], regardless of when the cause of action accrued, except that any action that would not have been barred under s. 95.11(3)(c) . . . before the amendments made by this act must be commenced on or before July 1, 2024. If the action is not commenced by July 1, 2024, and is barred by the amendments to s. 95.11(3)(c) . . . made by this act, then the action is barred.”
From Pure To Modified Comparative Fault
Historically: Florida was a pure comparative fault jurisdiction—i.e. a jury could find that plaintiff was 99% liable and defendant was 1% liable, which would result in the defendant having to pay-up (proposals for settlement could increase that 1%, if triggered).
Post-Tort Reform: Fla. Stat. § 768.81(6) provides that: “In a negligence action to which this section applies, any party found to be greater than 50 percent at fault for his or her own harm may not recover any damages. This subsection does not apply to an action for damages for personal injury or wrongful death arising out of medical negligence pursuant to chapter 766.”
Further Considerations: Fla. Stat. § 768.81 at n. 2:
“A. – [t]his act [Florida Tort Reform] shall not be construed to impair any right under an insurance contract in effect on or before [March 24, 2023]. [If it does affect,] this act applies to an insurance contract issued or renewed after [March 24, 2023].”
“B. – “[e]xcept as otherwise expressly provided in this act, this act shall apply to causes of action filed after [March 24, 2023].”
So What Is In Florida’s Tort Reform Legislation?
Creation of Fla. Stat. § 768.0427—Admissibility of Medicals Evidence
Past Medicals Evidence—Fla. Stat. § 768.04272(2)(a) and (b)
“(a) Evidence offered to prove the amount of damages for past medical treatment [ ] that have been satisfied is limited to evidence of the amount actually paid, regardless of the source of payment.”
“(b) Evidence offered to prove the amount necessary to satisfy unpaid charges for incurred medical treatment [ ] shall include, but is not limited to, evidence as provided in this paragraph:
- [ ] health care coverage other than Medicare or Medicaid, evidence of the amount which such health care coverage is obligated to pay the health care provider [(“HCP”)] to satisfy the charges for . . . incurred medical treatment [ ], plus the claimant’s share of medical expenses under the insurance contract or regulation.
- [ ] health care coverage but obtains treatment under a letter of protection [(“LOP”)] or otherwise does not submit charges for any [HCP’s] medical treatment [ ] to health care coverage, evidence of the amount the claimant’s health care coverage would pay the [HCP] to satisfy the past unpaid medical charges under the insurance contract or regulation, plus the claimant’s share of medical expenses . . . had the claimant obtained medical services [ ] pursuant to the . . . coverage.
- [ ] does not have health care coverage or has health care coverage through Medicare or Medicaid, evidence of 120 percent of the Medicare reimbursement rate in effect on the date of the claimant’s incurred medical treatment or services, or, if there is no applicable Medicare rate for a service, 170 percent of the applicable state Medicaid rate.
- [ ] obtains treatment [ ] under a [LOP] and the [HCP] [ ] transfers the right to receive payment under the [LOP] to a third party, evidence of the amount the third party paid or agreed to pay the [HCP] . . .
- Any evidence of reasonable amounts billed to the claimant for medically necessary treatment or medically necessary services provided to the claimant.”
So What Is In Florida’s Tort Reform Legislation?
Creation of Fla. Stat. § 768.0427—Admissibility of Medicals Evidence
Future Medicals Evidence—Fla. Stat. § 768.04272(2)(c)
“(c) Evidence offered to prove the amount of damages for any future medical treatment or services the claimant will receive shall include, but is not limited to, evidence as provided in this paragraph:
- If the claimant has health care coverage other than Medicare or Medicaid, or is eligible for any such health care coverage, evidence of the amount for which the future charges of health care providers could be satisfied if submitted to such health care coverage, plus the claimant’s share of medical expenses under the insurance contract or regulation.
- If the claimant does not have health care coverage or has health care coverage through Medicare or Medicaid, or is eligible for such health care coverage, evidence of 120 percent of the Medicare reimbursement rate in effect at the time of trial for the medical treatment or services the claimant will receive, or, if there is no applicable Medicare rate for a service, 170 percent of the applicable state Medicaid rate.
- Any evidence of reasonable future amounts to be billed to the claimant for medically necessary treatment or medically necessary services.”
[i]https://www.atra.org/2023/12/05/florida-no-longer-a-judicial-hellhole-named-point-of-light-in-annual-report/#:~:text=Various%20areas%20of%20the%20state,reshaping%20the%20state’s%20legal%20climate.
[ii] https://www.flgov.com/wp-content/uploads/2018/09/Supreme-Court-JNC-FAQ.pdf
[iii] https://supremecourt.flcourts.gov/Justices
[iv] https://www.politico.com/news/2023/05/23/desantis-installs-another-conservative-on-florida-supreme-court-00098386
[v] https://www.flsenate.gov/Session/Bill/2023/837/?Tab=BillHistory
[vi] https://www.flsenate.gov/Session/Bill/2023/837/?Tab=VoteHistory
[vii] See xii., supra.
[viii] https://www.flsenate.gov/Session/Bill/2023/837/Vote/HouseVote_h00837e1036.PDF
[ix] https://www.flsenate.gov/Session/Bill/2023/837/Vote/SenateVote_h00837e1003.PDF
[x] https://natlawreview.com/article/florida-enacts-significant-tort-reform
[xi] https://www.floridabar.org/the-florida-bar-news/comprehensive-tort-reform-spurs-record-filings/
[xii] See v., supra.
[xiii] See v., supra.
[xiv] https://www.ttnews.com/articles/florida-tort-reform-law
[xv] https://supremecourt.flcourts.gov/content/download/731687/file/AOSC20-23-Amendment-12.pdf