Florida House Bill 837, signed into law on March 24, 2023, implements significant tort reform measures that should interest any company engaging in business in Florida, owning property in Florida or litigating in Florida. The most significant changes are highlighted below. Prior to these changes taking effect, 32,000 new cases were reportedly filed in Florida, and plaintiff firms have threatened significant pushback against the insurance industry as a result of these changes.
Statute of Limitations. Shortens the statute of limitations from four years to two years for general negligence claims for causes of actions that accrue after March 24, 2023.
Comparative Negligence. Changes Florida’s comparative negligence regime from pure comparative fault to modified comparative fault, barring a plaintiff from recovery if a jury finds the plaintiff is more than 50% at fault for their injuries.
DETERMINING DAMAGES FOR MEDICAL EXPENSES
Medical Expenses. Provides that damages for medical expenses may not exceed amounts actually paid, amounts necessary to satisfy charges not yet satisfied, and amounts reasonable and necessary to satisfy the cost of future care. The bill provides that, in certain circumstances, evidence of the amount private health care insurers, Medicare or Medicaid pays health care providers for a medical treatment is admissible. This change ensures that plaintiffs cannot board inflated “billed” amounts in front of a jury, driving up past and future economic and noneconomic damages, while the law precluded defendants from introducing evidence that health care providers routinely accept amounts that are substantially less as full payment.
Letters of Protection. In the past, some personal injury lawyers have misused letters of protection to hide the actual value of medical care, seek inflated amounts and avoid a judicial setoff. Going forward, in actions for medical expenses where treatment was provided under a letter of protection, the law mandates automatic disclosure of (1) the letters of protection; (2) itemized and medically coded bills; (3) whether the plaintiff had, but did not use, health care insurance coverage; (4) the identity of any factoring company that has purchased a health care provider’s accounts; and (5) the referral source.
Referral by Attorney. Creates an exception to the attorney-client privilege allowing disclosure of an attorney’s referral of a plaintiff to a doctor. This change overrules Worley v. Central Florida Young Men’s Christian Ass’n, Inc., 228 So. 3d 18 (Fla. 2017), which prohibited discovery into a plaintiff counsel’s referral relationship with “treating” doctors. This includes the relationship between the law firm and the medical provider, the number of referrals, frequency and financial benefit obtained, which goes to the issue of bias of the testifying provider.
PREMISES LIABILITY — NEGLIGENT SECURITY
Allocation of fault among all who share responsibility. Allows for apportionment of liability between negligent and intentional tortfeasors for criminal acts committed on the property in negligent security cases. Before this amendment, juries could apportion liability only among negligent actors and could not consider the conduct of the person who committed the crime.
Presumption Against Liability. Creates a rebuttable presumption against liability for landowners of multifamily residential properties if certain security measures are in place.
Lodestar Standard. Creates a strong presumption, in an action in which recovery of attorney's fees is available, that a lodestar fee is sufficient and reasonable. This provision should reduce the use of contingency fee multipliers, which have become common in Florida.
Bad Faith Actions
- Codifies that negligence alone is not sufficient to constitute bad faith denial of insurance coverage.
- Creates a safe harbor period of 90 days, within which an insurer can tender coverage and avoid bad faith liability. Denial of coverage during that 90 days cannot be used as evidence of bad faith and the statute of limitations is extended by 90 days.
- Requires an insured to act in good faith in furnishing information to an insurer, setting deadlines and attempting to settle.
- Precludes third-party liability where the full policy limits are tendered or an interpleader action is brought, in cases of multiple insureds.
- Clarifies that Florida’s Offer of Judgment statute applies to civil actions involving insurance contracts.
- Limits the availability of insureds to recover attorney's fees in an action for coverage. Such recovery is now only permitted in declaratory judgment actions after a denial of coverage, and not where coverage is provided under a reservation of rights.
Except where indicated, these changes are effective for cases filed after March 24, 2023. Shook’s Public Policy Group was directly involved in the passage of this bill.
Additional reporting provided by Shook Law Clerk Lori-Ann Ridley.