Why Florida tort-reform is a legal game-changer
GLENDALE, CA (JUNE 2023) Historically, Florida has largely been considered one of the most plaintiff-friendly states for negligence actions against property owners and managers. With one stroke of Governor Ron DeSantis’ pen, the tides appear to be turning.
On March 23, 2023, the Florida legislature passed House Bill 837, Civil Remedies. The next day, Governor DeSantis signed the Bill in to law, becoming effective immediately. The goal – decrease frivolous lawsuits and predatory litigation, thereby curtailing exposure for businesses operating in the State. The Bill goes a long way towards achieving this goal.
What’s in the Bill…
Restrictions on the Admissibility of Past and Future Medical Expenses at Trial
The Bill notably limits evidence of past and future medical expenses. As to the former, if a plaintiff has health insurance coverage, only evidence of the amount the insurance company paid, or is obligated to pay, is admissible. But what if plaintiff declines to utilize the coverage? In that instance, only the amount the insurance would have paid is admissible.
If a plaintiff does not have health insurance, evidence of the billed amount remains inadmissible. In such case, a plaintiff may only introduce evidence of 120% of the Medicare reimbursement rate in effect on the date of care. If there is no applicable Medicare rate, the admissible expense amount is based on 170% of the applicable Medicaid rate.
Further, plaintiffs are now restricted in the evidence they may present regarding future medical expenses. Specifically, if a plaintiff has health insurance coverage, only the amount the insurance company will pay for such care is admissible. If there is no insurance, plaintiff is again limited to the applicable Medicare or Medicaid rates subject to the percentages above.
Letters of Protection Disclosure
In instances where plaintiffs decline to utilize their available health insurance coverage, they often execute letters of protection. Meaning, instead of billing the plaintiffs, the providers agree to accept payment of the bill amount at resolution of the negligence claim.
Previously, plaintiffs had no obligation to disclose these letters of protection nor were they discoverable in the pending litigation. The Bill dictates otherwise. Specifically, if a plaintiff receives care pursuant to a letter of protection, the Bill mandates that plaintiff disclose:
A copy of the letter of protection.
All billing for a plaintiff’s medical expenses, which must be itemized and appropriately coded.
Whether the health care provider sold the accounts receivable to a third-party, the name of the third-party, and the dollar amount paid by the third-party to purchase the accounts.
Whether a plaintiff had health insurance at the time of treatment and the identity of the health care coverage provider.
Whether a plaintiff was referred for treatment under a letter of protection and, if so, the identity of the person who made the referral.
Through these changes, the Bill amends Florida statute, declaring that there exists no attorney-client privilege related to an attorney’s referral of a client for treatment. The Bill also overturns previous Florida case law, which prohibited discovery of letters of protection as privileged.
Changes to the Comparative Fault System
Traditionally, Florida applied pure comparative fault in negligence actions. Pure comparative fault provides that a plaintiffs’ recovery is reduced by their assigned fault regardless of whether it exceeds 50%. For example, if a jury finds plaintiff 70% responsible for the injury, the property owner and/or manager is responsible 30% of the verdict. Through the Bill, Florida now employs modified comparative fault, wherein plaintiffs are barred from recovery if their fault is greater than 50%.
Shortening of the Statute of Limitations in Negligence Actions
The Bill reduces the statute of limitation period for negligence actions. Prior to the Bill, plaintiffs had four-years following their injury to file suit. The Bill reduces that time period to two years. It should be noted that this change applies only to injuries occurring after the effective date of the Bill, i.e., March 23, 2023.
Reduction in Exposure in Negligent Security Actions
Perhaps the Bill’s greatest impact is in the negligent security arena. Significantly, under the Bill, the jury may now consider the acts of the criminal when assigning fault and, as a result, determining a plaintiff’s recovery. Prior thereto, a property owner and/or manager would remain 100% liable even if the jury wished to find the criminal partially or fully responsible for the injury.
Additionally, the Bill creates a rebuttable presumption against liability if the property owner and/or manager satisfy three delineated requirements.
Physical Property Safety Measures
Security camera system at points of entry and exit that records and maintains footage for at least 30 days.
Parking lot lighting from dusk until dawn.
Lighting in walkways, laundry rooms, common areas, and porches from dusk until dawn.
A deadbolt measuring least one inch in each dwelling unit door.
A locking device on each window and each exterior sliding door, and another on other doors not used for community purposes.
Locked gates with key or fob access along pool fence areas.
2. Crime Prevention Assessment
By January 1, 2025, the property owner and/or manager must have completed a “crime prevention through environmental design” assessment that is no more than three-years old. Such assessment must be performed by a law enforcement agency or a Florida Crime Prevention through Environmental Design Practitioner (FCP). The property owner and/or manager must remain in substantial compliance with this assessment.
3. Training
By January 1, 2025, the property owner and/or manager must provide proper crime deterrence and safety training to its current employees. This training is to familiarize employees with security principles, devices, measures, and standards, set forth in the checklist of physical safety measures listed in requirement one.
What It Means…
The Bill radically changes Florida’s negligence law as to property owners and managers. To appreciate the monumental significance of the Bill, consider this - in advance of the signing on March 23, 2023, it is estimated that plaintiffs filed as many as 75,000 personal injury lawsuits, resulting in nearly $30 million in filing fees alone. With the influx of recent suits, a deluge in pre-effective date claims should be anticipated. However, once the flood waters recede, the negligence legal landscape will be forever changed.
What's Next…
Despite the Bill’s extraordinary detail, a number of questions remain outstanding. These questions will be answered by Florida courts in the months and years to follow.
Article written by Jonathan Wallack, Esq. (CP Law Group). Direct any inquiries to jwallack@cplawgrp.com.