Florida House Bill 837 (“HB 837”) was signed into law on March 24, 2023, by Gov. Ron DeSantis. The bill is a large and sweeping reform to the tort landscape. Gov. DeSantis described the comprehensive tort reform as necessary to protect Floridians from what he called a “judicial hellhole.” He went on to state that predatory “billboard attorneys” have contributed to the need for the reforms. Gov. DeSantis stated, “[f]or decades, Florida has been considered a judicial hellhole due to excessive litigation and a legal system that benefited the lawyers more than people.” The bill took immediate effect upon being signed.
In this multipart blog post, we will address changes to tort law made by the bill. These changes have resulted in mass filings of new lawsuits by plaintiff’s attorneys to avoid the implications of the bill. Data obtained from the Florida Courts E-Filing Portal and reported on by the South Florida Sun Sentinel indicates that 90,593 circuit civil cases were filed between March 17, 2023, and March 22, 2023. That figure accounted for 77% of the 118,179 cases filed between January 1, 2023, and March 22, 2023. In South Florida’s tri-county region, 23,666 circuit civil cases were filed between March 17, 2023, and March 24, 2023. That equates to 71% of the 33,315 lawsuits filed this year through March 22, 2023. In the Tampa Bay region, the Pinellas County clerk reported that in the same time period, 2,085 auto negligence cases were filed, compared with just 50 cases, in the prior week. Similarly, premises liability filings went from just 6 in the prior week, to 355 filings from March 17, 2023, to March 22, 2023. John Morgan, of Morgan & Morgan, was quoted by the Tampa Bay Times as stating that his law firm alone had filed 23,000 cases over three days prior to the bill being signed, which is actually 3,000 more cases than were filed in all of 2022.
Some of the changes to Florida tort litigation, effective for proceedings filed after the bill was signed, are:
- Statute of Limitations:
Fla. Stat. § 95.11 (4) (a)
The statute of limitations for negligence actions is now two years, having been reduced from four years.
Please note that this reduced statute of limitations applies to actions accruing after the effective date of the bill.
The impact of this change could be seen in a few ways. On the positive side, it may encourage a plaintiff to file a case earlier or make the claim earlier, versus waiting until close to the end of the limitations period. This could be significant, as it is usually more difficult to find witnesses and evidence as time passes. Further, it is possible that witnesses may have better recall and memory to assist with the facts of cases, because what frequently occurs is that a witness may not remember or recall an incident that happened four or more years ago. Discovery may become more fruitful and meaningful with this change. It may also encourage more pre-suit resolution and force all parties to truly consider the merits of their positions before filing suit.
On the other side of the coin, it could cause difficulty with cases with more complex injuries and/or a large amount of ongoing or needed medical treatment. The shortened statute of limitations may result in cases being harder to resolve early on in the litigation process if they are medically complex or have many providers, if a plaintiff is still actively treating during litigation. This already occurs frequently and can be a hindrance to resolution if it is unclear what additional treatment may be needed or undertaken. When a party is actively treating but has not decided on their course of treatment yet or treatment has not concluded, it can be difficult for a party to make a demand and determine what they are seeking for past and future medical damages. Further, it may cause issues in determining what the reasonable future medical expenses will be, if more treatment is contemplated, but not completed, from both the perspective of settlement and jury verdict awards.
In addition, the practice of Differentiated Case Management orders in Florida may ultimately force a party to have treatment on a certain schedule, if they wish to present those damages at trial as past expenses, rather than possible future medical expenses. The Florida Supreme Court has created an administrative order on how long certain proceedings should take, from start to finish. In Florida, all Circuit and County Courts have implemented Differentiated Case Management in civil cases. Differentiated Case Management requires the presiding judge in each civil case to take charge of cases at an early stage, firmly control their progress, and conclude the litigation as soon as it is reasonably and justly possible to do so. Complex cases are actions that have been or may be designated by the Court as complex under Florida Rule of Civil Procedure 1.201. These cases will proceed as provided in the rule. Complex cases generally should be set for trial within 24 months of an initial case management conference. General cases are all other civil cases, such as automobile accidents, premises liability claims and more. The projected date of trial for general cases is within 18 months of the filing of a complaint.
As such, it is possible that we may see parties undergo surgical procedures and non-invasive procedures sooner rather than later if they want to assert the medical expenses as incurred versus just “possible” future medical expenses. To meet the requirements of the shortened statute of limitations and comply with DCM orders, we may see a rise in individuals who undergo surgery or other procedures now, versus later, because it can be more challenging to assert that a procedure will be needed in the future versus already incurred. This is always case and fact specific, but generally, it can be more challenging to seek future medical expenses than for medical expenses already incurred. Further, the non-economic damages side of the equation does come into play when a jury is considering surgical treatment that has already occurred versus the potential for something to occur.
Finally, with the shortened statute of limitations and DCM order protocols for when trial is to occur, it may be more difficult to obtain a Compulsory Medical Exam prior to surgical procedures happening, as parties may elect to have their procedures sooner versus later, as the window to file claims has shortened and most cases should conclude within 18 months. As such, from a defense standpoint, obtaining a pre-surgical CME may prove more challenging.
Attorney’s Fees:
Fla. Stat. § 57.104(2)
It is to be presumed that the Lodestar fee is sufficient and reasonable in a case in which attorney’s fees are determined by or awarded by the court. A claimant may overcome this presumption only in a rare and exceptional circumstance by demonstrating that he or she could not have otherwise retained competent counsel.
This is a change from the prior law, where the Florida Supreme Court held that precedent established that the “rare and exceptional” requirement for a multiplier/contingency fee multiplier was not required when considering fee awards, contrary to federal law. This provision on attorney’s fees is likely to create a body of law on the presumption that has been created, with a potential for more litigation on attorney’s fees, in order to challenge the Lodestar presumption for a greater fee recovery. There is a body of federal law for the Florida courts to rely upon, but this is likely going to be an area of the law where we see case law develop as the presumption is challenged.
Importantly, HB 837 sets forth that attorney fee multipliers will now be the exception, not the rule, in cases where attorney’s fees may be recovered. HB 837 actually goes further and fully repeals the one-way attorney’s fees statutes, sections 627.428 (applying to authorized insurers) and 626.9373 (applying to surplus lines insurers). In addition, a new statutory section is created by HB 83, section 624.155. This section provides that the provisions of the offer of judgment statute apply to any civil action involving an insurance contract. Thus, the result is that one-way attorney’s fees are effectively eliminated in many breach of contract cases.
Fla. Stat. § 86.121
Attorney’s fee awards are eliminated with limited exceptions.
Reasonable attorney’s fees are to be awarded only when an action is brought for declaratory relief in state or federal court to determine insurance coverage after the insurer has made a total coverage denial of the claim:
- Reasonable attorney’s fees shall be awarded to the named insured, omnibus insured, or named beneficiary only. Transferring or assigning any right to fees is prohibited to anyone who is not the named insured, omnibus insured, or named beneficiary.
- A defense offered by an insurer pursuant to a reservation of rights does not constitute a coverage denial of a claim.
- Fees are limited to those incurred in the action brought under the section for declaratory relief under the Florida Insurance Code.
- This section does not apply to any action arising out of a residential or commercial property insurance policy.
The new changes to this statutory section by the bill are particularly important when it comes to the transfer of the right to fees. Florida began taking action on attorney’s fees in the context of property insurance in December 2022, when the Florida legislature eliminated the right to recover attorney’s fees “in a suit arising under a residential or commercial property insurance policy.” Of importance, a reservation of rights is now clearly not a coverage denial in Florida. Of importance, this section has no applicability by its very terms to property insurance policies.
For more information, please contact Elizabeth Tosh, Esquire, elizabeth@zinoberdiana.com, 813-642-4229