Florida Tort Reform – What It Means For Floridians And How It Affects You

Fairway Law Group

Just before 11am on March 24, 2023, Governor DeSantis signed the “Tort Reform” bill that quickly and quietly worked its way through the Florida House and Senate. I adamantly opposed to this bill and lobbied the Florida Legislature in opposition to it. I understand how it will affect the citizens and small businesses in Florida. Below, I explain what the Florida Tort Reform bill is and what it means for my clients and the citizens of Florida.

Synopsis of the Florida Tort Reform Bill

The bill is a comprehensive reform in seven areas of the insurance claims process and the associated lawsuits filed by claimants in Florida. The new law goes into effect tonight at midnight. There are some “easy” examples as to how this will affect you and some extremely complex/nuanced examples as well that are hard to grasp unless you’ve been through a claim before. I will attempt to ELI5 the two major changes of the bill that will affect the every Floridian.

Examples To Help Understand Changes

Underpaid and Denied Insurance Claims

First, the bill is going to take away any practical ability for you to fight a denied or underpaid insurance claim unless you are able to afford an attorney out of your pocket. This means when a tree falls on your house that results in $15,000.00 worth of damage, the insurance carrier can (and will) offer any amount they want (say $5,000.00 in this example). When you argue with the insurance carrier about the fair value of the claim, their response will be “sue us.” Currently when that happens if you prove there was an underpayment of even a dollar, the court awards you the rightful amount of claim and a separate amount for the attorneys’ fees that you incurred fighting the underpayment. During debate on the floor, Representative Gregory (house bill sponsor) and Representative Hutson (senate bill sponsor said) said it is time for Florida to go back to the “pay your own attorney” system. This means that you will now have to either 1) pay an attorney out of your pocket without the ability to be paid back for that expense to pursue the insurance carrier’s underpayment or 2) agree to have the attorney take a portion of the claim for their fees (in the above example that means that you would agree to pay the attorney their fees and costs out of the $10,000.00 that you would recover in the lawsuit).
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The practical ability of this is that the general public will not have the money to fight underpayments of claims. A similar (but significantly smaller) type of reform recently went into effect for hurricane claims, and the insurance carriers immediately started to underpay and delay claims since there was no practical way for the common Floridian to fight them.

The above example will apply to health insurance denials and underpayments, renters insurance claims, life insurance claims, total loss claims for vehicle accidents, repairs for vehicle accidents, and any other insurance claim that you may make directly against your insurance company.

When You Cause an Injury

Second, in claims where you did something wrong and are ultimately sued, the bill takes away the current protections requiring your insurance company to defend you and attempt to settle claim within your policy limits. Using an auto accident example, if you rear-end someone your insurance carrier has a duty to defend you and attempt to resolve your claim within whatever policy limits you have (this is referred to as the “duty of good faith”). I can assure you unless you are vastly underinsured, every personal injury attorney in Florida will provide an opportunity to your insurance carrier to resolve the claim within policy limits at some point in the claims process (explained further below).

If the insurance carrier fails to settle your claim and your case proceeds to trial resulting in a judgment above your policy limits, you can then point the finger back at your insurance company and say “why didn’t you settle my claim within policy limits when you had the opportunity to?” If the insurance carrier didn’t act in “good faith,” the insurance carrier will then be responsible for the full payment of the judgment, regardless of your policy limit (this is referred to as “bad faith”). The new law eviscerates the practical ability to raise any bad faith argument, meaning that the insurance carriers will be off the hook for excess judgments. Under the new law, after a judgment is entered against you the insurance carrier will pay your policy limit, then you’ll be responsible for the remaining judgment amount. You will (practically) no longer be able to point the finger back at the insurance carrier for failing to settle the claim within your policy limits. Unfortunately, this is going to devastate small businesses when their employees cause accidents and also result in garnishments and asset forfeitures against people who cause accidents.

Other Provisions Included in the Tort Reform Package

There is a lot more to the bill, including limitations on medical damages recoverable in personal injury cases (without any ability for an injured person to apply those limitations to the bill they have to pay), takes away the attorney-client privilege in certain situations (meaning that you will not be able to openly speak with your attorney about certain aspects of your claim), creates an absolute bar to recovery if you are found to be 51% for causing your injury (this will apply mainly to premises liability/slip-and-fall cases which result in some of the worst injuries I see as an attorney), provides a pass to landlords who do not keep their property safe from known dangers as long certain, very minimal, security measures are met (locks and lights along with some other requirements), reduce the time to file a claim from 4 years to 2 years (candidly this is not that big of a deal in the grand scheme), and will make it virtually impossible for victims of crime to receive compensation for their injuries (the Parkland parents adamantly opposed this bill alongside Miya Marcano’s parents).

What Is The Benefit? Insurance Rates Will Drop, Right?

The drafters and supporters of the bill garnered support by alleging that Florida is “litigation happy” and a “judicial hellhole.” They pointed the finger at the “billboard lawyers” who file too many “frivolous lawsuits.”

So what do the citizens of Florida get for giving up their rights? Nothing. Nothing in the bill requires insurance carriers to reduce their rates in exchange for the citizens losing their rights to (practically) bring claims. Representative Hart (D – Tampa) introduced an amendment that, essentially, would require the insurance carriers to pass any savings onto policy holders. The republicans voted against it and it failed to adopt.

But insurance rates have to come down right? Ask yourself – Have property insurance rates after the first round of tort reform passed last year? The answer is definitively no. The reason is that insurance companies owe a fiduciary duty to their shareholders to maximize profits. Insurance is a captive economy in that we are all required to have it. Perhaps I am ultimately proven wrong on this, but as there is no requirement for insurance rates to drop, I don’t see it happening.

Who Was Supporting And Fighting Against Florida Tort Reform? (Local to Orlando)

The bill was largely passed along party lines. Republicans supported it and Democrats opposed it. There was never a chance to defeat it in the house, so the focus was virtually all on the senate. I want to point out some key observations regarding this:

Our local Democratic Senator, Linda Stewart, supported the bill throughout all of the committee hearings and in the final vote. She is termed out, with her last year in office being 2024.

Local Democratic Senators Thompson and Torres adamantly opposed the bill and fought to the end. Additionally, in a somewhat unexpected vote, local Senator Brodeur voted against the bill. That took some courage.

Republican Senators Grall (Okeechobee), Martin (Lee County), and Bradley (Gainesville) crossed party lines and adamantly opposed the bill and fought until the bitter end.

The bill was backed by Gov. DeSantis who did a press conference on February 14, 2023, announcing that it was a priority of his during the upcoming legislative session. Democratic Senator Pizzo (Miami) was bold enough to ask the bill sponsor during debate how many senators received a call from the Governor telling them to vote for this bill.

According to this article Governor DeSantis has raised 3.3 million from the insurance lobby.

Finally, Republican Senator Wright unexpectedly voted against the bill in the last committee hearing on March 16, 2023, saying something to the effect that he listened to his constituents and determined that it was a not a good bill. Despite there being no changes or amendments to the bill he voted in favor for it on the final Senate vote a week later.

I do give credit to Orlando local Rep Anna Eskamani and Reps Cassel (Dania Beach) and Gantt (Miami) for doing what they could in the house (though it was a losing battle from the start).

Media Coverage of the Tort Reform Bill

It’s my opinion that the legislature passed the bill as quickly as possible to avoid the general public (citizens of Florida) from catching wind of the bill. I can confidently say that short of insurance funded publications, virtually every news article and media coverage is against this bill<. Here is a survey of some of the articles:

And the list goes on (go to google, search “insurance florida,” click “news,” sort by date and you can read article after article discussing the negative ramifications of the bill)…

Conclusion

At this point the bill is law and we will all be dealing with the ramifications of it. Due to the enabling provision contained in the bill, there was a rush to the courthouse to file cases prior to the passage of the bill, resulting in over 88,000 cases being filed since last Thursday (there is typically 400-500 filed per day).

With that being said attorneys across the state are fired up (to say the least) and ready to fight this in the Courts with everything we can.

Perhaps you agree with everything I wrote above, perhaps you disagree with everything. Regardless, please use this as a reason to go onto Flsenate.gov or myfloridahouse.gov and look at what our Legislature is doing to draw your own conclusions.

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