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Legal Update for Florida Civil Litigation

Florida Passes Tort Reform: What You Need to Know

On March 24, 2023, Florida Governor Ron DeSantis signed House Bill 837, “Civil Remedies,” into law. HB 837 contains sweeping tort reform that will uproot the landscape of Florida civil litigation. The changes apply to causes of action accruing after the effective date—March 24, 2023. Prior to the bill becoming law, plaintiffs’ firms, anticipating this monumental change, filed approximately 100,000 lawsuits. These filings represent approximately 77% of the total cases filed since January 1, 2023.[1] Below is a brief summary of the changes and the potential impact the new law brings. 
 
NEW MODIFIED COMPARATIVE NEGLIGENCE STANDARD 
 
HB 837 changes Florida’s standard from “pure” comparative negligence to “modified” comparative negligence. This aligns Florida with a majority of the other states who have already adopted a “modified” comparative negligence standard. This new standard does not apply in medical negligence actions.
 
Previously, a plaintiff was entitled to recover a percentage of damages proportionate to the degree of fault of the defendant. Under “modified” comparative negligence, if a plaintiff is more negligent than the defendant, the plaintiff cannot recover. 
 
This new standard will likely reduce the number of cases brought in which the plaintiff was the predominant cause of his or her own harm. 
 
TWO-YEAR STATUTE OF LIMITATIONS FOR GENERAL NEGLIGENCE CLAIMS
 
HB 837 amends section 95.11, Florida Statutes, which sets forth the statutes of limitations for various causes of action. The bill now reduces the statute of limitations for general negligence from four years to two years. 
 
This may encourage plaintiffs to file suit earlier as plaintiffs and their counsel will prepare their cause of action and evaluate the validity of their claims at an earlier juncture. This will also increase the ability to obtain evidence closer to the time of the alleged incident. 
 
Where liability is contested, plaintiffs may be deterred from filing suit sooner. The two-year statute of limitations could also be used as leverage to effectuate earlier settlement and resolution of claims, especially pre-suit. 
 
ADMISSIBILITY OF EVIDENCE IN PAST AND FUTURE MEDICAL EXPENSES 
 
HB 837 changes the evidence that plaintiffs can introduce to establish past and future medical expenses. Previously, with the exception of services paid by Medicare or Medicaid, plaintiffs were permitted to board the full amount of medical bills charged for services rendered. This was without evidence of any adjustments or reductions and was prior to a post-verdict setoff for adjustments by private insurance. If plaintiffs had Medicare or Medicaid, only the amounts actually paid by Medicare or Medicaid were admissible as evidence of past medical expenses. 
 
Now, the evidence offered to prove the amount of damages for past medical bills that have been satisfied is limited to the evidence of the amount actually paid, regardless of the source of payment. For unpaid past medical bills, admissible evidence will depend whether the plaintiff has health care coverage, Medicare, or Medicaid: 
 
•    If plaintiff has health care coverage but obtains treatment under letter of protection or does not submit charges, evidence of amount that health care coverage would have paid to satisfy charges, plus plaintiff’s share of medical expenses, is admissible. Evidence of reasonable amounts that were billed to plaintiff for medically-necessary treatment or services is also admissible. 
•    If plaintiff does not have insurance, or has Medicare or Medicaid, evidence of 120 percent of Medicare reimbursement rate in effect is admissible. 
•    If there is no applicable Medicare rate, evidence admissible is 170 percent of applicable state Medicaid rate. 
 
Damages that may be recovered may not include any amount in excess of the evidence of medical treatment and services expenses admitted. Further, it cannot exceed the sum of amounts actually paid, amounts necessary to satisfy charges due and owing, and the amounts necessary for reasonable and necessary future medical treatment and services. 
 
For future medical bills, the “usual and customary” amount also depends on whether the plaintiff has health care coverage: 
 
•    If plaintiff has health care coverage other than Medicare or Medicaid, evidence of amount that could be satisfied if charges were submitted, in addition to portion of medical expenses under insurance contract, is admissible. 
•    If plaintiff does not have insurance, or has Medicare or Medicaid, evidence of 120 percent of Medicare reimbursement rate in effect is admissible. 
•    If there is no applicable Medicare rate, evidence admissible is 170 percent of applicable state Medicaid rate. 
 
LETTERS OF PROTECTION AND REFERRALS MUST BE DISCLOSED 
 
If a plaintiff treats under a letter of protection, the letter of protection must be disclosed, as must all bills for medical expenses, which must be itemized and coded. Whether the plaintiff was referred for treatment under the letter of protection must also be disclosed, along with who referred the plaintiff. If the plaintiff is referred for treatment under a letter of protection by their attorney, disclosure of the referral is permitted, notwithstanding the attorney-client privilege, as the financial relationship between the law firm and the medical provider is relevant to the issue of bias of the testifying medical provider. This new law overturns the Florida Supreme Court’s decision in Worley v. Central Florida Young Men’s Christian Ass’n, Inc., 228 So. 2d 18 (Fla. 2017). 
 
BAD FAITH – NEW DUTY OF INSUREDS AND IMPACT ON DAMAGES 
 
Now, in every bad faith action in Florida, the insured, claimant, and/or their representative have a duty to act in good faith in providing information, making demands, setting deadlines, and attempting to settle the claim. The trier of fact may consider whether the insured, claimant and/or their representative acted in good faith and may reasonably reduce the amount of damages awarded. Mere negligence remains insufficient to bring a claim for bad faith against an insurer.
 
BAD FAITH – CHANGES TO 90-DAY PERIOD, ADMISSIBILITY, AND STATUTE OF LIMITATIONS 
 
No bad faith action can lie if an insurer tenders the lesser of the policy limits or the amount demanded by the plaintiff within 90 days after receiving actual notice of the claim and sufficient evidence supporting the claim. It is not bad faith if the insurer does not tender, and the existence of the 90 days is inadmissible in any action seeking bad faith. Should the insurer not tender, the statute of limitations is extended for an additional 90 days. 
 
BAD FAITH – WHEN INSURER IS NOT LIABLE FOR FAILURE TO PAY POLICY LIMITS FOR MULTIPLE CLAIMS EXCEEDING LIMITS 
 
If multiple claims arising out of a single occurrence exceed the policy limits, the insurer is not liable beyond the policy limits for failure to pay any or all of the policy limits within 90 days if:
 
•    The insurer files an interpleader to determine rights of claims, and if found in excess of policy limits, claimants are entitled to a prorated share; or 
•    The insurer makes full policy limits available at binding arbitration, in which claimants are entitled to a pro rata share of policy limits as determined by the arbitrator, who must also consider comparative fault and the likely outcome of trial. If a claim is resolved by the arbitrator, a general release must be executed by the claimant to the insured party whose claim is resolved. 
 
NEGLIGENT SECURITY – NEW PRESUMPTION AGAINST LIABILITY AND CONSIDERATION OF FAULT OF ALL PARTIES
 
In a negligent security action against the owner or operator of real property by a person lawfully on the property who was harmed by the criminal act of a third party, the trier of fact is now required to consider the fault of all persons who contributed to the injury or death, including the criminal actor. Moreover, the owner or operator of the property cannot be held negligent for damages to a third party attempting to commit, or engaged in committing, any criminal act on the property. 
 
HB 837 also creates a presumption against negligent security liability for the owner or operator of a “multifamily residential property” if the burden of proof is met to demonstrate “substantial compliance” with crime assessments, crime and safety training for employees, and safety and security measures which include:
 
•    Security camera system at points of exit and entry that maintains the video retrievable for 30 days; 
•    A lighted parking lot from dusk to dawn; 
•    Lighting in common areas, porches, walkways, and laundry rooms from dusk to dawn; 
•    A deadbolt measuring at least one inch in every door; 
•    Locking devices on every window and sliding door; 
•    Locked gates at pool fence areas; and 
•    A peephole or viewer on door that does not have a window or window next to the door. 
 
CONTINGENCY FEE MULTIPLIER – NEW LODESTAR FEE PRESUMPTION
 
Previously, Florida case law allowed for courts to consider and award contingency fee multipliers to attorneys’ fees, based on factors which included but were not limited to: the relevant market if contingency fee multipliers were required to obtain competent counsel; whether the attorney mitigated the risk of nonpayment; the amount involved, the results obtained, the type of fee arrangement between the attorney and client; and likelihood of success at the outset of the action. 
 
HB 837 now changes the ability to obtain a contingency fee multiplier by creating a “strong presumption” that the “lodestar” fee, the number of hours which would have reasonably been spent by an attorney and multiplying that number by a reasonable hourly rate, is sufficient and reasonable. This can only be overcome in rare and exceptional circumstances in which evidence has been presented that competent counsel could otherwise not have been retained. 
 
ONE-WAY ATTORNEYS’ FEES – LIMITED APPLICABILITY 
 
Previously, “one-way attorneys’ fees” applied in situations in which an insured prevailed in an action against an insurer. One-way attorneys’ fees in insurance cases now only apply to declaratory judgment actions for the determination of insurance coverage against an insurer after a denial of coverage of a claim, which does not include a defense under a reservation of rights. If a declaratory judgment is granted in favor of the insured against the insurer, the court shall award reasonable attorneys' fees, which are limited to those incurred in the action. 
 
Further, section 768.79, Florida Statutes, also known as the “offer of judgment” or “proposal for judgment” statute, will apply to any civil action involving an insurance contract. 
 ______________________________________________
 

[1] Ron Hurtibise, Civil Case Filings Surge Before DeSantis Signed Sweeping Lawsuit Reform Bill, SUN-SENTINEL, (March 24, 2023, 6:55 p.m.), https://www.sun-sentinel.com/news/politics/fl-bz-case-filing-surge-before-tort-reform-20230324-7ze7uzxslbcndcaaessd4bmgzy-story.html.

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Firm Highlights

Thought Leadership

U.S. Supreme Court Decides Key Issue Regarding Interstate Freight Broker Liability

Freight brokers are intermediaries.  They connect shippers of goods with trucking companies that transport those goods.  Freight brokers match a load of freight with a trucking company and oversee the logistics of the transportation. For a number of years there has been a division among the Federal Circuits regarding the potential liability of freight brokers when the trucking companies that they retain for interstate loads are involved in accidents.  At the center of this division was the Federal Aviation Administration Authorization Act of 1994 (FAAAA).  Some Federal Circuit Courts have held that state law negligent hiring claims against freight brokers were preempted by the FAAAA .  Other Federal Circuits Courts have held that even if preemption applied, the “safety exception” in the FAAAA saved state law negligent hiring claims from federal preemption.  On May 14, 2026, the U.S. Supreme Court addressed the conflict in Montgomery v. Caribe Transport II, LLC, et al, No24-1238. In that case freight broker C.H. Robinson selected Caribe Transport to haul an interstate load. The commercial truck driver employed by Caribe Transport allegedly caused an accident and the plaintiff, Montgomery, was seriously injured. Montgomery brought an action against the driver, Caribe Transport and C.H. Robinson. The allegation against C.H. Robinson was that it negligently retained Caribe Transport when it knew, or should have known, that it was an unsafe company. The Seventh Circuit Court of Appeals held that Montgomery’s claims against C.H. Robinson were preempted by the FAAAA. The plaintiff appealed to the U.S. Supreme Court.  The U.S. Supreme Court’s decision focused primarily on the safety exception in the FAAAA.  That provision provides that the FAAAA preemption “…shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” C.H. Robinson argued, as freight brokers historically have, that their function was not “with respect to motor vehicles” because they do not own trucks or employ drivers. They are merely intermediaries, connecting entities who need freight moved with entities who can do that job. Therefore, C.H. Robinson argued that preemption applied, not the safety exception. The U.S. Supreme Court did not accept that argument. The Court focused on the meaning of the phrase “with respect to” in the safety exception. The Court held that it means “referring to”, “concerning” or “regarding”. Therefore, writing for a unanimous Court, Justice Barrett concluded that “[r]equiring C.H. Robinson to exercise ordinary care in selecting a carrier therefore “concerns” motor vehicles—most obviously, the trucks that will transport the goods. So, Montgomery’s negligent-hiring claim falls within the FAAAA’s safety exception, which saves it from preemption.” Justice Kavanaugh, in his concurring opinion, noted the effect this ruling may have on freight brokers and their insurers throughout the country: Importantly, the Court's decision today should not be read to mean that brokers will routinely be subject to state tort liability in the wake of truck accidents. As even plaintiff's counsel stressed, brokers should be able to successfully defend against state tort suits if the brokers have acted reasonably and arranged transportation with reputable trucking companies. Tr. of Oral Arg. 27-29. In plaintiff's counsel's words, the brokers "just have to hire carriers that actually have a reasonable policy," and "the broker is not going to have a problem if it's asking the hard questions of the carrier." Id., at 42, 45. In addition, the proximate-cause requirement in typical state tort law should help protect brokers from excessive liability. Id., at 25. That said, the brokers rightly caution against naivete. In the real world, as the brokers forcefully respond, state tort law can be unpredictable, and the costs to brokers of litigation and insurance may be significant even when brokers prevail in lawsuits. Moreover, the costs of litigation and insurance, as well as the costs of brokers' conducting more substantial inquiries into trucking companies, will cascade through the economy and be paid in part by American consumers in the form of higher prices. The concerns expressed by the brokers are legitimate and weighty. The key point here is that freight brokers can no longer claim they are protected from negligent retention claims by the FAAAA (in cases involving interstate transportation). The challenge will be to determine what is considered ”reasonable efforts” used by brokers when retaining transportation companies. 

Thought Leadership

PA Middle District Dismisses Claims Against School District and its Superintendent, Principal, Special Education Director, and Classroom Teacher

A five-year-old special education student was enrolled in the Wyoming Valley West School District and attended the State Street Elementary School during the 2024-2025 school year. The student refused to clean up classroom toys at dismissal. When his teacher allegedly grabbed him by the wrist to walk him back to his seat, the student dropped to the floor and began crying. The teacher then allegedly grabbed the student by the ankle and dragged him across the floor. Following an investigation, criminal charges were not advanced by the county DA, and the school permitted the teacher to return to the classroom. The student’s parents sued, lodging thirteen legal counts under both state and federal law, which sought monetary damages from the teacher, the school district, the superintendent, the principal, and the director of special education. The plaintiff’s 42 USC 1983 claims were dismissed as to the school district for failure to allege a policy or custom violation, and the failure to alleged deliberate indifference in the failure-to-train context. As to the superintendent, building principal, and special education director, the Section 1983 claims were also dismissed for failure to allege personal involvement on the part of the individuals. Regarding an equal protection claim asserted against all defendants, the motion to dismiss was also granted for a failure to advance a plausible equal protection claim, holding that “plaintiffs' single-act allegations do not include a factual basis to even infer that the act was motivated by discriminatory animus rather than some other non-discriminatory impulse.” The court further dismissed the plaintiff’s negligence-based claims including negligence against the teacher and district administrators, NIED, and vicarious liability under the Political Subdivision Tort Claims Act (PSTCA). The federal claims under the IDEA, Section 504, and the ADA were also dismissed in various respects. The IDEA claim was dismissed against all defendants with prejudice for failure to exhaust administrative remedies. The Section 504 claims against the individual defendants were also dismissed with prejudice, as districts, not individuals, are the recipients of federal funds under Section 504. However, the Section 504 and ADA claims were dismissed without prejudice as to defendant Wyoming Valley West, and the plaintiff was permitted leave to amend.

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict.