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The insurance industry this year convinced lawmakers to pass the most significant changes in personal injury law in 20 years.
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What the Legislature Did
Expect both plaintiffs lawyers and defense attorneys to fight over how the new law plays out.
Among other measures, the Legislature changed Florida law on:
- COMPARATIVE NEGLIGENCE…
What changed:
Previously, Florida was one of 12 “pure” comparative negligence states. Imagine a pedestrian on his phone who walks into the street and is hit by an almost equally distracted driver. If the plaintiff had $1 million in damages but a jury found him 51% at fault, the plaintiff collected $490,000. The Legislature this year placed Florida among 34 other states with “modified” comparative negligence. Now, the plaintiff collects nothing if a jury finds him more than 50% at fault. Below that threshold, the plaintiff gets whatever percentage the jury assigns. The new standard doesn’t apply in medical malpractice cases.
Personal injury lawyer response:
It will prompt attorneys to sue more parties no matter how trivial their involvement — the road designer or whoever maintains it, perhaps — to drive the plaintiff’s share of responsibility down.
- STATUTE OF LIMITATIONS…
What changed:
The Legislature cut in half to two years the window for bringing a general negligence suit.
PI response:
It can take many months for the extent of people’s damages and the responsible parties to become clear. Now, attorneys will need to sue faster and name more defendants to cover all bases before the two-year clock runs out.
- ATTORNEY FEES…
What changed:
Previously, victorious plaintiff attorneys billed opponents for their hourly rate times the number of hours they worked on a case. But they also could ask a judge to award a multiplier to boost their payday if the case was difficult or other circumstances warranted it. The U.S. Supreme Court in 2010 ruled the hourly rate should be sufficient in federal court except in rare and exceptional circumstances. Florida’s Supreme Court in 2017 rejected that for Florida and kept a more lenient standard. The Legislature now essentially voided the state high court view and brought Florida into line with the federal standard.
PI response:
Attorneys will have to assess whether complex cases — class action suits, for instance — are too financially risky to bring.
- NEGLIGENT SECURITY…
What changed:
Previously, in cases against a property owner or business in which a criminal harmed someone, the jury verdict form didn’t include the criminal in apportioning liability and damages. Now, as in neighboring Georgia, the criminal will appear on the form. Separately, the new law gives apartment owners immunity when a non-employee criminal harms a resident if the owners can show they took a list of safety steps such as having a 1-inch deadbolt lock on exterior doors. Also, owners must train employees in crime deterrence and safety and have their properties assessed every three years on standards for using design to prevent crime.
PI response:
The law now makes these cases unviable. Juries will default to assigning most of the liability to the criminal rather than the premises owner who enabled the crime to occur. Owners will lose the incentive to make their premises safe.
- BAD FAITH…
What changed:
The Legislature codified that mere negligence on the part of the insurer isn’t bad faith. It set standards for plaintiffs to meet in making claims, such as furnishing info on their claims in a timely manner and making clear demands and deadlines. The law gives insurers immunity against a bad faith claim if they take certain steps.
PI response:
The ability to bring a bad faith claim kept insurers honest and the new law could leave insurance customers on the hook for damages.
