Legislative Session Preview: Florida Justice Association braces for tort reform battle

Lawyers have been bracing for a major push this year for tort reform. But they said that did not adequately prepare them for newly proposed legislation that undoes a century of legal best practices.

A massive bill (SB 236) unveiled days before the start of the Legislative Session would cap medical damages, restructure attorneys fees, cut in half the statute of limitations and shift Florida to a different standard for determining negligence.

“Big insurance wants to come in and take away the rights of the most vulnerable, most catastrophically injured people,” argued Curry Pajcic, president of the Florida Justice Association (FJA).

And members of leadership said they are just getting started.

FJA leaders point to more than a half dozen areas they have problems with, and each of those are meaty matters that members believe deserve deliberation if they are to be considered at all.

But most of all, the organization’s leadership remains flabbergasted that lawmakers built a reform package seemingly drafted by insurance carriers but without input from lawyers handling cases for plaintiffs done wrong by their providers.

“What I am most concerned about on a big picture scale is when you allow representatives of the insurance industry to write a bill with no input from the people who suffer the consequences of their action,” he said.

Trial lawyers believe “Bad Faith Reform” in the bill will remove protection from state law that incentivize insurers to treat policyholders fairly.

The FJA also sees a cap on medical damages, proposed at 140% of the estimated Medicaid cost, as a way to deny juries access to information about the full costs of both past and future medical expenses.

“It will hide the truth from the jury,” Pajcic said.

Steve Cain, president-elect for the FJA, said the legislation as written will effectively shift the burden onto injured parties and taxpayers. He suggested the bill will do what lawmakers have been reluctant to do for years, and push more consumers onto Medicaid.

“This would strip juries of the right of hearing the direct medical damages of a case, and would instead tie medical damages to social welfare systems,” he said. “This would tie damages for victims to those very low reimbursement rates, and prevents victims from getting a doctor of their choice to provide the information.”

The FJA also remains alarmed at the potential elimination of one-way attorneys fees. It’s a move that appears to directly target trial lawyers, whom Gov. Ron DeSantis has labeled “billboard attorneys” as he’s voiced support for the reforms.

The legislation as written will repeat a law that has been on the books for more than 130 years. FJA calls it a provision in “David against Goliath” that protects insurance consumers over giant carriers. The law requires insurance providers to cover both their own court costs and those of plaintiffs when they lose cases.

One-way attorneys fees were first enacted (by an Old South conservative Legislature, several FJA members point out) because a number of national insurance firms in the 1890s frequently denied full claims because they knew customers couldn’t afford to seek legal recourse.

Todd Michaels, FJA Secretary, notes Florida is a state that still requires consumers to buy insurance. But under the new law, there would be no accountability for firms paying out claims to make those consumers whole.

“There is no hammer with any responsibility to pay,” he said.

Insurers note there are still provisions in statute that would require insurers found to be denying claims in bad faith to cover plaintiff court costs. But trial lawyers see that as disingenuous, as most cases claimants bring against their own insurance companies end up in settlement. In those cases, this bill would leave the plaintiff covering the cost of bringing legal action.

The law also would change Florida to a “contributory negligence standard.” The FJA said that would shift Florida from a “comparative fault standard.” It would also cut the statute of limitations on negligence claims from four years to just two.

And in a gift to landlords, the bill would also eliminate negligent security safeguards, gutting protections for employees and patrons. Businesses in Florida currently have a duty to ensure their safety, but that would disappear under the legislation as written.

That’s especially upsetting to Michaels, who has represented the family of Miya Marcano, a college student who authorities say was killed by a maintenance worker in her Orlando apartment.

He said this law would absolve the apartment complex of its responsibility to do a proper background check. A background check would have revealed the maintenance worker had a criminal record and lost his last job after vandalizing the home of an apartment tenant who had turned down romantic advances.

If the proposed legislation passes, that leaves the family no path to civil recourse against the complex.

“In this world, they say, ‘don’t blame us, blame the killer,’” Michaels said. “Fine, but they gave the killer the key.”

There are cases like that all over Florida. Michaels notes that even families of the Parkland shooting in 2018 saw more justice from civil action against the school district than from the criminal justice system. Families sued over school officials letting a shooter on campus with a long gun in a bag despite fears he represented a threat to students.

In a broader sense, Pajcic sees the entire bill as an affront to a constitutional right to a jury trial. While many immediately think of criminal trials, he notes the Founding Fathers were moved to revolt in part because King George III wanted to defy the Magna Carta in the colonies and take away a right to jury trial in civil cases.

“This moved our Founding Fathers to revolt,” Pajcic said. “If our legislators realize what is in this bill, I believe they will revolt as well.”