Christine Jordan Sexton
The House has passed a major legislative package to limit lawsuits against insurance companies and businesses.
Filed by Reps. Tommy Gregory and Tom Fabricio, the bill (HB 837) cleared the chamber on an 80-31 vote. Rep. Paula Stark, a Republican from St. Cloud, voted against the bill and was the only member to cross party lines.
The omnibus bill makes substantive changes to how lawsuits are filed and litigated in the state, all but eliminating the longstanding statute that allows a policyholder who successfully sues their insurance company on a coverage denial claim to recoup attorney fees.
That 1893 law was “misguided,” Gregory, a Republican civil litigator from Manatee County, said, because it encouraged policyholders to file lawsuits.
By contrast, he continued, the bill seeks to establish three principles: That each party to litigation should pay its own attorney fees; that “the person who causes you harm, that’s the person who pays for your damages” and not “those with the deepest pockets,” whether a business of insurance company; and to “trust the juries.”
Fabricio, also a Republican civil attorney but from Miami-Dade County, noted that the bill does nothing to cap damages, even punitive damages. It does promote transparency as to damages suffered by requiring plaintiffs to provide evidence of the medical costs they’re actually paying, less any discounts or waivers, he said.
“We want the juries to be armed with all the information. We want the juries to be able to go back to that jury room, deliberate based on the numbers that both sides present,” Fabricio said.
The bill is a priority for Gov. Ron DeSantis, House Speaker Paul Renner, and Senate President Kathleen Passidomo and has been fast-tracked through the legislative process.
SB 236, the companion bill filed by Sen. Travis Hutson, has cleared all of its committees of reference and could be considered by the full Senate as soon as Wednesday.
Business interests were quick to issue statements lauding Renner and the House for passing the legislation.
“With the House’s passage today of legislation that will significantly transform our state’s legal system, Speaker Paul Renner has taken a stand in support of Florida’s businesses and consumers and put unscrupulous billboard lawyers on notice,” AIF President and CEO Brewster Bevis said in a prepared statement.
Bevis said the bill puts a stop to what he called “frivolous” lawsuits being filed solely for personal gain.
Democrat Mike Gottlieb, a criminal-defense lawyer from Broward County, conceded the state needs tort reform, but warned that the bill’s limits on medical payouts would discourage doctors from treating injured people on the basis of a future insurance recovery.
In addition to the near-total elimination of the one-way attorney fee statutes, the bill changes the information that juries are allowed to consider regarding past and future medical bills.
The House bill initially would have put an end to the use of letters of protection, or LOPs.
LOPs are sent by plaintiff attorneys to their clients’ health care providers. LOPs guarantee the provider payment for medical treatment from a future lawsuit settlement or verdict award. Therefore, if the patient is insured, providers don’t bill the insurers, Medicare or Medicaid.
While HB 837 doesn’t ban LOPs altogether, the bill allows juries to consider the contracted commercial reimbursement rates for the costs of care as well as Medicare and Medicaid rates when determining future medical expenses.
The bill makes clear the jury can consider 120% of the Medicare reimbursement rate or, if the service isn’t covered by Medicare, 170% of the Medicaid reimbursement rate.
Florida Justice Reform Institute President William Large said letters of protection enable plaintiff attorneys to inflate the value of past medical bills and claims the use of LOPs artificially inflates settlement amounts by as much as 400%.
The bill also allows separate court proceedings to divide payouts between policyholders and any third parties, such as auto passengers, injured in any accident. The carrier wouldn’t have to pay third parties any amount in excess of the policy limit.
But all parties, including third parties, would have to cooperate in good faith. Hillary Cassel, a Democrat from Broward County, argued that provision would allow those third parties, by refusing to cooperate with someone who harmed them, to muddle the claim.
“Good faith now would require that family that lost a family member to work in good faith with this person who hurt their family member. And if that person who’s been injured doesn’t cooperate in the manner in which the insurance company sees fit, that impacts that business’ insurance,” Cassel said.
“Is that common sense?”
In past Legislative Sessions, companies such as Publix were on the front lines of the LOP battle alongside FJRI. But for the 2023 Session, the Florida Trucking Association (FTA) has taken on a more prominent role.
“Today is a promising step in the fight against trial attorneys who have been profiting while businesses and Floridians have suffered under the cost of lawsuit abuse,” FTA President and CEO Alix Miller said in a prepared statement. “We look forward to seeing the Senate take similar action, so we can, once and for all, rebalance our judicial system to the benefit of all Floridians.”
Worth noting: There were eight House members who weren’t included in the final House vote. And while the official vote remains unchanged, three of the eight members — Reps. Mike Beltran, Joe Casello, and Chip LaMarca — voted later.
Beltran, a Republican from Valrico, and Cassello, a Democrat from Boynton Beach, cast “no” votes while LaMarca, a Republican from Lighthouse Point, cast a “yes” vote.
Meanwhile Reps. Jervonte Edmonds, Dianne Hart, Lauren Melo and Allison Tant did not vote.
There is no requirement for insurance companies to reduce rates as a result of the substantive changes. And that is one reason why the legislation has been criticized by trial attorneys and their clients who say it goes too far and will result in a windfall for insurance companies.
Specifically, they note that the bill changes Florida’s bad faith statutes so that insurance companies cannot be sued for bad faith if, prior to a complaint being filed or within 90 days of being notified of the complaint, they tendered the lesser of the policy limits or the amount demanded by the claimant.
Additionally, if there are multiple claimants in a single bad faith action, the bill allows the insurer at the outset to pay the total amount of the policy limits through an interpleader action. That limits the insurer’s bad faith liability and makes the claimants compete against each other for a share of the money.
NFIB Executive Director Bill Herrle said Friday that the small business owners his association represents have “clamored for” the changes.
The bill “won’t stop anyone from going to court. If you’ve been hurt, you have a constitutional right to seek redress, but HB 837 brings the scales of justice back into balance after being weighted in favor of plaintiffs’ attorneys for so many years,” Herrle said.
He added that, unlike big corporations, small businesses don’t have legal departments to defend themselves against.
“The cost of defending itself against just one nuisance lawsuit can break a small business, even if the case is eventually thrown out of court,” he said.
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Material from The Florida Phoenix was used in this post.
8 comments
Tom D'Ambrosio
March 18, 2023 at 7:41 pm
(I created a Google News Alert to notify me every time “Medial Tort Reform” comes up.)
MTR has been an absolute disaster everywhere it has been tried, yet Republicans continue to push this idiocy over & over again (and we all know the definition of insanity.)
My own story? My late mother was misdiagnosed as having “Stage-3” cancer. Her doctor basically ignored her during 6 weeks of chemo. She ended up in the hospital with pneumonia (and severely dehydrated after weeks of uncontrolled diarrhea.)
On her 3rd day in the hospital, the medication they gave her “to cough up the phlegm” resulted in a collapsed lung. 5 days after that, a cardiac arrest. Reviving her was hampered by the collapsed lung, leaving her a vegetable.
When I tried to sue, Texas’ Medical Tort Reform made it impossible to sue. No lawyer would take the case b/c hospitals will gladly spend $1million to avoid paying a $250K max judgement to avoid setting a precedent.
When she finally died 10 months later, I tried to sue for wrongful death, but the same cap that stopped every lawyer cold was still in play.
“Medical Tort Reform” ensures THE EXACT OPPOSITE of what it claims to prevent, ensuring only the simplest most frivolous cases are ever prosecuted. For the rest of us, justice is denied and bad doctors/hospital go unpunished, continuing to treat unsuspecting patients.
Mike
March 18, 2023 at 8:47 pm
This is not Tort Reform, this is a disguised bailout for insurance companies.
JP
March 19, 2023 at 10:47 pm
They keep saying there are so many “frivolous lawsuits” over and over to try to get public opinion on their side. No one mentions that there is ALREADY a statute on the books to handle “frivolous litigation. ” It allows for insurance companies or anyone to file a complaint against a plaintiffs attorney and ask them to dismiss. If they don’t dismiss, the defendant can file a motion for sanctions. This legislation isn’t needed at all. It’s an egregious abuse of legislation geared towards supporting insurance companies so they can in turn donate money to their next campaign.
Scott Watkins
March 20, 2023 at 1:38 pm
HB 837, if signed into law, will negatively affect Florida consumers, medical providers, and plaintiff attorneys. Yes, there is a problem within the system and tort reform is needed, however this ONLY benefits the big insurance companies who already take massive profits, while doing anything and everything they can to avoid paying up on their responsibilities.
Jared
March 21, 2023 at 12:13 am
This is a draconian wish list for insurance companies. Good luck suing a billion dollar insurance company for denying YOUR claim without a lawyer. Floridians are being screwed. Record profits isn’t enough for these insurers. When will people realize insurers don’t like paying claims and they always cry fraud to justify higher premiums and denying claims. Wake up! Think! You are screwed. Don’t believe me? Ask a lawyer.
lawyer who has tried to be the good guy.
March 21, 2023 at 1:06 pm
I have been a personal injury lawyer in florida for 38 years. I have been privileged to represent injured Floridians against Defendants who carelessly caused debilitating injuries ruining the lives of those they hurt. The insurance companies always scream fraud or collusion with doctors or attorney’s just making a fee for themselves. Yet they seem to short on any specific facts of any specific cases. In every case , first the insurance company tries to say the accident was not caused by their insured. In one case I had , an older man was driving the wrong way on a one way street in downtown tampa. The insurance adjuster argued that my client was young , should have seen the older man come straight for her an she should have swerved to avoid the head on collision. Therefore , my client was 25% at fault for causing the accident. We had to go to a jury on that case.
When the Insurer can not say they were somehow not at fault , then they always claim that the claimant is not really injured. That they had a small temporary herniated disc in their spine and that it could not possible be causing and ongoing pain or problems. In the meantime , my client can no longer sleep, she can no longer work the 55 hour work weeks she did to take are of who two disable minor children, she drops items such as pots , forks spoons, her phone at work. The insurance companies NEVER acknowledge that the injured person is have any continuing problems. The insurance companies hire their dependable orthopedic or neurosurgeon doctor who EVERY examination states that the patient may have had a temporary sprain / strain injury that would have completely healed in 90 days. The insurance doctors can not name a single case where they examined a patient with a spinal injury case for the insurance company, that the injured person had any ongoing problems from the accident. Oh if they can not feel their numb leg or arm , that must be from a preexisting condition. Does this new law deal with those phoney insurance doctors with the best of credential. Does it deal with the literally millions of dollars one particular radiologist has made annually for testifying that by looking at mri’s he can say that there is no injury to the patient he has never met or examined. Does the new law limit the insurance doctors charging $3,000 to $4,000 to examine the patient for less than 30 minutes to give the same form report to the insurance companies that they had an initial temporary injury but needs no more treatment or care so that the insurance company can pay nothing over the $10,000 pip car insurance. That very doctor doing on average 5 insurance examinations per day a few times a week. That adds up to $45,000 for 15 exams taking him maybe 7 or 8 hours office time in one week. and the doctor is so popular with the insurance companies that they have to book the doctor 5 months in advance he has so many insurance exams to do. Amazingly , in the hundreds of exams he does for the insurance company , not one has anything more than a temporary sprain whenever there is no broken bone that he must acknowledge. Of course the patient can no longer jog or go to theme parks with their kids, or get a decent nights sleep, or stop the headaches, neck pain , back pain .
My apologies, but I can just go on and on with specific cases . If for once insurance companies would fairly and honestly address peoples injury claims, THAT would really end litigation. During Covid 19 when the courthouse was closed for over a year, the insurance companies knew there were no trials possible. What did they all do? I bet you can guess. They offered 2 or 3 thousand dollars to injured people who missed weeks of work and had ongoing medical care hoping they were desperate enough to take any pittance to try and help pay their bills, on cases that were easily worth 25,000 , 50,000. The insurance companies had no shame. No one knew when the courthouse would open back up and they screwed people to the wall. The insurance company could wait. Now they want to make bad faith disappear. That is the only law that they worry about. They can be made to pay over policy limits if they fail to settle when they clearly could and should have settled for the policy limits , get their insured released and end the case. But no, they want to keep the insurance payouts for themselves. How about that insurance adjuster $100,000 salary bonus at the end of the year if the adjusters total paid out settlements for the fiscal year comes in under the Dollar figure that the supervisors set for the total amounts to pay on claims for the year. Heck they do not even know what cases they will get in the door , yet the insurance bosses set those goals for those adjusters to keep those settlement payouts low so the adjuster can get that end of the year bonus. Regardless of the wife whos husband can no longer work to support the family. Yet the poor downtrodden insurance companies must get this tort reform passed so that the citizens of florida wont have their insurance premiums skyrocket from all the phony claims. Oh but of course there is zero assurances that the insurance companies will keep down their premiums after they get the tort reform. That just was not included as part of the tort reform. Nor anything about they same couple of doctors who are of the opinion that there can be no ongoing permanant issues if there are no broken bones or lost limbs or eyes missing. Thank you Florida legislature for making me most grateful that I am retiring this year.
Curtis
March 22, 2023 at 6:39 pm
Mr. “Lawyer who has tried to be the good guy, ha! You want your story to be credible, but the fact that you won’t even identify your name, real or fake, clearly erodes your credibility. I hope people really see who they are dealing with here. I’ve been in the claims profession for over 27 years. I have NEVER witnessed a “bonus” to any adjuster. I have never witnessed supervisors setting total annual payment goals; it is not possible for this to be done on such a granular level. In fact, not sure if you know how insurance companies work, but often over the course of what you are calling a “fiscal” year (it is actually a policy period), it is not uncommon for insurance companies to pay out more than the premium dollars they collect. However, since those premium dollars are invested, an insurance company can still break even after paying up to 107% of premium dollars over the course of the policy year. Again, what you have speculated in the “bonus” scheme is just false. What is true, and every PI attorney in Florida does this, following the model of Morgan and Morgan (or at least they perfected it), is to wait for a commercial policy to be involved because of the extremely higher limits over that of the minimum limit personal auto policy, and then try to find a way to get the allegedly injured claimant to have unwarranted surgery under a LOP at HIGHLY inflated medical fees. In the end, when the settlement or award is given, the way the money is distributed (50% to the attorney if the case is tried, as per the contracted rate), you would think that the attorney was the victim. The attorney takes home more than the husband that can no longer work to support the family, or the person with broken bones, lost limbs or missing eyes. I have handled tens of thousands of injury claims, and only a couple dozen have involved true catastrophic injuries you have described. But of the 100K claims I have handled, easily 30K fall in the category where the attorney gets a willing participant to have an unwarranted treatment, often surgery, resulting in a bigger award/settlement and leaves the claimant with a disability they have to live with for the rest of their lives. We all should be grateful you are retiring this year. Oh, and by the way, since there are so many insurance companies vying for market share, the market will soften and prices will come down. All you need is one carrier to cut their premiums to gain market share knowing they will make less profit on each policy, but have increased policies written, and hence they maintain their profitability.
Diane Tait
March 22, 2023 at 9:05 pm
Interesting. If you have used an attorney to sue an insurance company how much did you get? How much did the attorney get? I see it all the time, homeowner gets a new roof, attorney gets $25K. Injured in a car accident, you get $5k, attorney gets $25K. Husband hit and killed by a semi truck, you get $250K and the attorney gets $750K. So, if you have used an attorney to sue an insurance company how much did you get? You probably don’t know the answer to this question.
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