On March 24, 2023, Florida Governor Ron DeSantis signed into law HB 837, implementing sweeping changes to civil lawsuits filed in Florida on or after that day.  At this time, it is unclear how these changes will be implemented at the trial court level or how the new laws will impact litigation, trials, and verdicts. For example, the newly-enacted comparative fault statute, F.S. § 768.81(6), barring a plaintiff from recovering when more than 50% of fault is allocated to him or her, is silent on whether a jury is to be advised of the bar and the judiciary has not provided guidance on if such an instruction should be provided. 

For reference, the following is a summary of the significant changes:

Statute of Limitations – Fla. Stat. § 95.11 amended.

  • Reduces the statute of limitations for negligence claims that accrued after March 24, 2023 from 4 years to 2 years.
  • However, that 2-year SOL provision does not apply to service members on active duty.

Comparative Fault – Fla. Stat. § 768.81(2) amended and 768.81(6) added.

  • A plaintiff found to be over 50% at fault for their injuries is barred from recovery.
    • However, claims for medical negligence do not apply.

Multifamily Residential Property Safety/Security (Defense to Negligent Security) – Fla. Stat. § 768.0706 created.

  • Defines properties under this statute as a “residential building or groups of residential buildings such as apartments, townhouses, or condominiums consisting of at least five dwellings.”
  • The statute provides that a property owners may avoid liability for third party criminal acts on their property if they implement the following:
    • Installation of a security camera system at points of entry and exit, which records footage and maintains it as retrievable for at least 30 days;
    • Lighted parking lot at an intensity of at least an average of 1.8 foot-candles per square foot at 18 inches above the surface from dusk to dawn;
    • Lighting in walkways, laundry rooms, common areas, and porches that is illuminated from dusk to dawn;
    • At least a 1-inch deadbolt in each dwelling unit door;
    • A locking device on each window, exterior sliding door, and any other doors not used for community purposes;
    • Locked gates with key or fob access along pool fence areas; and,
    • A peephole on each dwelling unit door.
  • Property owners under the statute must obtain a crime prevention assessment (not more than 3 years old) performed by a law enforcement agency or a Florida Crime Prevention Through Environmental Design Practitioner designated by the Florida Crime Prevention Training Institute of the Department of Legal Affairs.
  • Property owners must also provide current employees with crime deterrence and safety training by January 1, 2025, with such training occurring within 60 days after an employee’s hire date.

Whereas F.S. § 768.0706 purports to outline presumptions against liability for multifamily residential properties if the criteria set forth in Subsection (2) are met, it would not surprise us to see (1) test cases aimed at challenging the constitutionality of the listed criteria based on vagueness of the definitions, or (2) attempts by plaintiff attorneys to use the 7 security measures as a benchmark for ‘standard of care.’

Bad Faith – Fla. Stat. § 624.155 amended to add subparts (f)(4), (f)(5), and (f)(6).

  • Subsection (f)(4) states that an insurer could avoid a bad faith claim by tendering the lesser of the policy limits or the amount demanded by the claimant either “(a) before a complaint asserting such claim, accompanied by sufficient evidence . . . is filed; or (b) within 90 days after service of such complaint upon the insurer.”
  • Subsection (f)(5) states that:
    • “(a) mere negligence alone is insufficient to constitute bad faith;”
    • (b)1 insureds, claimants, and representations of the insured or claimant have a duty to act in good; and
    • (b)2 in actions for bad faith against insurers, the fact finder may consider whether the insured, claimant, or their representative did not act in good faith, in which case the fact finder may reasonably reduce the amount of damages awarded against the insurer.”
      • Notably, the duty created under subsection (5)(b)1 does not create a separate cause of action but may only be considered pursuant to subparagraph 2.
  • Subsection (f)(6) states that insurers may be able to limit their liability exposure in cases where two or more third-party claimants have competing claims arising out of a single occurrence. In those situations, an insurer is not liable beyond the policy limits for failure to pay if, within 90 days of receiving notice of the competing claims, the insurer files an interpleader action or arbitrates the competing claims.

Disclosure of Letters of Protection – Fla. Stat. § 768.0427(3) created.

  • Prior to asserting a claim for medical treatment/services rendered under a letter of protection, the plaintiff must disclose the letter of protection and all billings for plaintiff’s itemized medical expenses.
  • If the health care provider in such an arrangement sells the accounts receivable to a third party, the plaintiff must also disclose the identity of that third party, the dollar amount the third party paid, and any discount provided below the invoiced amount.
  • Plaintiff must also disclose whether plaintiff had healthcare coverage at the time of treatment/services, and the identity of such coverage.
  • If a plaintiff is referred for treatment under a letter of protection, plaintiff must also disclose the identity of the person who made the referral. If referred by their attorney, the plaintiff must also disclose the financial relationship between a law firm and a medical provider, including the number and frequency of referrals, and financial benefit.
    • The statute specifically states that this information “is relevant to the issue of the bias of a testifying medical provider.”

Collateral Source Rule and Medical Expenses – Fla. Stat. § 768.0427 created.

  • Limits evidence of past medical expenses to amounts actually paid (not billed).
    • This amount may not include any amount in excess of the evidence of medical treatment and services expenses admitted, and also may not exceed the sum of:
      • Amounts actually paid to a provider who rendered medical treatment;
      • Amounts necessary to satisfy medical treatment/services charges that are due but at the time of trial are not yet satisfied; and
      • Amounts necessary to provide for any reasonable and necessary medical treatment or services the claimant will receive in the future.
  • If a plaintiff has healthcare insurance coverage other than Medicare/Medicaid, evidence of the actual amount the healthcare insurer paid plus the amount that plaintiff is obligated to pay is admissible.
  • If a plaintiff enters into a letter of protection, evidence of the amount healthcare insurance coverage would have paid plus the plaintiff’s co-pay or deductible obligation is admissible.
  • If a plaintiff does not have healthcare insurance coverage or is under Medicare/Medicaid, evidence of 120% of the Medicare reimbursement rate in effect on the date of medical treatment is admissible. If there is no applicable Medicare rate for a service, 170% of the applicable state Medicaid rate is admissible.
  • If a plaintiff receives medical treatment/services under a letter of protection and the right to receive payment is transferred to a third party, the amount the third party paid or agreed to pay in exchange for the right to receive payment is admissible.
  • In regard to future medical expenses, admissible evidence is the amount for which the future charges of providers could be satisfied if submitted to health care insurance coverage plus plaintiff’s share of costs, or 120% of the Medicare reimbursement rate in cases where the claimant does not have health care coverage.

Attorney’s Fees – Fla. Stat. § 57.104 amended to add subpart (2).

  • Subsection 2 states that when attorney fees are determined or awarded by the court, there is a strong presumption that a “lodestar fee” is “sufficient and reasonable.” (A lodestar fee is calculated by multiplying the number of attorney hours reasonably spent by the reasonable hourly rate.)
  • While it states the presumption is rebuttable, the amendment makes clear that a multiplier may only be awarded in “a rare and exceptional circumstance.”

Plaintiff’s Prevailing Party Attorney’s Fees Against Insurers Statutes Repealed

The following statutes related to plaintiff’s receiving attorneys’ fees for prevailing against insurers were repealed.

  • Fla. Stat. § 626.9373 (surplus lines insurers);
  • Fla. Stat. § 627.428 (insurers generally);
  • Fla. Stat. § 631.70 (insolvent insurers); and,
  • Fla. Stat. § 631.926 (worker’s compensation insurers).