News & Events

The Governor has now signed the new Tort Reform Act into law effective today, March 24, 2023. The law significantly changes personal injury, wrongful death, attorneys’ fee claims in personal injury protection and first party property insurance claims, as well as insurer bad faith cases in this state. The key points of the bill as signed by Governor DeSantis, are as follows:

Personal Injury and Wrongful Death Liability Changes

• The statute of limitations for filing of negligence cases has changed from four (4) years to two (2) years. This change applies to causes of action accruing after the effective date of the bill.
  
  
• Florida courts will no longer apply “pure comparative fault” to negligence cases. Courts will apply “modified contributory negligence”, which means that a claimant’s recovery will be reduced by his or her pro rata share of negligence unless the claimant is determined to be greater than 50% at fault. If the claimant is determined to be more than 50% at fault, then he or she will be barred from recovering any damages in a negligence case. This change does not apply to medical malpractice cases.
  
  
• In negligent security cases against the owner, lessor, operator, or manager of commercial or real property brought by a person lawfully on the property who was injured by the criminal act of a third party, the trier of fact must consider the fault of all persons who contributed to the injury.
  
  
• In negligent security cases involving multifamily residential property, there is a presumption against liability for criminal acts committed on the property by third parties who are not employees or agents of the owner if the owner or principal operator of the property “substantially implements” certain security measures, such as security cameras, lighted parking lots, deadbolts in each unit and locks on each window and exterior door, locked gates with a key or fob access along pool areas and a peephole in each dwelling unit door where there is no window next to the door.

Changes as to Admissibility of the Reasonableness of Medical Expenses, Letters of Protection, and Referral Relationships Between Law Firms and Health Care Providers

• If a claimant is referred to a health care provider by his or her attorney, disclosure of the referral is permitted, and evidence of the referral is admissible. In addition, the financial relationship between a law firm and a medical provider, including the number of referrals, frequency, and financial benefit obtained, is relevant to the issue of the bias of a testifying medical provider.
  
  
• Evidence offered to prove the amount of damages for past medical treatment or services in a personal injury or wrongful death action is admissible as follows:
  
  
  • Evidence offered to prove the amount of damages for past medical treatment or services that have been satisfied is limited to evidence of the amount actually paid, regardless of the source of payment.
    
    
  • Evidence offered to prove the amount necessary to satisfy unpaid charges for incurred medical treatment or services if the claimant has health care coverage other than Medicare or Medicaid must include evidence of the amount which health care insurance is obligated to pay the provider to satisfy the charges for the claimant's incurred medical treatment or services, plus the claimant's share of medical expenses under the insurance contract or regulation.
    
    
  • If the claimant has health care coverage but obtains treatment under a letter of protection or does not submit charges for any provider's medical treatment or services to health care coverage, evidence of the amount the claimant’s health care insurance would pay the provider to satisfy the past unpaid medical charges, plus the claimant’s share of medical expenses pursuant to a deductible.
    
    
  • If the claimant does not have health care coverage or has coverage through Medicare or Medicaid, evidence of 120 percent of the Medicare reimbursement rate in effect on the date of the claimant's incurred medical treatment or services, or, if there is no applicable Medicare rate for a service, 170 percent of the applicable state Medicaid rate.
    
    
  • If the claimant obtains medical treatment or service under a letter of protection and the health care provider subsequently transfers the right to receive payment under the letter of protection to a third party, evidence of the amount the third party paid or agreed to pay the health care provider in exchange for the right to receive payment pursuant to the letter of protection.
    
    
  • Any evidence of reasonable amounts billed to the claimant for medically necessary treatment or medically necessary services provided to the claimant.
    
    
• Evidence offered to prove the amount of damages for any future medical treatment or services the claimant will receive shall include, but is not limited to, the following:
  
  
  • If the claimant has health care coverage other than Medicare or Medicaid, or is eligible for any such coverage, evidence of the amount for which the future charges of providers could be satisfied if submitted to such health care insurer, plus the claimant's share of medical expenses under the insurance contract or regulation.
    
    
  • If the claimant does not have health care coverage or has coverage through Medicare or Medicaid, or is eligible for such health care coverage, evidence of 120 percent of the Medicare reimbursement rate in effect at the time of trial for the medical treatment or services the claimant will receive, or, if there is no applicable Medicare rate for a service, 170 percent of the applicable state Medicaid rate.
    
    
  • Any evidence of reasonable future amounts to be billed to the claimant for medically necessary treatment or medically necessary services.
    
    
• Individual contracts between medical providers and authorized commercial insurers or authorized health maintenance organizations are not subject to discovery and are not admissible into evidence.

Changes as to Recovery of Reasonable Medical Expenses and Required Disclosures by Claimants

• The damages that may be recovered by a claimant in a personal injury or wrongful death action for the reasonable and necessary cost or value of medical care rendered 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 the following:
  
  
  • Amounts actually paid by or on behalf of the claimant.to a health care provider who rendered medical treatment or services;
    
    
  • Amounts necessary to satisfy charges for medical treatment or services that are due and owing 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.
    
    
• In a personal injury or wrongful death action, as a condition precedent to asserting any claim for medical expenses for treatment rendered under a letter of protection, the claimant must disclose:
  
  
  • A copy of the letter of protection.
    
    
  • All billings for the claimant's medical expenses, which must be itemized and, to the extent applicable, coded according to:
    
    
  • For health care providers billing at the provider level, the AMA’S Current Procedural Terminology (CPT), or the Healthcare Common Procedure Coding System (HCPCS), in effect on the date the services were rendered.
    
    
  • For providers billing at the facility level for expenses incurred in a clinical or outpatient setting, including when billing through an Ambulatory Payment Classification (APC) or Enhanced Ambulatory Patient Grouping (EAPG), the International Classification of Diseases (ICD) diagnosis code and, if applicable, the CPT, in effect on the date the services were rendered.
    
    
  • For providers billing at the facility level for expenses incurred in an inpatient setting, including when billing through a Diagnosis Related Group (DRG), the ICD diagnosis and procedure codes in effect on the date in which the claimant is discharged.
    
    
  • If the health care provider sells the accounts receivable for the claimant's medical expenses to a factoring company or other third party:
    
    
  • The name of the factoring company or other third party who purchased such accounts.
    
    
  • The dollar amount for which the factoring company or other third party purchased such accounts, including any discount provided below the invoice amount.
    
    
  • Whether the claimant, at the time medical treatment was rendered, had health care coverage and, if so, the identity of such coverage.
    
    
  • Whether the claimant was referred for treatment under a letter of protection and, if so, the identity of the person who made the referral. If the referral was made by the claimant’s attorney, disclosure of the referral is permitted and admissible. In addition, the financial relationship between a law firm and a medical provider, including the number of referrals, frequency and financial benefits obtained, is relevant and admissible on the issue of bias of a testifying medical provider.
    
    
  • Damages recoverable for medical treatment or services may not exceed an amount in excess of the admissible evidence, nor may it exceed an amount in excess of what was actually paid by or on behalf of a claimant to a medical providers who rendered the treatment, amounts necessary to satisfy the charges that are due and owing at the time of trial and have not yet been satisfied and amounts necessary to provide for any reasonable and necessary treatment the claimant will receive in the future.

Changes Regarding Declaratory Judgment Actions

• The Court may award the named or omnibus insured or beneficiary under an insurance policy attorneys’ fees in the event that the insurer totally denies coverage and this right may not be assigned. Where the insurer has offered a defense under a reservation of rights does not constitute a coverage denial and the fees awardable are limited to those incurred in the action for declaratory relief insofar as it determines coverage.

Changes Regarding Attorneys’ Fees

• Florida Statute 627.428, the attorneys’ fee statute is repealed and the provisions of the Offer of Judgment/Proposal for Settlement statute apply. Also repealed is Florida Statute 631.70, the attorneys’ fee statute applicable to FIGA.
  
  
• In cases in which attorneys’ fees are awarded pursuant to a proposal for settlement or the declaratory judgment statute, multipliers may only be awarded in rare and exceptional circumstances where there is evidence that competent counsel could not otherwise be retained.
  
  
• Attorneys’ fees are still recoverable in claims against a surety insurer sued by an owner, contractor, subcontractor, laborer or materialman.

Changes as to Insurer Bad Faith Claims in Liability Matters

• An action for bad faith involving a liability insurance claim, including any such action brought under the common law, shall not lie if the insurer tenders the lesser of the policy limits or the amount demanded by the claimant within ninety (90) days after receiving actual notice of a claim which is accompanied by sufficient evidence to support the amount of the claim.
  
  
• If an insurer does not tender the lesser of the policy limits or the amount demanded by the claimant within the 90-day period, the existence of the 90-day period and that no bad faith action could lie if the insurer tendered the lesser of policy limits or the amount demanded by the claimant is inadmissible in any action seeking to establish bad faith on the part of the insurer.
  
  
• If the insurer fails to tender within the 90-day period, any applicable statute of limitations is extended for an additional 90 days.
  
  
• In any bad faith action, whether brought Section 624.155, Florida Statutes, or is based on the common-law remedy for bad faith:

• Mere negligence alone is insufficient to constitute bad faith.

  • The insured, claimant, and representative of the insured or claimant have a duty to act in good faith in furnishing information regarding the claim, in making demands of the insurer, in setting deadlines, and in attempting to settle the claim. This duty does not create a separate cause of action.
    
    
  • In any action for bad faith against an insurer, the trier of fact may consider whether the insured, claimant, or representative of the insured or claimant did not act in good faith, in which case the trier of fact may reasonably reduce the amount of damages awarded against the insurer.
    
    
• If two or more third-party claimants have competing claims arising out of a single occurrence, which in total may exceed the available policy limits of one or more of the insured parties who may be liable to the claimants, an insurer is not liable beyond the available policy limits for failure to pay all or any portion of the available policy limits to one or more of the third-party claimants if, within 90 days:
  
  
  • The insurer files an interpleader action. If the claims of the competing third-party claimants are found to be in excess of the policy limits, claimants are entitled to a prorated share of the policy limits as determined by the trier of fact. An insurer's interpleader action does not alter or amend the insurer's obligation to defend its insured; or,
    
    
  • Pursuant to binding arbitration that has been agreed to by the insurer and the third-party claimants, the insurer makes the entire amount of the policy limits available for payment to the claimants before a qualified arbitrator agreed to by the insurer and such claimants at the expense of the insurer. The claimants are entitled to a prorated share of the policy limits as determined by the arbitrator, who must consider the comparative fault, if any, of each claimant, and the total likely outcome at trial based upon the total of the economic and noneconomic damages submitted to the arbitrator for consideration. A claimant whose claim is resolved by the arbitrator must execute and deliver a general release to the insured party whose claim is resolved by the proceeding.
    
    
• Punitive damages may not shall be awarded under section 624.155 unless the acts giving rise to the violation occur with such frequency as to indicate a general business practice and these acts are:
  
  
  • Willful, wanton, and malicious;
    
    
  • In reckless disregard for the rights of any insured; or,
    
    
  • In reckless disregard for the rights of a beneficiary under a life insurance contract.
• Changes to the statute of limitation applicable to negligence cases apply to causes of action accruing after the effective date of the Act. Any statutory changes that may impair an existing right under an insurance contract will only apply to insurance policies issued or renewed after the effective date. Finally, as to all other portions of the Act, they apply to causes of action filed after the effective date.

If you have any questions regarding these significant changes to Florida law, please contact us at any time.