FLORIDA Primerus

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Compiled and Edited by:

Rachel R. Krause
Angela C. Mason
Ogden & Sullivan, P.A.
113 South Armenia Avenue
Tampa, Florida 33609
Contact: Tim V. Sullivan, Esq.
Phone: (813) 223-5111
Fax: (813) 229-2336
                          Table of Contents

                            TORT REFORM

         A Compendium of Tort Reform Enactments in All 50 States

Table of Contents

  1.   Introduction - Florida
  2.   Joint and Several Liability
  3.   Damages
  4.   Medical Malpractice Reform
  5.   Products Liability Reform
  6.   Motor Vehicle Liability
  7.   Premises Liability
  8.   Attorneys Fees
  9.   Miscellaneous
                                   Tort Reform In Florida

1.     Introduction

        In the past twenty years, the Florida Legislature has made various attempts to
reform the tort system in Florida; primarily by creating special statutory structures for
traditional common law tort causes of action. The Legislature has also limited the type
and amount of damages available to successful claimants and created or expanded
existing immunities to liability. This article discusses these tort reforms and the laws
enacted to effectuate them.

2.     Joint and Several Liability

       Beginning in 1986, the Florida Legislature sought to change the doctrine of joint
and several liability. These efforts are illustrated by the enactment of, and later
amendments to, Section 768.81, Florida Statutes, concerning comparative fault.
Originally, joint and several liability could be imposed only on defendants whose
negligence was found to equal or exceed the negligence of the claimant. Additionally,
the doctrine applied only to economic damages awards.

       In 1999, the Legislature adopted a tiered system, which eliminated joint and
several liability for damages under $25,000. Under this revised statutory scheme,
recovery under the joint and several liability theory depended on whether a Plaintiff was
found comparatively at fault. Joint and several liability attached only to defendants
whose relative fault exceeded certain enumerated levels and applied only to economic
damages above a certain threshold.

       Section 768.81 also provides for the assessment of fault against all potentially
negligent entities including non-parties. A defendant must affirmatively plead the fault
of a nonparty either in a motion or in the initial responsive pleading and identify the
nonparty by name or description.

        In 2006, the Florida Legislature abolished joint and several liability altogether.
Florida’s courts are now instructed to “enter judgment against each party liable on the
basis of each party's percentage of fault and not on the basis of the doctrine of joint and
several liability.” § 768.81(3), Fla. Stat. (2006). The statute continues to provide for the
apportionment of fault against nonparties.

3.     Damages

       In 1986, the Florida Legislature began to impose limits on the recovery of
punitive damages. Current statutes establish proof requirements at the pleadings stage,
define the nature of conduct justifying such damages, and limit both the amount of
damages recoverable and the number of times such damages may be assessed against a

       a.      Punitive Damages
       In a civil action, a claim for punitive damages shall only be permitted after the
claimant has shown by proffer or evidence of record that a reasonable basis exists for
recovery of such damages. § 768.72, Fla. Stat.

               i.      Burden of Proof

        Florida Statute § 768.725 requires the plaintiff to prove entitlement to an award of
punitive damages by clear and convincing evidence. The burden changes with respect to
the amount of damages awardable, which amount must be proven by the greater weight
of the evidence.

               ii.     Type of Misconduct Required

        Punitive damages may not be awarded against a defendant, if the plaintiff was
under the influence of any alcoholic beverage or drug, at the time of the act or omission
giving rise to the punitive damages claim, to the extent that the Plaintiff’s normal
faculties were impaired or Plaintiff’s blood or breath alcohol level equals or exceed 0.08
percent. § 768.736, Fla. Stat.

        Employers may also be immunized from liability for punitive damages based on
acts of an employee unless the employer actively participated in or approved the conduct
or engaged in grossly negligent conduct that contributed to the loss. "Gross negligence"
generally refers to the "conscious disregard or indifference to the life, safety or rights" of
the injured.

               iii.    Limitations on Damages

        Under Florida Statute § 768.73, no more than one punitive damage award can
arise from the same act or single course of conduct unless the court determines by clear
and convincing evidence that prior awards arising from the same conduct (including both
state and federal awards) were insufficient to punish the defendant. In such cases,
Defendant is entitled to a set-off for prior awards. The court may consider whether or not
the defendant has ceased the egregious conduct. Attorney fees are payable based on the
final judgment for punitive damages.

       Section 768.73 provides a tiered cap system for punitive damages:

               ▪ Punitive damages are generally limited to the greater of $500,000 or 3
                 times compensatory damages;

               ▪ If defendant's wrongful conduct was motivated solely by unreasonable
                 financial gain and defendant had actual knowledge of the dangerous
                 nature of the conduct, then punitive damages are limited to the greater of
                 $2,000,000       or       4      times     compensatory         damages;

               ▪ There is no limit on the amount of punitive damages when, at the time of
                 injury, the defendant had specific intent to harm the claimant.
       In any civil action based upon child abuse, abuse of the elderly, or abuse of the
developmentally disabled, punitive damages may not exceed three times the amount of
compensatory damages awarded to the claimant. § 768.735, Fla. Stat.

       b.      Non-economic Damages

       The Tort Reform and Insurance Act of 1986 was enacted in response to legislative
perceptions of an insurance crisis in Florida. The second part of the Act capped non-
economic damages awards at $450,000. The Florida Supreme Court ruled this aspect of
the Act unconstitutional in Smith v. Dept. of Ins., et al., 507 So.2d 1080 (Fla. 1987).

       Currently there is no cap on the amount of non-economic damages that can be
awarded. The Legislature previously enacted § 627.737, which requires a showing of
permanent injury in motor vehicle cases in order to recover non-economic damages.
However, that statute will be repealed effective October 1, 2007, because of the
Legislature’s failure to reenact the measure during the 2006 Legislative session.

4.     Medical Malpractice Reform

       a.      General

               i.      Immunity provisions

         In an effort to confront the explosion of medical malpractice lawsuits, the Florida
Legislature has taken measures to bestow upon certain medical providers immunity from
suit for medical negligence.

        Florida’s “Good Samaritan Act,” § 768.13. Fla. Stat., was enacted to provide
immunity from suit to individuals who render emergency aid outside a hospital. In 1988,
the statute was amended to specifically provide for immunity to practitioners within a
hospital or trauma center while providing emergency care. Practitioners may still be held
liable if damages arise from their reckless disregard for the patient, which refers to
“conduct that a health care provider rendering emergency medical services knew or
should have known, at the time such services were rendered, created an unreasonable risk
of injury so as to affect life or health of another, and such risk was substantially greater
than that which is necessary to make conduct negligent.” § 768.13(2)(b)(3), Fla. Stat.

        In 2004, this immunity was expanded to include practitioners who respond to a
medical emergency in a hospital involving a patient with whom the practitioner has no
prior treatment relationship. Immunity does not apply if the “care or treatment is proven
to amount to conduct that is willful and wanton and would likely result in injury so as to
affect the life or health of another.” § 768.13(2)(c), Fla. Stat.

        Earlier, in 1992, healthcare providers were given statutory immunity from suit for
the treatment of women or infants arising as a result of care by a midwife, absent a
showing of reckless disregard for the patient. § 467.017(2), Fla. Stat. Further, in an
effort to correct a perceived lack of access to medical care by indigent patients, the
Legislature declared that any health care practitioner who contracts with the state to
provide free medical services has sovereign immunity. § 766.1115, Fla. Stat.

               ii.     Procedural requirements

       Florida Statutes Chapter 766 governs the prosecution and defense of medical
malpractice cases. Since 1975, the Legislature has imposed substantial procedural
requirements on a party alleging medical negligence.

         Section 766.203, enacted in 1988, requires a claimant to conduct a presuit
investigation as a prerequisite to a lawsuit. This investigation must be corroborated by a
verified written medical expert opinion that the healthcare provider was negligent and
such negligence caused injury to the claimant. When the required presuit investigation is
completed, a claimant must notify each potential defendant of his or her intent to initiate
litigation for medical negligence. § 766.106(2), Fla. Stat. Each potential defendant then
has 90 days to investigate and provide a written response either rejecting the claim,
making a settlement offer, or offering to arbitrate the issue of damages only.
§ 766.106(3), Fla. Stat. The statute further provides for informal presuit discovery
including unsworn statements, physical examinations, written questions, and production
of documents. § 766.106(6), Fla. Stat. Statements, documents, reports or other work
product generated in the presuit process are not discoverable or admissible in any civil
action for any purpose by the opposing party. § 766.106(5), Fla. Stat.

        Service of the required presuit notice tolls the 2-year statute of limitations for 90
days to give potential defendants time to investigate the allegations of medical
negligence. If a lawsuit is later filed, the filing attorney must certify that a reasonable
investigation was made and that the attorney believed in good faith that negligence has

        If a Court finds that either party failed to comply with the presuit investigation
procedures, the person failing to comply may be held personally liable for the opposing
party’s attorneys’ fees and costs. Attorneys and physicians are subject to discipline if
there are no good faith grounds underlying the negligence claim. § 766.206, Fla. Stat.

         In 1976, the common law standard for medical negligence was codified as “a
breach of the prevailing professional standard of care,” referring to that “level of care,
skill, and treatment which, in light of all relevant surrounding circumstances, is
recognized as acceptable and appropriate by reasonably prudent similar health care
providers.” § 766.102(1), Fla. Stat. The Legislature also established the minimum
qualifications an expert must hold and narrowly defined the types of experts permitted to
testify in a medical negligence case. §§ 766.102(5) and 766.102(9), Fla. Stat.

         Mediation is now mandatory in all medical negligence actions, unless the parties
have agreed to arbitration. A settlement conference is also mandatory three weeks before
trial. § 766.108, Fla. Stat.

       The statute of limitations for medical malpractice actions is 2 years.
§ 95.11(4)(b), Fla. Stat.
               iii.    Damages

        In 2003, the Florida Legislature enacted caps on non-economic damages in
medical negligence cases. Section 766.118 limits non-economic damages to $500,000
per practitioner and $750,000 per health care facility, regardless of the number of
claimants or the number of practitioners or facilities sued. If negligence resulted in a
permanent vegetative state or death, non-economic damages may not exceed $1 million
from all practitioners, or $1.5 million from all facilities. Other claimants may recover up
to $1 million or $1.5 million if they suffered a catastrophic injury other than death or
persistent vegetative state, upon a showing that the non-economic damages are
particularly severe and manifest injustice would occur unless additional damages are

               iv.     Attorneys’ Fees

        In 2004, Florida voters approved an amendment to the Florida Constitution
limiting recovery attorneys’ fees in medical malpractice cases. Article I, Section 26,
known as the Claimant's Right to Fair Compensation, provides that a claimant must
receive at least 70% of any award up to $250,000, or less, exclusive of reasonable and
customary costs. A claimant is entitled to receive 90% of any award greater than
$250,000. An “award” includes a judgment or settlement, and the fee limitation applies
regardless of the number of defendants.

       In response to this amendment, the Florida Supreme Court has approved an
amendment to the Florida Rules of Professional Conduct governing contingent attorneys’
fees. The Court approved a form for use by attorneys that would allow a claimant to
knowingly and voluntarily waive their rights under Article 1, Section 26. In re:
Amendment to the Rules Regulating the Florida Bar—Rule 4-1.5(f)(4)(B) of the Rules of
Profession Conduct, 939 So.2d 1032 (Fla. 2006).

               v.      Discovery issues

        Also in 2004, voters approved an amendment to the Florida Constitution
providing patients access to incident reports and other records previously protected by
peer review statutes. Article X, Section 25, entitled Patients’ Right to Know about
Adverse Medical Incidents provides that patients have a right to access any records made
or received in the course of business by the healthcare provider relating to any adverse
medical incident. The amendment defines “adverse medical incident” to include
negligence, intentional misconduct, or any other act that caused or could have caused
injury or death to a patient. In disclosing such records, the identity of the patient is to be

       b.      Nursing Home Litigation

       In 1980, in response to investigations into the treatment of Florida’s substantial
elderly population in nursing homes, the Florida Legislature created a list of rights
belonging to all nursing home residents. § 400.02, Fla. Stat. The Legislature also
established a statutory cause of action to enforce those rights. § 400.023, Fla. Stat. The
result of this statute, intended or not, was to create a separate statutory scheme for
medical negligence issues relating to care and treatment received in nursing homes and
assisted living facilities. Specifically, section 400.022(1)(l) guarantees a nursing home
resident the right to “receive adequate and appropriate health care and protective and
support services.” While violation of one of the guaranteed rights is evidence of
negligence, it is negligence per se. § 400.023(2), Fla. Stat.

        In 2001, the Legislature enacted a series of amendments to change the procedures
and limit damages in these types of cases. Section 400.0233 requires that prior to filing a
claim for violation of a resident’s rights or a claim for negligence, the claimant must
notify all prospective defendants of the alleged violation or negligence. No suit may be
filed for a period of 75 days after notice is mailed. During this time, the facility is
required to conduct an investigation and respond by either rejecting the claim or making a
settlement offer. If a settlement offer is made, the resident has 15 days to respond.
Similar to pre-suit requirements in medical negligence cases, the statute of limitations is
tolled during the investigation, which can be extended by agreement of the parties. This
section also provides for informal discovery and mandatory mediation, similar to medical
negligence cases.

        Under the statutory scheme enacted in 1980, Florida courts had determined that
when a claimant died as a result of nursing home negligence, the plaintiff was not limited
to wrongful death damages, but could continue to seek damages under Chapter 400. The
Legislature amended section 400.023 to require a personal representative to elect either
survivor damages or wrongful death damages. The statute of limitations was shortened in
2001 from four years to two years and a statute of repose was established at four years
from the date of the incident leading to the claim. The Legislature also established that
the provisions of Chapter 400 are the “exclusive remedy for a cause of action for
recovery of damages for the personal injury or death of a nursing home resident arising
out of negligence or a violation of rights specified in § 400.022.” § 400.023(1), Fla. Stat.

         Section 400.0237 allows for a claimant to seek punitive damages in nursing home
litigation after a “reasonable showing” that a reasonable basis exists for punitive
damages. Punitive damages may only be recovered if, based on clear and convincing
evidence, the defendant is “personally guilty of intentional misconduct or gross
negligence.” § 400.0237(2), Fla. Stat. The statutory scheme includes a tiered system of
caps on punitive damages that limits punitive damages to the greater of three times
compensatory damages to each claimant or $1 million. If the defendant's wrongful
conduct was motivated solely by unreasonable financial gain and the defendant had
actual knowledge of the unreasonably dangerous nature of the conduct and the high
likelihood of injury, punitive damages are limited to the greater of $2 million or four
times compensatory damages to each claimant. If, at the time of injury the defendant is
show to have had specific intent to harm the claimant, there is no limit on punitive

       The statutory scheme prior to 2001 provided for the recovery of attorneys’ fees.
In 2001, the Legislature amended the statute to limit the recovery of attorneys’ fees to
$25,000 and to provide that fees “shall be awarded solely for the injunctive or
administrative relief and not for any claim or action for damages.” § 400.023(1), Fla.

       c.      NICA

        In 1988, the Florida Legislature enacted §§ 766.301, et seq., the Florida Birth
Related Neurological Injury Compensation Plan (NICA), which created a statutory
scheme of compensation without fault for birth-related neurological injuries that render a
full-term infant permanently and substantially impaired. The statute provides for the
payment of all medical expenses and a one-time payment to the parents of $100,000,
based upon findings made by administrative law judges, who hear all NICA cases. If
parents are put on notice that a health care provider participates in NICA, it is the
exclusive remedy for these types of injuries, unless the provider committed bad faith or
willful disregard.

        In 1993, the statute of limitations for a NICA claim was reduced from seven years
to five years.

5.     Products Liability Reform

       a.      General

        In 1999, several statutes were enacted or amended to specifically address issues
relating to causes of actions for products liability.

         Florida Statute § 95.031(2)(b) revises the Statute of Limitations for product
liability causes of action. The section essentially created a products liability statute of
repose running 12 years from the date of sale, unless the manufacturer has represented
that the product has an expected useful life of less than 10 years. In that case, the repose
period runs to the end of the expected useful life. Exceptions are provided for escalators,
elevators, and improvements to real property, as well as a 20-year repose period for
vessels. The statute provides that there is no repose period for a product if exposure to the
product occurs within 12 years of sale, but the injury does not manifest itself until after
the repose period.

       Florida evidence rule, section 90.407, expands the prohibition against the use of
evidence of subsequent remedial measures to prove negligence. Florida Statute
§ 768.1257 requires the finder of fact to consider the state of the art of scientific and
technical knowledge at the time of manufacture, not at the time of injury. Section
768.1256 provides for a rebuttable presumption of no liability based upon compliance
with government rules at time of manufacture, as well as a rebuttable presumption that a
product is defective if it is not in compliance with government rules at time of

       b. Asbestos Claims

        In 2005, the Asbestos and Silica Compensation Fairness Act was enacted. This
Act, set out in Florida Statute §§ 774.201 through 209, imposed a series of requirements
on individuals who wish to file an asbestos or silica claim. It also creates a threshold that
an individual must meet in order to file suit. The Act also limits the liability of successor
corporations that have assumed asbestos-related liabilities as the result of a merger or
consolidation that occurred prior to January 1, 1972.

6.      Motor Vehicle Liability

        a.      Law Enforcement Immunity

        In 2006, Florida Statute § 768.28 was amended to provide that a law enforcement
agency is not liable for injury, death, or property damage caused by a person fleeing a
law enforcement officer under certain circumstances. Specifically, sovereign immunity
attaches if (1) the pursuit is conducted in a manner that does not involve conduct by the
officer which is so reckless or wanting in care as to constitute disregard of human life,
human rights, safety, or the property of another; (2) at the time the law enforcement
officer initiates the pursuit, the officer reasonably believes that the person fleeing has
committed a forcible felony; and (3) the pursuit is conducted by the officer pursuant to a
written policy governing high-speed pursuit. This immunity applies to all causes of
action accruing on or after June 20, 2006.

        b.      Streetlight Immunity

         Florida Statute § 768.1382 was enacted in 2005 and provides certain immunity to
providers of streetlights. Such providers have immunity from lawsuits alleging negligent
streetlight maintenance if they repair inoperative streetlights within certain time periods
and provide a process for customers to report outages. In most cases, a streetlight
provider must repair inoperative streetlights within 60 days of actual notice of an outage.
More complex repairs must be made within 180 days. Following a state of emergency,
providers have 365 days to make a repair.

        c.      Rental Car Liability

         Also in 2005, the financial responsibility statute (§ 324.021, Fla. Stat.) was
modified to expand the definition of the term "rental company" to allow certain
companies to qualify for the vicarious liability caps. The definition was expanded to
include: (1) A related rental or leasing company that is a subsidiary of the same parent
company as that of the renting or leasing company that rented or leased the vehicle; and
(2) The holder of a motor vehicle title or an equity interest in a motor vehicle title if the
title or equity interest is held under or to facilitate an asset-backed securitization of a fleet
of motor vehicles used solely in the business of renting or leasing motor vehicles to the
general public and under the dominion and control of a rental company in the operation
of such rental company's business. (Note: The Federal Transportation Act of 2005
completely abolished all vicarious liability for rental car companies.)

        d.      Leased Vehicle Liability

         In 1999, Florida Statute § 324.021 was modified to place limits on vicarious
liability for an owner of a leased vehicle when there is an agreement in place to lease the
motor vehicle for one year or longer, which requires the lessee to obtain statutorily
identified minimum levels of auto insurance. If the minimum level of insurance are met,
the owner shall not be deemed the owner of the leased vehicle for the purpose of
determining financial responsibility.

        When the vehicle is leased for less than one year, the lessor shall be deemed the
owner of the motor vehicle for the purpose of determining liability for the operation of
the vehicle or the acts of the operator only up to $100,000 per person and up to $300,000
per incident for bodily injury and up to $50,000 for property damage. If the lessee or the
operator of the motor vehicle is uninsured or has less than $500,000 combined property
damage and bodily injury liability coverage, the lessor shall be liable for up to an
additional $500,000 in economic damages arising out of the use of the motor vehicle.
The statute provides a set-off for all other available insurance or self-insurance covering
the lessee or operator. These limits do not apply to commercial vehicles carrying
hazardous materials unless at the time of lease the lessee indicates in writing that the
vehicle will not be used for such transport or the lessee has $5 million in insurance

7.     Premises Liability

        Prior to 2001, the common law of Florida in slip and fall cases involving a
transitory foreign substance required a Plaintiff to demonstrate that a premises owner had
constructive knowledge of a foreign substance. In 2001, the Florida Supreme Court
departed from this approach, and held:

       the existence of a foreign substance on the floor of a business premises
       that causes a customer to fall and be injured is not a safe condition and the
       existence of that unsafe condition creates a rebuttable presumption that the
       premises owner did not maintain the premises in a reasonably safe

       Thus, once the plaintiff establishes that he or she fell as a result of a
       transitory foreign substance, a rebuttable presumption of negligence arises.
       At that point, the burden shifts to the defendant to show by the greater
       weight of evidence that it exercised reasonable care in the maintenance of
       the premises under the circumstances.

Owens v. Publix Supermarkets, 802 So.2d 315, 331 (Fla. 2001).

        In 2002, in direct response to Owens, the Florida Legislature established the
burden of proof by statute for premises liability cases involving “transitory foreign
substances.” Section 768.0710 declares that while a premises owner has a duty of
reasonable care to maintain the premises in a reasonably safe condition, the claimant in a
civil action has the burden of proving that the business failed to exercise reasonable care.
Plaintiff is not required to show that the owner had constructive notice of the substance.

8.     Attorneys Fees
       The subject of attorneys’ fees is addressed within the specific topic areas, where
 9.    Miscellaneous

       a.      Class Action Reform

        In 2006, the Florida Legislature reformed the venue provisions for class action
lawsuits under Florida law to prevent non-residents of Florida from filing class action
lawsuits in Florida. Specifically, Section 768.734 provides that claimants having the
capacity to sue are limited to residents of the state at the time of the alleged conduct,
unless the “conduct giving rise to the claim occurred in or emanated from” Florida. The
statute also requires class action claimants seeking monetary damages to plead and prove
actual damages.

       b.      Food & Beverage Liability

        In 2004, as efforts increased to hold McDonalds and other fast food vendors liable
for serving allegedly unhealthful fare, the Florida Legislature enacted Section 768.37,
which exempts manufacturers, distributors and sellers of food and nonalcoholic
beverages from liability if “liability is premised upon a person's weight gain or obesity, or
a health condition related to weight gain or obesity, resulting from the person's long-term
consumption of such foods or nonalcoholic beverages.” If the defendant did not make
nutritional information available to the plaintiff as required under certain state and federal
regulations or provided “materially false or misleading information to the public,” the
exemption does not apply.

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