The New Tort Reform Laws and How They Affect You

A couple of months ago, I wrote an article in here encouraging all of our readers to contact their legislators and have them vote no to House Bill 837, or the omnibus tort reform bill.

Unfortunately, before we could even publish that article, the Legislature had already passed House Bill 837.

The bill moved at a record pace, taking only three weeks of the 60-day legislative session to go from introduction to final passage. The fix was just in on this one, and despite the efforts of many lawyers, doctors, and citizens to stop it, the Florida Legislature passed the largest reformation of tort rights in history, with little debate.

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Some are very specific to a certain type of personal injury case. For example, the presumption of non-negligence to an apartment complex or multi-family housing unit only applies to negligent security actions against those specific places.

Furthermore, the elimination of prevailing attorney’s fees applies only when you are suing your own insurance company. This particular provision will likely be one of the more controversial areas of this law. We all know and have seen the massive destruction that Florida’s hurricanes can cause. We have also all heard the horror stories of insurers delaying and denying claims following these storms. This provision essentially leaves homeowners without the recourse of the court system when an insurance company does not timely pay their claim, undervalues their claim, and refuses to pay.

The other components are likely in play in your typical car accident, personal injury, or premises liability case.

Let’s start with the statute of limitations. You used to have four years to file a lawsuit related to your personal injury case, so plaintiffs had plenty of time to allow their medical care to resolve, and to engage in pre-suit negotiations with the insurance carrier. Now, you have half of that time.

Additionally, the insurance companies now get an additional 90-day grace period, within which to absolve themselves of any previous bad faith they may have committed.

The practical result of these two changes is that we are going to speed up the timelines within which we send settlement demands to the carriers and the time when we make decisions and recommendations on filing a lawsuit.

So, for accident victims, my advice on how to handle this is two-fold.

First, seek legal counsel as soon as possible after your accident. We now have less time to investigate your case, and to try to resolve your case. Take prompt and immediate action.

Secondly, if you are undergoing medical care and treatment for an accident-related injury, stay compliant with your care and be diligent in follow-up. Again, we now only have two years to file your lawsuit. Getting the answers on what your medical diagnosis and prognosis, and a full and complete understanding of your injuries, is very important, and needs to be done timely.

Note, these timeline changes only affect any cases brought after 3/24/2023. For all cases where the accident occurred prior to this date, the old, four-year statute of limitations still applies.

This law also affects the evidence that can be presented at trial with regard to an accident victim’s medical bills.

The long and short of it is this: Accident victims can still admit their full doctor’s bill into evidence. So, whatever the doctor bills and says you owe, we can submit as proof of your bill.

However, now, the defense gets to contest your bill, and say that your bills should be less.

• If you have private health insurance, they get to argue that the bill should only be whatever your private health insurance would pay for the same bill.
• If you have Medicare or Medicaid, they get to argue those rates.
• If you have no health insurance, they still get to argue for the Medicare and Medicaid rates.

So, basically, the defendant will be allowed to argue that your bills should not be what the doctor charged, but a cheaper rate, based on private and/or governmental insurance rates.

This isn’t new. Defendants have been arguing for “discount justice” for as long as I have been practicing law. What is new, though, is that before, these discount justice arguments were severely limited in court. In fact, until now, the jury never heard if a plaintiff had health insurance or not. Now, it is fair game and can be introduced.

This will lead to longer trials, as the defense will spend a great deal of time arguing and putting on evidence of these discounted rates.

I am not too concerned about it, though. From our years of practice, we know that major health insurance routinely denies claims related to auto accident victims. It is going to be difficult for the insurance carriers to argue that you should only get what your health insurance would pay when the health insurance company already flat-out denied such care.

Plus, this is a trial issue. While we will no doubt try more cases due to the cumulative effects of these new laws, it is still highly likely that 5 percent or less of all cases will result in a trial.

Thus, I would not worry too much about this change. As long as the treating doctor can explain and justify why they charge what they charge, I do not think these types of arguments by the defense will be very successful in court.

Lastly, perhaps the biggest change is the change to a modified comparative negligence law.

Before this change, Florida was a pure comparative negligence jurisdiction, meaning that a plaintiff was charged with and had their own percentage of fault deducted from any award they received. So, if the plaintiff was 51 percent at fault, they received 49 percent of their damages.

Now, under this new law, if the plaintiff is found to be 51 percent at fault, they receive nothing.

The unfair part of this law is that a defendant can be 51 percent at fault and they are limited to paying for only that share of fault. But a plaintiff who is the same gets completely denied any compensation whatsoever. It is arbitrary and produces unjust results.

This law will also lead to a number of insurance companies taking unreasonable positions on liability and denying claims.

For our part, the chances we were filing a lawsuit where you were 51 percent or more at fault were not very good prior to the passage of this law. So again, it likely has little effect on how we practice now. It does mean, though, that we will look very carefully at any liability issues in a case, and scrutinize the same to make sure we can beat this 51 percent threshold.

Make no doubt about it, all of these changes and measures are meant to rig the game in favor of the insurance company. The Legislature did not do any favors for accident victims or their lawyers here.

However, despite all these changes, I am actually optimistic that our firm, and most importantly our clients, will fare just as well, maybe even a little bit better, in this system.

First off, as this law was passing, my partner Todd Curtin and I looked at and reviewed every system in our law firm. We tried to find every single thing we would need to change or do differently under these new laws. We spent hours each night covering hypothetical situations and reviewing past cases.

Our conclusion was that we didn’t need to change a thing. We have never been a firm that attempts to manipulate our client’s medical care and treatment. We have never worked with providers that inflate their charges and bills. And, like I said before, if we had a client with over 51 percent fault for the accident, we likely were not filing suit in that case, either.

Secondly, we went to work on revising our case timelines and goals for each checkpoint in our cases. With a reduced statute of limitations, it is important that we have all cases on a timely track.

I anticipate our average case duration will speed up. I also anticipate that we will file more lawsuits, litigate more cases, and try more cases to verdict in this new system.

Considering we have won our last two trials, and significantly achieved a result much higher than the last settlement offer, we are okay with trying more cases.

As I write this, we have trained our staff on these changes, and are implementing our new case guidelines. So, the plan has already been in motion, and so far, it is working well.

And lastly, I want to leave you with this thought. House Bill 837 changes a lot of things.

But it is important to remember the things it does not change, which include the following:

• That people get into car accidents
• That people get hurt in those car accidents
• The frequency of car accidents
• The extent and the nature of the injuries associated with those car accidents
• The need for medical care and treatment for said injuries
• The complex legal nature of claims for compensation for a car accident in this state

So, if ever you or a loved one finds themselves dealing with a car accident, it is now more important than ever that you seek experienced legal counsel as soon as possible. The game may be rigged in favor of the insurance company. But with the right players by your side, you can still win the same. Our resolve to help all of our clients has never been stronger!