If you do not travel in the world of Florida personal injury lawyers, you would be forgiven for not even noticing that on March 24, 2023, our Governor Ron DeSantis passed comprehensive tort “reform” legislation, otherwise known as HB 837, Civil Remedies.
Many Injury & Accident Victims Will No Longer Be Able To Find Lawyers
Hopefully you are not included in the long list of Orlando personal injury and accident victims who will, as a direct result of this draconian law, not be able to find a lawyer after devastating accidents. Florida personal injury lawyers are now being forced to reject potential clients and cases, in countless situations where, in the recent past, we would have potentially won hundreds of thousands or millions of dollars for those people.
Of course, we still encourage anyone who has been injured to give us a call. But the unfortunate reality is that our intake criteria has significantly changed. We must view all new potential clients and cases through the new lens of this highly restrictive and punishing new law. That’s really a damn shame because, despite what I have long said are very misleading (and stupid) billboards all over the place, the laws in Florida protecting injury victims were already in dire need of improvement.
Types of Injury & Accident Cases Affected By HB 837
We are still evaluating what types of cases we will be forced to reject. Overall, we have already started more carefully evaluating any mixed fault scenario, since Florida now denies any recovery to those who are more than 50% at fault, and there is no clear guidance on what that might mean to any future jury.
As for car accident lawsuits, there are many mixed fault situations we will need to carefully evaluate before accepting the cases, such as intersection collisions, or someone driving into your lane, for example. That’s because, let’s say with an intersection collision, usually the at fault driver is going to say that you, not he, ran the light. And those are the kinds of situations where juries can easily decide that our client has more than 50% of the blame.
Plus, Florida’s new new civil remedies (tort reform) law will very clearly have a significant negative impact on any future Florida slip and fall lawsuits because the defense can almost always argue that you should have been watching where you were going, and arguably that makes most slip and fall victims at least 50% at fault.
I hope you can see how this could quickly become very unfair.
Why Supporting HB 837 Was Foolish
The reality, which many consumers often fail to realize when supporting this kind of victim harming legislation, is twofold:
(1) Most people assume they will never have to worry about being an accident victim, and most never do. That leaves a small minority of people who will actually, tragically, and very negatively be impacted by this law. So how many people are going to rise up, and fight back?
(2) Lawyers and law firms are private businesses. Therefore, we have bills to pay, for our office space, staff, utilities, countless business services, phones, insurance, and of course our own salaries.
There is no government agency that supports our work.
Therefore, I’ve been really surprised over the years by the occasional callers who seemed to think we were almost like a government agency — with unlimited funding to fight whatever fights grabbed our interest.
Nothing could be further from the truth. At the end of the day, while many of us care passionately about helping injured victims (as I do), we are also just regular people who opened businesses that must make money, or cease to exist.
Why Personal Injury Lawyers Must Decline Unprofitable Cases
Unlike other businesses, Florida personal injury lawyers must risk and spend substantial amounts of money, to handle cases, because we front the money for our clients’ litigation case costs. Those costs include things like court filing fees, process server fees, court reporter fees, mediator fees, investigator fees, expert witness fees (including very expensive physician expert witness fees), trial exhibit fees, research service fees, and more. In total, for each case, those costs can be thousands, tens of thousands, or even more, depending on the case. Those are gambles that even the best Florida personal injury lawyers must make accurately — meaning we have to accurately predict whether we are likely to recover money for our clients, sufficient to meaningfully help our clients, recover our substantial advanced costs, and make money for our businesses — otherwise we would quickly find ourselves calling our buddy down the street, the neighborhood bankruptcy lawyer.
Why Insurance Companies Are The Only Winners
The other important thing to always remember is that insurance companies are ruthless. They do not care about you, your suffering, your potential abject poverty, your loss of everything in your life including your livelihood, and your health, or even how long you have been their customer. The absolute ONLY thing they care about is systematically discovering the least amount of money they can pay to resolve any and all claims, regardless of any other considerations. In fact, insurance companies MUST pay you the least amount of money possible because they have a legal obligation to their shareholders to maximize profits.
This new harrowing Florida tort “reform” law gives insurance companies exactly what they have wanted for years.
There will be tragic consequences for countless injured Floridians, who may urgently need medical care, and lost income, yet who might be suddenly unemployed and without health insurance, due to someone else’s negligence.
Impact On Florida’s Personal Injury Law Firms — And Therefore The Value Of Your Insurance Policies
The immediate impact of Florida’s new tort “reform” / civil remedies law is that ALL Florida injury & accident lawyers are necessarily scaling back their businesses. Many of us will either expand into other practice areas, or even neighboring states out of necessity, and/or many others are simply throwing in the towel, and retiring much earlier than they had planned.
That might sound great for Florida insurance rates — but what will you really have, as far as insurance coverage, if there is no way to recover money, when the insurance company does what they are obligated to their shareholders to do, and totally denies your legitimate claim? You might as well have paid zero dollars for your coverage because that’s exactly what it will be worth to far too many Floridians.
To add insult to injury, insurance companies have no requirement to reduce your rates — and my random guess is that you haven’t received your rate reduction letter in the mail. But you may well have received a zero dollar estimate, aka denial, on what fairly should have been your legitimate accident or injury claim.
The Legal Situation Was Already Bad For Florida Injury Victims
Prior to the passage of HB 837, Florida was already extremely restrictive in the areas of workers’ comp, medical malpractice, slip and fall, wrongful death, and even auto accidents. Injury lawyers years ago became much more restrictive about which cases they would accept.
Many workers comp and med mal lawyers largely left those practice areas, when previous Florida laws zapped those claims almost into oblivion, save the rare total catastrophically injured med mal victim — and even those people often can’t find a lawyer anymore. That’s already been true for many years (only a few law firms still accept those cases, with very restrictive criteria for acceptance).
Regarding slip and fall and wrongful death cases — Florida injury lawyers already had to reject far too many due, again, to other previous Florida law changes.
In car and truck accident lawsuits, for many years, we have had drivers on the roads with not nearly enough insurance coverage, because, unlike other states, Florida does not require at fault drivers to carry one penny of insurance to pay for those they might injure.
In short, the situation was already really, really bad, from the perspective of far too many injured people, or the families of those who were killed.
Thank You, Misleading Billboards
The absolutely stupid billboards plastered all over Florida may have caused this latest tragic lawmaking turn of events — and they were misleading because those people were the lottery winners.
A state legislator driving to Tallahassee probably couldn’t drive one mile without seeing the hundreds of thousands or millions that accident victims presumably recover every day. So they can almost be forgiven for not understanding that those billboards represented only the exceptional cases.
We have recovered millions for our clients — but only those high amounts when they were catastrophically injured, or someone they loved died, the defendant had plenty of insurance money, AND the defendant was clearly at fault.
Far, FAR too many accident victims already either couldn’t find a lawyer, or received far less than they should have. For example, I have lost count of the number of cases we settled for 10K involving catastrophic injuries or death, because that was the only insurance coverage available.
I’ve been waiting for updated billboards but I guess those guys want to keep pushing the envelope downward.
The Worst Part of HB 837 Is The Massive Hit To Safety, Throughout Florida
I simply cannot overstate my level of concern that businesses no longer have to worry nearly as much if they put our lives at risk in Florida.
Just like insurance companies, businesses want to make money. And that’s fine.
But businesses, while making plenty of money, no longer have to think quite as hard about whether their fleet of semi trucks has good tires, or working brakes. Or whether their building entryway has hidden defects. Your local mall doesn’t have to worry quite as much about whether the lights are working in their parking lots, or whether they employ security guards. Hotels maybe don’t need to upgrade their key systems. Or even fix broken windows or door latches. Banks don’t have to worry much about how to place ATM machines on their properties. Landlords, and apartment complexes, don’t need to think as much about how you might be victimized on their business property — so they can save the money they would have spent on any and all safety upgrades.
Random drivers on the road are probably oblivious to the new law. But they can and will get away with a lot more, too.
If I let myself keep thinking about the long-term downstream safety effects, I might never want to leave my house again.
HB 837 Was A Terrible Idea With Severe Consequences — Hopefully Someday This Law Will Be Repealed
The bottom line is that access to justice for everyone should never have been politicized. We all need safety. And we all need fair recourse if we are seriously injured, or our loved one is killed, as a result of someone else’s negligence. The only reason this issue became political was because of money. Big businesses and insurance companies want to rake it in, but they do not want to take fair financial responsibility when they should. So now we will all suffer, until and unless things drastically change in Tallahassee.
Our constitutional “rights,” like our insurance policies, are absolutely not worth the paper on which they are written, without the ability to enforce them. And, sincerely, our collective safety is in terrifying peril.
So I hope somehow this law is eventually changed. And I hope for the sake of every Floridian, if that day ever comes, that there are still enough good lawyers practicing injury law in Florida.
What Other Injury Lawyers Think About Florida’s Tort “Reform” Law
You don’t just need to take my word for it. Here’s what a group of personal injury and accident lawyers, from Florida, and around the country, had to say about the likely impact of the Florida’s new tort “reform” law:
Andrea Worden – Worden and Carbitcher
I am deeply concerned about the recent tort reform bill signed into law by Governor DeSantis. This legislation, in my opinion, disproportionately harms Floridians who have suffered injuries due to the negligence or wrongdoing of others.
One of the most significant drawbacks of this new law is that it creates additional barriers for injured individuals seeking legal recourse.
By making it more challenging to sue businesses, insurance companies, or those responsible for car accidents, the law effectively restricts access to justice for the very people it should protect.
Moreover, the changes in the law may lead to a chilling effect on attorneys willing to take on personal injury cases on a contingency basis.
Without the assurance of a winnable case, many lawyers may be hesitant to invest their time and resources in fighting for the rights of injured individuals.
As a result, those with valid claims may struggle to find legal representation, and in some cases, may be forced to bear the financial burden of their injuries alone.
I also argue that the law could have broader implications for public safety in Florida. By shielding businesses and insurance companies from liability, the legislation may inadvertently encourage negligent behavior.
Without the threat of legal repercussions, companies might be less inclined to invest in safety measures, putting the health and well-being of Floridians at risk.
Furthermore, I believe the law’s provision capping punitive damages at $1 million or three times the amount of compensatory damages, whichever is lower, may not adequately deter wrongdoers.
In some cases, this cap could be seen as a mere cost of doing business for large corporations, which may continue to engage in risky behavior without fearing significant financial penalties.
Jonathan Rosenfeld – Rosenfeld Injury Lawyers
After carefully reviewing the details of Florida’s new personal injury law, I must say that I am dead against it. The legislation appears to be designed to make it more difficult for injured individuals to seek justice and hold negligent parties accountable. This is concerning for several reasons:
- Limited access to legal representation: With the new law making it harder for injured victims to win their cases, many attorneys may be reluctant to represent clients on a contingent basis. This will create a barrier for those who cannot afford to pay for legal services upfront, ultimately denying them access to justice.
- Protection for businesses and insurance companies at the expense of victims: The new law seems to favor businesses, insurance companies, and other potentially negligent parties by making it more challenging for injured individuals to seek compensation. This imbalance could lead to a lack of accountability for those who cause harm, essentially encouraging negligent behavior.
- Increased financial burden on injured victims: Without the ability to secure compensation through a lawsuit, injured individuals will face greater financial strain due to mounting medical bills, lost wages, and other expenses related to their injuries. This could exacerbate their suffering and prolong their recovery.
I believe that this new law will have a negative impact on Floridians who suffer injuries due to others’ negligence. It not only makes it more difficult for victims to obtain justice, but it also creates an environment where negligent parties are less likely to be held accountable for their actions.
In my experience, personal injury laws should focus on protecting the rights of the injured, ensuring that they receive fair compensation, and promoting a sense of responsibility among potential wrongdoers.
Unfortunately, Florida’s new law seems to fall short in these areas, potentially causing more harm than good for the state’s most vulnerable citizens.
Thomas Pivnicny – Kitay Law Offices
I’m a personal injury lawyer and have been representing plaintiffs in Pennsylvania for over a decade. Our state has had many of these “tort reform” laws for many years now.
A few examples are the 2-year statute of limitations, pegging the medical costs to slightly above Medicare and Medicaid rates, and modified-comparative negligence (i.e. whether you are more or less than 50% at fault for an accident occurring).
The truth of the matter is that some of the recent changes made to Florida’s laws will make a huge difference and some will not.
For example, shortening the statute of limitations . . . down to 2 years may screen out some cases that would otherwise have been filed in court [later], but in reality either you have a good case or you don’t…regardless of whether it is filed in court before 2 years are up.
On the other hand, pegging the medical costs can have huge effects. In Pennsylvania, many medical providers refuse to treat patients who are complaining of injuries related to an accident (i.e. someone else’s negligence).
This is most significant in a car accident where our Pennsylvania “Act 109” limits the reimbursement that doctors can receive to slightly above Medicare and Medicaid reimbursement rates [which is what Florida will be doing now.]
Since those reimbursement rates are typically significantly lower than private health insurance rates, many doctors will refuse to treat patients following a car accident.
. . . .
By being more selective in taking on new personal injury cases, there will necessarily be many more folks who have suffered injuries who will be unable to find legal counsel willing to take on their case.
. . .
Florida firms will need time to adjust and diversify. Many would-be plaintiffs will find themselves without a way to recover from their injuries. And if they do, the compensation is likely to be far less than in the past. Over time, however, it will become the new normal.
Steven Mandelaris – Mandelaris Law
The law seeks to limit the rights of injured individuals to sue businesses, insurance companies, and individuals who are responsible for causing car accidents.
The proposed bill modifies Florida’s comparative negligence system by limiting a plaintiff’s ability to recover damages from a defendant if the plaintiff is more responsible for their own injuries than the defendant.
Additionally, the bill grants broader immunity to property owners who defend themselves against lawsuits brought by criminals injured on their property. The fault of all parties involved in an injury must also be considered by judges or juries.
Moreover, the bill adopts the federal standard of removing attorney fee multipliers and only allows one-way attorney fee provisions in specific situations.
This discourages frivolous lawsuits and lengthy litigation that benefit activist attorneys seeking to increase their profits.
The legislation also establishes uniform guidelines to aid juries in accurately assessing the value of medical damages in cases of personal injury or wrongful death.
Additionally, it shortens the statute of limitations for general negligence cases from four years to two years.
Under the new law, it will be much more difficult for injured people to file lawsuits against those who are responsible for their injuries. This is because the law imposes stricter requirements on the evidence that is needed to prove fault and negligence in these cases.
Additionally, the law imposes new limits on the damages that can be awarded in these cases, which may make it less financially viable for attorneys to take on these cases on a contingent basis.
This law is a bad law because it puts the interests of businesses and insurance companies ahead of the rights of injured individuals.
Firstly, the stricter requirements on evidence needed to prove fault and negligence may make it much more difficult for plaintiffs to successfully bring lawsuits against businesses, insurance companies, or individuals who are responsible for their injuries.
This may result in many cases being dismissed before they even go to trial, which would leave injured individuals without any means of obtaining compensation for their injuries.
Secondly, the new limits on damages that can be awarded in these cases may discourage attorneys from taking on these cases on a contingent basis, meaning that many injured individuals may find it difficult to find legal representation.
This is because attorneys will be less likely to take on cases that are unlikely to result in significant financial compensation, as they will not be able to recover their costs of litigation and earn a reasonable fee for their services.
Finally, the overall impact of this law may be to erode the rights of injured individuals to seek justice and compensation for their injuries.
This could leave many people in a vulnerable position, as they will have limited recourse when they are harmed by the negligence or wrongdoing of others.
The impact of Florida House Bill 837 is likely to be negative for injured individuals seeking justice and compensation for their injuries, as it makes it much more difficult for them to bring lawsuits and obtain fair compensation.
The impact of this law is likely to be significant. Injured individuals may find it much harder to obtain compensation for their injuries, which may leave them with mounting medical bills and other expenses.
Additionally, this law may discourage attorneys from taking on these cases, which could leave many people without access to legal representation.
James DeZao – Law Offices of James C. DeZao, P.A.
I’m against this law because its primary goal is to put more cash in the hands of greedy insurance companies and large corporations by squashing the rights of real people who have been seriously injured or wronged.
The law takes away crucial rights from the people of Florida and encourages the insurance industry, which is known for taking advantage of consumers, to rip off policyholders in favor of lining the pockets of shareholders.
Claims that the bill would “decrease frivolous lawsuits and prevent predatory practices of trial attorneys that prey on hardworking Floridians,” is just code for politicians appeasing big businesses and insurance companies that are mad they’ve been held accountable for their negligence or for operating in bad faith.
When DeSantis signs the bill and each party to a case is forced to pay their own legal fees, private businesses will no longer feel the pressure to prioritize the safety of consumers, and average people who have been wronged will have serious trouble affording the legal representation they need to defend their rights. It will be a major loss for both the civil and consumer rights of Floridians.
Ben Michael – M & A Criminal Defense Attorneys
There’s no way around it–this is going to dramatically reduce Floridians’ ability to get justice for personal injury through the tort system.
The requirements for bringing a suit are so onerous now that it’s really only worthwhile in the most egregious of cases.
I’m especially concerned about what this means for insurance coverage in Florida. Homeowners insurance in the state has become incredibly expensive and virtually impossible to get due to recent issues with fraud and payments from hurricanes.
If homeowners will be harder to sue when their property causes injuries to others, an increasing number of homeowners will probably just opt to skip insurance altogether, further raising rates for anyone still trying to buy.
Min Hwan Ahn – EZ485
As a lawyer based in New York, I have been following the developments of Florida’s new tort reform law, House Bill 837, with great interest.
While I understand that the bill aims to protect businesses and reduce frivolous lawsuits, I am concerned about the potential negative impact on accident victims seeking justice and fair compensation.
Firstly, by eliminating one-way attorney fees and attorney fee multipliers for all lines of insurance, HB 837 may discourage injured individuals from pursuing legal action against insurance companies who fail to pay claims.
This change could create an imbalance in power between individual claimants and large insurance corporations, making it more difficult for average people to hold these companies accountable.
Moreover, limiting the amount of damages sought by multiple plaintiffs and reducing the statute of limitations for negligence lawsuits can potentially harm those who genuinely need compensation to cover medical expenses or lost wages due to their injuries.
As a personal injury lawyer, my primary concern is ensuring that my clients receive fair compensation for their suffering; this new law may hinder that objective.
In terms of its broader implications beyond Florida’s borders, other states may look to this legislation as a model for their own tort reform efforts.
If similar laws are enacted elsewhere in the United States, it could lead to a nationwide trend where access to justice becomes increasingly difficult for injured individuals.
From my perspective as a lawyer outside Florida, I believe that while tort reform can be beneficial in curbing excessive litigation and protecting businesses from undue financial strain, it should not come at the expense of those who are genuinely seeking justice after being harmed by another party’s negligence or wrongdoing.
It is crucial that any changes made to existing tort laws strike a balance between these competing interests so that both businesses and accident victims are treated fairly under the law.
Joshua Frachtman – Zimmerman & Frachtman
As a Florida-based personal injury attorney who has handled countless cases involving insurance companies, I am against this new tort reform law.
Proponents argue that this law will help reduce the number of frivolous lawsuits and lower the cost of doing business in the state. However, it also makes it harder for individuals to see justice for legitimate injuries and harms caused by negligence.
Although this law revision was made with the intention to eliminate frivolous lawsuits, it negatively affects personal injury lawyers by limiting the number of damages that can be awarded, changing pre-suit requirements, increasing competition, and controlling the number of fees that can be recovered in cases.
As a result, these restraints will make it harder for personal injury attorneys to provide quality services to those in need of legal aid.
Warren Whiteknight – Bergeron Clifford
Plain and simple I can say that the proposed tort reform in Florida is likely to be bad for injured people and their families. The proposed amendments are actually quite similar to what we already have here in Ontario, and these types of laws directly hurt injured claimants.
The proposal states that it will aim to reduce insurance rates, but the critics quite rightly point out that the law does not contain any provision to ensure that rates in fact will be reduced or at least not raised.
This is exactly the same problem we faced in 2022 when amendments were introduced to the Occupier’s Liability Act aimed at “reducing premiums for occupiers and snow contractors”, but similarly the legislation did not have a mechanism for actual causing premiums to be reduced.
The other aspect of the amendments has to do with a claimant being unable to have their legal fees paid by the insurer.
. . .
The critics of the legislation quite rightly point out that this will lead to claimants being unable to bring more modest claims, and additionally, will mean that people do not recover the full amount of what they are due.
Matthew Metzger – Wolterman Law Office
Florida House Bill 837 protects insurance companies at the expense of individuals and small businesses. It limits what doctors and medical practices can charge by limiting what insurance companies will pay for those services, which could limit the availability of medical services and procedures.
The bill also shortens the timeframe in which injured parties can make claims (known as a statute of limitations), which means people will not be permitted to bring claims due to an arbitrarily shortened deadline, even when those folks are still treating for injuries.
For those claims that are brought, the Bill limits the damages available to injured parties.
These changes unquestionably save insurance companies money, which is why they lobby for them, but nothing in the Bill requires these savings to be passed on to everyday insurance consumers, like small businesses and individuals.
If these savings were directly passed on to insurance consumers, would the insurance company lobby for them? No.
Bruce Rosenberg – Rosenberg Law
This new tort reform bill has more impact than any tort reform bill in the history of Florida. It has basically taken away all the checks and balances to make sure that insurance companies will process and pay claims appropriately. It eliminated the financial penalties insurance companies face when they do wrong and don’t pay claims appropriately.
About my personal practice, it is going to have an impact, although fortunately, I do practice in areas other than Personal Injury Protection (“PIP”) collections and Personal Injury.
I do fraud defense for healthcare providers, as well as Medicare audits so, I will have the ability to transition more heavily into that.
Unlike other practices such as insurance defense where attorneys are going to be fired because the insurance companies are not going to need as many attorneys and those Plaintiffs’ attorneys that were fighting very hard for the individuals and the citizens of Florida who only practice in the area of law of PIP collections who are going to be majorly impacted.
All these attorneys will have to seek work in other areas of law.
Although this is going to cause major disruption in the legal community on both sides of the fence, it is more important to keep in mind that this is going to have more impact on the individual citizens of Florida because what the insurance companies are going to ultimately do is just not pay because there is no penalty [for not paying legitimate claims].
Andrew Rosenberg – Rosenberg Law Firm
I am against the new tort reform law that came into effect in Florida. Unfortunately, these major changes will make it much harder for Florida citizens to move forward with cases against tortfeasors because of all of the new limitations that have now been afforded.
As an example, they changed the law to now require someone to be less than 51% at fault in order to receive compensation for their injuries.
For example, if you are in a “slip and fall” case and you are more than 50% at fault for the injuries, you are entitled to ZERO dollars moving forward.
The old law allowed someone to receive compensation if you were not at fault for any percentage whatsoever. Thus under the old law, if you were 60% at fault in this example, you could receive compensation for the 40% where you were not at fault. Not any more thanks to the changes made in the law!
The immediate impact was for most lawyers to review their cases before the new law went into effect and file a lawsuit to protect their client’s interest if it made sense.
As a result, there were “thousands” of lawsuits that were filed before the law went into effect early last month. This was the exact opposite of what the law was supposed to do…curb lawsuits moving forward.
The reason so many cases were filed before the law went into effect was because the new laws were so negative towards plaintiffs and their potential compensation and analysis moving forward.
The statute of limitations changed from 4 years to 2 years. Because of that change, there will be a requirement to file a lawsuit sooner rather than later if the case warrants. With the shorter statute of limitations, it gives the plaintiff and their attorney less time to try and settle the case “pre-suit” vs. “filing” in the courts a complaint.
Additionally, the 51% rule that I mentioned in the prior answer will most definitely cause more suits to be filed than fewer in my opinion. Unfortunately, the “big box” retailers will almost surely state that your client is at least 51% at fault in a slip-and-fall scenario.
By doing that, the big box retailers will deny most claims immediately, which will force the plaintiff’s attorney to file suit in order to protect their client’s interest.
What does that cause? More lawsuits, not fewer. Those are just two of the drastic changes that the Florida Legislature approved for “tort reform”.
There are many other changes that are in the new law which almost certainly will negatively affect Florida residents moving forward if they are injured in any way from a car accident or a slip and fall scenario.
Charles Buist – Spetsas Buist
Our perspective on the legal changes in Florida is different from many personal injury attorneys because the “new” personal injury laws of Florida are now very similar to other states that we practice in, like Georgia and South Carolina. There are many changes taking place, but the most significant change in our world is the change in the negligence standards.
Florida has moved to “modified comparative negligence” from “pure comparative negligence,” which is not a tremendous difference to us because we take only legitimate cases. However, we were initially concerned that Florida would move from “pure comparative negligence” to “contributory negligence,” which would have been an absolute nightmare. Let’s talk about the difference between these types of negligence so you can see what I mean.
Modified Comparative Negligence
Georgia is a modified comparative negligence state, which means that a plaintiff who is less than 50% at fault may file a claim and receive compensation. If a plaintiff is 50% or more at fault, he or she may not recover.
In other modified comparative negligence states, like South Carolina, the watermark is 51%. In other words, the plaintiff must be less than 51% at fault to recover. The overall effect is the same: if you share half of the blame or more for the accident, you may not be able to recover.
Under the new laws in Florida, a plaintiff can recover for the defendant’s negligence only if the plaintiff is 50% at fault or less. This is like Georgia and a little more restrictive than South Carolina.
As a practical example, I clerked for Judge Joe Anderson in the US District Court in South Carolina. While I was there, we had a case that went to trial. After a grueling week-long trial, the jury found the plaintiff to be 51% at fault. What’s the result? He got nothing.
Tough result, but would they have awarded him money if the laws were different, or would they have found another way not to pay him?
Who knows, but I believe the 51% was a cop-out. In other words, they didn’t want to pay him, and they didn’t want to be insulting. So, they give him 51% fault and kill 2 birds with 1 stone.
Now, let’s talk about pure comparative negligence.
Pure Comparative Negligence
Florida used to be a pure comparative negligence state, which means that a plaintiff may recover for his or her injuries, even if the plaintiff was mostly at fault (more than 50%).
So, a plaintiff who is 70% at fault could still recover damages in a pure comparative negligence state, whereas that same plaintiff would be barred from recovery in a modified comparative negligence state.
In the example above, where the gentleman was assigned 51% fault, he could have recovered 49% of his damages from the defendant, rather than going home with nothing but lent in his pockets.
Now, finally, let’s talk about the most draconian negligence standard of them all: Contributory negligence.
North Carolina is an example of a contributory negligence state, which means that a plaintiff who is at fault in any way may not be able to recover, even if the plaintiff is only 1% at fault and the defendant is 99% at fault.
As you can see, if Florida had moved to contributory negligence, it would have been pretty terrible for injured people because they wouldn’t be able to recover if they were found even partially at fault.
That means, the defense could simply poke a hole or two in the case and pay zero dollars, much like a criminal defense attorney can poke some holes in the prosecution’s case and win.
However, in criminal law, this is justified because the criminal system takes away people’s rights and freedoms if they are found guilty. It’s not so justified when you’re talking about a careless person or company getting away scot-free and paying nothing when they were 90% at fault.
In the latter scenario, it’s obvious injustice, and it causes serious and life-altering harm to folks who did nothing wrong other than being in the wrong place at the wrong time.
Summary of additional relevant changes to Florida law
In addition to changing from pure comparative negligence to modified comparative negligence, there were some other significant changes to Florida laws, including the following:
- Bad Faith Reform: It takes away protections from Florida’s Bad Faith laws, which are used to encourage insurers to treat policyholders fairly.
- Medical Damages: The new law allows for past and future medical expenses to be presented, but the original bill would’ve denied juries access to accurate info about these costs. This is another point where things could’ve been much worse.
- Attorney Fees Reform (627.428): This applies to first-party insurance claims. This long-standing protection is now gone, which means insurance consumers could have a tougher time-fighting companies that delay, deny, or underpay claims.
- Eliminates Negligent Security Safeguards: Now, criminals are added to the jury form in civil suits, which removes protections for employees and patrons of businesses that are supposed to keep them safe.
- Statute of Limitations Cut in Half: The time limit for filing negligence claims has been reduced from four years to two years (but only for cases that start after the law takes effect).
- Effective Date: The new law applies to cases filed after it becomes effective and starts right away, like now.
Florida’s HB 837 makes some massive changes to Florida’s personal injury and insurance law that will primarily hurt individual plaintiffs of all kinds.
Florida law before this bill was somewhat friendly toward injury victims, allowing for four years to bring a lawsuit for most injury cases.
It was also one of the minorities of 12 states that allowed injury victims to get compensation for the defendant’s share of fault even if the victim was ultimately found to be more than 50% at fault for their own injuries.
At the very least, changing these two rules will potentially hurt many victims’ chances of getting compensation at all for their injury cases.
Further, these changes put insurance companies and businesses over individuals. Many of the laws that were changed will now be much friendlier towards businesses.
Proponents of this legislation say that it will cut down on expenses for businesses, but it does so by limiting lawsuits against them and their insurance companies.
Business costs are certainly lower when victims of your company’s negligence (or your insured’s negligence, in the case of insurance companies) cannot get damages from your business for the physical injuries you have caused them.
One huge area of new limitations is in the law of negligent security. Under prior law, a property owner’s failure to make the premises safe for guests could lead to a lawsuit whether that danger was from a physical defect on the property or a lack of reasonable security precautions.
Under this new legislation, even known security risks cannot form the basis of a lawsuit against the property owner if they took certain steps that might not be relevant to their security situation.
Even if the property owner was in the best position to make things safer for everyone, they cannot be held responsible for certain injuries now. This could potentially affect residents of apartment buildings and condos across the state.
Additionally, insurance companies are given new permission to play fast and loose with standards that are in place to make sure that victims get the payments they need.
This bill makes it harder to hold insurance companies to account, even in potentially mundane insurance claim cases. It also makes it harder to sue by affecting how attorney’s fees and damages are assessed.
Karina Perez Ilić – Vanguard Attorneys
While the large Wall Street insurance companies, and the politicians they fund, refer to the recent legislation as ‘tort reform,’ that is disingenuous.
A more accurate description is the “consumer rights rollback,” as every element of the new law takes rights away from Floridians in favor of limiting the liability of insurance companies.
Perhaps most disturbing is the lack of accountability, as the law has no expectation and no provision that rates consumers pay will go down.
Instead, we will simply see more insurance profits siphoned out of state to these large out-of-state insurance companies, such as Progressive, State Farm, GEICO, and all the others.
For instance, in the past, if someone caused an injury, they were only responsible for their fair share of the damages. Now, if a jury finds the injured party was over 50% at fault, they will recover nothing.
While in principle it might be okay, there will be a chilling effect when the fault is contested.
For example, consider the scary motorcyclist who isn’t wearing a helmet and is hit by a speeding grandmother. Even though helmets are not required in Florida, defendants will urge and a jury could find that motorcyclist was 51% at fault, and they will recover nothing.
Most car crashes that injure people arise from a he-said-she-said situation. With the new law increasing the odds that the insurance companies will pay nothing, we can expect insurance companies to gamble more with legitimate claims and injured people. Unfortunately, hardworking Floridians will lose.
Or consider when a small business catastrophically injures someone and their insurer scoffs at the injured party when they offer to settle. But months later, after a lawsuit is filed and it’s too late, the insurer offers the policy limits, which are rejected.
Previously, if that business was hit with a multimillion-dollar judgment, they could hold the insurer responsible for leaving them out to dry. Now, it’s likely that small businesses and their owners will lose everything they worked for and have a judgment hanging over them for decades with no consequence to the insurance company.
While I wish there was better news for the average Florida consumer, we have already seen how insurance carriers will conduct themselves with these new laws protecting them.
Just look to Southwest Florida, where insurance carriers are changing the reports submitted by insurance adjusters to remove pictures and descriptions of damage, then reduce the claim to a fraction of what the adjuster calculated – in some instances, to $0 or below the deductible.
To challenge the insurance company, a Floridian would need to hire an attorney by paying out of pocket or engaging in a contingency fee agreement.
In either case, even if they can find a lawyer to take the case, it ends up costing Floridians money they were owed under the insurance policy to repair the home so there will never be enough money to make them whole.
Insurance companies know many people won’t have access to lawyers under the new law. With no one to hold insurance companies responsible, we can expect insurance companies will pay as little as possible or absolutely nothing at all. Profit over people.
What most Floridians don’t realize, until it’s too late, is that insurance claims are adversarial by nature. Policyholders want to be made whole and recoup the value of their loss; insurance companies have a duty to their owners or shareholders to maximize profits.
To maximize profits, they must collect as much in premiums as possible and pay out as little in claims as possible.
But make no mistake, while the new laws are a blow to Floridians, they still can stand up for themselves, which is more important now than ever.
Robert Healy – Salter, Healy, Rivera & Heptner
The new “tort reform” law passed by the Legislature and signed by the Governor is a big giveaway for insurance companies at the expense of people who are injured by others’ negligence.
The law will make it difficult for Floridians to obtain a lawyer when their insurance company wrongfully refuses to pay claims. And the law gives insurance companies a new incentive to act in bad faith towards their customers.
As a result, not only will this new law be bad for injured persons making claims, but it’s going to result in significant judgments against small businesses and individuals when the damages exceed the policy limits.
. . .[The bottom line is that] many injured plaintiffs will recover nothing even if another person or company’s negligence was a significant factor resulting in their injuries.
As a Personal Injury Lawyer, I’m against the new Florida “tort reform” law. This law will have a profound negative impact on injured accident victims and their ability to receive fair compensation for their injuries.
This bill’s modified comparative negligence approach means that if a jury finds even one party is more than 50% at fault, the plaintiff has no chance of recovering damages.
This is an unfair burden on accident victims and will likely result in fewer cases being brought forward due to the difficulty of proving fault.
In addition, this law prevents people from finding a lawyer to represent their case on a contingent basis because the person must be at least 50% at fault. This means even if the person has a valid case, they may be unable to find representation because of this new law.
Jason Turchin – Law Offices of Jason Turchin
In the past few years, we’ve seen a quiet attack on the rights of Florida accident victims.
Florida recently adopted the Federal standard for summary judgment, giving judges more power to dismiss cases without letting a jury decide.[Years ago,] they changed the slip-and-fall law, making it harder to bring claims.
Now, they say that if someone is 51% at fault, they get nothing [in addition to many other substantive limitations on all types of personal injury lawsuits].
This is smoke and mirrors from the insurance companies in my opinion because it will likely just shift the burden of who pays for medical care from liability insurance companies to health insurance companies. Someone still has to pay those bills.
Crime victims are now in worse shape. Now if someone is paralyzed in a crime-infested apartment complex with a shady landlord, that landlord can escape any liability and try to pass all blame to the shooter when they could have prevented the incident with better security or background checks.
People in higher crime areas are left with little recourse now, and their medical care is also shifted to health insurance companies or public hospitals who will lose money treating victims.
Marie Schoeb – Busciglio Sheridan & Schoeb
The claimed intention of this bill is to reduce frivolous lawsuits, reduce the strain on the judicial system in Florida, and lower insurance rates.
So far, the true effects of this law have proven to be the opposite of what was intended and has gone too far to deprive the injured people of Florida of leverage against bad faith and their ability to show a jury of their peers the true reasonable value of their damages as a result of someone else’s negligence.
The strain on the judicial system this has caused in the last month and the foreseeable deadlock it will cause in moving court dockets for years to come, not to mention the exorbitant litigation costs the insurance companies will continue to incur in defending against these cases cannot foreseeably resolve
any of the problems the legislatures intended to solve and instead took what little leverage Plaintiff’s attorneys had to hold insurance companies accountable and handed that leverage to the insurance
Reasonable modifications to the law could have been made without tying one hand behind the backs of those that have been wrongfully injured in their fight for justice.
Martin Gasparian – Maison Law
It is a dispiriting day for Floridians today as the passage of HB 837 only further enrichens the already wealthy at the expense of the most vulnerable.
The new tort reform strikes directly at the middle class of the Sunshine State, which simply doesn’t have the means to cover exorbitant legal fees, even when it comes to smaller claims.
It is these very lawsuits that kept the insurance companies, hotel chains, and other large businesses in check and prevented them from becoming too frivolous in not sticking to proper procedures and safety standards.
Now the passage of the law removes this key fail-safe and only encourages the above enterprises to take a more nonchalant approach knowing that if things go wrong, they don’t risk getting sued as every day Joe will no longer be able to afford it.
I can imagine that . . . many individuals won’t even bother to contact their local personal injury lawyer, knowing that they would have to pay out of pocket.
Even smaller claims can take years to litigate, and the fees add up really fast, so clients such as mine would be forced to give up after a short while.
At the end of the day, apartment complexes, schools, and other public use areas become less safe while the rich and mighty find a new way to ensure higher profits and lower costs for themselves.
This concerns me as I’m afraid that the passage of such a bill might only further drive a wedge between social classes and further split already polarized communities in an already divided state.
Seth Green – Aronberg, Aronberg & Green
I am against Tort Reform (HB 837). It is only benefits the insurance defense industry. I doubt the bill will reduce insurance premiums for the people which was the advertised benefit. Instead, I suspect the Tort Reform will increase insurance carriers/trucking company profit margins.
On that same note, I was NOT surprised when, 1 week after Tort Reform passed, I received an email from an insurance agent warning me about insurance rate increases in 2024.
Considering the new bill, you would think insurance premiums should be going down yet I still got the rate increase email? Time will tell but I wouldn’t hold my breath waiting for an insurance rate decrease.
I also know Tort Reform (HB 837) will limit injured Floridians’ access to the courthouse. The old law allowed an injured party to recoup attorney fees if they were successful in proving an insurance carrier wrongfully denied their claim.
The Tort Reform took away the attorney fee provision for the prevailing party. Now under the best case scenario, an injured party who wins a lawsuit following a wrongfully denied claim will receive their damages minus whatever they have to pay their lawyer to handle the case for them.
Most Floridians don’t have the money to pay a legal bill up front so they make arrangements with lawyers who work on contingency fees (usually 33-40% of the award) which is payable at the time of settlement/verdict.
So now, injured Floridians in the best case scenario after a wrongfully denied claim can only hope to walk away with 66-60% of their damages with the rest going to attorneys. The old law containing the attorney fee provision/penalty was also helpful in keeping the insurance companies in check since there was extra bite for a wrongfully denied claim.
Now there isn’t much penalty for negligently denied claims and the insurance carriers will be tempted to start offering 60-70% of damages knowing the injured party can’t do much better on their own. Certainly, there was abuse in the prior system but the new law falls short of doing the right thing.
There can have been changes to the law and caps on attorney fees for certain “small” cases but an outright ban on the old law is a backwards.
I am frustrated the bill appeared to be drafted behind closed doors without input from the general public; or more importantly, lawyers practicing personal injury law. I watched the bill be debated on the Senate Floor and was astonished that many of the questions/answers were prefaced with “well, I am not a personal injury lawyer and never litigated an injury claim but how about this point or that point.”
I understand why there appeared to be a need for a law change but unfortunately the legislature missed their mark on the execution. Now the people in Florida will likely suffer.
I co-manage an injury law firm in Delray Beach, Florida that has been in practice over twenty years. We are connected with hundreds of plaintiff lawyers across the state via the Florida Justice Association.
I don’t know of one Plaintiff lawyer who was consulted regarding the bill or even knew this bill was in the pipe-line. My peers and I were completely surprised by the bill and it was passed without any material change post-debate on the floor of the legislature.
I will speak out on one area of the bill entitled “comparative fault law” where I may appear to “cross parties lines.” Florida previously was a comparative fault state.
The law previously held that an injured party may receive compensation from a defendant so long as that defendant somehow contributed to the Plaintiff’s injury. The damages award would be reduced for the Defendant’s pro-rata share of fault: meaning if the damages are $100,000 and the defendant was 5% at fault then the defendant owes the Plaintiff $5,000 dollars.
The new law follows a modified contributory negligence rule wherein the Plaintiff may not obtain compensation from a negligent party if the Plaintiff was at least 51% at fault for the incident.
That means, under the new law, even if the defendant was 49% at fault for killing someone, that defendant has no liability in civil court so long as it can be said that the plaintiff was 51% responsible for the accident.
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James Donovan – Doroshow, Pasquale, Krawitz, and Bhaya
One of the fundamental things that makes America the greatest country on Earth is our legal system. The American Legal System allows a venue where everyone is equal.
A single person can sue the largest company (or even the American Government itself) and be on equal footing.
This law changes that and takes power away from the individual. Doing so is against what it means to be American and believe in equality before the law.
Thank you so much to all the experts that contributed to this expert roundup! Please share their article with your friends and followers on social media.
If you are an injury lawyer, or other professional with experience with this new law, and would like to add your opinion to this article, please feel free to get in touch.Share