At long last, Governor Ron DeSantis is poised to sign House Bill 837, companion to Senate Bill 236, into law in the upcoming days, finalizing significant tort reform in the state of Florida. As currently written, House Bill 837 will dramatically shift the landscape of civil litigation in Florida. Specifically, HB 837 will alter the comparative nature of the current framework to a modified system, standardize the evidentiary threshold necessary to prove damages for medical expenses in certain civil actions, require certain disclosures with respect to claims for medical expenses for treatment rendered under letters of protection, reduce the statute of limitations for negligence actions, standardize bad faith actions, and alter presumptions in certain negligent security matters. Herein, we will provide insight and analysis of the proposed changes.

If HB 837 is signed into law, Florida will move from a pure comparative negligence system to a modified comparative negligence system. Under the current pure comparative negligence framework, a claimant’s recovery is reduced in proportion to the percentage of fault, if any, that his or her actions or inactions contributed to the damages or injuries sustained. Additionally, a defendant can further diminish its liability to the claimant based on the comparative fault of others. Under the proposed modified comparative negligence system, anyone found to be at least fifty-one percent (51%) liable for an incident cannot seek reparation from the other party.

The language of HB 837 significantly modifies what evidence is admissible at trial to prove medical treatment and expenses. Evidence offered to prove the amount of damages for past or future medical treatment in personal injury actions and wrongful death actions will be generally limited to evidence of the amount actually paid. Evidence offered to prove the amount necessary to satisfy unpaid charges will be limited to the amount the heath care provider is obligated to pay should the claimant have heath care coverage other than Medicare or Medicaid. If a claimant has heath care coverage and receives treatment under a letter of protection, the claimant will only be able to board the amount the claimant’s heath care coverage would pay the medical provider to satisfy the past unpaid charges under the insurance contract or applicable regulation. If the claimant does not have heath care coverage or maintains heath care through Medicare or Medicaid, evidence offered at trial will be limited to one-hundred and twenty percent (120%) of the Medicare reimbursement rate in effect on the date of the incurred treatment or one-hundred and seventy percent (170%) of the applicate state Medicaid rate. Further, in personal injury actions and wrongful death actions, as a condition precedent to asserting any claim for medical expenses rendered under a letter of protection, the claimant must disclose the letter and an itemized billing ledger for the claimant’s medical expenses.

Additionally, proposed law HB 837 alters the statute of limitations in negligence actions. Currently, claimants in negligence actions have four (4) years from the time of the incident to file a suit in Florida. Under HB 837, the statute of limitations will be reduced by two (2) years. As such, claimants will only have two (2) years from the time of the incident to file a suit.

HB 837 radically augments Florida’s bad faith law. Specifically, the proposed language explicitly mandates that mere negligence alone is insufficient to constitute bad faith in both statutory and common-law actions. Moreover, the proposed language imposes a duty on the claimant and the claimant’s attorney to act in good faith when furnishing information regarding the claim, issuing demands, setting deadlines, and attempting to settle. In this regard, the language aims to rein in claimants and their attorneys who seek to fabricate bad faith claims by withholding information or imposing unrealistic deadlines. HB 837 creates an immunity in bad faith actions where the insurance carrier tenders either the lesser of the policy limits or the amount demanded by the claimant within ninety (90) days after receiving actual notice of a claim that is accompanied by evidence to support the amount at-issue. Finally, HB 837 creates a mechanism for the distribution of insurance proceeds when two (2) or more claimants make competing claims stemming from a single occurrence and the amount sought exceeds the available limits. In the aforementioned situation, the carrier can file an interpleader action or enter binding arbitration.

Further, the proposed language will protect apartment and other multi-family housing property owners from liability when a criminal injures a resident on the property. If the property owner takes certain precautions, such as securing video monitoring and lighting (among other things), the property owner will receive a presumption against liability. In order to obtain the presumption against liability, the owner or operation should install a security camera system at points of entry and exit that maintains retrievable footage for at least thirty (30) days; install a lighted parking lot illuminated from dusk to dawn; install lighted walkways, laundry rooms, common areas and porches; install at least a one (1) inch deadbolt in each dwelling unit door; install a locking device on each window; install locked gates with key or fob access along pool fence areas; and install a peephole or door view on each dwelling unit door that does not already include a window. There are several other requirements as well.

Per Section 28 of the law, changes to the statute of limitations will only impact cases that accrue after the effective date of the act. Similarly, pursuant to Section 29, changes in statutes pertaining to insurance policies will go into effect for policies issued after the bill is signed into law. Finally, Section 30 of HB 837 provides a catch-all applying the act to all causes of action filed after the effective date unless otherwise expressly provided therein.

Based on this, we can expect an influx of lawsuits in the near future as attorneys will seek to skirt these new laws before they go into effect. WSHB’s Florida general liability is ready to assist on all new cases and provide additional analysis of the new legislation as requested.

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