Trial lawyers vs. business fight could leave average Floridians in the lurch
‘We’re here being the voices for the future victims’
Old Florida Capitol building. Credit: Danielle J. Brown
Bikers roamed the state capital this week.
Inside the Capitol complex, dozens of motorcyclists packed into a committee room to complain that language in proposed legislation would leave them unable to recover from insurance companies if they get plowed into by a car when they aren’t wearing a helmet.
As lawmakers consider sweeping legal reforms in the 2023 legislative session, Miami plaintiffs’ attorney Stephen Cain Wednesday testified that he handled just such a case, saying insurance defense lawyers would have used the provision to blame the biker for putting himself at risk had it been in force at the time.
“In this bill, he likely would have gotten nothing,” Cain said.
In another case, Maria Carmona broke down in tears Wednesday while testifying before a Florida House committee about the lawsuit reform package backed by Gov. Ron DeSantis and Republican leaders in the Legislature.
She’d traveled from her home in Broward County to the state Capitol because of language in the bill that would allow juries to allot a share of blame against criminals in cases like hers, a premises-liability lawsuit against her condo association for allowing a dangerous neighbor to live in the complex.
While describing the hammer murder of her baby and aunt by that man, who broke into her condo unit, Carmona dissolved in tears and was led away from the podium by her husband, José Morales.
Outside the committee room, she explained that her family might not have been able to collect full damages had the bill been law. That’s the language that prompted the trip to Tallahassee.
“There was no security at all. They knew that he had previous problems with kids. When we got there, I was pregnant, and they knew if I would be in that apartment eventually there would be a baby in that apartment. They knew it was going to be problem in the future,” she told the Phoenix.
“Going up there to speak about that was really hard, really hard. Because we are the faces of the pain. This is what pain feels like. This is what pain looks like,” Carmona said. “We’re here being the voices for the future victims.”
Notwithstanding the poignant episode, plus similar stories offered by dozens of other everyday Floridians, the House Judiciary Committee approved the legislation, 16-8, after rejecting a series of Democratic amendments intended to blunt its impact on ordinary people. Next stop is the House floor.
The measure is one of a series of limits on lawsuits before the Legislature this year, including one to make it easier to sue news organizations over alleged libel.
Backers, including co-sponsors Reps. Tommy Gregory of Manatee County and Tom Fabricio of Miami-Dade, both commercial litigators and Republicans, argued that Florida needs to make it harder to sue insurance companies in disputes over claims payouts. Frivolous lawsuits by what insurance and other business interests refer to as “billboard lawyers” are forcing carriers into over-generous settlements and jury verdicts that make it more expensive to do business, they claim.
“This is about balancing litigation in Florida, which we all know is out of control,” Fabricio said. “We are out of whack. We’ve been a judicial hellhole for many years, unfortunately. Passing this bill would bring us out of that realm.” That’s at least GOP lawmakers view it.
The committee voted out a revised version of the bill that would allow carriers to evade bad-faith litigation for stalling or underpaying claims if they offer to pay a policy’s limit within 120 days of a notice of intent to sue. Courts would have to consider any financial contributions from health insurance or discounts medical providers grant on bills for services.
In assessing future medical costs, courts would consider to the degree to which health insurance policies would contribute to care. Plaintiffs who lack health insurance would be limited to 120 percent of whatever Medicare would pay or, if Medicare wouldn’t cover the care, 170 percent of what Medicaid would pay to treat the patient.
Gospel of Mark
That might not be enough in cases of catastrophic injury, according to the plaintiffs’ attorneys and injured people who testified.
Gary Miracle, who lost all four limbs due to what he described as medical malpractice, doubted that would be enough to cover long-term treatment and living expenses for people like himself who can’t work — “not money that I can live on. Not money that you would hire me for so I could provide for my family, in any way, shape, or form, he testified.
“I’m asking you guys, as it says in the Gospel of Mark, that you would love your neighbor as yourself, he said. “I’m just asking you guys to love me as much as you love you.”
The bill contains “comparative liability” language allowing courts to consider what role an injured person played in his or her injury — and, if that’s more than 50 percent, he or she could collect nothing from the insurer.
Medical providers agreed that the legislation would leave patients unable to afford lengthy hospital stays, convalescent care, and rehabilitation.
Tampa plaintiff’s attorney Dale Swope said insurance and business interests exaggerate the number of bad-faith claims.
“There’s no epidemic of this. They just hate it because they can’t pass this cost back to the consumers through increased premiums,” Swope said. Of insurers, he continued, “They need to not gamble. They need to understand that what you paid for was protection and they need to just do their job. They do their job, they don’t get sued.”
Fabricio countered that plaintiffs’ attorneys would remain free to make their best cases to juries.
Carriers wouldn’t be responsible for third-party claims — say, injuries to a car passenger driven by a policyholder — in excess of the policyholder’s coverage limits. Carriers could send the case to a separate hearing at which a judge would split the payout, or to arbitration.
Juries could hear whether the plaintiff’s attorney referred the patient to a particular doctor and carriers’ attorneys could question whether that biased the doctor’s testimony.
The bill says juries in premises-liability cases — say, when people are assaulted in a hotel or other business because the proprietor allegedly failed to take reasonable protective measures — to consider what blame the assailant played. The provision gives cover when the business maintains lighted parking lots, hallways, and other common areas; installs deadbolt locks on unit doors; installs locks on gates, doors, and sliding doors; and trains staff in security measures.
Plaintiffs’ attorneys argued that criminal behavior is irrelevant to whether a business owner took necessary steps to protect customers. Fabricio argued that juries could figure that out. “It’s the plaintiff’s burden to show the crime was foreseeable,” he said.
Furthermore, the bill eliminates Florida’s one-way attorney fee, which the Legislature adopted in 1893 to even things between policyholders and well-heeled insurance companies. Instead, each side would bear its litigation costs. The only exception would be for nonpayment of life insurance claims.
There to support the bill were some of Florida’s most powerful interests, including the Florida Retail Federation, the Florida Restaurant and Lodging Association, the Florida Bankers Association, the Florida Hospital Association, Associated Industries of Florida — even the U.S. Chamber of Commerce.
But even proprietors of small businesses complained they are being squeezed by high insurance costs driven by claims litigation.
Both the House and Senate would need to agree on the legislation, as would Gov. Ron DeSantis. The Senate version has passed one committee and faces hearings before another two committees.
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