Tort Reform

Tort Reform

By David R. Corder

Associate Editor

Associated Industries of Florida Inc., a powerful business lobby, has proposed a rewrite of the state's tort laws.

In early January, the Tallahassee-based business lobby circulated a 111-page reform bill in advance of the 2005 Legislative session. Tampa's Stiles Taylor & Grace PA wrote the draft.

The proposal calls for 26 changes aimed at protecting businesses in areas such as premises liability, bad faith insurance settlements and vicarious liability. It also proposes changes in how the state regulates lawyer licensing and advertising.

Neither spokespersons for Associated Industries nor the Academy of Florida Trial Lawyers were available for comment. It is uncertain whether the business lobby has secured bill sponsors in the state Senate or House.

Florida Bar counsel Arthur "Buddy" Jacobs has not read the draft but he saw a news account in the Tallahassee Democrat. Jacobs, counsel to the trial lawyers section, wouldn't comment about specific proposals in the draft bill.

"We don't get involved in issues unless they deny people access to the court system as a forum in which to address their grievances," Jacobs says. "We will vigorously oppose any part of it that limits a Floridian's access to the civil court system."

The business lobby unveiled the bill months after Gov. Jeb Bush called on legislators to move forward on tort reform.

The draft apparently goes far beyond what Bush or the Florida Chamber of Commerce proposed.

As part of its published legislative agenda, for instance, the chamber specifically wants changes in the state's premises liability law, protections from litigation because of defective street lighting and limitations on lawyer advertising. Those proposals also are included in the draft bill.

One proposal would resurrect the business lobby's effort to put lawyer regulation and licensing under the purview of the state Department of Business and Professional Regulation instead of the bar.

Another would prohibit lawyer ads that "incite" clients to file medical negligence lawsuits. This proposal would classify a violation as a first-degree misdemeanor.

Business would gain several advantages, according to the draft bill. Those advantages include the following areas:

Premises liability - Any owner or operator of a business would not be liable for acts caused by intentional or criminal acts by a third party.

Products liability - Retailers would not be subject to claims unless they make express warranties or alter packaging or labeling.

Joint-several liability - Apportionment of damages in negligence actions would be assessed only on percentage of fault.

Punitive damages - Courts would only allow such damages in cases of intentional misconduct or intoxication. Intentional misconduct means the defendant must have actual knowledge of the wrongfulness of conduct and the high probability that injury or damage would result. This proposal eliminates gross negligence as a claim.

Vicarious liability - Owners of nursing facilities, home health agencies, adult day care facilities and hospices would no longer be liable for the actions of employees.

Collateral sources - Juries would be told of all amounts payable and available to a plaintiff. The court would reduce any jury award by the amount payable or available from collateral sources.

Bad faith - Prohibits punitive damages against insurers accused of bad faith settlements. It would require convincing evidence of unreasonable refusals to settle.

Settlements - This would penalize plaintiffs who refuse settlements that the court deems reasonable. The defendant would be allowed to recover court costs and attorneys' fees in judgments that render no liability or are at least 25% less than settlement offers.

Compensation - This would sustain a voter mandate that guarantees a plaintiff no less than 70% of the first $250,000 of an award and 90% of all damages in excess of $250,000.

Besides those proposals, the business lobby also wants to reduce the statute of limitations for certain product liability and personal injury claims, set time bars for actions against architects, proposes the creation of prerequisites for class action lawsuits and would place restrictions on filings of asbestos claims, in addition to several other recommendations.