Shortly after a state House committee last month okayed sweeping changes to the state’s litigation process, Speaker Paul Renner gathered a powerful array of business and insurance representatives in the Capitol’s Fourth Floor rotunda for a news conference.
They all agreed that, in making it harder to sue insurance companies, the legislation would reduce frivolous lawsuits and thereby protect businesses and everyday Floridians. At least that’s what certain GOP lawmakers and lobbyists believe.
One of those everyday Floridians, amid dozens who’d come to Tallahassee to oppose the bill, was watching the lobbyists speak that day in late February. His name is Gary Miracle, and he’s a former salesman who’d suffered amputation of all four of his extremities following a medical crisis, rendering him unable to perform basic life functions, much less hold a job.
He’s able to support his family because of a medical malpractice settlement—precisely the kind of legal process that the fellows in suits that day were intent on limiting. Standing there on prosthetic legs in the same room with them, Miracle felt completely unseen.
“They did not portray one single bit that they just listened to two hours of people complaining about this bill. They stood up there as if this was from the Bible and everybody was in agreement,” Miracle told the Phoenix later, in a telephone interview.
“And it was all fairies and unicorns when in all actuality everyone that stood up was fighting against it.”
As monumental a change to the law as the legal reforms under discussion would represent, Gov. Ron DeSantis and the Republican-led Legislature aren’t stopping there.
During the 60-day regular session that opens on Tuesday, lawmakers also will consider making it easier to sue journalists for libel and requiring bloggers who write about the governor, lieutenant governor, attorney general, chief financial officer, commissioner of agriculture, or legislators to register with the state and report any income their posts generate.
The inconsistency between suppressing the ability to sue on one hand and encouraging it on the other makes Florida First Amendment Foundation executive director Bobby Block’s head spin.
“All over the place he’s limiting lawsuits and in this particular instance he’s opening the door to a wild west of litigation where the only beneficiaries would be trial lawyers,” Block said of DeSantis. “It makes no sense unless if you look at it as an attempt to punish critics.”
Valentine Day’s Massacre
DeSantis launched the push for the insurance lawsuit bill on Valentine’s Day, during a joint appearance with Renner and Senate President Kathleen Passidomo.
“For decades, Florida has been considered a judicial hellhole due to excessive litigation and a legal system that benefitted the lawyers more than people who are injured,” DeSantis said at the time. “We are now working on legal reform that is more in line with the rest of the country and that will bring more businesses and jobs to Florida.”
The legislation (HB 837) is a stab at “tort” reform—meaning a wrongful act or infringement of a right amendable to a civil lawsuit.
It seeks to discourage insurance litigation by making these cases less lucrative to trial attorneys. That means making lawsuits against a range of industries including insurance harder to win and crimping the ability to force carriers to pay fee awards in litigation over rejected or low-balled claims.
For example, existing law apportions liability for accidents according to plaintiffs’ and defendants’ comparative liability: If the injured party bears 40 percent of the blame, the defendant can be ordered to pay 60 percent of the damages. The bill, however, would spare the defendant from paying any damages if the plaintiff is found more than 50 percent liable.
There’d be changes to policyholders’ ability to sue insurers for failing in their legal obligation to handle claims in good faith by improperly denying, underpaying, or stalling them—that is, operate in bad faith. Insurers would gain a grace period to offer settlements and policyholders would be required to act in good faith themselves by providing information needed to review claims. If not, a judge could reduce their recovery.
The bill would limit what evidence plaintiffs can present regarding their medical bills to reflect what they themselves have actually paid, since medical providers sometimes accept discounts on high initial invoices; the theory is that people should recover their real losses only, and not reap windfalls based in artificially inflated medical list prices. Courts would have to offset any payments to a plaintiff by government or private insurance.
Similarly, plaintiffs would have to disclose whether their medical providers issued “letters of protection,” agreeing not to collect bills until the plaintiff prevails in court.
One-Way Attorney Fee
Furthermore, the bill eliminates Florida’s one-way attorney fee, adopted by the Legislature in 1893 to even the balance of power between policyholders and insurance companies with their stables of lawyers. Instead, each side would bear its litigation costs.
The amount of attorney fees plaintiffs can recover is limited to a reasonable number of hours worked by the attorney multiplied by a reasonable hourly rate, unless the plaintiff can demonstrate that number wouldn’t allow him or her to retain counsel.
Sponsor and state Rep. Tommy Gregory of Manatee County, who is an attorney, argued during Renner’s news conference that consumers would be the ultimate beneficiaries.
“It’s common sense to them. They can tell by the number of insurance companies going bankrupt and fleeing the state and they can tell by the insurance premiums that there’s something amiss in the legal climate here. There’s something off in the civil remedy and the pursuit of damages,” he said.
“The civil justice system really is operating like a casino; all you need is an attorney. Once you get in there, you’re going to win. You can call it a casino, you can call it an ATM—they’ve got the PIN number. And they have the PIN number because we have one-way attorney fees; because we have inflated fee multipliers; because we have excessive and damages.
“This bill is designed to address those problems, bring the civil justice back into equilibrium, and that’s going to save all Floridians, all of our constituents, money, so they can stop paying that Florida tort tax, the insurance premium or surcharge,” Gregory said.
The American Tort Reform Association was represented during the news conference. So were Associated Industries of Florida, the Florida Chamber of Commerce, the Florida Justice Reform Institute, the Florida Retail Association, the Florida Trucking Association, the National Federation of Independent Business, the James Madison Institute, and Uber.
Separate bills could cover construction-defect claims (HB 85); nursing-home claims (HB 1029) asbestos claims (HB 755)l auto-glass claims (SB 1002); and RV park and premises liability immunity (SB 1054).
Jacksonville trial attorney Curry Pajcic, president of the Florida Justice Association, is lobbying hard against the legislation.
“This isn’t tort reform. This is an effort to deform our entire justice system, tilt the playing field in favor of the insurance industry by taking away the rights of Floridians … to hold people accountable and responsible when they harm you or your family,” he told the Phoenix by telephone.
Negligence Doesn’t Count
Pajcic complained the tort reform bill would specify that negligence by a carrier in handling a claim couldn’t be ground for a bad-faith lawsuit and that medical damages would be limited to 140% of what Medicaid would pay for similar care.
He cited an amendment added to the bill in committee that in premises-liability claims involving, say, a criminal act committed against a hotel guest, juries would be required to consider the criminal’s contribution to the injury—not just the hotel operator.
“That reduces their responsibility when someone provides negligent security,” Pajcic said.
In the case of the school shooting in 2018 at Marjory Stoneman Douglas High School in Parkland, it would mean assessing the role played by the gunman as well as failures by the school system and law enforcement.
“Who do you think the jury would give 90% to 99% of the liability to? The murderer of course. Why would the insurance company want to do that? Because they want to sell policies for general liability and not pay a dadgum nickel. It would make Florida a more dangerous state,” he said, because it would disincentivize hotels from investing in reasonable security,” he said.
“You can’t put the dog on a verdict form in a dog-bite case because the owner of the dog has a responsibility to protect you from the dog. It would be like putting the fire on the verdict form when the house burns down—well, it’s the fire’s fault, not the electrician’s fault for negligently putting the wiring together.”
As for the comparative negligence language, Pajcic proposed this scenario: A motorcyclist suffers catastrophic injuries after getting hit by a driver running a stop sign. Under the new contributory negligence rule, if a jury decides the biker was even slightly more to blame for an accident, he collects nothing from the driver’s insurer.
On the other hand, if the driver is found 49% responsible, she would pay only 49% of the biker’s medical costs.
“This would result in the largest increase in the Medicaid rolls in the history of this state, because he would be on the public dole instead of State Farm and Progressive and Geico and Liberty Mutual paying their fair share, their 49%,” Pajcic said.
‘A Pretty Solid Seven to 10 Years’
Miracle, whose malpractice settlement provides for his continuing care and financial support for him, his wife, and seven children, said the medical cost limits would have been devastating to him.
“I’m guessing I would have had a pretty solid seven to 10 years of living with the money that was awarded to me based on what this bill would look like. And I’m only 41 years old. That means that by the time I’m 50 I’m out of money and not physically able to go back to work,” he said.
“We spend four or more hours [in committee] talking about attorneys and insurance and auto-glass repair inspectors and all of the other aspects to what this bill encompasses, and in the very fine print with the small whispers, ‘Oh, by the way, if you’re catastrophically injured and it’s not your fault, you don’t deserve what a jury would award you.
“The most hurtful part of all of this is all they’re doing to people like me is telling what I’m worth with a dollar amount—not telling me what my value is,” he said. “My identity across the board has been taken from me and now you’re telling me that my worth is going to be devalued as well, only to provide I don’t even know what.”
Also on the agenda this session is a bill to redefine libel law in Florida. DeSantis, who has a pattern of attacking the press, lay the groundwork for the legislative effort during a panel discussion in early February.
“We’ve seen over the last generation legacy media outlets increasingly divorce themselves from the truth and instead try to elevate preferred narratives and partisan activism over reporting the facts,” he said at the time.
“When the media attacks me, I have a platform to fight back. When they attack everyday citizens, these individuals don’t have the adequate recourses to fight back. In Florida, we want to stand up for the little guy against these massive media conglomerates.”
The U.S. Supreme Court set the standard for what constitutes libel in 1964 in its New York Times v. Sullivan ruling. Plaintiffs have to show a publication acted with “actual malice” in printing defamatory material about government, political, and public figures, defined as knowledge that the information was false or acting “with reckless disregard of whether it was false or not.”
The bill (HB 991) seeks to assert state jurisdiction over this area of law.
“The federalization of defamation law, including the judicially created actual malice standard, bears no relation to the text, structure, or history of the First Amendment to the United States Constitution,” the bill’s preamble asserts.
Neither does the Sullivan standard account for the proliferation of social media, the preamble adds, nor “the ever-diminishing investigation and reporting standards of publishers.”
The bill excludes from its definition of “public figure” anyone raising a defense against an accusation; who granted an interview about a topic; works for the government, other than elected officials or appointed by an elected official, or who publishes material that spreads widely the internet.
“A statement by an anonymous source is presumed to be false in a defamation cause of action,” the bill says. That would eliminate a major source of news about the government’s inner workings by eliminating whistleblowers with information about corruption of malfeasance within a government as news sources.
The bill suggests the Supreme Court reconsider Sullivan—as DeSantis has suggested.
“The United States Supreme Court should therefore reassess its post-1964 understanding of defamation law and, consistent with our nation’s system of federalism, return to the states the authority to protect their residents from defamatory falsehoods and the ability to make their own policy judgments regarding the prevention of defamation,” the preamble reads.
“It’s bad. It’s very bad,” said Block, of the First Amendment Foundation.
“It basically puts anyone that comments or reports on any political or important social happenings in the crosshairs of a potential lawsuit. And I don’t mean just CNN or The New York Times or the Miami Herald or the Tampa Bay Times. I mean Facebook users, conservative broadcasters, citizen bloggers—everybody and anybody. It will have more than a chilling effect on public discourse; I expect it would freeze it. And it will have a devastating effect on media in the state—all media,” he said.
“Some people I know think it’s about helping little guys who don’t have a chance against big media companies. And I know that a lot of people think it’s about correcting excesses of the press. But, in reality, neither of those are true. It’s really about enabling powerful people to bring critics to heel. It’s an awful, un-American piece of legislation.”
Does Block think the U.S. Supreme Court will take up the bill’s offer?
“I’m not sure the votes are there. This is not Roe v. Wade,” he said.
“But what I’m concerned about if it’s challenged in court, and if courts don’t issue an injunction against it—which has been the trend of late—then the law will stand until its heard by the U.S. Supreme Court and, in that period of time, will have a devastating impact on how people participate in public discourse and how people participate in government, local as well as state.”
The blog regulation bill (SB 1316) comes courtesy of Jason Brodeur, who represents Seminole and part of Orange counties. It conflates bloggers with lobbyists, who take money to represent clients before elected officials. Accordingly, they would have to register with the state, like lobbyists do, and disclose any payments received for posts or series of posts.
They’d be subject to fines of $25 per day for late reports, up to $2,500.
It defines “blog” as “a website or webpage that hosts any blogger and is frequently updated with opinion, commentary, or business content. The term does not include the website of a newspaper or other similar publication.” It defines “blogger” as anyone “that submits a blog post to a blog which is subsequently published.”
“Paid bloggers are lobbyists who write instead of talk. They both are professional electioneers. If lobbyists have to register and report, why shouldn’t paid bloggers?” Brodeur told Florida Politics of his bill.
Block, of the First Amendment Foundation, compared the bill to censorship in the Russian Federation, the apartheid government in South Africa, and other repressive regimes.
“If you take this proposed bill in conjunction with the attempts to remake national defamation law and you add rules about who can hold an event at the Capitol, you start to wonder whether the Florida legislators and Florida politicians have not declared an all-out war on the First Amendment and free speech,” he said.
“I find all of this—there’s no other way to say it—un-American. It serves no purpose as far as I’m concerned other than intimidating and chilling and trying to punish free speech and bring critics to heel. I can’t come to any other conclusion.”
Republished with permission from Florida Phoenix, by
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