USA – FLORIDA Trends and Developments Contributed by: Melissa Sims and Patrick Betar, Berk, Merchant & Sims
claims of negligence and liability. The reforms touch nearly every aspect of civil litigation, but several key provisions stand out. Shorter times to present and investigate a claim To begin with, the clock now runs faster than it once did. Prior to the tort reforms, a claimant generally had four years from the injury to file a negligence suit. Post-reforms, the Legislature has reduced the statute of limitations to two years for most negligence claims. These claimants need to move faster and companies must respond with greater speed and due diligence when investigating and evaluating those claims. As for a potential plaintiff, a lawsuit filed after the two-year cut-off will be barred and no recovery will be allowed, so due diligence is needed from the start to preserve a claim. For a company facing potential liability, internal inci- dent reporting and review should begin immediately after any event occurs. With the shortened timeframe for filing lawsuits, however, businesses must move quickly to evaluate incidents and − where necessary − engage experts or consultants early on. It is equally important to notify any liability insurer at the earliest stage, as the carrier’s window in which to investigate before a lawsuit is filed has also been reduced. Wait- ing for a formal demand letter may leave too little time to conduct a thorough investigation or begin preparing an effective defence. A new view of fault Since 1973, Florida had followed a pure comparative negligence system. The pure comparative negligence is a standard whereby a jury verdict is modified based on the comparative negligence of the parties. By way example, if a jury finds the defendant is 75% at fault and the plaintiff was 25% at fault, the plaintiff could only recover 75% of their damages. In other words, a plaintiff’s recovery would be reduced by the percent- age that their own fault contributed to the plaintiff’s own loss. To one degree or another, 45 states follow this rule. Florida’s 2023 tort reforms replaced the long-standing pure comparative negligence system with a modified standard − an approach now used in roughly 34 other states in some form. Under this rule, if a jury finds
that a plaintiff is more than 50% at fault, that plaintiff is barred from recovering any damages. If the plain- tiff’s share of fault is 50% or less, recovery is simply reduced in proportion to that percentage. The change applies to most negligence actions filed on or after 24 March 2023, with medical malpractice cases exempt- ed and still governed by the former pure comparative negligence standard. In practical terms, pursuing a negligence case to trial has become a higher-stakes gamble when the claim- ant may share significant blame for the incident. The new rule could push both sides towards earlier, more genuine settlement discussions − a shift that should benefit everyone involved. Major changes to evidence of medical expenses Another significant change under the new legislation involves how juries see medical expenses at trial − a reform that reshapes Florida’s long-standing collateral source rule. Before these reforms, plaintiffs were allowed to pre- sent the full amount of their medical bills at trial, even if those charges far exceeded what was actually paid. In many cases, an injured person’s private health insurer had negotiated lower rates with medical providers, paying only a fraction of the original invoice. Still, the jury would still see the higher “sticker price”, while defendants were barred from revealing the reduced amounts health insurers actually paid − an issue to be taken up by the judge in post-trial motions. The result was often a distorted picture of the true cost of care, and one that could dramatically inflate damage awards and garner sympathy from the jury. The new law brings that practice to an end. Now, only the amounts actually paid for medical treatment can be introduced as evidence. If an insurer covered the expenses, the jury sees what the insurer paid − not the higher amount originally billed by the medical pro- vider. And, for any outstanding medical bills, the law allows evidence of what the insurer would have paid for those services. Florida, like many other states, also permits the use of letters of protection − agreements that can signifi- cantly influence how medical damages are presented
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