Last month, we provided an overview of Florida Tort Reform HB 837 - a wide-ranging tort reform bill ratified on March 24, 2023. With the stated goal of stabilizing the state’s insurance market, the bill’s sweeping provisions will undoubtedly have an impact on the litigation landscape in Florida.
HB 837 codifies some common law principles but also changes the existing liability apportionment scheme in tort, limits bad faith claims against insurers, modifies premises liability, and limits attorney’s fee awards. Although it is impossible to predict exactly how HB 837 will impact the legal landscape in Florida, it is a worthwhile exercise to anticipate some of its effects and identify potential legal challenges to better prepare for future litigation.
Deeper Dive and Discussion
I. New Liability Apportionment Scheme
With the passage of HB 837, Florida transitions from a pure comparative negligence system to a modified comparative negligence system. Under the prior fault apportionment scheme, a plaintiff could recover in proportion to their percentage of responsibility as assessed by the fact-finder.
Previously, if a fact-finder were to attribute 90% fault to the plaintiff and 10% to the defendant, the plaintiff could still recover 10% of the damages. Now, under modified comparative negligence, a plaintiff is barred from recovery if the fact-finder attributes more than 50% fault to the plaintiff. Yet, the proportional reduction in damages remains, provided the plaintiff is 50% or less at fault. For example, if the fact-finder finds both plaintiff and defendant 50% at fault where plaintiff seeks $10,000 in damages, plaintiff still only recovers $5,000.
Facially, changing the liability apportionment scheme of the state from pure to modified comparative negligence would seem to favor defendants in negligence actions. Defendants now only need to show that the plaintiff is more than 50% at fault for his or her injuries in order to avoid liability entirely.
Additionally, given the greater chance that recovery may be barred entirely, plaintiffs will have stronger motivation to settle, so as to ensure recovery of at least some portion of damages. Conversely, this provides defendants with more leverage during settlement discussions, which may result in lower settlement amounts. Essentially, the new modified comparative negligence scheme provides plaintiffs with more risk in litigation, and decreases the risks faced by defendants.
One study, in relevant part, provides evidence that settlement amounts are lower in jurisdictions with modified comparative negligence schemes than in those with pure comparative negligence schemes. [1]
On the other hand, some available evidence actually suggests that Florida’s new comparative negligence scheme isn’t the disaster for plaintiffs that some have projected.
Based on data from two studies, Civil Justice Survey of State Courts, 2005, and Civil Justice Survey of State Courts, 2001, in jurisdictions that adhere to modified comparative negligence, juries find plaintiffs to be 50% or less negligent more often than juries in pure comparative negligence schemes.
According to Eli K. Best and John J. Donohue III, authors of Jury Nullification in Modified Comparative Negligence Regimes, “juries found the plaintiff between 0 and 25% negligent with nearly identical frequency in the two regimes, but found the plaintiff between 26 and 50% negligent more frequently in modified regimes and between 51 and 100% more frequently in pure regimes.” [2]
This phenomenon may result from the discomfort that juries feel when put in a position to bar a plaintiff’s recovery entirely in situations where the defendant does bear a certain degree of fault. [3] In these cases, it appears that juries seek to avoid what they may perceive as an unjust result, allowing the plaintiff to recover something rather than nothing. This, in turn, lessens the impact of the modified comparative negligence scheme, when compared with pure comparative negligence.
The authors echo this sentiment:
These results show that modified comparative negligence motivates juries to manipulate their findings in predictable ways with significant frequency. All else equal, if a case occurs in a modified comparative negligence jurisdiction, a plaintiff is approximately 12 percentage points more likely to be found between 40 and 49 percent negligent, approximately 12.9 percentage points more likely to be found exactly 50% negligent, and approximately 21.5 percentage points less likely to be found between 51 and 100 percent negligent. The results are statistically significant at the 99% confidence level. [4]
So what does this information mean for prospective negligence cases? Defendants should not rely on the modified comparative negligence total bar of recovery as a primary litigation strategy in jury trials. If a jury is informed of how the modified comparative negligence scheme works, it seems probable that it may seek to tailor its fault apportionment in order to allow the plaintiff to recover some amount in damages.
II. The Safe Harbor Provision for Insurers Against Bad Faith Claims
HB 837 precludes bad faith actions against insurers when the insurer “tenders the lesser of the policy limits or the amount demanded by the claimant within 90 days after receiving actual notice of a claim which is accompanied by sufficient evidence to support the amount of the claim.” [5] One area that may require further interpretation is what actually constitutes “sufficient evidence.” This new provision will likely result in an increase in settlements prior to filing suit, with insurers seeking to avoid the risk of a bad faith claim.
Additionally, if multiple claims arising out of a single occurrence exceed the policy limits in total, the insurer is not liable beyond the policy limits for failure to pay any or all of the policy limits if within 90 days: (a) the insurer files an interpleader action under the Florida Rules of Civil Procedure, and if the claims are found in excess of policy limits, distribute to each claimant a prorated share of the policy limit; or (b) the insurer, pursuant to binding arbitration, makes the entire policy limit available to competing third-party claimants whose prorated share is determined by the arbitrator. [6] HB 837 also codifies the existing common law principle that mere negligence alone is insufficient to constitute bad faith. [7]
These new provisions will likely reduce the use of “bad faith traps,” which have previously been used in Florida to establish liability of insurers beyond policy limits. A bad faith trap is a strategy employed against insurance companies to manufacture a bad faith claim and thus increase damages and attorney fee awards. [8] Under this new safe harbor created by HB 837, it will be much harder for parties to employ bad faith traps against insurers, reducing insurers’ exposure in litigation.
III. Substantive Due Process
The changes implemented by HB 837 may be subject to substantive due process challenges under the United States and Florida Constitutions. [9] Such a challenge to the acts of a legislature hinges on the type of right that was allegedly infringed and whether the government was justified in its actions in limiting the exercise of that personal right or liberty. [10]
“[S]ubstantive due process has two strands—one that protects against deprivation of fundamental rights and one that protects against arbitrary legislation.” [11] When a law infringes upon a fundamental right, a court will review the law by applying strict scrutiny. To pass muster under strict scrutiny, the government must show that the law is narrowly tailored to further a compelling government interest. [12]
Conversely, if a law does not implicate a fundamental right, a court will conduct a rational basis review, upholding the law if it “bears a rational basis to a legitimate government purpose.” [13] When a challenge to the constitutionality of a statute is evaluated under rational basis review, “the burden is on the one attacking the legislative enactment to negate every conceivable basis which might support it.” [14]
Generally, courts presume that statutes are constitutional, and, when applicable, disputes should be resolved in favor of a finding of constitutionality, as “a court may not substitute its judgment, for that of the legislature, as to the wisdom and policy of a particular statute.” [15] And “Florida’s substantive due process test [is] indistinguishable from the federal one.” [16]
HB 837 contains several provisions which may be subject to a substantive due process challenge. One such challenge may be to the shortened limitations period for filing an action founded on negligence. However, such a challenge is likely to be unsuccessful. The U.S. Supreme Court has previously held that legislative actions shortening the time to file suit are permitted:
It is the settled doctrine of this court that the legislature may prescribe a limitation for the bringing of suits where none previously existed, as well as shorten the time within which suits to enforce existing causes of action may be commenced, provided, in each case, a reasonable time, taking all the circumstances into consideration, be given by the new law for the commencement of suit before the bar takes effect. [17]
The Supreme Court indicates that freedom from limitation to bring a lawsuit is not a fundamental right, thus subjecting legislation imposing such to rational basis review. The imposition of a shortened limitations period easily passes this review.
Additionally, while HB 837 took effect immediately upon being signed into law, the provision shortening the negligence limitations period from four years to two years only applies to causes of action that have accrued after the effective date of the legislation. Thus, actions based upon injuries that have already accrued are unaffected.
Other potential areas of contention under HB 837 are the changes to Florida’s tort law scheme, overall. These include the change to modified comparative negligence, the safe harbor given to insurers for bad faith claims, the elimination of contingency fee multipliers, and the presumption against liability for certain owners of multifamily residential property. Each of the “rights” that are eliminated or modified by the above were created under Florida statute.
However, “[a]reas in which substantive rights are created only by state law (as is the case with tort law and employment law) are not subject to substantive due process protection under the Due Process Clause because ‘substantive due process rights are created only by the Constitution.’” [18] “As a result, these state law based rights constitutionally may be rescinded,” so long as their rescission does not run afoul of any other constitutional provision, such as procedural due process. [19]
Here, because each of the above-listed changes eliminate or modify a right originally created under Florida statute, they are not considered fundamental rights for the purposes of a substantive due process analysis. Being subject to rational basis review, these changes do bear a rational basis to a legitimate government interest.
Conversely, some of the changes established by HB 837 may implicate enumerated rights contained within the Florida Constitution, such as access to courts. This topic is lengthy, and warrants its own separate discussion.
IV. Access to Courts
The Florida Constitution mandates that “[t]he courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” [20]
In determining whether a limitation on court access is permissible, Kluger v. White provides guidance:
[W]here a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla. Stat. § 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown. [21]
Essentially, the test the Court is applying in Kluger is the strict scrutiny standard, described above. [22] This makes sense, as access to courts is a fundamental right enumerated by the Florida Constitution. [23]
Here, it is unlikely that any of the provisions within HB 837 consist of an impermissible restriction on a claimant or insured’s access to the courts.
Regarding the new safe harbor for bad faith actions against insurers, the bad faith statute was originally codified in 2003 [24], which was well after the adoption of the Florida Constitution [25], so even abolishing the statute entirely would not be unconstitutional.
However, common law bad faith claims do predate the adoption of Florida’s Constitution [26], meaning that the Legislature could not abolish the right to pursue these claims entirely, unless subject to requirements provided in Kluger. Here, however, HB 837 merely establishes new limits on bad faith claims in the interest of protecting insurers, and does not go so far as to abolish such claims entirely. [27]
Rather, the safe harbor presents an opportunity for insurers to free themselves of potential liability for bad faith by offering to pay a claimant’s entire demand or the full policy limits, depending on the circumstances. Should the insurer choose to do neither, a common law bad faith claim can still be filed. [28]
Similarly, other provisions of HB 837 merely limit the scope of already established legal doctrines. The new § 768.0706, Fla. Stat. does not abolish lawsuits against property owners for injuries caused by third party criminal acts on their properties entirely. Rather, it creates a presumption against such liability. Thus, litigants will still be able to bring their actions in court but will have to provide evidence to rebut the presumption.
The change from pure comparative negligence to modified comparative negligence also does not abolish the right to pursue negligence actions. Furthermore, Florida did not transition away from the common law contributory negligence doctrine until 1973, when the Supreme Court of Florida adopted pure comparative negligence in Hoffman v. Jones. [29] In 1976, the doctrine was codified by the Florida Legislature. [30]
Prior to the 1973 Hoffman decision, the traditional doctrine of contributory negligence was the prevailing theory in Florida. [31] Modified comparative negligence serves as a middle ground between contributory negligence and pure comparative negligence theories with regard to the ability of a plaintiff to recover despite being allocated some degree of fault. Thus, the modified comparative negligence scheme provides greater access to courts than the doctrine that was in place when the Florida Constitution was ratified.
Conclusion
Though HB 837 is a sweeping legislative enactment with a myriad of modified and new provisions, the likelihood of a successful challenge by aggrieved parties appears small.
Going forward, it is likely that both insurance companies and plaintiffs will see benefits from this legislation, although the bill does heavily favor insurers. It is essential that all attorneys become familiar with all of the changes established within the bill so as to ensure they continue to provide proper and accurate advice to clients.
About our Authors
About Jessica Zelitt: Adams and Reese Associate Jessica Zelitt, resident in the firm's Sarasota office, practices as a litigator representing clients within the construction, commercial, and real estate arenas in all phases of the litigation process.
About Kevin McKendry: Adams and Reese Associate Kevin McKendry, resident in the firm’s Jacksonville office, practices in financial services and commercial litigation.
Adams and Reese Law Clerk Ryan McGuire contributed to this article.
Footnotes
- “. . . settlements under pure comparative negligence are greater than those under modified comparative negligence, and [ ] settlements under modified comparative negligence are greater than those under contributory negligence, across the entire spectrum of appraised fault.” Daniel Kessler, Fault, Settlement, and Negligence Law, 26 RAND J. 296, 306–307 (1995).
- Eli K. Best & John J. Donohue III, Jury Nullification in Modified Comparative Negligence Regimes, 79 U. Chi. L. Rev. 945 (2012).
- “Compared to juries in pure comparative negligence jurisdictions, juries in modified comparative negligence jurisdictions are substantially less likely to find that a plaintiff was more than 50 percent negligent. And unsurprisingly, juries in modified comparative negligence jurisdictions are more likely to find that a plaintiff was between 40 and 50% ” Id. at 967.
- at 965.
- 624.155(4)(a), Fla. Stat.(2023).
- 624.155(6)(a–b), Fla. Stat. (2023).
- See Harvey v. Geico Ins. Co., 259 So. 3d 1, 9 (Fla. 2018).
- Florida’s Supreme Court has identified this problem of bad faith traps as far back as 1980. “In the ‘Alice-in-Wonderland’ world created by the Thompson rule, it is to the injured party's benefit if the insurer breaches its duty to its insured and to his detriment if there is no breach. This is so since, if the insurer settles, the plaintiff will receive no more than the policy limits, but if it does not, the plaintiff may end up with both the policy limits and an excess judgment.” Old Colony Ins. Co. v. Gutierrez, 386 So. 2d 783, 786 (Fla. 1980) (Alderman, J., concurring).
- While substantive due process rights may be implicated by the establishment of HB 837, procedural due process rights are not. See Blocktree Properties, LLC v. Public Utility District No. 2 of Grant County Washington, 447 F.Supp.3d 1030, 1040 (E.D. Washington 2020). “Procedural due process does not apply to legislative acts. Therefore, before procedural due process rights attach, a plaintiff must show that the deprivation occurred as a result of an adjudicatory process rather than a legislative process.” (citing Bi-Metallic Inv. Co. v. State Bd. Of Equalization, 239 U.S. 441, 445–46 (1915) and Harris v. County of Riverside, 904 F.2d 497, 501 (9th Cir. 1990)) (internal citations omitted).
- “[T]he basic test [of substantive due process] is whether the state can justify the infringement of its legislative activity upon personal rights and liberties.” In re Forfeiture of 1969 Piper Navajo, 592 So. 2d 233, 235 (Fla. 1992).
- Hillcrest Prop., LLP v. Pasco Cnty., 915 F.3d 1292, 1297 (11th Cir. 2019).
- Price-Cornelison v. Brooks, 524 F.3d 1103, 1109 (10th Cir. 2008).
- Silvio Membreno and Fla. Ass’n of Vendors, Inc. v. City of Hialeah, 188 So. 3d 13, 19 (Fla. 3d DCA 2016).
- at 20 (quoting Haire v. Fla. Dep’t of Agric. & Consumer Servs., 870 So. 2d 774, 781 (Fla. 2004)) (internal quotations omitted).
- Alliance of Auto. Mfs., Inc. v. Jones, 897 F.Supp.2d 1241, 1251 (N.D. Fla. 2012).
- State v. Sobieck, 701 So. 2d 96, 103 (Fla. 5th DCA 1997).
- Wheeler v. Jackson, 137 U.S. 245, 255 (1890).
- McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (quoting Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 229 (1985) (Powell, J., concurring)).
- Id.
- Fla. Const. Art. I, § 21.
- Kluger v. White, 281 So. 2d 1, 4 (Fla. 1973).
- See Mitchell v. Moore, 786 So. 2d 521, 528 (Fla. 2001).
- “[E]ach of the personal liberties enumerated in the Declaration of Rights ... is a fundamental right.” Weaver v. Myers, 229 So. 3d 1118, 1139 (Fla. 2017) (quoting State v. J.P., 907 So. 2d 1101, 1109 (Fla. 2004)) (internal quotations omitted).
- Fla. Stat. § 624.155 (2003).
- The latest revision of the Florida Constitution was ratified on November 5, 1968. See The Florida Constitution, Online Sunshine, http://www.leg.state.fl.us/statutes/index.cfm?submenu=3 (last visited May 5, 2023).
- Florida common law recognized third-party bad-faith actions involving insurance as early as 1938. See Auto Mut. Indem. v. Shaw, 134 Fla. 815 (1938).
- “abolish (15c) To annul, eliminate, or destroy, esp. an ongoing practice or thing; specif., to officially end an established law, system, tradition, etc.” Abolish, Black’s Law Dictionary (11th ed. 2019).
- In fact, the new 624.155(5) implicitly authorizes the possibility of both common law and statutory law claims proceeding against an insurer. “(5) In any bad faith action, whether such action is brought under this section or is based on the common-law remedy for bad faith . . .” § 624.155(5), Fla. Stat. (2023).
- Vincent S. Walkowiak, Innocent Injury and Loss Distribution: The Florida Pure Comparative Negligence System, 5 Fla. St. U. L. Rev. 66, 67 (1977).
- Id. at 106.
- Id. at 66. “The doctrine of contributory negligence totally bars recovery by a plaintiff whose own fault contributes to his injury in however slight a degree. Recovery is barred regardless of the obviousness of the defendant’s negligence or its casual proximity to the plaintiff’s injury.” Id. at 68.
- Fla. Const. art. I § 22.