The Florida Legislature is currently considering comprehensive tort reform that could have significant implications for claims and litigation in the state. The proposed changes include modifying the comparative fault standard, providing more transparency in medical records, eliminating attorney-client privilege in limited circumstances, eliminating one-way attorney fees, and raising the threshold for punitive damages in bad faith claims. As a leading insurance defense litigation firm, Falk Waas is closely monitoring these developments and assessing their potential impact on our clients.

One of the most significant changes being proposed is the modification of the comparative fault standard. Currently, Florida has a “pure” comparative fault statute, which means that a plaintiff can recover damages even if they are 99% at fault for an accident. The proposed modification would replace this standard with a “modified” contributory negligence standard, which means that if a plaintiff is found to be more than 50% at fault for an accident, they recover nothing. This change could have significant implications for insurance claims and litigation, particularly in cases where fault is disputed.

Another proposed change is the provision for additional transparency in medical records. If the legislation is passed, juries will be able to know if a treating physician is treating a patient under a letter of protection and whether the figure stated on the final invoice for all the medical treatment provided has been reduced by recovery from another source. The proposed changes also include the elimination of attorney-client privilege and one-way attorney fees, as well as raising the threshold for punitive damages in bad faith claims. These changes could impact both insurers and their clients. We remain committed to advocating for our clients’ interests and achieving the best possible outcomes for them, regardless of any changes in the laws. If you have any questions about the proposed tort reform, please do not hesitate to contact us.

Below is a summary of the current proposal, which is elaborated above:

• ‘Reforming Florida’ pure comparative fault statute and replacing it with a modified contributory negligence standard (i.e., if the Plaintiff is found to be more than 50% at fault, they recover nothing).
• Provisions for additional transparency in the medical records and bills which may be presented to a jury such that a jury will know if a treating physician is treating a patient under a letter of protection and whether the figure stated on the final invoice for all the medical treatment provided has been reduced by recovery from another source.
• Eliminating attorney-client privilege as to communications relevant to the attorney’s referral of a client for medical treatment.
• Eliminating one-way attorneys’ fee and attorney fee multipliers for all lines of coverage, including surplus lines insurers.
• Codifying a presumption that the lodestar fee is sufficient, with multipliers being available only in “rare and exceptional” circumstances.
• Codifying the existing common-law doctrine that negligence by an insurer – without more – is not enough to support a claim for bad faith.
• Create a corresponding duty to act in good faith on the part of the insured and if the insured does not meet its obligation to act in good faith, the insured’s ability to recover in bad faith against its insurer would be impacted.
• Subject common-law bad faith claims to the prior notice and safe harbor requirements currently enjoyed only by statutory bad faith claims.
• Raising the threshold for seeking punitive damages in a bad faith claim.