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DeSantis, insurers win tort-reform vote in FL Senate but injured parties lose clout


DeSantis, insurers win tort-reform vote in FL Senate but injured parties lose clout

Mar 23, 2023 | 6:44 pm ET
By Michael Moline
DeSantis, insurers win tort-reform vote in FL Senate but injured parties lose clout
Credit: Getty Images

Insurance companies will have an easier time deflecting lawsuits by policyholders claiming denial or low-balling of benefits under legislation that cleared the Florida Senate Thursday. Ordinary Floridians, meanwhile, will face higher risks, less safety, and fewer options to hold wrongdoers accountable, critics warned.

Because the state House had already OK’d the bill, it heads to Gov. Ron DeSantis for his expected signature.

The bill (HB 837) is a priority both for House Speaker Paul Renner and DeSantis, who argue that Florida has become a “judicial hellhole” encouraging frivolous litigation, driving up business costs and insurance rates in the process.

The vote was 23-15. Notwithstanding DeSantis’ backing, four Republicans voted no: Jennifer Bradley of Northeast Florida; Jason Brodeur, representing Seminole and part of Orange counties; Erin Grall, of East Central Florida; Joe Gruters, representing Sarasota and part of Manatee County; and Jonathan Martin, representing part of Lee County.

Linda Stewart, of Orange County, was the only Democrat to vote yes.

The bill is being sold as “tort reform” — a tort being a wrongful act or infringement of a right for which the injured party can seek redress in a court of law.

Its supporters direct much of their ire at “billboard lawyers” — trial attorneys who advertise on roadside signs, television, and radio — for, in their view, exploiting the litigation system to extract inflated claims and attorney fees from insurance companies. They claimed that they want to restore balance to the system.

In essence, that means going after trial lawyers’ livelihoods while benefiting insurance carriers.

DeSantis, insurers win tort-reform vote in FL Senate but injured parties lose clout
State Sen. Travis Hutson. Credit: Florida Senate

Sponsor Travis Hutson, a Republican from Northeast Florida, who is not an attorney, conceded that insurers share blame for the situation and promised he’d look into their role sometime in the future. Meanwhile, he said, people and businesses are caught in the crossfire.

“The reality of what’s happening in our districts today is that insurance is skyrocketing. We have two heavyweight titans going at it right now. One side wants to keep as much money in their pockets as possible while the other side wants to take far more money than is reasonable,” Hutson said.

“And, while these two industry giants are fighting back and forth, it is our constituents and our businesses that are being hurt and affected,” he continued.

“Members, we have a problem in Florida. Help me fix it.”

‘David versus Goliath’

Critics argued the measure will discourage trial attorneys from representing clients suing insurance companies because it could sharply constrain what they might collect in attorney fees.

Geraldine Thompson
State Sen. Geraldine Thompson, Democrat from Orlando. Credit: Colin Hackley

“While we’re told this is about billboard lawyers, insurance companies have created the problem that this bill is supposed to address,” said Democrat Geraldine Thompson of Orange County.

“The people who’ve been paying the premiums are told that now we won’t pay your attorney fees, but the insurance companies have a whole staff of lawyers that they’re going to pay. I’ve said before that this sets up a David versus Goliath situation where the consumer is left to fend for himself and herself,” Thompson said.

On that point, the bill repeals a “one-way” attorney fee law the Legislature passed in 1893, which allows policyholders force carriers to pay any attorney fees they rack up if forced to sue to enforce claims. That repeal alone fulfills one of the dearest wishes of business and insurance interests, which have targeted it for years.

The Legislature softened that repeal a bit, allowing recovery of attorney fees if a policyholder prevails in collateral litigation to determine a policy’s coverage limits if they’re in dispute. Otherwise, each party would pay its own costs.

Blame the criminal

A provision would force juries to consider a criminal’s role in premises-liability insurance disputes — say, against a hotel or apartment building being sued following a criminal attack on its premises. The Senate on Wednesday rejected an effort by Grall, a trial attorney, to remove that language. The vote was 16-23, with five Republicans including Grall voting for her amendment.

DeSantis, insurers win tort-reform vote in FL Senate but injured parties lose clout
State Sen. Erin Grall. Credit: Florida Senate

Grall argued that the point of premises-liability is to force businesses to take care against criminal attacks, so the criminal’s contribution is beside the point. But she conceded she was tilting at a windmill.

Democrat Darryl Rouson, a trial attorney from the Tampa Bay region, agreed during floor debate on Thursday.

“Comparing criminal actions to negligent maintenance of property is like comparing apples to oranges. It confuses the issue for the jury, rather than bringing clarity, and it absolves property owners of their responsibility,” Rouson said.

As for insurance bad actors, a number of critics pointed to a Washington Post report that carriers are drastically lowballing claims arising from Hurricane Ian in Southwest Florida — even after the Legislature voted last year to make it harder to sue those very companies.

“The same companies that stood before us and declared provisions in the legislation were needed to take care of frivolous lawsuits and bad actors are being exposed as just that. All of this for what? No mention of a rate rollback; no financial relief; fewer rights in the fiduciary relationship with your insurance company,” Grall said.

‘Not justice for all’

“There are 22 million Floridians who will now be exposed to higher risks, less safety, and fewer options to hold wrongdoers accountable. Our Constitution says, ‘liberty and justice for all.’ Not the few, all. And this bill is not justice for all,” Grall said.

“We should deal with the abuse that goes on on both sides and not take a hammer to the whole process of protecting our constituents who have paid into their policies and just want to get, you know, paid back what’s owed them,” Democrat Tina Polsky said.

Additionally, the bill amends the law of comparative negligence such that if a jury deems an insured party more than 50 percent responsible for that injury, they recover nothing.

Hutson defended all of the provisions, arguing his bill merely emulates what other states are doing — nine requiring each party to pay its own costs; 12 allowing juries to consider criminals’ acts in premises-liability actions; 26 with two-year statute of limitations on negligence claims; 33 with the same comparative negligence law.

“We’re not reinventing the wheel. The sky is not falling. It is happening in other states. They’re getting through this stuff and the juries are making the decisions,” Hutson said.