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Legal & Judicial

Florida’s low taxes, beautiful weather, and growing population make it a top place for businesses to grow and thrive. Unfortunately, those conditions must be footnoted by Florida’s litigious culture. Although steps have been made to improve this, there are still several very significant looming tort threats that strangle Florida’s ability to surpass states like Texas in job growth and development.

Florida’s businesses need a clear and level playing field in the courtroom. AIF will fight for any legal reform that decreases the cost of litigation and removes unfair and unpredictable barriers to growth. Businesses must know that Florida is looking to cultivate a healthy and prosperous arena for commerce to thrive. AIF will continue to lead the charge on legal reform by engaging in the following specific issues.

Accuracy in Damages

AIF SUPPORTS legislation to address accuracy in medical damages. In personal injury cases, the most significant factors in the amount awarded to a plaintiff for economic damages are often medical expenses. Under current law, a plaintiff can artificially inflate medical expenses because only the amount billed is admissible as evidence at trial. The amount that is billed is not necessarily the amount that has been accepted as payment in-full for the medical services rendered. There is also no provision in current law to ensure that medical treatments are indeed “medically necessary.” Florida law should require that if medical expenses have already been paid, only evidence of the amount actually paid for medically necessary treatments should be admissible at trial. In addition, Florida law should recognize common sense evidentiary principles, such as allowing a trier of fact to hear factors such as reasonableness, necessity, and customary charges for future treatment.

Fair Settlement Reform

AIF SUPPORTS legislation establishing a 60-day period during which an insurer may investigate and, if warranted, tender policy limits to settle a liability claim. An offer of policy limits within 60 days should be legally sufficient to demonstrate a “good faith effort” by the insurer to settle a liability claim on behalf of its policyholder and bar a bad faith cause of action.

An unbalanced civil justice system in Florida dampens the ability of employers to recover from the economic downturn and create new jobs. Increased civil litigation directly costs businesses through increased premiums for liability and automobile insurance and indirectly through management and employees’ time diverted to lawsuits. One of the most egregious abuses in the system is denying a business and its insurer a reasonable time to settle a liability claim without litigation.

AIF believes that in order to grow and expand, businesses need a vibrant and competitive insurance market to help protect them against risks that could undermine such progress. Without a process in place to fairly and clearly settle claims, competition for businesses in the purchase of insurance will never truly be optimal.

Attorney Fee Reform

AIF SUPPORTS all efforts to inject common sense into Florida’s litigation system through attorney fee reform. Attorney fees are lucrative in Florida, which is fuel to the fire of the overly litigious environment confronting Florida’s businesses daily. Whether it’s the one-way attorney fee designed for policyholders that is now being manipulated by third party vendors to drive up property and auto insurance costs, or the concerted effort by the trial bar to overturn statutes that require attorney fees to bear a rational
relationship to the success garnered for a client, Florida’s businesses are plagued by a growing number of legal schemes that make life more costly for consumers. Much of this fire is directed toward the insurance marketplace - be it in workers’ compensation, auto or property, or medical malpractice. (See the Insurance section.) Although the cost of all of this is borne by Florida’s employers, AIF will remain vigilant in its legislative advocacy of fair legal and attorney costs.

Court Reforms and Judicial Activism

AIF SUPPORTS legislation to clarify that in determining whether a statute or a rule governs a certain legal principle, that the Legislature intended for the statute to supersede the rule and that deference be given to the statute by the court. For example, in the recent case of Diamond Aircraft Industries, Inc. v. Alan Horowitch, Florida’s Supreme Court found that an offer of judgment is not valid under Florida Rule of Civil Procedure 1.442 if it does not meet the strict requirements of that rule, even though the statute provides a broader interpretation. Activism on behalf of Florida’s courts to negate legislative action only ensures that our legal precedents will continue to negatively impact our business climate.

Claims Bills

AIF OPPOSES claims bills that attempt to expand current law to create new—or modify existing—legal precedents and causes of action for the benefit of trial lawyers. In recent years, claims bills have been brought forward in an attempt to sidestep the legislative process and allow pursuit of claims against businesses instead of governmental entities. AIF has led the charge to ensure these bills are not passed, the parties at fault are culpable, and the claims are not simply aimed at the “deep pockets.”

Ethics & Elections

AIF will monitor all proposals related to public ethics and elections and advocate as necessary to protect the rights of individuals and businesses to redress legislative and executive branch policy makers.

Prejudgment Interest

AIF OPPOSES legislation that will increase the already daunting costs of litigation on Florida’s businesses. Mandating that prejudgment interest be awarded on economic and noneconomic damages recovered in all personal injury cases would drive the cost of litigation and force defendants to pay greater damage amounts due to delays within the court process that could be un-attributable to their actions. Prejudgment interest is already awardable in any personal injury case at the discretion of the judge. Therefore, statutory proposals that seek to create a complicated framework for calculating prejudgment interest will add costs, prolong cases straining judicial resources and incentivize litigious behavior. Creating a standard prejudgment interest calculation on personal injury judgments will further solidify Florida’s reputation as a “judicial hellhole.”

Auto Dealer Franchise

AIF OPPOSES legislation that would intervene in any contractual agreement between a dealer franchise and an auto manufacturer, voluntarily entered by each party, and dictate new terms and conditions of such mutual agreement that favor one party over the other. Legislation enacted over the past twenty years has successfully given auto dealers extensive additional rights, continuously crippled automobile manufacturers’ contract rights and increased costs to consumers.

Frye to Daubert Standard for Expert Witness Testimony

AIF SUPPORTS moving to the higher standard established by the Daubert case for admissible expert witness testimony. During the 2013 Legislative Session, the legislature chose to move Florida from the Frye standard for expert witness testimony to the Daubert standard. The Florida Bar Board of Governors is considering whether Florida should adopt into the evidence rules of procedure, the law changing the standards for qualifying expert witness testimony. The higher standard of Daubert will ensure that expert witness testimony is accurate and unbiased and will align Florida with the standard adopted by most other states. Adopting the Daubert standard will provide stability and predictability to businesses in Florida or looking to do business in Florida. In addition, adopting the Daubert standard discourages forum shopping because Florida law currently allows for less credible expert witness testimony to be admitted into evidence.