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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 taken 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 has been named the number one judicial hellhole in the country for 2017-2018. We must provide businesses with a clear and level playing field in the courtroom. It is imperative that Florida cultivate a healthy and prosperous arena for commerce to thrive. AIF will fight for legal reform that will decrease the cost of litigation and remove unfair and unpredictable barriers for state growth 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 period during which an insurer may investigate and, if warranted, tender policy limits to settle a liability claim. An offer of policy limits 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 for employers to recover from the economic downturn and create new jobs. Increased civil litigation creates direct costs to businesses through increased premiums for liability and automobile insurance and indirect costs 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.

Bottom line: 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, a competitive insurance market for businesses 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 adds fuel to the fire of the overly litigious environment confronting Florida’s businesses daily. Whether it is 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. Of course, 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.

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 up the cost of litigation and force defendants to pay greater damage amounts due to delays within the court process that could be unattributable 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.”

Ethics & Elections

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

Dangerous Instrumentality

Florida’s Dangerous Instrumentality Doctrine (DID) was created in the early 20th century, a time where automobiles began traveling on public roads. The doctrine originally allowed for the imposition of liability for harm caused by a vehicle on the owner rather than the driver.

Through the years, the doctrine has been expanded by judicial fiat far beyond the borders of its original intent. It now applies to off-highway vehicles such golf carts, tractors, and construction equipment. The definition of a “dangerous instrumentality” and the circumstances in incidences where harm occurs, is continuing to expand without reason. The far-reaching bounds of the doctrine holds liable the owners or lessors for harm caused by an operator, even when the lessor is not in control of the equipment or vehicle at the time of the occurrence.

Other than constant criticism by commentators on Florida’s application of DID, there are other economic concerns to the business community that include attraction of new industry and the affordable expansion of existing business. If there is no legislative remedy, leasing companies of most vehicles in Florida will continue to suffer increased risks and costs through no fault of their own. Many lessors may have no choice but to eliminate equipment leases and only offer full purchases of equipment. This would drive up costs and eliminate financing flexibility, particularly for smaller contractors. Simply put, this form of vicarious liability is extremely harmful to the business community and may weaken Florida’s competitive edge. Florida is the only state in the country where DID is applied in this manner and AIF SUPPORTS the reforms being proposed in HB 355 and SB 862.

Court Reforms and Judicial Activism

AIF SUPPORTS the foundational, constitutional principle that policy is made by the legislature, and procedure is the province of the courts. Unfortunately, activist judges have tried to erode that basic principle. 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, and AIF SUPPORTS reinforcing the separation of policy and procedure to prevent legislating from the bench.

Claims Bills

AIF OPPOSES claims bills that attempt to expand current law to either 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 for the 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.”

Auto Dealer Franchise

AIF OPPOSES legislation that would intervene in any contractual agreement between a dealer franchise and an auto manufacturer, voluntarily entered into 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.