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.
For years, Florida has been named a “judicial hellhole.” 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 SUPPORTS legal reform that will decrease the cost of litigation and remove unfair and unpredictable barriers for state growth by engaging in the specific issues below.
There is a plethora of civil justice issues that affect the cost of doing business in Florida and are worthy of reform. Chief among them are accuracy in damages, fair settlement, and litigating financing reform, as they affect every single business—and consumer—that buys liability insurance. These issues transcend industries, and the games behind them defy logic. AIF SUPPORTS blowing the whistle on these trial lawyer tricks, which will benefit every single insurance premium payer in the state.
Trial lawyers and a handful of doctors currently “game” judges and juries by entering into evidence fake medical bills, under what’s commonly referred to as letters of protection (LOP). These LOPs are used to inflate medical expenses, drive up economic damages, and cause a domino effect on the amount of noneconomic damages.
AIF SUPPORTS legislation to address accuracy in medical damages. Florida law should require that if medical expenses have already been paid, only evidence of the amount actually paid for medically necessary treatments is admissible. Florida law should also 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. The legislature should reject the last Florida Supreme Court’s wayward decision in Worley and allow evidence of an attorney or law firm’s ongoing referral relationship to treating physicians in order to create parity with the manner in which doctors that are called by the defense are considered.
Another classic trial lawyer game manifests itself in liability cases in an effort to access extra-contractual damages. This game was made even easier by the departing Florida Supreme Court in Harvey, which essentially ruled that mere negligence by an employee of an insurer can transform a $10,000 insurance policy into millions. AIF SUPPORTS rules in liability cases that are clear, fair, and uniform. Unfortunately, Florida law allows third party claimants’ lawyers to game the system, while first parties are governed by a statutory system that at least provides some minimal parameters of fair dealing.
AIF SUPPORTS legislation establishing a period during which an insurer may investigate a claim and, if warranted, tender policy limits to settle. An offer of policy limits should be legally sufficient to demonstrate a “good faith” effort by the insurer to settle in the interests of its policyholder. Further, lawyers for claimants should also be held to a good faith standard, and evidence of gamesmanship on their part should preclude an award of extra-contractual damages.
Injured parties are currently being preyed upon by speculators who provide up-front cash and then take a portion of litigation recoveries by charging exorbitant interest rates. These “investments” put undue incentive on plaintiffs to recover much more than what they’re actually owed to make them whole due to the fact that they have to repay a predatory loan. AIF SUPPORTS legislation that would require parties to disclose copies of these agreements to other parties so that these speculators cannot operate in the shadows.
There are a number of other truly worthy civil justice issues in need of reform. These often acutely affect one industry more than others, but are all the while important and deserving of legislative intervention.
Contingency Risk Multipliers
Contingency risk multipliers are a creature of common law, and they multiply attorney fee awards in an effort to incentivize attorneys to take cases that many are remiss to take. While these originated to ensure justice for litigants pursuing civil rights and other cases, they have been growing in prevalence, and have been awarded in cases such as property insurance litigation, where attorneys are far from scarce. Given this perversion of the common law, AIF SUPPORTS legislative intervention to restore the award of a contingency risk multiplier to its proper place.
Intended to allow parties to resolve disputes prior to litigation, Chapter 558 pre-suit’s process has been diluted by the former Florida Supreme Court, hampering the ability of parties to resolve concerns about construction defects. AIF SUPPORTS a legislative solution in the form of a transparent, meaningful pre-suit process by which parties can attempt to remedy defect concerns and avoid unnecessary litigation. Further, AIF SUPPORTS alternative dispute resolution processes by which parties can attempt to avoid litigation and also receive a fair and comprehensive remedy.
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.
Asbestos Litigation Fairness
Asbestos-related diseases are tragic, and injured persons deserve compensation. As a result, trust funds have been created to help compensate victims. Unfortunately, some trial lawyers have taken an approach that results in inconsistent claiming, resulting in a double dipping, which prejudices other victims who do not do so. In a nutshell, some lawyers are having plaintiffs file claims with all available trusts as well as filing a lawsuit and recovering monies separately, which lessens the amount available to others. To prevent this inconsistent claiming and ensure all victims are fairly compensated, AIF SUPPORTS legislation to require plaintiffs in asbestos litigation to provide trust claim documents to the defendants before the case can be tried, ensuring that defendants have the same information as bankruptcy trusts, and eliminating the practice of inconsistent claiming.
Good Samaritan Act
AIF SUPPORTS efforts to reform Florida’s Good Samaritan laws as a way to ensure that non-medical personnel and average Floridians are truly protected from lawsuits when offering assistance to fellow citizens. Several court opinions have found that current law provides very little protection to the average citizen. They have also found that there has been a recent onslaught of cases in which ordinary citizens rendering voluntary medical assistance in emergencies have been found liable, notwithstanding the Good Samaritan Act.
Rights of Nature
AIF SUPPORTS responsible policies to ensure environmental stewardship. However, some trial lawyers have found a new avenue to sue the business community, and they do so by saying they are representing a natural element, such as a river or forest. AIF OPPOSES trial lawyers manufacturing litigation on behalf of a natural element, under the guise of environmental safeguarding when their real motivation is to extract dollars from hardworking employers and their employees.
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.
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.”
Ethics and 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.
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.”
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.