January 25, 2006

Today the House Judiciary Committee heard HB 145 by Representative Don Brown (R-DeFuniak Springs) relating to apportionment of civil damages. This bill is the premier tort reform legislation of the 2006 session. It repeals the unfair doctrine of joint and several liability. Representative Brown provided the committee with an eloquent history of the development of our current fault system from the early days of contributory negligence to the comparative system that we have now which is completely incongruent with the doctrine of joint and several liability. Representative Brown's stated goal is to create a more level playing field in which a defendant's level of liability is equationed with that defendant's level of fault. He also referred to at least two economic studies which show that the enactment of liability reform legislation actually increases employment and productivity in the economy. The rising costs of goods and services in our state our impacted by the increasing litigation costs that companies face each day, partly because of unfair doctrines like joint and several liability.

During the debate and questions relating to the bill, Representative Dennis Ross (R-Lakeland) clarified that the abolition of joint and several liability from HB 145 will only apply to negligence cases and will not impact the treatment of intentional tortfeasors. Judiciary Committee Chairman Representative David Simmons (R-Altamonte Springs) also clarified that the intentional tortfeasor's activities are governed under a different section of the law that is not being changed by HB 145. Representative Ross also made it clear that the bill does not diminish the responsibility of parties who are responsible for damages awards by virtue of vicarious liability.

There were three amendments to the bill filed by Representative Jack Seiler (D-Pompano Beach). The first amendment discussed would have changed the ruling of the Florida Supreme Court in the Fabre v. Marin decision and prohibited the allocation of fault to parties that are not named in the lawsuit. Representative Seiler argued that the case allows defendants to point a finger at other entities who are not parties to a lawsuit which allegedly "forces" plaintiff's lawyers to sue more people. Representative Ross countered, however, that any change to the Fabre holding would create a situation where even a minor offender in a negligence case could be the only person that the plaintiff's lawyer chose to sue, thereby still allowing a minor actor to be responsible for all of the damages in a negligence case. Representative Ross argued that such an amendment would in reality be the "evil twin" of the doctrine of joint and several liability that the bill was abolishing and would in essence negate the achievement of the bill itself. The amendment was defeated by a vote of 8-2. Representatives Kevin Ambler (R-Tampa), Dennis Baxley (R-Ocala), Fred Brummer (R-Apopka), Jeff Kottkamp (R-Naples), Sherri McInvale (R-Orlando), Joe Pickens (R-Palatka), Dennis Ross and Chairman Simmons voting against the amendment, while Representative Seiler and Representative Dan Gelber (D-Miami Beach) were in favor of the amendment.

The other two amendments were withdrawn by Representative Seiler but were explained. One was to eliminate the damage caps in medical malpractice cases and the other would have removed every immunity from litigation in any instance except for sovereign immunity.

In general public comments on the bill, to conserve time, Chairman Simmons asked that each side limit their comments to one or two speakers. Barney Bishop, President of Associated Industries of Florida, testified on behalf of AIF and the Florida Coalition for Legal Reform that the elimination of joint and several liability was needed and would create a more fair and level playing field in Florida's judicial system which is desperately needed for our economic prosperity to continue. The representative for the Academy of Florida Trial Lawyers, Alexander Clem, tried to analogize the fault system in negligence cases with a co-signor on a bank loan who is responsible for full payment of that loan if the primary borrower defaults on payment. Representative Baxley, in debate, was quick to point out that such reasoning was not analogous since the co-signor freely accepts full responsibility for the full amount of the loan when they enter into that contract. With the current tort system, however, parties who are not responsible for most of the damages are stuck paying for someone else's share of damages which is simply unfair.

During debate on the bill, it was very clear that the committee members have felt tremendous pressure over this issue. Representative Sheri McInvale (R-Orlando), visibly shaken, even felt compelled to express her sincere concern over being approached during the committee meeting with political threats from members of the trial bar, who stated that her vote on this bill would be used against her in her upcoming re-election campaign. She confidently added that, "she would vote her conscious despite those threats and indicated that she was very proud of her accomplishment in the legislature and that it did not bother her if she did not return next year." She continued by stating, "I have three wonderful boys at home and a great life." Additionally, both Representative Jeff Kottkamp and Representative Kevin Ambler commented that they appreciated the efforts of Representative Brown and House Speaker Allan Bense (R-Panama City) in attempting to create a more fair system, but could not support the bill in its current form. Both Representatives indicated they would be working to make changes on various aspects of the bill at some point in the future.

In closing, Representative Brown, stated that he respected the committee members even though he did not agree with all of their opinions on amendments or future changes to the bill. Representative Brown reiterated that the business and insurance communities are united on this issue and even the Florida Supreme Court has stated on more than one occasion that the doctrine of joint and several liability is unfair and should be repealed in Florida.

The committee voted 7-5 to pass HB 145. The vote count was as follows:

Representative Baxley - Yes
Representative Brummer - Yes
Representative Grant - Yes
Representative McInvale - Yes
Representative Pickens - Yes
Representative Ross - Yes
Representative Simmons -Yes

Representative Ambler - No
Representative Gelber - No
Representative Kottkamp - No
Representative Richardson - No
Representative Seiler - No

AIF and the Coalition for Legal Reform sincerely appreciate the efforts of Representative Brown in sponsoring this extremely important legislation and we look forward to continue to work with him throughout the legislative session to ensure the passage of this bill by both chambers of the Florida Legislature. We encourage all of our members to thank Representative Brown as well as all the members of the committee who supported this fine bill for their hard work on this issue.