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Frivolous Lawsuits and Predatory Trial Lawyers?

2022 Florida Civil Justice Changes

The Florida Legislature did some serious spring cleaning during the legislative session. Massive and unprecedented changes have now been implemented across the civil justice system. Governor Desantis declared the changes necessary to decrease frivolous lawsuits and prevent predatory practices of trial attorneys who prey on hardworking Floridians. These changes impact the ability of lawyers to make claims, how and when those claims can be made, and the recoverable damages.

2022 Florida Property Insurance Changes

First up, the Florida Legislature overhauled first-party insurance law through Senate Bill 2A, Senate Bill 2D, and Senate Bill 4D. The office of Florida's Chief Financial Officer published a summary of the changes.

The notable changes include:

Statute of Limitations:
- Reduces the deadline for policyholders to report a claim from 2 years to 1 year for a new or reopened claim, and from 3 years to 18 months for a supplemental claim.
Attorney's Fees:
- Repeals the one-way attorney fee provisions related to property insurance claims. This means that neither party can be awarded attorney fees in a property insurance claims lawsuit. Each party is responsible for payment of their own attorney fees.
Assignment of Benefits:
- Eliminates the assignment of benefits for an insurance policy to a third party such as a contractor, roofer, or plumber. Prohibits the assignment, in whole or in part, of any post-loss insurance benefit under any residential property insurance policy or under any commercial property insurance policy issued on or after January 1, 2023.
Arbitration:
- Permits arbitration clauses in insurance policies. Clarifies that insurance companies may only issue an optional endorsement related to mandatory arbitration with consent from policyholders. Companies must also offer a policy without a mandatory binding arbitration clause. A premium discount is required for policies with mandatory arbitration.

In short, homeowners will have less time to file a property claim. When doing so, homeowners will no longer be able to recover attorney's fees and as a consequence, their recovery and ability to make repairs will now be less. Homeowners will also now incur out-of-pocket expenses for all needed emergency and mitigation efforts at the outset of a claim as an assignment of benefits is no longer available. Finally, homeowners may have to go to arbitration to have their claim decided rather than court if they end up having an arbitration endorsement attached to their insurance policy. It is expected that as a result of the changes that there will be fewer property claims filed in the future and fewer attorney's making claims on behalf of homeowners.

2022 Florida Civil Remedies Changes

Next up, the Florida Legislature undertook tort reform measures when it passed House Bill 837. Governor Ron Desantis released a summary of the changes and asserted the changes were necessary to protect Floridians and safeguard the economy.

The notable changes are:

Statute of Limitations:
- The time to bring a lawsuit based on negligence has been reduced from four to two years.
Comparative Negligence:
- An injured party will be prevented from recovering damages if they are shown to be more than 50% at fault for their injuries. Previously an injured party could recover damages in all instances with a deduction for their portion of fault.
Attorney's Fees:
- Essentially eliminates attorney fee multipliers and limits one-way attorney's fees against insurers to only specific instances.
Medical Damages:
- Limits the evidence and amounts that can be claimed for past or incurred medical charges. Further limits the evidence and amounts that can be claimed for future medical expenses based on what an existing health insurance policy would pay or 120% of the Medicare reimbursement rate or 170% of the state Medicaid rate if there is no applicable Medicare rate.
- For those services rendered under a doctor's letter of protection, the claimant must make certain disclosures before a claim can be made for the medical expenses.

In this instance, injured parties will have less time to file lawsuits and they will not be able to recover any damages if they are more at fault for their damages than the other party. Claimed attorney's fees are now limited as are the amount of medical damages that can be claimed. As with the property insurance changes, the tort reform measures are expected to reduce not only the number of personal injury claims that will be made but also the number that will be successful at trial due to the new comparative fault restriction.

The Takeaway

In the name of reigning in the number of lawsuits and the value of jury verdicts, the Florida Legislature has passed an unprecedented overhaul of the civil litigation system in a single legislative session. The motivation for these changes is to protect Floridians and safeguard the economy from the alleged danger of predatory trial lawyers. These legislative goals are to be achieved by limiting the time for parties to file lawsuits, reducing or otherwise eliminating legal fee claims, and restricting the type of claims that can be brought and the amount of damages that can be brought.

Only time will tell if the 2022 Florida civil justice changes will truly protect Floridians. Many questions remain unanswered. Will insurance companies reduce their premiums for homeowners as a consequence, or will they bankroll increased profits? Will all Floridians benefit, or will injured parties suffer more while others receive an underserved benefit? Is the problem frivolous lawsuits or is it frivolous defenses and the refusal to accept responsibility? Are trial lawyers predatory villains in this case, or is something else going on?

What say you?

Less conflict, more resolution.