Seismic Changes May Soon Be Coming to Florida Statutes for Comparative Negligence, Lodestar Fee, Statute of Limitations and One-Way Attorney’s Fees Against Insurers
With the support of Governor Ron DeSantis, Florida House Bill 837 was filed on February 15, 2023, which would bring comprehensive reforms to civil litigation in Florida. In an attempt to try to stomp out Florida’s notoriety as being one of the nation’s leaders in frivolous lawsuits, this legislation would dramatically change the state’s framework for comparative negligence, lodestar fees, statute of limitations and one-way attorney’s fees against insurers. “For decades, Florida has been considered a judicial hellhole due to excessive litigation and a legal system that benefitted the lawyers more than people who are injured,” said Governor DeSantis. “We are now working on legal reform that is more in line with the rest of the country and that will bring more businesses and jobs to Florida.” The bill also has the support of Florida Senate President Kathleen Passidomo and House Speaker Paul Renner.
Florida Statute 768.81, which addresses comparative fault, would be amended to read that for negligence actions, “any party found to be greater than 50 percent at fault for his or her own harm may not recover any damages.” Under current law, a plaintiff could still obtain a recovery even if a jury found him or her to be primarily at fault. For example, a plaintiff who is found to be 80% responsible by a jury can be awarded 20% of the damages based on an allocation of fault. With the new law, that same plaintiff would be barred from recovery, as would any plaintiff found to be at least 51% liable for their damages.
To calculate an attorney’s fee award, Florida courts follow the lodestar method established by the federal courts. Fees are calculated using the number of attorney hours reasonably expended multiplied by the reasonable hourly rate. However, courts may decide that the lodestar figure is insufficient and award a multiplier of between 1.5 to 3.0 in light of the contingency risk. The proposed revised Fla. Stat. 57.104, titled “Computation of Attorney Fees,” would create a “strong presumption that a lodestar fee is sufficient and reasonable” in any action in which attorney’s fees are awarded by the court. This presumption may only be overcome “in a rare and exceptional circumstance with evidence that competent counsel could not otherwise be retained.” If passed, plaintiffs’ attorneys will no longer regularly see fee awards that are doubled or tripled.
House Bill 837 would reduce the statute of limitations for negligence actions from four years to two years in Fla. Stat. 95.11. This would result in all negligence actions having the same time limitations as the current more restrictive two-year period to bring a professional malpractice action (other than medical).
Additionally, the bill would eliminate one-way attorney’s fees in lawsuits against insurers, which provide for a fee award to a plaintiff who obtains a judgment against an insurer, no matter how small. One-way attorney’s fees were eliminated last year by the Florida Legislature for lawsuits against property insurers, and the new law would expand that prohibition to all lines of insurance.
The House Civil Justice Subcommittee voted to approve the bill, and it moved forward in the legislative session started on March 7, 2023.
Legal Update for Lawyers’ Professional Liability – April 2023 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.