Mar 18, 2025 By Jim Ash

Insurance companies, in certain circumstances, would be forced to pay a policy holders’ attorney fees under a measure that is moving through the House.

The House Civil Justice and Claims Subcommittee voted 16-1 last week to approve HB 1551 by Republican Rep. Hillary Cassel, a Broward County insurance lawyer.

Cassel said the measure addresses a key provision of recent “tort reforms” that left consumers defenseless against bad actors in the insurance industry.

“HB 1551 takes a balanced approach to attorney fee awards in insurance contract disputes,” Cassel said. “This bill aims to reform attorney fees awards in insurance litigation by promoting fairness and reducing unnecessary lawsuits.”

Lawmakers in 2022 and 2023 eliminated a one-way attorney fee provision in Florida law that favored plaintiffs in insurance disputes. The previous system was designed to level the playing field for consumers, but insurers claim it incentivized frivolous lawsuits.

HB 1551 “creates a prevailing party standard, otherwise known as ‘loser pays,’ for awarding reasonable attorneys’ fees by a judge after a judgment is obtained in an insurance contract dispute,” Cassel said.

That would empower consumers, but still leave them with “skin in the game,” Cassel said.

Florida Justice Reform Institute lobbyist Katelyn Ferry warned the proposal would reverse reforms that stabilized the insurance market, slowed skyrocketing premium increases, and lured 11 new insurers to Florida.

“Make no mistake: If this bill passes, it’ll eradicate Florida’s insurance market,” she said. “Florida has had the lowest premium increase of all of the states, and this is with soaring inflation. Kudos to you. It’s working. Why are we fixing it?”

Florida Justice Association President Todd Michaels said the bill would “restore balance to a system that is broken.”

The debate boils down to whether a policy holder, or an insurer who “wrongfully denied the claim,” and prompted the litigation, should be responsible for paying attorney fees, Michaels said.

“That’s how simple this issue is,” he said. “Shouldn’t it be the wrongdoer?”

Several subcommittee members said they were skeptical about the industry’s claims after recent news reports about a suppressed 2021 industry report that showed insurers were claiming insolvency after shifting profits to affiliates.

A Tampa Bay Times story in February said insurers reported losing $432 million between 2017 and 2019, but their affiliates showed a net income of $1.8 billion.

House Speaker Daniel Perez, a Miami attorney, vowed to focus on consumer-friendly reforms when he assumed command March 4.

Late last week, Florida Insurance Commissioner Michael Yaworsky told the House Insurance Subcommittee that his office may have failed to follow up on the report due to staffing issues and other concerns as they dealt with the insurance crisis. Insurance executives have pushed back, saying the report was incomplete and did not reveal wrongdoing.

Democratic Rep. Ashley Gantt, a Miami attorney, urged fellow Civil Justice and Claims Subcommittee members to support Cassel’s bill.
Gantt said the news reports reminded her of a “Scooby-Doo” cartoon, with trial attorneys being made the pretend villain. Peel back the mask, she said, and the real culprits are unscrupulous insurers.

“It’s insulting,” Gantt said. “This bill provides the justice that our constituents actually need.”

Nov 27, 2023 By Jim Ash

Florida House members are renewing a bipartisan effort to eliminate a Florida law that prevents some surviving family members from recovering damages for medical negligence.

Rep. Mike Beltran, R-Zephyrhills, and Rep. Johanna Lopez, D-Orlando, are co-sponsoring HB 129, otherwise known as the “Keith Davis Family Protection Act.”

 Rep. Mike Beltran

Florida law is unique in that it limits the awarding of punitive damages to a surviving spouse or minor children when a person 25 or older dies from medical negligence.

 Rep. Johanna Lopez

“This law excluding a class of persons from the protections the rest of us enjoy, finds no analogue in the other 49 states,” Beltran, a Harvard Law graduate, said in a statement.

“Our Floridians deserve to have the same rights as others across the nation,” Lopez said. “The bill will allow the parents and descendants to be renumerated in case of medical malpractice that results in the death of loved one.”

Navy veteran Keith Davis was 62 and single when he died three years ago in a Tampa hospital from a misdiagnosed blood clot. His 33-year-old daughter, Sabrina, formed a coalition that has pushed for reforms for the past three years.

Sabrina Davis and other critics derisively refer to the restrictions as Florida’s “fee kill” law. Beltran insists that it creates a perverse incentive for physicians.

“Patients harmed by malpractice can sue, whereas physicians who kill patients covered by the [free kill] law enjoy immunity from suit,” he said.

Conservative groups, including the Florida Justice Reform Institute, oppose the reforms. The restrictions were put in place in the 1990s to protect physicians from rising malpractice rates.

Opponents note that the Legislature recently enacted sweeping civil litigation reforms to rein in the “billboard attorneys” they blame for skyrocketing insurance rates.

Beltran insists the restrictions unfairly discriminate and are no longer necessary after lawmakers decades ago “curbed abuse of the malpractice laws.”

“The law makes scant sense, is antiquated, solves no problem, and creates unfairness.”

https://www.floridabar.org/the-florida-bar-news/bill-would-allow-more-surviving-family-members-to-recover-damages-in-medical-negligence-cases/ 

Mar 10, 2023 By Jim Ash

 Rep. Tommy Gregory

A House panel voted Wednesday to approve a revised civil litigation reform package, despite continued warnings that it would deny Florida’s most vulnerable citizens access to justice.

The House Judiciary Committee voted 16-8 to approve HB 837 by Chair Tommy Gregory, R-Lakewood Ranch. The measure goes next to the House floor.

After nearly five hours of debate, Gregory took a swipe at sponsors of a poisoned pill amendment that forced Republicans to vote against creating a negligence action for the death of an unborn child.

“We’re here to talk about balance,” Gregory said. “You wonder what kind of games people play in court? You’ve witnessed some of them here today.”

Critics complained that reformers are rushing fundamental and complex changes to a system that is supposed to serve as a bulwark for victims of another’s wrongdoing.

Rep. Yvonne Hinson, D-Gainesville, noted that sponsors unveiled a 35-page “strike everything” amendment at the last minute.

“For the record, we got this dropped on us just a few minutes before the meeting,” she said.

HB 837 originally called for, among other things, repealing one-way attorney fees for all lines of insurance, switching Florida from a “pure” to a “modified” comparative negligence standard, and making it easier for insurance companies to avoid liability for “bad faith” claims.

Other provisions would condense the statute of limitations for filing negligence claims from four years to two and limit the awarding of attorney fee multipliers to rare and unusual circumstances.

A “damages transparency” section would cap some awards at 140% of the Medicaid rate.

The Civil Justice Subcommittee voted 12-6 to approve the measure at its first committee stop on February 24.

But the revised version no longer calls for repealing Chapter 627.428, a law that for 130 years has protected policy holders by forcing insurers to pay their attorney fees if a court determines the company unfairly denied or underpaid a claim.

The revision also exempts medical malpractice claims from the modified comparative negligence standard. The measure would still prevent other plaintiffs from collecting damages if they are found to be more than 50% at fault. Critics warned that means people who cause a serious accident could avoid paying damages if they are found only 49% at fault.

Rep. Kristen Arrington, D-Kissimmee, asked Gregory to explain “the policy” reason for moving Florida away from pure comparative negligence.

“The policy reason I think is pretty clear,” Gregory said. “You shouldn’t recover damages when you are more to blame for the incident.”

Sponsors also softened a provision that protects insurance companies from liability in “bad-faith” claims.

The original measure would have given insurers 90 days after a lawsuit is filed to offer the disputed amount or the policy limits, whichever is less, to avoid liability.

The revised version gives insurers 120 days after a policy holder makes a claim.

The bill’s co-sponsor, Rep. Tom Fabricio, R-Hialeah, said the change will make insurance companies respond much faster.

“No lawsuit filing will be necessary,” he said.

Critics focused much of their attention on a premises liability provision that seeks to shield multi-family housing owners from liability when a criminal kills or injures a resident.

The bill would allow jurors in those civil actions to consider “the fault of all parties” — including the perpetrator — if the property owner can demonstrate that certain safety measures, such as security lighting, were in place.

Crime victim advocates argued the provision would shift the burden to a party who may be in prison and least able to pay.

Rep. Mike Gottlieb, D-Plantation and an attorney, said the criminal and civil justice systems have always operated separately.

“Why are you considering the actions taken by the tortfeasor?” he asked, referring to the perpetrator. “Are there any guidelines in the bill in terms of telling the jury how they are supposed to apportion that?”

Fabricio said the bill does not specifically address jury instructions.

“The jury will get to determine whether there was in fact liability on the criminal tort feasor,” he said.

Supporters include the Florida Chamber of Commerce, Associated Industries of Florida, the National Federation of Independent Business, the Florida Trucking Association, the Florida Justice Reform Institute, insurance companies, and others.

Reformers say the changes are necessary to curb the “lawsuit abuse” that is driving up the cost of consumer goods and every Floridian’s insurance rates.

Florida Justice Association President Curry Pajcic, a prime opponent, thanked the sponsors for agreeing to make changes, but continued to speak against the measure.

“It’s getting better, but we still have a long way to go,” he said.

A Southwest Florida civil trial lawyer, who described himself as a “proud billboard attorney,” said the reforms represent a transfer of wealth from consumers and taxpayers to the insurance industry. He noted that State Farm just reported $89.3 billion in revenue.

But Gregory urged the committee to put that figure in perspective.

“Looking at that in vacuum, it’s an interesting fact, but it ignores all of the insurance companies that went bankrupt and left the state of Florida,” he said.

Meanwhile, the Senate Banking and Insurance Committee voted 8-3 on March 7 to approve a companion, SB 236 by Sen. Travis Hutson, R-Palm Coast.

Hutson called the measure “a moving target,” and said he continues to negotiate with House sponsors to bring the measures closer together.

SB 236 faces two more hearings, in the Judiciary and Fiscal Policy committees, before reaching the Senate floor.

Senate President Kathleen Passidomo, R-Naples, and House Speaker Paul Renner, R-Palm Coast, and Gov. Ron DeSantis — all three of them attorneys — support civil litigation reforms.

With Republican supermajorities in both chambers, passage seems all but assured.

Sen. Victor Torres, D-Kissimmee, told the Banking and Insurance Committee he could not support any measure that makes it harder for his constituents to seek justice.

“My constituents sent me up here to protect their rights,” he said. “And when they’re sick or injured is when they need their rights the most.”

https://www.floridabar.org/the-florida-bar-news/civil-litigation-reform-package-revised-and-moved-out-of-house-judiciary/ 

LITIGATOR WARNS OF ‘COLLATERAL DAMAGE’ AS LAWMAKERS PURSUE TORT LAW LEGISLATION

Mar 02, 2023 By Jim Ash

But supporters of the bill say one-way attorney fees invite ‘lawsuit abuse,’ and all Floridians pay the price through higher insurance premiums

Florida lawmakers are risking collateral damage with a “shotgun” approach, when more targeted civil litigation reforms will do, says a veteran South Florida trial attorney.

West Palm Beach attorney Jeff Liggio, managing partner of Liggio & Cornell, has represented policy holders — individuals, families, and small businesses — in insurance disputes for more than 40 years.

The Annapolis grad and board certified civil trial lawyer warns that the sweeping reform measure, HB 837 — which includes repealing the one-way fee provision — would leave his clients at the mercy of the insurance industry.

“I represent people who are desperate, they have cancer, and they’re not getting chemotherapy, and they’re dying, and we have to go and get injunctions,” Liggio said.

But supporters of the bill say one-way attorney fees invite “lawsuit abuse,” and all Floridians pay the price through higher insurance premiums.

In a recent opinion column, Liggio described several clients — hurricane victims, cancer patients, rare disease sufferers — who needed legal help after being improperly denied benefits and care.

The list includes a Lake County couple whose young son was diagnosed with adrenoleukodystrophy, a disease that costs “thousands and thousands of dollars” to manage. The couple’s health insurer lowered a $1 million annual limit to a $1 million lifetime limit, Liggio said.

“You hear people say, ‘I don’t have to worry, I have great insurance,’” Liggio said. “You don’t know if you have good insurance until you need it.”

The reform package would repeal a one-way fee provision that makes insurers responsible for a policy holder’s legal fees and costs — but only if a court determines the company acted improperly, Liggio stresses.

“I could lose,” he said.

Liggio said none of his clients could have afforded to fight an insurance company without the one-way fee provision, a statute that he says Florida adopted in 1959.

“Because of that law, the clients whose situations I described were able to have my law firm represent them, in some cases for several years, in some very contentious and expensive litigation, and we did not charge them a penny for attorney’s fees,” he said.

The House Civil Justice Subcommittee voted 12-6 on February 24 to approve HB 837, over the objection of Democrats, the Florida Justice Association, and other critics who echoed Liggio’s concerns. It has at least one more committee stop before reaching the House floor.

 Rep. Tommy Gregory

House Judiciary Chair Tommy Gregory, R-Lakewood Ranch, told the committee he is sponsoring the measure to restore “equilibrium” to the system.

“You don’t have to wonder if your constituents’ insurance prices are rising too high, because yours are,” he said. “Economic activity responds to incentives — the litigation environment is no different.”

In addition to repealing the one-way fee provision, the measure would switch Florida from a “pure” to a “modified” comparative negligence standard and limit the awarding of fee multipliers to rare and unusual circumstances. A “damages transparency” section would repeal a 2017 Supreme Court decision, Worley v. Central Florida YMCA, and negate attorney client privilege “when a communication is relevant to the lawyer’s act of referring the client for treatment by a health care provider.”

Gov. Ron DeSantis has called for civil justice reforms, and the bill has the backing of House Speaker Paul Renner and Senate President Kathleen Passidomo. With Republicans enjoying a supermajority in the Legislature, passage seems all but assured.

The Florida Chamber of Commerce, Associated Industries of Florida, the Florida Personal Insurance Federation, and the Florida Justice Reform Institute, are enthusiastic supporters.

In a statement, Florida Chamber President and CEO Mark Wilson said that “Florida’s lawsuit abuse spending tops every other state in the nation and accounts for 3.6% of Florida’s $1.4 trillion economy, with no other state surpassing 3% of their state GDP.”

DeSantis and others like to cite an example where a dispute over less than $2 generates a lawsuit, and the awarding of thousands of dollars in attorney fees.

Liggio laments that the example has become a “poster child.”

The suits aren’t being filed by people like his clients, Liggio says, but by “commercial entities, primarily in the medical bill collection area.”

The entities are filing small claims cases “as an assignee of,” the insured, Liggio said.

Liggio recently searched appellate court dockets and found hundreds of “a/a/o” cases. If there are that many in the appellate courts, “there must be thousands in the trial courts,” Liggio says.

One, a Third District Court of Appeal decision, was issued two days before the committee vote.

It involved a dispute between a medical entity — as assignee of an insured — and an automobile insurance company.

A lower court ordered the insurance company to pay $4,782 in attorney fees after the medical entity sued to collect a statutory late payment fee, and postage, totaling $10.55.

The Third DCA reversed the lower court and denied the attorney fee award. The appellate court noted that the insurance company paid the $10.55 approximately four months after the suit was originally filed.

“You can’t justify that, you just can’t,” Liggio says. “You can file a class action, perhaps, if the insurance company is routinely not paying statutorily required penalties and postage, but you don’t file a lawsuit for $10.”

Lawmakers could easily end the practice, Liggio said.

He notes that the Legislature recently prohibited homeowners from assigning their property insurance benefits to a third party, a practice known as “AOB.”

This year, a bipartisan measure would prohibit motorists from assigning their insurance benefits to auto glass repair companies.

“If the Legislature wants to curb these types of insignificant lawsuits by medical bill collection entities that lead to outsized attorney fee awards, there are more limited and focused ways to do so without taking away benefits provided to Florida citizens, families, and small businesses since 1959,” Liggio said.

https://www.floridabar.org/the-florida-bar-news/litigator-warns-of-collateral-damage-as-lawmakers-pursue-tort-law-legislation/ 

CY PRES BILL ADVANCES IN HOUSE; ITS FATE IS UNCERTAIN IN THE UPPER CHAMBER

Apr 13, 2021 By Gary Blankenship Senior Editor

 Rep. Anna Eskamani

A bill to adopt a civil cy pres doctrine in Florida statutes has passed its second House committee after a spirited debate over its necessity.

The House Public Integrity and Elections Subcommittee approved HB 409, by Rep. Anna Eskamani, D-Orlando, 13-2 on April 9.

“My concern with the bill is that we’re creating a perverse incentive for attorneys to create a larger class of plaintiffs [in a class action suit] knowing in advance they won’t be able to find them just so the attorney can get a bigger settlement and the attorney can get more money,” said Rep. Spencer Roach, R-North Ft. Myers.

“There is actually no evidence that the cy pres doctrine in common law has led to accretion of more class action lawsuits,” Eskamani replied.

She said the bill would put the cy pres doctrine, which already exists in the probate code and common law, in the civil law that would allow unclaimed funds to be distributed to legal aid agencies providing services related to the subject of the suit.

Eskamani, Florida Bar Foundation President Donny MacKenzie, and William Large, of the Florida Justice Reform Institute and who opposed the bill, agreed the bill would almost exclusively apply to class action suits where class members cannot be located to participate in an award.

Plaintiff and defense attorneys and the judge would have to agree on how the unclaimed funds could be used, Eskamani said, noting about 25 other states have a similar civil cy pres doctrine.

Large argued that knowing unclaimed funds would go to charitable uses — and even potentially the judge’s law school — could unconsciously affect judges’ decisions on granting class action status and in handling the case. He conceded, though, he has not found any evidence that is a problem.

“Intuitively, I believe that’s the case and I believe that is what happened,” Large said.

He also said in many cases plaintiff attorneys are only interested in getting as large a class as possible and are ready to settle when they get a sufficient fee, regardless of whether the award can be effectively distributed to class members.

Large said the purpose of litigation is for an injured plaintiff to be made whole while the civil cy pres doctrine brings in a third party that could benefit from the suit.

“That’s not fair. The folks that deserve to be compensated are the members of the class,” he said. “The whole point of our civil justice system is there is a case in controversy and the plaintiff should be made whole, that’s who the party dollars should be going to. It shouldn’t be going to the state, it shouldn’t be going to a charity.”

MacKenzie said the doctrine of cy pres has been around for 800 years and some judges already use it in Florida cases. But putting it in law would make more judges and lawyers aware of it and willing to use it in cases.

He also said distributions have to be accepted by both parties and the judge, and an early distribution agreement can avoid problems and potentially more litigation over residual awards at the end of the case.

“We are simply telling lawyers and judges in Florida this is a tool in your toolbox,” MacKenzie said. “And it’s better to agree on the front end than fight at the back end….

“That doesn’t violate the Constitution, that doesn’t violate the rules of procedure, and it has nothing to do with the merits of the lawsuit.”

“This provides an option and an opportunity to provide funding to support civil legal services to the poor without those funds having to come from state coffers,” said Rep. Geraldine Thompson, D-Orlando, whose husband, retired Fifth District Court of Appeal Judge Emerson Thompson, is a former Foundation president.

“Our motivation about this bill was very much grounded in working closely with legal aid organizations over this past year and realizing the lack of support for civil legal aid, realizing how overworked and underfunded they are,” Eskamani said. “This is not only common law, this is common practice in courts around America and states across this great country.”

HB 409 next goes to Judiciary Committee. SB 1270, by Sen. Shevrin Jones, D-Miami Gardens, the upper chamber’s counterpart, has not been heard in committee, making it unlikely any bill will pass the Legislature this year. But success in House committees or the entire House could improve chances for passage next year.

https://www.floridabar.org/the-florida-bar-news/cy-pres-bill-advances-in-house-its-fate-is-uncertain-in-the-upper-chamber/