On March 24, 2023, Florida Governor Ron DeSantis signed into law a wide-ranging tort reform bill known as HB 837, with its proponents stating the law’s goal is to prevent predatory practices of trial attorneys who prey on Florida residents.[i] However, a closer look reveals that the law could significantly limit plaintiffs’ ability to seek and obtain appropriate compensation for their injuries. One of the most significant changes introduced by HB 837 is the shift from a pure comparative negligence system to a modified one.[ii] While proponents claim this transition will balance the legal system and reduce frivolous lawsuits, the reality is that it may disproportionately impact plaintiffs by restricting their ability to recover damages.[iii]
Before discussing the implications of HB 837, it is essential to understand the concept of comparative negligence. In a negligence lawsuit, the court determines the percentage of fault attributable to each party involved. For the past 50 years, Florida has been a pure comparative negligence state. Under a pure comparative negligence system, even if you were guilty of 90% negligence, you could still recover 10% of your damages from the other party. However, the modified comparative negligence system bars recovery if the plaintiff is found to be more than 50% at fault.[iv]
The most apparent consequence of the modified system is that it sets up a significant barrier to recovery for plaintiffs. If a plaintiff is found to be more than 50% responsible for their injuries, they will walk away with nothing. This change could deter individuals from pursuing legitimate claims, particularly in cases where both parties bear some level of fault.
Under the newly modified comparative negligence theory, defendants, particularly insurance companies, find themselves in a more secure position. Now, they only need to convince the jury that a plaintiff is more than 50% at fault to escape any liability.[v] Additionally, one study provides that “settlements under pure comparative negligence are greater than those under modified comparative negligence[.]” [vi]
The introduction of a modified comparative negligence system in Florida raises ethical questions about the fairness of our legal system. In a society that values the principle that everyone should be responsible for their actions, it seems counterintuitive to absolve defendants of any responsibility simply because the plaintiff shares more than 50% of the blame. Moreover, it casts aside the complexities of real-world situations where fault is rarely black and white.
Contributing to the ethical questions raised with the introduction of HB 837 is the fact that Governor Ron DeSantis, a major proponent of the new bill, and Friends of Ron DeSantis, a political action committee that supported DeSantis’ re-election campaign, have taken a combined $3.9 million in contributions from insurance industry players.[vii] In addition, the reform package, which was heavily supported by the insurance industry, included a few ways to protect insurance companies from lawsuits suits such as cutting in half the four-year statute of limitations for filing negligence claims and essentially limiting the application of “one-way” attorneys’ fees that insurers have to pay.[viii]
While only time will tell how impactful this legislation will actually be on the fairness of the legal process in Florida, one of the effects already felt is the inundation of cases filed in anticipation of the bill becoming law back in March. There was a dramatic increase in cases filed in civil circuits across the state. “According to data from the Florida Courts E-Filing Portal, which maintains a statewide court registry, 90,593 circuit civil cases were filed between March 17 and March 22 in Florida. That is 77% of the 118,179 cases filed between Jan. 1 and March 22.” [ix] Such a high volume of cases has raised concerns of delay due to having inadequate resources to process such a high volume of cases.[x]
In conclusion, while the ostensible goal of HB 837 may be to stabilize Florida’s insurance market, with its change from a pure to a modified comparative negligence system, there may be widespread and troubling implications that could ultimately harm plaintiffs seeking redress for their injuries. From impacting the psychological willingness of potential plaintiffs to file claims to reinforcing power imbalances and straining judicial resources, the law could negatively affect individual plaintiffs and the overall perception of justice and fairness in Florida. It remains to be seen how Florida courts will interpret these new rules, but one thing is clear – the road to fair compensation just became much more challenging for Florida plaintiffs.
[i] See Staff, Governor Ron DeSantis Signs Comprehensive Legal Reforms into Law, Ron DeSantis 46th Governor of Fla. (Mar. 24, 2023), https://www.flgov.com/2023/03/24/governor-ron-desantis-signs-comprehensive-legal-reforms-into-law/.
[ii] 2023 FL H.B. 837.
[iii] See Staff, supra note i.
[iv] See C. Ryan Maloney, Florida Makes Major Changes to Comparative Negligence Law, Jimerson Birr (May 1, 2023), https://www.jimersonfirm.com/blog/2023/05/florida-tort-reform-bill-hb837-comparative-negligence/.
[v] See Kevin McKendry & Jessica S. Zelitt, Deeper Dive into HB 837 – Potential Effects, Challenges of Wide-Ranging Florida Tort Reform Bill, Adams and Reese LLP (May 24, 2023), https://www.adamsandreese.com/news-knowledge/florida-tort-reform-deeper-dive-hb-837.
[vi] Daniel Kessler, Fault, Settlement, and Negligence Law, 26 RAND J. 296, 306–07 (1995).
[vii] See David Smith, DeSantis Accused of Favoring Insurance-Industry Donors at Residents’ Expense, The Guardian (May 3, 2023, 9:51 AM), https://www.theguardian.com/us-news/2023/may/03/ron-desantis-insurance-industry-donors-florida-governor.
[viii] Christopher Cann, Central Florida Courts Inundated With Civil Cases as Tort Reform Bill Becomes Law, Orlando Sentinel (Mar. 28, 2023, 2:02 PM), https://www.orlandosentinel.com/2023/03/28/central-florida-courts-inundated-with-civil-cases-as-tort-reform-bill-becomes-law/.
[ix] Id.
[x] See id.
