Your Rights Have Been Stolen…Legally

New Florida Law Steals Victims’ Rights

On March 24, 2023, Florida Governor Ron DeSantis signed into law HB 837, a sweeping piece of tort “reform” legislation that will significantly change how negligence lawsuits are handled in the state. DeSantis and the Florida state Senators and Representatives pushing this bill claimed that the purpose was to reduce insurance costs and reduce “frivolous” litigation.

Nothing could be further from the truth.

This new law will essentially curtail the rights of victims of negligence and certain criminal acts, while protecting insurance companies. Plain and simple. This law was written by insurers to protect their financial interests.

Effective immediately, HB 837 has ushered in several notable changes, including:

• Shortened statute of limitations. For negligence cases originating after March 24, 2023, the statute of limitations is now two years as opposed to the four years it has always been. That might not seem like a big deal, but for someone who has been seriously injured, undergone surgeries, hospitalizations, therapies or other life-changing events, the time passes quickly. Many people have no idea that so much time has passed.  Additionally, many times it takes months to determine whether a good case exists, so most trial lawyers do not want to get involved with cases within the last few months of the deadline.  A statute of limitations is a deadline to file suit or the case is forever barred.  There is nothing about shortening the statute of limitations that reduces frivolous cases or does anything other than reduce the number of cases by cutting in half the amount of time seriously injured people have to bring their case.
• Bad faith insurance “reform.” Bad faith insurance laws were designed to penalize insurance companies where, through intentional dishonesty or unfairness, fail to fairly settle claims or protect their insureds from the claims of others. HB 837, however, removes certain protections from Florida’s existing bad faith laws that incentivize insurers to treat policyholders fairly. Without these protections, insurance companies will be able to drag their feet on claims and, theoretically, take every case to trial, since the greatest risk for them will now be having to pay out their policy limits. Under long-established Florida law before this change, if an insurance company did not act in a reasonable manner in settling claims, and if the case went to trial and there was a judgment more than the insurance limits, the insurer would generally be responsible for the full amount. This helped keep the insurance companies honest.  In those situations the insurance was gambling with their insured’s money.  Now  in many cases the worst thing that happens to an insurance company from jerking people around is that they have to pay their policy limits.  They have no incentive to actually pay the full amount of their policy limits voluntarily, so they can force every claimant to go all the way through trial with no risk to themselves. (they are placing their insureds at risk because then, if there is a verdict greater than the amount of the insurance policy limits, the victim would collect against the defendant individually.) Does anyone think that insurers are going to just act fairly because it’s the right thing to do?
  • A real world example and one we often see: Someone causes a car crash and injures the other driver.  The victim suffers serious injuries, surgeries, and perhaps a lost career.  The insured defendant (person who caused the accident) only has an insurance policy with $25,000 of coverage.  That insured is a regular working class person who could never pay the full amount of the damages caused by the accident.  They bought insurance to protect themselves.  The insurance company now can make a bad faith offer to the victim of $10,000 when the real value of the claim is, for example, $250,000.  Under the law that existed for many decades, if the insurance company did not pay their full $25,000 limits when they were given an opportunity to do so, and protect their insured (the at-fault driver), and the victim went to trial and recovered $250,000 from a jury, the insured defendant could assign their rights to the victim to go after the insurance company for bad faith, since the insurer did not reasonably protect them from this.  Under the new law, there is no consequence to the insurance company.  If there is a $250,000 verdict, they then pay their $25,000 policy limit and then their insured (the at-fault driver) is stuck with a $225,000 balance that they are now obligated to pay.  This will force many people into bankruptcy and leave many injured victims with little recovery.
  • Who is the only one who benefits? Insurance companies.
• Medical Damages. The new law limits the evidence admissible to prove damages for past or future medical care. Notably, victims of negligence will no longer be able to recover the full value of their medical expenses and will now be limited to 120% of the Medicare reimbursement rate. So if someone without insurance has to undergo a procedure and pay for it out of pocket, the jury will not be allowed to know how much the actual cost is.
• Attorney Fees “reform.” For over 130 years, Florida Statute § 627.428 existed as a mechanism to protect “David against Goliath” when insureds (of auto, health, life, or any other first-party insurance) needed to sue their insurance companies for claims or unfair denials of coverage. The statute entitled insureds to reasonable attorney’s fees in lawsuits where they were awarded any amount of damages. Now, HB 837 has repealed § 627.428, meaning that insurance consumers will be fully responsible for their own attorney’s fees—which may often be more than the claim itself.  So when someone has a claim (property loss or personal injury) they have to pay for their attorneys to handle the case which may cost more than the actual loss itself.  So people are going to suffer losses that they cannot afford to force their insurance company to pay.
• Making It Harder To Recover For Negligent Security. The new law now allows juries to put the blame for violent crime negligence on the criminal themselves in cases where the owner of a business is being sued for failing to have reasonable security to prevent the crime itself.  That means that the business who is responsible for providing security can now blame the criminal they were responsible for keeping away.  And if a jury buys that, the victim is penalized. The new law also gives a presumption of no liability if they implement a few measures regardless of how much or how serious the crime has been on their property. Most of the measures do not even bear on deterring crime.
• Elimination of pure comparative negligence. In the past, Florida has been a state whose law was that the victim’s negligence was factored into the entire fault.  It makes sense.  If someone suffers $100,000 of injuries and was 60% at fault themselves, they would only recover $40,000.  The new law changes pure comparative negligence and going forward if a victim is over 50% at fault, they recover nothing at all.

The entire law benefits insurance companies, an industry that fills the pockets of Tallahassee lawmakers and is the major source of campaign contributions.  The Chamber of Commerce, which is a front for big business in America (but claims to represent small businesses) is another backer of any tort reform laws. These are not entities that have an interest in preserving justice, just their own bottom line.

Funny, if the whole purpose is to reduce insurance and business costs, why is there no provision for reduced insurance rates tied to these losses in legal rights?  If they are taking away rights, in the name of reducing costs, where is the corresponding insurance reduction?

You will never see it.