Senate Bill 0374e1
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1 A bill to be entitled
2 An act relating to civil actions; creating s.
3 40.50, F.S.; providing for instructions to
4 juries after the jury is sworn in; providing
5 for the taking of notes under certain
6 circumstances; providing for notebooks;
7 providing for written questions; providing for
8 final instructions; amending s. 44.102, F.S.;
9 requiring that the court require mediation in
10 certain actions for monetary damages; creating
11 s. 44.1051, F.S.; providing for voluntary trial
12 resolution; providing for the appointment of a
13 trial resolution judge; providing for
14 compensation; providing for fees; providing for
15 the tolling of applicable statutes of
16 limitation; providing for powers of trial
17 resolution judges; providing for hearings and
18 evidence; providing for appeal; providing for
19 application; amending s. 57.105, F.S.; revising
20 conditions for award of attorney's fees for
21 presenting unsupported claims or defenses;
22 authorizing damage awards against a party for
23 unreasonable delay of litigation; authorizing
24 the court to impose additional sanctions;
25 amending s. 768.79, F.S.; providing for the
26 applicability of offers of judgment and demand
27 of judgment in cases involving multiple
28 plaintiffs; providing that subsequent offers
29 shall void previous offers; providing that
30 prior to awarding costs and fees the court
31 shall consider whether the proposal was
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1 reasonably rejected; amending s. 57.071, F.S.;
2 providing criteria under which expert witness
3 fees may be awarded as taxable costs; providing
4 for expedited trials; amending s. 768.77, F.S.;
5 deleting a requirement to itemize future
6 damages on verdict forms; amending s. 768.78,
7 F.S.; providing for proposals for structured
8 settlements; requiring structured-settlement
9 discussion in settlement negotiations;
10 requiring assignment of liability for payment
11 to a third-party assignee selected by the
12 plaintiff; granting the plaintiff the right to
13 select a settlement broker; providing for
14 findings in orders approving or adopting a
15 settlement; conforming provisions relating to
16 alternative methods of payment of damage awards
17 to changes made by the act; correcting a
18 cross-reference; creating s. 47.025, F.S.;
19 providing that certain venue provisions in a
20 contract for improvement to real property are
21 void; specifying appropriate venue for actions
22 against resident contractors, subcontractors,
23 sub-subcontractors, and materialmen; requiring
24 the clerk of court to report certain
25 information on negligence cases to the Office
26 of the State Courts Administrator; amending s.
27 768.81, F.S.; providing for the apportionment
28 of damages on the basis of joint and several
29 liability when a party's fault exceeds a
30 certain percentage; repealing s. 768.81(5),
31 F.S.; relating to the applicability of joint
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1 and several liability to actions in which the
2 total amount of damages does not exceed a
3 specified amount; requiring the Department of
4 Insurance to contract with an actuarial firm to
5 conduct an actuarial analysis of expected
6 reductions in judgments and related costs
7 resulting from litigation reforms; specifying
8 the basis and due date for the actuarial
9 report; providing for a review of rate filings
10 by certain types of insurers after a specified
11 date; providing that such provisions do not
12 limit the refund of excessive profits by
13 certain insurers; creating s. 768.1256, F.S.;
14 providing a government rules defense with
15 respect to certain products liability actions;
16 providing for rebuttable presumptions;
17 providing an exception; amending s. 400.023,
18 F.S., relating to actions brought on behalf of
19 nursing home residents; providing that a party
20 to any such action may not recover attorney's
21 fees unless parties submit to mediation;
22 specifying requirements for such mediation;
23 providing for application; providing a standard
24 for any award of punitive damages; increasing
25 minimum financial responsibility requirements
26 for physicians and osteopathic physicians and
27 eliminating an alternative method of satisfying
28 financial responsibility requirements for
29 physicians and osteopathic physicians with
30 hospital staff privileges; providing for
31 severability; providing an effective date.
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1 Be It Enacted by the Legislature of the State of Florida:
2
3 Section 1. Section 40.50, Florida Statutes, is created
4 to read:
5 40.50 Jury duty and instructions in civil cases.--
6 (1) In any civil action immediately after the jury is
7 sworn, the court shall instruct the jury concerning its
8 duties, its conduct, the order of proceedings, the procedure
9 for submitting written questions of witnesses, and the
10 elementary legal principles that will govern the proceeding as
11 provided in this section.
12 (2) The court shall instruct that the jurors may take
13 notes regarding the evidence and keep the notes for the
14 purpose of refreshing their memory for use during recesses and
15 deliberations. The court may provide materials suitable for
16 this purpose. The confidentiality of the notes should be
17 emphasized to the jurors. After the jury has rendered its
18 verdict, the notes shall be collected by the bailiff or clerk
19 who shall promptly destroy them.
20 (3) In any case in which the court determines that the
21 trial could exceed 5 days, the court shall provide a notebook
22 for each juror. Notebooks may contain:
23 (a) A copy of the preliminary jury instructions,
24 including special instructions on the issues to be tried.
25 (b) Jurors' notes.
26 (c) Witnesses' names and either photographs or
27 biographies or both.
28 (d) Copies of key documents admitted into evidence and
29 an index of all exhibits in evidence.
30 (e) A glossary of technical terms.
31 (f) A copy of the court's final instructions.
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2 In its discretion, the court may authorize documents and
3 exhibits in evidence to be included in notebooks for use by
4 the jurors during trial to aid them in performing their
5 duties. The preliminary jury instructions should be removed,
6 discarded, and replaced by the final jury instructions before
7 the latter are read to the jury by the court.
8 (4) The court shall permit jurors to have access to
9 their notes and, in appropriate cases, notebooks during
10 recesses and deliberations.
11 (5) The court shall permit jurors to submit to the
12 court written questions directed to witnesses or to the court.
13 Opportunity shall be given to counsel to object to such
14 questions out of the presence of the jury. The court may, as
15 appropriate, limit the submission of questions to witnesses.
16 (6) The court shall instruct the jury that any
17 questions directed to witnesses or the court must be in
18 writing, unsigned, and given to the bailiff. If the court
19 determines that the juror's question calls for admissible
20 evidence, the question may be asked by court or counsel in the
21 court's discretion. Such question may be answered by
22 stipulation or other appropriate means, including, but not
23 limited to, additional testimony upon such terms and
24 limitations as the court prescribes. If the court determines
25 that the juror's question calls for inadmissible evidence, the
26 question shall not be read or answered. If a juror's question
27 is rejected, the jury should be told that trial rules do not
28 permit some questions to be asked and that the jurors should
29 not attach any significance to the failure of having their
30 question asked.
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1 (7) The court has discretion to give final
2 instructions to the jury before closing arguments of counsel
3 instead of after, in order to enhance jurors' ability to apply
4 the applicable law to the facts. In that event, the court may
5 wish to withhold giving the necessary procedural and
6 housekeeping instructions until after closing arguments.
7 Section 2. Section 44.102, Florida Statutes, is
8 amended to read:
9 44.102 Court-ordered mediation.--
10 (1) Court-ordered mediation shall be conducted
11 according to rules of practice and procedure adopted by the
12 Supreme Court.
13 (2) A court, under rules adopted by the Supreme Court:
14 (a) Must refer to mediation any filed civil action for
15 monetary damages, unless:
16 1. The action is a landlord and tenant dispute that
17 does not include a claim for personal injury.
18 2. The action is filed for the purpose of collecting a
19 debt.
20 3. The action is a claim of medical malpractice.
21 4. The action is governed by the Florida Small Claims
22 Rules.
23 5. The court determines that the action is proper for
24 referral to nonbinding arbitration under this chapter.
25 6. The parties have agreed to binding arbitration.
26 (b)(a) May refer to mediation all or any part of a
27 filed civil action for which mediation is not required under
28 this section.
29 (c)(b) In circuits in which a family mediation program
30 has been established and upon a court finding of a dispute,
31 shall refer to mediation all or part of custody, visitation,
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1 or other parental responsibility issues as defined in s.
2 61.13. Upon motion or request of a party, a court shall not
3 refer any case to mediation if it finds there has been a
4 history of domestic violence that would compromise the
5 mediation process.
6 (d)(c) In circuits in which a dependency or in need of
7 services mediation program has been established, may refer to
8 mediation all or any portion of a matter relating to
9 dependency or to a child in need of services or a family in
10 need of services.
11 (3) Each party involved in a court-ordered mediation
12 proceeding has a privilege to refuse to disclose, and to
13 prevent any person present at the proceeding from disclosing,
14 communications made during such proceeding. All oral or
15 written communications in a mediation proceeding, other than
16 an executed settlement agreement, shall be exempt from the
17 requirements of chapter 119 and shall be confidential and
18 inadmissible as evidence in any subsequent legal proceeding,
19 unless all parties agree otherwise.
20 (4) There shall be no privilege and no restriction on
21 any disclosure of communications made confidential in
22 subsection (3) in relation to disciplinary proceedings filed
23 against mediators pursuant to s. 44.106 and court rules, to
24 the extent the communication is used for the purposes of such
25 proceedings. In such cases, the disclosure of an otherwise
26 privileged communication shall be used only for the internal
27 use of the body conducting the investigation. Prior to the
28 release of any disciplinary files to the public, all
29 references to otherwise privileged communications shall be
30 deleted from the record. When an otherwise confidential
31 communication is used in a mediator disciplinary proceeding,
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1 such communication shall be inadmissible as evidence in any
2 subsequent legal proceeding. "Subsequent legal proceeding"
3 means any legal proceeding between the parties to the
4 mediation which follows the court-ordered mediation.
5 (5) The chief judge of each judicial circuit shall
6 maintain a list of mediators who have been certified by the
7 Supreme Court and who have registered for appointment in that
8 circuit.
9 (a) Whenever possible, qualified individuals who have
10 volunteered their time to serve as mediators shall be
11 appointed. If a mediation program is funded pursuant to s.
12 44.108, volunteer mediators shall be entitled to reimbursement
13 pursuant to s. 112.061 for all actual expenses necessitated by
14 service as a mediator.
15 (b) Nonvolunteer mediators shall be compensated
16 according to rules adopted by the Supreme Court. If a
17 mediation program is funded pursuant to s. 44.108, a mediator
18 may be compensated by the county or by the parties. When a
19 party has been declared indigent or insolvent, that party's
20 pro rata share of a mediator's compensation shall be paid by
21 the county at the rate set by administrative order of the
22 chief judge of the circuit.
23 (6)(a) When an action is referred to mediation by
24 court order, the time periods for responding to an offer of
25 settlement pursuant to s. 45.061, or to an offer or demand for
26 judgment pursuant to s. 768.79, respectively, shall be tolled
27 until:
28 1. An impasse has been declared by the mediator; or
29 2. The mediator has reported to the court that no
30 agreement was reached.
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1 (b) Sections 45.061 and 768.79 notwithstanding, an
2 offer of settlement or an offer or demand for judgment may be
3 made at any time after an impasse has been declared by the
4 mediator, or the mediator has reported that no agreement was
5 reached. An offer is deemed rejected as of commencement of
6 trial.
7 Section 3. Section 44.1051, Florida Statutes, is
8 created to read:
9 44.1051 Voluntary trial resolution.--
10 (1) Two or more parties who are involved in a civil
11 dispute may agree in writing to submit the controversy to
12 voluntary trial resolution in lieu of litigation of the issues
13 involved, prior to or after a lawsuit has been filed, provided
14 that no constitutional issue is involved.
15 (2) If the parties have entered into an agreement that
16 provides for a method for appointment of a member of The
17 Florida Bar in good standing for more than 5 years to act as
18 trial resolution judge, the court shall proceed with the
19 appointment as prescribed.
20 (3) The trial resolution judge shall be compensated by
21 the parties according to their agreement.
22 (4) Within 10 days after the submission of the request
23 for binding voluntary trial resolution, the court shall
24 provide for the appointment of the trial resolution judge.
25 Once appointed, the trial resolution judge shall notify the
26 parties of the time and place for the hearing.
27 (5) Application for voluntary trial resolution shall
28 be filed and fees paid to the clerk of the court as if for
29 complaints initiating civil actions. The clerk of the court
30 shall handle and account for these matters in all respects as
31 if they were civil actions except that the clerk of the court
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1 shall keep separate the records of the applications for
2 voluntary binding trial resolution from all other civil
3 actions.
4 (6) Filing of the application for binding voluntary
5 trial resolution will toll the running of the applicable
6 statutes of limitation.
7 (7) The appointed trial resolution judge shall have
8 such power to administer oaths or affirmations and to conduct
9 the proceedings as the rules of court provide. At the request
10 of any party, the trial resolution judge shall issue subpoenas
11 for the attendance of witnesses and for the production of
12 books, records, documents, and other evidence and may apply to
13 the court for orders compelling attendance and production.
14 Subpoenas shall be served and shall be enforceable as provided
15 by law.
16 (8) The hearing shall be conducted by the trial
17 resolution judge, who may determine any question and render a
18 final decision.
19 (9) The Florida Evidence Code shall apply to all
20 proceedings under this section.
21 (10) Any party may enforce a final decision rendered
22 in a voluntary trial by filing a petition for final judgment
23 in the circuit court in the circuit in which the voluntary
24 trial took place. Upon entry of final judgment by the circuit
25 court an appeal may be taken to the appropriate appellate
26 court. The "harmless error doctrine" shall apply in all
27 appeals. No further review shall be permitted unless a
28 constitutional issue is raised. Factual findings determined in
29 the voluntary trial shall not be subject to appeal.
30 (11) If no appeal is taken within the time provided by
31 rules of the Supreme Court, the decision shall be referred to
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1 the presiding court judge in the case, or, if one has not been
2 assigned, to the chief judge of the circuit for assignment to
3 a circuit judge, who shall enter such orders and judgments as
4 are required to carry out the terms of decision, which orders
5 shall be enforceable by the contempt powers of the court and
6 for which judgment executions shall issue on request of a
7 party.
8 (12) This section does not apply to any dispute
9 involving child custody, visitation, or child support, or to
10 any dispute that involves the rights of a person who is not a
11 party to the voluntary trial resolution.
12 Section 4. Section 57.105, Florida Statutes, is
13 amended to read:
14 57.105 Attorney's fee; sanctions for raising unfounded
15 claims or defenses; damages for delay of litigation.--
16 (1) Upon the court's initiative or motion of any
17 party, the court shall award a reasonable attorney's fee to be
18 paid to the prevailing party in equal amounts by the losing
19 party and the losing party's attorney on any claim or defense
20 at any time during a in any civil proceeding or action in
21 which the court finds that the losing party or the losing
22 party's attorney knew or should have known that a claim or
23 defense when initially presented to the court or at any time
24 before trial:
25 (a) Was not supported by the material facts necessary
26 to establish the claim or defense; or
27 (b) Would not be supported by the application of
28 then-existing law to those material facts. there was a
29 complete absence of a justiciable issue of either law or fact
30 raised by the complaint or defense of the losing party;
31 provided,
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1
2 However, that the losing party's attorney is not personally
3 responsible if he or she has acted in good faith, based on the
4 representations of his or her client as to the existence of
5 those material facts. If the court awards attorney's fees to a
6 claimant pursuant to this subsection finds that there was a
7 complete absence of a justiciable issue of either law or fact
8 raised by the defense, the court shall also award prejudgment
9 interest.
10 (2) Subsection (1) does not apply if the court
11 determines that the claim or defense was initially presented
12 to the court as a good-faith attempt with a reasonable
13 probability of changing then-existing law as it applied to the
14 material facts.
15 (3) At any time in any civil proceeding or action in
16 which the moving party proves by a preponderance of the
17 evidence that any action taken by the opposing party,
18 including, but not limited to, the filing of any pleading or
19 part thereof, the assertion of or response to any discovery
20 demand, the assertion of any claim or defense, or the response
21 to any request by any other party, was taken primarily for the
22 purpose of unreasonable delay, the court shall award damages
23 to the moving party for the time necessitated by the conduct
24 in question.
25 (4) The court also may impose such additional
26 sanctions or other remedies as are just and warranted under
27 the circumstances of the particular case, including, but not
28 limited to, contempt of court, award of taxable costs,
29 striking of a claim or defense, or dismissal of the pleading.
30 (5)(2) If a contract contains a provision allowing
31 attorney's fees to a party when he or she is required to take
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1 any action to enforce the contract, the court may also allow
2 reasonable attorney's fees to the other party when that party
3 prevails in any action, whether as plaintiff or defendant,
4 with respect to the contract. This subsection applies to any
5 contract entered into on or after October 1, 1988. This act
6 shall take effect October 1, 1988, and shall apply to
7 contracts entered into on said date or thereafter.
8 Section 5. Subsections (3), (5), and (7) of section
9 768.79, Florida Statutes, are amended to read:
10 768.79 Offer of judgment and demand for judgment.--
11 (3) The offer shall be served upon the party to whom
12 it is made, but it shall not be filed unless it is accepted or
13 unless filing is necessary to enforce the provisions of this
14 section. In any case involving multiple party plaintiffs or
15 multiple party defendants, an offer shall specify its
16 applicability to each party and may specify any conditions
17 thereof. Each individual party may thereafter accept or reject
18 the offer as the offer applies to such party.
19 (5) An offer may be withdrawn in writing which is
20 served before the date a written acceptance is filed. Once
21 withdrawn, an offer is void. A subsequent offer to a party
22 shall have the effect of voiding any previous offer to that
23 party.
24 (7)(a) If a party is entitled to costs and fees
25 pursuant to the provisions of this section, the court may, in
26 its discretion, determine that an offer was not made in good
27 faith. In such case, the court may disallow an award of costs
28 and attorney's fees.
29 (b) When determining the entitlement to and
30 reasonableness of an award of attorney's fees pursuant to this
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1 section, the court shall consider, along with all other
2 relevant criteria, the following additional factors:
3 1. The then apparent merit or lack of merit in the
4 claim.
5 2. The number and nature of offers made by the
6 parties.
7 3. The closeness of questions of fact and law at
8 issue.
9 4. Whether the proposal was reasonably rejected.
10 5.4. Whether the person making the offer had
11 unreasonably refused to furnish information necessary to
12 evaluate the reasonableness of such offer.
13 6.5. Whether the suit was in the nature of a test case
14 presenting questions of far-reaching importance affecting
15 nonparties.
16 7.6. The amount of the additional delay cost and
17 expense that the person making the offer reasonably would be
18 expected to incur if the litigation should be prolonged.
19 Section 6. Section 57.071, Florida Statutes, is
20 amended to read:
21 57.071 Costs; what taxable.--
22 (1) If costs are awarded to any party, the following
23 shall also be allowed:
24 (a)(1) The reasonable premiums or expenses paid on all
25 bonds or other security furnished by such party.
26 (b)(2) The expense of the court reporter for per diem,
27 transcribing proceedings and depositions, including opening
28 statements and arguments by counsel.
29 (c)(3) Any sales or use tax due on legal services
30 provided to such party, notwithstanding any other provision of
31 law to the contrary.
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1 (2) Expert witness fees shall not be awarded as
2 taxable costs unless:
3 (a) The party retaining the expert witness files a
4 written notice with the court and with each opposing party
5 within 30 days after the entry of an order setting the trial
6 date, which notice shall specify the expertise and experience
7 of the expert, the rate of compensation of the expert witness,
8 the subject matters or issues on which the expert is expected
9 to render an opinion, and an estimate of the overall fees of
10 the expert witness, including the fee for trial testimony. If
11 the rate of compensation is hourly, the estimated overall fee
12 may be stated in terms of estimated hours; and
13 (b) The party retaining the expert witness furnishes
14 each opposing party with a written report signed by the expert
15 witness which summarizes the expert witness's opinions and the
16 factual basis of the opinions, including documentary evidence
17 and the authorities relied upon in reaching the opinions. Such
18 report shall be filed at least 10 days prior to discovery
19 cut-off, 45 days prior to the trial, or as otherwise
20 determined by the court.
21 (c) This section does not apply to any action
22 proceeding under the Florida Family Law Rules of Procedure.
23 Section 7. Expedited trials.--Upon the joint
24 stipulation of the parties to any civil case, the court may
25 conduct an expedited trial as provided in this section. Where
26 two or more plaintiffs or defendants have a unity of interest,
27 such as a husband and wife, they shall be considered one party
28 for the purpose of this section. Unless otherwise ordered by
29 the court or agreed to by the parties with approval of the
30 court, an expedited trial shall be conducted as follows:
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1 (1) All discovery in the trial shall be completed
2 within 60 days after the court enters an order adopting the
3 joint expedited trial stipulation.
4 (2) All interrogatories and requests for production
5 must be served within 10 days after the court enters an order
6 adopting the joint expedited trial stipulation, and all
7 responses must be served within 20 days after receipt.
8 (3) The court shall determine the number of
9 depositions required.
10 (4) The case may be tried to a jury.
11 (5) The case must be tried within 30 days after the
12 60-day discovery cut-off.
13 (6) The trial must be limited to 1 day.
14 (7) The jury selection must be limited to 1 hour.
15 (8) The plaintiff will have 3 hours to present its
16 case, including its opening, all of its testimony and
17 evidence, and its closing.
18 (9) The defendant will have 3 hours to present its
19 case, including its opening, all of its testimony and
20 evidence, and its closing.
21 (10) The jury will be given "plain language" jury
22 instructions at the beginning of the trial as well as a "plain
23 language" jury verdict form. The jury instructions and verdict
24 form must be agreed to by the parties.
25 (11) The parties will be permitted to introduce a
26 written report of any expert and the expert's curriculum vitae
27 instead of calling the expert to testify live at trial.
28 (12) At trial the parties may use excerpts from
29 depositions, including video depositions, regardless of where
30 the deponent lives or whether the deponent is available to
31 testify.
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1 (13) The Florida Evidence Code and the Florida Rules
2 of Civil Procedure will apply.
3 (14) There will be no continuances of the trial absent
4 extraordinary circumstances.
5 Section 8. Section 768.77, Florida Statutes, is
6 amended to read:
7 768.77 Itemized verdict.--
8 (1) In any action to which this part applies in which
9 the trier of fact determines that liability exists on the part
10 of the defendant, the trier of fact shall, as a part of the
11 verdict, itemize the amounts to be awarded to the claimant
12 into the following categories of damages:
13 (1)(a) Amounts intended to compensate the claimant for
14 economic losses;
15 (2)(b) Amounts intended to compensate the claimant for
16 noneconomic losses; and
17 (3)(c) Amounts awarded to the claimant for punitive
18 damages, if applicable.
19 (2) Each category of damages, other than punitive
20 damages, shall be further itemized into amounts intended to
21 compensate for losses which have been incurred prior to the
22 verdict and into amounts intended to compensate for losses to
23 be incurred in the future. Future damages itemized under
24 paragraph (1)(a) shall be computed before and after reduction
25 to present value. Damages itemized under paragraph (1)(b) or
26 paragraph (1)(c) shall not be reduced to present value. In
27 itemizing amounts intended to compensate for future losses,
28 the trier of fact shall set forth the period of years over
29 which such amounts are intended to provide compensation.
30 Section 9. Present subsection (1) of section 768.78,
31 Florida Statutes, is amended and redesignated as subsection
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1 (2), present subsection (2) is redesignated as subsection (3),
2 and a new subsection (1) is added to that section to read:
3 768.78 Alternative methods of payment of damage
4 awards.--
5 (1) In both prejudgment and post-judgment cases, the
6 parties shall specifically discuss the option and advantages
7 for the plaintiff of settlement through use of structured
8 periodic payments. If, in connection with a settlement, the
9 plaintiff chooses to receive payment in the form of periodic
10 payments, the defendant or the defendant's liability carrier
11 is obligated to provide such payments, and the following
12 apply:
13 (a) To the extent that the liability for payment of
14 damages to the plaintiff qualifies for assignment under
15 Section 130, or any successor section, of the Internal Revenue
16 Code, as amended from time to time, the defendant or the
17 defendant's liability carrier shall assign the liability to
18 make such periodic payments to a third party assignee selected
19 by the plaintiff.
20 (b) Once a structured settlement is agreed to by the
21 parties, the defendant or the defendant's liability carrier
22 may not withdraw from the agreement because of the plaintiff's
23 choice of third-party assignee.
24 (c) The plaintiff has the right to select a licensed
25 structured-settlement broker to place the structured
26 settlement.
27 (d) Any order approving or adopting a settlement to
28 which this subsection applies must include a finding that the
29 settlement complies with this subsection.
30 (e) This subsection does not apply to cases the
31 settlement of which is under $50,000.
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1 (f) Nothing in this subsection creates an additional
2 cause of action against the defendant or his attorneys.
3 (g) This subsection applies only to cases impacted by
4 s. 104(a)(1), (2), and (3) of the Internal Revenue Code.
5 (2)(1)(a) In any action to which this part applies in
6 which the court determines that trier of fact makes an award
7 to compensate the claimant includes for future economic losses
8 which exceed $250,000, payment of amounts intended to
9 compensate the claimant for these losses shall be made by one
10 of the following means, unless an alternative method of
11 payment of damages is provided in this section:
12 1. The defendant may make a lump-sum payment for all
13 damages so assessed, with future economic losses and expenses
14 reduced to present value; or
15 2. Subject to the provisions of this subsection, the
16 court shall, at the request of either party, unless the court
17 determines that manifest injustice would result to any party,
18 enter a judgment ordering future economic damages, as itemized
19 pursuant to s. 768.77(1)(a), in excess of $250,000 to be paid
20 in whole or in part by periodic payments rather than by a
21 lump-sum payment.
22 (b) In entering a judgment ordering the payment of
23 such future damages by periodic payments, the court shall make
24 a specific finding of the dollar amount of periodic payments
25 which will compensate the judgment creditor for these future
26 damages after offset for collateral sources. The total dollar
27 amount of the periodic payments shall equal the dollar amount
28 of all such future damages before any reduction to present
29 value, less any attorney's fees payable from future damages in
30 accordance with paragraph (f). The period of time over which
31 the periodic payments shall be made is the period of years
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1 determined by the trier of fact in arriving at its itemized
2 verdict and shall not be extended if the plaintiff lives
3 beyond the determined period. If the claimant has been
4 awarded damages to be discharged by periodic payments and the
5 claimant dies prior to the termination of the period of years
6 during which periodic payments are to be made, the remaining
7 liability of the defendant, reduced to present value, shall be
8 paid into the estate of the claimant in a lump sum. The court
9 may order that the payments be equal or vary in amount,
10 depending upon the need of the claimant.
11 (c) As a condition to authorizing periodic payments of
12 future damages, the court shall require the defendant to post
13 a bond or security or otherwise to assure full payment of
14 these damages awarded by the judgment. A bond is not adequate
15 unless it is written by a company authorized to do business in
16 this state and is rated A+ by Best's. If the defendant is
17 unable to adequately assure full payment of the damages, the
18 court shall order that all damages be paid to the claimant in
19 a lump sum pursuant to the verdict. No bond may be canceled
20 or be subject to cancellation unless at least 60 days' advance
21 written notice is filed with the court and the judgment
22 creditor. Upon termination of periodic payments, the court
23 shall order the return of the security, or so much as remains,
24 to the judgment debtor.
25 (d)1. In the event that the court finds that the
26 judgment debtor has exhibited a continuing pattern of failing
27 to timely make the required periodic payments, the court
28 shall:
29 a. Order that all remaining amounts of the award be
30 paid by lump sum within 30 days after entry of the order;
31
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1 b. Order that, in addition to the required periodic
2 payments, the judgment debtor pay the claimant all damages
3 caused by the failure to timely make periodic payments,
4 including court costs and attorney's fees; or
5 c. Enter other orders or sanctions as appropriate to
6 protect the judgment creditor.
7 2. If it appears that the judgment debtor may be
8 insolvent or that there is a substantial risk that the
9 judgment debtor may not have the financial responsibility to
10 pay all amounts due and owing the judgment creditor, the court
11 may:
12 a. Order additional security;
13 b. Order that the balance of payments due be placed in
14 trust for the benefit of the claimant;
15 c. Order that all remaining amounts of the award be
16 paid by lump sum within 30 days after entry of the order; or
17 d. Order such other protection as may be necessary to
18 assure the payment of the remaining balance of the judgment.
19 (e) The judgment providing for payment of future
20 damages by periodic payments shall specify the recipient or
21 recipients of the payments, the dollar amounts of the
22 payments, the interval between payments, and the number of
23 payments or the period of time over which payments shall be
24 made. Periodic payments shall be subject to modification only
25 as specified in this subsection.
26 (f) Claimant's attorney's fee, if payable from the
27 judgment, shall be based upon the total judgment, adding all
28 amounts awarded for past and future damages. The attorney's
29 fee shall be paid from past and future damages in the same
30 proportion. If a claimant has agreed to pay her or his
31 attorney's fees on a contingency fee basis, the claimant shall
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1 be responsible for paying the agreed percentage calculated
2 solely on the basis of that portion of the award not subject
3 to periodic payments. The remaining unpaid portion of the
4 attorney's fees shall be paid in a lump sum by the defendant,
5 who shall receive credit against future payments for this
6 amount. However, the credit against each future payment is
7 limited to an amount equal to the contingency fee percentage
8 of each periodic payment. Any provision of this paragraph may
9 be modified by the agreement of all interested parties.
10 (g) Nothing in this subsection shall preclude any
11 other method of payment of awards, if such method is consented
12 to by the parties.
13 Section 10. Section 47.025, Florida Statutes, is
14 created to read:
15 47.025 Actions against contractors.--Any venue
16 provision in a contract for improvement to real property which
17 requires legal action involving a resident contractor,
18 subcontractor, sub-subcontractor, or materialman, as defined
19 in part I of chapter 713, to be brought outside this state is
20 void as a matter of public policy. To the extent that the
21 venue provision in the contract is void under this section,
22 any legal action arising out of that contract shall be brought
23 only in this state in the county where the defendant resides,
24 where the cause of action accrued, or where the property in
25 litigation is located, unless, after the dispute arises, the
26 parties stipulate to another venue.
27 Section 11. Through the state's uniform case reporting
28 system, the clerk of court shall report to the Office of the
29 State Courts Administrator information from each settlement or
30 jury verdict and final judgment in negligence cases as defined
31 in section 768.81(4), Florida Statutes, as the President of
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1 the Senate and the Speaker of the House of Representatives
2 deem necessary from time to time. The information shall
3 include, but need not be limited to: the name of each
4 plaintiff and defendant; the verdict; the percentage of fault
5 of each; the amount of economic damages and noneconomic
6 damages awarded to each plaintiff, identifying those damages
7 that are to be paid jointly and severally and by which
8 defendants; and the amount of any punitive damages to be paid
9 by each defendant.
10 Section 12. Subsection (3) of section 768.81, Florida
11 Statutes, is amended, and subsection (5) of that section is
12 repealed, to read:
13 768.81 Comparative fault.--
14 (3) APPORTIONMENT OF DAMAGES.--In cases to which this
15 section applies, the court shall enter judgment against each
16 party liable on the basis of such party's percentage of fault
17 and not on the basis of the doctrine of joint and several
18 liability; provided that with respect to any party whose
19 percentage of fault equals or exceeds that of a particular
20 claimant and whose fault exceeds 25 percent, the court shall
21 enter judgment with respect to economic damages against that
22 party on the basis of the doctrine of joint and several
23 liability.
24 (5) APPLICABILITY OF JOINT AND SEVERAL
25 LIABILITY.--Notwithstanding the provisions of this section,
26 the doctrine of joint and several liability applies to all
27 actions in which the total amount of damages does not exceed
28 $25,000.
29 Section 13. (1) The Department of Insurance shall,
30 after issuing a request for proposals, contract with a
31 national independent actuarial firm to conduct an actuarial
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1 analysis, consistent with generally accepted actuarial
2 practices, of the expected reduction in liability judgments,
3 settlements, and related costs resulting from the provisions
4 of this act. The analysis must be based on credible loss-cost
5 data derived from the settlement or adjudication of liability
6 claims, other than liability claims insured under private
7 passenger automobile insurance or personal lines residential
8 property insurance, accruing after October 1, 1999. The
9 analysis must include an estimate of the percentage decrease
10 in such judgments, settlements, and costs by type of coverage
11 affected by this act, including the time period when such
12 savings or reductions are expected.
13 (2) The report must be completed and submitted to the
14 Department of Insurance by March 1, 2001.
15 (3) After March 1, 2001, the Department of Insurance
16 shall review the filed rates of insurers and underwriting
17 profits and losses for Florida liability insurance businesses
18 and shall require any prospective rate modifications that the
19 department deems necessary, consistent with the applicable
20 rating law, in order to cause the rates of any specific
21 insurer to comply with the applicable rating law. The
22 department shall require each liability insurer's first rate
23 filing after March 1, 2001, other than rate filings for
24 private passenger automobile insurance or personal lines
25 residential property insurance, to include specific data on
26 the impact of this act on the insurer's liability judgments,
27 settlements, and costs for the purpose of enabling the
28 department and the Legislature to accurately monitor and
29 evaluate the effects of this act.
30 (4) The report under subsection (1) is admissible in
31 any proceedings relating to a liability insurance rate filing
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1 if the actuary who prepared the report is made available by
2 the department to testify regarding the report's preparation
3 and validity. Each party shall otherwise bear its own cost of
4 any such proceeding.
5 (5) This section does not limit the authority of the
6 department to order an insurer to refund excessive profits, as
7 provided in sections 627.066 and 627.215, Florida Statutes.
8 Section 14. Subsections (6), (7), and (8) are added to
9 section 400.023, Florida Statutes, to read:
10 400.023 Civil enforcement.--
11 (6) To recover attorney's fees under this section, the
12 following conditions precedent must be met:
13 (a) Within 120 days after the filing of a responsive
14 pleading or defensive motion to a complaint brought under this
15 section and before trial, the parties or their designated
16 representatives shall meet in mediation to discuss the issues
17 of liability and damages in accordance with this paragraph for
18 the purpose of an early resolution of the matter.
19 1. Within 60 days after the filing of the responsive
20 pleading or defensive motion, the parties shall:
21 a. Agree on a mediator. If the parties cannot agree on
22 a mediator, the defendant shall immediately notify the court,
23 which shall appoint a mediator within 10 days after such
24 notice.
25 b. Set a date for mediation.
26 c. Prepare an order for the court that identifies the
27 mediator, the scheduled date of the mediation, and other terms
28 of the mediation. Absent any disagreement between the parties,
29 the court may issue the order for the mediation submitted by
30 the parties without a hearing.
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1 2. The mediation must be concluded within 120 days
2 after the filing of a responsive pleading or defensive motion.
3 The date may be extended only by agreement of all parties
4 subject to mediation under this subsection.
5 3. The mediation shall be conducted in the following
6 manner:
7 a. Each party shall ensure that all persons necessary
8 for complete settlement authority are present at the
9 mediation.
10 b. Each party shall mediate in good faith.
11 4. All aspects of the mediation which are not
12 specifically established by this subsection must be conducted
13 according to the rules of practice and procedure adopted by
14 the Supreme Court of this state.
15 (b) If the parties do not settle the case pursuant to
16 mediation, the last offer of the defendant made at mediation
17 shall be recorded by the mediator in a written report that
18 states the amount of the offer, the date the offer was made in
19 writing, and the date the offer was rejected. If the matter
20 subsequently proceeds to trial under this section and the
21 plaintiff prevails but is awarded an amount in damages,
22 exclusive of attorney's fees, which is equal to or less than
23 the last offer made by the defendant at mediation, the
24 plaintiff is not entitled to recover any attorney's fees.
25 (c) This subsection applies only to claims for
26 liability and damages and does not apply to actions for
27 injunctive relief.
28 (d) This subsection applies to all causes of action
29 that accrue on or after October 1, 1999.
30 (7) Discovery of financial information for the purpose
31 of determining the value of punitive damages may not be had
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1 unless the plaintiff shows the court by proffer or evidence in
2 the record that a reasonable basis exists to support a claim
3 for punitive damages.
4 (8) In addition to any other standards for punitive
5 damages, any award of punitive damages must be reasonable in
6 light of the actual harm suffered by the resident and the
7 egregiousness of the conduct that caused the actual harm to
8 the resident.
9 Section 15. Effective October 1, 1999, the minimum per
10 claim financial responsibility required under sections
11 458.320(2)(b) and (c) and 459.0085(2)(b) and (c), Florida
12 Statutes, shall be increased from $250,000 to $500,000 and the
13 minimum aggregate requirement specified in said sections shall
14 be increased from $750,000 to $1,000,000; provided, further
15 that the provisions of sections 458.320(5)(g) and
16 459.0085(5)(g), Florida Statutes, respectively, shall not
17 apply to any physician or osteopathic physician with hospital
18 staff privileges.
19 Section 16. If any provision of this act or the
20 application thereof to any person or circumstance is held
21 invalid, the invalidity does not affect other provisions or
22 applications of the act which can be given effect without the
23 invalid provision or application, and to this end the
24 provisions of this act are declared severable.
25 Section 17. Section 768.1256, Florida Statutes, is
26 created to read:
27 768.1256 Government rules defense.--
28 (1) In a product liability action brought against a
29 manufacturer or seller for harm allegedly caused by a product,
30 there is a rebuttable presumption pursuant to s. 90.302(1)
31 that the product is not defective or unreasonably dangerous
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1 and the manufacturer or seller is not liable if, at the time
2 the specific unit of the product was sold or delivered to the
3 initial purchaser or user, the aspect of the product that
4 allegedly caused the harm:
5 (a) Complied with federal or state codes, statutes,
6 rules, regulations or standards relevant to the event causing
7 the death or injury;
8 (b) The codes, statutes, rules, regulations or
9 standards are designed to prevent the type of harm that
10 allegedly occurred; and
11 (c) Compliance with the codes, statutes, rules,
12 regulations or standards is required as a condition for
13 selling or distributing the product.
14 (2) In a product liability action as described in
15 subsection (1), there is a rebuttable presumption pursuant to
16 s. 90.302(1) that the product is defective or unreasonably
17 dangerous and the manufacturer or seller is liable if the
18 manufacturer or seller did not comply with the federal or
19 state codes, statutes, rules, regulations or standards which:
20 (a) Were relevant to the event causing the death or
21 injury;
22 (b) Are designed to prevent the type of harm that
23 allegedly occurred; and
24 (c) Require compliance as a condition for selling or
25 distributing the product.
26 (3) This section does not apply to an action brought
27 for harm allegedly caused by a drug that is ordered off the
28 market or seized by the Federal Food and Drug Administration.
29 Section 18. This act shall take effect October 1,
30 1999.
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