CODING: Words stricken are deletions; words underlined are additions.





                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)

                            CHAMBER ACTION
              Senate                               House
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 4                                                                

 5                                           ORIGINAL STAMP BELOW

 6

 7

 8

 9

10                                                                

11  The Conference Committee on HB 775 2nd Engrossed offered the

12  following:

13

14         Conference Committee Amendment (with title amendment) 

15  Remove from the bill:  Everything after the enacting clause

16

17  and insert in lieu thereof:

18         Section 1.  Section 40.50, Florida Statutes, is created

19  to read:

20         40.50  Jury duty and instructions in civil cases.--

21         (1)  In any civil action immediately after the jury is

22  sworn, the court shall instruct the jury concerning its

23  duties, its conduct, the order of proceedings, the procedure

24  for submitting written questions of witnesses, and the legal

25  issues involved in the proceeding.

26         (2)  In any civil action which the court determines is

27  likely to exceed 5 days, the court shall instruct that the

28  jurors may take notes regarding the evidence and keep the

29  notes to refresh their memory and to use during recesses and

30  deliberations. The court may provide materials suitable for

31  this purpose. The court should emphasize the confidentiality

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  of the notes.  After the jury has rendered its verdict, any

 2  notes shall be collected by the bailiff or clerk who shall

 3  promptly destroy them.

 4         (3)  The court shall permit jurors to submit to the

 5  court written questions directed to witnesses or to the court.

 6  The court shall give counsel an opportunity to object to such

 7  questions outside the presence of the jury. The court may, as

 8  appropriate, limit the submission of questions to witnesses.

 9         (4)  The court shall instruct the jury that any

10  questions directed to witnesses or the court must be in

11  writing, unsigned, and given to the bailiff. If the court

12  determines that the juror's question calls for admissible

13  evidence, the question may be asked by court or counsel in the

14  court's discretion. Such question may be answered by

15  stipulation or other appropriate means, including, but not

16  limited to, additional testimony upon such terms and

17  limitations as the court prescribes. If the court determines

18  that the juror's question calls for inadmissible evidence, the

19  question shall not be read or answered. If the court rejects a

20  juror's question, the court should tell the jury that trial

21  rules do not permit some questions and that the jurors should

22  not attach any significance to the failure of having their

23  question asked.

24         (5)  The court may give final instructions to the jury

25  before closing arguments of counsel to enhance jurors' ability

26  to apply the law to the facts. In that event, the court may

27  withhold giving the necessary procedural and housekeeping

28  instructions until after closing arguments.

29         Section 2.  Subsection (2) of section 44.102, Florida

30  Statutes, is amended to read:

31         44.102  Court-ordered mediation.--

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1         (2)  A court, under rules adopted by the Supreme Court:

 2         (a)  Must, upon request of one party, refer to

 3  mediation any filed civil action for monetary damages,

 4  provided the requesting party is willing and able to pay the

 5  costs of the mediation or the costs can be equitably divided

 6  between the parties, unless:

 7         1.  The action is a landlord and tenant dispute that

 8  does not include a claim for personal injury.

 9         2.  The action is filed for the purpose of collecting a

10  debt.

11         3.  The action is a claim of medical malpractice.

12         4.  The action is governed by the Florida Small Claims

13  Rules.

14         5.  The court determines that the action is proper for

15  referral to nonbinding arbitration under this chapter.

16         6.  The parties have agreed to binding arbitration.

17         7.  The parties have agreed to an expedited trial

18  pursuant to section 6 of this act.

19         8.  The parties have agreed to voluntary trial

20  resolution pursuant to s. 44.104.

21         (b)(a)  May refer to mediation all or any part of a

22  filed civil action for which mediation is not required under

23  this section.

24         (c)(b)  In circuits in which a family mediation program

25  has been established and upon a court finding of a dispute,

26  shall refer to mediation all or part of custody, visitation,

27  or other parental responsibility issues as defined in s.

28  61.13. Upon motion or request of a party, a court shall not

29  refer any case to mediation if it finds there has been a

30  history of domestic violence that would compromise the

31  mediation process.

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1         (d)(c)  In circuits in which a dependency or in need of

 2  services mediation program has been established, may refer to

 3  mediation all or any portion of a matter relating to

 4  dependency or to a child in need of services or a family in

 5  need of services.

 6         Section 3.  Section 44.104, Florida Statutes, is

 7  amended to read:

 8         44.104  Voluntary binding arbitration and voluntary

 9  trial resolution.--

10         (1)  Two or more opposing parties who are involved in a

11  civil dispute may agree in writing to submit the controversy

12  to voluntary binding arbitration, or voluntary trial

13  resolution, in lieu of litigation of the issues involved,

14  prior to or after a lawsuit has been filed, provided no

15  constitutional issue is involved.

16         (2)  If the parties have entered into an agreement

17  which provides in voluntary binding arbitration for a method

18  for appointing the appointment of one or more arbitrators, or

19  which provides in voluntary trial resolution a method for

20  appointing a member of The Florida Bar in good standing for

21  more than 5 years to act as trial resolution judge, the court

22  shall proceed with the appointment as prescribed, except that.

23  However, in voluntary binding arbitration at least one of the

24  arbitrators, who shall serve as the chief arbitrator, shall

25  meet the qualifications and training requirements adopted

26  pursuant to s. 44.106.  In the absence of an agreement, or if

27  the agreement method fails or for any reason cannot be

28  followed, the court, on application of a party, shall appoint

29  one or more qualified arbitrators, or the trial resolution

30  judge, as the case requires.

31         (3)  The arbitrators or trial resolution judge shall be

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  compensated by the parties according to their agreement, but

 2  not at an amount less than $75 per day.

 3         (4)  Within 10 days after of the submission of the

 4  request for binding arbitration, or voluntary trial

 5  resolution, the court shall provide for the appointment of the

 6  arbitrator or arbitrators, or trial resolution judge, as the

 7  case requires.  Once appointed, the arbitrators or trial

 8  resolution judge shall notify the parties of the time and

 9  place for the hearing.

10         (5)  Application for voluntary binding arbitration or

11  voluntary trial resolution shall be filed and fees paid to the

12  clerk of court as if for complaints initiating civil actions.

13  The clerk of the court shall handle and account for these

14  matters in all respects as if they were civil actions, except

15  that the clerk of court shall keep separate the records of the

16  applications for voluntary binding arbitration and the records

17  of the applications for voluntary trial resolution from all

18  other civil actions.

19         (6)  Filing of the application for binding arbitration

20  or voluntary trial resolution will toll the running of the

21  applicable statutes of limitation.

22         (7)  The chief arbitrator or trial resolution judge may

23  shall have such power to administer oaths or affirmation and

24  to conduct the proceedings as the rules of court shall

25  provide.  At the request of any party, the chief arbitrator or

26  trial resolution judge shall issue subpoenas for the

27  attendance of witnesses and for the production of books,

28  records, documents, and other evidence and may apply to the

29  court for orders compelling attendance and production.

30  Subpoenas shall be served and shall be enforceable in the

31  manner provided by law.

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1         (8)  A voluntary binding arbitration The hearing shall

 2  be conducted by all of the arbitrators, but a majority may

 3  determine any question and render a final decision.  A trial

 4  resolution judge shall conduct a voluntary trial resolution

 5  hearing.  The trial resolution judge may determine any

 6  question and render a final decision.

 7         (9)  The Florida Evidence Code shall apply to all

 8  proceedings under this section.

 9         (10)  An appeal of a voluntary binding arbitration

10  decision shall be taken to the circuit court and shall be

11  limited to review on the record and not de novo, of:

12         (a)  Any alleged failure of the arbitrators to comply

13  with the applicable rules of procedure or evidence.

14         (b)  Any alleged partiality or misconduct by an

15  arbitrator prejudicing the rights of any party.

16         (c)  Whether the decision reaches a result contrary to

17  the Constitution of the United States or of the State of

18  Florida.

19         (11)  Any party may enforce a final decision rendered

20  in a voluntary trial by filing a petition for final judgment

21  in the circuit court in the circuit in which the voluntary

22  trial took place.  Upon entry of final judgment by the circuit

23  court, any party may appeal to the appropriate appellate

24  court.  Factual findings determined in the voluntary trial are

25  not subject to appeal.

26         (12)  The harmless error doctrine shall apply in all

27  appeals.  No further review shall be permitted unless a

28  constitutional issue is raised.

29         (13)(11)  If no appeal is taken within the time

30  provided by rules promulgated by the Supreme Court, then the

31  decision shall be referred to the presiding judge in the case,

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  or if one has not been assigned, then to the chief judge of

 2  the circuit for assignment to a circuit judge, who shall enter

 3  such orders and judgments as are required to carry out the

 4  terms of the decision, which orders shall be enforceable by

 5  the contempt powers of the court and for which judgments

 6  execution shall issue on request of a party.

 7         (14)(12)  This section shall not apply to any dispute

 8  involving child custody, visitation, or child support, or to

 9  any dispute which involves the rights of a third party not a

10  party to the arbitration or voluntary trial resolution when

11  the third party would be an indispensable party if the dispute

12  were resolved in court or when the third party notifies the

13  chief arbitrator or the trial resolution judge that the third

14  party would be a proper party if the dispute were resolved in

15  court, that the third party intends to intervene in the action

16  in court, and that the third party does not agree to proceed

17  under this section.

18         Section 4.  Section 57.105, Florida Statutes, is

19  amended to read:

20         57.105  Attorney's fee; sanctions for raising

21  unsupported claims or defenses; damages for delay of

22  litigation.--

23         (1)  Upon the court's initiative or motion of any

24  party, the court shall award a reasonable attorney's fee to be

25  paid to the prevailing party in equal amounts by the losing

26  party and the losing party's attorney on any claim or defense

27  at any time during a in any civil proceeding or action in

28  which the court finds that the losing party or the losing

29  party's attorney knew or should have known that a claim or

30  defense when initially presented to the court or at any time

31  before trial:

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1         (a)  Was not supported by the material facts necessary

 2  to establish the claim or defense; or

 3         (b)  Would not be supported by the application of

 4  then-existing law to those material facts. there was a

 5  complete absence of a justiciable issue of either law or fact

 6  raised by the complaint or defense of the losing party;

 7  provided,

 8

 9  However, that the losing party's attorney is not personally

10  responsible if he or she has acted in good faith, based on the

11  representations of his or her client as to the existence of

12  those material facts. If the court awards attorney's fees to a

13  claimant pursuant to this subsection finds that there was a

14  complete absence of a justiciable issue of either law or fact

15  raised by the defense, the court shall also award prejudgment

16  interest.

17         (2)  Paragraph (1)(b) does not apply if the court

18  determines that the claim or defense was initially presented

19  to the court as a good faith argument for the extension,

20  modification, or reversal of existing law or the establishment

21  of new law, as it applied to the material facts, with a

22  reasonable expectation of success.

23         (3)  At any time in any civil proceeding or action in

24  which the moving party proves by a preponderance of the

25  evidence that any action taken by the opposing party,

26  including, but not limited to, the filing of any pleading or

27  part thereof, the assertion of or response to any discovery

28  demand, the assertion of any claim or defense, or the response

29  to any request by any other party, was taken primarily for the

30  purpose of unreasonable delay, the court shall award damages

31  to the moving party for its reasonable expenses incurred in

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  obtaining the order, which may include attorney's fees, and

 2  other loss resulting from the improper delay.

 3         (4)  The provisions of this section are supplemental to

 4  other sanctions or remedies available under law or under court

 5  rules.

 6         (5)(2)  If a contract contains a provision allowing

 7  attorney's fees to a party when he or she is required to take

 8  any action to enforce the contract, the court may also allow

 9  reasonable attorney's fees to the other party when that party

10  prevails in any action, whether as plaintiff or defendant,

11  with respect to the contract. This subsection applies to any

12  contract entered into on or after October 1, 1988. This act

13  shall take effect October 1, 1988, and shall apply to

14  contracts entered into on said date or thereafter.

15         Section 5.  Section 57.071, Florida Statutes, is

16  amended to read:

17         57.071  Costs; what taxable.--

18         (1)  If costs are awarded to any party, the following

19  shall also be allowed:

20         (a)(1)  The reasonable premiums or expenses paid on all

21  bonds or other security furnished by such party.

22         (b)(2)  The expense of the court reporter for per diem,

23  transcribing proceedings and depositions, including opening

24  statements and arguments by counsel.

25         (c)(3)  Any sales or use tax due on legal services

26  provided to such party, notwithstanding any other provision of

27  law to the contrary.

28         (2)  Expert witness fees may not be awarded as taxable

29  costs unless the party retaining the expert witness furnishes

30  each opposing party with a written report signed by the expert

31  witness which summarizes the expert witness's opinions and the

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  factual basis of the opinions, including documentary evidence

 2  and the authorities relied upon in reaching the opinions. Such

 3  report shall be filed at least 5 days prior to the deposition

 4  of the expert or at least 20 days prior to discovery cutoff,

 5  whichever is sooner, or as otherwise determined by the court.

 6  This subsection does not apply to any action proceeding under

 7  the Florida Family Law Rules of Procedure.

 8         Section 6.  Expedited trials.--Upon the joint

 9  stipulation of the parties to any civil case, the court may

10  conduct an expedited trial as provided in this section. Where

11  two or more plaintiffs or defendants have a unity of interest,

12  such as a husband and wife, they shall be considered one party

13  for the purpose of this section. Unless otherwise ordered by

14  the court or agreed to by the parties with approval of the

15  court, an expedited trial shall be conducted as follows:

16         (1)  All discovery shall be completed within 60 days

17  after the court enters an order adopting the joint expedited

18  trial stipulation.

19         (2)  All interrogatories and requests for production

20  must be served within 10 days after the court enters the order

21  adopting the joint expedited trial stipulation, and all

22  responses must be served within 20 days after receipt.

23         (3)  The court shall determine the number of

24  depositions required.

25         (4)  The case may be tried to a jury.

26         (5)  The case may be tried within 30 days after the

27  60-day discovery cutoff, if such schedule would not impose an

28  undue burden on the court calendar.

29         (6)  The trial must be limited to 1 day.

30         (7)  The jury selection must be limited to 1 hour.

31         (8)  The plaintiff will have no more than 3 hours to

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  present its case, including the opening, all testimony and

 2  evidence, and the closing.

 3         (9)  The defendant will have no more than 3 hours to

 4  present its case, including the opening, all testimony and

 5  evidence, and the closing.

 6         (10)  The jury may be given "plain language" jury

 7  instructions at the beginning of the trial as well as a "plain

 8  language" jury verdict form. The parties must agree to the

 9  jury instructions and verdict form.

10         (11)  The parties may introduce a verified written

11  report of any expert and an affidavit of the expert's

12  curriculum vitae instead of calling the expert to testify at

13  trial.

14         (12)  At trial the parties may use excerpts from

15  depositions, including video depositions, regardless of where

16  the deponent lives or whether the deponent is available to

17  testify.

18         (13)  Except as otherwise provided in this section, the

19  Florida Evidence Code and the Florida Rules of Civil Procedure

20  apply.

21         (14)  The court may refuse to grant continuances of the

22  trial absent extraordinary circumstances.

23         Section 7.  Section 768.77, Florida Statutes, is

24  amended to read:

25         768.77  Itemized verdict.--

26         (1)  In any action to which this part applies in which

27  the trier of fact determines that liability exists on the part

28  of the defendant, the trier of fact shall, as a part of the

29  verdict, itemize the amounts to be awarded to the claimant

30  into the following categories of damages:

31         (1)(a)  Amounts intended to compensate the claimant for

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  economic losses;

 2         (2)(b)  Amounts intended to compensate the claimant for

 3  noneconomic losses; and

 4         (3)(c)  Amounts awarded to the claimant for punitive

 5  damages, if applicable.

 6         (2)  Each category of damages, other than punitive

 7  damages, shall be further itemized into amounts intended to

 8  compensate for losses which have been incurred prior to the

 9  verdict and into amounts intended to compensate for losses to

10  be incurred in the future. Future damages itemized under

11  paragraph (1)(a) shall be computed before and after reduction

12  to present value. Damages itemized under paragraph (1)(b) or

13  paragraph (1)(c) shall not be reduced to present value. In

14  itemizing amounts intended to compensate for future losses,

15  the trier of fact shall set forth the period of years over

16  which such amounts are intended to provide compensation.

17         Section 8.  Paragraph (a) of subsection (1) of section

18  768.78, Florida Statutes, is amended to read:

19         768.78  Alternative methods of payment of damage

20  awards.--

21         (1)(a)  In any action to which this part applies in

22  which the court determines that trier of fact makes an award

23  to compensate the claimant includes for future economic losses

24  which exceed $250,000, payment of amounts intended to

25  compensate the claimant for these losses shall be made by one

26  of the following means, unless an alternative method of

27  payment of damages is provided in this section:

28         1.  The defendant may make a lump-sum payment for all

29  damages so assessed, with future economic losses and expenses

30  reduced to present value; or

31         2.  Subject to the provisions of this subsection, the

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  court shall, at the request of either party, unless the court

 2  determines that manifest injustice would result to any party,

 3  enter a judgment ordering future economic damages, as itemized

 4  pursuant to s. 768.77(1)(a), in excess of $250,000 to be paid

 5  in whole or in part by periodic payments rather than by a

 6  lump-sum payment.

 7         Section 9.  Section 47.025, Florida Statutes, is

 8  created to read:

 9         47.025  Actions against contractors.--Any venue

10  provision in a contract for improvement to real property which

11  requires legal action involving a resident contractor,

12  subcontractor, sub-subcontractor, or materialman, as defined

13  in part I of chapter 713, to be brought outside this state is

14  void as a matter of public policy. To the extent that the

15  venue provision in the contract is void under this section,

16  any legal action arising out of that contract shall be brought

17  only in this state in the county where the defendant resides,

18  where the cause of action accrued, or where the property in

19  litigation is located, unless, after the dispute arises, the

20  parties stipulate to another venue.

21         Section 10.  Through the state's uniform case reporting

22  system, the clerk of court shall report to the Office of the

23  State Courts Administrator, beginning in 2003, information

24  from each settlement or jury verdict and final judgment in

25  negligence cases as defined in section 768.81(4), Florida

26  Statutes, as the President of the Senate and the Speaker of

27  the House of Representatives deem necessary from time to time.

28  The information shall include, but need not be limited

29  to:  the name of each plaintiff and defendant; the verdict;

30  the percentage of fault of each; the amount of economic

31  damages and noneconomic damages awarded to each plaintiff,

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  identifying those damages that are to be paid jointly and

 2  severally and by which defendants; and the amount of any

 3  punitive damages to be paid by each defendant.

 4         Section 11.  Effective July 1, 1999, subsection (2) of

 5  section 95.031, Florida Statutes, is amended to read:

 6         95.031  Computation of time.--Except as provided in

 7  subsection (2) and in s. 95.051 and elsewhere in these

 8  statutes, the time within which an action shall be begun under

 9  any statute of limitations runs from the time the cause of

10  action accrues.

11         (2)(a)  An action Actions for products liability and

12  fraud under s. 95.11(3) must be begun within the period

13  prescribed in this chapter, with the period running from the

14  time the facts giving rise to the cause of action were

15  discovered or should have been discovered with the exercise of

16  due diligence, instead of running from any date prescribed

17  elsewhere in s. 95.11(3), but in any event an action for fraud

18  under s. 95.11(3) must be begun within 12 years after the date

19  of the commission of the alleged fraud, regardless of the date

20  the fraud was or should have been discovered.

21         (b)  An action for products liability under s. 95.11(3)

22  must be begun within the period prescribed in this chapter,

23  with the period running from the date that the facts giving

24  rise to the cause of action were discovered, or should have

25  been discovered with the exercise of due diligence, rather

26  than running from any other date prescribed elsewhere in s.

27  95.11(3), except as provided within this subsection. Under no

28  circumstances may a claimant commence an action for products

29  liability, including a wrongful death action or any other

30  claim arising from personal injury or property damage caused

31  by a product, to recover for harm allegedly caused by a

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  product with an expected useful life of 10 years or less, if

 2  the harm was caused by exposure to or use of the product more

 3  than 12 years after delivery of the product to its first

 4  purchaser or lessee who was not engaged in the business of

 5  selling or leasing the product or of using the product as a

 6  component in the manufacture of another product. All products,

 7  except those included within subparagraph 1. or subparagraph

 8  2., are conclusively presumed to have an expected useful life

 9  of 10 years or less.

10         1.  Aircraft used in commercial or contract carrying of

11  passengers or freight, vessels of more than 100 gross tons,

12  railroad equipment used in commercial or contract carrying of

13  passengers or freight, and improvements to real property,

14  including elevators and escalators, are not subject to the

15  statute of repose provided within this subsection.

16         2.  Any product not listed in subparagraph 1., which

17  the manufacturer specifically warranted, through express

18  representation or labeling, as having an expected useful life

19  exceeding 10 years, has an expected useful life commensurate

20  with the time period indicated by the warranty or label. Under

21  such circumstances, no action for products liability may be

22  brought after the expected useful life of the product, or more

23  than 12 years after delivery of the product to its first

24  purchaser or lessee who was not engaged in the business of

25  selling or leasing the product or of using the product as a

26  component in the manufacture of another product, whichever is

27  later.

28         3.  With regard to those products listed in

29  subparagraph 1., except for escalators, elevators, and

30  improvements to real property, no action for products

31  liability may be brought more than 20 years after delivery of

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  the product to its first purchaser or lessor who was not

 2  engaged in the business of selling or leasing the product or

 3  of using the product as a component in the manufacture of

 4  another product. However, if the manufacturer specifically

 5  warranted, through express representation or labeling, that

 6  the product has an expected useful life exceeding 20 years,

 7  the repose period shall be the time period warranted in

 8  representations or label.

 9         (c)  The repose period prescribed in paragraph (b) does

10  not apply if the claimant was exposed to or used the product

11  within the repose period, but an injury caused by such

12  exposure or use did not manifest itself until after expiration

13  of the repose period.

14         (d)  The repose period prescribed within paragraph (b)

15  is tolled for any period during which the manufacturer through

16  its officers, directors, partners, or managing agents had

17  actual knowledge that the product was defective in the manner

18  alleged by the claimant and took affirmative steps to conceal

19  the defect. Any claim of concealment under this section shall

20  be made with specificity and must be based upon substantial

21  factual and legal support. Maintaining the confidentiality of

22  trade secrets does not constitute concealment under this

23  section.

24         Section 12.  (1)  The amendments to section 95.031(2),

25  Florida Statutes, made by this act shall apply to any action

26  commenced on or after the effective date of that section,

27  regardless of when the cause of action accrued, except that

28  any action for products liability which would not have been

29  barred under section 95.031(2), Florida Statutes, prior to the

30  amendments to that section made by this act may be commenced

31  before July 1, 2003, and, if it is not commenced by that date

                                  16

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  and is barred by the amendments to section 95.031(2), Florida

 2  Statutes, made by this act, it shall be barred.

 3         (2)  This section shall take effect July 1, 1999.

 4         Section 13.  Section 90.407, Florida Statutes, is

 5  amended to read:

 6         90.407  Subsequent remedial measures.--Evidence of

 7  measures taken after an injury or harm caused by an event,

 8  which measures if taken before the event it occurred would

 9  have made injury or harm the event less likely to occur, is

10  not admissible to prove negligence, the existence of a product

11  defect, or culpable conduct in connection with the event. This

12  rule does not require the exclusion of evidence of subsequent

13  remedial measures when offered for another purpose, such as

14  proving ownership, control, or the feasibility of

15  precautionary measures, if controverted, or impeachment.

16         Section 14.  Section 768.1257, Florida Statutes, is

17  created to read:

18         768.1257  State-of-the-art defense for products

19  liability.--In an action based upon defective design, brought

20  against the manufacturer of a product, the finder of fact

21  shall consider the state of the art of scientific and

22  technical knowledge and other circumstances that existed at

23  the time of manufacture, not at the time of loss or injury.

24         Section 15.  Section 768.1256, Florida Statutes, is

25  created to read:

26         768.1256  Government rules defense.--

27         (1)  In a product liability action brought against a

28  manufacturer or seller for harm allegedly caused by a product,

29  there is a rebuttable presumption that the product is not

30  defective or unreasonably dangerous and the manufacturer or

31  seller is not liable if, at the time the specific unit of the

                                  17

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  product was sold or delivered to the initial purchaser or

 2  user, the aspect of the product that allegedly caused the

 3  harm:

 4         (a)  Complied with federal or state codes, statutes,

 5  rules, regulations, or standards relevant to the event causing

 6  the death or injury;

 7         (b)  The codes, statutes, rules, regulations, or

 8  standards are designed to prevent the type of harm that

 9  allegedly occurred; and

10         (c)  Compliance with the codes, statutes, rules,

11  regulations, or standards is required as a condition for

12  selling or distributing the product.

13         (2)  In a product liability action as described in

14  subsection (1), there is a rebuttable presumption that the

15  product is defective or unreasonably dangerous and the

16  manufacturer or seller is liable if the manufacturer or seller

17  did not comply with the federal or state codes, statutes,

18  rules, regulations, or standards which:

19         (a)  Were relevant to the event causing the death or

20  injury;

21         (b)  Are designed to prevent the type of harm that

22  allegedly occurred; and

23         (c)  Require compliance as a condition for selling or

24  distributing the product.

25         (3)  This section does not apply to an action brought

26  for harm allegedly caused by a drug that is ordered off the

27  market or seized by the Federal Food and Drug Administration.

28         Section 16.  Section 768.096, Florida Statutes, is

29  created to read:

30         768.096  Employer presumption against negligent

31  hiring.--

                                  18

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1         (1)  In a civil action for the death of, or injury or

 2  damage to, a third person caused by the intentional tort of an

 3  employee, such employee's employer is presumed not to have

 4  been negligent in hiring such employee if, before hiring the

 5  employee, the employer conducted a background investigation of

 6  the prospective employee and the investigation did not reveal

 7  any information that reasonably demonstrated the unsuitability

 8  of the prospective employee for the particular work to be

 9  performed or for the employment in general. A background

10  investigation under this section must include:

11         (a)  Obtaining a criminal background investigation on

12  the prospective employee under subsection (2);

13         (b)  Making a reasonable effort to contact references

14  and former employers of the prospective employee concerning

15  the suitability of the prospective employee for employment;

16         (c)  Requiring the prospective employee to complete a

17  job application form that includes questions concerning

18  whether he or she has ever been convicted of a crime,

19  including details concerning the type of crime, the date of

20  conviction and the penalty imposed, and whether the

21  prospective employee has ever been a defendant in a civil

22  action for intentional tort, including the nature of the

23  intentional tort and the disposition of the action;

24         (d)  Obtaining, with written authorization from the

25  prospective employee, a check of the driver's license record

26  of the prospective employee if such a check is relevant to the

27  work the employee will be performing and if the record can

28  reasonably be obtained; or

29         (e)  Interviewing the prospective employee.

30         (2)  To satisfy the criminal-background-investigation

31  requirement of this section, an employer must request and

                                  19

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  obtain from the Department of Law Enforcement a check of the

 2  information as reported and reflected in the Florida Crime

 3  Information Center system as of the date of the request.

 4         (3)  The election by an employer not to conduct the

 5  investigation specified in subsection (1) does not raise any

 6  presumption that the employer failed to use reasonable care in

 7  hiring an employee.

 8         Section 17.  Section 768.095, Florida Statutes, is

 9  amended to read:

10         768.095  Employer immunity from liability; disclosure

11  of information regarding former or current employees.--An

12  employer who discloses information about a former or current

13  employee employee's job performance to a prospective employer

14  of the former or current employee upon request of the

15  prospective employer or of the former or current employee is

16  presumed to be acting in good faith and, unless lack of good

17  faith is shown by clear and convincing evidence, is immune

18  from civil liability for such disclosure or its consequences

19  unless it is shown by clear and convincing evidence. For

20  purposes of this section, the presumption of good faith is

21  rebutted upon a showing that the information disclosed by the

22  former or current employer was knowingly false or deliberately

23  misleading, was rendered with malicious purpose, or violated

24  any civil right of the former or current employee protected

25  under chapter 760.

26         Section 18.  Section 768.0705, Florida Statutes, is

27  created to read:

28         768.0705  Limitation on premises liability.--The owner

29  or operator of a convenience business that substantially

30  implements the applicable security measures listed in ss.

31  812.173 and 812.174 shall gain a presumption against liability

                                  20

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  in connection with criminal acts that occur on the premises

 2  and that are committed by third parties who are not employees

 3  or agents of the owner or operator of the convenience

 4  business.

 5         Section 19.  Section 768.075, Florida Statutes, is

 6  amended to read:

 7         768.075  Immunity from liability for injury to

 8  trespassers on real property.--

 9         (1)  A person or organization owning or controlling an

10  interest in real property, or an agent of such person or

11  organization, shall not be held liable for any civil damages

12  for death of or injury or damage to a trespasser upon the

13  property resulting from or arising by reason of the

14  trespasser's commission of the offense of trespass as

15  described in s. 810.08 or s. 810.09, when such trespasser was

16  under the influence of alcoholic beverages with a

17  blood-alcohol level of 0.08 0.10 percent or higher, when such

18  trespasser was under the influence of any chemical substance

19  set forth in s. 877.111, when such trespasser was illegally

20  under the influence of any substance controlled under chapter

21  893, or if the trespasser is affected by any of the aforesaid

22  substances to the extent that her or his normal faculties are

23  impaired. For the purposes of this section, voluntary

24  intoxication or impediment of faculties by use of alcohol or

25  any of the aforementioned substances shall not excuse a party

26  bringing an action or on whose behalf an action is brought

27  from proving the elements of trespass. However, the person or

28  organization owning or controlling the interest in real

29  property shall not be immune from liability if gross

30  negligence or intentional willful and wanton misconduct on the

31  part of such person or organization or agent thereof is a

                                  21

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  proximate cause of the death of or injury or damage to the

 2  trespasser.

 3         (2)  A person or organization owning or controlling an

 4  interest in real property, or an agent of such person or

 5  organization, is not liable for any civil damages for the

 6  death of or injury or damage to any discovered or undiscovered

 7  trespasser, except as provided in paragraphs (3)(a), (b), and

 8  (c), and regardless of whether the trespasser was intoxicated

 9  or otherwise impaired.

10         (3)(a)  As used in this subsection, the term:

11         1.  "Invitation" means that the visitor entering the

12  premises has an objectively reasonable belief that he or she

13  has been invited or is otherwise welcome on that portion of

14  the real property where injury occurs.

15         2.  "Discovered trespasser" means a person who enters

16  real property without invitation, either express or implied,

17  and whose actual physical presence was detected, within 24

18  hours preceding the accident, by the person or organization

19  owning or controlling an interest in real property or to whose

20  actual physical presence the person or organization owning or

21  controlling an interest in real property was alerted by a

22  reliable source within 24 hours preceding the accident. The

23  status of a person who enters real property shall not be

24  elevated to that of an invitee, unless the person or

25  organization owning or controlling an interest in real

26  property has issued an express invitation to enter the

27  property or has manifested a clear intent to hold the property

28  open to use by persons pursuing purposes such as those pursued

29  by the person whose status is at issue.

30         3.  "Undiscovered trespasser" means a person who enters

31  property without invitation, either express or implied, and

                                  22

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  whose actual physical presence was not detected, within 24

 2  hours preceding the accident, by the person or organization

 3  owning or controlling an interest in real property.

 4         (b)  To avoid liability to undiscovered trespassers, a

 5  person or organization owning or controlling an interest in

 6  real property must refrain from intentional misconduct that

 7  proximately causes injury to the undiscovered trespasser, but

 8  has no duty to warn of dangerous conditions. To avoid

 9  liability to discovered trespassers, a person or organization

10  owning or controlling an interest in real property must

11  refrain from gross negligence or intentional misconduct that

12  proximately causes injury to the discovered trespasser, and

13  must warn the trespasser of dangerous conditions that are

14  known to the person or organization owning or controlling an

15  interest in real property but that are not readily observable

16  by others.

17         (c)  This subsection shall not be interpreted or

18  construed to alter the common law as it pertains to the

19  "attractive nuisance doctrine."

20         (4)  A person or organization owning or controlling an

21  interest in real property, or an agent of such person or

22  organization, shall not be held liable for negligence that

23  results in the death of, injury to, or damage to a person who

24  is attempting to commit a felony or who is engaged in the

25  commission of a felony on the property.

26         Section 20.  Section 768.36, Florida Statutes, is

27  created to read:

28         768.36  Alcohol or drug defense.--

29         (1)  As used in this section, the term:

30         (a)  "Alcoholic beverage" means distilled spirits and

31  any beverage that contains 0.5 percent or more alcohol by

                                  23

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  volume as determined in accordance with s. 561.01(4)(b).

 2         (b)  "Drug" means any chemical substance set forth in

 3  s. 877.111 or any substance controlled under chapter 893. The

 4  term does not include any drug or medication obtained pursuant

 5  to a prescription as defined in s. 893.02 which was taken in

 6  accordance with the prescription, or any medication that is

 7  authorized under state or federal law for general distribution

 8  and use without a prescription in treating human diseases,

 9  ailments, or injuries and that was taken in the recommended

10  dosage.

11         (2)  In any civil action, a plaintiff may not recover

12  any damages for loss or injury to his or her person or

13  property if the trier of fact finds that, at the time the

14  plaintiff was injured:

15         (a)  The plaintiff was under the influence of any

16  alcoholic beverage or drug to the extent that the plaintiff's

17  normal faculties were impaired or the plaintiff had a blood or

18  breath alcohol level of 0.08 percent or higher; and

19         (b)  As a result of the influence of such alcoholic

20  beverage or drug the plaintiff was more than 50 percent at

21  fault for his or her own harm.

22         Section 21.  Section 768.725, Florida Statutes, is

23  created to read:

24         768.725  Punitive damages; burden of proof.--In all

25  civil actions, the plaintiff must establish at trial, by clear

26  and convincing evidence, its entitlement to an award of

27  punitive damages. The "greater weight of the evidence" burden

28  of proof applies to a determination of the amount of damages.

29         Section 22.  Section 768.72, Florida Statutes, is

30  amended to read:

31         768.72  Pleading in civil actions; claim for punitive

                                  24

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  damages.--

 2         (1)  In any civil action, no claim for punitive damages

 3  shall be permitted unless there is a reasonable showing by

 4  evidence in the record or proffered by the claimant which

 5  would provide a reasonable basis for recovery of such damages.

 6  The claimant may move to amend her or his complaint to assert

 7  a claim for punitive damages as allowed by the rules of civil

 8  procedure.  The rules of civil procedure shall be liberally

 9  construed so as to allow the claimant discovery of evidence

10  which appears reasonably calculated to lead to admissible

11  evidence on the issue of punitive damages.  No discovery of

12  financial worth shall proceed until after the pleading

13  concerning punitive damages is permitted.

14         (2)  A defendant may be held liable for punitive

15  damages only if the trier of fact, based on clear and

16  convincing evidence, finds that the defendant was personally

17  guilty of intentional misconduct or gross negligence. As used

18  in this section, the term:

19         (a)  "Intentional misconduct" means that the defendant

20  had actual knowledge of the wrongfulness of the conduct and

21  the high probability that injury or damage to the claimant

22  would result and, despite that knowledge, intentionally

23  pursued that course of conduct, resulting in injury or damage.

24         (b)  "Gross negligence" means that the defendant's

25  conduct was so reckless or wanting in care that it constituted

26  a conscious disregard or indifference to the life, safety, or

27  rights of persons exposed to such conduct.

28         (3)  In the case of an employer, principal,

29  corporation, or other legal entity, punitive damages may be

30  imposed for the conduct of an employee or agent only if the

31  conduct of the employee or agent meets the criteria specified

                                  25

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  in subsection (2) and:

 2         (a)  The employer, principal, corporation, or other

 3  legal entity actively and knowingly participated in such

 4  conduct;

 5         (b)  The officers, directors, or managers of the

 6  employer, principal, corporation, or other legal entity

 7  knowingly condoned, ratified, or consented to such conduct; or

 8         (c)  The employer, principal, corporation, or other

 9  legal entity engaged in conduct that constituted gross

10  negligence and that contributed to the loss, damages, or

11  injury suffered by the claimant.

12         (4)  The provisions of this section shall be applied to

13  all causes of action arising after the effective date of this

14  act.

15         Section 23.  Section 768.73, Florida Statutes, is

16  amended to read:

17         768.73  Punitive damages; limitation.--

18         (1)(a)  Except as provided in paragraphs (b) and (c),

19  an award of punitive damages may not exceed the greater of:

20         1.  Three times the amount of compensatory damages

21  awarded to each claimant entitled thereto, consistent with the

22  remaining provisions of this section; or

23         2.  The sum of $500,000. In any civil action based on

24  negligence, strict liability, products liability, misconduct

25  in commercial transactions, professional liability, or breach

26  of warranty, and involving willful, wanton, or gross

27  misconduct, the judgment for the total amount of punitive

28  damages awarded to a claimant may not exceed three times the

29  amount of compensatory damages awarded to each person entitled

30  thereto by the trier of fact, except as provided in paragraph

31  (b). However, this subsection does not apply to any class

                                  26

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  action.

 2         (b)  Where the fact finder determines that the wrongful

 3  conduct proven under this section was motivated solely by

 4  unreasonable financial gain and determines that the

 5  unreasonably dangerous nature of the conduct, together with

 6  the high likelihood of injury resulting from the conduct, were

 7  actually known by the managing agent, director, officer, or

 8  other person responsible for making policy decisions on behalf

 9  of the defendant, it may award an amount of punitive damages

10  not to exceed the greater of:

11         1.  Four times the amount of compensatory damages

12  awarded to each claimant entitled thereto, consistent with the

13  remaining provisions of this section; or

14         2.  The sum of $2,000,000. If any award for punitive

15  damages exceeds the limitation specified in paragraph (a), the

16  award is presumed to be excessive and the defendant is

17  entitled to remittitur of the amount in excess of the

18  limitation unless the claimant demonstrates to the court by

19  clear and convincing evidence that the award is not excessive

20  in light of the facts and circumstances which were presented

21  to the trier of fact.

22         (c)  Where the fact finder determines that at the time

23  of injury the defendant had a specific intent to harm the

24  claimant and determines that the defendant's conduct did in

25  fact harm the claimant, there shall be no cap on punitive

26  damages.

27         (d)(c)  This subsection is not intended to prohibit an

28  appropriate court from exercising its jurisdiction under s.

29  768.74 in determining the reasonableness of an award of

30  punitive damages that is less than three times the amount of

31  compensatory damages.

                                  27

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1         (2)(a)  Except as provided in paragraph (b), punitive

 2  damages may not be awarded against a defendant in a civil

 3  action if that defendant establishes, before trial, that

 4  punitive damages have previously been awarded against that

 5  defendant in any state or federal court in any action alleging

 6  harm from the same act or single course of conduct for which

 7  the claimant seeks compensatory damages. For purposes of a

 8  civil action, the term "the same act or single course of

 9  conduct" includes acts resulting in the same manufacturing

10  defects, acts resulting in the same defects in design, or

11  failure to warn of the same hazards, with respect to similar

12  units of a product.

13         (b)  In subsequent civil actions involving the same act

14  or single course of conduct for which punitive damages have

15  already been awarded, if the court determines by clear and

16  convincing evidence that the amount of prior punitive damages

17  awarded was insufficient to punish that defendant's behavior,

18  the court may permit a jury to consider an award of subsequent

19  punitive damages. In permitting a jury to consider awarding

20  subsequent punitive damages, the court shall make specific

21  findings of fact in the record to support its conclusion. In

22  addition, the court may consider whether the defendant's act

23  or course of conduct has ceased. Any subsequent punitive

24  damage awards must be reduced by the amount of any earlier

25  punitive damage awards rendered in state or federal court.

26         (3)  The claimant attorney's fees, if payable from the

27  judgment, are, to the extent that the fees are based on the

28  punitive damages, calculated based on the final judgment for

29  punitive damages. This subsection does not limit the payment

30  of attorney's fees based upon an award of damages other than

31  punitive damages.

                                  28

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1         (4)(2)  The jury may neither be instructed nor informed

 2  as to the provisions of this section.

 3         (5)  The provisions of this section shall be applied to

 4  all causes of action arising after the effective date of this

 5  act.

 6         Section 24.  Section 768.735, Florida Statutes, is

 7  created to read:

 8         768.735  Punitive damages; exceptions; limitation.--

 9         (1)  Sections 768.72(2)-(4), 768.725, and 768.73 do not

10  apply to any civil action based upon child abuse, abuse of the

11  elderly, or abuse of the developmentally disabled or any civil

12  action arising under chapter 400. Such actions are governed by

13  applicable statutes and controlling judicial precedent.

14         (2)(a)  In any civil action based upon child abuse,

15  abuse of the elderly, or abuse of the developmentally

16  disabled, or actions arising under chapter 400 and involving

17  the award of punitive damages, the judgment for the total

18  amount of punitive damages awarded to a claimant may not

19  exceed three times the amount of compensatory damages awarded

20  to each person entitled thereto by the trier of fact, except

21  as provided in paragraph (b). This subsection does not apply

22  to any class action.

23         (b)  If any award for punitive damages exceeds the

24  limitation specified in paragraph (a), the award is presumed

25  to be excessive and the defendant is entitled to remittitur of

26  the amount in excess of the limitation unless the claimant

27  demonstrates to the court by clear and convincing evidence

28  that the award is not excessive in light of the facts and

29  circumstances that were presented to the trier of fact.

30         (c)  This subsection is not intended to prohibit an

31  appropriate court from exercising its jurisdiction under s.

                                  29

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  768.74 in determining the reasonableness of an award of

 2  punitive damages which is less than three times the amount of

 3  compensatory damages.

 4         (d)  The jury may not be instructed or informed as to

 5  the provisions of this section.

 6         Section 25.  Section 768.736, Florida Statutes, is

 7  created to read:

 8         768.736  Punitive damages; exceptions for

 9  intoxication.--Sections 768.725 and 768.73 do not apply to any

10  defendant who, at the time of the act or omission for which

11  punitive damages are sought, was under the influence of any

12  alcoholic beverage or drug to the extent that the defendant's

13  normal faculties were impaired, or who had a blood or breath

14  alcohol level of 0.08 percent or higher.

15         Section 26.  Section 768.737, Florida statutes, is

16  created to read:

17         768.737  Punitive damages; application in

18  arbitration.--Where punitive damages are available as a remedy

19  in an arbitration proceeding, ss. 768.72, 768.725, and 768.73

20  apply. When an award of punitive damages is made in an

21  arbitration proceeding, the arbitrator who renders the award

22  must issue a written opinion setting forth the conduct which

23  gave rise to the award and how the arbitrator applied the

24  standards in s. 768.72 to such conduct.

25         Section 27.  Subsections (3), (4), (5), and (6) of

26  section 768.81, Florida Statutes, are amended to read:

27         768.81  Comparative fault.--

28         (3)  APPORTIONMENT OF DAMAGES.--In cases to which this

29  section applies, the court shall enter judgment against each

30  party liable on the basis of such party's percentage of fault

31  and not on the basis of the doctrine of joint and several

                                  30

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  liability, except as provided in paragraphs (a), (b), and (c):

 2         (a)  Where a plaintiff is found to be at fault, the

 3  following shall apply:

 4         1.  Any defendant found 10 percent or less at fault

 5  shall not be subject to joint and several liability.

 6         2.  For any defendant found more than 10 percent but

 7  less than 25 percent at fault, joint and several liability

 8  shall not apply to that portion of economic damages in excess

 9  of $200,000.

10         3.  For any defendant found at least 25 percent but not

11  more than 50 percent at fault, joint and several liability

12  shall not apply to that portion of economic damages in excess

13  of $500,000.

14         4.  For any defendant found more than 50 percent at

15  fault, joint and several liability shall not apply to that

16  portion of economic damages in excess of $1,000,000.

17

18  For any defendant under subparagraph 2., subparagraph 3., or

19  subparagraph 4., the amount of economic damages calculated

20  under joint and several liability shall be in addition to the

21  amount of economic and noneconomic damages already apportioned

22  to that defendant based on that defendant's percentage of

23  fault.

24         (b)  Where a plaintiff is found to be without fault,

25  the following shall apply:

26         1.  Any defendant found less than 10 percent at fault

27  shall not be subject to joint and several liability.

28         2.  For any defendant found at least 10 percent but

29  less than 25 percent at fault, joint and several liability

30  shall not apply to that portion of economic damages in excess

31  of $500,000.

                                  31

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1         3.  For any defendant found at least 25 percent but not

 2  more than 50 percent at fault, joint and several liability

 3  shall not apply to that portion of economic damages in excess

 4  of $1,000,000.

 5         4.  For any defendant found more than 50 percent at

 6  fault, joint and several liability shall not apply to that

 7  portion of economic damages in excess of $2,000,000.

 8

 9  For any defendant under subparagraph 2., subparagraph 3., or

10  subparagraph 4., the amount of economic damages calculated

11  under joint and several liability shall be in addition to the

12  amount of economic and noneconomic damages already apportioned

13  to that defendant based on that defendant's percentage of

14  fault.

15         (c)  With respect to any defendant whose percentage of

16  fault is less than the fault of a particular plaintiff, the

17  doctrine of joint and several liability shall not apply to any

18  damages imposed against the defendant. ; provided that with

19  respect to any party whose percentage of fault equals or

20  exceeds that of a particular claimant, the court shall enter

21  judgment with respect to economic damages against that party

22  on the basis of the doctrine of joint and several liability.

23         (d)  In order to allocate any or all fault to a

24  nonparty, a defendant must affirmatively plead the fault of a

25  nonparty and, absent a showing of good cause, identify the

26  nonparty, if known, or describe the nonparty as specifically

27  as practicable, either by motion or in the initial responsive

28  pleading when defenses are first presented, subject to

29  amendment any time before trial in accordance with the Florida

30  Rules of Civil Procedure.

31         (e)  In order to allocate any or all fault to a

                                  32

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  nonparty and include the named or unnamed nonparty on the

 2  verdict form for purposes of apportioning damages, a defendant

 3  must prove at trial, by a preponderance of the evidence, the

 4  fault of the nonparty in causing the plaintiff's injuries.

 5         (4)  APPLICABILITY.--

 6         (a)  This section applies to negligence cases.  For

 7  purposes of this section, "negligence cases" includes, but is

 8  not limited to, civil actions for damages based upon theories

 9  of negligence, strict liability, products liability,

10  professional malpractice whether couched in terms of contract

11  or tort, or breach of warranty and like theories. In

12  determining whether a case falls within the term "negligence

13  cases," the court shall look to the substance of the action

14  and not the conclusory terms used by the parties.

15         (b)  This section does not apply to any action brought

16  by any person to recover actual economic damages resulting

17  from pollution, to any action based upon an intentional tort,

18  or to any cause of action as to which application of the

19  doctrine of joint and several liability is specifically

20  provided by chapter 403, chapter 498, chapter 517, chapter

21  542, or chapter 895.

22         (5)  APPLICABILITY OF JOINT AND SEVERAL

23  LIABILITY.--Notwithstanding the provisions of this section,

24  the doctrine of joint and several liability applies to all

25  actions in which the total amount of damages does not exceed

26  $25,000.

27         (5)(6)  Notwithstanding anything in law to the

28  contrary, in an action for damages for personal injury or

29  wrongful death arising out of medical malpractice, whether in

30  contract or tort, when an apportionment of damages pursuant to

31  this section is attributed to a teaching hospital as defined

                                  33

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  in s. 408.07, the court shall enter judgment against the

 2  teaching hospital on the basis of such party's percentage of

 3  fault and not on the basis of the doctrine of joint and

 4  several liability.

 5         Section 28.  Effective July 1, 1999, paragraph (b) of

 6  subsection (9) of section 324.021, Florida Statutes, is

 7  amended, and paragraph (c) is added to that subsection, to

 8  read:

 9         324.021  Definitions; minimum insurance required.--The

10  following words and phrases when used in this chapter shall,

11  for the purpose of this chapter, have the meanings

12  respectively ascribed to them in this section, except in those

13  instances where the context clearly indicates a different

14  meaning:

15         (9)  OWNER; OWNER/LESSOR.--

16         (b)  Owner/lessor.--Notwithstanding any other provision

17  of the Florida Statutes or existing case law:,

18         1.  The lessor, under an agreement to lease a motor

19  vehicle for 1 year or longer which requires the lessee to

20  obtain insurance acceptable to the lessor which contains

21  limits not less than $100,000/$300,000 bodily injury liability

22  and $50,000 property damage liability or not less than

23  $500,000 combined property damage liability and bodily injury

24  liability, shall not be deemed the owner of said motor vehicle

25  for the purpose of determining financial responsibility for

26  the operation of said motor vehicle or for the acts of the

27  operator in connection therewith; further, this subparagraph

28  paragraph shall be applicable so long as the insurance meeting

29  these requirements is in effect.  The insurance meeting such

30  requirements may be obtained by the lessor or lessee,

31  provided, if such insurance is obtained by the lessor, the

                                  34

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  combined coverage for bodily injury liability and property

 2  damage liability shall contain limits of not less than $1

 3  million and may be provided by a lessor's blanket policy.

 4         2.  The lessor, under an agreement to rent or lease a

 5  motor vehicle for a period of less than 1 year, shall be

 6  deemed the owner of the motor vehicle for the purpose of

 7  determining liability for the operation of the vehicle or the

 8  acts of the operator in connection therewith only up to

 9  $100,000 per person and up to $300,000 per incident for bodily

10  injury and up to $50,000 for property damage. If the lessee or

11  the operator of the motor vehicle is uninsured or has any

12  insurance with limits less than $500,000 combined property

13  damage and bodily injury liability, the lessor shall be liable

14  for up to an additional $500,000 in economic damages only

15  arising out of the use of the motor vehicle.  The additional

16  specified liability of the lessor for economic damages shall

17  be reduced by amounts actually recovered from the lessee, from

18  the operator, and from any insurance or self-insurance

19  covering the lessee or operator.  Nothing in this subparagraph

20  shall be construed to affect the liability of the lessor for

21  its own negligence.

22         3.  The owner who is a natural person and loans a motor

23  vehicle to any permissive user shall be liable for the

24  operation of the vehicle or the acts of the operator in

25  connection therewith only up to $100,000 per person and up to

26  $300,000 per incident for bodily injury and up to $50,000 for

27  property damage. If the permissive user of the motor vehicle

28  is uninsured or has any insurance with limits less than

29  $500,000 combined property damage and bodily injury liability,

30  the owner shall be liable for up to an additional $500,000 in

31  economic damages only arising out of the use of the motor

                                  35

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  vehicle. The additional specified liability of the owner for

 2  economic damages shall be reduced by amounts actually

 3  recovered from the permissive user and from any insurance or

 4  self-insurance covering the permissive user. Nothing in this

 5  subparagraph shall be construed to affect the liability of the

 6  owner for his or her own negligence.

 7         (c)  Application.--

 8         1.  The limits on liability in subparagraphs (b)2. and

 9  (b)3. do not apply to an owner of motor vehicles that are used

10  for commercial activity in the owner's ordinary course of

11  business, other than a rental company that rents or leases

12  motor vehicles. For purposes of this paragraph, the term

13  "rental company" includes only an entity that is engaged in

14  the business of renting or leasing motor vehicles to the

15  general public and that rents or leases a majority of its

16  motor vehicles to persons with no direct or indirect

17  affiliation with the rental company. The term also includes a

18  motor vehicle dealer that provides temporary replacement

19  vehicles to its customers for up to 10 days.

20         2.  Furthermore, with respect to commercial motor

21  vehicles as defined in s. 627.732, the limits on liability in

22  subparagraphs (b)2. and (b)3. do not apply if, at the time of

23  the incident, the commercial motor vehicle is being used in

24  the transportation of materials found to be hazardous for the

25  purposes of the Hazardous Materials Transportation

26  Authorization Act of 1994, as amended, 49 U.S.C. ss. 5101 et

27  seq., and that is required pursuant to such act to carry

28  placards warning others of the hazardous cargo, unless at the

29  time of lease or rental either:

30         a.  The lessee indicates in writing that the vehicle

31  will not be used to transport materials found to be hazardous

                                  36

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  for the purposes of the Hazardous Materials Transportation

 2  Authorization Act of 1994, as amended, 49 U.S.C. ss. 5101 et

 3  seq.; or

 4         b.  The lessee or other operator of the commercial

 5  motor vehicle has in effect insurance with limits of at least

 6  $5,000,000 combined property damage and bodily injury

 7  liability.

 8         Section 29.  Section 768.098, Florida Statutes, is

 9  created to read:

10         768.098  Limitation of liability for employee

11  leasing.--

12         (1)  An employer in a joint employment relationship

13  pursuant to s. 468.520 shall not be liable for the tortious

14  actions of another employer in that relationship, or for the

15  tortious actions of any jointly employed employee under that

16  relationship, provided that:

17         (a)  The employer seeking to avoid liability pursuant

18  to this section did not authorize or direct the tortious

19  action;

20         (b)  The employer seeking to avoid liability pursuant

21  to this section did not have actual knowledge of the tortious

22  conduct and fail to take appropriate action;

23         (c)  The employer seeking to avoid liability pursuant

24  to this section did not have actual control over the

25  day-to-day job duties of the jointly employed employee who has

26  committed a tortious act nor actual control over the portion

27  of a job site at which or from which the tortious conduct

28  arose or at which and from which a jointly employed employee

29  worked, and that said control was assigned to the other

30  employer under the contract;

31         (d)  The employer seeking to avoid liability pursuant

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  to this section is expressly absolved in the written contract

 2  forming the joint employment relationship of control over the

 3  day-to-day job duties of the jointly employed employee who has

 4  committed a tortious act, and actual control over the portion

 5  of the job site at which or from which the tortious conduct

 6  arose or at which and from which the jointly employed employee

 7  worked, and that said control was assigned to the other

 8  employer under the contract; and

 9         (e)  Complaints, allegations, or incidents of any

10  tortious misconduct or workplace safety violations, regardless

11  of the source, are required to be reported to the employer

12  seeking to avoid liability pursuant to this section by all

13  other joint employers under the written contract forming the

14  joint employment relationship, and that the employer seeking

15  to avoid liability pursuant to this section did not fail to

16  take appropriate action as a result of receiving any such

17  report related to a jointly employed employee who has

18  committed a tortious act.

19         (2)  An employer seeking to avoid liability pursuant to

20  this section shall not be presumed to have actual control over

21  the day-to-day job duties of the jointly employed employee who

22  has committed a tortious act, nor actual control over the

23  portion of a job site at which or from which that employee

24  worked, based solely upon the fact that the employee at issue

25  is a leased employee.

26         (3)  This section shall not alter any responsibilities

27  of the joint employer who has actual control over the

28  day-to-day job duties of the jointly employed employee and who

29  has actual control over the portion of a job site at which or

30  from which the employee is employed, which arises from s.

31  768.096.

                                  38

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1         Section 30.  Subsections (6), (7), and (8) are added to

 2  section 400.023, Florida Statutes, to read:

 3         400.023  Civil enforcement.--

 4         (6)  To recover attorney's fees under this section, the

 5  following conditions precedent must be met:

 6         (a)  Within 120 days after the filing of a responsive

 7  pleading or defensive motion to a complaint brought under this

 8  section and before trial, the parties or their designated

 9  representatives shall meet in mediation to discuss the issues

10  of liability and damages in accordance with this paragraph for

11  the purpose of an early resolution of the matter.

12         1.  Within 60 days after the filing of the responsive

13  pleading or defensive motion, the parties shall:

14         a.  Agree on a mediator. If the parties cannot agree on

15  a mediator, the defendant shall immediately notify the court,

16  which shall appoint a mediator within 10 days after such

17  notice.

18         b.  Set a date for mediation.

19         c.  Prepare an order for the court that identifies the

20  mediator, the scheduled date of the mediation, and other terms

21  of the mediation. Absent any disagreement between the parties,

22  the court may issue the order for the mediation submitted by

23  the parties without a hearing.

24         2.  The mediation must be concluded within 120 days

25  after the filing of a responsive pleading or defensive motion.

26  The date may be extended only by agreement of all parties

27  subject to mediation under this subsection.

28         3.  The mediation shall be conducted in the following

29  manner:

30         a.  Each party shall ensure that all persons necessary

31  for complete settlement authority are present at the

                                  39

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  mediation.

 2         b.  Each party shall mediate in good faith.

 3         4.  All aspects of the mediation which are not

 4  specifically established by this subsection must be conducted

 5  according to the rules of practice and procedure adopted by

 6  the Supreme Court of this state.

 7         (b)  If the parties do not settle the case pursuant to

 8  mediation, the last offer of the defendant made at mediation

 9  shall be recorded by the mediator in a written report that

10  states the amount of the offer, the date the offer was made in

11  writing, and the date the offer was rejected. If the matter

12  subsequently proceeds to trial under this section and the

13  plaintiff prevails but is awarded an amount in damages,

14  exclusive of attorney's fees, which is equal to or less than

15  the last offer made by the defendant at mediation, the

16  plaintiff is not entitled to recover any attorney's fees.

17         (c)  This subsection applies only to claims for

18  liability and damages and does not apply to actions for

19  injunctive relief.

20         (d)  This subsection applies to all causes of action

21  that accrue on or after October 1, 1999.

22         (7)  Discovery of financial information for the purpose

23  of determining the value of punitive damages may not be had

24  unless the plaintiff shows the court by proffer or evidence in

25  the record that a reasonable basis exists to support a claim

26  for punitive damages.

27         (8)  In addition to any other standards for punitive

28  damages, any award of punitive damages must be reasonable in

29  light of the actual harm suffered by the resident and the

30  egregiousness of the conduct that caused the actual harm to

31  the resident.

                                  40

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1         Section 31.  Section 400.429, Florida statutes, is

 2  amended to read:

 3         400.429  Civil actions to enforce rights.--

 4         (1)  Any person or resident whose rights as specified

 5  in this part are violated shall have a cause of action against

 6  any facility owner, administrator, or staff responsible for

 7  the violation.  The action may be brought by the resident or

 8  his or her guardian, or by a person or organization acting on

 9  behalf of a resident with the consent of the resident or his

10  or her guardian, or by the personal representative of the

11  estate of a deceased resident when the cause of death resulted

12  from a violation of the decedent's rights, to enforce such

13  rights. The action may be brought in any court of competent

14  jurisdiction to enforce such rights and to recover actual

15  damages, and punitive damages when malicious, wanton, or

16  willful disregard of the rights of others can be shown.  Any

17  plaintiff who prevails in any such action may be entitled to

18  recover reasonable attorney's fees, costs of the action, and

19  damages, unless the court finds that the plaintiff has acted

20  in bad faith, with malicious purpose, and that there was a

21  complete absence of a justiciable issue of either law or fact.

22  A prevailing defendant may be entitled to recover reasonable

23  attorney's fees pursuant to s. 57.105.  The remedies provided

24  in this section are in addition to and cumulative with other

25  legal and administrative remedies available to a resident or

26  to the agency.

27         (2)  To recover attorney's fees under this section, the

28  following conditions precedent must be met:

29         (a)  Within 120 days after the filing of a responsive

30  pleading or defensive motion to a complaint brought under this

31  section and before trial, the parties or their designated

                                  41

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  representatives shall meet in mediation to discuss the issues

 2  of liability and damages in accordance with this paragraph for

 3  the purpose of an early resolution of the matter.

 4         1.  Within 60 days after the filing of the responsive

 5  pleading or defensive motion, the parties shall:

 6         a.  Agree on a mediator. If the parties cannot agree on

 7  a mediator, the defendant shall immediately notify the court,

 8  which shall appoint a mediator within 10 days after such

 9  notice.

10         b.  Set a date for mediation.

11         c.  Prepare an order for the court that identifies the

12  mediator, the scheduled date of the mediation, and other terms

13  of the mediation. Absent any disagreement between the parties,

14  the court may issue the order for the mediation submitted by

15  the parties without a hearing.

16         2.  The mediation must be concluded within 120 days

17  after the filing of a responsive pleading or defensive motion.

18  The date may be extended only by agreement of all parties

19  subject to mediation under this subsection.

20         3.  The mediation shall be conducted in the following

21  manner:

22         a.  Each party shall ensure that all persons necessary

23  for complete settlement authority are present at the

24  mediation.

25         b.  Each party shall mediate in good faith.

26         4.  All aspects of the mediation which are not

27  specifically established by this subsection must be conducted

28  according to the rules of practice and procedure adopted by

29  the Supreme Court of this state.

30         (b)  If the parties do not settle the case pursuant to

31  mediation, the last offer of the defendant made at mediation

                                  42

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  shall be recorded by the mediator in a written report that

 2  states the amount of the offer, the date the offer was made in

 3  writing, and the date the offer was rejected. If the matter

 4  subsequently proceeds to trial under this section and the

 5  plaintiff prevails but is awarded an amount in damages,

 6  exclusive of attorney's fees, which is equal to or less than

 7  the last offer made by the defendant at mediation, the

 8  plaintiff is not entitled to recover any attorney's fees.

 9         (c)  This subsection applies only to claims for

10  liability and damages and does not apply to actions for

11  injunctive relief.

12         (d)  This subsection applies to all causes of action

13  that accrue on or after October 1, 1999.

14         (3)  Discovery of financial information for the purpose

15  of determining the value of punitive damages may not be had

16  unless the plaintiff shows the court by proffer or evidence in

17  the record that a reasonable basis exists to support a claim

18  for punitive damages.

19         (4)  In addition to any other standards for punitive

20  damages, any award of punitive damages must be reasonable in

21  light of the actual harm suffered by the resident and the

22  egregiousness of the conduct that caused the actual harm to

23  the resident.

24         Section 32.  Section 400.629, Florida Statutes, 1998

25  Supplement, is amended to read:

26         400.629  Civil actions to enforce rights.--

27         (1)  Any person or resident whose rights as specified

28  in this part are violated has a cause of action against any

29  adult family-care home, provider, or staff responsible for the

30  violation.  The action may be brought by the resident or the

31  resident's guardian, or by a person or organization acting on

                                  43

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  behalf of a resident with the consent of the resident or the

 2  resident's guardian, to enforce the right.  The action may be

 3  brought in any court of competent jurisdiction to enforce such

 4  rights and to recover actual damages, and punitive damages

 5  when malicious, wanton, or willful disregard of the rights of

 6  others can be shown.  Any plaintiff who prevails in any such

 7  action is entitled to recover reasonable attorney's fees,

 8  costs of the action, and damages, unless the court finds that

 9  the plaintiff has acted in bad faith or with malicious purpose

10  or that there was a complete absence of a justiciable issue of

11  either law or fact.  A prevailing defendant is entitled to

12  recover reasonable attorney's fees pursuant to s. 57.105.  The

13  remedies provided in this section are in addition to other

14  legal and administrative remedies available to a resident or

15  to the agency.

16         (2)  To recover attorney's fees under this section, the

17  following conditions precedent must be met:

18         (a)  Within 120 days after the filing of a responsive

19  pleading or defensive motion to a complaint brought under this

20  section and before trial, the parties or their designated

21  representatives shall meet in mediation to discuss the issues

22  of liability and damages in accordance with this paragraph for

23  the purpose of an early resolution of the matter.

24         1.  Within 60 days after the filing of the responsive

25  pleading or defensive motion, the parties shall:

26         a.  Agree on a mediator. If the parties cannot agree on

27  a mediator, the defendant shall immediately notify the court,

28  which shall appoint a mediator within 10 days after such

29  notice.

30         b.  Set a date for mediation.

31         c.  Prepare an order for the court that identifies the

                                  44

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  mediator, the scheduled date of the mediation, and other terms

 2  of the mediation. Absent any disagreement between the parties,

 3  the court may issue the order for the mediation submitted by

 4  the parties without a hearing.

 5         2.  The mediation must be concluded within 120 days

 6  after the filing of a responsive pleading or defensive motion.

 7  The date may be extended only by agreement of all parties

 8  subject to mediation under this subsection.

 9         3.  The mediation shall be conducted in the following

10  manner:

11         a.  Each party shall ensure that all persons necessary

12  for complete settlement authority are present at the

13  mediation.

14         b.  Each party shall mediate in good faith.

15         4.  All aspects of the mediation which are not

16  specifically established by this subsection must be conducted

17  according to the rules of practice and procedure adopted by

18  the Supreme Court of this state.

19         (b)  If the parties do not settle the case pursuant to

20  mediation, the last offer of the defendant made at mediation

21  shall be recorded by the mediator in a written report that

22  states the amount of the offer, the date the offer was made in

23  writing, and the date the offer was rejected. If the matter

24  subsequently proceeds to trial under this section and the

25  plaintiff prevails but is awarded an amount in damages,

26  exclusive of attorney's fees, which is equal to or less than

27  the last offer made by the defendant at mediation, the

28  plaintiff is not entitled to recover any attorney's fees.

29         (c)  This subsection applies only to claims for

30  liability and damages and does not apply to actions for

31  injunctive relief.

                                  45

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1         (d)  This subsection applies to all causes of action

 2  that accrue on or after October 1, 1999.

 3         (3)  Discovery of financial information for the purpose

 4  of determining the value of punitive damages may not be had

 5  unless the plaintiff shows the court by proffer or evidence in

 6  the record that a reasonable basis exists to support a claim

 7  for punitive damages.

 8         (4)  In addition to any other standards for punitive

 9  damages, any award of punitive damages must be reasonable in

10  light of the actual harm suffered by the resident and the

11  egregiousness of the conduct that caused the actual harm to

12  the resident.

13         Section 33.  (1)  The Office of Program Policy Analysis

14  and Government Accountability shall, after issuing a request

15  for proposals, contract with a national independent actuarial

16  firm to conduct an actuarial analysis, consistent with

17  generally accepted actuarial practices, of the expected

18  reduction in liability judgments, settlements, and related

19  costs resulting from the provisions of this act.  The analysis

20  shall be based on credible loss cost data derived from

21  settlement or adjudication of liability claims accruing after

22  the effective date of this act.  The analysis shall include an

23  estimate of the percentage decrease in such judgments,

24  settlements, and costs by type of coverage affected by this

25  act, including the time period when such savings or reductions

26  are expected.

27         (2)  The report shall be completed and submitted to the

28  Office of Program Policy Analysis and Government

29  Accountability by March 1, 2007.

30         Section 34.  It is the intent of this act and the

31  Legislature to accord the utmost comity and respect to the

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1  constitutional prerogatives of Florida's judiciary, and

 2  nothing in this act should be construed as any effort to

 3  impinge upon those prerogatives. To that end, should any court

 4  of competent jurisdiction enter a final judgment concluding or

 5  declaring that any provision of this act improperly encroaches

 6  upon the authority of the Florida Supreme Court to determine

 7  the rules of practice and procedure in Florida courts, the

 8  Legislature hereby declares its intent that any such provision

 9  be construed as a request for rule change pursuant to s. 2,

10  Art. 5 of the State Constitution and not as a mandatory

11  legislative directive.

12         Section 35.  If any provision of this act or the

13  application thereof to any person or circumstance is held

14  invalid, the invalidity does not affect other provisions or

15  applications of the act which can be given effect without the

16  invalid provision or application, and to this end the

17  provisions of this act are declared severable.

18         Section 36.  Except as otherwise provided herein, this

19  act shall take effect October 1, 1999.

20

21

22  ================ T I T L E   A M E N D M E N T ===============

23  And the title is amended as follows:And the title is amended

24  as follows:

25  Delete everything before the enacting clause

26         and insert:

27                      A bill to be entitled

28         An act relating to civil actions; creating s.

29         40.50, F.S.; providing for instructions to

30         juries after the jury is sworn in; providing

31         for the taking of notes under certain

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1         circumstances; providing for written questions;

 2         providing for final instructions; amending s.

 3         44.102, F.S.; requiring that the court require

 4         mediation in certain actions for monetary

 5         damages; amending s. 44.104, F.S.; providing

 6         for voluntary trial resolution upon the

 7         agreement of parties to a civil dispute;

 8         providing for the appointment and compensation

 9         of a trial resolution judge; providing

10         guidelines for conducting a voluntary trial

11         resolution; providing for enforcement and

12         appeal; amending s. 57.105, F.S.; revising

13         conditions for award of attorney's fees for

14         presenting unsupported claims or defenses;

15         authorizing damage awards against a party for

16         unreasonable delay of litigation; authorizing

17         the court to impose additional sanctions;

18         amending s. 57.071, F.S.; providing criteria

19         under which expert witness fees may be awarded

20         as taxable costs; providing for expedited

21         trials; amending s. 768.77, F.S.; deleting a

22         requirement to itemize future damages on

23         verdict forms; amending s. 768.78, F.S.;

24         conforming provisions relating to alternative

25         methods of payment of damage awards to changes

26         made by the act; correcting a cross reference;

27         creating s. 47.025, F.S.; providing that

28         certain venue provisions in a contract for

29         improvement to real property are void;

30         specifying appropriate venue for actions

31         against resident contractors, subcontractors,

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1         sub-subcontractors, and materialmen; requiring

 2         the clerk of courts to report certain

 3         information on negligence cases to the Office

 4         of the State Courts Administrator; amending s.

 5         95.031, F.S.; imposing a 12-year statute of

 6         repose on actions brought to recover for harm

 7         caused by products with a specified expected

 8         useful life; exempting certain categories of

 9         products from the statute of repose; imposing

10         variable repose periods based on specific

11         warranties by the manufacturer; providing an

12         exception for certain injuries; providing for

13         tolling under particular circumstances;

14         specifying the date by which certain actions

15         must be brought or be otherwise barred by the

16         statute of repose; amending s. 90.407, F.S.;

17         providing limitations on the admissibility of

18         subsequent remedial measures; providing

19         exceptions; creating s. 768.1257, F.S.;

20         requiring the finder of fact, in certain

21         product defect actions, to consider

22         circumstances that existed at the time of

23         manufacture; creating s. 768.1256,F.S.;

24         providing a government rules defense with

25         respect to certain products liability actions;

26         providing for rebuttable presumptions;

27         providing an exception; creating s. 768.096,

28         F.S.; providing an employer with a presumption

29         against negligent hiring under specified

30         conditions in an action for civil damages

31         resulting from an intentional tort committed by

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1         an employee; amending s. 768.095, F.S.;

 2         revising the conditions under which an employer

 3         is immune from civil liability for disclosing

 4         information regarding an employee to a

 5         prospective employer; creating s. 768.0705,

 6         F.S.; providing a presumption against liability

 7         for criminal acts for convenience business

 8         under specified conditions; amending s.

 9         768.075, F.S.; delineating the duty owed to

10         trespassers by a person or organization owning

11         or controlling an interest in real property;

12         providing definitions; providing for the

13         avoidance of liability to discovered and

14         undiscovered trespassers under described

15         circumstances; providing immunity from certain

16         liability arising out of the attempt to commit

17         or the commission of a felony; creating s.

18         768.36, F.S.; prohibiting a plaintiff from

19         recovering damages if plaintiff is more than a

20         specified percentage at fault due to the

21         influence of alcoholic beverages or drugs;

22         creating s. 768.725, F.S.; providing for

23         evidentiary standards for an award of punitive

24         damages; amending s. 768.72, F.S.; revising

25         provisions with respect to claims for punitive

26         damages in civil actions; requiring clear and

27         convincing evidence of gross negligence or

28         intentional misconduct to support the recovery

29         of such damages; providing definitions;

30         providing criteria for the imposition of

31         punitive damages with respect to employers,

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1         principals, corporations, or other legal

 2         entities for the conduct of an employee or

 3         agent; providing for the application of the

 4         section; amending s. 768.73, F.S.; revising

 5         provisions with respect to limitations on

 6         punitive damages; providing monetary

 7         limitations; providing for the effect of

 8         certain previous punitive damages awards;

 9         providing for the application of the section;

10         creating s. 768.735, F.S.; providing that ss.

11         768.72(2)-(4), 768.725, and 768.73, F.S.,

12         relating to punitive damages, are inapplicable

13         to specified causes of action; limiting the

14         amount of punitive damages that may be awarded

15         to a claimant in certain civil actions

16         involving abuse or arising under ch. 400, F.S.;

17         creating s. 768.736, F.S.; providing that ss.

18         768.725 and 768.73, F.S., relating to punitive

19         damages, do not apply to intoxicated

20         defendants; creating s. 768.737, F.S.;

21         providing for application of punitive damages

22         statutes to arbitration; amending s. 768.81,

23         F.S.; providing for the apportionment of

24         damages on the basis of joint and several

25         liability when a party's fault exceeds certain

26         percentages; limiting the applicability of

27         joint and several liability based on the amount

28         of damages; providing for the allocation of

29         fault to a nonparty; requiring that such fault

30         must be proved by a preponderance of the

31         evidence; amending s. 324.021, F.S.; providing

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1         the lessor of a motor vehicle under certain

 2         rental agreements shall be deemed the owner of

 3         the vehicle for the purpose of determining

 4         liability for the operation of the vehicle

 5         within certain limits; providing for the

 6         liability of the owner of a motor vehicle who

 7         loans the vehicle to certain users; creating s.

 8         768.098, F.S.; limiting the liability of

 9         employers in a joint employment relationship

10         under specific circumstances; providing

11         exceptions and limitations; amending s.

12         400.023, F.S., relating to actions brought on

13         behalf of nursing home residents; providing

14         that a party to any such action may not recover

15         attorney's fees unless parties submit to

16         mediation; specifying requirements for such

17         mediation; providing for application; providing

18         a standard for an award of punitive damages;

19         amending s. 400.429, F.S.; relating to actions

20         brought on behalf of assisted living care

21         facility residents; providing that a party to

22         any such action may not recover attorney's fees

23         unless parties submit to mediation; specifying

24         requirements for such mediation; providing for

25         application; providing a standard for an award

26         of punitive damages; amending s. 400.629, F.S.;

27         relating to actions brought on behalf of adult

28         family care home residents; providing that a

29         party to any such action may not recover

30         attorney's fees unless parties submit to

31         mediation; specifying requirements for such

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                                    CONFERENCE COMMITTEE AMENDMENT

                                         Bill No. HB 775, 2nd Eng.

    Amendment No.     (for drafter's use only)





 1         mediation; providing for application; providing

 2         a standard for an award of punitive damages;

 3         requiring the Office of Program Policy Analysis

 4         and Government Accountability to contract with

 5         an actuarial firm to conduct an actuarial

 6         analysis of expected reductions in judgments

 7         and related costs resulting from litigation

 8         reforms; specifying the basis and due date for

 9         the actuarial report; providing a declaration

10         of intent pertaining to the constitutional

11         prerogatives of the judiciary; providing for

12         severability; providing effective dates.

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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