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





                                                  SENATE AMENDMENT

    Bill No. CS for CS for CS SB 80

    Amendment No.    

                            CHAMBER ACTION
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11  Senator Klein moved the following amendment:

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13         Senate Amendment (with title amendment) 

14         On page 2, line 23, through page 10, line 9, delete

15  those lines

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17  and insert:  such a political subdivision. For purposes of

18  this section, the term also includes any public or private

19  university school of medicine that is part of a public or

20  private university supported in whole or in part by state

21  funds and that has an affiliation with a local government or

22  state instrumentality under which the medical school's

23  computer systems, or diagnostic or therapeutic equipment

24  dependent upon date logic, are used to provide clinical

25  patient care services to the public.

26         (5)  INFORMATION TECHNOLOGY PRODUCT.--

27         (a)  The term "information technology product" includes

28  software, firmware, microcode, hardware, and equipment

29  containing embedded chips or microprocessors that create,

30  read, write, calculate, compare, sequence, or otherwise

31  operate on date data.

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                                                  SENATE AMENDMENT

    Bill No. CS for CS for CS SB 80

    Amendment No.    





 1         (b)  The "information technology products" of a

 2  business or governmental agency are those that are owned,

 3  leased, or licensed by or under the exclusive control of the

 4  business or governmental agency and are used by it in

 5  providing its goods or services.

 6         (6)  YEAR-2000 COMPLIANT.--An information technology

 7  product is "year-2000 compliant" if the product, when used in

 8  accordance with its associated documentation or recommended

 9  user intervention, is capable of correctly processing,

10  providing, and receiving date data, and will do so for all

11  dates occurring between February 28, 1996, and  March 1, 2000,

12  when all other information technology products that are used

13  with the product properly exchange date data with it. An

14  information technology product does not fail to be year-2000

15  compliant merely because it contains a defect that is

16  unrelated to the manner in which the product processes,

17  provides, or receives date data and that only incidentally

18  causes the product to fail to properly process, provide, or

19  receive date data. 

20         Section 3.  Exclusive remedies for failure to be

21  year-2000 compliant.--The exclusive remedies in this state for

22  recovering from a business or governmental agency damages

23  resulting from the failure of its information technology

24  products to be year-2000 compliant are those available for

25  breach of a contract with or a tariff filed by the business or

26  governmental agency; and all terms of that contract or tariff,

27  including limitations on and exclusions of liability and

28  disclaimers of warranty, remain fully enforceable and are

29  unaffected by the provisions of this act. If there is no

30  contract or tariff, the exclusive remedies in this state for

31  recovering from a business or governmental agency damages

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                                                  SENATE AMENDMENT

    Bill No. CS for CS for CS SB 80

    Amendment No.    





 1  resulting from the failure of its information technology

 2  products to be year-2000 compliant are those provided in

 3  section 4 of this act.

 4         Section 4.  Damages for failure to be year-2000

 5  compliant; mediation; limitation on class actions; statute of

 6  limitations.--

 7         (1)  Unless otherwise provided by a contract or tariff,

 8  any business may be liable only for direct economic damages

 9  caused by the failure of its information technology products

10  to be year-2000 compliant, as provided in this section.

11         (2)  Unless otherwise provided by a contract or tariff,

12  any governmental agency may be liable only for direct economic

13  damages caused by the failure of its information technology

14  products to be year-2000 compliant, and only within the limits

15  on the waiver of sovereign immunity established in section

16  768.28, Florida Statutes.

17         (3)  The provisions of section 768.81, Florida

18  Statutes, apply to the award of damages under this section.

19         (4)  Damages awarded under this section shall exclude

20  any damages that the plaintiff:

21         (a)  Could have avoided or mitigated with the exercise

22  of reasonable care; or

23         (b)  Could have reasonably avoided or mitigated as a

24  result of any written or otherwise communicated disclosure

25  actually made by the defendant before December 1, 1999, in a

26  manner consistent with that used in the past to give

27  notifications to the plaintiff or persons similarly situated,

28  concerning whether any of the information technology products

29  of the business or governmental agency was year-2000

30  compliant.

31         (5)(a)  A business or governmental agency is not liable

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                                                  SENATE AMENDMENT

    Bill No. CS for CS for CS SB 80

    Amendment No.    





 1  for direct economic damages if it proves by a preponderance of

 2  the evidence that it has:

 3         1.  Secured an assessment, by a person who possesses

 4  the technical skills, experience, or competence with respect

 5  to information technology resources to evaluate information

 6  technology products for year-2000 compliance, to determine

 7  actions necessary to make the information technology products

 8  of the business or governmental agency year-2000 compliant

 9  and, based on that assessment, holds before December 1, 1999,

10  a reasonable good-faith belief that those products are

11  year-2000 compliant; or

12         2.  Before December 1, 1999, conducted a date-data test

13  of its information technology products and as a result of such

14  test has a reasonable good-faith belief that they are

15  year-2000 compliant; or

16         3.  If it has five or fewer employees and has a net

17  worth of $100,000 or less, made reasonable efforts to assess

18  whether the entities on whose goods or services it relies and

19  with whom it is in privity have provided information

20  technology products that are year-2000 compliant and, with

21  respect to each such entity, either:

22         a.  Holds before December 1, 1999, a reasonable

23  good-faith belief, based on the response to inquiries or on

24  research, that the entity has provided information technology

25  products that are year-2000 compliant; or

26         b.  Discloses in writing to the other party before

27  December 1, 1999, in a manner consistent with that used in the

28  past to give written notifications to that party, that the

29  entity has provided information technology products that are

30  presumed not to be year-2000 compliant or that, based on the

31  response to inquiries, the entity is making reasonable

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                                                  SENATE AMENDMENT

    Bill No. CS for CS for CS SB 80

    Amendment No.    





 1  good-faith efforts to make its information technology products

 2  become year-2000 compliant.

 3         (b)  All defenses that would otherwise be available to

 4  a business or governmental agency in any other action,

 5  including an action based on negligence, remain available with

 6  respect to an action under this section. Moreover, the failure

 7  of a business or governmental agency to comply with paragraph

 8  (a) shall not create a presumption of liability and no

 9  inference may be drawn from such failure.

10         (6)  Beginning January 1, 2000, upon the filing of any

11  lawsuit or the presentation of a claim for arbitration under

12  section 7 of this act seeking damages under this section, and

13  prior to the filing of an answer or response, the court having

14  jurisdiction shall refer the claim to mediation under section

15  44.102, Florida Statutes, unless the court determines that the

16  interests of justice would not be served. The time to file the

17  answer or response shall be tolled for up to 60 days after

18  service of process on the defendant or until the conclusion of

19  the mediation, whichever is earlier.

20         (7)  A class action may not be maintained in this

21  state:

22         (a)  Against a governmental agency for damages caused

23  by the failure of its information technology products to be

24  year-2000 compliant.

25         (b)  Against a business for damages caused by the

26  failure of its information technology products to be year-2000

27  compliant, unless each member of the class has suffered direct

28  economic damages in excess of $50,000.

29         (8)  Any action for damages under this section must be

30  commenced on or before March 1, 2002, but the running of this

31  time is tolled from the date any offer is made to submit the

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                                                  SENATE AMENDMENT

    Bill No. CS for CS for CS SB 80

    Amendment No.    





 1  claim to mediation until the conclusion of mediation.

 2         Section 5.  Immunity from liability for directors and

 3  officers of businesses.--

 4         (1)  A director or officer of a business has absolute

 5  and complete immunity from personal liability for any damages

 6  resulting from the failure of the information technology

 7  products of the business to be year-2000 compliant if the

 8  officer or director has either instructed the business or

 9  received written assurance from another officer or director

10  that the business has been instructed to:

11         (a)  Take steps to determine whether those products are

12  year-2000 compliant;

13         (b)  Develop and implement a plan to take actions

14  necessary to make those products year-2000 compliant; and

15         (c)  Inquire whether the information technology

16  products of the entities on whose goods or services the

17  business relies are year-2000 compliant.

18         (2)  A director or officer who does not have absolute

19  and complete immunity from personal liability under subsection

20  (1) nevertheless has immunity from personal liability to the

21  extent provided in chapter 607, Florida Statutes, or chapter

22  617, Florida Statutes.

23         Section 6.  Antitrust exemption with respect to

24  exchanges of information.--The exchange of information among

25  businesses concerning measures that have been taken or are to

26  be taken in order for a business to make its information

27  technology products year-2000 compliant does not constitute an

28  activity or conduct in restraint of trade or commerce under

29  chapter 542, Florida Statutes.

30         Section 7.  Alternative dispute-resolution

31  procedures.--

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                                                  SENATE AMENDMENT

    Bill No. CS for CS for CS SB 80

    Amendment No.    





 1         (1)  VOLUNTARY BINDING ARBITRATION.--

 2         (a)  Any party to a dispute under this act for which

 3  there is no prior arbitration agreement may, before a lawsuit

 4  has been filed, make an offer to the other party to submit the

 5  dispute to voluntary binding arbitration under section 44.104,

 6  Florida Statutes. An offer made under this paragraph must set

 7  out the maximum amount of damages that may be imposed pursuant

 8  to arbitration.

 9         (b)  If at trial, the court finds that an offer was

10  made under paragraph (a) and was rejected, the court shall

11  award attorney's fees and costs in accordance with this

12  paragraph.

13         1.  If the offer was made by the plaintiff and rejected

14  by the defendant, and if the defendant is ultimately found to

15  be liable for damages in an amount equal to or exceeding that

16  specified in the plaintiff's highest offer, the defendant must

17  pay the plaintiff's costs and reasonable attorney's fees.

18         2.  If the offer was made by the defendant and rejected

19  by the plaintiff, and if the plaintiff is not ultimately

20  awarded damages in an amount exceeding that specified in the

21  defendant's highest offer, the plaintiff must pay the

22  defendant's costs and reasonable attorney's fees.

23         (2)  MEDIATION.--

24         (a)  The court may submit a claim for damages under

25  this act to mediation pursuant to section 44.102, Florida

26  Statutes.

27         (b)  A party may serve its last best offer made in

28  mediation upon another party as an offer of judgment under

29  section 678.79, Florida Statutes, and may make use of all the

30  rights and remedies provided by this section.

31         (c)  The court shall have discretion to require that

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                                                  SENATE AMENDMENT

    Bill No. CS for CS for CS SB 80

    Amendment No.    





 1  the costs of mediation be shared equally by the parties.

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 3  (Redesignate subsequent sections.)

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

 7  And the title is amended as follows:

 8         On page 1, lines 21 through 24, delete those lines

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10  and insert:

11         circumstances; providing for construction of

12         the

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