Florida Senate - 2011                          SENATOR AMENDMENT
       Bill No. CS for SB 142
       
       
       
       
       
       
                                Barcode 662962                          
       
                              LEGISLATIVE ACTION                        
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       Senator Simmons moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 768.81, Florida Statutes, is amended to
    6  read:
    7         768.81 Comparative fault.—
    8         (1) DEFINITIONS DEFINITION.—As used in this section, the
    9  term:
   10         (a) “Economic damages” means past lost income and future
   11  lost income reduced to present value; medical and funeral
   12  expenses; lost support and services; replacement value of lost
   13  personal property; loss of appraised fair market value of real
   14  property; costs of construction repairs, including labor,
   15  overhead, and profit; and any other economic loss that which
   16  would not have occurred but for the injury giving rise to the
   17  cause of action.
   18         (b) “Negligence action” means, without limitation, a civil
   19  action for damages based upon a theory of negligence, strict
   20  liability, products liability, or professional malpractice,
   21  whether couched in terms of contract, tort, or breach of
   22  warranty and like theories. The substance of an action, not the
   23  conclusory terms used by a party, determines whether an action
   24  is a negligence action.
   25         (c) “Products liability action” means a civil action based
   26  upon a theory of strict liability, negligence, breach of
   27  warranty, nuisance, or similar theories for damages caused by
   28  the manufacture, construction, design, formulation,
   29  installation, preparation, or assembly of a product. The term
   30  includes an action alleging that injuries received by a claimant
   31  in an accident were greater than the injuries the claimant would
   32  have received but for a defective product. The substance of an
   33  action, not the conclusory terms used by a party, determines
   34  whether an action is a products liability action.
   35         (2) EFFECT OF CONTRIBUTORY FAULT.—In a negligence an action
   36  to which this section applies, any contributory fault chargeable
   37  to the claimant diminishes proportionately the amount awarded as
   38  economic and noneconomic damages for an injury attributable to
   39  the claimant’s contributory fault, but does not bar recovery.
   40         (3) APPORTIONMENT OF DAMAGES.—In a negligence action cases
   41  to which this section applies, the court shall enter judgment
   42  against each party liable on the basis of such party’s
   43  percentage of fault and not on the basis of the doctrine of
   44  joint and several liability.
   45         (a)1. In order to allocate any or all fault to a nonparty,
   46  a defendant must affirmatively plead the fault of a nonparty
   47  and, absent a showing of good cause, identify the nonparty, if
   48  known, or describe the nonparty as specifically as practicable,
   49  either by motion or in the initial responsive pleading when
   50  defenses are first presented, subject to amendment any time
   51  before trial in accordance with the Florida Rules of Civil
   52  Procedure.
   53         2.(b) In order to allocate any or all fault to a nonparty
   54  and include the named or unnamed nonparty on the verdict form
   55  for purposes of apportioning damages, a defendant must prove at
   56  trial, by a preponderance of the evidence, the fault of the
   57  nonparty in causing the plaintiff’s injuries.
   58         (b) In a products liability action alleging that injuries
   59  received by a claimant in an accident were greater than the
   60  injuries the claimant would have received but for a defective
   61  product, the trier of fact shall consider the fault of all
   62  persons who contributed to the injuries when apportioning fault
   63  between or among them. The court or other tribunal shall
   64  consider, and in the event of a jury trial the jury shall be
   65  instructed regarding, the distinction between causation of the
   66  injury and causation of enhancement of the injury. The court or
   67  other tribunal shall apply the rules of evidence as appropriate
   68  regarding such distinction.
   69         (4) APPLICABILITY.—
   70         (a) This section applies to negligence cases. For purposes
   71  of this section, “negligence cases” includes, but is not limited
   72  to, civil actions for damages based upon theories of negligence,
   73  strict liability, products liability, professional malpractice
   74  whether couched in terms of contract or tort, or breach of
   75  warranty and like theories. In determining whether a case falls
   76  within the term “negligence cases,” the court shall look to the
   77  substance of the action and not the conclusory terms used by the
   78  parties.
   79         (b) This section does not apply to any action brought by
   80  any person to recover actual economic damages resulting from
   81  pollution, to any action based upon an intentional tort, or to
   82  any cause of action as to which application of the doctrine of
   83  joint and several liability is specifically provided by chapter
   84  403, chapter 498, chapter 517, chapter 542, or chapter 895.
   85         (5) MEDICAL MALPRACTICE.Notwithstanding anything in law to
   86  the contrary, in an action for damages for personal injury or
   87  wrongful death arising out of medical malpractice, whether in
   88  contract or tort, if when an apportionment of damages pursuant
   89  to this section is attributed to a teaching hospital as defined
   90  in s. 408.07, the court shall enter judgment against the
   91  teaching hospital on the basis of such party’s percentage of
   92  fault and not on the basis of the doctrine of joint and several
   93  liability.
   94         Section 2. This act is remedial in nature and, to the
   95  extent permitted by applicable law, shall apply retrospectively.
   96         Section 3. This act shall take effect upon becoming a law.
   97  
   98  ================= T I T L E  A M E N D M E N T ================
   99         And the title is amended as follows:
  100         Delete everything before the enacting clause
  101  and insert:
  102                        A bill to be entitled                      
  103         An act relating to negligence; amending s. 768.81,
  104         F.S.; defining the terms “negligence action” and
  105         “products liability action”; requiring the trier of
  106         fact to consider the fault of all persons who
  107         contributed to an accident when apportioning damages
  108         in a products liability action alleging an additional
  109         or enhanced injury; requiring a court or other
  110         tribunal or a jury to be instructed of the distinction
  111         between causation of the injury and causation of
  112         enhancement of the injury; providing for retroactive
  113         application of the act; providing an effective date.