HB 201

1	A bill to be entitled
2	An act relating to negligence; amending s. 768.81, F.S.;
3	defining the terms "negligence action" and "products
4	liability action"; requiring the trier of fact to consider
5	the fault of all parties to an accident when apportioning
6	damages in a products liability action alleging an
7	additional or enhanced injury; deleting language
8	concerning applicability and the definition of the term
9	"negligence cases"; amending s. 25.077, F.S.; conforming
10	provisions to changes made by this act; providing
11	legislative findings and intent; providing for retroactive
12	application; providing an effective date.
13
14	Be It Enacted by the Legislature of the State of Florida:
15
16	Section 1.  Section 768.81, Florida Statutes, is amended to
17	read:
18	768.81  Comparative fault.-
19	(1)  DEFINITIONS DEFINITION.-As used in this section, the
20	term:
21	(a)  "Economic damages" means past lost income and future
22	lost income reduced to present value; medical and funeral
23	expenses; lost support and services; replacement value of lost
24	personal property; loss of appraised fair market value of real
25	property; costs of construction repairs, including labor,
26	overhead, and profit; and any other economic loss that which
27	would not have occurred but for the injury giving rise to the
28	cause of action.
29	(b)  "Negligence action" means, without limitation, a civil
30	action for damages based upon a theory of negligence, strict
31	liability, products liability, or professional malpractice,
32	whether couched in terms of contract, tort, or breach of
33	warranty and like theories. The substance of an action, not
34	conclusory terms used by a party, determines whether an action
35	is a negligence action.
36	(c)  "Products liability action" means a civil action based
37	upon a theory of strict liability, negligence, breach of
38	warranty, nuisance, or similar theories for damages caused by
39	the manufacture, construction, design, formulation,
40	installation, preparation, or assembly of a product. The term
41	includes an action alleging that injuries received by a claimant
42	in an accident were greater than the injuries the claimant would
43	have received but for a defective product. The substance of an
44	action, not the conclusory terms used by a party, determines
45	whether an action is a products liability action.
46	(2)  EFFECT OF CONTRIBUTORY FAULT.-In a negligence an
47	action to which this section applies, any contributory fault
48	chargeable to the claimant diminishes proportionately the amount
49	awarded as economic and noneconomic damages for an injury
50	attributable to the claimant's contributory fault, but does not
51	bar recovery.
52	(3)  APPORTIONMENT OF DAMAGES.-In a negligence action cases
53	to which this section applies, the court shall enter judgment
54	against each party liable on the basis of such party's
55	percentage of fault and not on the basis of the doctrine of
56	joint and several liability.
57	(a)1.  In order to allocate any or all fault to a nonparty,
58	a defendant must affirmatively plead the fault of a nonparty
59	and, absent a showing of good cause, identify the nonparty, if
60	known, or describe the nonparty as specifically as practicable,
61	either by motion or in the initial responsive pleading when
62	defenses are first presented, subject to amendment any time
63	before trial in accordance with the Florida Rules of Civil
64	Procedure.
65	2.(b)  In order to allocate any or all fault to a nonparty
66	and include the named or unnamed nonparty on the verdict form
67	for purposes of apportioning damages, a defendant must prove at
68	trial, by a preponderance of the evidence, the fault of the
69	nonparty in causing the plaintiff's injuries.
70	(b)  In a products liability action alleging that injuries
71	received by a claimant in an accident were greater than the
72	injuries the claimant would have received but for a defective
73	product, the trier of fact shall consider the fault of all
74	persons who contributed to the accident when apportioning fault
75	between or among them.
76	(4)  APPLICABILITY.-
77	(a)  This section applies to negligence cases. For purposes
78	of this section, "negligence cases" includes, but is not limited
79	to, civil actions for damages based upon theories of negligence,
80	strict liability, products liability, professional malpractice
81	whether couched in terms of contract or tort, or breach of
82	warranty and like theories. In determining whether a case falls
83	within the term "negligence cases," the court shall look to the
84	substance of the action and not the conclusory terms used by the
85	parties.
86	(b)  This section does not apply to any action brought by
87	any person to recover actual economic damages resulting from
88	pollution, to any action based upon an intentional tort, or to
89	any cause of action as to which application of the doctrine of
90	joint and several liability is specifically provided by chapter
91	403, chapter 498, chapter 517, chapter 542, or chapter 895.
92	(5)  MEDICAL MALPRACTICE.-Notwithstanding anything in law
93	to the contrary, in an action for damages for personal injury or
94	wrongful death arising out of medical malpractice, whether in
95	contract or tort, if when an apportionment of damages pursuant
96	to this section is attributed to a teaching hospital as defined
97	in s. 408.07, the court shall enter judgment against the
98	teaching hospital on the basis of such party's percentage of
99	fault and not on the basis of the doctrine of joint and several
100	liability.
101	Section 2.  Section 25.077, Florida Statutes, is amended to
102	read:
103	25.077  Negligence action case settlements and jury
104	verdicts; case reporting.-Through the state's uniform case
105	reporting system, the clerk of court shall report to the Office
106	of the State Courts Administrator, beginning in 2003,
107	information from each settlement or jury verdict and final
108	judgment in negligence actions cases as defined in s. 768.81(4),
109	as the President of the Senate and the Speaker of the House of
110	Representatives deem necessary from time to time. The
111	information shall include, but need not be limited to: the name
112	of each plaintiff and defendant; the verdict; the percentage of
113	fault of each; the amount of economic damages and noneconomic
114	damages awarded to each plaintiff, identifying those damages
115	that are to be paid jointly and severally and by which
116	defendants; and the amount of any punitive damages to be paid by
117	each defendant.
118	Section 3.  The Legislature intends this law to be applied
119	retroactively and the holding in D'Amario v. Ford Motor Co., 806
120	So. 2d 424 (Fla. 2001), which adopted what the Florida Supreme
121	Court acknowledged to be a minority view, to be nullified. That
122	minority view fails to apportion fault for damages consistent
123	with Florida's statutory comparative fault system, codified in
124	section 768.81, Florida Statutes, and leads to inequitable and
125	unfair results, regardless of what damages are sought in the
126	litigation. The Legislature finds that, in products liability
127	actions as defined in this act, fault should be apportioned
128	among all responsible persons.
129	Section 4.  The Legislature finds that this act is remedial
130	and that its retroactive application does not unconstitutionally
131	impair vested rights. Rather, this act affects only remedies,
132	permitting a recovery against all tortfeasors while lessening
133	the ultimate liability of each consistent with Florida's
134	statutory comparative fault system, codified in section 768.81,
135	Florida Statutes. In all cases, the Legislature intends this law
136	to be construed consistent with the due process provisions of
137	the federal and state constitutions.
138	Section 5.  This act shall take effect upon becoming a law.

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