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1
2 An act relating to civil remedies; amending s. 57.104,
3 F.S.; creating a rebuttable presumption that a
4 lodestar fee is a sufficient and reasonable attorney
5 fee in most civil actions; providing an exception;
6 creating s. 86.121, F.S.; authorizing a court to award
7 attorney fees in certain declaratory actions;
8 prohibiting the transfer, assignment, or acquisition
9 of the right to such attorney fees except by specified
10 persons; providing applicability; amending s. 95.11,
11 F.S.; reducing the statute of limitations for
12 negligence actions; providing applicability of certain
13 provisions to actions involving servicemembers;
14 amending s. 624.155, F.S.; providing standards for bad
15 faith actions; providing for the distribution of
16 proceeds when two or more third-party claims arising
17 out of a single occurrence exceed policy limits;
18 creating s. 624.1552, F.S.; providing for
19 applicability of specified offer of judgement
20 provisions to civil actions involving insurance
21 contracts; creating s. 768.0427, F.S.; providing
22 definitions; providing standards for the admissibility
23 of evidence to prove the cost of damages for medical
24 expenses in certain civil actions; requiring certain
25 disclosures with respect to claims for medical
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26 expenses for treatment rendered under letters of
27 protection; specifying the damages that may be
28 recovered by a claimant for the reasonable and
29 necessary cost of medical care; creating s. 768.0701,
30 F.S.; requiring the trier of fact to consider the
31 fault of certain persons who contribute to an injury;
32 creating s. 768.0706, F.S.; providing definitions;
33 providing that the owner or principal operator of a
34 multifamily residential property which substantially
35 implements specified security measures on that
36 property has a presumption against liability for
37 negligence in connection with certain criminal acts
38 that occur on the premises; requiring the Florida
39 Crime Prevention Training Institute of the Department
40 of Legal Affairs to develop a proposed curriculum or
41 best practices for owners or principal operators;
42 providing construction; amending s. 768.81, F.S.;
43 providing that a party in a negligence action who is
44 at fault by a specified amount may not recover damages
45 under a comparative negligence action; providing
46 applicability; repealing ss. 626.9373 and 627.428,
47 F.S., relating to attorney fees awarded against
48 surplus lines insurers and insurers, respectively;
49 amending s. 627.756, F.S.; providing for the award of
50 costs and attorney fees in certain actions; amending
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51 ss. 475.01, 475.611, 517.191, 624.123, 624.488,
52 627.062, 627.401, 627.441, 627.727, 627.736, and
53 628.6016, F.S.; conforming provisions to changes made
54 by the act; repealing ss. 631.70 and 631.926, F.S.,
55 relating to attorney fees; amending s. 632.638, F.S.;
56 conforming provisions to changes made by the act;
57 providing a directive to the Division of Law Revision;
58 providing applicability and construction; providing an
59 effective date.
60
61 Be It Enacted by the Legislature of the State of Florida:
62 Section 1. Section 57.104, Florida Statutes, is amended to
63 read:
64 57.104 Computation of attorney attorneys’ fees.—
65 (1) In any action in which attorney attorneys’ fees are to
66 be determined or awarded by the court, the court shall consider,
67 among other things, time and labor of any legal assistants who
68 contributed nonclerical, meaningful legal support to the matter
69 involved and who are working under the supervision of an
70 attorney. For purposes of this section “legal assistant” means a
71 person, who under the supervision and direction of a licensed
72 attorney engages in legal research, and case development or
73 planning in relation to modifications or initial proceedings,
74 services, processes, or applications; or who prepares or
75 interprets legal documents or selects, compiles, and uses
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76 technical information from references such as digests,
77 encyclopedias, or practice manuals and analyzes and follows
78 procedural problems that involve independent decisions.
79 (2) In any action in which attorney fees are determined or
80 awarded by the court, there is a strong presumption that a
81 lodestar fee is sufficient and reasonable. This presumption may
82 be overcome only in a rare and exceptional circumstance with
83 evidence that competent counsel could not otherwise be retained.
84 Section 2. Section 86.121, Florida Statutes, is created to
85 read:
86 86.121 Attorney fees; actions for declaratory relief to
87 determine insurance coverage after total coverage denial of
88 claim.—
89 (1) In an action brought for declaratory relief in state
90 or federal court to determine insurance coverage after the
91 insurer has made a total coverage denial of a claim:
92 (a) Either party is entitled to the summary procedure
93 provided in s. 51.011, and the court shall advance the cause on
94 the calendar.
95 (b) The court shall award reasonable attorney fees to the
96 named insured, omnibus insured, or named beneficiary under a
97 policy issued by the insurer upon rendition of a declaratory
98 judgment in favor of the named insured, omnibus insured, or
99 named beneficiary. This right may not be transferred to,
100 assigned to, or acquired in any other manner by anyone other
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101 than a named or omnibus insured or a named beneficiary. A
102 defense offered by an insurer pursuant to a reservation of
103 rights does not constitute a coverage denial of a claim. Such
104 fees are limited to those incurred in the action brought under
105 this chapter for declaratory relief to determine coverage of
106 insurance issued under the Florida Insurance Code.
107 (2) This section does not apply to any action arising
108 under a residential or commercial property insurance policy.
109 Section 3. Subsections (3), (4), and (10) of section
110 95.11, Florida Statutes, are amended, and subsection (12) is
111 added to that section, to read:
112 95.11 Limitations other than for the recovery of real
113 property.—Actions other than for recovery of real property shall
114 be commenced as follows:
115 (3) WITHIN FOUR YEARS.—
116 (a) An action founded on negligence.
117 (a)(b) An action relating to the determination of
118 paternity, with the time running from the date the child reaches
119 the age of majority.
120 (b)(c) An action founded on the design, planning, or
121 construction of an improvement to real property, with the time
122 running from the date of actual possession by the owner, the
123 date of the issuance of a certificate of occupancy, the date of
124 abandonment of construction if not completed, or the date of
125 completion of the contract or termination of the contract
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126 between the professional engineer, registered architect, or
127 licensed contractor and his or her employer, whichever date is
128 latest; except that, when the action involves a latent defect,
129 the time runs from the time the defect is discovered or should
130 have been discovered with the exercise of due diligence. In any
131 event, the action must be commenced within 10 years after the
132 date of actual possession by the owner, the date of the issuance
133 of a certificate of occupancy, the date of abandonment of
134 construction if not completed, or the date of completion of the
135 contract or termination of the contract between the professional
136 engineer, registered architect, or licensed contractor and his
137 or her employer, whichever date is latest. However,
138 counterclaims, cross-claims, and third-party claims that arise
139 out of the conduct, transaction, or occurrence set out or
140 attempted to be set out in a pleading may be commenced up to 1
141 year after the pleading to which such claims relate is served,
142 even if such claims would otherwise be time barred. With respect
143 to actions founded on the design, planning, or construction of
144 an improvement to real property, if such construction is
145 performed pursuant to a duly issued building permit and if a
146 local enforcement agency, state enforcement agency, or special
147 inspector, as those terms are defined in s. 553.71, has issued a
148 final certificate of occupancy or certificate of completion,
149 then as to the construction which is within the scope of such
150 building permit and certificate, the correction of defects to
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151 completed work or repair of completed work, whether performed
152 under warranty or otherwise, does not extend the period of time
153 within which an action must be commenced. Completion of the
154 contract means the later of the date of final performance of all
155 the contracted services or the date that final payment for such
156 services becomes due without regard to the date final payment is
157 made.
158 (c) (d)An action to recover public money or property held
159 by a public officer or employee, or former public officer or
160 employee, and obtained during, or as a result of, his or her
161 public office or employment.
162 (d)(e) An action for injury to a person founded on the
163 design, manufacture, distribution, or sale of personal property
164 that is not permanently incorporated in an improvement to real
165 property, including fixtures.
166 (e)(f) An action founded on a statutory liability.
167 (f)(g) An action for trespass on real property.
168 (g)(h) An action for taking, detaining, or injuring
169 personal property.
170 (h)(i) An action to recover specific personal property.
171 (i)(j) A legal or equitable action founded on fraud.
172 (j)(k)A legal or equitable action on a contract,
173 obligation, or liability not founded on a written instrument,
174 including an action for the sale and delivery of goods, wares,
175 and merchandise, and on store accounts.
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176 (k)(l) An action to rescind a contract.
177 (l)(m) An action for money paid to any governmental
178 authority by mistake or inadvertence.
179 (m)(n) An action for a statutory penalty or forfeiture.
180 (n)(o) An action for assault, battery, false arrest,
181 malicious prosecution, malicious interference, false
182 imprisonment, or any other intentional tort, except as provided
183 in subsections (4), (5), and (7).
184 (o)(p)Any action not specifically provided for in these
185 statutes.
186 (p)(q) An action alleging a violation, other than a
187 willful violation, of s. 448.110.
188 (4) WITHIN TWO YEARS.—
189 (a) An action founded on negligence.
190 (b)(a) An action for professional malpractice, other than
191 medical malpractice, whether founded on contract or tort;
192 provided that the period of limitations shall run from the time
193 the cause of action is discovered or should have been discovered
194 with the exercise of due diligence. However, the limitation of
195 actions herein for professional malpractice shall be limited to
196 persons in privity with the professional.
197 (c)(b) An action for medical malpractice shall be
198 commenced within 2 years from the time the incident giving rise
199 to the action occurred or within 2 years from the time the
200 incident is discovered, or should have been discovered with the
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201 exercise of due diligence; however, in no event shall the action
202 be commenced later than 4 years from the date of the incident or
203 occurrence out of which the cause of action accrued, except that
204 this 4-year period shall not bar an action brought on behalf of
205 a minor on or before the child’s eighth birthday. An “action for
206 medical malpractice” is defined as a claim in tort or in
207 contract for damages because of the death, injury, or monetary
208 loss to any person arising out of any medical, dental, or
209 surgical diagnosis, treatment, or care by any provider of health
210 care. The limitation of actions within this subsection shall be
211 limited to the health care provider and persons in privity with
212 the provider of health care. In those actions covered by this
213 paragraph in which it can be shown that fraud, concealment, or
214 intentional misrepresentation of fact prevented the discovery of
215 the injury the period of limitations is extended forward 2 years
216 from the time that the injury is discovered or should have been
217 discovered with the exercise of due diligence, but in no event
218 to exceed 7 years from the date the incident giving rise to the
219 injury occurred, except that this 7-year period shall not bar an
220 action brought on behalf of a minor on or before the child’s
221 eighth birthday. This paragraph shall not apply to actions for
222 which ss. 766.301-766.316 provide the exclusive remedy.
223 (d)(c) An action to recover wages or overtime or damages
224 or penalties concerning payment of wages and overtime.
225 (e)(d) An action for wrongful death.
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226 (f)(e) An action founded upon a violation of any provision
227 of chapter 517, with the period running from the time the facts
228 giving rise to the cause of action were discovered or should
229 have been discovered with the exercise of due diligence, but not
230 more than 5 years from the date such violation occurred.
231 (g)(f) An action for personal injury caused by contact
232 with or exposure to phenoxy herbicides while serving either as a
233 civilian or as a member of the Armed Forces of the United States
234 during the period January 1, 1962, through May 7, 1975; the
235 period of limitations shall run from the time the cause of
236 action is discovered or should have been discovered with the
237 exercise of due diligence.
238 (h)(g) An action for libel or slander.
239 (10) FOR INTENTIONAL TORTS RESULTING IN DEATH FROM ACTS
240 DESCRIBED IN S. 782.04 OR S. 782.07.—Notwithstanding paragraph
241 (4)(e) (4)(d), an action for wrongful death seeking damages
242 authorized under s. 768.21 brought against a natural person for
243 an intentional tort resulting in death from acts described in s.
244 782.04 or s. 782.07 may be commenced at any time. This
245 subsection shall not be construed to require an arrest, the
246 filing of formal criminal charges, or a conviction for a
247 violation of s. 782.04 or s. 782.07 as a condition for filing a
248 civil action.
249 (12) FOR ACTIONS INVOLVING SERVICEMEMBERS.—Any action
250 involving a servicemember as defined in s. 250.01, in which the
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251 servicemember is a party, is subject to s. 250.5201 and part IV
252 of chapter 250, which includes the Servicemembers Civil Relief
253 Act, 50 U.S.C. ss. 501 et seq., providing for protections to
254 members of the United States Armed Forces, the United States
255 Reserve Forces, or the National Guard during terms of federal or
256 state active duty which materially affect the servicemember’s
257 ability to appear.
258 Section 4. Section 624.155, Florida Statutes, is amended
259 to read:
260 624.155 Civil remedy.—
261 (1) Any person may bring a civil action against an insurer
262 when such person is damaged:
263 (a) By a violation of any of the following provisions by
264 the insurer:
265 1. Section 626.9541(1)(i), (o), or (x);
266 2. Section 626.9551;
267 3. Section 626.9705;
268 4. Section 626.9706;
269 5. Section 626.9707; or
270 6. Section 627.7283.
271 (b) By the commission of any of the following acts by the
272 insurer:
273 1. Not attempting in good faith to settle claims when,
274 under all the circumstances, it could and should have done so,
275 had it acted fairly and honestly toward its insured and with due
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276 regard for her or his interests;
277 2. Making claims payments to insureds or beneficiaries not
278 accompanied by a statement setting forth the coverage under
279 which payments are being made; or
280 3. Except as to liability coverages, failing to promptly
281 settle claims, when the obligation to settle a claim has become
282 reasonably clear, under one portion of the insurance policy
283 coverage in order to influence settlements under other portions
284 of the insurance policy coverage.
285
286 Notwithstanding the provisions of the above to the contrary, a
287 person pursuing a remedy under this section need not prove that
288 such act was committed or performed with such frequency as to
289 indicate a general business practice.
290 (2) Any party may bring a civil action against an
291 unauthorized insurer if such party is damaged by a violation of
292 s. 624.401 by the unauthorized insurer.
293 (3)(a) As a condition precedent to bringing an action
294 under this section, the department and the authorized insurer
295 must have been given 60 days’ written notice of the violation.
296 Notice to the authorized insurer must be provided by the
297 department to the e-mail address designated by the insurer under
298 s. 624.422.
299 (b) The notice shall be on a form provided by the
300 department and shall state with specificity the following
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301 information, and such other information as the department may
302 require:
303 1. The statutory provision, including the specific
304 language of the statute, which the authorized insurer allegedly
305 violated.
306 2. The facts and circumstances giving rise to the
307 violation.
308 3. The name of any individual involved in the violation.
309 4. Reference to specific policy language that is relevant
310 to the violation, if any. If the person bringing the civil
311 action is a third party claimant, she or he shall not be
312 required to reference the specific policy language if the
313 authorized insurer has not provided a copy of the policy to the
314 third party claimant pursuant to written request.
315 5. A statement that the notice is given in order to
316 perfect the right to pursue the civil remedy authorized by this
317 section.
318 (c) No action shall lie if, within 60 days after the
319 insurer receives notice from the department in accordance with
320 this subsection, the damages are paid or the circumstances
321 giving rise to the violation are corrected.
322 (d) The authorized insurer that is the recipient of a
323 notice filed pursuant to this section shall report to the
324 department on the disposition of the alleged violation.
325 (e) The applicable statute of limitations for an action
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326 under this section shall be tolled for a period of:
327 1. Sixty days after the insurer receives from the
328 department the notice required by this subsection.
329 2. Sixty days after the date appraisal is invoked pursuant
330 to paragraph (f).
331 (f) A notice required under this subsection may not be
332 filed within 60 days after appraisal is invoked by any party in
333 a residential property insurance claim.
334 (4)(a) An action for bad faith involving a liability
335 insurance claim, including any such action brought under the
336 common law, shall not lie if the insurer tenders the lesser of
337 the policy limits or the amount demanded by the claimant within
338 90 days after receiving actual notice of a claim which is
339 accompanied by sufficient evidence to support the amount of the
340 claim.
341 (b) If an insurer does not tender the lesser of the policy
342 limits or the amount demanded by the claimant within the 90-day
343 period provided in paragraph (a), the existence of the 90-day
344 period and that no bad faith action could lie had the insurer
345 tendered the lesser of policy limits or the amount demanded by
346 the claimant pursuant to paragraph (a) is inadmissible in any
347 action seeking to establish bad faith on the part of the
348 insurer.
349 (c) If the insurer fails to tender pursuant to paragraph
350 (a) within the 90-day period, any applicable statute of
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351 limitations is extended for an additional 90 days.
352 (5) In any bad faith action, whether such action is
353 brought under this section or is based on the common-law remedy
354 for bad faith:
355 (a) Mere negligence alone is insufficient to constitute
356 bad faith.
357 (b)1. The insured, claimant, and representative of the
358 insured or claimant have a duty to act in good faith in
359 furnishing information regarding the claim, in making demands of
360 the insurer, in setting deadlines, and in attempting to settle
361 the claim. This duty does not create a separate cause of action,
362 but may only be considered pursuant to subparagraph 2.
363 2. In any action for bad faith against an insurer, the
364 trier of fact may consider whether the insured, claimant, or
365 representative of the insured or claimant did not act in good
366 faith pursuant to this paragraph, in which case the trier of
367 fact may reasonably reduce the amount of damages awarded against
368 the insurer.
369 (6) If two or more third-party claimants have competing
370 claims arising out of a single occurrence, which in total may
371 exceed the available policy limits of one or more of the insured
372 parties who may be liable to the third-party claimants, an
373 insurer is not liable beyond the available policy limits for
374 failure to pay all or any portion of the available policy limits
375 to one or more of the third-party claimants if, within 90 days
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376 after receiving notice of the competing claims in excess of the
377 available policy limits, the insurer complies with either
378 paragraph (a) or paragraph (b).
379 (a) The insurer files an interpleader action under the
380 Florida Rules of Civil Procedure. If the claims of the competing
381 third-party claimants are found to be in excess of the policy
382 limits, the third-party claimants are entitled to a prorated
383 share of the policy limits as determined by the trier of fact.
384 An insurer’s interpleader action does not alter or amend the
385 insurer’s obligation to defend its insured.
386 (b) Pursuant to binding arbitration that has been agreed
387 to by the insurer and the third-party claimants, the insurer
388 makes the entire amount of the policy limits available for
389 payment to the competing third-party claimants before a
390 qualified arbitrator agreed to by the insurer and such third-
391 party claimants at the expense of the insurer. The third-party
392 claimants are entitled to a prorated share of the policy limits
393 as determined by the arbitrator, who must consider the
394 comparative fault, if any, of each third-party claimant, and the
395 total likely outcome at trial based upon the total of the
396 economic and noneconomic damages submitted to the arbitrator for
397 consideration. A third-party claimant whose claim is resolved by
398 the arbitrator must execute and deliver a general release to the
399 insured party whose claim is resolved by the proceeding.
400 (7)(4) Upon adverse adjudication at trial or upon appeal,
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401 the authorized insurer shall be liable for damages, together
402 with court costs and reasonable attorney attorney’s fees
403 incurred by the plaintiff.
404 (8)(5) No Punitive damages may not shall be awarded under
405 this section unless the acts giving rise to the violation occur
406 with such frequency as to indicate a general business practice
407 and these acts are:
408 (a) Willful, wanton, and malicious;
409 (b) In reckless disregard for the rights of any insured;
410 or
411 (c) In reckless disregard for the rights of a beneficiary
412 under a life insurance contract.
413
414 Any person who pursues a claim under this subsection shall post
415 in advance the costs of discovery. Such costs shall be awarded
416 to the authorized insurer if no punitive damages are awarded to
417 the plaintiff.
418 (9)(6) This section does shall not be construed to
419 authorize a class action suit against an authorized insurer or a
420 civil action against the commission, the office, or the
421 department or any of their employees, or to create a cause of
422 action when an authorized health insurer refuses to pay a claim
423 for reimbursement on the ground that the charge for a service
424 was unreasonably high or that the service provided was not
425 medically necessary.
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426 (10)(7) In the absence of expressed language to the
427 contrary, this section shall not be construed to authorize a
428 civil action or create a cause of action against an authorized
429 insurer or its employees who, in good faith, release information
430 about an insured or an insurance policy to a law enforcement
431 agency in furtherance of an investigation of a criminal or
432 fraudulent act relating to a motor vehicle theft or a motor
433 vehicle insurance claim.
434 (11)(8) The civil remedy specified in this section does
435 not preempt any other remedy or cause of action provided for
436 pursuant to any other statute or pursuant to the common law of
437 this state. Any person may obtain a judgment under either the
438 common-law remedy of bad faith or this statutory remedy, but is
439 shall not be entitled to a judgment under both remedies. This
440 section does shall not be construed to create a common-law cause
441 of action. The damages recoverable pursuant to this section
442 shall include those damages which are a reasonably foreseeable
443 result of a specified violation of this section by the
444 authorized insurer and may include an award or judgment in an
445 amount that exceeds the policy limits.
446 (12)(9) A surety issuing a payment or performance bond on
447 the construction or maintenance of a building or roadway project
448 is not an insurer for purposes of subsection (1).
449 Section 5. Section 624.1552, Florida Statutes, is created
450 to read:
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451 624.1552 Civil actions involving an insurance contract;
452 applicability of offer of judgment provisions.—The provisions of
453 s. 768.79 apply to any civil action involving an insurance
454 contract.
455 Section 6. Section 768.0427, Florida Statutes, is created
456 to read:
457 768.0427 Admissibility of evidence to prove medical
458 expenses in personal injury or wrongful death actions;
459 disclosure of letters of protection; recovery of past and future
460 medical expenses damages.—
461 (1) DEFINITIONS.—As used in this section, the term:
462 (a) “Factoring company” means a person who purchases a
463 health care provider’s accounts receivable at a discount below
464 the invoice value of such accounts.
465 (b) “Health care coverage” means any third-party health
466 care or disability services financing arrangement, including,
467 but not limited to, arrangements with entities certified or
468 authorized under federal law or under the Florida Insurance
469 Code; state or federal health care benefit programs; workers’
470 compensation; and personal injury protection.
471 (c) “Health care provider” means any of the following
472 professionals and entities, and professionals and entities
473 similarly licensed in another jurisdiction:
474 1. A provider as defined in s. 408.803.
475 2. A clinical laboratory providing services in this state
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476 or services to health care providers in this state, if the
477 clinical laboratory is certified by the Centers for Medicare and
478 Medicaid Services under the federal Clinical Laboratory
479 Improvement Amendments and the federal rules adopted thereunder.
480 3. A federally qualified health center as defined in 42
481 U.S.C. s. 1396d(l)(2)(B), as that definition existed on the
482 effective date of this act.
483 4. A health care practitioner as defined in s. 456.001.
484 5. A health care professional licensed under part IV of
485 chapter 468.
486 6. A home health aide as defined in s. 400.462.
487 7. A provider licensed under chapter 394 or chapter 397
488 and its clinical and nonclinical staff providing inpatient or
489 outpatient services.
490 8. A continuing care facility licensed under chapter 651.
491 9. A pharmacy permitted under chapter 465.
492 (d) “Letter of protection” means any arrangement by which
493 a health care provider renders treatment in exchange for a
494 promise of payment for the claimant’s medical expenses from any
495 judgment or settlement of a personal injury or wrongful death
496 action. The term includes any such arrangement, regardless of
497 whether referred to as a letter of protection.
498 (2) ADMISSIBLE EVIDENCE OF MEDICAL TREATMENT OR SERVICE
499 EXPENSES.—Evidence offered to prove the amount of damages for
500 past or future medical treatment or services in a personal
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501 injury or wrongful death action is admissible as provided in
502 this subsection.
503 (a) Evidence offered to prove the amount of damages for
504 past medical treatment or services that have been satisfied is
505 limited to evidence of the amount actually paid, regardless of
506 the source of payment.
507 (b) Evidence offered to prove the amount necessary to
508 satisfy unpaid charges for incurred medical treatment or
509 services shall include, but is not limited to, evidence as
510 provided in this paragraph.
511 1. If the claimant has health care coverage other than
512 Medicare or Medicaid, evidence of the amount which such health
513 care coverage is obligated to pay the health care provider to
514 satisfy the charges for the claimant’s incurred medical
515 treatment or services, plus the claimant’s share of medical
516 expenses under the insurance contract or regulation.
517 2. If the claimant has health care coverage but obtains
518 treatment under a letter of protection or otherwise does not
519 submit charges for any health care provider’s medical treatment
520 or services to health care coverage, evidence of the amount the
521 claimant’s health care coverage would pay the health care
522 provider to satisfy the past unpaid medical charges under the
523 insurance contract or regulation, plus the claimant’s share of
524 medical expenses under the insurance contract or regulation, had
525 the claimant obtained medical services or treatment pursuant to
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526 the health care coverage.
527 3. If the claimant does not have health care coverage or
528 has health care coverage through Medicare or Medicaid, evidence
529 of 120 percent of the Medicare reimbursement rate in effect on
530 the date of the claimant’s incurred medical treatment or
531 services, or, if there is no applicable Medicare rate for a
532 service, 170 percent of the applicable state Medicaid rate.
533 4. If the claimant obtains medical treatment or services
534 under a letter of protection and the health care provider
535 subsequently transfers the right to receive payment under the
536 letter of protection to a third party, evidence of the amount
537 the third party paid or agreed to pay the health care provider
538 in exchange for the right to receive payment pursuant to the
539 letter of protection.
540 5. Any evidence of reasonable amounts billed to the
541 claimant for medically necessary treatment or medically
542 necessary services provided to the claimant.
543 (c) Evidence offered to prove the amount of damages for
544 any future medical treatment or services the claimant will
545 receive shall include, but is not limited to, evidence as
546 provided in this paragraph.
547 1. If the claimant has health care coverage other than
548 Medicare or Medicaid, or is eligible for any such health care
549 coverage, evidence of the amount for which the future charges of
550 health care providers could be satisfied if submitted to such
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551 health care coverage, plus the claimant’s share of medical
552 expenses under the insurance contract or regulation.
553 2. If the claimant does not have health care coverage or
554 has health care coverage through Medicare or Medicaid, or is
555 eligible for such health care coverage, evidence of 120 percent
556 of the Medicare reimbursement rate in effect at the time of
557 trial for the medical treatment or services the claimant will
558 receive, or, if there is no applicable Medicare rate for a
559 service, 170 percent of the applicable state Medicaid rate.
560 3. Any evidence of reasonable future amounts to be billed
561 to the claimant for medically necessary treatment or medically
562 necessary services.
563 (d) This subsection does not impose an affirmative duty
564 upon any party to seek a reduction in billed charges to which
565 the party is not contractually entitled.
566 (e) Individual contracts between providers and authorized
567 commercial insurers or authorized health maintenance
568 organizations are not subject to discovery or disclosure and are
569 not admissible into evidence.
570 (3) LETTERS OF PROTECTION; REQUIRED DISCLOSURES.—In a
571 personal injury or wrongful death action, as a condition
572 precedent to asserting any claim for medical expenses for
573 treatment rendered under a letter of protection, the claimant
574 must disclose:
575 (a) A copy of the letter of protection.
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576 (b) All billings for the claimant’s medical expenses,
577 which must be itemized and, to the extent applicable, coded
578 according to:
579 1. For health care providers billing at the provider
580 level, the American Medical Association’s Current Procedural
581 Terminology (CPT), or the Healthcare Common Procedure Coding
582 System (HCPCS), in effect on the date the services were
583 rendered.
584 2. For health care providers billing at the facility level
585 for expenses incurred in a clinical or outpatient setting,
586 including when billing through an Ambulatory Payment
587 Classification (APC) or Enhanced Ambulatory Patient Grouping
588 (EAPG), the International Classification of Diseases (ICD)
589 diagnosis code and, if applicable, the American Medical
590 Association’s Current Procedural Terminology (CPT), in effect on
591 the date the services were rendered.
592 3. For health care providers billing at the facility level
593 for expenses incurred in an inpatient setting, including when
594 billing through a Diagnosis Related Group (DRG), the
595 International Classification of Diseases (ICD) diagnosis and
596 procedure codes in effect on the date in which the claimant is
597 discharged.
598 (c) If the health care provider sells the accounts
599 receivable for the claimant’s medical expenses to a factoring
600 company or other third party:
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601 1. The name of the factoring company or other third party
602 who purchased such accounts.
603 2. The dollar amount for which the factoring company or
604 other third party purchased such accounts, including any
605 discount provided below the invoice amount.
606 (d) Whether the claimant, at the time medical treatment
607 was rendered, had health care coverage and, if so, the identity
608 of such coverage.
609 (e) Whether the claimant was referred for treatment under
610 a letter of protection and, if so, the identity of the person
611 who made the referral. If the referral is made by the claimant’s
612 attorney, disclosure of the referral is permitted, and evidence
613 of such referral is admissible notwithstanding s. 90.502.
614 Moreover, in such situation, the financial relationship between
615 a law firm and a medical provider, including the number of
616 referrals, frequency, and financial benefit obtained, is
617 relevant to the issue of the bias of a testifying medical
618 provider.
619 (4) DAMAGES RECOVERABLE FOR MEDICAL TREATMENT OR SERVICE
620 EXPENSES.—The damages that may be recovered by a claimant in a
621 personal injury or wrongful death action for the reasonable and
622 necessary cost or value of medical care rendered may not include
623 any amount in excess of the evidence of medical treatment and
624 services expenses admitted pursuant to subsection (2), and also
625 may not exceed the sum of the following:
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626 (a) Amounts actually paid by or on behalf of the claimant
627 to a health care provider who rendered medical treatment or
628 services;
629 (b) Amounts necessary to satisfy charges for medical
630 treatment or services that are due and owing but at the time of
631 trial are not yet satisfied; and
632 (c) Amounts necessary to provide for any reasonable and
633 necessary medical treatment or services the claimant will
634 receive in the future.
635 Section 7. Section 768.0701, Florida Statutes, is created
636 to read:
637 768.0701 Premises liability for criminal acts of third
638 parties.—Notwithstanding s. 768.81(4), in an action for damages
639 against the owner, lessor, operator, or manager of commercial or
640 real property brought by a person lawfully on the property who
641 was injured by the criminal act of a third party, the trier of
642 fact must consider the fault of all persons who contributed to
643 the injury.
644 Section 8. Section 768.0706, Florida Statutes, is created
645 to read:
646 768.0706 Multifamily residential property safety and
647 security; presumption against liability.—
648 (1) As used in this section, the term:
649 (a) “Crime prevention through environmental design” has
650 the same meaning as in s. 163.503(6).
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651 (b) “Multifamily residential property” means a residential
652 building, or group of residential buildings, such as apartments,
653 townhouses, or condominiums, consisting of at least five
654 dwelling units on a particular parcel.
655 (c) “Parcel” means real property for which a distinct
656 parcel identification number is assigned to the property by the
657 property appraiser for the county in which the property is
658 located.
659 (2) The owner or principal operator of a multifamily
660 residential property which substantially implements the
661 following security measures on that property has a presumption
662 against liability in connection with criminal acts that occur on
663 the premises which are committed by third parties who are not
664 employees or agents of the owner or operator:
665 (a)1. A security camera system at points of entry and exit
666 which records, and maintains as retrievable for at least 30
667 days, video footage to assist in offender identification and
668 apprehension.
669 2. A lighted parking lot illuminated at an intensity of at
670 least an average of 1.8 foot-candles per square foot at 18
671 inches above the surface from dusk until dawn or controlled by
672 photocell or any similar electronic device that provides light
673 from dusk until dawn.
674 3. Lighting in walkways, laundry rooms, common areas, and
675 porches. Such lighting must be illuminated from dusk until dawn
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676 or controlled by photocell or any similar electronic device that
677 provides light from dusk until dawn.
678 4. At least a 1-inch deadbolt in each dwelling unit door.
679 5. A locking device on each window, each exterior sliding
680 door, and any other doors not used for community purposes.
681 6. Locked gates with key or fob access along pool fence
682 areas.
683 7. A peephole or door viewer on each dwelling unit door
684 that does not include a window or that does not have a window
685 next to the door.
686 (b) By January 1, 2025, the owner or principal operator of
687 a multifamily residential property has a crime prevention
688 through environmental design assessment that is no more than 3
689 years old completed for the property. Such assessment must be
690 performed by a law enforcement agency or a Florida Crime
691 Prevention Through Environmental Design Practitioner designated
692 by the Florida Crime Prevention Training Institute of the
693 Department of Legal Affairs. The owner or principal operator
694 must remain in substantial compliance with the assessment for
695 purposes of this paragraph.
696 (c)1. By January 1, 2025, the owner or principal operator
697 of a multifamily residential property provides proper crime
698 deterrence and safety training to its current employees. After
699 January 1, 2025, the owner or principal operator must provide
700 such training to an employee within 60 days after his or her
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701 hire date for purposes of this paragraph.
702 2. For purposes of this paragraph, “proper crime
703 deterrence and safety training” means training which trains and
704 familiarizes employees with the security principles, devices,
705 measures, and standards set forth under paragraph (a), and which
706 is reviewed at least every 3 years and updated as necessary. The
707 owner or principal operator may request a law enforcement agency
708 or the Florida Crime Prevention Through Environmental Design
709 Practitioner performing the assessment under paragraph (b) to
710 review the training curriculum.
711 (3) For purposes of establishing the presumption against
712 liability under subsection (2), the burden of proof is on the
713 owner or principal operator to demonstrate that the owner or
714 principal operator has substantially implemented the security
715 measures specified in subsection (2).
716 (4) The Florida Crime Prevention Training Institute of the
717 Department of Legal Affairs shall develop a proposed curriculum
718 or best practices for owners or principal operators to implement
719 such training. The state has no liability in connection with
720 providing a proposed training curriculum under this subsection.
721 (5) This section does not establish a private cause of
722 action.
723 Section 9. Subsection (2) of section 768.81, Florida
724 Statutes, is amended, and subsection (6) is added to that
725 section, to read:
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726 768.81 Comparative fault.—
727 (2) EFFECT OF CONTRIBUTORY FAULT.—In a negligence action,
728 contributory fault chargeable to the claimant diminishes
729 proportionately the amount awarded as economic and noneconomic
730 damages for an injury attributable to the claimant’s
731 contributory fault, but does not bar recovery, subject to
732 subsection (6).
733 (6) GREATER PERCENTAGE OF FAULT.—In a negligence action to
734 which this section applies, any party found to be greater than
735 50 percent at fault for his or her own harm may not recover any
736 damages. This subsection does not apply to an action for damages
737 for personal injury or wrongful death arising out of medical
738 negligence pursuant to chapter 766.
739 Section 10. Section 626.9373, Florida Statutes, is
740 repealed.
741 Section 11. Section 627.428, Florida Statutes, is
742 repealed.
743 Section 12. Subsection (1) of section 627.756, Florida
744 Statutes, is amended to read:
745 627.756 Bonds for construction contracts; attorney fees in
746 case of suit.—
747 (1) In a suit Section 627.428 applies to suits brought by
748 an owner, a contractor, a subcontractor, a laborer, or a
749 materialman owners, contractors, subcontractors, laborers, and
750 materialmen against a surety insurer under payment or
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751 performance bonds written by the insurer under the laws of this
752 state to indemnify against pecuniary loss by breach of a
753 building or construction contract, upon the rendition of a
754 judgment or decree by any of the courts of this state against
755 the surety insurer and in favor of the owner, contractor,
756 subcontractor, laborer, or materialman, the trial court or, in
757 the event of an appeal in which the owner, contractor,
758 subcontractor, laborer, or materialman prevails, the appellate
759 court, shall adjudge or decree against the surety insurer and in
760 favor of the owner, contractor, subcontractor, laborer, or
761 materialman a reasonable sum as fees or compensation for the
762 attorney prosecuting the suit in which the recovery is had.
763 Owners, contractors, subcontractors, laborers, and materialmen
764 shall be deemed to be insureds or beneficiaries for the purposes
765 of this section.
766 Section 13. Paragraphs (a) and (j) of subsection (1) of
767 section 475.01, Florida Statutes, are amended to read:
768 475.01 Definitions.—
769 (1) As used in this part:
770 (a) “Broker” means a person who, for another, and for a
771 compensation or valuable consideration directly or indirectly
772 paid or promised, expressly or impliedly, or with an intent to
773 collect or receive a compensation or valuable consideration
774 therefor, appraises, auctions, sells, exchanges, buys, rents, or
775 offers, attempts or agrees to appraise, auction, or negotiate
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776 the sale, exchange, purchase, or rental of business enterprises
777 or business opportunities or any real property or any interest
778 in or concerning the same, including mineral rights or leases,
779 or who advertises or holds out to the public by any oral or
780 printed solicitation or representation that she or he is engaged
781 in the business of appraising, auctioning, buying, selling,
782 exchanging, leasing, or renting business enterprises or business
783 opportunities or real property of others or interests therein,
784 including mineral rights, or who takes any part in the procuring
785 of sellers, purchasers, lessors, or lessees of business
786 enterprises or business opportunities or the real property of
787 another, or leases, or interest therein, including mineral
788 rights, or who directs or assists in the procuring of prospects
789 or in the negotiation or closing of any transaction which does,
790 or is calculated to, result in a sale, exchange, or leasing
791 thereof, and who receives, expects, or is promised any
792 compensation or valuable consideration, directly or indirectly
793 therefor; and all persons who advertise rental property
794 information or lists. A broker renders a professional service
795 and is a professional within the meaning of s. 95.11(4)(b) s.
796 95.11(4)(a). Where the term “appraise” or “appraising” appears
797 in the definition of the term “broker,” it specifically excludes
798 those appraisal services which must be performed only by a
799 state-licensed or state-certified appraiser, and those appraisal
800 services which may be performed by a registered trainee
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801 appraiser as defined in part II. The term “broker” also includes
802 any person who is a general partner, officer, or director of a
803 partnership or corporation which acts as a broker. The term
804 “broker” also includes any person or entity who undertakes to
805 list or sell one or more timeshare periods per year in one or
806 more timeshare plans on behalf of any number of persons, except
807 as provided in ss. 475.011 and 721.20.
808 (j) “Sales associate” means a person who performs any act
809 specified in the definition of “broker,” but who performs such
810 act under the direction, control, or management of another
811 person. A sales associate renders a professional service and is
812 a professional within the meaning of s. 95.11(4)(b) s.
813 95.11(4)(a).
814 Section 14. Paragraph (h) of subsection (1) of section
815 475.611, Florida Statutes, is amended to read:
816 475.611 Definitions.—
817 (1) As used in this part, the term:
818 (h) “Appraiser” means any person who is a registered
819 trainee real estate appraiser, a licensed real estate appraiser,
820 or a certified real estate appraiser. An appraiser renders a
821 professional service and is a professional within the meaning of
822 s. 95.11(4)(b) s. 95.11(4)(a).
823 Section 15. Subsection (7) of section 517.191, Florida
824 Statutes, is amended to read:
825 517.191 Injunction to restrain violations; civil
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826 penalties; enforcement by Attorney General.—
827 (7) Notwithstanding s. 95.11(4)(f) s. 95.11(4)(e), an
828 enforcement action brought under this section based on a
829 violation of any provision of this chapter or any rule or order
830 issued under this chapter shall be brought within 6 years after
831 the facts giving rise to the cause of action were discovered or
832 should have been discovered with the exercise of due diligence,
833 but not more than 8 years after the date such violation
834 occurred.
835 Section 16. Subsection (4) of section 624.123, Florida
836 Statutes, is amended to read:
837 624.123 Certain international health insurance policies;
838 exemption from code.—
839 (4) Any international health insurance policy or
840 application solicited, provided, entered into, issued, or
841 delivered pursuant to this subsection is exempt from all
842 provisions of the insurance code, except that such policy,
843 contract, or agreement is subject to the provisions of ss.
844 624.155, 624.316, 624.3161, 626.951, 626.9511, 626.9521,
845 626.9541, 626.9551, 626.9561, 626.9571, 626.9581, 626.9591,
846 626.9601, 627.413, 627.4145, 627.428, and 627.6043.
847 Section 17. Subsection (4) of section 624.488, Florida
848 Statutes, is amended to read:
849 624.488 Applicability of related laws.—In addition to
850 other provisions of the code cited in ss. 624.460-624.488:
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851 (4) Sections 627.291, 627.413, 627.4132, 627.416, 627.418,
852 627.420, 627.421, 627.425, 627.426, 627.4265, 627.427, 627.428,
853 627.702, and 627.706; part XI of chapter 627; ss. 627.912,
854 627.913, and 627.918;
855
856 apply to self-insurance funds. Only those sections of the code
857 that are expressly and specifically cited in ss. 624.460-624.489
858 apply to self-insurance funds.
859 Section 18. Paragraph (b) of subsection (3) of section
860 627.062, Florida Statutes, is amended to read:
861 627.062 Rate standards.—
862 (3)
863 (b) Individual risk rates and modifications to existing
864 approved forms are not subject to this part or part II, except
865 for paragraph (a) and ss. 627.402, 627.403, 627.4035, 627.404,
866 627.405, 627.406, 627.407, 627.4085, 627.409, 627.4132,
867 627.4133, 627.415, 627.416, 627.417, 627.419, 627.425, 627.426,
868 627.4265, and 627.427, and 627.428, but are subject to all other
869 applicable provisions of this code and rules adopted thereunder.
870 Section 19. Subsections (3), (4), and (5) of section
871 627.401, Florida Statutes, are amended to read:
872 627.401 Scope of this part.—No provision of this part of
873 this chapter applies to:
874 (3) Wet marine and transportation insurance, except ss.
875 627.409 and, 627.420, and 627.428.
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876 (4) Title insurance, except ss. 627.406, 627.415, 627.416,
877 627.419, and 627.427, and 627.428.
878 (5) Credit life or credit disability insurance, except s.
879 627.419(5) ss. 627.419(5) and 627.428.
880 Section 20. Subsection (2) of section 627.441, Florida
881 Statutes, is amended to read:
882 627.441 Commercial general liability policies; coverage to
883 contractors for completed operations.—
884 (2) A liability insurer must offer coverage at an
885 appropriate additional premium for liability arising out of
886 current or completed operations under an owner-controlled
887 insurance program for any period beyond the period for which the
888 program provides liability coverage, as specified in s.
889 255.0517(2)(b). The period of such coverage must be sufficient
890 to protect against liability arising out of an action brought
891 within the time limits provided in s. 95.11(3)(b) s.
892 95.11(3)(c).
893 Section 21. Subsection (8) of section 627.727, Florida
894 Statutes, is amended to read:
895 627.727 Motor vehicle insurance; uninsured and
896 underinsured vehicle coverage; insolvent insurer protection.—
897 (8) The provisions of s. 627.428 do not apply to any
898 action brought pursuant to this section against the uninsured
899 motorist insurer unless there is a dispute over whether the
900 policy provides coverage for an uninsured motorist proven to be
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901 liable for the accident.
902 Section 22. Subsection (8) of section 627.736, Florida
903 Statutes, is amended to read:
904 627.736 Required personal injury protection benefits;
905 exclusions; priority; claims.—
906 (8) APPLICABILITY OF PROVISION REGULATING ATTORNEY FEES.—
907 With respect to any dispute under the provisions of ss. 627.730 –
908 627.7405 between the insured and the insurer, or between an
909 assignee of an insured’s rights and the insurer, the provisions
910 of s. 768.79 ss. 627.428 and 768.79 apply, except as provided in
911 subsections (10) and (15), and except that any attorney fees
912 recovered must:
913 (a) Comply with prevailing professional standards;
914 (b) Not overstate or inflate the number of hours
915 reasonably necessary for a case of comparable skill or
916 complexity; and
917 (c) Represent legal services that are reasonable and
918 necessary to achieve the result obtained.
919
920 Upon request by either party, a judge must make written
921 findings, substantiated by evidence presented at trial or any
922 hearings associated therewith, that any award of attorney fees
923 complies with this subsection. Notwithstanding s. 627.428,
924 Attorney fees recovered under ss. 627.730-627.7405 must be
925 calculated without regard to a contingency risk multiplier.
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926 Section 23. Subsection (4) of section 628.6016, Florida
927 Statutes, is amended to read:
928 628.6016 Applicability of related laws.—In addition to
929 other provisions of the code cited in ss. 628.6011-628.6018:
930 (4) Sections 627.291, 627.413, 627.4132, 627.416, 627.418,
931 627.420, 627.421, 627.425, 627.426, 627.4265, 627.427, 627.428,
932 627.702, and 627.706; part XI of chapter 627; ss. 627.912,
933 627.913, and 627.918; and
934
935 apply to assessable mutual insurers; however, ss. 628.255,
936 628.411, and 628.421 do not apply. No section of the code not
937 expressly and specifically cited in ss. 628.6011-628.6018
938 applies to assessable mutual insurers. The term “assessable
939 mutual insurer” shall be substituted for the term “commercial
940 self-insurer” as appropriate.
941 Section 24. Section 631.70, Florida Statutes, is repealed.
942 Section 25. Section 631.926, Florida Statutes, is
943 repealed.
944 Section 26. Subsection (11) of section 632.638, Florida
945 Statutes, is amended to read:
946 632.638 Applicability of other code provisions.—In
947 addition to other provisions contained or referred to in this
948 chapter, the following chapters and provisions of this code
949 apply to fraternal benefit societies, to the extent applicable
950 and not in conflict with the express provisions of this chapter
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951 and the reasonable implications thereof:
952 (11) Section 627.428;
953 Section 27. The Division of Law Revision is directed to
954 replace the phrase “the effective date of this act” wherever it
955 occurs in this act with the date this act becomes a law.
956 Section 28. The amendments made by this act to s. 95.11,
957 Florida Statutes, apply to causes of action accruing after the
958 effective date of this act.
959 Section 29. This act shall not be construed to impair any
960 right under an insurance contract in effect on or before the
961 effective date of this act. To the extent that this act affects
962 a right under an insurance contract, this act applies to an
963 insurance contract issued or renewed after the effective date of
964 this act.
965 Section 30. Except as otherwise expressly provided in this
966 act, this act shall apply to causes of action filed after the
967 effective date of this act.
968 Section 31. This act shall take effect upon becoming a
969 law.
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