There was a reason motorcyclists were motivated by the hundreds in a show of political might to cram into the Florida Capitol building last month: Tort reform.
The controversial bill (House version HB 837 and Senate version SB 236) was fast-tracked through the legislature and signed by the governor within hours of it hitting his desk. It undercuts a laundry list of rights for personal injury plaintiffs – but those in Florida motorcycle accidents will suffer a particularly outsized impact.
Essentially, the measure imposes sweeping limitations on Florida lawsuits, most of those broadly and unapologetically shielding insurers and big businesses from payouts in injury cases – at the expense of those most seriously hurt. Many of the motorcyclists who turned up to protest, according to the Tallahassee Democrat, are “diehard, staunch DeSantis supporters, Trump supporters, and lifelong Republicans.” But as several of them noted, “This is bad for everyone.”
What exactly is the change motorcyclists are most upset about? The shift in the comparative fault standard.
As our Fort Lauderdale motorcycle accident lawyers can explain, for years under F.S. 768.81, Florida followed a system of pure comparative fault. Essentially, that means everyone is responsible for their own share of the fault. If you are hurt in a car accident and are 40 percent responsible for what happened, you can still hold the other driver accountable for their 60 percent share of the blame. In a pure comparative fault standard system, this fair share liability principal goes all the way to 99%/1%. So if a plaintiff is 99 percent liable and the defendant 1 percent, the plaintiff can still collect on that 1 percent in damages. (That’s not an ideal outcome, of course, and injury lawyers paid on a contingency fee basis were already less likely to take on weaker cases for this reason, as they are paid a portion of the damages ultimately paid out. This is one of the reasons the argument about “frivolous lawsuits” being problematic holds little water. It’s not easy to win – or get paid – for a Florida injury lawsuit that isn’t strong on its merits.)
This new law turns pure comparative fault on its head. Now, Florida has a standard of modified comparative fault with a 51 percent bar. This means that if the plaintiff is more than 50 percent responsible for their injuries, they can’t collect a dime from the other at-fault party. So if the other driver is 49 percent at-fault, they pay nothing. The financial burden rests solely with plaintiffs.
Why do motorcyclists care so much?
Because a motorcyclist can be faulted for their own head injuries if they don’t wear a helmet.
Quick reminder: Helmets are not required under Florida law for operators under 21, and haven’t been since the year 2000.
So a possible – maybe even common – scenario in Florida motorcycle accident lawsuits from now on will be:
- Negligent driver crashes into motorcyclist.
- Motorcyclist is not wearing a helmet, and suffers major brain injuries.
- Motorcyclist (or their surviving spouse) sues the at-fault driver for causing the crash.
- Defendant attorneys argue that but-for the lack of a helmet, the motorcyclist’s head injuries wouldn’t be so catastrophic. And head injuries comprise the majority of damages sought.
- Jury finds motorcyclist is 51 percent liable for their injuries – mainly because they weren’t wearing a helmet, not because they caused the crash.
- Motorcyclist is compensated nothing.
Making matters worse is the fact that motorcyclists aren’t entitled to no-fault personal injury protection (PIP) insurance coverage that every other motorist is. PIP coverage offers insureds up to $10,000 in damages for personal injuries and lost wages in a crash – regardless of fault. But motorcyclists aren’t eligible for this coverage. So when we say they walk away with nothing: They’d truly walk away with nothing. (That is, if they can still walk at all.)
And what happens if they can’t work, can’t maintain health insurance, etc.? Taxpayers pick up the tab.
Said a representative of the Florida Justice Association, “This represents the largest transfer of money, rights, and power from Floridians to the insurance industry that we’ve ever seen.”
So while proponents maintain that this measure was necessary to address the “cottage industry of lawsuits,” the reality is that the entire bill (and there’s much more to it) benefits insurers while shutting out consumers – and particularly those individuals who have suffered the most substantial personal injuries, which often include motorcyclists.
All of this doesn’t mean it’s impossible to win Florida motorcycle accident cases from here on out – but it will be tougher. Having an experienced injury lawyer at your side will be an absolute imperative.
Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Additional Resources:
Why Florida bikers are leading the attack on lawsuit limits backed by DeSantis, Republicans, March 14, 2023, By John Kennedy, USA Today Network – Florida
More Blog Entries:
Florida Personal Injury Plaintiffs Now Face New Comparative Fault Standard, April 10, 2023, Fort Lauderdale Motorcycle Accident Lawyer Blog