Florida Personal Injury Plaintiffs Now Face New Comparative Fault Standard

Sweeping legislative reforms were passed by the Florida legislature late this month – including provisions will significantly and adversely impact the ability of personal injury plaintiffs in Fort Lauderdale to collect full and fair compensation for losses caused by another’s negligence. Fort Lauderdale personal injury lawyer

As our Fort Lauderdale personal injury lawyers can explain, tort reform proponents (mostly lobbyists for large corporations and insurers) have for years painted Florida as a “judicial hellhole” and decried how easy it was for plaintiffs to win big payouts for things like car accidents, premises liability, boating accidents, medical malpractice, etc.

The reality is: It’s not easy to win Florida personal injury cases, and never has been. Now it’s about to be even harder, and accountability for insurance companies has been weakened. Having a dedicated, experienced personal injury lawyer advocating on your behalf has always been an imperative to success in these cases, but now more than ever.

Among the changes now in effect thanks to HB 873:

  • No more pure comparative fault standard. Previously, Florida subscribed to a pure comparative fault standard with respect to personal injury cases. What that meant was that parties were only financially responsible for the percentage of harm they were found to have caused – even if that was as little as 1 percent. If you were hurt in a Florida car accident for which you were 99 percent at-fault and the other driver was 1 percent at-fault, the other driver would still be compelled to pay for 1 percent of the damages. Now, that’s not an ideal outcome because it means someone who incurred $100,000 in damage would only collect $1,000 – not enough for most personal injury lawyers working on a contingency fee basis to even take the case. But the point is everyone was responsible for their own share of the blame. This new law erases that. Instead, we will now have a modified comparative fault standard with a 51 percent bar. What that means is the same principle applies – everyone is financially liable for their own share of fault for what happened – unless the plaintiff is more than 50 percent at-fault. If the plaintiff is found to be 51 percent or more responsible, they will collect nothing. The other driver who was 49 percent at-fault? They will pay nothing. Similar standards will apply for lawsuits pertaining to things like dangerous conditions on properties (including slip-and-falls and criminal attacks made possible because of negligent security), bicycle accidents, boating accidents, motorcycle accidents, etc.
  • Shorter statute of limitations for personal injury cases. Prior to this new law, the statute of limitations for filing a personal injury lawsuit was 4 years. It’s now been halved – down to 2 years. We understand 4 years might sound like a lot of time, but keep in mind: Complex personal injury claims can take a lot of time to thoroughly investigate. The benefit of a longer statute of limitations was not that we could dredge up years-old claims and try to make quick cash. It was because settlement negotiations – how 95 percent of Florida personal injury cases are resolved – can be extensive in more serious, complex cases. Not every claim necessitated a lawsuit, so long as they could be resolved within that 4 year time frame. Now with less time, there will be increased pressure to pursue resolution through the already overburdened Florida courts. They’ll be compelled to hurry up and preserve their right to file a lawsuit before that window closes.
  • Reduction in damages for negligence security. Property owners and businesses that welcome guests on site for their own financial gain have a responsibility to ensure those places are reasonably safe – given the type of business, the vulnerability of the guests, the surrounding neighborhood, a history of problems, etc. When they fail to do so and someone is victimized by a criminal act as a result, those property owners can be held liable for negligent security. For the most part, direct civil claims against the attacker themselves are rare because those acts aren’t covered by insurance and the perpetrator usually can’t pay out-of-pocket. And anyway, the claim is not about the attack itself; it’s about the lax security that made the unsuspecting guest/student/patron/customer highly vulnerable to attack. But this new measure will allow defendants in these cases to argue that the assailants – whether named as a defendant or not – should be apportioned some of the financial responsibility. (Bear in mind, there are already mechanisms for this, and the criminal justice system can order restitution by the attacker as well.) But by allowing property owner defendants in negligent security cases to assert this, they can wiggle out of full financial responsibility for the damages. If the assailant is named as a defendant and apportioned part of the blame, chances are they won’t be able to pay it. And if the assailant is not a named defendant and apportioned part of the blame, the victim can’t collect their percentage of the damages. Either way: The property owners, corporations, and insurers win.
  • Modified attorney’s fees for bad faith claims. Bad faith insurance claims are filed when an insurance company fails to treat claimants fairly and in accordance with the contract they have with their insured. It can result in triple damages for plaintiffs if they win (though winning isn’t easy without strong evidence). It used to be that attorney’s fees in these cases were automatic if the claimant prevailed. In other words, if the insurer acted in bad faith, they’d have to pay the legal bill of the person who was forced to take the action to court in order to get a fair shake. No more. Plaintiff attorneys’ fees – even if they’re successful – will have to come out of the damages that plaintiffs collect. Less money for those harmed, more money in the pockets of insurers. Also, there is now a “safe harbor” provision saying that so long as the insurer tenders the policy limits or amount demanded within 90 days “of being provided sufficient information,” they won’t be subject to bad faith claims. Also, the court can now consider “comparative fault” with respect to the plaintiffs in these cases as well. That is, the insureds and people injured, despite having far less power in these situations compared to insurers, now owe the insurance companies a reciprocal duty to act in good faith. This was not an actual issue for insurers, mind you. It’s just another method for them to retain as much money as possible.

While these changes are disheartening, they don’t necessarily mean your Florida injury claim is a foregone conclusion. It does mean that we’ll have to fight harder than ever to ensure your rights and best interests are protected. We are committed to doing just that for our clients.

Additional Resources:

LEGISLATURE PASSES COMPREHENSIVE TORT LEGISLATION, March 24, 2023, By Mark D. Killian, Florida Bar Journal

More Blog Entries:

How Likely is a Default Judgment in My Broward Personal Injury Claim? March 10, 2023, Fort Lauderdale Personal Injury Lawyer Blog

Contact Information