Miami, FL

On March 24, 2023, Florida’s Governor DeSantis signed HB 837 into law. Effective immediately, Florida will transition from a “pure comparative negligence jurisdiction” to a “modified” system in all tort cases, except personal injury or wrongful death actions arising out of medical negligence. Lawmakers anticipate that these changes will limit the financial liability of private and government entities, deter undesirable behavior and shift losses to responsible parties.

Florida’s new law, HB 837, creates clear mechanisms by which a liability company can distribute limited policy benefits when there are multiple claimants presenting competing claims stemming from a single occurrence or accident and the amounts being sought by those multiple claimants are in excess of the available policy limits.

Florida’s new tort reform legislative package introduces significant changes for apartment and multifamily housing property owners. The bill contains security checklists, which if followed provide a presumption against liability for the property owner. Signed into law by Governor DeSantis on March 24, 2023, the bill becomes effective immediately.

Florida’s new tort reform legislative package introduces significant changes to how lawsuits are filed and litigated in Florida, and seeks to bring balance and transparency to tort litigation. Signed into law by Governor DeSantis on March 24, 2023 HB 837 becomes effective immediately, and will be applied prospectively, affecting pending cases.

The Florida Supreme Court has amended Florida Rule of Civil Procedure 1.442, which governs the procedural requirements for a Proposal for Settlement (PFS). The Amendment was “intended to align Rule 1.442 with the substantive elements of Florida’s settlement proposal statutes.” In doing so, however, the Amendment removes a defendant’s ability to include certain nonmonetary requirements, such as a settlement release or confidentiality provision, as terms in the proposal for settlement.

The Florida Supreme Court has refused to sign off on a proposed ballot title and summary, defeating an effort to place a question on the ballot next year that would permit “adults 21 years or older to possess, use, purchase, display, and transport up to 2.5 ounces of marijuana and marijuana accessories for personal use for any reason,” as well as allow existing medical marijuana dispensaries to sell it.

A proposed Florida bill highlights the inherent conflict between the rights of the individual to accept and undergo treatment for legitimate medical conditions in contradiction to employers’ desire to have a “drug-free” working environment in order to maintain certain standards of work quality and safety.

When the art world makes headlines, it becomes clear just how important the field is to all of us. From the sale of Sotheby’s auction house to a private owner, to a Ferrari judicially declared a work of art, to the story of UK artists’ work with “deepfake” video technology, Wilson Elser’s Art Law practice features summaries of recent world art news reports, including Hong Kong’s protests of planned extradition laws to a new viewing experience for the Mona Lisa.

When the art world makes headlines, it becomes clear just how important the field is to all of us. From Notre Dame de Paris suffering a devastating fire, to the first-ever photograph of a Black Hole, to the discovery of ancient treasures in Lake Titicaca, Peru, Wilson Elser’s Art Law Perspectives blog features summaries of recent news reports pertaining to art law and art markets.

As Canada draws ever closer to October 17, 2018 – the date on which the Cannabis Act comes into force and recreational or other adult-use cannabis is set to be unveiled across Canada – complex regulatory issues continue to cloud the celebrations, including individuals working or investing in the Canadian cannabis sector being turned back at the U.S. border – or worse.

The Florida Supreme Court has found that insurance companies can owe attorneys’ fees to insureds under Florida law if they incorrectly deny benefits. The court found that the degree of wrongfulness or bad faith in the denial does not factor into the decision to award attorneys’ fees. 

The Florida Supreme Court recently held that defendants are precluded from introducing evidence regarding collateral source benefits that plaintiffs may receive in the future from social legislation, such as Medicare and Medicaid. The decision has significant ramifications because it removes a tool that could be used to diminish the jury award for the plaintiffs’ future damages.

In a recent case, the Eleventh Circuit took a step closer to joining ten other circuits that have refused to recognize ERISA penalty claims against de facto plan administrators.

A recent decision by the Florida Supreme Court confers a benefit on a state-created entity that provides property insurance that private insurers do not enjoy. Critics of the opinion say that the entity has no incentive to handle claims quickly and correctly, and that, as a practical matter, this decision actually creates a disincentive for it to do so. Proponents counter that the entity will not be burdened the by abuse of bad faith litigation that drives up rates to policyholders.

Effective January 1, 2015, a new law in Florida takes a step in the right direction by modifying the state’s child safety restraint seat laws and providing for $60 fines and three points on the driver's licenses of offenders. Parents and caregivers should be aware that the law is the minimum requirement that must be followed.

In a recent case, the Florida Supreme Court applied the “made whole doctrine” standard contract law to favor the insured over the insurer. However, if a policy contains a provision spelling out how any subrogation recovery obtained from a third party will be shared between an insurer and its policyholder, the terms of the insurance contract should prevail.

The Eleventh Circuit affirmed a district court’s judgment denying an insurer’s motion for summary judgment on no duty to defend or indemnify its insured in connection with hurricane repair work, and granting in part and denying in part a cross-motion for summary judgment filed by plaintiff. The insurer was estopped from denying coverage because the insurer failed to adequately comply with the procedures set forth in Fla. Stat. § 627.426.

While Florida’s Second District Court of Appeal ruled that it would not be fair to businesses to require them to preserve video evidence without a written request, the court noted that the Fourth District Court of Appeal has held there can be circumstances in which a defendant has a duty to preserve evidence absent a request to preserve it. There is now a conflict among the appellate districts, which may ultimately be resolved by the Florida Supreme Court.

Effective September 1, 2012, Florida will take another major step toward paperless litigation. While not substantive law, the procedural events that are occurring in Florida in this area are leading to an e-practice that will result in greater efficiency and expediency in the practice of law in Florida.

The Florida Supreme Court recently concluded that there is no common law first-party bad faith action in Florida and that the “implied covenant of good faith and fair dealing” does not exist as a separate claim from a statutory bad faith claim in the first-party insurance claims in Florida.

The Florida Senate banking and insurance committee passed a broad property insurance bill, ss. 627.706-627.7074, F.S., in February 2011 that would no longer require companies to offer comprehensive sinkhole insurance to Floridians. Coverage would be required only for “catastrophic ground collapse,” which means that a house is literally sucked into the ground. Proponents felt the bill would help reduce the rampant fraud that causes insurance companies to raise rates on consumers. But opponents saw it as the end of sinkhole insurance in Florida.

Florida’s First District Court of Appeals distinguished cases involving payments made by Medicare from those involving payments made by a private health insurer to whom the plaintiff actually paid premiums and “earned” the benefits.

As with any decision of this magnitude, it will take years for the full impact of this ruling to be appreciated. However, a large number of potential securities fraud defendants may now rest a little easier, knowing that so long as they do not have the “ultimate authority” to actually “make” a statement, they are shielded from at least one form of exposure and sometimes cripplingly expensive litigation.

On Thursday, June 23, 2011, Florida Governor Rick Scott signed into law the heavily debated Senate Bill 142. The new law is retroactive, meaning it applies to pending cases.

Both houses of the Florida Legislature have passed a bill that would allow defendants in "enhanced injury" product liability cases to present evidence relating to the fault of anyone whose negligence may have contributed to an underlying accident. Governor Rick Scott is expected to sign the bill into law.

A bill pending in the Florida Legislature could change the litigation landscape in product liability cases where the "crashworthiness" of a motor vehicle is involved.

A recent change in Florida law makes it more challenging for plaintiffs in slip-and-fall cases to establish liability for their injuries. Now a state court has ruled that the law applies not only to new claims, but to older cases coming to trial, regardless of when the loss occurred.

The U.S. Supreme Court will hear a case that may expose service providers to lawsuits over alleged misstatements in securities prospectuses. The decision's impact could extend beyond the investment management business to others who advise public companies concerning securities offering documents. That group likely would include accountants, attorneys, bankers, financial advisors and consultants.

Until recently, international arbitration in Florida was governed by the Florida International Arbitration Act (FIAA).  However, the FIAA has now been repealed and replaced with the Model International Commercial Arbitration Law (Model Law), as drafted under the supervision of the United Nations Commission on International Trade Law.

Effective July 1, 2010, a claimant involved in a slip and fall lawsuit stemming from the presence of a foreign transitory substance will have to establish actual or constructive knowledge of the alleged dangerous condition on the part of the premises owner.

Florida third party claimants may bring common law bad faith actions against insurers under limited circumstances, including the rendering of an excess judgment against an insured or by assignment.  In a case recently determined by the Florida Supreme Court, Pamela Perera v. United States Fidelity and Guaranty Company, No. SC08-1968, the court, in essence, found that bad faith does not exist in a vacuum—that without the causation of damages, a carrier's alleged bad faith conduct is not actionable.

Parties, but not their attorneys, could be spared sanctions for frivolous litigation if they do not understand their cases were baseless under House Bill 449, which cleared the Florida House of Representatives Civil Justice and Court Committee in January 2010.

On November 17, 2009, Florida's Judicial Ethics Advisory Committee concluded that judges should not be Facebook friends with attorneys who appear before them.  The State Committee said "'friending' someone on Facebook poses an appearance of conflict and could lend the weight of the robe to others."  Judicial Canon 2B strictly prohibits judges from doing anything that might "lend the prestige of judicial office to advance the private interests of the judge or others."  The ruling did not address Facebook in particular but, instead, referred to all social networking sites by noting that the primary problem was allowing others to see who someone's friends are.

The Auditing Standards Board ("ASB") of the American Institute of Certified Public Accountants ("AICPA") will review the exposure draft of the proposed Statement on Auditing Standards ("SAS"), Consideration of Fraud in a Financial Statement Audit, at its January 2010 meeting as part of the continuing Clarity Project.

A recent Florida case may have a dramatic impact on the way that defendants and defense counsel handle claims in which a third party may be partially or entirely liable for the claimant's damages.  See T & S Enterprises Handicap Accessibility Inc. v. Wink Industrial Maintenance and Repair, Inc., 34 Fla. L. Weekly D953 (Fla. 2d DCA May 13, 2009).  The court in T & S answered the question of whether the right of contribution continues to exist following the 2006 statutory abolition of joint and several liability.

Whereas domestic insurers are regulated by Chapter 627 of the Florida Statutes, it was assumed that this chapter did not apply to surplus line insurers.  Following two 2008 court rulings in Florida, which created an ambiguity as to how many surplus lines insurers are regulated in contrast to domestic insurers, the Florida Legislature passed House Bill 853 during the 2009 Legislative Session, which was signed into law by Governor Charlie Crist on June 11, 2009.

In a case closely watched by the accounting profession, a jury took only one hour to render a verdict in favor of BDO International (now known as BDO Global Coordination B.V.), saving that company, the umbrella organization of the BDO network, from huge vicarious liability for the acts of one of its member firms, BDO Seidman.

In an effort to protect our clients' current and future interests, the existing rules and regulations in place and any proposed changes which could have an impact on business practices should be recognized and evaluated.  On June 17, 2009, the Treasury Department and the White House released their proposed changes to the regulation of the financial industry entitled, Financial Regulatory Reform: A New Foundation (the "Proposal").  The Proposal could have a dramatic effect on how our clients manage their business and litigation.

Two recent court rulings in Florida have resulted in ambiguity as to how much surplus lines insurers are regulated in contrast to domestic insurers. Whereas domestic insurers are regulated by Chapter 627 of the Florida Statutes, it was assumed that this chapter did not apply to surplus line insurers until these court rulings indicated otherwise. Legislation has now been introduced in the Florida House of Representatives and Florida Senate that provides that surplus lines insurers are exempt from all of Chapter 627.

Recently the Florida Supreme Court in Kirton v. Fields, 2008 WL 5170603 (Dec. 11, 2008) held that a parent cannot enter into a binding pre-injury release on behalf of a minor who is participating in a commercial activity. The court's ruling stemmed from a 2003 accident involving a 14 year old boy who was fatally injured while operating an ATV at an off-road motor-sports park. In order to gain admission to the park, the father, who was the primary custodial parent, had to execute a release and waiver of liability.  Following the fatal accident the personal representative of the child's estate filed a wrongful death lawsuit against the park's operators.