(USA HERALD) – Florida Governor Ron DeSantis, Senate President Kathleen Passidomo and House Speaker Paul Renner are proposing a range of tort reforms that will impact insurance claims litigation in the state.
At a press conference on Tuesday, the politicians proposed the elimination of one-way attorney fees and fee multipliers for all insurance claims, to curb attorneys who are allegedly focused on generating fees in frivolous litigation against insurance companies. However, attorneys who represent policyholders are concerned over the planned revisions, calling the changes a blunt object that could prevent those with minor but legitimate cases from finding representation.
The one-way attorney fee provision allows insured individuals to receive reasonable attorney fees in a lawsuit when any recovery is awarded, and fee multipliers allow judges to award attorneys working on a contingency fee basis an additional amount. The proposed reforms would continue the work begun by the Legislature last December, when it eliminated one-way attorney fees for property insurance suits in a measure aimed at shoring up the state’s troubled property insurance market.
The bill was later signed into law by DeSantis, and it also prohibited the assignment of benefits, which allowed a third party, typically a contractor doing work on a property, to seek payment directly from the insurance company.
The proposed legislation would do away with the current comparative negligence rule, which allows plaintiffs to recover damages even if they are primarily at fault. The bill states that “any party found to be greater than 50 percent at fault for his or her own harm may not recover any damages.” It also takes aim at the state’s bad faith statute by spelling out that negligence alone on the part of the insurer is not enough to constitute bad faith. It would add a duty for the insured to act in good faith and allow a judge or jury to consider whether a claimant did not act in good faith and, if so, to reduce the damages awarded against the insurer. The bill would make it more difficult for claimants to get punitive damages on bad faith claims.
Policyholder attorneys have concerns that the proposed changes to Florida’s tort laws could prevent those with more minor but legitimate cases from finding representation. The one-way attorney fee provision allows insured individuals to receive reasonable attorney fees in a lawsuit when any recovery is awarded, and fee multipliers allow judges to award attorneys working on a contingency fee basis an additional amount. The proposed reforms would continue the work begun by the Legislature last December, when it eliminated one-way attorney fees for property insurance suits in a measure aimed at shoring up the state’s troubled property insurance market.
The bill is not designed to cure the problem of skyrocketing insurance premiums but is “tailored to make insurance company executives and stakeholders happy”, according to Hugh Lumpkin of Reed Smith LLP, who has more than three decades of insurance litigation on behalf of policyholders. Oliver Birman of Perlman Bajandas Yevoli & Albright PL suggested allowing one-way fees for claims under a set amount like $50,000 to allow people to still have access to the courts without making it cost prohibitive. He said capping the amount of fees that the insurance companies would be responsible for would address another problem identified by lawmakers, that attorneys will keep a case going for years to increase their fees.
Many attorneys add that much of the intended objective of curbing frivolous litigation could be achieved using existing statutes meant to deter these types of suits. Attorney discipline is another key tool that should be utilized against bad actors filing fraudulent suits, they said. Florida Bar spokeswoman Jennifer Krell Davis said the bar opens investigations against attorneys every day, but the probes are only opened once there is an official complaint from a judge, another attorney or a member of the public.
While some believe that bad faith claims are a non-issue, others argue that bad faith exposure serves as a tool for policyholders to push for better outcomes with insurers. This is particularly true for insurers like Citizens Property Insurance Corp., Markel Corp., and Evanston Insurance, which has no incentive to improve its claims handling if they are immune from bad faith claims.
Joseph Manzo of Hinshaw & Culbertson LLP, who represents insurers, has argued that the bad faith standard has become somewhat of a scam. According to him, even when an insurance carrier acted reasonably, a judge will allow a bad faith to claim to go to a jury because the standard is so broad. He noted that juries tend to side with the poor insured pitted against a large company, which can result in a negative outcome for the insurer.
Overall, while the proposed reforms are aimed at curbing frivolous litigation and making insurance companies and stakeholders happy, many attorneys who represent policyholders are concerned that they will prevent those with more minor but legitimate cases from finding representation. Some have suggested alternative approaches, such as allowing one-way fees for claims under a set amount, like $50,000, to ensure that people still have access to the courts without making it cost-prohibitive.
It remains to be seen what additional reforms will be proposed in the Florida Senate, and whether they will be successful in curbing frivolous litigation while still ensuring that policyholders have access to the courts. What is clear is that the proposed changes have sparked a robust debate among attorneys and other stakeholders in the insurance industry.
In conclusion, Florida’s proposed insurance reforms could have far-reaching implications for policyholders and attorneys alike. While the reforms are aimed at curbing frivolous litigation, some have expressed concerns that they may prevent those with legitimate claims from finding representation. As the debate over these changes continues, it is important to consider the perspectives of all stakeholders in the insurance industry, from insurers to policyholders and the attorneys who represent them.
