CODING: Words stricken are deletions; words underlined are additions.
HOUSE AMENDMENT
Bill No. HB 3873
Amendment No. (for drafter's use only)
CHAMBER ACTION
Senate House
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5 ORIGINAL STAMP BELOW
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11 Representative(s) Frankel offered the following:
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13 Amendment (with title amendment)
14 On page 1, line 28 through
15 page 6, line 29,
16 remove from the bill: all of said lines
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18 and insert in lieu thereof:
19 Section 1. Section 768.096, Florida Statutes, is
20 created to read:
21 768.096 Employer presumption against negligent
22 hiring.--
23 (1) In a civil action for the death of, or injury or
24 damage to, a third person caused by the intentional tort of an
25 employee, such employee's employer shall be presumed not to
26 have been negligent in hiring such employee if, before hiring
27 the employee, the employer conducted a background
28 investigation of the prospective employee and the
29 investigation did not reveal any information that reasonably
30 demonstrated the unsuitability of the prospective employee for
31 the particular work to be performed or for the employment in
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HOUSE AMENDMENT
Bill No. HB 3873
Amendment No. (for drafter's use only)
1 general. A background investigation under this section must
2 include:
3 (a) Obtaining a criminal background investigation on
4 the prospective employee pursuant to subsection (2);
5 (b) Making a reasonable effort to contact references
6 and former employers of the prospective employee concerning
7 the suitability of the prospective employee for employment;
8 (c) Requiring the prospective employee to complete a
9 job application form that includes questions concerning
10 whether he or she has ever been convicted of a crime,
11 including details concerning the type of crime; the date of
12 conviction and the penalty imposed; and whether the
13 prospective employee has ever been a defendant in a civil
14 action for intentional tort, including the nature of the
15 intentional tort and the disposition of the action;
16 (d) Obtaining, with written authorization from the
17 prospective employee, a complete check of the driver's license
18 record of the prospective employee if such a check is relevant
19 to the work the employee will be performing and if the record
20 can reasonably be obtained; and
21 (e) Interviewing the prospective employee.
22 (2) To satisfy the criminal-background-investigation
23 requirement of this section, an employer must obtain a local
24 criminal records check through local law enforcement agencies,
25 a statewide criminal records check through the Department of
26 Law Enforcement, or a federal criminal records check through
27 the Federal Bureau of Investigation.
28 (3) The election by an employer not to conduct the
29 investigation specified in subsection (1) does not raise any
30 presumption that the employer failed to use reasonable care in
31 hiring an employee.
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HOUSE AMENDMENT
Bill No. HB 3873
Amendment No. (for drafter's use only)
1 Section 2. Section 768.095, Florida Statutes, is
2 amended to read:
3 768.095 Employer immunity from liability; disclosure
4 of information regarding former or current employees.--An
5 employer who discloses information about a former or current
6 employee employee's job performance to a prospective employer
7 of the former or current employee upon request of the
8 prospective employer or of the former or current employee is
9 presumed to be acting in good faith and, unless lack of good
10 faith is shown by clear and convincing evidence, is immune
11 from civil liability for such disclosure or its consequences
12 unless it is shown by clear and convincing evidence. For
13 purposes of this section, the presumption of good faith is
14 rebutted upon a showing that the information disclosed by the
15 former or current employer was knowingly false or deliberately
16 misleading, was rendered with malicious purpose, or violated
17 any civil right of the former or current employee protected
18 under chapter 760.
19 Section 3. Section 768.725, Florida Statutes, is
20 created to read:
21 768.725 Punitive damages; burden of proof.--At trial,
22 the plaintiff must establish by clear and convincing evidence
23 its entitlement to an award of punitive damages. The greater
24 weight of the evidence burden of proof shall apply to the
25 determination regarding the amount of damages.
26 Section 4. Effective October 1, 1998, and applicable
27 to all civil actions pending on that date for which the
28 initial trial or retrial of the action has not commenced and
29 all civil actions commenced on or after that date, section
30 768.73, Florida Statutes, is amended to read:
31 768.73 Punitive damages; limitation.--
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HOUSE AMENDMENT
Bill No. HB 3873
Amendment No. (for drafter's use only)
1 (1)(a) In any civil action based on negligence, strict
2 liability, products liability, misconduct in commercial
3 transactions, professional liability, or breach of warranty,
4 and involving willful, wanton, or gross misconduct, the
5 judgment for the total amount of punitive damages awarded to a
6 claimant may not exceed three times the amount of compensatory
7 damages awarded to each person entitled thereto by the trier
8 of fact, except as provided in paragraph (b). However, this
9 subsection does not apply to any class action.
10 (b) If any award for punitive damages exceeds the
11 limitation specified in paragraph (a), the award is presumed
12 to be excessive and the defendant is entitled to remittitur of
13 the amount in excess of the limitation unless the claimant
14 demonstrates to the court by clear and convincing evidence
15 that the award is not excessive in light of the facts and
16 circumstances which were presented to the trier of fact.
17 (c) This subsection is not intended to prohibit an
18 appropriate court from exercising its jurisdiction under s.
19 768.74 in determining the reasonableness of an award of
20 punitive damages that is less than three times the amount of
21 compensatory damages.
22 (2)(a) Except as provided in paragraph (b), punitive
23 damages shall not be awarded against a defendant in a tort
24 action if that defendant establishes, before trial, that
25 punitive damages have previously been awarded against that
26 defendant in any state or federal court in any action alleging
27 harm from the same act or single course of conduct for which
28 the claimant seeks compensatory damages. For purposes of a
29 tort action, the term "the same act or single course of
30 conduct" includes acts resulting in the same manufacturing
31 defects, acts resulting in the same defects in design, or
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HOUSE AMENDMENT
Bill No. HB 3873
Amendment No. (for drafter's use only)
1 failure to warn of the same hazards, with respect to similar
2 units of a product.
3 (b) In subsequent tort actions involving the same act
4 or single course of conduct for which punitive damages have
5 already been awarded, if the court determines by clear and
6 convincing evidence that the amount of prior punitive damages
7 awarded was insufficient to punish that defendant's behavior,
8 the court may award subsequent punitive damages. In awarding
9 subsequent punitive damages, the court shall make specific
10 findings of fact in the record to support its conclusion. Any
11 subsequent punitive damage awards shall be reduced by the
12 amount of any earlier punitive damage awards rendered in state
13 or federal court.
14 (3) In any civil action, an award of punitive damages
15 is payable as follows:
16 (a) Sixty-five percent of the award is payable to the
17 claimant.
18 (b) If the cause of action was based on personal
19 injury or wrongful death, 35 percent of the award is payable
20 to the Public Medical Assistance Trust Fund; otherwise, 35
21 percent of the award is payable to the General Revenue Fund.
22 (4) The clerk of the court shall transmit a copy of
23 the jury verdict to the Treasurer by certified mail. In the
24 final judgment, the court shall order the percentages of the
25 award to be paid as provided in subsection (3).
26 (5) A settlement agreement entered into between the
27 original parties to the action after a verdict has been
28 returned must provide a proportionate share payable to the
29 fund specified in paragraph (3)(b). For purposes of this
30 subsection, a proportionate share is a 35-percent share of
31 that percentage of the settlement amount which the portion of
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HOUSE AMENDMENT
Bill No. HB 3873
Amendment No. (for drafter's use only)
1 the verdict for punitive damages bears to the total amount
2 awarded for compensatory and punitive damages.
3 (6) The Department of Banking and Finance shall
4 collect or cause to be collected all payments due the state
5 under this section. Such payments shall be made to the
6 Comptroller and deposited in the appropriate fund specified in
7 subsection (3).
8 (7) If the full amount of punitive damages awarded
9 cannot be collected, the claimant and the other recipient
10 designated pursuant to paragraph (3)(b) are each entitled to a
11 proportional share of the punitive damages collected.
12 (8) The claimant attorney's fees, if payable from the
13 judgment, are, to the extent that the fees are based on the
14 punitive damages, calculated based on the entire judgment for
15 punitive damages, notwithstanding the provisions of subsection
16 (3). This subsection does not limit the payment of attorney's
17 fees based upon an award of damages other than punitive
18 damages.
19 (9)(2) The jury may neither be instructed nor informed
20 as to the provisions of this section.
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24 And the title is amended as follows:
25 On page 1, lines 3 through 23
26 remove from the title of the bill:
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28 and insert in lieu thereof:
29 creating s. 768.096, F.S.; providing an
30 employer with a presumption against negligent
31 hiring under specified conditions in an action
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HOUSE AMENDMENT
Bill No. HB 3873
Amendment No. (for drafter's use only)
1 for civil damages resulting from an intentional
2 tort committed by an employee if the employer
3 conducts a preemployment background
4 investigation; prescribing the elements of such
5 background investigation; specifying that
6 electing not to complete the background
7 investigation does not constitute a failure to
8 use reasonable care in hiring an employee;
9 amending s. 768.095, F.S.; revising the
10 conditions under which an employer is immune
11 from civil liability for disclosing information
12 regarding an employee to a prospective
13 employer; creating s. 768.725, F.S.; providing
14 for evidentiary standards for an award of
15 punitive damages; amending s. 768.73, F.S.;
16 requiring certain findings for, and providing
17 for reduction of, subsequent punitive damage
18 awards under specified circumstances; requiring
19 that a specified percentage of an award for
20 punitive damages be paid to the state;
21 requiring the Department of Banking and Finance
22 to collect the payments of such awards;
23 providing for attorney's fees for the claimant
24 to be based on the entire award of punitive
25 damages;
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