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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 4                                                                

 5                                           ORIGINAL STAMP BELOW

 6

 7

 8

 9

10                                                                

11  Representative(s) Frankel offered the following:

12

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

17

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.

21

22

23  ================ T I T L E   A M E N D M E N T ===============

24  And the title is amended as follows:

25         On page 1, lines 3 through 23

26  remove from the title of the bill:

27

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;

26

27

28

29

30

31

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