House Bill 3873e1
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HB 3873, First Engrossed
1 A bill to be entitled
2 An act relating to punitive damages; amending
3 s. 400.023, F.S.; providing conditions for the
4 recovery of attorneys' fees with respect to
5 civil enforcement of certain infractions
6 related to nursing homes; providing for
7 application; providing for discovery; providing
8 for punitive damages; amending s. 768.72, F.S.;
9 revising language with respect to claims for
10 punitive damages in civil actions; requiring
11 clear and convincing evidence of gross
12 negligence or intentional misconduct to support
13 the recovery of such damages; providing
14 definitions; providing criteria for the
15 imposition of punitive damages with respect to
16 employers, principals, corporations, or other
17 legal entities for the conduct of an employee
18 or agent; providing for the application of the
19 section; providing an exception; amending s.
20 768.73, F.S.; revising language with respect to
21 limitations on punitive damages; providing
22 monetary limitations; providing an exception
23 with respect to intentional misconduct;
24 providing for consolidated punitive damages
25 trials; providing for the effect of certain
26 previous punitive damages awards; providing a
27 limitation on attorney fees; providing for the
28 application of the section; providing an
29 exception; providing an effective date.
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31 Be It Enacted by the Legislature of the State of Florida:
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HB 3873, First Engrossed
1 Section 1. Subsections (6), (7), and (8) are added to
2 section 400.023, Florida Statutes, to read:
3 400.023 Civil enforcement.--
4 (6) To recover attorneys' fees under this section the
5 following conditions precedent must be met:
6 (a) Within 120 days of the filing of a responsive
7 pleading or defensive motion to a complaint brought pursuant
8 to this section, and before trial, the parties or their
9 designated representatives shall meet in mediation to discuss
10 the issues of liability and damages in accordance with
11 paragraph (a) for the purpose of early resolution of the
12 matter.
13 1. The parties shall within 60 days of the filing of
14 the responsive pleading or defensive motion:
15 a. Agree on a mediator. If the parties cannot agree on
16 a mediator, the defendant shall immediately notify the Court,
17 which shall appoint a mediator within 10 days of such notice.
18 b. Set a date for mediation.
19 c. Prepare an order for the Court identifying the
20 mediator, the scheduled date of the mediation and other terms
21 of the mediation. Absent any disagreement between the parties,
22 the Court may issue the order for the mediation submitted by
23 the parties without hearing.
24 2. The mediation must be concluded within 120 days of
25 the filing of responsive pleading or defensive motion. This
26 date may be extended only by agreement of all parties subject
27 to mediation under this subsection.
28 3. The mediation shall be conducted in the following
29 manner:
30 a. Each party shall have present at the mediation all
31 persons necessary to have complete settlement authority.
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HB 3873, First Engrossed
1 b. All parties shall mediate in good faith.
2 4. All aspects of the mediation not specifically
3 established by this subsection shall be conducted according to
4 the rules of practice and procedure adopted by the Supreme
5 Court of Florida.
6 (b) If the parties do not settle the case pursuant to
7 mediation, the last offer of the defendant made at mediation
8 shall be recorded by the mediator in a written report stating
9 the amount of the offer, the date it was made in writing and
10 the date it was rejected. If the matter subsequently proceeds
11 to trial under this section and the plaintiff prevails but is
12 awarded an amount in damages exclusive of attorneys' fees
13 equal to or less than the last offer made by the defendant at
14 mediation, then the plaintiff shall not be entitled to recover
15 any attorneys' fees.
16 (c) This subsection shall apply only to claims for
17 liability and damages and shall not apply to an action for
18 injunctive relief.
19 (d) This subsection shall apply to all causes of
20 action accruing after July 1, 1998.
21 (7) Discovery of financial information for the
22 purposes of determining the value of punitive damages may not
23 be had unless the plaintiff shows the Court by proffer or
24 evidence in the record that a reasonable basis exists to
25 support a claim for punitive damages.
26 (8) Any award of punitive damages must be reasonable
27 in light of the harm suffered by the resident and the
28 egregiousness of the conduct causing the harm.
29 Section 2. Section 768.72, Florida Statutes, is
30 amended to read:
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HB 3873, First Engrossed
1 768.72 Pleading in civil actions; claim for punitive
2 damages.--
3 (1) In any civil action, no claim for punitive damages
4 shall be permitted unless there is a reasonable showing by
5 evidence in the record or proffered by the claimant which
6 would provide a reasonable basis for recovery of such damages.
7 The claimant may move to amend her or his complaint to assert
8 a claim for punitive damages as allowed by the rules of civil
9 procedure. The rules of civil procedure shall be liberally
10 construed so as to allow the claimant discovery of evidence
11 which appears reasonably calculated to lead to admissible
12 evidence on the issue of punitive damages. No discovery of
13 financial worth shall proceed until after the pleading
14 concerning punitive damages is permitted.
15 (2) A defendant may be held liable for punitive
16 damages only if the trier of fact, based on clear and
17 convincing evidence, finds that the defendant was personally
18 guilty of intentional misconduct or gross negligence.
19 (a) "Intentional misconduct" means that the defendant
20 had actual knowledge of the wrongfulness of the conduct and
21 the high probability that injury or damage to the claimant
22 would result and, despite that knowledge, intentionally
23 pursued that course of conduct, resulting in injury or damage.
24 (b) "Gross negligence" means that the defendant's
25 conduct was so reckless or wanting in care that it constituted
26 a conscious disregard or indifference to the life, safety, or
27 rights of persons exposed to such conduct.
28 (3) In the case of an employer, principal,
29 corporation, or other legal entity, punitive damages may be
30 imposed for the conduct of an employee or agent, only if the
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HB 3873, First Engrossed
1 conduct of the employee or agent meets the criteria specified
2 in subsection (2), and if:
3 (a) The employer, principal, corporation, or other
4 legal entity actively and knowingly participated in such
5 conduct; or
6 (b) The officers, directors, or managers of the
7 employer, principal, corporation, or other legal entity
8 knowingly condoned, ratified, or consented to such conduct; or
9 (c) The employer, principal, corporation, or other
10 legal entity engaged in conduct which constituted gross
11 negligence and which contributed to the loss, damages, or
12 injury suffered by the claimant.
13 (4) The provisions of this section are remedial in
14 nature and shall be applied to all civil actions pending on
15 the effective date of this act in which the trial or retrial
16 of the action has not commenced.
17 (5) The provisions of this section shall not apply
18 with regard to any civil action based upon child abuse, abuse
19 of the elderly, or abuse of the developmentally disabled, or
20 arising under chapter 400.
21 Section 3. Section 768.73, Florida Statutes, is
22 amended to read:
23 768.73 Punitive damages; limitation.--
24 (1)(a) In any civil action in which the judgment for
25 compensatory damages is for $50,000 or less, judgment for
26 punitive damages awarded to a claimant may not exceed
27 $250,000, except as provided in paragraph (b). In any civil
28 action in which the judgment for compensatory damages exceeds
29 $50,000, the judgment for punitive damages awarded to a
30 claimant may not exceed three times the amount of compensatory
31 damages or $250,000, whichever is higher, except as provided
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HB 3873, First Engrossed
1 in paragraph (b) based on negligence, strict liability,
2 products liability, misconduct in commercial transactions,
3 professional liability, or breach of warranty, and involving
4 willful, wanton, or gross misconduct, the judgment for the
5 total amount of punitive damages awarded to a claimant may not
6 exceed three times the amount of compensatory damages awarded
7 to each person entitled thereto by the trier of fact, except
8 as provided in paragraph (b). However, this subsection does
9 not apply to any class action.
10 (b) No award for punitive damages may exceed the
11 limitations If any award for punitive damages exceeds the
12 limitation specified in paragraph (a), the award is presumed
13 to be excessive and the defendant is entitled to remittitur of
14 the amount in excess of the limitation unless the claimant
15 demonstrates to the court by clear and convincing evidence
16 that the defendant engaged in intentional misconduct and that
17 the award is not excessive in light of the facts and
18 circumstances which were presented to the trier of fact.
19 (c) This subsection is not intended to prohibit an
20 appropriate court from exercising its jurisdiction under s.
21 768.74 in determining the reasonableness of an award of
22 punitive damages that is less than three times the amount of
23 compensatory damages.
24 (2)(a) If any defendant in any civil action determines
25 that it has been or may be subject to repetitive claims for
26 punitive damages arising out of the same act or course of
27 conduct, the defendant may move the court for a full
28 determination of the defendant's punitive damage liability for
29 all consequences of the act or course of conduct. Under such
30 circumstances, the issue of liability for punitive damages
31 shall be tried separately from the issue of liability for
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HB 3873, First Engrossed
1 compensatory damages. Evidence relating to whether punitive
2 damages should be awarded and, if so, in what amount, shall
3 not be admissible until the trier of fact has determined the
4 amount of compensatory damages. The same trier of fact that
5 tried the issues relating to compensatory damages shall try
6 the issues relating to punitive damages. In the phase of the
7 trial concerning punitive damages, if the trier of fact finds
8 that punitive damages are warranted, the trier of fact should
9 consider the national scope, if any, of the misconduct, the
10 degree of wrongfulness and duration of any misconduct, the
11 scope and severity of damages, the financial resources of the
12 defendant, the number of persons harmed, the efforts made by
13 defendant to eliminate or reduce the effects of the
14 misconduct, as well as all other measures taken by the
15 defendant to mitigate the misconduct and damages caused
16 thereby. The court shall reduce any award of punitive damages
17 by the amount of any previous punitive damages awards imposed
18 against the defendant which arose out of the same act or
19 course of conduct.
20 (b) As soon as practicable after the defendant moves
21 for a consolidated punitive damages trial, or within a time
22 frame set by the court, the defendant shall make reasonable
23 efforts to compile a list of current and potential claimants
24 who will share any punitive award. The defendant shall make
25 reasonable efforts to identify and notify any persons or
26 entities that have been impacted by the act or course of
27 conduct under consideration in the punitive damages phase of
28 the trial. Any punitive damages awarded during a trial under
29 this subsection will, to the extent practicable, be equally
30 distributed among current and potential claimants, in a manner
31 to be decided by the trial court. Once a defendant's
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HB 3873, First Engrossed
1 liability for repetitive punitive damages has been determined
2 under this subsection, no further punitive damages can be
3 awarded in connection with the act or course of conduct
4 covered in this trial.
5 (c) In a consolidated punitive damages trial, the
6 claimants' aggregate attorney fee in regard to punitive
7 damages shall be limited to 15 percent of the overall punitive
8 damages award.
9 (3) If punitive damages have been awarded against a
10 defendant three or more times before the effective date of
11 this act in any state or federal court in actions alleging
12 harm from the same act or course of conduct for which a
13 claimant subsequently seeks compensatory damages, the court
14 may conduct a hearing prior to trial to determine whether the
15 previous awards are sufficient to address all consequences of
16 the act or course of conduct. In making such determination the
17 court shall consider the factors set forth in paragraph (2)(a)
18 as well as whether any previous trier of fact considered the
19 full scope of wrongful conduct and resulting harm. If the
20 court determines that the previous awards are sufficient the
21 punitive damage claim shall not be allowed.
22 (4) The provisions of this section are remedial in
23 nature and shall be applied to all civil actions pending on
24 the effective date of this act in which the trial or retrial
25 of the action has not commenced.
26 (5)(2) The jury may neither be instructed nor informed
27 as to the provisions of this section.
28 (6) The provisions of this section shall not apply
29 with regard to any civil action based upon child abuse, abuse
30 of the elderly, or abuse of the developmentally disabled, or
31 arising under chapter 400.
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HB 3873, First Engrossed
1 Section 4. This act shall take effect October 1 of the
2 year in which enacted.
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