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.

30

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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