CODING: Words stricken are deletions; words underlined are additions.





                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    

                            CHAMBER ACTION
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10                                                                

11  Senator Grant moved the following amendment:

12

13         Senate Amendment (with title amendment) 

14         Delete everything after the enacting clause

15

16  and insert:

17         Section 1.  Section 40.50, Florida Statutes, is created

18  to read:

19         40.50  Jury duty and instructions in civil cases.--

20         (1)  In any civil action immediately after the jury is

21  sworn, the court shall instruct the jury concerning its

22  duties, its conduct, the order of proceedings, the procedure

23  for submitting written questions of witnesses, and the legal

24  issues involved in the proceeding.

25         (2)  In any civil action which the court determines is

26  likely to exceed 5 days, the court shall instruct that the

27  jurors may take notes regarding the evidence and keep the

28  notes to refresh their memory and to use during recesses and

29  deliberations. The court may provide materials suitable for

30  this purpose. The court should emphasize the confidentiality

31  of the notes.  After the jury has rendered its verdict, any

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 1  notes shall be collected by the bailiff or clerk who shall

 2  promptly destroy them.

 3         (3)  The court shall permit jurors to submit to the

 4  court written questions directed to witnesses or to the court.

 5  The court shall give counsel an opportunity to object to such

 6  questions outside the presence of the jury. The court may, as

 7  appropriate, limit the submission of questions to witnesses.

 8         (4)  The court shall instruct the jury that any

 9  questions directed to witnesses or the court must be in

10  writing, unsigned, and given to the bailiff. If the court

11  determines that the juror's question calls for admissible

12  evidence, the question may be asked by court or counsel in the

13  court's discretion. Such question may be answered by

14  stipulation or other appropriate means, including, but not

15  limited to, additional testimony upon such terms and

16  limitations as the court prescribes. If the court determines

17  that the juror's question calls for inadmissible evidence, the

18  question shall not be read or answered. If the court rejects a

19  juror's question, the court should tell the jury that trial

20  rules do not permit some questions and that the jurors should

21  not attach any significance to the failure of having their

22  question asked.

23         (5)  The court may give final instructions to the jury

24  before closing arguments of counsel to enhance jurors' ability

25  to apply the law to the facts. In that event, the court may

26  withhold giving the necessary procedural and housekeeping

27  instructions until after closing arguments.

28         Section 2.  Subsection (2) of section 44.102, Florida

29  Statutes, is amended to read:

30         44.102  Court-ordered mediation.--

31         (2)  A court, under rules adopted by the Supreme Court:

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

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 1         (a)  Must, upon request of one party, refer to

 2  mediation any filed civil action for monetary damages,

 3  provided the requesting party is willing and able to pay the

 4  costs of the mediation or the costs can be equitably divided

 5  between the parties, unless:

 6         1.  The action is a landlord and tenant dispute that

 7  does not include a claim for personal injury.

 8         2.  The action is filed for the purpose of collecting a

 9  debt.

10         3.  The action is a claim of medical malpractice.

11         4.  The action is governed by the Florida Small Claims

12  Rules.

13         5.  The court determines that the action is proper for

14  referral to nonbinding arbitration under this chapter.

15         6.  The parties have agreed to binding arbitration.

16         7.  The parties have agreed to an expedited trial

17  pursuant to section 7 of this act.

18         8.  The parties have agreed to voluntary trial

19  resolution pursuant to s. 44.104.

20         (b)(a)  May refer to mediation all or any part of a

21  filed civil action for which mediation is not required under

22  this section.

23         (c)(b)  In circuits in which a family mediation program

24  has been established and upon a court finding of a dispute,

25  shall refer to mediation all or part of custody, visitation,

26  or other parental responsibility issues as defined in s.

27  61.13. Upon motion or request of a party, a court shall not

28  refer any case to mediation if it finds there has been a

29  history of domestic violence that would compromise the

30  mediation process.

31         (d)(c)  In circuits in which a dependency or in need of

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 1  services mediation program has been established, may refer to

 2  mediation all or any portion of a matter relating to

 3  dependency or to a child in need of services or a family in

 4  need of services.

 5         Section 3.  Section 44.104, Florida Statutes, is

 6  amended to read:

 7         44.104  Voluntary binding arbitration and voluntary

 8  trial resolution.--

 9         (1)  Two or more opposing parties who are involved in a

10  civil dispute may agree in writing to submit the controversy

11  to voluntary binding arbitration, or voluntary trial

12  resolution, in lieu of litigation of the issues involved,

13  prior to or after a lawsuit has been filed, provided no

14  constitutional issue is involved.

15         (2)  If the parties have entered into an agreement

16  which provides in voluntary binding arbitration for a method

17  for appointing the appointment of one or more arbitrators, or

18  which provides in voluntary trial resolution a method for

19  appointing a member of the Florida Bar in good standing for

20  more than 5 years to act as trial resolution judge, the court

21  shall proceed with the appointment as prescribed, except that.

22  However, in voluntary binding arbitration at least one of the

23  arbitrators, who shall serve as the chief arbitrator, shall

24  meet the qualifications and training requirements adopted

25  pursuant to s. 44.106.  In the absence of an agreement, or if

26  the agreement method fails or for any reason cannot be

27  followed, the court, on application of a party, shall appoint

28  one or more qualified arbitrators, or the trial resolution

29  judge, as the case requires.

30         (3)  The arbitrators or trial resolution judge shall be

31  compensated by the parties according to their agreement, but

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 1  not at an amount less than $75 per day.

 2         (4)  Within 10 days after of the submission of the

 3  request for binding arbitration, or voluntary trial

 4  resolution, the court shall provide for the appointment of the

 5  arbitrator or arbitrators, or trial resolution judge, as the

 6  case requires.  Once appointed, the arbitrators or trial

 7  resolution judge shall notify the parties of the time and

 8  place for the hearing.

 9         (5)  Application for voluntary binding arbitration or

10  voluntary trial resolution shall be filed and fees paid to the

11  clerk of court as if for complaints initiating civil actions.

12  The clerk of the court shall handle and account for these

13  matters in all respects as if they were civil actions, except

14  that the clerk of court shall keep separate the records of the

15  applications for voluntary binding arbitration and the records

16  of the applications for voluntary trial resolution from all

17  other civil actions.

18         (6)  Filing of the application for binding arbitration

19  or voluntary trial resolution will toll the running of the

20  applicable statutes of limitation.

21         (7)  The chief arbitrator or trial resolution judge may

22  shall have such power to administer oaths or affirmation and

23  to conduct the proceedings as the rules of court shall

24  provide.  At the request of any party, the chief arbitrator or

25  trial resolution judge shall issue subpoenas for the

26  attendance of witnesses and for the production of books,

27  records, documents, and other evidence and may apply to the

28  court for orders compelling attendance and production.

29  Subpoenas shall be served and shall be enforceable in the

30  manner provided by law.

31         (8)  A voluntary binding arbitration The hearing shall

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 1  be conducted by all of the arbitrators, but a majority may

 2  determine any question and render a final decision.  A trial

 3  resolution judge shall conduct a voluntary trial resolution

 4  hearing.  The trial resolution judge may determine any

 5  question and render a final decision.

 6         (9)  The Florida Evidence Code shall apply to all

 7  proceedings under this section.

 8         (10)  An appeal of a voluntary binding arbitration

 9  decision shall be taken to the circuit court and shall be

10  limited to review on the record and not de novo, of:

11         (a)  Any alleged failure of the arbitrators to comply

12  with the applicable rules of procedure or evidence.

13         (b)  Any alleged partiality or misconduct by an

14  arbitrator prejudicing the rights of any party.

15         (c)  Whether the decision reaches a result contrary to

16  the Constitution of the United States or of the State of

17  Florida.

18         (11)  Any party may enforce a final decision rendered

19  in a voluntary trial by filing a petition for final judgment

20  in the circuit court in the circuit in which the voluntary

21  trial took place.  Upon entry of final judgment by the circuit

22  court, any party may appeal to the appropriate appellate

23  court.  Factual findings determined in the voluntary trial are

24  not subject to appeal.

25         (12)  The harmless error doctrine shall apply in all

26  appeals.  No further review shall be permitted unless a

27  constitutional issue is raised.

28         (13)(11)  If no appeal is taken within the time

29  provided by rules promulgated by the Supreme Court, then the

30  decision shall be referred to the presiding judge in the case,

31  or if one has not been assigned, then to the chief judge of

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 1  the circuit for assignment to a circuit judge, who shall enter

 2  such orders and judgments as are required to carry out the

 3  terms of the decision, which orders shall be enforceable by

 4  the contempt powers of the court and for which judgments

 5  execution shall issue on request of a party.

 6         (14)(12)  This section shall not apply to any dispute

 7  involving child custody, visitation, or child support, or to

 8  any dispute which involves the rights of a third party not a

 9  party to the arbitration or voluntary trial resolution when

10  the third party would be an indispensable party if the dispute

11  were resolved in court or when the third party notifies the

12  chief arbiter or the trial resolution judge that the third

13  party would be a proper party if the dispute were resolved in

14  court, that the third party intends to intervene in the action

15  in court and that the third party does not agree to proceed

16  under this section.

17         Section 4.  Section 57.105, Florida Statutes, is

18  amended to read:

19         57.105  Attorney's fee; sanctions for raising unfounded

20  claims or defenses; damages for delay of litigation.--

21         (1)  Upon the court's initiative or motion of any

22  party, the court shall award a reasonable attorney's fee to be

23  paid to the prevailing party in equal amounts by the losing

24  party and the losing party's attorney on any claim or defense

25  at any time during a in any civil proceeding or action in

26  which the court finds that the losing party or the losing

27  party's attorney knew or should have known that a claim or

28  defense when initially presented to the court or at any time

29  before trial:

30         (a)  Was not supported by the material facts necessary

31  to establish the claim or defense; or

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 1         (b)  Would not be supported by the application of

 2  then-existing law to those material facts. there was a

 3  complete absence of a justiciable issue of either law or fact

 4  raised by the complaint or defense of the losing party;

 5  provided,

 6

 7  However, that the losing party's attorney is not personally

 8  responsible if he or she has acted in good faith, based on the

 9  representations of his or her client as to the existence of

10  those material facts. If the court awards attorney's fees to a

11  claimant pursuant to this subsection finds that there was a

12  complete absence of a justiciable issue of either law or fact

13  raised by the defense, the court shall also award prejudgment

14  interest.

15         (2)  Paragraph (1)(b) does not apply if the court

16  determines that the claim or defense was initially presented

17  to the court as a good faith argument for the extension,

18  modification, or reversal of existing law or the establishment

19  of new law, as it applied to the material facts, with a

20  reasonable expectation of success.

21         (3)  At any time in any civil proceeding or action in

22  which the moving party proves by a preponderance of the

23  evidence that any action taken by the opposing party,

24  including, but not limited to, the filing of any pleading or

25  part thereof, the assertion of or response to any discovery

26  demand, the assertion of any claim or defense, or the response

27  to any request by any other party, was taken primarily for the

28  purpose of unreasonable delay, the court shall award damages

29  to the moving party for its reasonable expenses incurred in

30  obtaining the order that may include attorney fees, and other

31  loss resulting from the improper delay.

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 1         (4)  The provisions of this section are supplemental to

 2  other sanctions or remedies available under law or under court

 3  rules.

 4         (5)(2)  If a contract contains a provision allowing

 5  attorney's fees to a party when he or she is required to take

 6  any action to enforce the contract, the court may also allow

 7  reasonable attorney's fees to the other party when that party

 8  prevails in any action, whether as plaintiff or defendant,

 9  with respect to the contract. This subsection applies to any

10  contract entered into on or after October 1, 1988. This act

11  shall take effect October 1, 1988, and shall apply to

12  contracts entered into on said date or thereafter.

13         Section 5.  Section 57.071, Florida Statutes, is

14  amended to read:

15         57.071  Costs; what taxable.--

16         (1)  If costs are awarded to any party the following

17  shall also be allowed:

18         (a)(1)  The reasonable premiums or expenses paid on all

19  bonds or other security furnished by such party.

20         (b)(2)  The expense of the court reporter for per diem,

21  transcribing proceedings and depositions, including opening

22  statements and arguments by counsel.

23         (c)(3)  Any sales or use tax due on legal services

24  provided to such party, notwithstanding any other provision of

25  law to the contrary.

26         (2)  Expert witness fees may not be awarded as taxable

27  costs unless the party retaining the expert witness furnishes

28  each opposing party with a written report signed by the expert

29  witness which summarizes the expert witness's opinions and the

30  factual basis of the opinions, including documentary evidence

31  and the authorities relied upon in reaching the opinions. Such

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 1  report shall be filed at least 5 days prior to the deposition

 2  of the expert or at least 20 days prior to discovery cut-off,

 3  whichever is sooner, or as otherwise determined by the court.

 4  This subsection does not apply to any action proceeding under

 5  the Florida Family Law Rules of Procedure.

 6         Section 6.  Expedited trials.--Upon the joint

 7  stipulation of the parties to any civil case, the court may

 8  conduct an expedited trial as provided in this section. Where

 9  two or more plaintiffs or defendants have a unity of interest,

10  such as a husband and wife, they shall be considered one party

11  for the purpose of this section. Unless otherwise ordered by

12  the court or agreed to by the parties with approval of the

13  court, an expedited trial shall be conducted as follows:

14         (1)  All discovery shall be completed within 60 days

15  after the court enters an order adopting the joint expedited

16  trial stipulation.

17         (2)  All interrogatories and requests for production

18  must be served within 10 days after the court enters the order

19  adopting the joint expedited trial stipulation and all

20  responses must be served within 20 days after receipt.

21         (3)  The court shall determine the number of

22  depositions required.

23         (4)  The case may be tried to a jury.

24         (5)  The case may be tried within 30 days after the

25  60-day discovery cut-off, if such schedule would not impose an

26  undue burden on the court calendar.

27         (6)  The trial must be limited to 1 day.

28         (7)  The jury selection must be limited to 1 hour.

29         (8)  The plaintiff will have no more than 3 hours to

30  present its case, including the opening, all testimony and

31  evidence, and the closing.

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 1         (9)  The defendant will have no more than 3 hours to

 2  present its case, including the opening, all testimony and

 3  evidence, and the closing.

 4         (10)  The jury may be given "plain language" jury

 5  instructions at the beginning of the trial as well as a "plain

 6  language" jury verdict form. The parties must agree to the

 7  jury instructions and verdict form.

 8         (11)  The parties may introduce a verified written

 9  report of any expert and an affidavit of the expert's

10  curriculum vitae instead of calling the expert to testify at

11  trial.

12         (12)  At trial the parties may use excerpts from

13  depositions, including video depositions, regardless of where

14  the deponent lives or whether the deponent is available to

15  testify.

16         (13)  Except as otherwise provided in this section, the

17  Florida Evidence Code and the Florida Rules of Civil Procedure

18  apply.

19         (14)  The court may refuse to grant continuances of the

20  trial absent extraordinary circumstances.

21         Section 7.  Section 768.77, Florida Statutes, is

22  amended to read:

23         768.77  Itemized verdict.--

24         (1)  In any action to which this part applies in which

25  the trier of fact determines that liability exists on the part

26  of the defendant, the trier of fact shall, as a part of the

27  verdict, itemize the amounts to be awarded to the claimant

28  into the following categories of damages:

29         (1)(a)  Amounts intended to compensate the claimant for

30  economic losses;

31         (2)(b)  Amounts intended to compensate the claimant for

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 1  noneconomic losses; and

 2         (3)(c)  Amounts awarded to the claimant for punitive

 3  damages, if applicable.

 4         (2)  Each category of damages, other than punitive

 5  damages, shall be further itemized into amounts intended to

 6  compensate for losses which have been incurred prior to the

 7  verdict and into amounts intended to compensate for losses to

 8  be incurred in the future. Future damages itemized under

 9  paragraph (1)(a) shall be computed before and after reduction

10  to present value. Damages itemized under paragraph (1)(b) or

11  paragraph (1)(c) shall not be reduced to present value. In

12  itemizing amounts intended to compensate for future losses,

13  the trier of fact shall set forth the period of years over

14  which such amounts are intended to provide compensation.

15         Section 8.  Paragraph (a) of subsection (1) is amended

16  to read:

17         768.78  Alternative methods of payment of damage

18  awards.--

19         (1)(a)  In any action to which this part applies in

20  which the court determines that trier of fact makes an award

21  to compensate the claimant includes for future economic losses

22  which exceed $250,000, payment of amounts intended to

23  compensate the claimant for these losses shall be made by one

24  of the following means, unless an alternative method of

25  payment of damages is provided in this section:

26         1.  The defendant may make a lump-sum payment for all

27  damages so assessed, with future economic losses and expenses

28  reduced to present value; or

29         2.  Subject to the provisions of this subsection, the

30  court shall, at the request of either party, unless the court

31  determines that manifest injustice would result to any party,

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 1  enter a judgment ordering future economic damages, as itemized

 2  pursuant to s. 768.77(1)(a), in excess of $250,000 to be paid

 3  in whole or in part by periodic payments rather than by a

 4  lump-sum payment.

 5         Section 9.  Section 47.025, Florida Statutes, is

 6  created to read:

 7         47.025  Actions against contractors.--Any venue

 8  provision in a contract for improvement to real property which

 9  requires legal action involving a resident contractor,

10  subcontractor, sub-subcontractor, or materialman, as defined

11  in part I of chapter 713, to be brought outside this state is

12  void as a matter of public policy. To the extent that the

13  venue provision in the contract is void under this section,

14  any legal action arising out of that contract shall be brought

15  only in this state in the county where the defendant resides,

16  where the cause of action accrued, or where the property in

17  litigation is located, unless, after the dispute arises, the

18  parties stipulate to another venue.

19         Section 10.  Through the state's uniform case reporting

20  system, the clerk of court shall report to the Office of the

21  State Courts Administrator, beginning in 2003, information

22  from each settlement or jury verdict and final judgment in

23  negligence cases as defined in section 768.81(4), Florida

24  Statutes, as the President of the Senate and the Speaker of

25  the House of Representatives deem necessary from time to time.

26  The information shall include, but need not be limited

27  to:  the name of each plaintiff and defendant; the verdict;

28  the percentage of fault of each; the amount of economic

29  damages and noneconomic damages awarded to each plaintiff,

30  identifying those damages that are to be paid jointly and

31  severally and by which defendants; and the amount of any

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 1  punitive damages to be paid by each defendant.

 2         Section 11.  Subsection (2) of section 95.031, Florida

 3  Statutes, is amended to read:

 4         95.031  Computation of time.--Except as provided in

 5  subsection (2) and in s. 95.051 and elsewhere in these

 6  statutes, the time within which an action shall be begun under

 7  any statute of limitations runs from the time the cause of

 8  action accrues.

 9         (2)(a)  An action Actions for products liability and

10  fraud under s. 95.11(3) must be begun within the period

11  prescribed in this chapter, with the period running from the

12  time the facts giving rise to the cause of action were

13  discovered or should have been discovered with the exercise of

14  due diligence, instead of running from any date prescribed

15  elsewhere in s. 95.11(3), but in any event an action for fraud

16  under s. 95.11(3) must be begun within 12 years after the date

17  of the commission of the alleged fraud, regardless of the date

18  the fraud was or should have been discovered.

19         (b)  An action for products liability under s. 95.11(3)

20  must be begun within the period prescribed in this chapter,

21  with the period running from the date that the facts giving

22  rise to the cause of action were discovered, or should have

23  been discovered with the exercise of due diligence, rather

24  than running from any other date prescribed elsewhere in s.

25  95.11(3), but in no event may an action for products liability

26  under s. 95.11(3) be commenced unless the complaint is served

27  and filed within 15 years after the date of delivery of the

28  product to its first purchaser or lessee who was not engaged

29  in the business of selling or leasing the product or of using

30  the product as a component in the manufacture of another

31  product, regardless of the date that the defect in the product

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 1  was or should have been discovered. However, the 15-year

 2  limitation on filing an action for products liability does not

 3  apply if the manufacturer knew of a defect in the product and

 4  concealed or attempted to conceal this defect. The provisions

 5  of this paragraph shall not apply to any aircraft which, at

 6  the time of the accident, was engaged in scheduled

 7  passenger-carrying operations.

 8         (c)  The repose period prescribed within paragraph (b)

 9  does not apply if the claimant was exposed to or used the

10  product within the respose period, but an injury caused by

11  such exposure or use did not manifest itself until after

12  expiration of the repose period.

13         Section 12.  Any action for products liability which

14  would not have been barred under section 95.031(2), Florida

15  Statutes, prior to the amendments to that section made by this

16  act may be commenced before July 1, 2003, and, if it is not

17  commenced by that date and is barred by the amendments to

18  section 95.031(2), Florida Statutes, made by this act, it

19  shall be barred.

20         Section 13.  Section 90.407 Florida Statutes, is

21  amended to read:

22         90.407  Subsequent remedial measures.--Evidence of

23  measures taken after an injury or harm caused by an event,

24  which measures if taken before the event it occurred would

25  have made the event injury or harm less likely to occur, is

26  not admissible to prove negligence, the existence of a product

27  defect, or culpable conduct in connection with the event. This

28  rule does not require the exclusion of evidence of subsequent

29  remedial measures when offered for another purpose, such as

30  proving ownership, control, or the feasibility of

31  precautionary measures, if controverted, or impeachment.

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 1         Section 14.  Section 768.1257 Florida Statutes, is

 2  created to read:

 3         768.1257  State-of-the-art defense for products

 4  liability.--In an action based upon defective design, brought

 5  against the manufacturer of a product, the finder of fact

 6  shall consider the state of the art of scientific and

 7  technical knowledge and other circumstances that existed at

 8  the time of manufacture, not at the time of loss or injury.

 9         Section 15.  Section 768.1256, Florida Statutes, is

10  created to read:

11         768.1256  Government rules defense.--

12         (1)  In a product liability action brought against a

13  manufacturer or seller for harm allegedly caused by a product,

14  there is a rebuttable presumption that the product is not

15  defective or unreasonably dangerous and the manufacturer or

16  seller is not liable if, at the time the specific unit of the

17  product was sold or delivered to the initial purchaser or

18  user, the aspect of the product that allegedly caused the

19  harm:

20         (a)  Complied with federal or state codes, statutes,

21  rules, regulations or standards relevant to the event causing

22  the death or injury;

23         (b)  The codes, statutes, rules, regulations or

24  standards are designed to prevent the type of harm that

25  allegedly occurred; and

26         (c)  Compliance with the codes, statutes, rules,

27  regulations or standards is required as a condition for

28  selling or distributing the product.

29         (2)  In a product liability action as described in

30  subsection (1), there is a rebuttable presumption that the

31  product is defective or unreasonably dangerous and the

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    





 1  manufacturer or seller is liable if the manufacturer or seller

 2  did not comply with the federal or state codes, statutes,

 3  rules, regulations or standards which:

 4         (a)  Were relevant to the event causing the death or

 5  injury;

 6         (b)  Are designed to prevent the type of harm that

 7  allegedly occurred; and

 8         (c)  Require compliance as a condition for selling or

 9  distributing the product.

10         (3)  This section does not apply to an action brought

11  for harm allegedly caused by a drug that is ordered off the

12  market or seized by the Federal Food and Drug Administration.

13         Section 16.  Section 768.096, Florida Statutes, is

14  created to read:

15         768.096  Employer presumption against negligent

16  hiring.--

17         (1)  In a civil action for the death of, or injury or

18  damage to, a third person caused by the intentional tort of an

19  employee, such employee's employer is presumed not to have

20  been negligent in hiring such employee if, before hiring the

21  employee, the employer conducted a background investigation of

22  the prospective employee and the investigation did not reveal

23  any information that reasonably demonstrated the unsuitability

24  of the prospective employee for the particular work to be

25  performed or for the employment in general. A background

26  investigation under this section must include:

27         (a)  Obtaining a criminal background investigation on

28  the prospective employee under subsection (2); or

29         (b)  Making a reasonable effort to contact references

30  and former employers of the prospective employee concerning

31  the suitability of the prospective employee for employment; or

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    





 1         (c)  Requiring the prospective employee to complete a

 2  job application form that includes questions concerning

 3  whether he or she has ever been convicted of a crime,

 4  including details concerning the type of crime, the date of

 5  conviction and the penalty imposed, and whether the

 6  prospective employee has ever been a defendant in a civil

 7  action for intentional tort, including the nature of the

 8  intentional tort and the disposition of the action; or

 9         (d)  Obtaining, with written authorization from the

10  prospective employee, a check of the driver's license record

11  of the prospective employee if such a check is relevant to the

12  work the employee will be performing and if the record can

13  reasonably be obtained; or

14         (e)  Interviewing the prospective employee.

15         (2)  To satisfy the criminal-background-investigation

16  requirement of this section, an employer must request and

17  obtain from the Department of Law Enforcement a check of the

18  information as reported and reflected in the Florida Crime

19  Information Center system as of the date of the request.

20         (3)  The election by an employer not to conduct the

21  investigation specified in subsection (1) does not raise any

22  presumption that the employer failed to use reasonable care in

23  hiring an employee.

24         Section 17.  Section 768.095, Florida Statutes, is

25  amended to read:

26         768.095  Employer immunity from liability; disclosure

27  of information regarding former or current employees.--An

28  employer who discloses information about a former or current

29  employee employee's job performance to a prospective employer

30  of the former or current employee upon request of the

31  prospective employer or of the former or current employee is

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    





 1  presumed to be acting in good faith and, unless lack of good

 2  faith is shown by clear and convincing evidence, is immune

 3  from civil liability for such disclosure or its consequences

 4  unless it is shown by clear and convincing evidence. For

 5  purposes of this section, the presumption of good faith is

 6  rebutted upon a showing that the information disclosed by the

 7  former or current employer was knowingly false or deliberately

 8  misleading, was rendered with malicious purpose, or violated

 9  any civil right of the former or current employee protected

10  under chapter 760.

11         Section 18.  Section 768.0705, Florida Statutes, is

12  created to read:

13         768.0705  Limitation on premises liability.--

14         (1)  The owner or operator of a convenience business

15  that substantially implements the applicable security measures

16  listed in ss. 812.173 and 812.174 shall gain a presumption

17  against liability in connection with criminal acts that occur

18  on the premises and that are committed by third parties who

19  are not employees or agents of the owner or operator of the

20  convenience business.

21         Section 19.  Section 768.075, Florida Statutes, is

22  amended to read:

23         768.075  Immunity from liability for injury to

24  trespassers on real property.--

25         (1)  A person or organization owning or controlling an

26  interest in real property, or an agent of such person or

27  organization, shall not be held liable for any civil damages

28  for death of or injury or damage to a trespasser upon the

29  property resulting from or arising by reason of the

30  trespasser's commission of the offense of trespass as

31  described in s. 810.08 or s. 810.09, when such trespasser was

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    





 1  under the influence of alcoholic beverages with a

 2  blood-alcohol level of 0.08 0.10 percent or higher, when such

 3  trespasser was under the influence of any chemical substance

 4  set forth in s. 877.111, when such trespasser was illegally

 5  under the influence of any substance controlled under chapter

 6  893, or if the trespasser is affected by any of the aforesaid

 7  substances to the extent that her or his normal faculties are

 8  impaired. For the purposes of this section, voluntary

 9  intoxication or impediment of faculties by use of alcohol or

10  any of the aforementioned substances shall not excuse a party

11  bringing an action or on whose behalf an action is brought

12  from proving the elements of trespass. However, the person or

13  organization owning or controlling the interest in real

14  property shall not be immune from liability if gross

15  negligence or intentional willful and wanton misconduct on the

16  part of such person or organization or agent thereof is a

17  proximate cause of the death of or injury or damage to the

18  trespasser.

19         (2)  A person or organization owning or controlling an

20  interest in real property, or an agent of such person or

21  organization, is not liable for any civil damages for the

22  death of or injury or damage to any discovered or undiscovered

23  trespasser, except as provided in paragraphs (3)(a), (b), and

24  (c), and regardless of whether the trespasser was intoxicated

25  or otherwise impaired.

26         (3)(a)  As used in this subsection, the term:

27         1.  "Invitation" means that the visitor entering the

28  premises has an objectively reasonable belief that he or she

29  has been invited or is otherwise welcome on that portion of

30  the real property where injury occurs.

31         2.  "Discovered trespasser" means a person who enters

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    





 1  real property without invitation, either express or implied,

 2  and whose actual physical presence was detected, within 24

 3  hours preceding the accident, by the person or organization

 4  owning or controlling an interest in real property or to whose

 5  actual physical presence the person or organization owning or

 6  controlling an interest in real property was alerted by a

 7  reliable source within 24 hours preceding the accident. The

 8  status of a person who enters real property shall not be

 9  elevated to that of an invitee, unless the person or

10  organization owning or controlling an interest in real

11  property has issued an express invitation to enter the

12  property or has manifested a clear intent to hold the property

13  open to use by persons pursuing purposes such as those pursued

14  by the person whose status is at issue.

15         3.  "Undiscovered trespasser" means a person who enters

16  property without invitation, either express or implied, and

17  whose actual physical presence was not detected, within 24

18  hours preceding the accident, by the person or organization

19  owning or controlling an interest in real property.

20         (b)  To avoid liability to undiscovered trespassers, a

21  person or organization owning or controlling an interest in

22  real property must refrain from intentional misconduct that

23  proximately causes injury to the undiscovered trespasser, but

24  has no duty to warn of dangerous conditions. To avoid

25  liability to discovered trespassers, a person or organization

26  owning or controlling an interest in real property must

27  refrain from gross negligence or intentional misconduct that

28  proximately causes injury to the discovered trespasser, and

29  must warn the trespasser of dangerous conditions that are

30  known to the person or organization owning or controlling an

31  interest in real property but that are not readily observable

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    





 1  by others.

 2         (c)  This subsection shall not be interpreted or

 3  construed to alter the common law as it pertains to the

 4  "attractive nuisance doctrine."

 5         (4)  A person or organization owning or controlling an

 6  interest in real property, or an agent of such person or

 7  organization, shall not be held liable for negligence that

 8  results in the death of, injury to, or damage to a person who

 9  is attempting to commit a felony or who is engaged in the

10  commission of a felony on the property.

11         Section 20.  Section 768.36, Florida Statutes, is

12  created to read:

13         768.36  Alcohol or drug defense.--

14         (1)  As used in this section, the term:

15         (a)  "Alcoholic beverage" means distilled spirits and

16  any beverage that contains 0.5 percent or more alcohol by

17  volume as determined in accordance with s. 561.01(4)(b).

18         (b)  "Drug" means any chemical substance set forth in

19  s. 877.111 or any substance controlled under chapter 893. The

20  term does not include any drug or medication obtained pursuant

21  to a prescription as defined in s. 893.02 which was taken in

22  accordance with the prescription, or any medication that is

23  authorized under state or federal law for general distribution

24  and use without a prescription in treating human diseases,

25  ailments, or injuries and that was taken in the recommended

26  dosage.

27         (2)  In any civil action, a plaintiff may not recover

28  any damages for loss or injury to his or her person or

29  property if the trier of fact finds that, at the time the

30  plaintiff was injured:

31         (a)  The plaintiff was under the influence of any

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    





 1  alcoholic beverage or drug to the extent that the plaintiff's

 2  normal faculties were impaired or the plaintiff had a blood or

 3  breath alcohol level of 0.08 percent or higher; and

 4         (b)  As a result of the influence of such alcoholic

 5  beverage or drug the plaintiff was more than 50 percent at

 6  fault for his or her own harm.

 7         Section 21.  Section 768.725, Florida Statutes, is

 8  created to read:

 9         768.725  Punitive damages; burden of proof.--In all

10  civil actions the plaintiff must establish at trial by clear

11  and convincing evidence its entitlement to an award of

12  punitive damages. The "greater weight of the evidence" burden

13  of proof applies to a determination of the amount of damages.

14         Section 22.  Section 768.72, Florida Statutes, is

15  amended to read:

16         768.72  Pleading in civil actions; claim for punitive

17  damages.--

18         (1)  In any civil action, no claim for punitive damages

19  shall be permitted unless there is a reasonable showing by

20  evidence in the record or proffered by the claimant which

21  would provide a reasonable basis for recovery of such damages.

22  The claimant may move to amend her or his complaint to assert

23  a claim for punitive damages as allowed by the rules of civil

24  procedure.  The rules of civil procedure shall be liberally

25  construed so as to allow the claimant discovery of evidence

26  which appears reasonably calculated to lead to admissible

27  evidence on the issue of punitive damages.  No discovery of

28  financial worth shall proceed until after the pleading

29  concerning punitive damages is permitted.

30         (2)  A defendant may be held liable for punitive

31  damages only if the trier of fact, based on clear and

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    





 1  convincing evidence, finds that the defendant was personally

 2  guilty of intentional misconduct or gross negligence. As used

 3  in this section, the term:

 4         (a)  "Intentional misconduct" means that the defendant

 5  had actual knowledge of the wrongfulness of the conduct and

 6  the high probability that injury or damage to the claimant

 7  would result and, despite that knowledge, intentionally

 8  pursued that course of conduct, resulting in injury or damage.

 9         (b)  "Gross negligence" means that the defendant's

10  conduct was so reckless or wanting in care that it constituted

11  a conscious disregard or indifference to the life, safety, or

12  rights of persons exposed to such conduct.

13         (3)  In the case of an employer, principal,

14  corporation, or other legal entity, punitive damages may be

15  imposed for the conduct of an employee or agent only if the

16  conduct of the employee or agent meets the criteria specified

17  in subsection (2) and:

18         (a)  The employer, principal, corporation, or other

19  legal entity actively and knowingly participated in such

20  conduct;

21         (b)  The officers, directors, or managers of the

22  employer, principal, corporation, or other legal entity

23  knowingly condoned, ratified, or consented to such conduct; or

24         (c)  The employer, principal, corporation, or other

25  legal entity engaged in conduct that constituted gross

26  negligence and that contributed to the loss, damages, or

27  injury suffered by the claimant.

28         (4)  The provisions of this section are remedial in

29  nature and must be applied to all civil actions pending on

30  October 1, 1999, in which the trial or retrial of the action

31  has not commenced.

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    





 1         Section 23.  Section 768.735, Florida Statutes, is

 2  created to read:

 3         768.735  Punitive damages; exceptions; limitation.--

 4         (1)  Sections 768.72(2)-(4), 768.725, and 768.73 do not

 5  apply to any civil action based upon child abuse, abuse of the

 6  elderly, or abuse of the developmentally disabled or any civil

 7  action arising under chapter 400. Such actions are governed by

 8  applicable statutes and controlling judicial precedent.

 9         (2)(a)  In any civil action based upon child abuse,

10  abuse of the elderly, or abuse of the developmentally

11  disabled, or actions arising under chapter 400 and involving

12  the award of punitive damages, the judgment for the total

13  amount of punitive damages awarded to a claimant may not

14  exceed three times the amount of compensatory damages awarded

15  to each person entitled thereto by the trier of fact, except

16  as provided in paragraph (b). This subsection does not apply

17  to any class action.

18         (b)  If any award for punitive damages exceeds the

19  limitation specified in paragraph (a), the award is presumed

20  to be excessive and the defendant is entitled to remittitur of

21  the amount in excess of the limitation unless the claimant

22  demonstrates to the court by clear and convincing evidence

23  that the award is not excessive in light of the facts and

24  circumstances that were presented to the trier of fact.

25         (c)  This subsection is not intended to prohibit an

26  appropriate court from exercising its jurisdiction under s.

27  768.74 in determining the reasonableness of an award of

28  punitive damages which is less than three times the amount of

29  compensatory damages.

30         (d)  The jury may not be instructed or informed as to

31  the provisions of this section.

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    





 1         Section 24.  Section 768.736, Florida Statutes, is

 2  created to read:

 3         768.736  Punitive damages; exceptions for

 4  intoxication.--Sections 768.725 and 768.73 do not apply to any

 5  defendant who, at the time of the act or omission for which

 6  punitive damages are sought, was under the influence of any

 7  alcoholic beverage or drug to the extent that the defendant's

 8  normal faculties were impaired, or who had a blood or breath

 9  alcohol level of 0.08 percent or higher.

10         Section 25.  Section 768.737, Florida statutes, is

11  created to read:

12         768.737  Punitive damages; application in

13  arbitration.--

14         Where punitive damages are available as a remedy in an

15  arbitration proceeding, sections 768.72, 768.725 and 768.73

16  apply. When an award of punitive damages is made in an

17  arbitration proceeding, the arbitrator who renders the award

18  must issue a written opinion setting forth the conduct which

19  gave rise to the award and how the arbitrator applied the

20  standards in section 768.72 to such conduct.

21         Section 26.  Subsections (3) and (5) of section 768.81,

22  Florida Statutes, are amended to read:

23         768.81  Comparative fault.--

24         (3)  APPORTIONMENT OF DAMAGES.--In cases to which this

25  section applies, the court shall enter judgment against each

26  party liable on the basis of such party's percentage of fault

27  and not on the basis of the doctrine of joint and several

28  liability; provided that with respect to any party whose

29  percentage of fault equals or exceeds that of a particular

30  claimant and whose fault exceeds 25 percent, the court shall

31  enter judgment with respect to economic damages against that

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    





 1  party on the basis of the doctrine of joint and several

 2  liability.

 3         (5)  APPLICABILITY OF JOINT AND SEVERAL

 4  LIABILITY.--Notwithstanding the provisions of this section,

 5  the doctrine of joint and several liability applies to all

 6  actions in which the total amount of damages does not exceed

 7  $25,000.

 8         Section 27.  Paragraph (b) of subsection (9) of section

 9  324.021, Florida Statutes, is amended, and paragraph (c) is

10  added to that subsection, to read:

11         324.021  Definitions; minimum insurance required.--The

12  following words and phrases when used in this chapter shall,

13  for the purpose of this chapter, have the meanings

14  respectively ascribed to them in this section, except in those

15  instances where the context clearly indicates a different

16  meaning:

17         (9)  OWNER; OWNER/LESSOR.--

18         (b)  Owner/lessor.--Notwithstanding any other provision

19  of the Florida Statutes or existing case law:,

20         1.  The lessor, under an agreement to lease a motor

21  vehicle for 1 year or longer which requires the lessee to

22  obtain insurance acceptable to the lessor which contains

23  limits not less than $100,000/$300,000 bodily injury liability

24  and $50,000 property damage liability or not less than

25  $500,000 combined property damage liability and bodily injury

26  liability, shall not be deemed the owner of said motor vehicle

27  for the purpose of determining financial responsibility for

28  the operation of said motor vehicle or for the acts of the

29  operator in connection therewith; further, this subparagraph

30  paragraph shall be applicable so long as the insurance meeting

31  these requirements is in effect.  The insurance meeting such

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    





 1  requirements may be obtained by the lessor or lessee,

 2  provided, if such insurance is obtained by the lessor, the

 3  combined coverage for bodily injury liability and property

 4  damage liability shall contain limits of not less than $1

 5  million and may be provided by a lessor's blanket policy.

 6         2.  The lessor, under an agreement to rent or lease a

 7  motor vehicle for a period of less than 1 year, shall be

 8  deemed the owner of the motor vehicle for the purpose of

 9  determining liability for the operation of the vehicle or the

10  acts of the operator in connection therewith only up to

11  $100,000 per person and up to $300,000 per incident for bodily

12  injury and up to $50,000 for property damage. If the lessee or

13  the operator of the motor vehicle is uninsured or has any

14  insurance with limits less than $500,000 combined property

15  damage and bodily injury liability, the lessor shall be liable

16  for up to an additional $500,000 in economic damages only

17  arising out of the use of the motor vehicle.  The additional

18  specified liability of the lessor for economic damages shall

19  be reduced by amounts actually recovered from the lessee, from

20  the operator, and from any insurance or self-insurance

21  covering the lessee or operator.  Nothing in this subparagraph

22  shall be construed to affect the liability of the lessor for

23  its own negligence.

24         3.  The owner who is a natural person and loans a motor

25  vehicle to any permissive user shall be liable for the

26  operation of the vehicle or the acts of the operator in

27  connection therewith only up to $100,000 per person and up to

28  $300,000 per incident for bodily injury and up to $50,000 for

29  property damage. If the permissive user of the motor vehicle

30  is uninsured or has any insurance with limits less than

31  $500,000 combined property damage and bodily injury liability,

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    





 1  the owner shall be liable for up to an additional $500,000 in

 2  economic damages only arising out of the use of the motor

 3  vehicle. The additional specified liability of the owner for

 4  economic damages shall be reduced by amounts actually

 5  recovered from the permissive user and from any insurance or

 6  self-insurance covering the permissive user. Nothing in this

 7  subparagraph shall be construed to affect the liability of the

 8  owner for his or her own negligence.

 9         (c)  Application.--

10         (1)  The limits on liability in subparagraphs (b)2. and

11  (b)3. do not apply to an owner of motor vehicles that are used

12  for commercial activity in the owner's ordinary course of

13  business, other than a rental company that rents or leases

14  motor vehicles. For purposes of this paragraph, the term

15  "rental company" includes only an entity that is engaged in

16  the business of renting or leasing motor vehicles to the

17  general public and that rents or leases a majority of its

18  motor vehicles to persons with no direct or indirect

19  affiliation with the rental company. The term also includes a

20  motor vehicle dealer that provides temporary replacement

21  vehicles to its customers for up to 10 days.

22         (2)  Furthermore, with respect to commercial motor

23  vehicles as defined in s. 627.732, the limits on liability in

24  subparagraphs (b)2. and (b)3. do not apply if, at the time of

25  the incident, the commercial motor vehicle is being used in

26  the transportation of materials found to be hazardous for the

27  purposes of the Hazardous Materials Transportation

28  Authorization Act of 1994, as amended (49 U.S.C. ss. 5101 et

29  seq.) and that is required pursuant to such act to carry

30  placards warning others of the hazardous cargo, unless at the

31  time of lease or rental either:

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    





 1         a.  the lessee indicates in writing that the vehicle

 2  will not be used to transport materials found to be hazardous

 3  for the purposes of the Hazardous Materials Transportation

 4  Authorization Act of 1994, as amended (49 U.S.C. ss. 5101 et

 5  seq.); or

 6         b.  the lessee or other operator of the commercial

 7  motor vehicle has in effect insurance with limits of at least

 8  $5,000,000 combined property damage and bodily injury

 9  liability.

10         Section 28.  Section 768.098, Florida Statutes, is

11  created to read:

12         768.098  Limitation of liability for employee

13  leasing.--

14         (1)  An employer in a joint employment relationship

15  pursuant to s. 468.520 shall not be liable for the tortious

16  actions of another employer in that relationship, or for the

17  tortious actions of any jointly employed employee under that

18  relationship, provided that:

19         (a)  The employer seeking to avoid liability pursuant

20  to this section did not authorize or direct the tortious

21  action;

22         (b)  The employer seeking to avoid liability pursuant

23  to this section did not have actual knowledge of the tortious

24  conduct and fail to take appropriate action;

25         (c)  The employer seeking to avoid liability pursuant

26  to this section did not have actual control over the day to

27  day job duties of the jointly employed employee who has

28  committed a tortious act nor actual control over the portion

29  of a job site at which or from which the tortious conduct

30  arose or at which and from which a jointly employed employee

31  worked, and that said control was assigned to the other

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    





 1  employer under the contract;

 2         (d)  The employer seeking to avoid liability pursuant

 3  to this section is expressly absolved in the written contract

 4  forming the joint employment relationship of control over the

 5  day to day job duties of the jointly employed employee who has

 6  committed a tortious act, and of the portion of the job site

 7  at which or from which the tortious conduct arose or at which

 8  and from which the jointly employed employee worked, and that

 9  said control was assigned to the other employer under the

10  contract; and

11         (e)  Complaints, allegations or incidents of any

12  tortious misconduct or workplace safety violations, regardless

13  of the source, are required to be reported to the employer

14  seeking to avoid liability pursuant to this section by all

15  other joint employers under the written contract forming the

16  joint employment relationship, and that the employer seeking

17  to avoid liability pursuant to this section did not fail to

18  take appropriate action as a result of receiving any such

19  report related to a jointly employed employee who has

20  committed a tortious act.

21         (2)  An employer seeking to avoid liability pursuant to

22  this section shall not be presumed to have actual control over

23  the day to day job duties of the jointly employed employee who

24  has committed a tortious act, nor actual control over the

25  portion of a job site at which or from which that employee

26  worked, based solely upon the fact that the employee at issue

27  is a leased employee.

28         (3)  This section shall not alter any responsibilities

29  of the joint employer who has actual control over the day to

30  day job duties of the jointly employed employee and who has

31  actual control over the portion of a job site at which or from

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    





 1  which the employee is employed, which arises from s. 768.096.

 2         Section 29.  Subsections (6), (7), and (8) are added to

 3  section 400.023, Florida Statutes, to read:

 4         400.023  Civil enforcement.--

 5         (6)  To recover attorney's fees under this section, the

 6  following conditions precedent must be met:

 7         (a)  Within 120 days after the filing of a responsive

 8  pleading or defensive motion to a complaint brought under this

 9  section and before trial, the parties or their designated

10  representatives shall meet in mediation to discuss the issues

11  of liability and damages in accordance with this paragraph for

12  the purpose of an early resolution of the matter.

13         1.  Within 60 days after the filing of the responsive

14  pleading or defensive motion, the parties shall:

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 after such

18  notice.

19         b.  Set a date for mediation.

20         c.  Prepare an order for the court that identifies the

21  mediator, the scheduled date of the mediation, and other terms

22  of the mediation. Absent any disagreement between the parties,

23  the court may issue the order for the mediation submitted by

24  the parties without a hearing.

25         2.  The mediation must be concluded within 120 days

26  after the filing of a responsive pleading or defensive motion.

27  The date may be extended only by agreement of all parties

28  subject to mediation under this subsection.

29         3.  The mediation shall be conducted in the following

30  manner:

31         a.  Each party shall ensure that all persons necessary

                                  32
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    





 1  for complete settlement authority are present at the

 2  mediation.

 3         b.  Each party shall mediate in good faith.

 4         4.  All aspects of the mediation which are not

 5  specifically established by this subsection must be conducted

 6  according to the rules of practice and procedure adopted by

 7  the Supreme Court of this state.

 8         (b)  If the parties do not settle the case pursuant to

 9  mediation, the last offer of the defendant made at mediation

10  shall be recorded by the mediator in a written report that

11  states the amount of the offer, the date the offer was made in

12  writing, and the date the offer was rejected. If the matter

13  subsequently proceeds to trial under this section and the

14  plaintiff prevails but is awarded an amount in damages,

15  exclusive of attorney's fees, which is equal to or less than

16  the last offer made by the defendant at mediation, the

17  plaintiff is not entitled to recover any attorney's fees.

18         (c)  This subsection applies only to claims for

19  liability and damages and does not apply to actions for

20  injunctive relief.

21         (d)  This subsection applies to all causes of action

22  that accrue on or after October 1, 1999.

23         (7)  Discovery of financial information for the purpose

24  of determining the value of punitive damages may not be had

25  unless the plaintiff shows the court by proffer or evidence in

26  the record that a reasonable basis exists to support a claim

27  for punitive damages.

28         (8)  In addition to any other standards for punitive

29  damages, any award of punitive damages must be reasonable in

30  light of the actual harm suffered by the resident and the

31  egregiousness of the conduct that caused the actual harm to

                                  33
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    





 1  the resident.

 2         Section 30.  Section 400.429, Florida statutes, is

 3  amended to read:

 4         400.429  Civil actions to enforce rights.--

 5         (1)  Any person or resident whose rights as specified

 6  in this part are violated shall have a cause of action against

 7  any facility owner, administrator, or staff responsible for

 8  the violation.  The action may be brought by the resident or

 9  his or her guardian, or by a person or organization acting on

10  behalf of a resident with the consent of the resident or his

11  or her guardian, or by the personal representative of the

12  estate of a deceased resident when the cause of death resulted

13  from a violation of the decedent's rights, to enforce such

14  rights. The action may be brought in any court of competent

15  jurisdiction to enforce such rights and to recover actual

16  damages, and punitive damages when malicious, wanton, or

17  willful disregard of the rights of others can be shown.  Any

18  plaintiff who prevails in any such action may be entitled to

19  recover reasonable attorney's fees, costs of the action, and

20  damages, unless the court finds that the plaintiff has acted

21  in bad faith, with malicious purpose, and that there was a

22  complete absence of a justiciable issue of either law or fact.

23  A prevailing defendant may be entitled to recover reasonable

24  attorney's fees pursuant to s. 57.105.  The remedies provided

25  in this section are in addition to and cumulative with other

26  legal and administrative remedies available to a resident or

27  to the agency.

28         (2)  To recover attorney's fees under this section, the

29  following conditions precedent must be met:

30         (a)  Within 120 days after the filing of a responsive

31  pleading or defensive motion to a complaint brought under this

                                  34
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    





 1  section and before trial, the parties or their designated

 2  representatives shall meet in mediation to discuss the issues

 3  of liability and damages in accordance with this paragraph for

 4  the purpose of an early resolution of the matter.

 5         1.  Within 60 days after the filing of the responsive

 6  pleading or defensive motion, the parties shall:

 7         a.  Agree on a mediator. If the parties cannot agree on

 8  a mediator, the defendant shall immediately notify the court,

 9  which shall appoint a mediator within 10 days after such

10  notice.

11         b.  Set a date for mediation.

12         c.  Prepare an order for the court that identifies the

13  mediator, the scheduled date of the mediation, and other terms

14  of the mediation. Absent any disagreement between the parties,

15  the court may issue the order for the mediation submitted by

16  the parties without a hearing.

17         2.  The mediation must be concluded within 120 days

18  after the filing of a responsive pleading or defensive motion.

19  The date may be extended only by agreement of all parties

20  subject to mediation under this subsection.

21         3.  The mediation shall be conducted in the following

22  manner:

23         a.  Each party shall ensure that all persons necessary

24  for complete settlement authority are present at the

25  mediation.

26         b.  Each party shall mediate in good faith.

27         4.  All aspects of the mediation which are not

28  specifically established by this subsection must be conducted

29  according to the rules of practice and procedure adopted by

30  the Supreme Court of this state.

31         (b)  If the parties do not settle the case pursuant to

                                  35
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    





 1  mediation, the last offer of the defendant made at mediation

 2  shall be recorded by the mediator in a written report that

 3  states the amount of the offer, the date the offer was made in

 4  writing, and the date the offer was rejected. If the matter

 5  subsequently proceeds to trial under this section and the

 6  plaintiff prevails but is awarded an amount in damages,

 7  exclusive of attorney's fees, which is equal to or less than

 8  the last offer made by the defendant at mediation, the

 9  plaintiff is not entitled to recover any attorney's fees.

10         (c)  This subsection applies only to claims for

11  liability and damages and does not apply to actions for

12  injunctive relief.

13         (d)  This subsection applies to all causes of action

14  that accrue on or after October 1, 1999.

15         (3)  Discovery of financial information for the purpose

16  of determining the value of punitive damages may not be had

17  unless the plaintiff shows the court by proffer or evidence in

18  the record that a reasonable basis exists to support a claim

19  for punitive damages.

20         (4)  In addition to any other standards for punitive

21  damages, any award of punitive damages must be reasonable in

22  light of the actual harm suffered by the resident and the

23  egregiousness of the conduct that caused the actual harm to

24  the resident.

25         Section 31.  Section 400.629, Florida Statutes, 1998

26  Supplement, is amended to read:

27         400.629  Civil actions to enforce rights.--

28         (1)  Any person or resident whose rights as specified

29  in this part are violated has a cause of action against any

30  adult family-care home, provider, or staff responsible for the

31  violation.  The action may be brought by the resident or the

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    





 1  resident's guardian, or by a person or organization acting on

 2  behalf of a resident with the consent of the resident or the

 3  resident's guardian, to enforce the right.  The action may be

 4  brought in any court of competent jurisdiction to enforce such

 5  rights and to recover actual damages, and punitive damages

 6  when malicious, wanton, or willful disregard of the rights of

 7  others can be shown.  Any plaintiff who prevails in any such

 8  action is entitled to recover reasonable attorney's fees,

 9  costs of the action, and damages, unless the court finds that

10  the plaintiff has acted in bad faith or with malicious purpose

11  or that there was a complete absence of a justiciable issue of

12  either law or fact.  A prevailing defendant is entitled to

13  recover reasonable attorney's fees pursuant to s. 57.105.  The

14  remedies provided in this section are in addition to other

15  legal and administrative remedies available to a resident or

16  to the agency.

17         (2)  To recover attorney's fees under this section, the

18  following conditions precedent must be met:

19         (a)  Within 120 days after the filing of a responsive

20  pleading or defensive motion to a complaint brought under this

21  section and before trial, the parties or their designated

22  representatives shall meet in mediation to discuss the issues

23  of liability and damages in accordance with this paragraph for

24  the purpose of an early resolution of the matter.

25         1.  Within 60 days after the filing of the responsive

26  pleading or defensive motion, the parties shall:

27         a.  Agree on a mediator. If the parties cannot agree on

28  a mediator, the defendant shall immediately notify the court,

29  which shall appoint a mediator within 10 days after such

30  notice.

31         b.  Set a date for mediation.

                                  37
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    





 1         c.  Prepare an order for the court that identifies the

 2  mediator, the scheduled date of the mediation, and other terms

 3  of the mediation. Absent any disagreement between the parties,

 4  the court may issue the order for the mediation submitted by

 5  the parties without a hearing.

 6         2.  The mediation must be concluded within 120 days

 7  after the filing of a responsive pleading or defensive motion.

 8  The date may be extended only by agreement of all parties

 9  subject to mediation under this subsection.

10         3.  The mediation shall be conducted in the following

11  manner:

12         a.  Each party shall ensure that all persons necessary

13  for complete settlement authority are present at the

14  mediation.

15         b.  Each party shall mediate in good faith.

16         4.  All aspects of the mediation which are not

17  specifically established by this subsection must be conducted

18  according to the rules of practice and procedure adopted by

19  the Supreme Court of this state.

20         (b)  If the parties do not settle the case pursuant to

21  mediation, the last offer of the defendant made at mediation

22  shall be recorded by the mediator in a written report that

23  states the amount of the offer, the date the offer was made in

24  writing, and the date the offer was rejected. If the matter

25  subsequently proceeds to trial under this section and the

26  plaintiff prevails but is awarded an amount in damages,

27  exclusive of attorney's fees, which is equal to or less than

28  the last offer made by the defendant at mediation, the

29  plaintiff is not entitled to recover any attorney's fees.

30         (c)  This subsection applies only to claims for

31  liability and damages and does not apply to actions for

                                  38
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    





 1  injunctive relief.

 2         (d)  This subsection applies to all causes of action

 3  that accrue on or after October 1, 1999.

 4         (3)  Discovery of financial information for the purpose

 5  of determining the value of punitive damages may not be had

 6  unless the plaintiff shows the court by proffer or evidence in

 7  the record that a reasonable basis exists to support a claim

 8  for punitive damages.

 9         (4)  In addition to any other standards for punitive

10  damages, any award of punitive damages must be reasonable in

11  light of the actual harm suffered by the resident and the

12  egregiousness of the conduct that caused the actual harm to

13  the resident.

14         Section 32.  (1)  The Office of Program Policy Analysis

15  and Governmental Accountability shall, after issuing a request

16  for proposals, contract with a national independent actuarial

17  firm to conduct an actuarial analysis, consistent with

18  generally accepted actuarial practices, of the expected

19  reduction in liability judgments, settlements, and related

20  costs resulting from the provisions of this act.  The analysis

21  shall be based on credible loss cost data derived from

22  settlement or adjudication of liability claims accruing after

23  the effective date of this act.  The analysis shall include an

24  estimate of the percentage decrease in such judgments,

25  settlements, and costs by type of coverage affected by this

26  act, including the time period when such savings or reductions

27  are expected.

28         (2)  The report shall be completed and submitted to the

29  Office of Program Policy Analysis and governmental

30  Accountability by March 1, 2007.

31         Section 33.  It is the intent of this act and the

                                  39
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    





 1  Legislature to accord the utmost comity and respect to the

 2  constitutional prerogatives of Florida's Judiciary, and

 3  nothing in this act should be construed as any effort to

 4  impinge upon those prerogatives. To that end, should any court

 5  of competent jurisdiction enter a final judgment concluding or

 6  declaring that any provision of this act improperly encroaches

 7  upon the authority of the Florida Supreme Court to determine

 8  the rules of practice and procedure in Florida courts, the

 9  Legislature hereby declares its intent that any such provision

10  be construed as a request for rule change pursuant to Article

11  5, Section 2 of the Florida Constitution and not as a

12  mandatory legislative directive.

13         Section 34.  If any provision of this act or the

14  application thereof to any person or circumstance is held

15  invalid, the invalidity does not affect other provisions or

16  applications of the act which can be given effect without the

17  invalid provision or application, and to this end the

18  provisions of this act are declared severable.

19         Section 35.  This act shall take effect October 1,

20  1999, except that sections 13 and 30 shall take effect July 1,

21  1999.

22

23

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

25  And the title is amended as follows:

26         Delete everything before the enacting clause

27

28  and insert:

29         An act relating to civil actions; creating s. 40.50,

30  F.S.; providing for instructions to juries after the jury is

31  sworn in; providing for the taking of notes under certain

                                  40
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    





 1  circumstances; providing for written questions; providing for

 2  final instructions; amending s. 44.102, F.S.; requiring that

 3  the court require mediation in certain actions for monetary

 4  damages; amending s. 44.104, F.S.; providing for voluntary

 5  trial resolution upon the agreement of parties to a civil

 6  dispute; providing for the appointment and compensation of a

 7  trial resolution judge; providing guidelines for conducting a

 8  voluntary trial resolution; providing for enforcement and

 9  appeal; amending s. 57.105, F.S.; revising conditions for

10  award of attorney's fees for presenting unsupported claims or

11  defenses; authorizing damage awards against a party for

12  unreasonable delay of litigation; authorizing the court to

13  impose additional sanctions; amending s. 57.071, F.S.;

14  providing criteria under which expert witness fees may be

15  awarded as taxable costs; providing for expedited trials;

16  amending s. 768.77, F.S.; deleting a requirement to itemize

17  future damages on verdict forms; amending s. 768.78, F.S.;

18  conforming provisions relating to alternative methods of

19  payment of damage awards to changes made by the act;

20  correcting a cross reference; creating s. 47.025, F.S.;

21  providing that certain venue provisions in a contract for

22  improvement to real property are void; specifying appropriate

23  venue for actions against resident contractors,

24  subcontractors, sub-subcontractors, and materialmen; requiring

25  the clerk of courts to report certain information on

26  negligence cases to the Office of the State Courts

27  Administrator; amending s. 95.031, F.S.; imposing a 15-year

28  statute of repose on actions brought to recover for harm

29  caused by products; exempting certain categories of products

30  from the statute of repose; providing an exception for certain

31  injuries; providing for inapplicability under particular

                                  41
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    





 1  circumstances; specifying the date by which certain actions

 2  must be brought or be otherwise barred by the statute of

 3  repose; amending s. 90.407, F.S.; providing limitations on the

 4  admissibility of subsequent remedial measures; providing

 5  exceptions; creating s. 768.1257, F.S.; requiring the finder

 6  of fact, in certain product defect actions, to consider

 7  circumstances that existed at the time of manufacture;

 8  creating s. 768.1256,F.S.; providing a government rules

 9  defense with respect to certain products liability actions;

10  providing for rebuttable presumptions; providing an exception;

11  creating s. 768.096, F.S.; providing an employer with a

12  presumption against negligent hiring under specified

13  conditions in an action for civil damages resulting from an

14  intentional tort committed by an employee; amending s.

15  768.095, F.S.; revising the conditions under which an employer

16  is immune from civil liability for disclosing information

17  regarding en employee to a prospective employer; creating s.

18  768.0705, F.S.; providing a presumption against liability for

19  criminal acts for convenience business under specified

20  conditions; amending s. 768.075, F.S.; delineating the duty

21  owed to trespassers by a person or organization owning or

22  controlling an interest in real property; providing

23  definitions; providing for the avoidance of liability to

24  discovered and undiscovered trespassers under described

25  circumstances; providing immunity from certain liability

26  arising out of the attempt to commit or the commission of a

27  felony; creating s. 768.36, F.S.; prohibiting a plaintiff from

28  recovering damages if plaintiff is more than a specified

29  percentage at fault due to the influence of alcoholic

30  beverages or drugs; creating s. 768.725, F.S.; providing for

31  evidentiary standards for an award of punitive damages;

                                  42
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    





 1  amending s. 768.72, F.S.; revising provisions with respect to

 2  claims for punitive damages in civil actions; requiring clear

 3  and convincing evidence of gross negligence or intentional

 4  misconduct to support the recovery of such damages; providing

 5  definitions; providing criteria for the imposition of punitive

 6  damages with respect to employers, principals, corporations,

 7  or other legal entities for the conduct of an employee or

 8  agent; providing for the application of the section; creating

 9  s. 768.735, F.S.; providing that ss. 768.72(2)-(4), 768.725,

10  and 768.73, F.S., relating to punitive damages, are

11  inapplicable to specified causes of action; limiting the

12  amount of punitive damages that may be awarded to a claimant

13  in certain civil actions involving abuse or arising under ch.

14  400, F.S.; creating s. 768.736, F.S.; providing that ss.

15  768.725 and 768.73, F.S., relating to punitive damages, do not

16  apply to intoxicated defendants; creating s. 768.737, F.S.;

17  providing for application of punitive damages statutes to

18  arbitration; amending s. 768.81, F.S.; providing for the

19  apportionment of damages on the basis of joint and several

20  liability when a party's fault exceeds a certain percentage;

21  amending s. 324.021, F.S.; providing the lessor of a motor

22  vehicle under certain rental agreements shall be deemed the

23  owner of the vehicle for the purpose of determining liability

24  for the operation of the vehicle within certain limits;

25  providing for the liability of the owner of a motor vehicle

26  who loans the vehicle to certain users; creating s. 768.098,

27  F.S.; limiting the liability of employers in a joint

28  employment relationship under specific circumstances;

29  providing exceptions and limitations; amending s. 400.023,

30  F.S., relating to actions brought on behalf of nursing home

31  residents; providing that a party to any such action may not

                                  43
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                                                  SENATE AMENDMENT

    Bill No. CS for SB 264

    Amendment No.    





 1  recover attorney's fees unless parties submit to mediation;

 2  specifying requirements for such mediation; providing for

 3  application; providing a standard for an award of punitive

 4  damages; amending s. 400.429, F.S.; relating to actions

 5  brought on behalf of assisted living care facility residents;

 6  providing that a party to any such action may not recover

 7  attorney's fees unless parties submit to mediation; specifying

 8  requirements for such mediation; providing for application;

 9  providing a standard for an award of punitive damages;

10  amending s. 400.469, F.S.; relating to actions brought on

11  behalf of adult family care home residents; providing that a

12  party to any such action may not recover attorney's fees

13  unless parties submit to mediation; specifying requirements

14  for such mediation; providing for application; providing a

15  standard for an award of punitive damages; requiring the

16  Office of Program Policy Analysis and Governmental

17  Accountability to contract with an actuarial firm to conduct

18  an actuarial analysis of expected reductions in judgments and

19  related costs resulting from litigation reforms; specifying

20  the basis and due date for the actuarial report; providing a

21  declaration of intent pertaining to the constitutional

22  prerogatives of the judiciary; providing for severability;

23  providing an effective date.

24

25

26

27

28

29

30

31

                                  44
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