Senate Bill 0374

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



    Florida Senate - 1999                                   SB 374

    By Senators Laurent and Webster





    308-591A-99

  1                      A bill to be entitled

  2         An act relating to civil actions; creating s.

  3         40.50, F.S.; providing for instructions to

  4         juries after the jury is sworn in; providing

  5         for the taking of notes under certain

  6         circumstances; providing for notebooks;

  7         providing for written questions; providing for

  8         final instructions; amending s. 44.102, F.S.;

  9         requiring that the court require mediation in

10         certain actions for monetary damages; creating

11         s. 44.1051, F.S.; providing for voluntary trial

12         resolution; providing for the appointment of a

13         trial resolution judge; providing for

14         compensation; providing for fees; providing for

15         the tolling of applicable statutes of

16         limitation; providing for powers of trial

17         resolution judges; providing for hearings and

18         evidence; providing for appeal; providing for

19         application; amending s. 57.105, F.S.; revising

20         conditions for award of attorney's fees for

21         presenting unsupported claims or defenses;

22         authorizing damage awards against a party for

23         unreasonable delay of litigation; authorizing

24         the court to impose additional sanctions;

25         amending s. 768.79, F.S.; providing for the

26         applicability of offers of judgment and demand

27         of judgment in cases involving multiple

28         plaintiffs; providing that subsequent offers

29         shall void previous offers; providing that

30         prior to awarding costs and fees the court

31         shall determine whether the offer was

                                  1

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






    Florida Senate - 1999                                   SB 374
    308-591A-99




  1         reasonable under the circumstances known at the

  2         time the offer was made; amending s. 57.071,

  3         F.S.; providing criteria under which expert

  4         witness fees may be awarded as taxable costs;

  5         providing for expedited trials; amending s.

  6         768.77, F.S.; deleting a requirement to itemize

  7         future damages on verdict forms; amending s.

  8         768.78, F.S.; conforming provisions relating to

  9         alternative methods of payment of damage awards

10         to changes made by the act; correcting a

11         cross-reference; creating s. 47.025, F.S.;

12         providing that certain venue provisions in a

13         contract for improvement to real property are

14         void; specifying appropriate venue for actions

15         against resident contractors, subcontractors,

16         and sub-subcontractors; requiring the clerk of

17         court to report certain information on

18         negligence cases to the Office of the State

19         Courts Administrator; amending s. 768.81, F.S.;

20         providing for the apportionment of damages on

21         the basis of joint and several liability when a

22         party's fault exceeds a certain percentage;

23         providing for the allocation of fault to a

24         nonparty; requiring that such fault must be

25         proved by a preponderance of the evidence;

26         repealing s. 768.81(5), F.S., relating to the

27         applicability of joint and several liability to

28         actions in which the total amount of damages

29         does not exceed a specified amount; requiring

30         the Department of Insurance to contract with an

31         actuarial firm to conduct an actuarial analysis

                                  2

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






    Florida Senate - 1999                                   SB 374
    308-591A-99




  1         of expected reductions in judgments and related

  2         costs resulting from litigation reforms;

  3         specifying the basis and due date for the

  4         actuarial report; providing for a review of

  5         rate filings by certain types of insurers after

  6         a specified date; providing that such

  7         provisions do not limit the refund of excessive

  8         profits by certain insurers; providing for

  9         severability; providing an effective date.

10

11  Be It Enacted by the Legislature of the State of Florida:

12

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

14  to read:

15         40.50  Jury duty and instructions in civil cases.--

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

17  sworn, the court shall instruct the jury concerning its

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

19  for submitting written questions of witnesses, and the

20  elementary legal principles that will govern the proceeding as

21  provided in this section.

22         (2)  The court shall instruct that the jurors may take

23  notes regarding the evidence and keep the notes for the

24  purpose of refreshing their memory for use during recesses and

25  deliberations. The court may provide materials suitable for

26  this purpose. The confidentiality of the notes should be

27  emphasized to the jurors. After the jury has rendered its

28  verdict, the notes shall be collected by the bailiff or clerk

29  who shall promptly destroy them.

30

31

                                  3

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






    Florida Senate - 1999                                   SB 374
    308-591A-99




  1         (3)  In any case in which the court determines that the

  2  trial could exceed 5 days, the court shall provide a notebook

  3  for each juror. Notebooks may contain:

  4         (a)  A copy of the preliminary jury instructions,

  5  including special instructions on the issues to be tried.

  6         (b)  Jurors' notes.

  7         (c)  Witnesses' names and either photographs or

  8  biographies or both.

  9         (d)  Copies of key documents admitted into evidence and

10  an index of all exhibits in evidence.

11         (e)  A glossary of technical terms.

12         (f)  A copy of the court's final instructions.

13

14  In its discretion, the court may authorize documents and

15  exhibits in evidence to be included in notebooks for use by

16  the jurors during trial to aid them in performing their

17  duties. The preliminary jury instructions should be removed,

18  discarded, and replaced by the final jury instructions before

19  the latter are read to the jury by the court.

20         (4)  The court shall permit jurors to have access to

21  their notes and, in appropriate cases, notebooks during

22  recesses and deliberations.

23         (5)  The court shall permit jurors to submit to the

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

25  Opportunity shall be given to counsel to object to such

26  questions out of the presence of the jury. The court may, as

27  appropriate, limit the submission of questions to witnesses.

28         (6)  The court shall instruct the jury that any

29  questions directed to witnesses or the court must be in

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

31  determines that the juror's question calls for admissible

                                  4

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






    Florida Senate - 1999                                   SB 374
    308-591A-99




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

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

  3  stipulation or other appropriate means, including, but not

  4  limited to, additional testimony upon such terms and

  5  limitations as the court prescribes. If the court determines

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

  7  question shall not be read or answered. If a juror's question

  8  is rejected, the jury should be told that trial rules do not

  9  permit some questions to be asked and that the jurors should

10  not attach any significance to the failure of having their

11  question asked.

12         (7)  The court has discretion to give final

13  instructions to the jury before closing arguments of counsel

14  instead of after, in order to enhance jurors' ability to apply

15  the applicable law to the facts. In that event, the court may

16  wish to withhold giving the necessary procedural and

17  housekeeping instructions until after closing arguments.

18         Section 2.  Section 44.102, Florida Statutes, is

19  amended to read:

20         44.102  Court-ordered mediation.--

21         (1)  Court-ordered mediation shall be conducted

22  according to rules of practice and procedure adopted by the

23  Supreme Court.

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

25         (a)  Must refer to mediation any filed civil action for

26  monetary damages, unless:

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

28  does not include a claim for personal injury.

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

30  debt.

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

                                  5

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






    Florida Senate - 1999                                   SB 374
    308-591A-99




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

  2  Rules.

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

  4  referral to nonbinding arbitration under this chapter.

  5         6.  The parties have agreed to binding arbitration.

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

  7  filed civil action for which mediation is not required under

  8  this section.

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

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

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

12  or other parental responsibility issues as defined in s.

13  61.13. Upon motion or request of a party, a court shall not

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

15  history of domestic violence that would compromise the

16  mediation process.

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

18  services mediation program has been established, may refer to

19  mediation all or any portion of a matter relating to

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

21  need of services.

22         (3)  Each party involved in a court-ordered mediation

23  proceeding has a privilege to refuse to disclose, and to

24  prevent any person present at the proceeding from disclosing,

25  communications made during such proceeding. All oral or

26  written communications in a mediation proceeding, other than

27  an executed settlement agreement, shall be exempt from the

28  requirements of chapter 119 and shall be confidential and

29  inadmissible as evidence in any subsequent legal proceeding,

30  unless all parties agree otherwise.

31

                                  6

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






    Florida Senate - 1999                                   SB 374
    308-591A-99




  1         (4)  There shall be no privilege and no restriction on

  2  any disclosure of communications made confidential in

  3  subsection (3) in relation to disciplinary proceedings filed

  4  against mediators pursuant to s. 44.106 and court rules, to

  5  the extent the communication is used for the purposes of such

  6  proceedings.  In such cases, the disclosure of an otherwise

  7  privileged communication shall be used only for the internal

  8  use of the body conducting the investigation. Prior to the

  9  release of any disciplinary files to the public, all

10  references to otherwise privileged communications shall be

11  deleted from the record.  When an otherwise confidential

12  communication is used in a mediator disciplinary proceeding,

13  such communication shall be inadmissible as evidence in any

14  subsequent legal proceeding.  "Subsequent legal proceeding"

15  means any legal proceeding between the parties to the

16  mediation which follows the court-ordered mediation.

17         (5)  The chief judge of each judicial circuit shall

18  maintain a list of mediators who have been certified by the

19  Supreme Court and who have registered for appointment in that

20  circuit.

21         (a)  Whenever possible, qualified individuals who have

22  volunteered their time to serve as mediators shall be

23  appointed. If a mediation program is funded pursuant to s.

24  44.108, volunteer mediators shall be entitled to reimbursement

25  pursuant to s. 112.061 for all actual expenses necessitated by

26  service as a mediator.

27         (b)  Nonvolunteer mediators shall be compensated

28  according to rules adopted by the Supreme Court. If a

29  mediation program is funded pursuant to s. 44.108, a mediator

30  may be compensated by the county or by the parties.  When a

31  party has been declared indigent or insolvent, that party's

                                  7

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






    Florida Senate - 1999                                   SB 374
    308-591A-99




  1  pro rata share of a mediator's compensation shall be paid by

  2  the county at the rate set by administrative order of the

  3  chief judge of the circuit.

  4         (6)(a)  When an action is referred to mediation by

  5  court order, the time periods for responding to an offer of

  6  settlement pursuant to s. 45.061, or to an offer or demand for

  7  judgment pursuant to s. 768.79, respectively, shall be tolled

  8  until:

  9         1.  An impasse has been declared by the mediator; or

10         2.  The mediator has reported to the court that no

11  agreement was reached.

12         (b)  Sections 45.061 and 768.79 notwithstanding, an

13  offer of settlement or an offer or demand for judgment may be

14  made at any time after an impasse has been declared by the

15  mediator, or the mediator has reported that no agreement was

16  reached.  An offer is deemed rejected as of commencement of

17  trial.

18         Section 3.  Section 44.1051, Florida Statutes, is

19  created to read:

20         44.1051  Voluntary trial resolution.--

21         (1)  Two or more parties who are involved in a civil

22  dispute may agree in writing to submit the controversy to

23  voluntary trial resolution in lieu of litigation of the issues

24  involved, prior to or after a lawsuit has been filed, provided

25  that no constitutional issue is involved.

26         (2)  If the parties have entered into an agreement that

27  provides for a method for appointment of a member of The

28  Florida Bar in good standing for more than 5 years to act as

29  trial resolution judge, the court shall proceed with the

30  appointment as prescribed.

31

                                  8

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






    Florida Senate - 1999                                   SB 374
    308-591A-99




  1         (3)  The trial resolution judge shall be compensated by

  2  the parties according to their agreement.

  3         (4)  Within 10 days after the submission of the request

  4  for binding voluntary trial resolution, the court shall

  5  provide for the appointment of the trial resolution judge.

  6  Once appointed, the trial resolution judge shall notify the

  7  parties of the time and place for the hearing.

  8         (5)  Application for voluntary trial resolution shall

  9  be filed and fees paid to the clerk of the court as if for

10  complaints initiating civil actions. The clerk of the court

11  shall handle and account for these matters in all respects as

12  if they were civil actions except that the clerk of the court

13  shall keep separate the records of the applications for

14  voluntary binding trial resolution from all other civil

15  actions.

16         (6)  Filing of the application for binding voluntary

17  trial resolution will toll the running of the applicable

18  statutes of limitation.

19         (7)  The appointed trial resolution judge shall have

20  such power to administer oaths or affirmations and to conduct

21  the proceedings as the rules of court provide. At the request

22  of any party, the trial resolution judge shall issue subpoenas

23  for the attendance of witnesses and for the production of

24  books, records, documents, and other evidence and may apply to

25  the court for orders compelling attendance and production.

26  Subpoenas shall be served and shall be enforceable as provided

27  by law.

28         (8)  The hearing shall be conducted by the trial

29  resolution judge, who may determine any question and render a

30  final decision.

31

                                  9

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






    Florida Senate - 1999                                   SB 374
    308-591A-99




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

  2  proceedings under this section.

  3         (10)  Any party may enforce a final decision rendered

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

  5  in the circuit court in the circuit in which the voluntary

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

  7  court an appeal may be taken to the appropriate appellate

  8  court. The "harmless error doctrine" shall apply in all

  9  appeals. No further review shall be permitted unless a

10  constitutional issue is raised. Factual findings determined in

11  the voluntary trial shall not be subject to appeal.

12         (11)  If no appeal is taken within the time provided by

13  rules of the Supreme Court, the decision shall be referred to

14  the presiding court judge in the case, or, if one has not been

15  assigned, to the chief judge of the circuit for assignment to

16  a circuit judge, who shall enter such orders and judgments as

17  are required to carry out the terms of decision, which orders

18  shall be enforceable by the contempt powers of the court and

19  for which judgment executions shall issue on request of a

20  party.

21         (12)  This section does not apply to any dispute

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

23  any dispute that involves the rights of a person who is not a

24  party to the voluntary trial resolution.

25         Section 4.  Section 57.105, Florida Statutes, is

26  amended to read:

27         57.105  Attorney's fee; sanctions for raising unfounded

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

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

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

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

                                  10

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






    Florida Senate - 1999                                   SB 374
    308-591A-99




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

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

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

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

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

  6  before trial:

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

  8  to establish the claim or defense; or

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

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

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

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

13  provided,

14

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

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

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

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

19  claimant pursuant to this subsection finds that there was a

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

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

22  interest.

23         (2)  Subsection (1) does not apply if the court

24  determines that the claim or defense was initially presented

25  to the court as a good-faith attempt with a reasonable

26  probability of changing then-existing law as it applied to the

27  material facts.

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

29  which the moving party proves by a preponderance of the

30  evidence that any action taken by the opposing party,

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

                                  11

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






    Florida Senate - 1999                                   SB 374
    308-591A-99




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

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

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

  4  purpose of unreasonable delay, the court shall award damages

  5  to the moving party for the time necessitated by the conduct

  6  in question.

  7         (4)  The court also may impose such additional

  8  sanctions or other remedies as are just and warranted under

  9  the circumstances of the particular case, including, but not

10  limited to, contempt of court, award of taxable costs,

11  striking of a claim or defense, or dismissal of the pleading.

12         (5)(2)  If a contract contains a provision allowing

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

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

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

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

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

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

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

20  contracts entered into on said date or thereafter.

21         Section 5.  Subsections (3), (5), and (7) of section

22  768.79, Florida Statutes, are amended to read:

23         768.79  Offer of judgment and demand for judgment.--

24         (3)  The offer shall be served upon the party to whom

25  it is made, but it shall not be filed unless it is accepted or

26  unless filing is necessary to enforce the provisions of this

27  section. In any case involving multiple party plaintiffs or

28  multiple party defendants, an offer shall specify its

29  applicability to each party and may specify any conditions

30  thereof. Each individual party may thereafter accept or reject

31  the offer as the offer applies to such party.

                                  12

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






    Florida Senate - 1999                                   SB 374
    308-591A-99




  1         (5)  An offer may be withdrawn in writing which is

  2  served before the date a written acceptance is filed. Once

  3  withdrawn, an offer is void. A subsequent offer to a party

  4  shall have the effect of voiding any previous offer to that

  5  party.

  6         (7)(a)  Prior to awarding costs and fees pursuant to

  7  this section, the court shall determine whether the offer was

  8  reasonable under the circumstances known at the time the offer

  9  was made. If a party is entitled to costs and fees pursuant to

10  the provisions of this section, the court may, in its

11  discretion, determine that an offer was not made in good

12  faith. In such case, the court may disallow an award of costs

13  and attorney's fees.

14         (b)  When determining the reasonableness of an award of

15  attorney's fees pursuant to this section, the court shall

16  consider, along with all other relevant criteria, the

17  following additional factors:

18         1.  The then apparent merit or lack of merit in the

19  claim.

20         2.  The number and nature of offers made by the

21  parties.

22         3.  The closeness of questions of fact and law at

23  issue.

24         4.  Whether the person making the offer had

25  unreasonably refused to furnish information necessary to

26  evaluate the reasonableness of such offer.

27         5.  Whether the suit was in the nature of a test case

28  presenting questions of far-reaching importance affecting

29  nonparties.

30

31

                                  13

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






    Florida Senate - 1999                                   SB 374
    308-591A-99




  1         6.  The amount of the additional delay cost and expense

  2  that the person making the offer reasonably would be expected

  3  to incur if the litigation should be prolonged.

  4         Section 6.  Section 57.071, Florida Statutes, is

  5  amended to read:

  6         57.071  Costs; what taxable.--

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

  8  shall also be allowed:

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

10  bonds or other security furnished by such party.

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

12  transcribing proceedings and depositions, including opening

13  statements and arguments by counsel.

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

15  provided to such party, notwithstanding any other provision of

16  law to the contrary.

17         (2)  Expert witness fees shall not be awarded as

18  taxable costs unless:

19         (a)  The party retaining the expert witness files a

20  written notice with the court and with each opposing party

21  within 30 days after the entry of an order setting the trial

22  date, which notice shall specify the expertise and experience

23  of the expert, the rate of compensation of the expert witness,

24  the subject matters or issues on which the expert is expected

25  to render an opinion, and an estimate of the overall fees of

26  the expert witness, including the fee for trial testimony. If

27  the rate of compensation is hourly, the estimated overall fee

28  may be stated in terms of estimated hours; and

29         (b)  The party retaining the expert witness furnishes

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

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

                                  14

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






    Florida Senate - 1999                                   SB 374
    308-591A-99




  1  factual basis of the opinions, including documentary evidence

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

  3  report shall be filed at least 10 days prior to discovery

  4  cut-off, 45 days prior to the trial, or as otherwise

  5  determined by the court.

  6         Section 7.  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 in the trial shall be completed

15  within 60 days.

16         (2)  All interrogatories and requests for production

17  must be served within 10 days and all responses must be served

18  within 20 days after receipt.

19         (3)  The court shall determine the number of

20  depositions required.

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

22         (5)  The case must be tried within 30 days after the

23  60-day discovery cut-off.

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

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

26         (8)  The plaintiff will have 3 hours to present its

27  case, including its opening, all of its testimony and

28  evidence, and its closing.

29         (9)  The defendant will have 3 hours to present its

30  case, including its opening, all of its testimony and

31  evidence, and its closing.

                                  15

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






    Florida Senate - 1999                                   SB 374
    308-591A-99




  1         (10)  The jury will be given "plain language" jury

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

  3  language" jury verdict form. The jury instructions and verdict

  4  form must be agreed to by the parties.

  5         (11)  The parties will be permitted to introduce a

  6  written report of any expert and the expert's curriculum vitae

  7  instead of calling the expert to testify live at trial.

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

  9  depositions, including video depositions, regardless of where

10  the deponent lives or whether the deponent is available to

11  testify.

12         (13)  The Florida Evidence Code and the Florida Rules

13  of Civil Procedure will apply.

14         (14)  There will be no continuances of the trial absent

15  extraordinary circumstances.

16         Section 8.  Section 768.77, Florida Statutes, is

17  amended to read:

18         768.77  Itemized verdict.--

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

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

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

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

23  into the following categories of damages:

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

25  economic losses;

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

27  noneconomic losses; and

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

29  damages, if applicable.

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

31  damages, shall be further itemized into amounts intended to

                                  16

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






    Florida Senate - 1999                                   SB 374
    308-591A-99




  1  compensate for losses which have been incurred prior to the

  2  verdict and into amounts intended to compensate for losses to

  3  be incurred in the future. Future damages itemized under

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

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

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

  7  itemizing amounts intended to compensate for future losses,

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

  9  which such amounts are intended to provide compensation.

10         Section 9.  Paragraph (a) of subsection (1) of section

11  768.78, Florida Statutes, is amended to read:

12         768.78  Alternative methods of payment of damage

13  awards.--

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

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

16  to compensate the claimant includes for future economic losses

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

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

19  of the following means, unless an alternative method of

20  payment of damages is provided in this section:

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

22  damages so assessed, with future economic losses and expenses

23  reduced to present value; or

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

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

26  determines that manifest injustice would result to any party,

27  enter a judgment ordering future economic damages, as itemized

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

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

30  lump-sum payment.

31

                                  17

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






    Florida Senate - 1999                                   SB 374
    308-591A-99




  1         Section 10.  Section 47.025, Florida Statutes, is

  2  created to read:

  3         47.025  Actions against contractors.--Any venue

  4  provision in a contract for improvement to real property which

  5  requires a legal action against a resident contractor,

  6  subcontractor, or sub-subcontractor, as defined in part I of

  7  chapter 713, to be brought outside this state is void as a

  8  matter of public policy if enforcement would be unreasonable

  9  and unjust. To the extent that the venue provision in the

10  contract is void under this section, any legal action arising

11  out of that contract shall be brought only in this state in

12  the county where the defendant resides, where the cause of

13  action accrued, or where the property in litigation is

14  located, unless the parties agree to the contrary.

15         Section 11.  Through the state's uniform case reporting

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

17  State Courts Administrator information from each settlement or

18  jury verdict and final judgment in negligence cases as defined

19  in section 768.81(4), Florida Statutes, as the President of

20  the Senate and the Speaker of the House of Representatives

21  deem necessary from time to time. The information shall

22  include, but need not be limited to:  the name of each

23  plaintiff and defendant; the verdict; the percentage of fault

24  of each; the amount of economic damages and noneconomic

25  damages awarded to each plaintiff, identifying those damages

26  that are to be paid jointly and severally and by which

27  defendants; and the amount of any punitive damages to be paid

28  by each defendant.

29         Section 12.  Subsection (3) of section 768.81, Florida

30  Statutes, is amended, and subsection (5) of that section is

31  repealed, to read:

                                  18

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






    Florida Senate - 1999                                   SB 374
    308-591A-99




  1         768.81  Comparative fault.--

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

  3  section applies, the court shall enter judgment against each

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

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

  6  liability; provided that with respect to any party whose

  7  percentage of fault equals or exceeds that of a particular

  8  claimant and whose fault exceeds 33 percent, the court shall

  9  enter judgment with respect to economic damages against that

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

11  liability.

12         (a)  In order to allocate any or all fault to a

13  nonparty, a defendant must affirmatively plead the fault of a

14  nonparty and, absent a showing of good cause, identify the

15  nonparty, if known, or describe the nonparty as specifically

16  as practicable, either by motion or in the initial responsive

17  pleading when defenses are first presented, subject to

18  amendment any time before trial in accordance with the Florida

19  Rules of Civil Procedure.

20         (b)  In order to allocate any or all fault to a

21  nonparty and include the named or unnamed nonparty on the

22  verdict form for purposes of apportioning damages, a defendant

23  must prove at trial, by a preponderance of the evidence, any

24  or all fault of the nonparty in causing the plaintiff's

25  injuries.

26         (5)  APPLICABILITY OF JOINT AND SEVERAL

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

28  the doctrine of joint and several liability applies to all

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

30  $25,000.

31

                                  19

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






    Florida Senate - 1999                                   SB 374
    308-591A-99




  1         Section 13.  (1)  The Department of Insurance shall,

  2  after issuing a request for proposals, contract with a

  3  national independent actuarial firm to conduct an actuarial

  4  analysis, consistent with generally accepted actuarial

  5  practices, of the expected reduction in liability judgments,

  6  settlements, and related costs resulting from the provisions

  7  of this act. The analysis must be based on credible loss-cost

  8  data derived from the settlement or adjudication of liability

  9  claims, other than liability claims insured under private

10  passenger automobile insurance or personal lines residential

11  property insurance, accruing after October 1, 1999. The

12  analysis must include an estimate of the percentage decrease

13  in such judgments, settlements, and costs by type of coverage

14  affected by this act, including the time period when such

15  savings or reductions are expected.

16         (2)  The report must be completed and submitted to the

17  Department of Insurance by March 1, 2001.

18         (3)  After March 1, 2001, the Department of Insurance

19  shall review the filed rates of insurers and underwriting

20  profits and losses for Florida liability insurance businesses

21  and shall require any prospective rate modifications that the

22  department deems necessary, consistent with the applicable

23  rating law, in order to cause the rates of any specific

24  insurer to comply with the applicable rating law. The

25  department shall require each liability insurer's first rate

26  filing after March 1, 2001, other than rate filings for

27  private passenger automobile insurance or personal lines

28  residential property insurance, to include specific data on

29  the impact of this act on the insurer's liability judgments,

30  settlements, and costs for the purpose of enabling the

31

                                  20

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






    Florida Senate - 1999                                   SB 374
    308-591A-99




  1  department and the Legislature to accurately monitor and

  2  evaluate the effects of this act.

  3         (4)  The report under subsection (1) is admissible in

  4  any proceedings relating to a liability insurance rate filing

  5  if the actuary who prepared the report is made available by

  6  the department to testify regarding the report's preparation

  7  and validity. Each party shall otherwise bear its own cost of

  8  any such proceeding.

  9         (5)  This section does not limit the authority of the

10  department to order an insurer to refund excessive profits, as

11  provided in sections 627.066 and 627.215, Florida Statutes.

12         Section 14.  If any provision of this act or the

13  application thereof to any person or circumstance is held

14  invalid, the invalidity does not affect other provisions or

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

16  invalid provision or application, and to this end the

17  provisions of this act are declared severable.

18         Section 15.  This act shall take effect October 1,

19  1999.

20

21

22

23

24

25

26

27

28

29

30

31

                                  21

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






    Florida Senate - 1999                                   SB 374
    308-591A-99




  1            *****************************************

  2                          SENATE SUMMARY

  3    Revises various laws governing civil litigation. Provides
      that the court may allow members of a jury to take notes
  4    during trial and submit written questions to witnesses or
      the judge. Requires that the court, with certain
  5    exceptions, require mediation for any civil action for
      monetary damages. Provides for binding voluntary trial
  6    resolution of certain civil disputes. Revises
      requirements for the court in awarding attorney's fees
  7    when it finds that an attorney has raised an unfounded
      claim or defense. Requires that the court award damages
  8    if the moving party proves by a preponderance of the
      evidence that an action by the opposing party was taken
  9    for the purpose of unreasonable delay. Provides that
      expert witness fees may not be awarded unless the party
10    that retains the witness gives prior notice and estimates
      the witness fee. Provides for the court to conduct an
11    expedited trial upon the stipulation of the parties to a
      civil case. Provides certain venue restrictions with
12    respect to an action against a contractor. Requires that
      the clerk of the court report information on negligence
13    cases to the Office of the State Courts Administrator.
      Requires that the court apportion economic damages on the
14    basis of joint and several liability if a party's fault
      exceeds 33 percent. (See bill for details.)
15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

                                  22