Senate Bill 0374c1

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    Florida Senate - 1999                            CS for SB 374

    By the Committee on Judiciary and Senators Laurent and Webster





    308-1640A-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 consider whether the proposal was

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  1         reasonably rejected; amending s. 57.071, F.S.;

  2         providing criteria under which expert witness

  3         fees may be awarded as taxable costs; providing

  4         for expedited trials; amending s. 768.77, F.S.;

  5         deleting a requirement to itemize future

  6         damages on verdict forms; amending s. 768.78,

  7         F.S.; providing for proposals for structured

  8         settlements; requiring structured-settlement

  9         discussion in settlement negotiations;

10         requiring assignment of liability for payment

11         to a third-party assignee selected by the

12         plaintiff; granting the plaintiff the right to

13         select a settlement broker; providing for

14         findings in orders approving or adopting a

15         settlement; conforming provisions relating to

16         alternative methods of payment of damage awards

17         to changes made by the act; correcting a

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

19         providing that certain venue provisions in a

20         contract for improvement to real property are

21         void; specifying appropriate venue for actions

22         against resident contractors, subcontractors,

23         sub-subcontractors, and materialmen; requiring

24         the clerk of court to report certain

25         information on negligence cases to the Office

26         of the State Courts Administrator; amending s.

27         768.81, F.S.; providing for the apportionment

28         of damages on the basis of joint and several

29         liability when a party's fault exceeds a

30         certain percentage; providing for the

31         allocation of fault to a nonparty; requiring

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  1         that such fault must be proved by a

  2         preponderance of the evidence; providing for a

  3         judgment based on joint and several liability

  4         for certain actions arising out of medical

  5         malpractice; repealing s. 768.81(5), F.S.,

  6         relating to the applicability of joint and

  7         several liability to actions in which the total

  8         amount of damages does not exceed a specified

  9         amount; requiring the Department of Insurance

10         to contract with an actuarial firm to conduct

11         an actuarial analysis of expected reductions in

12         judgments and related costs resulting from

13         litigation reforms; specifying the basis and

14         due date for the actuarial report; providing

15         for a review of rate filings by certain types

16         of insurers after a specified date; providing

17         that such provisions do not limit the refund of

18         excessive profits by certain insurers;

19         providing for severability; providing an

20         effective date.

21

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

23

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

25  to read:

26         40.50  Jury duty and instructions in civil cases.--

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

28  sworn, the court shall instruct the jury concerning its

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

30  for submitting written questions of witnesses, and the

31

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  1  elementary legal principles that will govern the proceeding as

  2  provided in this section.

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

  4  notes regarding the evidence and keep the notes for the

  5  purpose of refreshing their memory for use during recesses and

  6  deliberations. The court may provide materials suitable for

  7  this purpose. The confidentiality of the notes should be

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

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

10  who shall promptly destroy them.

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

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

13  for each juror. Notebooks may contain:

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

15  including special instructions on the issues to be tried.

16         (b)  Jurors' notes.

17         (c)  Witnesses' names and either photographs or

18  biographies or both.

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

20  an index of all exhibits in evidence.

21         (e)  A glossary of technical terms.

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

23

24  In its discretion, the court may authorize documents and

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

26  the jurors during trial to aid them in performing their

27  duties. The preliminary jury instructions should be removed,

28  discarded, and replaced by the final jury instructions before

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

30

31

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

  2  their notes and, in appropriate cases, notebooks during

  3  recesses and deliberations.

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

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

  6  Opportunity shall be given to counsel to object to such

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

  8  appropriate, limit the submission of questions to witnesses.

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

10  questions directed to witnesses or the court must be in

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

12  determines that the juror's question calls for admissible

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

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

15  stipulation or other appropriate means, including, but not

16  limited to, additional testimony upon such terms and

17  limitations as the court prescribes. If the court determines

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

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

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

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

22  not attach any significance to the failure of having their

23  question asked.

24         (7)  The court has discretion to give final

25  instructions to the jury before closing arguments of counsel

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

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

28  wish to withhold giving the necessary procedural and

29  housekeeping instructions until after closing arguments.

30         Section 2.  Section 44.102, Florida Statutes, is

31  amended to read:

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  1         44.102  Court-ordered mediation.--

  2         (1)  Court-ordered mediation shall be conducted

  3  according to rules of practice and procedure adopted by the

  4  Supreme Court.

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

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

  7  monetary damages, unless:

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

  9  does not include a claim for personal injury.

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

11  debt.

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

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

14  Rules.

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

16  referral to nonbinding arbitration under this chapter.

17         6.  The parties have agreed to binding arbitration.

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

19  filed civil action for which mediation is not required under

20  this section.

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

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

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

24  or other parental responsibility issues as defined in s.

25  61.13. Upon motion or request of a party, a court shall not

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

27  history of domestic violence that would compromise the

28  mediation process.

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

30  services mediation program has been established, may refer to

31  mediation all or any portion of a matter relating to

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

  2  need of services.

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

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

  5  prevent any person present at the proceeding from disclosing,

  6  communications made during such proceeding. All oral or

  7  written communications in a mediation proceeding, other than

  8  an executed settlement agreement, shall be exempt from the

  9  requirements of chapter 119 and shall be confidential and

10  inadmissible as evidence in any subsequent legal proceeding,

11  unless all parties agree otherwise.

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

13  any disclosure of communications made confidential in

14  subsection (3) in relation to disciplinary proceedings filed

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

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

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

18  privileged communication shall be used only for the internal

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

20  release of any disciplinary files to the public, all

21  references to otherwise privileged communications shall be

22  deleted from the record.  When an otherwise confidential

23  communication is used in a mediator disciplinary proceeding,

24  such communication shall be inadmissible as evidence in any

25  subsequent legal proceeding.  "Subsequent legal proceeding"

26  means any legal proceeding between the parties to the

27  mediation which follows the court-ordered mediation.

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

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

30  Supreme Court and who have registered for appointment in that

31  circuit.

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  1         (a)  Whenever possible, qualified individuals who have

  2  volunteered their time to serve as mediators shall be

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

  4  44.108, volunteer mediators shall be entitled to reimbursement

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

  6  service as a mediator.

  7         (b)  Nonvolunteer mediators shall be compensated

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

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

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

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

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

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

14  chief judge of the circuit.

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

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

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

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

19  until:

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

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

22  agreement was reached.

23         (b)  Sections 45.061 and 768.79 notwithstanding, an

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

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

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

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

28  trial.

29         Section 3.  Section 44.1051, Florida Statutes, is

30  created to read:

31         44.1051  Voluntary trial resolution.--

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

  2  dispute may agree in writing to submit the controversy to

  3  voluntary trial resolution in lieu of litigation of the issues

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

  5  that no constitutional issue is involved.

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

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

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

  9  trial resolution judge, the court shall proceed with the

10  appointment as prescribed.

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

12  the parties according to their agreement.

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

14  for binding voluntary trial resolution, the court shall

15  provide for the appointment of the trial resolution judge.

16  Once appointed, the trial resolution judge shall notify the

17  parties of the time and place for the hearing.

18         (5)  Application for voluntary trial resolution shall

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

20  complaints initiating civil actions. The clerk of the court

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

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

23  shall keep separate the records of the applications for

24  voluntary binding trial resolution from all other civil

25  actions.

26         (6)  Filing of the application for binding voluntary

27  trial resolution will toll the running of the applicable

28  statutes of limitation.

29         (7)  The appointed trial resolution judge shall have

30  such power to administer oaths or affirmations and to conduct

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

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

  2  for the attendance of witnesses and for the production of

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

  4  the court for orders compelling attendance and production.

  5  Subpoenas shall be served and shall be enforceable as provided

  6  by law.

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

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

  9  final decision.

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

11  proceedings under this section.

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

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

14  in the circuit court in the circuit in which the voluntary

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

16  court an appeal may be taken to the appropriate appellate

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

18  appeals. No further review shall be permitted unless a

19  constitutional issue is raised. Factual findings determined in

20  the voluntary trial shall not be subject to appeal.

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

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

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

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

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

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

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

28  for which judgment executions shall issue on request of a

29  party.

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

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

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

  2  party to the voluntary trial resolution.

  3         Section 4.  Section 57.105, Florida Statutes, is

  4  amended to read:

  5         57.105  Attorney's fee; sanctions for raising unfounded

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

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

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

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

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

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

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

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

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

15  before trial:

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

17  to establish the claim or defense; or

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

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

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

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

22  provided,

23

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

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

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

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

28  claimant pursuant to this subsection finds that there was a

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

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

31  interest.

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

  2  determines that the claim or defense was initially presented

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

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

  5  material facts.

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

  7  which the moving party proves by a preponderance of the

  8  evidence that any action taken by the opposing party,

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

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

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

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

13  purpose of unreasonable delay, the court shall award damages

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

15  in question.

16         (4)  The court also may impose such additional

17  sanctions or other remedies as are just and warranted under

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

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

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

21         (5)(2)  If a contract contains a provision allowing

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

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

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

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

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

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

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

29  contracts entered into on said date or thereafter.

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

31  768.79, Florida Statutes, are amended to read:

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  1         768.79  Offer of judgment and demand for judgment.--

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

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

  4  unless filing is necessary to enforce the provisions of this

  5  section. In any case involving multiple party plaintiffs or

  6  multiple party defendants, an offer shall specify its

  7  applicability to each party and may specify any conditions

  8  thereof. Each individual party may thereafter accept or reject

  9  the offer as the offer applies to such party.

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

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

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

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

14  party.

15         (7)(a)  If a party is entitled to costs and fees

16  pursuant to the provisions of this section, the court may, in

17  its discretion, determine that an offer was not made in good

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

19  and attorney's fees.

20         (b)  When determining the entitlement to and

21  reasonableness of an award of attorney's fees pursuant to this

22  section, the court shall consider, along with all other

23  relevant criteria, the following additional factors:

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

25  claim.

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

27  parties.

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

29  issue.

30         4.  Whether the proposal was reasonably rejected.

31

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  1         5.4.  Whether the person making the offer had

  2  unreasonably refused to furnish information necessary to

  3  evaluate the reasonableness of such offer.

  4         6.5.  Whether the suit was in the nature of a test case

  5  presenting questions of far-reaching importance affecting

  6  nonparties.

  7         7.6.  The amount of the additional delay cost and

  8  expense that the person making the offer reasonably would be

  9  expected to incur if the litigation should be prolonged.

10         Section 6.  Section 57.071, Florida Statutes, is

11  amended to read:

12         57.071  Costs; what taxable.--

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

14  shall also be allowed:

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

16  bonds or other security furnished by such party.

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

18  transcribing proceedings and depositions, including opening

19  statements and arguments by counsel.

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

21  provided to such party, notwithstanding any other provision of

22  law to the contrary.

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

24  taxable costs unless:

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

26  written notice with the court and with each opposing party

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

28  date, which notice shall specify the expertise and experience

29  of the expert, the rate of compensation of the expert witness,

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

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

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

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

  3  may be stated in terms of estimated hours; and

  4         (b)  The party retaining the expert witness furnishes

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

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

  7  factual basis of the opinions, including documentary evidence

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

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

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

11  determined by the court.

12         Section 7.  Expedited trials.--Upon the joint

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

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

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

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

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

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

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

20         (1)  All discovery in the trial shall be completed

21  within 60 days after the court enters an order adopting the

22  joint expedited trial stipulation.

23         (2)  All interrogatories and requests for production

24  must be served within 10 days after the court enters an order

25  adopting the joint expedited trial stipulation, and all

26  responses must be served within 20 days after receipt.

27         (3)  The court shall determine the number of

28  depositions required.

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

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

31  60-day discovery cut-off.

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

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

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

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

  5  evidence, and its closing.

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

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

  8  evidence, and its closing.

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

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

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

12  form must be agreed to by the parties.

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

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

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

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

17  depositions, including video depositions, regardless of where

18  the deponent lives or whether the deponent is available to

19  testify.

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

21  of Civil Procedure will apply.

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

23  extraordinary circumstances.

24         Section 8.  Section 768.77, Florida Statutes, is

25  amended to read:

26         768.77  Itemized verdict.--

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

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

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

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

31  into the following categories of damages:

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

  2  economic losses;

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

  4  noneconomic losses; and

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

  6  damages, if applicable.

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

  8  damages, shall be further itemized into amounts intended to

  9  compensate for losses which have been incurred prior to the

10  verdict and into amounts intended to compensate for losses to

11  be incurred in the future. Future damages itemized under

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

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

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

15  itemizing amounts intended to compensate for future losses,

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

17  which such amounts are intended to provide compensation.

18         Section 9.  Present subsection (1) of section 768.78,

19  Florida Statutes, is amended and redesignated as subsection

20  (2), present subsection (2) is redesignated as subsection (3),

21  and a new subsection (1) is added to that section to read:

22         768.78  Alternative methods of payment of damage

23  awards.--

24         (1)  In both prejudgment and post-judgment cases, the

25  parties shall specifically discuss the option and advantages

26  for the plaintiff of settlement through use of structured

27  periodic payments.  If, in connection with a settlement, the

28  plaintiff chooses to receive payment in the form of periodic

29  payments, the defendant or the defendant's liability carrier

30  is obligated to provide such payments, and the following

31  apply:

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  1         (a)  To the extent that the liability for payment of

  2  damages to the plaintiff qualifies for assignment under

  3  Section 130, or any successor section, of the Internal Revenue

  4  Code, as amended from time to time, the defendant or the

  5  defendant's liability carrier shall assign the liability to

  6  make such periodic payments to a third party assignee selected

  7  by the plaintiff.

  8         (b)  Once a structured settlement is agreed to by the

  9  parties, the defendant or the defendant's liability carrier

10  may not withdraw from the agreement because of the plaintiff's

11  choice of third-party assignee.

12         (c)  The plaintiff has the right to select a licensed

13  structured-settlement broker to place the structured

14  settlement.

15         (d)  Any order approving or adopting a settlement to

16  which this subsection applies must include a finding that the

17  settlement complies with this subsection.

18         (e)  This subsection does not apply to cases the

19  settlement of which is under $50,000.

20         (f)  Nothing in this subsection creates an additional

21  cause of action against the defendant or his attorneys.

22         (g)  This subsection applies only to cases impacted by

23  s. 104(a)(1), (2), and (3) of the Internal Revenue Code.

24         (2)(1)(a)  In any action to which this part applies in

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

26  to compensate the claimant includes for future economic losses

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

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

29  of the following means, unless an alternative method of

30  payment of damages is provided in this section:

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

  2  damages so assessed, with future economic losses and expenses

  3  reduced to present value; or

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

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

  6  determines that manifest injustice would result to any party,

  7  enter a judgment ordering future economic damages, as itemized

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

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

10  lump-sum payment.

11         (b)  In entering a judgment ordering the payment of

12  such future damages by periodic payments, the court shall make

13  a specific finding of the dollar amount of periodic payments

14  which will compensate the judgment creditor for these future

15  damages after offset for collateral sources.  The total dollar

16  amount of the periodic payments shall equal the dollar amount

17  of all such future damages before any reduction to present

18  value, less any attorney's fees payable from future damages in

19  accordance with paragraph (f).  The period of time over which

20  the periodic payments shall be made is the period of years

21  determined by the trier of fact in arriving at its itemized

22  verdict and shall not be extended if the plaintiff lives

23  beyond the determined period.  If the claimant has been

24  awarded damages to be discharged by periodic payments and the

25  claimant dies prior to the termination of the period of years

26  during which periodic payments are to be made, the remaining

27  liability of the defendant, reduced to present value, shall be

28  paid into the estate of the claimant in a lump sum.  The court

29  may order that the payments be equal or vary in amount,

30  depending upon the need of the claimant.

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  1         (c)  As a condition to authorizing periodic payments of

  2  future damages, the court shall require the defendant to post

  3  a bond or security or otherwise to assure full payment of

  4  these damages awarded by the judgment.  A bond is not adequate

  5  unless it is written by a company authorized to do business in

  6  this state and is rated A+ by Best's.  If the defendant is

  7  unable to adequately assure full payment of the damages, the

  8  court shall order that all damages be paid to the claimant in

  9  a lump sum pursuant to the verdict.  No bond may be canceled

10  or be subject to cancellation unless at least 60 days' advance

11  written notice is filed with the court and the judgment

12  creditor. Upon termination of periodic payments, the court

13  shall order the return of the security, or so much as remains,

14  to the judgment debtor.

15         (d)1.  In the event that the court finds that the

16  judgment debtor has exhibited a continuing pattern of failing

17  to timely make the required periodic payments, the court

18  shall:

19         a.  Order that all remaining amounts of the award be

20  paid by lump sum within 30 days after entry of the order;

21         b.  Order that, in addition to the required periodic

22  payments, the judgment debtor pay the claimant all damages

23  caused by the failure to timely make periodic payments,

24  including court costs and attorney's fees; or

25         c.  Enter other orders or sanctions as appropriate to

26  protect the judgment creditor.

27         2.  If it appears that the judgment debtor may be

28  insolvent or that there is a substantial risk that the

29  judgment debtor may not have the financial responsibility to

30  pay all amounts due and owing the judgment creditor, the court

31  may:

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  1         a.  Order additional security;

  2         b.  Order that the balance of payments due be placed in

  3  trust for the benefit of the claimant;

  4         c.  Order that all remaining amounts of the award be

  5  paid by lump sum within 30 days after entry of the order; or

  6         d.  Order such other protection as may be necessary to

  7  assure the payment of the remaining balance of the judgment.

  8         (e)  The judgment providing for payment of future

  9  damages by periodic payments shall specify the recipient or

10  recipients of the payments, the dollar amounts of the

11  payments, the interval between payments, and the number of

12  payments or the period of time over which payments shall be

13  made.  Periodic payments shall be subject to modification only

14  as specified in this subsection.

15         (f)  Claimant's attorney's fee, if payable from the

16  judgment, shall be based upon the total judgment, adding all

17  amounts awarded for past and future damages.  The attorney's

18  fee shall be paid from past and future damages in the same

19  proportion. If a claimant has agreed to pay her or his

20  attorney's fees on a contingency fee basis, the claimant shall

21  be responsible for paying the agreed percentage calculated

22  solely on the basis of that portion of the award not subject

23  to periodic payments.  The remaining unpaid portion of the

24  attorney's fees shall be paid in a lump sum by the defendant,

25  who shall receive credit against future payments for this

26  amount.  However, the credit against each future payment is

27  limited to an amount equal to the contingency fee percentage

28  of each periodic payment.  Any provision of this paragraph may

29  be modified by the agreement of all interested parties.

30

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  1         (g)  Nothing in this subsection shall preclude any

  2  other method of payment of awards, if such method is consented

  3  to by the parties.

  4         Section 10.  Section 47.025, Florida Statutes, is

  5  created to read:

  6         47.025  Actions against contractors.--Any venue

  7  provision in a contract for improvement to real property which

  8  requires legal action involving a resident contractor,

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

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

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

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

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

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

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

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

17  parties stipulate to another venue.

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

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

20  State Courts Administrator information from each settlement or

21  jury verdict and final judgment in negligence cases as defined

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

23  the Senate and the Speaker of the House of Representatives

24  deem necessary from time to time. The information shall

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

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

27  of each; the amount of economic damages and noneconomic

28  damages awarded to each plaintiff, identifying those damages

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

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

31  by each defendant.

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  1         Section 12.  Subsections (3) and (6) of section 768.81,

  2  Florida Statutes, are amended, and subsection (5) of that

  3  section is repealed, to read:

  4         768.81  Comparative fault.--

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

  6  section applies, the court shall enter judgment against each

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

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

  9  liability; provided that with respect to any party whose

10  percentage of fault equals or exceeds that of a particular

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

12  enter judgment with respect to economic damages against that

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

14  liability.

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

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

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

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

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

20  pleading when defenses are first presented, subject to

21  amendment any time before trial in accordance with the Florida

22  Rules of Civil Procedure.

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

24  nonparty and include the named or unnamed nonparty on the

25  verdict form for purposes of apportioning damages, a defendant

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

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

28  injuries.

29         (5)  APPLICABILITY OF JOINT AND SEVERAL

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

31  the doctrine of joint and several liability applies to all

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

  2  $25,000.

  3         (6)  Notwithstanding anything in law to the contrary,

  4  in an action for damages for personal injury or wrongful death

  5  arising out of medical malpractice, whether in contract or

  6  tort, when an apportionment of damages pursuant to this

  7  section is attributed to a teaching hospital as defined in s.

  8  408.07, the court shall enter judgment against the teaching

  9  hospital on the basis of such party's percentage of fault and

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

11  liability. In all actions for damages for personal injury or

12  wrongful death arising out of medical malpractice, whether in

13  contract or tort, with respect to a party that is not a

14  teaching hospital and whose percentage of fault equals or

15  exceeds that of a particular claimant, the court shall enter

16  judgment with respect to economic damages against that party

17  on the basis of the doctrine of joint and several liability,

18  regardless of that party's percentage of fault.

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

20  after issuing a request for proposals, contract with a

21  national independent actuarial firm to conduct an actuarial

22  analysis, consistent with generally accepted actuarial

23  practices, of the expected reduction in liability judgments,

24  settlements, and related costs resulting from the provisions

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

26  data derived from the settlement or adjudication of liability

27  claims, other than liability claims insured under private

28  passenger automobile insurance or personal lines residential

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

30  analysis must include an estimate of the percentage decrease

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

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

  2  savings or reductions are expected.

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

  4  Department of Insurance by March 1, 2001.

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

  6  shall review the filed rates of insurers and underwriting

  7  profits and losses for Florida liability insurance businesses

  8  and shall require any prospective rate modifications that the

  9  department deems necessary, consistent with the applicable

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

11  insurer to comply with the applicable rating law. The

12  department shall require each liability insurer's first rate

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

14  private passenger automobile insurance or personal lines

15  residential property insurance, to include specific data on

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

17  settlements, and costs for the purpose of enabling the

18  department and the Legislature to accurately monitor and

19  evaluate the effects of this act.

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

21  any proceedings relating to a liability insurance rate filing

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

23  the department to testify regarding the report's preparation

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

25  any such proceeding.

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

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

28  provided in sections 627.066 and 627.215, Florida Statutes.

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

30  application thereof to any person or circumstance is held

31  invalid, the invalidity does not affect other provisions or

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

  2  invalid provision or application, and to this end the

  3  provisions of this act are declared severable.

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

  5  1999.

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                              SB 374

  3

  4  Revises subsection (7) of s. 768.79, F.S., to require the
    court to consider a list of criteria when determining the
  5  entitlement to an award of attorney's fees and costs under
    this section. In addition to determining whether an offer of
  6  judgment was made in good faith, the court must also consider
    whether the offer was reasonably rejected in determining the
  7  entitlement to an award of attorney's fees and costs.

  8  Section 7, pertaining to expedited trials, is revised to
    contain a triggering event for discovery deadlines. All
  9  interrogatories and requests for production must be served
    within 10 days after the court enters an order adopting the
10  joint expedited trial resolution. All discovery must be
    completed within 60 days after the order adopting the joint
11  expedited trial resolution.

12  Amends s. 768.78, F.S., to create a provision requiring
    pre-judgment and post-judgment structured settlement
13  discussions. If a plaintiff chooses to receive payment in the
    form of periodic payments, the defendant or its liability
14  carrier is obligated to provide such payments. The plaintiff
    has the right to choose the third party assignee and the
15  licensed structured settlement broker. The defendant or its
    liability carrier may not withdraw from the settlement
16  agreement based upon the plaintiff's choice of the third party
    assignee. This subsection does not apply to cases with
17  settlements under $50,000 and it does not create a cause of
    action against the defendant or its liability carrier. This
18  subsection applies only to cases impacted by s. 104(a)(1),
    (2), and (3) of the Internal Revenue Code.
19
    Revises Section 10, which creates s. 47.025, F.S., pertaining
20  to actions against contractors. Any venue provision in a
    contract for improvement to real property which requires legal
21  action involving a resident contractor, subcontractor,
    sub-subcontractor or materialman, as defined in part I of
22  chapter 713, to be brought outside this state is void as a
    matter of public policy. Any legal action arising out of the
23  contract must be brought in accordance with state venue laws
    as expressed by the statute, unless, after the dispute arises,
24  the parties stipulate to another venue.

25  Amends subsection (6) of s. 768.81, F.S., to provide for the
    application of joint and several liability in medical
26  malpractice actions against any party that is not a teaching
    hospital. The court shall enter judgment with respect to
27  economic damages against that party on the basis of joint and
    several liability regardless of that party's percentage of
28  fault, as long as the party's percentage of fault equals or
    exceeds that of a particular claimant.
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