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





                                                  SENATE AMENDMENT

    Bill No. HB 775

    Amendment No.    

                            CHAMBER ACTION
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11  Senators Latvala, Laurent, Lee and Webster moved the following

12  amendment:

13

14         Senate Amendment (with title amendment) 

15         Delete everything after the enacting clause

16

17  and insert:

18         Section 1.  Paragraph (b) of subsection (9) of section

19  324.021, Florida Statutes, is amended, and paragraph (c) is

20  added to that subsection, to read:

21         324.021  Definitions; minimum insurance required.--The

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

23  for the purpose of this chapter, have the meanings

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

25  instances where the context clearly indicates a different

26  meaning:

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

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

29  of the Florida Statutes or existing case law:,

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

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

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                                                  SENATE AMENDMENT

    Bill No. HB 775

    Amendment No.    





 1  obtain insurance acceptable to the lessor which contains

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

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

 4  $500,000 combined property damage liability and bodily injury

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

 6  for the purpose of determining financial responsibility for

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

 8  operator in connection therewith; further, this subparagraph

 9  paragraph shall be applicable so long as the insurance meeting

10  these requirements is in effect.  The insurance meeting such

11  requirements may be obtained by the lessor or lessee,

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

13  combined coverage for bodily injury liability and property

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

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

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

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

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

19  determining liability for the operation of the vehicle or the

20  acts of the operator in connection therewith only up to

21  $100,000 per person and up to $300,000 per incident for bodily

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

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

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

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

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

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

28  specified liability of the lessor for economic damages shall

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

30  the operator, and from any insurance or self insurance

31  covering the lessee or operator.  Nothing in this subparagraph

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                                                  SENATE AMENDMENT

    Bill No. HB 775

    Amendment No.    





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

 2  its own negligence.

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

 4  vehicle to any permissive user shall be liable for the

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

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

 7  $300,000 per incident for bodily injury and up to $50,000 for

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

 9  is uninsured or has any insurance with limits less than

10  $500,000 combined property damage and bodily injury liability,

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

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

13  vehicle. The additional specified liability of the owner for

14  economic damages shall be reduced by amounts actually

15  recovered from the permissive user and from any insurance or

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

17  subparagraph shall be construed to affect the liability of the

18  owner for his or her own negligence.

19         (c)  Application.--The limits on liability in

20  subparagraphs (b)2. and 3. do not apply to an owner of motor

21  vehicles that are used for commercial activity in the owner's

22  ordinary course of business, other than a rental company that

23  rents or leases motor vehicles. For purposes of this

24  paragraph, the term "rental company" includes only an entity

25  that is engaged in the business of renting or leasing motor

26  vehicles to the general public and that rents or leases a

27  majority of its motor vehicles to persons with no direct or

28  indirect affiliation with the rental company. The term also

29  includes a motor vehicle dealer that provides temporary

30  replacement vehicles to its customers for up to 10 days.

31  Furthermore, the limits on liability in subparagraphs (b)2.

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                                                  SENATE AMENDMENT

    Bill No. HB 775

    Amendment No.    





 1  and 3. do not apply to a motor vehicle that has a gross

 2  vehicle weight of greater than 26,000 pounds or any vehicle

 3  designed to transport 16 or more passengers including the

 4  driver. Furthermore, the limits on liability in subparagraphs

 5  (b)2. and 3. do not apply to a motor vehicle that is used in

 6  the transportation of materials found to be hazardous for the

 7  purposes of the Hazardous Materials Transportation Act, as

 8  amended (49 U.S.C. ss. 1801 et seq.), and that is required

 9  pursuant to such act to carry placards warning others of the

10  hazardous cargo.

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

12  Statutes, is amended to read:

13         95.031  Computation of time.--Except as provided in

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

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

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

17  action accrues.

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

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

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

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

22  discovered or should have been discovered with the exercise of

23  due diligence, instead of running from any date prescribed

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

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

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

27  the fraud was or should have been discovered.

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

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

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

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

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 1  been discovered with the exercise of due diligence, rather

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

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

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

 5  and filed within 18 years after the date of delivery of the

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

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

 8  the product as a component in the manufacture of another

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

10  was or should have been discovered. However, the 18-year

11  limitation on filing an action for products liability does not

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

13  concealed or attempted to conceal this defect. In addition,

14  the 18-year limitation does not apply if the claimant was

15  exposed to or used a product capable of causing a latent

16  disease and an injury caused by such exposure or use did not

17  manifest itself until after the 18-year period. The provisions

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

19  the time of the accident, was engaged in scheduled

20  passenger-carrying operations.

21         Section 3.  Any action for products liability which

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

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

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

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

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

27  shall be barred.

28         Section 4.  Section 40.50, Florida Statutes, is created

29  to read:

30         40.50  Jury duty and instructions in civil cases.--

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

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    Amendment No.    





 1  sworn, the court shall instruct the jury concerning its

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

 3  for submitting written questions of witnesses, and the

 4  elementary legal principles that will govern the proceeding as

 5  provided in this section.

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

 7  notes regarding the evidence and keep the notes for the

 8  purpose of refreshing their memory for use during recesses and

 9  deliberations. The court may provide materials suitable for

10  this purpose. The confidentiality of the notes should be

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

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

13  who shall promptly destroy them.

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

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

16  for each juror. Notebooks may contain:

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

18  including special instructions on the issues to be tried.

19         (b)  Jurors' notes.

20         (c)  Witnesses' names and either photographs or

21  biographies or both.

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

23  an index of all exhibits in evidence.

24         (e)  A glossary of technical terms.

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

26

27  In its discretion, the court may authorize documents and

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

29  the jurors during trial to aid them in performing their

30  duties. The preliminary jury instructions should be removed,

31  discarded, and replaced by the final jury instructions before

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

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

 3  their notes and, in appropriate cases, notebooks during

 4  recesses and deliberations.

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

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

 7  Opportunity shall be given to counsel to object to such

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

 9  appropriate, limit the submission of questions to witnesses.

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

11  questions directed to witnesses or the court must be in

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

13  determines that the juror's question calls for admissible

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

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

16  stipulation or other appropriate means, including, but not

17  limited to, additional testimony upon such terms and

18  limitations as the court prescribes. If the court determines

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

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

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

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

23  not attach any significance to the failure of having their

24  question asked.

25         (7)  The court has discretion to give final

26  instructions to the jury before closing arguments of counsel

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

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

29  wish to withhold giving the necessary procedural and

30  housekeeping instructions until after closing arguments.

31         Section 5.  Section 44.102, Florida Statutes, is

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                                                  SENATE AMENDMENT

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    Amendment No.    





 1  amended to read:

 2         44.102  Court-ordered mediation.--

 3         (1)  Court-ordered mediation shall be conducted

 4  according to rules of practice and procedure adopted by the

 5  Supreme Court.

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

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

 8  monetary damages, unless:

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

10  does not include a claim for personal injury.

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

12  debt.

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

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

15  Rules.

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

17  referral to nonbinding arbitration under this chapter.

18         6.  The parties have agreed to binding arbitration.

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

20  filed civil action for which mediation is not required under

21  this section.

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

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

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

25  or other parental responsibility issues as defined in s.

26  61.13. Upon motion or request of a party, a court shall not

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

28  history of domestic violence that would compromise the

29  mediation process.

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

31  services mediation program has been established, may refer to

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 1  mediation all or any portion of a matter relating to

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

 3  need of services.

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

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

 6  prevent any person present at the proceeding from disclosing,

 7  communications made during such proceeding. All oral or

 8  written communications in a mediation proceeding, other than

 9  an executed settlement agreement, shall be exempt from the

10  requirements of chapter 119 and shall be confidential and

11  inadmissible as evidence in any subsequent legal proceeding,

12  unless all parties agree otherwise.

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

14  any disclosure of communications made confidential in

15  subsection (3) in relation to disciplinary proceedings filed

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

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

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

19  privileged communication shall be used only for the internal

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

21  release of any disciplinary files to the public, all

22  references to otherwise privileged communications shall be

23  deleted from the record.  When an otherwise confidential

24  communication is used in a mediator disciplinary proceeding,

25  such communication shall be inadmissible as evidence in any

26  subsequent legal proceeding.  "Subsequent legal proceeding"

27  means any legal proceeding between the parties to the

28  mediation which follows the court-ordered mediation.

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

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

31  Supreme Court and who have registered for appointment in that

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 1  circuit.

 2         (a)  Whenever possible, qualified individuals who have

 3  volunteered their time to serve as mediators shall be

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

 5  44.108, volunteer mediators shall be entitled to reimbursement

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

 7  service as a mediator.

 8         (b)  Nonvolunteer mediators shall be compensated

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

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

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

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

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

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

15  chief judge of the circuit.

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

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

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

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

20  until:

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

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

23  agreement was reached.

24         (b)  Sections 45.061 and 768.79 notwithstanding, an

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

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

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

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

29  trial.

30         Section 6.  Section 44.1051, Florida Statutes, is

31  created to read:

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 1         44.1051  Voluntary trial resolution.--

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

 3  dispute may agree in writing to submit the controversy to

 4  voluntary trial resolution in lieu of litigation of the issues

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

 6  that no constitutional issue is involved.

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

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

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

10  trial resolution judge, the court shall proceed with the

11  appointment as prescribed.

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

13  the parties according to their agreement.

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

15  for binding voluntary trial resolution, the court shall

16  provide for the appointment of the trial resolution judge.

17  Once appointed, the trial resolution judge shall notify the

18  parties of the time and place for the hearing.

19         (5)  Application for voluntary trial resolution shall

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

21  complaints initiating civil actions. The clerk of the court

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

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

24  shall keep separate the records of the applications for

25  voluntary binding trial resolution from all other civil

26  actions.

27         (6)  Filing of the application for binding voluntary

28  trial resolution will toll the running of the applicable

29  statutes of limitation.

30         (7)  The appointed trial resolution judge shall have

31  such power to administer oaths or affirmations and to conduct

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

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

 3  for the attendance of witnesses and for the production of

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

 5  the court for orders compelling attendance and production.

 6  Subpoenas shall be served and shall be enforceable as provided

 7  by law.

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

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

10  final decision.

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

12  proceedings under this section.

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

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

15  in the circuit court in the circuit in which the voluntary

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

17  court an appeal may be taken to the appropriate appellate

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

19  appeals. No further review shall be permitted unless a

20  constitutional issue is raised. Factual findings determined in

21  the voluntary trial shall not be subject to appeal.

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

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

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

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

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

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

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

29  for which judgment executions shall issue on request of a

30  party.

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

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

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

 3  party to the voluntary trial resolution.

 4         Section 7.  Section 57.105, Florida Statutes, is

 5  amended to read:

 6         57.105  Attorney's fee; sanctions for raising unfounded

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

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

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

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

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

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

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

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

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

16  before trial:

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

18  to establish the claim or defense; or

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

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

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

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

23  provided,

24

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

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

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

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

29  claimant pursuant to this subsection finds that there was a

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

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

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 1  interest.

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

 3  determines that the claim or defense was initially presented

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

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

 6  material facts.

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

 8  which the moving party proves by a preponderance of the

 9  evidence that any action taken by the opposing party,

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

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

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

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

14  purpose of unreasonable delay, the court shall award damages

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

16  in question.

17         (4)  The court also may impose such additional

18  sanctions or other remedies as are just and warranted under

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

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

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

22         (5)(2)  If a contract contains a provision allowing

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

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

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

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

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

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

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

30  contracts entered into on said date or thereafter.

31         Section 8.  Subsections (3), (5), and (7) of section

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    Amendment No.    





 1  768.79, Florida Statutes, are amended to read:

 2         768.79  Offer of judgment and demand for judgment.--

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

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

 5  unless filing is necessary to enforce the provisions of this

 6  section. In any case involving multiple party plaintiffs or

 7  multiple party defendants, an offer shall specify its

 8  applicability to each party and may specify any conditions

 9  thereof. Each individual party may thereafter accept or reject

10  the offer as the offer applies to such party.

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

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

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

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

15  party.

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

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

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

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

20  and attorney's fees.

21         (b)  When determining the entitlement to and

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

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

24  relevant criteria, the following additional factors:

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

26  claim.

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

28  parties.

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

30  issue.

31         4.  Whether the proposal was reasonably rejected.

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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 9.  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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                                                  SENATE AMENDMENT

    Bill No. HB 775

    Amendment No.    





 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         (c)  This section does not apply to any action

13  proceeding under the Florida Family Law Rules of Procedure.

14         Section 10.  Expedited trials.--Upon the joint

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

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

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

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

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

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

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

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

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

24  joint expedited trial stipulation.

25         (2)  All interrogatories and requests for production

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

27  adopting the joint expedited trial stipulation, and all

28  responses must be served within 20 days after receipt.

29         (3)  The court shall determine the number of

30  depositions required.

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

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                                                  SENATE AMENDMENT

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    Amendment No.    





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

 2  60-day discovery cut-off.

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

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

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

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

 7  evidence, and its closing.

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

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

10  evidence, and its closing.

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

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

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

14  form must be agreed to by the parties.

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

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

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

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

19  depositions, including video depositions, regardless of where

20  the deponent lives or whether the deponent is available to

21  testify.

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

23  of Civil Procedure will apply.

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

25  extraordinary circumstances.

26         Section 11.  Section 768.77, Florida Statutes, is

27  amended to read:

28         768.77  Itemized verdict.--

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

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

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

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                                                  SENATE AMENDMENT

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    Amendment No.    





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

 2  into the following categories of damages:

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

 4  economic losses;

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

 6  noneconomic losses; and

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

 8  damages, if applicable.

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

10  damages, shall be further itemized into amounts intended to

11  compensate for losses which have been incurred prior to the

12  verdict and into amounts intended to compensate for losses to

13  be incurred in the future. Future damages itemized under

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

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

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

17  itemizing amounts intended to compensate for future losses,

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

19  which such amounts are intended to provide compensation.

20         Section 12.  Present subsection (1) of section 768.78,

21  Florida Statutes, is amended and redesignated as subsection

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

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

24         768.78  Alternative methods of payment of damage

25  awards.--

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

27  parties shall specifically discuss the option and advantages

28  for the plaintiff of settlement through use of structured

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

30  plaintiff chooses to receive payment in the form of periodic

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

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                                                  SENATE AMENDMENT

    Bill No. HB 775

    Amendment No.    





 1  is obligated to provide such payments, and the following

 2  apply:

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

 4  damages to the plaintiff qualifies for assignment under

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

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

 7  defendant's liability carrier shall assign the liability to

 8  make such periodic payments to a third party assignee selected

 9  by the plaintiff.

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

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

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

13  choice of third-party assignee.

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

15  structured-settlement broker to place the structured

16  settlement.

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

18  which this subsection applies must include a finding that the

19  settlement complies with this subsection.

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

21  settlement of which is under $50,000.

22         (f)  Nothing in this subsection creates an additional

23  cause of action against the defendant or his attorneys.

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

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

26         (2)(1)(a)  In any action to which this part applies in

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

28  to compensate the claimant includes for future economic losses

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

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

31  of the following means, unless an alternative method of

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                                                  SENATE AMENDMENT

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    Amendment No.    





 1  payment of damages is provided in this section:

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

 3  damages so assessed, with future economic losses and expenses

 4  reduced to present value; or

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

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

 7  determines that manifest injustice would result to any party,

 8  enter a judgment ordering future economic damages, as itemized

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

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

11  lump-sum payment.

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

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

14  a specific finding of the dollar amount of periodic payments

15  which will compensate the judgment creditor for these future

16  damages after offset for collateral sources.  The total dollar

17  amount of the periodic payments shall equal the dollar amount

18  of all such future damages before any reduction to present

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

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

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

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

23  verdict and shall not be extended if the plaintiff lives

24  beyond the determined period.  If the claimant has been

25  awarded damages to be discharged by periodic payments and the

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

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

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

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

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

31  depending upon the need of the claimant.

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                                                  SENATE AMENDMENT

    Bill No. HB 775

    Amendment No.    





 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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                                                  SENATE AMENDMENT

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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         (g)  Nothing in this subsection shall preclude any

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

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                                                  SENATE AMENDMENT

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 1  to by the parties.

 2         Section 13.  Section 47.025, Florida Statutes, is

 3  created to read:

 4         47.025  Actions against contractors.--Any venue

 5  provision in a contract for improvement to real property which

 6  requires legal action involving a resident contractor,

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

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

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

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

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

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

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

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

15  parties stipulate to another venue.

16         Section 14.  Through the state's uniform case reporting

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

18  State Courts Administrator information from each settlement or

19  jury verdict and final judgment in negligence cases as defined

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

21  the Senate and the Speaker of the House of Representatives

22  deem necessary from time to time. The information shall

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

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

25  of each; the amount of economic damages and noneconomic

26  damages awarded to each plaintiff, identifying those damages

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

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

29  by each defendant.

30         Section 15.  Subsection (3) of section 768.81, Florida

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

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                                                  SENATE AMENDMENT

    Bill No. HB 775

    Amendment No.    





 1  repealed, to read:

 2         768.81  Comparative fault.--

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

 4  section applies, the court shall enter judgment against each

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

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

 7  liability; provided that with respect to any party whose

 8  percentage of fault equals or exceeds that of a particular

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

10  enter judgment with respect to economic damages against that

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

12  liability.

13         (5)  APPLICABILITY OF JOINT AND SEVERAL

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

15  the doctrine of joint and several liability applies to all

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

17  $25,000.

18         Section 16.  (1)  The Department of Insurance shall,

19  after issuing a request for proposals, contract with a

20  national independent actuarial firm to conduct an actuarial

21  analysis, consistent with generally accepted actuarial

22  practices, of the expected reduction in liability judgments,

23  settlements, and related costs resulting from the provisions

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

25  data derived from the settlement or adjudication of liability

26  claims, other than liability claims insured under private

27  passenger automobile insurance or personal lines residential

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

29  analysis must include an estimate of the percentage decrease

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

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

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                                                  SENATE AMENDMENT

    Bill No. HB 775

    Amendment No.    





 1  savings or reductions are expected.

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

 3  Department of Insurance by March 1, 2001.

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

 5  shall review the filed rates of insurers and underwriting

 6  profits and losses for Florida liability insurance businesses

 7  and shall require any prospective rate modifications that the

 8  department deems necessary, consistent with the applicable

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

10  insurer to comply with the applicable rating law. The

11  department shall require each liability insurer's first rate

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

13  private passenger automobile insurance or personal lines

14  residential property insurance, to include specific data on

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

16  settlements, and costs for the purpose of enabling the

17  department and the Legislature to accurately monitor and

18  evaluate the effects of this act.

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

20  any proceedings relating to a liability insurance rate filing

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

22  the department to testify regarding the report's preparation

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

24  any such proceeding.

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

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

27  provided in sections 627.066 and 627.215, Florida Statutes.

28         Section 17.  Subsections (6), (7), and (8) are added to

29  section 400.023, Florida Statutes, to read:

30         400.023  Civil enforcement.--

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

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                                                  SENATE AMENDMENT

    Bill No. HB 775

    Amendment No.    





 1  following conditions precedent must be met:

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

 3  pleading or defensive motion to a complaint brought under this

 4  section and before trial, the parties or their designated

 5  representatives shall meet in mediation to discuss the issues

 6  of liability and damages in accordance with this paragraph for

 7  the purpose of an early resolution of the matter.

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

 9  pleading or defensive motion, the parties shall:

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

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

12  which shall appoint a mediator within 10 days after such

13  notice.

14         b.  Set a date for mediation.

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

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

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

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

19  the parties without a hearing.

20         2.  The mediation must be concluded within 120 days

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

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

23  subject to mediation under this subsection.

24         3.  The mediation shall be conducted in the following

25  manner:

26         a.  Each party shall ensure that all persons necessary

27  for complete settlement authority are present at the

28  mediation.

29         b.  Each party shall mediate in good faith.

30         4.  All aspects of the mediation which are not

31  specifically established by this subsection must be conducted

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    Amendment No.    





 1  according to the rules of practice and procedure adopted by

 2  the Supreme Court of this state.

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

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

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

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

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

 8  subsequently proceeds to trial under this section and the

 9  plaintiff prevails but is awarded an amount in damages,

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

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

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

13         (c)  This subsection applies only to claims for

14  liability and damages and does not apply to actions for

15  injunctive relief.

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

17  that accrue on or after October 1, 1999.

18         (7)  Discovery of financial information for the purpose

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

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

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

22  for punitive damages.

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

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

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

26  egregiousness of the conduct that caused the actual harm to

27  the resident.

28         Section 18.  Effective October 1, 1999, the minimum per

29  claim financial responsibility required under sections

30  458.320(2)(b) and (c) and 459.0085(2)(b) and (c), Florida

31  Statutes, shall be increased from $250,000 to $500,000 and the

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    Bill No. HB 775

    Amendment No.    





 1  minimum aggregate requirement specified in said sections shall

 2  be increased from $750,000 to $1,000,000; provided, further

 3  that the provisions of sections 458.320(5)(g) and

 4  459.0085(5)(g), Florida Statutes, respectively, shall not

 5  apply to any physician or osteopathic physician with hospital

 6  staff privileges.

 7         Section 19.  Section 768.1256, Florida Statutes, is

 8  created to read:

 9         768.1256  Government rules defense.--

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

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

12  there is a rebuttable presumption pursuant to s. 90.302(1)

13  that the product is not defective or unreasonably dangerous

14  and the manufacturer or seller is not liable if, at the time

15  the specific unit of the product was sold or delivered to the

16  initial purchaser or user, the aspect of the product that

17  allegedly caused the harm:

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

19  rules, regulations or standards relevant to the event causing

20  the death or injury;

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

22  standards are designed to prevent the type of harm that

23  allegedly occurred; and

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

25  regulations or standards is required as a condition for

26  selling or distributing the product.

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

28  subsection (1), there is a rebuttable presumption pursuant to

29  s. 90.302(1) that the product is defective or unreasonably

30  dangerous and the manufacturer or seller is liable if the

31  manufacturer or seller did not comply with the federal or

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    Bill No. HB 775

    Amendment No.    





 1  state codes, statutes, rules, regulations or standards which:

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

 3  injury;

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

 5  allegedly occurred; and

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

 7  distributing the product.

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

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

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

11         Section 20.  Section 768.096, Florida Statutes, is

12  created to read:

13         768.096  Employer presumption against negligent

14  hiring.--

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

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

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

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

19  employee, the employer conducted a background investigation of

20  the prospective employee and the investigation did not reveal

21  any information that reasonably demonstrated the unsuitability

22  of the prospective employee for the particular work to be

23  performed or for the employment in general. A background

24  investigation under this section must include:

25         (a)  Obtaining a criminal background investigation on

26  the prospective employee under subsection (2);

27         (b)  Making a reasonable effort to contact references

28  and former employers of the prospective employee concerning

29  the suitability of the prospective employee for employment;

30         (c)  Requiring the prospective employee to complete a

31  job application form that includes questions concerning

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                                                  SENATE AMENDMENT

    Bill No. HB 775

    Amendment No.    





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

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

 3  conviction and the penalty imposed, and whether the

 4  prospective employee has ever been a defendant in a civil

 5  action for intentional tort, including the nature of the

 6  intentional tort and the disposition of the action;

 7         (d)  Obtaining, with written authorization from the

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

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

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

11  reasonably be obtained; and

12         (e)  Interviewing the prospective employee.

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

14  requirement of this section, an employer must request and

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

16  information as reported and reflected in the Florida Crime

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

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

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

20  presumption that the employer failed to use reasonable care in

21  hiring an employee.

22         Section 21.  Section 768.095, Florida Statutes, is

23  amended to read:

24         768.095  Employer immunity from liability; disclosure

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

26  employer who discloses information about a former or current

27  employee employee's job performance to a prospective employer

28  of the former or current employee upon request of the

29  prospective employer or of the former or current employee is

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

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

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    Amendment No.    





 1  from civil liability for such disclosure or its consequences

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

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

 4  rebutted upon a showing that the information disclosed by the

 5  former or current employer was knowingly false or deliberately

 6  misleading, was rendered with malicious purpose, or violated

 7  any civil right of the former or current employee protected

 8  under chapter 760.

 9         Section 22.  Section 768.071, Florida Statutes, is

10  created to read:

11         768.071  Business premises liability; areas outside

12  enclosed buildings.--Notwithstanding any other provision of

13  law to the contrary, a person or organization owning or

14  controlling an interest in a business premises shall be liable

15  for civil damages for the death of, or injury or damage to, an

16  invitee or guest caused by a criminal act committed by a

17  person who is not an employee or agent of the business and

18  occurring on part of the business premises that is not within

19  an enclosed building only if the person or organization owning

20  or controlling an interest in the business premises

21  disregarded his or her duty to protect invitees or guests on

22  the property. For purposes of this section a person or

23  organization owning or controlling an interest in a business

24  premises may be found to have disregarded his or her duty to

25  protect invitees or guests only if the person or organization

26  owning or controlling an interest in the business premises

27  knew that a criminal act was likely to occur on the portions

28  of the property that are not within an enclosed building and

29  failed to take any corrective action which could have

30  prevented the injury.

31         Section 23.  Section 768.075, Florida Statutes, is

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                                                  SENATE AMENDMENT

    Bill No. HB 775

    Amendment No.    





 1  amended to read:

 2         768.075  Immunity from liability for injury to

 3  trespassers on real property.--

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

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

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

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

 8  property resulting from or arising by reason of the

 9  trespasser's commission of the offense of trespass as

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

11  under the influence of alcoholic beverages with a

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

13  trespasser was under the influence of any chemical substance

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

15  under the influence of any substance controlled under chapter

16  893, or if the trespasser is affected by any of the aforesaid

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

18  impaired. For the purposes of this section, voluntary

19  intoxication or impediment of faculties by use of alcohol or

20  any of the aforementioned substances shall not excuse a party

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

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

23  organization owning or controlling the interest in real

24  property shall not be immune from liability if gross

25  negligence or intentional willful and wanton misconduct on the

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

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

28  trespasser.

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

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

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

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                                                  SENATE AMENDMENT

    Bill No. HB 775

    Amendment No.    





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

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

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

 4  or otherwise impaired.

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

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

 7  premises has an objectively reasonable belief that he or she

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

 9  the real property where injury occurs.

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

11  real property without invitation, either express or implied,

12  and whose actual physical presence was detected, within 24

13  hours preceding the accident, by the person or organization

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

15  actual physical presence the person or organization owning or

16  controlling an interest in real property was alerted by a

17  reliable source within 24 hours preceding the accident. The

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

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

20  organization owning or controlling an interest in real

21  property has issued an express invitation to enter the

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

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

24  by the person whose status is at issue.

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

26  property without invitation, either express or implied, and

27  whose actual physical presence was not detected, within 24

28  hours preceding the accident, by the person or organization

29  owning or controlling an interest in real property.

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

31  person or organization owning or controlling an interest in

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                                                  SENATE AMENDMENT

    Bill No. HB 775

    Amendment No.    





 1  real property must refrain from intentional misconduct, but

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

 3  liability to discovered trespassers, a person or organization

 4  owning or controlling an interest in real property must

 5  refrain from gross negligence or intentional misconduct, and

 6  must warn the trespasser of dangerous conditions that are

 7  known to the person or organization owning or controlling an

 8  interest in real property but that are not readily observable

 9  by others.

10         (c)  This subsection shall not be interpreted or

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

12  "attractive nuisance doctrine."

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

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

15  organization, shall not be held liable for negligence that

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

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

18  commission of a felony on the property.

19         Section 24.  Section 768.36, Florida Statutes, is

20  created to read:

21         768.36  Alcohol or drug defense.--

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

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

24  any beverage that contains 0.5 percent or more alcohol by

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

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

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

28  term does not include any drug or medication obtained pursuant

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

30  accordance with the prescription, or any medication that is

31  authorized under state or federal law for general distribution

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                                                  SENATE AMENDMENT

    Bill No. HB 775

    Amendment No.    





 1  and use without a prescription in treating human diseases,

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

 3  dosage.

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

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

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

 7  plaintiff was injured:

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

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

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

11  breath alcohol level of 0.08 percent or higher; and

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

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

14  fault for his or her own harm.

15         Section 25.  Section 768.098, Florida Statutes, is

16  created to read:

17         768.098  Limitation of liability for employee

18  leasing.--

19         (1)  An employer in a joint employment relationship

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

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

22  tortious actions of any jointly employed employee under that

23  relationship, provided that:

24         (a)  The employer seeking to avoid liability pursuant

25  to this section did not authorize or direct the tortious

26  action;

27         (b)  The employer seeking to avoid liability pursuant

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

29  conduct and fail to take appropriate action;

30         (c)  The employer seeking to avoid liability pursuant

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

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                                                  SENATE AMENDMENT

    Bill No. HB 775

    Amendment No.    





 1  day job duties of the jointly employed employee who has

 2  committed a tortious act nor actual control over the portion

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

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

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

 6  employer under the contract;

 7         (d)  The employer seeking to avoid liability pursuant

 8  to this section is expressly absolved in the written contract

 9  forming the joint employment relationship of control over the

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

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

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

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

14  said control was assigned to the other employer under the

15  contract; and

16         (e)  Complaints, allegations or incidents of any

17  tortious misconduct or workplace safety violations, regardless

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

19  seeking to avoid liability pursuant to this section by all

20  other joint employers under the written contract forming the

21  joint employment relationship, and that the employer seeking

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

23  take appropriate action as a result of receiving any such

24  report related to a jointly employed employee who has

25  committed a tortious act.

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

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

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

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

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

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

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                                                  SENATE AMENDMENT

    Bill No. HB 775

    Amendment No.    





 1  is a leased employee.

 2         (3)  This section shall not alter any responsibilities

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

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

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

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

 7         Section 26.  Section 768.725, Florida Statutes, is

 8  created to read:

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

10  civil actions the plaintiff must establish at trial by clear

11  and convincing evidence its entitlement to an award of

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

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

14         Section 27.  Section 768.72, Florida Statutes, is

15  amended to read:

16         768.72  Pleading in civil actions; claim for punitive

17  damages.--

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

19  shall be permitted unless there is a reasonable showing by

20  evidence in the record or proffered by the claimant which

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

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

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

24  procedure.  The rules of civil procedure shall be liberally

25  construed so as to allow the claimant discovery of evidence

26  which appears reasonably calculated to lead to admissible

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

28  financial worth shall proceed until after the pleading

29  concerning punitive damages is permitted.

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

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

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                                                  SENATE AMENDMENT

    Bill No. HB 775

    Amendment No.    





 1  convincing evidence, finds that the defendant was personally

 2  guilty of intentional misconduct or gross negligence. As used

 3  in this section, the term:

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

 5  had actual knowledge of the wrongfulness of the conduct and

 6  the high probability that injury or damage to the claimant

 7  would result and, despite that knowledge, intentionally

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

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

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

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

12  rights of persons exposed to such conduct.

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

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

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

16  conduct of the employee or agent meets the criteria specified

17  in subsection (2) and:

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

19  legal entity actively and knowingly participated in such

20  conduct;

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

22  employer, principal, corporation, or other legal entity

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

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

25  legal entity engaged in conduct that constituted gross

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

27  injury suffered by the claimant.

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

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

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

31  has not commenced.

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                                                  SENATE AMENDMENT

    Bill No. HB 775

    Amendment No.    





 1         Section 28.  Section 768.73, Florida Statutes, is

 2  amended to read:

 3         768.73  Punitive damages; limitation.--

 4         (1)(a)  In any civil action in which the judgment for

 5  compensatory damages is for $50,000 or less, judgment for

 6  punitive damages awarded to a claimant may not exceed

 7  $250,000, except as provided in paragraph (b). In any civil

 8  action in which the judgment for compensatory damages exceeds

 9  $50,000, the judgment for punitive damages awarded to a

10  claimant may not exceed three times the amount of compensatory

11  damages or $250,000, whichever is higher, except as provided

12  in paragraph (b). based on negligence, strict liability,

13  products liability, misconduct in commercial transactions,

14  professional liability, or breach of warranty, and involving

15  willful, wanton, or gross misconduct, the judgment for the

16  total amount of punitive damages awarded to a claimant may not

17  exceed three times the amount of compensatory damages awarded

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

19  as provided in paragraph (b).  However, this subsection does

20  not apply to any class action.

21         (b)  An If any award for punitive damages may not

22  exceed exceeds the limitations limitation specified in

23  paragraph (a), the award is presumed to be excessive and the

24  defendant is entitled to remittitur of the amount in excess of

25  the limitation unless the claimant demonstrates to the court

26  by clear and convincing evidence that the defendant engaged in

27  intentional misconduct or gross negligence and that the award

28  is not excessive in light of the facts and circumstances which

29  were presented to the trier of fact.

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

31  appropriate court from exercising its jurisdiction under s.

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                                                  SENATE AMENDMENT

    Bill No. HB 775

    Amendment No.    





 1  768.74 in determining the reasonableness of an award of

 2  punitive damages that is less than three times the amount of

 3  compensatory damages.

 4         (2)(a)  Except as provided in paragraph (b), punitive

 5  damages may not be awarded against a defendant in a civil

 6  action if that defendant establishes, before trial, that

 7  punitive damages have previously been awarded against that

 8  defendant in any state or federal court in any action alleging

 9  harm from the same act or single course of conduct for which

10  the claimant seeks compensatory damages. For purposes of a

11  civil action, the term "the same act or single course of

12  conduct" includes acts resulting in the same manufacturing

13  defects, acts resulting in the same defects in design, or

14  failure to warn of the same hazards, with respect to similar

15  units of a product.

16         (b)  In subsequent civil actions involving the same act

17  or single course of conduct for which punitive damages have

18  already been awarded, if the court determines by clear and

19  convincing evidence that the amount of prior punitive damages

20  awarded was insufficient to punish that defendant's behavior,

21  the court may permit a jury to consider an award of subsequent

22  punitive damages. In permitting a jury to consider awarding

23  subsequent punitive damages, the court shall make specific

24  findings of fact in the record to support its conclusion. In

25  addition, the court may consider whether the defendant's act

26  or course of conduct has ceased. Any subsequent punitive

27  damage awards must be reduced by the amount of any earlier

28  punitive damage awards rendered in state or federal court.

29         (3)  The claimant attorney's fees, if payable from the

30  judgment, are, to the extent that the fees are based on the

31  punitive damages, calculated based on the final judgment for

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                                                  SENATE AMENDMENT

    Bill No. HB 775

    Amendment No.    





 1  punitive damages. This subsection does not limit the payment

 2  of attorney's fees based upon an award of damages other than

 3  punitive damages.

 4         (4)(2)  The jury may neither be instructed nor informed

 5  as to the provisions of this section.

 6         (5)  The provisions of this section are remedial in

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

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

 9  has not commenced.

10         Section 29.  Section 768.735, Florida Statutes, is

11  created to read:

12         768.735  Punitive damages; exceptions; limitation.--

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

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

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

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

17  applicable statutes and controlling judicial precedent.

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

19  abuse of the elderly, or abuse of the developmentally

20  disabled, or actions arising under chapter 400 and involving

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

22  amount of punitive damages awarded to a claimant may not

23  exceed three times the amount of compensatory damages awarded

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

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

26  to any class action.

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

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

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

30  the amount in excess of the limitation unless the claimant

31  demonstrates to the court by clear and convincing evidence

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                                                  SENATE AMENDMENT

    Bill No. HB 775

    Amendment No.    





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

 2  circumstances that were presented to the trier of fact.

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

 4  appropriate court from exercising its jurisdiction under s.

 5  768.74 in determining the reasonableness of an award of

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

 7  compensatory damages.

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

 9  the provisions of this section.

10         Section 30.  Section 768.736, Florida Statutes, is

11  created to read:

12         768.736  Punitive damages; exceptions for

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

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

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

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

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

18  alcohol level of 0.08 percent or higher.

19         Section 31.  If any provision of this act or the

20  application thereof to any person or circumstance is held

21  invalid, the invalidity does not affect other provisions or

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

23  invalid provision or application, and to this end the

24  provisions of this act are declared severable.

25         Section 32.  This act shall take effect October 1,

26  1999, except that this section and sections 1, 2, and 3 shall

27  take effect July 1, 1999.

28

29

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

31  And the title is amended as follows:

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                                                  SENATE AMENDMENT

    Bill No. HB 775

    Amendment No.    





 1         Delete everything before the enacting clause

 2

 3  and insert:

 4                      A bill to be entitled

 5         An act relating to civil actions; amending s.

 6         324.021, F.S.; providing a limitation on the

 7         liability for bodily injury, property, and

 8         economic damages for certain lessors and owners

 9         of motor vehicles; providing for applicability;

10         amending s. 95.031; providing a statute of

11         repose of 18 years; creating s. 40.50, F.S.;

12         providing for instructions to juries after the

13         jury is sworn in; providing for the taking of

14         notes under certain circumstances; providing

15         for notebooks; providing for written questions;

16         providing for final instructions; amending s.

17         44.102, F.S.; requiring that the court require

18         mediation in certain actions for monetary

19         damages; creating s. 44.1051, F.S.; providing

20         for voluntary trial resolution; providing for

21         the appointment of a trial resolution judge;

22         providing for compensation; providing for fees;

23         providing for the tolling of applicable

24         statutes of limitation; providing for powers of

25         trial resolution judges; providing for hearings

26         and evidence; providing for appeal; providing

27         for application; amending s. 57.105, F.S.;

28         revising conditions for award of attorney's

29         fees for presenting unsupported claims or

30         defenses; authorizing damage awards against a

31         party for unreasonable delay of litigation;

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                                                  SENATE AMENDMENT

    Bill No. HB 775

    Amendment No.    





 1         authorizing the court to impose additional

 2         sanctions; amending s. 768.79, F.S.; providing

 3         for the applicability of offers of judgment and

 4         demand of judgment in cases involving multiple

 5         plaintiffs; providing that subsequent offers

 6         shall void previous offers; providing that

 7         prior to awarding costs and fees the court

 8         shall consider whether the proposal was

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

10         providing criteria under which expert witness

11         fees may be awarded as taxable costs; providing

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

13         deleting a requirement to itemize future

14         damages on verdict forms; amending s. 768.78,

15         F.S.; providing for proposals for structured

16         settlements; requiring structured-settlement

17         discussion in settlement negotiations;

18         requiring assignment of liability for payment

19         to a third-party assignee selected by the

20         plaintiff; granting the plaintiff the right to

21         select a settlement broker; providing for

22         findings in orders approving or adopting a

23         settlement; conforming provisions relating to

24         alternative methods of payment of damage awards

25         to changes made by the act; correcting a

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

27         providing that certain venue provisions in a

28         contract for improvement to real property are

29         void; specifying appropriate venue for actions

30         against resident contractors, subcontractors,

31         sub-subcontractors, and materialmen; requiring

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                                                  SENATE AMENDMENT

    Bill No. HB 775

    Amendment No.    





 1         the clerk of court to report certain

 2         information on negligence cases to the Office

 3         of the State Courts Administrator; amending s.

 4         768.81, F.S.; providing for the apportionment

 5         of damages on the basis of joint and several

 6         liability when a party's fault exceeds a

 7         certain percentage; repealing s. 768.81(5),

 8         F.S.; relating to the applicability of joint

 9         and several liability to actions in which the

10         total amount of damages does not exceed a

11         specified amount; requiring the Department of

12         Insurance to contract with an actuarial firm to

13         conduct an actuarial analysis of expected

14         reductions in judgments and related costs

15         resulting from litigation reforms; specifying

16         the basis and due date for the actuarial

17         report; providing for a review of rate filings

18         by certain types of insurers after a specified

19         date; providing that such provisions do not

20         limit the refund of excessive profits by

21         certain insurers; creating s. 768.1256, F.S.;

22         providing a government rules defense with

23         respect to certain products liability actions;

24         providing for rebuttable presumptions;

25         providing an exception; amending s. 400.023,

26         F.S., relating to actions brought on behalf of

27         nursing home residents; providing that a party

28         to any such action may not recover attorney's

29         fees unless parties submit to mediation;

30         specifying requirements for such mediation;

31         providing for application; providing a standard

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                                                  SENATE AMENDMENT

    Bill No. HB 775

    Amendment No.    





 1         for any award of punitive damages; increasing

 2         minimum financial responsibility requirements

 3         for physicians and osteopathic physicians and

 4         eliminating an alternative method of satisfying

 5         financial responsibility requirements for

 6         physicians and osteopathic physicians with

 7         hospital staff privileges; creating s. 768.096,

 8         F.S.; providing an employer with a presumption

 9         against negligent hiring under specified

10         conditions in an action for civil damages

11         resulting from an intentional tort committed by

12         an employee; amending s. 768.095, F.S.;

13         revising the conditions under which an employer

14         is immune from civil liability for disclosing

15         information regarding an employee to a

16         prospective employer; creating s. 768.071,

17         F.S.; providing limitations on premises

18         liability for a person or organization owning

19         or controlling an interest in a business

20         premises; amending s. 768.075, F.S.; modifying

21         the conditions under which a person or

22         organization owning or controlling an interest

23         in real property is liable for a trespasser's

24         injury or death; providing definitions;

25         providing for the avoidance of liability to

26         discovered and undiscovered trespassers under

27         described circumstances; providing immunity

28         from certain liability arising out of the

29         attempt to commit or the commission of a

30         felony; creating s. 768.36, F.S.; prohibiting a

31         plaintiff from recovering damages if plaintiff

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                                                  SENATE AMENDMENT

    Bill No. HB 775

    Amendment No.    





 1         is more than a specified percentage at fault

 2         due to the influence of alcoholic beverages or

 3         drugs; creating s. 768.098, F.S.; providing a

 4         limitation of liability for employee leasing

 5         under specified conditions; creating s.

 6         768.725, F.S.; providing evidentiary standards

 7         for an award of punitive damages; amending s.

 8         768.72, F.S.; revising provisions with respect

 9         to claims for punitive damages in civil

10         actions; requiring clear and convincing

11         evidence of gross negligence or intentional

12         misconduct to support the recovery of such

13         damages; providing definitions; providing

14         criteria for the imposition of punitive damages

15         with respect to employers, principals,

16         corporations, or other legal entities for the

17         conduct of an employee or agent; providing for

18         the application of the section; amending s.

19         768.73, F.S.; revising provisions with respect

20         to limitations on punitive damages; providing

21         monetary limitations; providing an exception

22         with respect to intentional misconduct;

23         prohibiting the award of subsequent punitive

24         damages against a defendant if punitive damages

25         were previously awarded against the defendant

26         for harm arising out of the same act or single

27         course of conduct; providing an exception;

28         specifying the basis for calculating attorney's

29         fees on judgments for punitive damages;

30         providing for the application of the section;

31         creating s. 768.735, F.S.; providing that ss.

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                                                  SENATE AMENDMENT

    Bill No. HB 775

    Amendment No.    





 1         768.72(2)-(4), 768.725, and 768.73, F.S.,

 2         relating to punitive damages, are inapplicable

 3         to specified causes of action; limiting the

 4         amount of punitive damages that may be awarded

 5         to a claimant in certain civil actions

 6         involving abuse or arising under ch. 400, F.S.;

 7         creating s. 768.736, F.S.; providing that ss.

 8         768.725 and 768.73, F.S., relating to punitive

 9         damages, do not apply to intoxicated

10         defendants; providing for severability;

11         providing effective dates.

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