House Bill 0775e1

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                                           HB 775, First Engrossed



  1                      A bill to be entitled

  2         An act relating to civil actions; creating s.

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

  4         juries after the jury is sworn in; providing

  5         for the taking of notes under certain

  6         circumstances; providing for written questions;

  7         providing for final instructions; amending s.

  8         44.102, F.S.; requiring that the court require

  9         mediation in certain actions for monetary

10         damages; amending s. 44.104, F.S.; providing

11         for voluntary trial resolution upon the

12         agreement of parties to a civil dispute;

13         providing for the appointment and compensation

14         of a trial resolution judge; providing

15         guidelines for conducting a voluntary trial

16         resolution; providing for enforcement and

17         appeal; amending s. 57.105, F.S.; revising

18         conditions for award of attorney's fees for

19         presenting unsupported claims or defenses;

20         authorizing damage awards against a party for

21         unreasonable delay of litigation; authorizing

22         the court to impose additional sanctions;

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

24         applicability of offers of judgment and demand

25         of judgment in cases involving multiple

26         plaintiffs; providing that subsequent offers

27         shall void previous offers; providing that

28         prior to awarding costs and fees the court

29         shall determine whether the offer was

30         reasonable under the circumstances known at the

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


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                                           HB 775, First Engrossed



  1         F.S.; providing criteria under which expert

  2         witness fees may be awarded as taxable costs;

  3         providing for expedited trials; amending s.

  4         768.77, F.S.; deleting a requirement to itemize

  5         future damages on verdict forms; amending s.

  6         768.78, F.S.; providing for discussion of

  7         structured settlements; conforming provisions

  8         relating to alternative methods of payment of

  9         damage awards to changes made by the act;

10         correcting a cross reference; amending s.

11         95.031, F.S.; imposing a 12-year statute of

12         repose on actions founded upon violations of

13         chapter 517; imposing a 12-year statute of

14         repose on actions brought to recover for harm

15         caused by products with a specified expected

16         useful life; exempting certain categories of

17         products from the statute of repose; imposing

18         variable repose periods based on specific

19         warranties by the manufacturer; providing an

20         exception for certain injuries; providing for

21         tolling under particular circumstances;

22         specifying the date by which certain actions

23         must be brought or be otherwise barred by the

24         statute of repose; amending s. 90.407, F.S.;

25         providing limitations on the admissibility of

26         subsequent remedial measures; providing

27         exceptions; creating s.768.044, F.S.; requiring

28         the finder of fact, in certain product defect

29         actions, to consider circumstances that existed

30         at the time of manufacture; amending s.

31         95.11,F.S.; deleting a 5 year limit on


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                                           HB 775, First Engrossed



  1         commencing actions founded on chapter 517;

  2         creating s. 768.1256,F.S.; providing a

  3         government rules defense with respect to

  4         certain products liability actions; providing

  5         for a rebuttable presumption; creating s.

  6         768.0705, F.S.; providing limitations on

  7         premises liability for a person or organization

  8         owning or controlling an interest in a business

  9         premises; providing an exception; providing for

10         a presumption against liability for convenience

11         businesses under specified circumstances;

12         amending s. 768.075, F.S.; delineating the duty

13         owed to trespassers by a person or organization

14         owning or controlling an interest in real

15         property; providing definitions; providing for

16         the avoidance of liability to discovered and

17         undiscovered trespassers under described

18         circumstances; providing immunity from certain

19         liability arising out of the attempt to commit

20         or the commission of a felony; creating s.

21         768.725, F.S.; providing for evidentiary

22         standards for an award of punitive damages;

23         amending s. 768.72, F.S.; revising provisions

24         with respect to claims for punitive damages in

25         civil actions; requiring clear and convincing

26         evidence of gross negligence or intentional

27         misconduct to support the recovery of such

28         damages; providing definitions; providing

29         criteria for the imposition of punitive damages

30         with respect to employers, principals,

31         corporations, or other legal entities for the


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                                           HB 775, First Engrossed



  1         conduct of an employee or agent; providing for

  2         the application of the section; amending s.

  3         768.73, F.S.; revising provisions with respect

  4         to limitations on punitive damages; providing

  5         monetary limitations; providing an exception

  6         with respect to intentional misconduct;

  7         providing for the effect of certain previous

  8         punitive damages awards; providing for the

  9         application of the section; creating s.

10         768.736, F.S.; providing that ss. 768.725 and

11         768.73, F.S., relating to punitive damages, do

12         not apply to intoxicated defendants; amending

13         s. 768.81, F.S.; providing for the

14         apportionment of damages on the basis of joint

15         and several liability when a party's fault

16         exceeds a certain percentage; limiting the

17         applicability of joint and several liability

18         based on the amount of damages; providing for

19         the allocation of fault to a nonparty;

20         requiring that such fault must be proved by a

21         preponderance of the evidence; amending s.

22         324.021, F.S.; providing the lessor of a motor

23         vehicle under certain rental agreements shall

24         be deemed the owner of the vehicle for the

25         purpose of determining liability for the

26         operation of the vehicle within certain limits;

27         providing for the liability of the owner of a

28         motor vehicle who loans the vehicle to certain

29         users; limiting the liability of employers in a

30         joint employment relationship under specific

31         circumstances; providing exceptions and


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                                           HB 775, First Engrossed



  1         limitations; creating s. 768.735, F.S.;

  2         providing that ss. 768.72(2)-(5), 768.725, and

  3         768.73, F.S., relating to punitive damages, are

  4         inapplicable to specified causes of action;

  5         limiting the amount of punitive damages that

  6         may be awarded to a claimant in certain civil

  7         actions involving abuse or arising under ch.

  8         400, F.S.; amending s. 400.023(1), F.S.,

  9         limiting the recovery of attorney fees;

10         providing that an attorney may receive

11         additional fees from his or her client;

12         providing for severability; creating s.

13         768.737, F.S., providing for application of

14         punitive damages statutes to arbitration;

15         providing an effective date.

16

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

18

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

20  to read:

21         40.50  Jury duty and instructions in civil cases.--

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

23  sworn, the court shall instruct the jury concerning its

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

25  for submitting written questions of witnesses, and the legal

26  issues involved in the proceeding.

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

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

29  jurors may take notes regarding the evidence and keep the

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

31  deliberations. The court may provide materials suitable for


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                                           HB 775, First Engrossed



  1  this purpose. The court should emphasize the confidentiality

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

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

  4  promptly destroy them.

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

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

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

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

  9  appropriate, limit the submission of questions to witnesses.

10         (4)  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 the court rejects a

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

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

23  not attach any significance to the failure of having their

24  question asked.

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

26  before closing arguments of counsel to enhance jurors' ability

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

28  withhold giving the necessary procedural and housekeeping

29  instructions until after closing arguments.

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

31  Statutes, is amended to read:


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                                           HB 775, First Engrossed



  1         44.102  Court-ordered mediation.--

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

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

  4  mediation any filed civil action for monetary damages,

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

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

  7  between the parties, unless:

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

  9  does not include a claim for personal injury.

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

11  debt.

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

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

14  Rules.

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

16  referral to nonbinding arbitration under this chapter.

17         6.  The parties have agreed to binding arbitration.

18         7.  The parties have agreed to an expedited trial

19  pursuant to section 7 of this act.

20         8.  The parties have agreed to voluntary trial

21  resolution pursuant to s. 44.104.

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

23  filed civil action for which mediation is not required under

24  this section.

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

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

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

28  or other parental responsibility issues as defined in s.

29  61.13. Upon motion or request of a party, a court shall not

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

31


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                                           HB 775, First Engrossed



  1  history of domestic violence that would compromise the

  2  mediation process.

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

  4  services mediation program has been established, may refer to

  5  mediation all or any portion of a matter relating to

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

  7  need of services.

  8         Section 3.  Section 44.104, Florida Statutes, is

  9  amended to read:

10         44.104  Voluntary binding arbitration and voluntary

11  trial resolution.--

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

13  civil dispute may agree in writing to submit the controversy

14  to voluntary binding arbitration, or voluntary trial

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

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

17  constitutional issue is involved.

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

19  which provides in voluntary binding arbitration for a method

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

21  which provides in voluntary trial resolution a method for

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

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

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

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

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

27  meet the qualifications and training requirements adopted

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

29  the agreement method fails or for any reason cannot be

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

31


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                                           HB 775, First Engrossed



  1  one or more qualified arbitrators, or the trial resolution

  2  judge, as the case requires.

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

  4  compensated by the parties according to their agreement, but

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

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

  7  request for binding arbitration, or voluntary trial

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

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

10  case requires.  Once appointed, the arbitrators or trial

11  resolution judge shall notify the parties of the time and

12  place for the hearing.

13         (5)  Application for voluntary binding arbitration or

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

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

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

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

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

19  applications for voluntary binding arbitration and the records

20  of the applications for voluntary trial resolution from all

21  other civil actions.

22         (6)  Filing of the application for binding arbitration

23  or voluntary trial resolution will toll the running of the

24  applicable statutes of limitation.

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

26  shall have such power to administer oaths or affirmation and

27  to conduct the proceedings as the rules of court shall

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

29  trial resolution judge shall issue subpoenas for the

30  attendance of witnesses and for the production of books,

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


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                                           HB 775, First Engrossed



  1  court for orders compelling attendance and production.

  2  Subpoenas shall be served and shall be enforceable in the

  3  manner provided by law.

  4         (8)  A voluntary binding arbitration The hearing shall

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

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

  7  resolution judge shall conduct a voluntary trial resolution

  8  hearing.  The trial resolution judge may determine any

  9  question and render a final decision.

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

11  proceedings under this section.

12         (10)  An appeal of a voluntary binding arbitration

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

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

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

16  with the applicable rules of procedure or evidence.

17         (b)  Any alleged partiality or misconduct by an

18  arbitrator prejudicing the rights of any party.

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

20  the Constitution of the United States or of the State of

21  Florida.

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

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

24  in the circuit court in the circuit in which the voluntary

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

26  court, any party may appeal to the appropriate appellate

27  court.  Factual findings determined in the voluntary trial are

28  not subject to appeal.

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

30  appeals.  No further review shall be permitted unless a

31  constitutional issue is raised.


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                                           HB 775, First Engrossed



  1         (13)(11)  If no appeal is taken within the time

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

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

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

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

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

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

  8  the contempt powers of the court and for which judgments

  9  execution shall issue on request of a party.

10         (14)(12)  This section shall not apply to any dispute

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

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

13  party to the arbitration or voluntary trial resolution when

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

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

16  chief arbiter or the trial resolution judge that the third

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

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

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

20  under this section.

21         Section 4.  Section 57.105, Florida Statutes, is

22  amended to read:

23         57.105  Attorney's fee; sanctions for raising unfounded

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

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

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

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

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

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

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

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


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                                           HB 775, First Engrossed



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

  2  before trial:

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

  4  to establish the claim or defense; or

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

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

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

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

  9  provided,

10

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

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

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

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

15  claimant pursuant to this subsection finds that there was a

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

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

18  interest.

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

20  determines that the claim or defense was initially presented

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

22  modification, or reversal of existing law or the establishment

23  of new law, with a reasonable expectation of success.

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

25  which the moving party proves by a preponderance of the

26  evidence that any action taken by the opposing party,

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

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

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

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

31  purpose of unreasonable delay, the court shall award damages


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                                           HB 775, First Engrossed



  1  to the moving party for its reasonable expenses incurred in

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

  3  loss resulting from the improper delay.

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

  5  other sanctions or remedies available under law or under court

  6  rules.

  7         (5)(2)  If a contract contains a provision allowing

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

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

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

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

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

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

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

15  contracts entered into on said date or thereafter.

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

17  768.79, Florida Statutes, are amended to read:

18         768.79  Offer of judgment and demand for judgment.--

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

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

21  unless filing is necessary to enforce the provisions of this

22  section. In any case involving multiple party plaintiffs or

23  multiple party defendants, an offer shall specify its

24  applicability to each party and may specify any conditions

25  thereof. Each individual party may then accept or reject the

26  offer as the offer applies to such party.

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

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

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

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

31  party.


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                                           HB 775, First Engrossed



  1         (7)(a)  No party If a party is entitled to costs and

  2  fees under pursuant to the provisions of this section unless

  3  the court determines, the court may, in its discretion,

  4  determine that an offer was reasonable and not made in good

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

  6  and attorney's fees.

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

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

  9  consider, along with all other relevant criteria, the

10  following additional factors:

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

12  claim.

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

14  parties.

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

16  issue.

17         4.  Whether the person making the offer had

18  unreasonably refused to furnish information necessary to

19  evaluate the reasonableness of such offer.

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

21  presenting questions of far-reaching importance affecting

22  nonparties.

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

24  that the person making the offer reasonably would be expected

25  to incur if the litigation should be prolonged.

26         Section 6.  Section 57.071, Florida Statutes, is

27  amended to read:

28         57.071  Costs; what taxable.--

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

30  shall also be allowed:

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                                           HB 775, First Engrossed



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

  2  bonds or other security furnished by such party.

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

  4  transcribing proceedings and depositions, including opening

  5  statements and arguments by counsel.

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

  7  provided to such party, notwithstanding any other provision of

  8  law to the contrary.

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

10  costs unless the party retaining the expert witness furnishes

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

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

13  factual basis of the opinions, including documentary evidence

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

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

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

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

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

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

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

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

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

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

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

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

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

27  after the court enters an order adopting the joint expedited

28  trial stipulation.

29         (2)  All interrogatories and requests for production

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

31


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                                           HB 775, First Engrossed



  1  adopting the joint expedited trial stipulation and all

  2  responses must be served within 20 days after receipt.

  3         (3)  The court shall determine the number of

  4  depositions required.

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

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

  7  60-day discovery cut-off, if such schedule would not impose an

  8  undue burden on the court calendar.

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

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

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

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

13  evidence, and the closing.

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

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

16  evidence, and the closing.

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

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

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

20  jury instructions and verdict form.

21         (11)  The parties may introduce a verified written

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

23  curriculum vitae instead of calling the expert to testify at

24  trial.

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

26  depositions, including video depositions, regardless of where

27  the deponent lives or whether the deponent is available to

28  testify.

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

30  Florida Evidence Code and the Florida Rules of Civil Procedure

31  apply.


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                                           HB 775, First Engrossed



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

  2  trial absent extraordinary circumstances.

  3         Section 8.  Section 768.77, Florida Statutes, is

  4  amended to read:

  5         768.77  Itemized verdict.--

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

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

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

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

10  into the following categories of damages:

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

12  economic losses;

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

14  noneconomic losses; and

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

16  damages, if applicable.

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

18  damages, shall be further itemized into amounts intended to

19  compensate for losses which have been incurred prior to the

20  verdict and into amounts intended to compensate for losses to

21  be incurred in the future. Future damages itemized under

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

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

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

25  itemizing amounts intended to compensate for future losses,

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

27  which such amounts are intended to provide compensation.

28         Section 9.  Subsection (1) & (2) of section 768.78,

29  Florida Statutes, are redesignated as (2) & (3) respectfully,

30  paragraph (a) of the redesignated subsection (2) is amended to

31  read, and a new subsection (1) is created to read:


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                                           HB 775, First Engrossed



  1         768.78  Proposals for structured settlement;

  2  alternative methods of payment of damage awards.--

  3         (1)  In both pre-judgment and post-judgment cases, the

  4  parties shall specifically discuss the option and advantages

  5  for the plaintiff of settlement through use of structured

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

  7  plaintiff chooses to receive payment in the form of periodic

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

  9  shall be obligated to provide such payments, and the following

10  shall apply:

11         (a)  To the extent the liability for payment of damages

12  to the plaintiff qualify for assignment under Section 130, or

13  any successor section, of the Internal Revenue Code as it may

14  be amended from time to time, the defendant or the defendant's

15  liability carrier shall assign the liability to make such

16  periodic payments to a third party assignee agreed to by the

17  plaintiff and defendant.

18         (b)  The plaintiff shall have the right to

19  independently select a properly licensed and appointed

20  structured settlement broker to place the structured

21  settlement on behalf of the plaintiff and defendant.

22         (c)  Any order approving or adopting a settlement to

23  which this section applies shall include a finding that the

24  settlement complies with this section.

25         (d)  This section shall not apply to cases the

26  settlement of which is under $100,000.

27         (e)  Nothing herein shall create an additional action

28  against the defendant or his attorneys.

29         (f)  This section shall apply only to cases impacted by

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

31


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                                           HB 775, First Engrossed



  1         (g)  This section shall not apply to a defendant or his

  2  liability carrier if the liability carrier generally (except

  3  where otherwise agreed or ordered by a court) assigns payment

  4  obligations to an affiliated life insurance company, and the

  5  liability company does not generally use outside brokers and

  6  retains liability in the even of the affiliated life insurance

  7  company's default.

  8         (2)(1)(a)  In any action to which this part applies in

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

10  to compensate the claimant includes for future economic losses

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

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

13  of the following means, unless an alternative method of

14  payment of damages is provided in this section:

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

16  damages so assessed, with future economic losses and expenses

17  reduced to present value; or

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

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

20  determines that manifest injustice would result to any party,

21  enter a judgment ordering future economic damages, as itemized

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

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

24  lump-sum payment.

25         Section 10.  Subsection (2) of section 95.031, Florida

26  Statutes, is amended to read:

27         95.031  Computation of time.--Except as provided in

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

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

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

31  action accrues.


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                                           HB 775, First Engrossed



  1         (2)  Actions for products liability and fraud under s.

  2  95.11(3) must be begun within the period prescribed in this

  3  chapter, with the period running from the time the facts

  4  giving rise to the cause of action were discovered or should

  5  have been discovered with the exercise of due diligence,

  6  instead of running from any date prescribed elsewhere in s.

  7  95.11(3), but in any event an action for fraud under s.

  8  95.11(3) must be begun within 12 years after the date of the

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

10  fraud was or should have been discovered.

11         (b)  An action for products liability under s.

12  95.11(3), must be begun within the period prescribed in this

13  chapter, with the period running from the date that the facts

14  giving rise to the cause of action were discovered, or should

15  have been discovered with the exercise of due diligence,

16  rather than running from any other date prescribed elsewhere

17  in s. 95.11(3) except as provided within this subsection.

18  Under no circumstances may a claimant commence an action for

19  products liability, including a wrongful death action or any

20  other claim arising from personal injury or property damage

21  caused by a product, to recover for harm allegedly caused by a

22  product with an expected useful life of 10 years or less, if

23  the harm was caused by exposure to or use of the product more

24  than 12 years after delivery of the product to its first

25  purchaser or lessee who was not engaged in the business of

26  selling or leasing the product or of using the product as a

27  component in the manufacture of another product. All products,

28  except those included within subparagraphs 1 or 2, are

29  conclusively presumed to have an expected useful life of 10

30  years or less.

31


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                                           HB 775, First Engrossed



  1         1.  Aircraft used in commercial or contract carrying of

  2  passengers or freight, vessels of more than 100 gross tons,

  3  railroad equipment used in commercial or contract carrying of

  4  passengers or freight, and improvements to real property,

  5  including elevators and escalators, are not subject to the

  6  statute of repose provided within this subsection.

  7         2.  Any product not listed in subparagraph 1, which the

  8  manufacturer specifically warranted, through express

  9  representation or labeling, as having an expected useful life

10  exceeding 10 years, has an expected useful life commensurate

11  with the time period indicated by the warranty or label. Under

12  such circumstances, no action for products liability may be

13  brought after the expected useful life of the product, or more

14  than 12 years after delivery of the product to its first

15  purchaser or lessee who was not engaged in the business of

16  selling or leasing the product or of using the product as a

17  component in the manufacture of another product, whichever is

18  later.

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

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

21  product within the repose period, but an injury caused by such

22  exposure or use did not manifest itself until after expiration

23  of the repose period.

24         (d)  The repose period prescribed within paragraph

25  (b)is tolled for any period during which the manufacturer

26  through its officers, directors, partners, or managing agents

27  had actual knowledge that the product was defective in the

28  manner alleged by the claimant and concealed the defect. Any

29  claim of concealment under this section shall be made with

30  specificity, and must be based upon substantial factual and

31


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                                           HB 775, First Engrossed



  1  legal support. Maintaining the confidentiality of trade

  2  secrets does not constitute concealment under this section.

  3         Section 11.  Any action for products liability which

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

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

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

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

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

  9  shall be barred.

10         Section 12.  Section 90.407 Florida Statutes, is

11  amended to read:

12         90.407  Subsequent remedial measures.--Evidence of

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

14  which measures if taken before the event it occurred would

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

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

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

18  rule does not require the exclusion of evidence of subsequent

19  remedial measures when offered for another purpose, such as

20  proving ownership, control, or the feasibility of

21  precautionary measures, if controverted, or impeachment.

22         Section 13.  Section 768.1257 Florida Statutes, is

23  created to read:

24         768.1257  State-of-the-art defense for products

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

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

27  shall consider the state of the art of scientific and

28  technical knowledge and other circumstances that existed at

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

30         Section 14.  Section 768.1256, Florida Statutes, is

31  created to read:


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                                           HB 775, First Engrossed



  1         768.1256  Government rules defense.--In a products

  2  liability action brought against a manufacturer or seller for

  3  harm allegedly caused by a product, there is a rebuttable

  4  presumption that the product is not defective or unreasonably

  5  dangerous and the manufacturer or seller is not liable if, at

  6  the time the specific unit of the product was sold or

  7  delivered to the initial purchaser or user, the aspect of the

  8  product that allegedly caused the harm was in compliance with

  9  product design, construction, or safety standards relevant to

10  the event causing the death or injury promulgated by a federal

11  or state statute or rule, such standards are designed to

12  prevent the type of harm that allegedly occurred, and

13  compliance with such standards is required as a condition for

14  selling or otherwise distributing the product.

15         Section 15.  Section  768.0705, Florida Statutes, is

16  created to read:

17         768.0705  Limitation on premises liability.--

18         (1)  Except as provided for in subsection (2) or in the

19  absence of an express contract to the contrary, a person or

20  organization owning or controlling an interest in a business

21  premises, including a convenience business that is in

22  compliance with ss. 812.173 and 812.174, may not be held

23  liable for civil damages sustained by invitees, licensees, or

24  trespassers, caused by criminal acts committed by third

25  parties who are not employees or agents of the person or

26  organization, which take place on portions of the property not

27  within an enclosed building.

28         (2)  With respect to invitees and licensees, subsection

29  (1) does not apply if a person or organization owning or

30  controlling an interest in a business premises:

31


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                                           HB 775, First Engrossed



  1         (a) Has actual knowledge that the perpetrator is on the

  2  premises;

  3         (b) Has reason to believe that the perpetrator will

  4  commit a criminal act against an invitee or licensee on the

  5  premises; and

  6         (c) Has failed to take reasonable action under the

  7  circumstances to prevent the occurrence of the criminal act.

  8         (3)  The owner or operator of a convenience business

  9  that substantially implements the applicable security measures

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

11  against liability in connection with criminal acts that occur

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

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

14  convenience business.

15         Section 16.  Section 768.075, Florida Statutes, is

16  amended to read:

17         768.075  Immunity from liability for injury to

18  trespassers on real property; definitions; duty to

19  trespassers.--

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

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

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

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

24  property resulting from or arising by reason of the

25  trespasser's commission of the offense of trespass as

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

27  under the influence of alcoholic beverages with a

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

29  trespasser was under the influence of any chemical substance

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

31  under the influence of any substance controlled under chapter


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                                           HB 775, First Engrossed



  1  893, or if the trespasser is affected by any of the aforesaid

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

  3  impaired.  For the purposes of this section, voluntary

  4  intoxication or impediment of faculties by use of alcohol or

  5  any of the aforementioned substances shall not excuse a party

  6  relying upon this section as a defense to a claim for civil

  7  damages bringing an action or on whose behalf an action is

  8  brought from proving the elements of trespass. However, the

  9  person or organization owning or controlling the interest in

10  real property shall not under this subsection be immune from

11  liability if gross negligence or intentional willful and

12  wanton misconduct on the part of such person or organization

13  or agent thereof is a proximate cause of the death of or

14  injury or damage to the trespasser.

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

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

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

18  for death of or injury or damage to any discovered or

19  undiscovered trespasser, except as provided in subsection (3),

20  and regardless of whether the trespasser was intoxicated or

21  otherwise impaired.

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

23         1.  "Implied invitation" means that the visitor

24  entering the premises has an objectively reasonable belief

25  that he or she has been invited or is otherwise welcome on

26  that portion of the real property where injury occurs.

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

28  real property without invitation, either express or implied,

29  and whose actual physical presence was detected, within 24

30  hours preceding the accident, by the person or organization

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


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                                           HB 775, First Engrossed



  1  actual physical presence the person or organization owning or

  2  controlling an interest in real property was alerted by a

  3  reliable source within 24 hours preceding the accident. The

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

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

  6  organization owning or controlling an interest in real

  7  property has issued an express invitation to enter or remain

  8  upon the property or has manifested a clear intent to hold the

  9  property open to use by persons pursuing purposes such as

10  those pursued by the person whose status is at issue.

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

12  property without invitation, either express or implied, and

13  whose actual physical presence was not detected, within 24

14  hours preceding the accident, by the person or organization

15  owning or controlling an interest in real property.

16         (b)  A person or organization owning or controlling an

17  interest in real property has no duty to warn undiscovered

18  trespassers of dangerous conditions, but may be held liable

19  for injury proximately caused by the person's or

20  organization's intentional misconduct.  A person or

21  organization owning or controlling an interest in real

22  property has a duty to warn discovered trespassers of latent

23  dangerous conditions that are known to the person or

24  organization owning or controlling an interest in real

25  property but may otherwise be held liable by discovered

26  trespassers for injury proximately caused by the gross

27  negligence or intentional misconduct of the person or

28  organization controlling an interest in real property.

29         (c)  This subsection shall not be interpreted or

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

31  "attractive nuisance doctrine."


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                                           HB 775, First Engrossed



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

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

  3  organization, shall not be held liable for negligence that

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

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

  6  commission of a felony on the property.

  7         Section 17.  Section 768.725, Florida Statutes, is

  8  created to read:

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

10  civil actions a party seeking punitive damages must establish

11  at trial by clear and convincing evidence its entitlement to

12  an award of punitive damages and the amount of punitive

13  damages.

14         Section 18.  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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                                           HB 775, First Engrossed



  1  convincing evidence, finds that the defendant was guilty of

  2  intentional misconduct or gross negligence. As used in this

  3  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

11  demonstrates a conscious disregard or indifference to the

12  life, safety, or 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 officers, directors, partners, or managers of

19  the employer, principal, corporation or other legal entity

20  actively and knowingly participated in such conduct;

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

22  the employer, principal, corporation, or other legal entity

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

24         (c)  The officers, directors, partners, or managers of

25  the employer, principal, corporation or other legal entity

26  engaged in gross negligence that contributed to losses or

27  damages sustained by the claimant.

28         (4)  For the purposes of subsection (3), a corporation

29  or other legal entity acts through one or more directors,

30  partners, managers, officers, or primary owners.

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                                           HB 775, First Engrossed



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

  2  nature and shall be applied to all civil actions pending on

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

  4  has not commenced.

  5         Section 19.  Section 768.73, Florida Statutes, is

  6  amended to read:

  7         768.73  Punitive damages; limitation.--

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

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

10  punitive damages awarded to a claimant may not exceed

11  $250,000, except as provided in paragraph (b). In any civil

12  action in which the judgment for compensatory damages exceeds

13  $50,000, the judgment for punitive damages awarded to a

14  claimant may not exceed three times the amount of compensatory

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

16  in paragraph (b) based on negligence, strict liability,

17  products liability, misconduct in commercial transactions,

18  professional liability, or breach of warranty, and involving

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

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

21  exceed three times the amount of compensatory damages awarded

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

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

24  not apply to any class action.

25         (b)  No award for punitive damages may exceed the

26  limitations If any award for punitive damages exceeds the

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

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

29  the amount in excess of the limitation unless the claimant

30  demonstrates to the court by clear and convincing evidence

31  that the defendant engaged in intentional misconduct and that


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                                           HB 775, First Engrossed



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

  2  circumstances which 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 that is less than three times the amount of

  7  compensatory damages.

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

  9  damages shall not be awarded against a defendant in a civil

10  action if that defendant establishes, before trial, that

11  punitive damages have previously been awarded against that

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

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

14  the claimant seeks compensatory damages. For purposes of a

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

16  conduct" includes acts resulting in the same manufacturing

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

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

19  units of a product.

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

21  or single course of conduct for which punitive damages have

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

23  convincing evidence that the amount of prior punitive damages

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

25  the court may permit an award of subsequent punitive damages.

26  In determining the sufficiency of prior punitive damages, the

27  court may consider whether the defendant's act or course of

28  conduct has ceased.  If subsequent punitive damages are

29  permitted, the court shall make specific findings of fact in

30  the record to support its determination of the insufficiency

31  of prior punitive damages. If subsequent punitive damages are


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                                           HB 775, First Engrossed



  1  awarded by the trier of fact, the court shall reduce the

  2  subsequent punitive damage award by the amount of any punitive

  3  damage awards previously collected through judgments rendered

  4  in any state or federal court to punish the same act or single

  5  course of conduct.

  6         (3)(2)  The jury may neither be instructed nor informed

  7  as to the provisions of this section.

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

  9  nature and shall be applied to all civil actions pending on

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

11  has not commenced.

12         Section 20.  Section 768.736, Florida Statutes, is

13  created to read:

14         768.736  Punitive damages; exceptions for

15  intoxication.--Sections 768.725 and 768.73 shall not apply to

16  any defendant who, at the time of the act or omission for

17  which punitive damages are sought, was under the influence of

18  any alcoholic beverage or drug to the extent that the

19  defendant's normal faculties were impaired, or who had a blood

20  or breath alcohol level of 0.08 percent or higher.  This

21  section shall not apply in cases where the defendant proves

22  that his or her intoxication was involuntary.

23         Section 21.  Subsections (3), (4), (5), and (6) of

24  section 768.81, Florida Statutes, are amended to read:

25         768.81  Comparative fault.--

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

27  section applies, the court shall enter judgment against each

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

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

30  liability; provided that with respect to any party whose

31  percentage of fault equals or exceeds that of a particular


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                                           HB 775, First Engrossed



  1  claimant, the court shall enter judgment with respect to

  2  economic damages against that party on the basis of the

  3  doctrine of joint and several liability. However, the doctrine

  4  of joint and several liability shall not apply to that portion

  5  of economic damages in excess of $200,000.

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

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

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

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

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

11  pleading when defenses are first presented, subject to

12  amendment any time before trial in accordance with the Florida

13  Rules of Civil Procedure.

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

15  nonparty and include the named or unnamed nonparty on the

16  verdict form for purposes of apportioning damages, a defendant

17  must prove at trial, by a preponderance of the evidence, the

18  fault of the nonparty in causing the plaintiff's injuries.

19         (4)  APPLICABILITY.--

20         (a)  This section applies to negligence cases.  For

21  purposes of this section, "negligence cases" includes, but is

22  not limited to, civil actions for damages based upon theories

23  of negligence, strict liability, products liability,

24  professional malpractice whether couched in terms of contract

25  or tort, or breach of warranty and like theories. In

26  determining whether a case falls within the term "negligence

27  cases," the court shall look to the substance of the action

28  and not the conclusory terms used by the parties.

29         (b)  This section does not apply to any action brought

30  by any person to recover actual economic damages resulting

31  from pollution, to any action based upon an intentional tort,


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                                           HB 775, First Engrossed



  1  or to any cause of action as to which application of the

  2  doctrine of joint and several liability is specifically

  3  provided by chapter 403, chapter 498, chapter 517, chapter

  4  542, or chapter 895.

  5         (5)  APPLICABILITY OF JOINT AND SEVERAL

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

  7  the doctrine of joint and several liability applies to all

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

  9  $25,000.

10         (5)(6)  Notwithstanding anything in law to the

11  contrary, in an action for damages for personal injury or

12  wrongful death arising out of medical malpractice, whether in

13  contract or tort, when an apportionment of damages pursuant to

14  this section is attributed to a teaching hospital as defined

15  in s. 408.07, the court shall enter judgment against the

16  teaching hospital on the basis of such party's percentage of

17  fault and not on the basis of the doctrine of joint and

18  several liability.

19         Section 22.  Paragraph (b) of subsection (9) of section

20  324.021, Florida Statutes, is amended, and paragraph (c) is

21  added to that subsection, to read:

22         324.021  Definitions; minimum insurance required.--The

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

24  for the purpose of this chapter, have the meanings

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

26  instances where the context clearly indicates a different

27  meaning:

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

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

30  of the Florida Statutes or existing case law:,

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                                           HB 775, First Engrossed



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

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

  3  obtain insurance acceptable to the lessor which contains

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

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

  6  $500,000 combined property damage liability and bodily injury

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

  8  for the purpose of determining financial responsibility for

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

10  operator in connection therewith; further, this subparagraph

11  paragraph shall be applicable so long as the insurance meeting

12  these requirements is in effect.  The insurance meeting such

13  requirements may be obtained by the lessor or lessee,

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

15  combined coverage for bodily injury liability and property

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

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

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

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

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

21  determining liability for the operation of the vehicle or the

22  acts of the operator in connection therewith only up to

23  $100,000 per person and up to $300,000 per incident for bodily

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

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

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

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

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

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

30  specified liability of the lessor for economic damages shall

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


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                                           HB 775, First Engrossed



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

  2  covering the lessee or operator.  Nothing in this subparagraph

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

  4  its own negligence.

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

  6  vehicle to any permissive user shall be liable for the

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

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

  9  $300,000 per incident for bodily injury and up to $50,000 for

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

11  is uninsured or has any insurance with limits less than

12  $500,000 combined property damage and bodily injury liability,

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

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

15  vehicle. The additional specified liability of the owner for

16  economic damages shall be reduced by amounts actually

17  recovered from the permissive user and from any insurance or

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

19  subparagraph shall be construed to affect the liability of the

20  owner for his or her own negligence.

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

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

23  motor vehicles that are used for commercial activity in the

24  owner's ordinary course of business, other than a rental

25  company that rents or leases motor vehicles. For purposes of

26  this paragraph, the term "rental company" includes only an

27  entity that is engaged in the business of renting or leasing

28  motor vehicles to the general public and that rents or leases

29  a majority of its motor vehicles to persons with no direct or

30  indirect affiliation with the rental company. The term also

31


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                                           HB 775, First Engrossed



  1  includes a motor vehicle dealer that provides temporary

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

  3         Section 23.  (1) An employer in a joint employment

  4  relationship pursuant to s. 468.520 shall not be liable for

  5  the tortious actions of another employer in that relationship,

  6  or for the tortious actions of any jointly employed employee

  7  under that relationship, provided that:

  8         (a)  The employer seeking to avoid liability pursuant

  9  to this section did not authorize or direct the tortious

10  action;

11         (b)  The employer seeking to avoid liability pursuant

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

13  conduct and fail to take appropriate action;

14         (c)  The employer seeking to avoid liability pursuant

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

16  day job duties of the jointly employed employee who has

17  committed a tortious act, nor actual control over the portion

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

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

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

21  employer under the contract;

22         (d) That complaints, allegations or incidents of any

23  tortious misconduct or workplace safety violations, regardless

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

25  seeking to avoid liability pursuant to this section by all

26  other joint employers under a written contract forming the

27  joint employment relationship, and that the employer seeking

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

29  take appropriate action as a result of receiving any such a

30  report related to a jointly employed employee who has

31  committed a tortious act.


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                                           HB 775, First Engrossed



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

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

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

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

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

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

  7  is a leased employee.

  8         (3)  This section shall not alter any responsibilities

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

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

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

12  which the employee is employed, which arise from s. 768.096.

13         Section 24.    Section 768.735, Florida Statutes, is

14  created to read:

15         768.735 Punitive damages; exceptions; limitation.--

16         (1)  Sections 768.72(2)-(5), 768.725, and 768.73 do not

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

18  elderly, or abuse of the developmentally disabled, or arising

19  under chapter 400.  Such actions shall be governed by

20  applicable statutes and controlling judicial precedent.

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

22  abuse of the elderly, or abuse of the developmentally

23  disabled, or arising under chapter 400, and involving the

24  award of punitive damages, the judgment for the total amount

25  of punitive damages awarded to a claimant may not exceed three

26  times the amount of compensatory damages awarded to each

27  person entitled thereto by the trier of fact, except as

28  provided in paragraph (b).  However, this subsection does not

29  apply to any class action.

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

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


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                                           HB 775, First Engrossed



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

  2  the amount in excess of the limitation unless the claimant

  3  demonstrates to the court by clear and convincing evidence

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

  5  circumstances that were presented to the trier of fact.

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

  7  appropriate court from exercising its jurisdiction under s.

  8  768.74 in determining the reasonableness of an award of

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

10  compensatory damages.

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

12  the provisions of this section.

13         Section 25.  Subsection (1) of section 400.023, Florida

14  Statutes, is amended to read:

15         400.023  Civil enforcement.--

16         (1)  Any resident whose rights as specified in this

17  part are deprived or infringed upon shall have a cause of

18  action against any licensee responsible for the violation.

19  The action may be brought by the resident or his or her

20  guardian, by a person or organization acting on behalf of a

21  resident with the consent of the resident or his or her

22  guardian, or by the personal representative of the estate of a

23  deceased resident when the cause of death resulted from the

24  deprivation or infringement of the decedent's rights. The

25  action may be brought in any court of competent jurisdiction

26  to enforce such rights and to recover actual and punitive

27  damages for any deprivation or infringement on the rights of a

28  resident. Any plaintiff who prevails in any such action may be

29  entitled to recover reasonable attorney's fees, not to exceed

30  $50,000, costs of the action, and damages, unless the court

31  finds that the plaintiff has acted in bad faith, with


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                                           HB 775, First Engrossed



  1  malicious purpose, and that there was a complete absence of a

  2  justiciable issue of either law or fact.  Prevailing

  3  defendants may be entitled to recover reasonable attorney's

  4  fees pursuant to s. 57.105.  The remedies provided in this

  5  section are in addition to and cumulative with other legal and

  6  administrative remedies available to a resident and to the

  7  agency. This section does not preclude an attorney from

  8  receiving attorney's fees from his or her client in addition

  9  to attorney's fees recovered under this section.

10         Section 26.  If any provision of this act or the

11  application thereof to any person or circumstance is held

12  invalid, the invalidity does not affect other provisions or

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

14  invalid provision or application, and to this end the

15  provisions of this act are declared severable.

16         Section 27.  Section 768.737, Florida Statutes, is

17  created to read:

18         768.737  Punitive damages; application in

19  arbitration.--Sections 768.72, 768.725, and 768.73 are

20  intended to apply to civil actions, including arbitration

21  proceedings.  In the case of an arbitration proceeding, an

22  arbitrator who renders an award for punitive damages must

23  issue a written opinion setting forth the conduct which gave

24  rise to the award and how the arbitrator applied the standards

25  in s. 768.72 to such conduct.

26         Section 28.  This act shall take effect October 1,

27  1999.

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