House Bill 0775e2

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







                                          HB 775, Second 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,


                                  1

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






                                          HB 775, Second 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


                                  2

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






                                          HB 775, Second 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


                                  3

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






                                          HB 775, Second 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


                                  4

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






                                          HB 775, Second 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         requiring the Office of Program Policy Analysis

16         and Governmental Accountability to contract

17         with an actuarial firm to conduct an actuarial

18         analysis of expected reductions in judgments

19         and related costs resulting from litigation

20         reforms; specifying the basis and due date for

21         the actuarial report; providing an effective

22         date.

23

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

25

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

27  to read:

28         40.50  Jury duty and instructions in civil cases.--

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

30  sworn, the court shall instruct the jury concerning its

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


                                  5

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






                                          HB 775, Second Engrossed



  1  for submitting written questions of witnesses, and the legal

  2  issues involved in the proceeding.

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

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

  5  jurors may take notes regarding the evidence and keep the

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

  7  deliberations. The court may provide materials suitable for

  8  this purpose. The court should emphasize the confidentiality

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

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

11  promptly destroy them.

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

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

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

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

16  appropriate, limit the submission of questions to witnesses.

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

18  questions directed to witnesses or the court must be in

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

20  determines that the juror's question calls for admissible

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

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

23  stipulation or other appropriate means, including, but not

24  limited to, additional testimony upon such terms and

25  limitations as the court prescribes. If the court determines

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

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

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

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

30  not attach any significance to the failure of having their

31  question asked.


                                  6

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






                                          HB 775, Second Engrossed



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

  2  before closing arguments of counsel to enhance jurors' ability

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

  4  withhold giving the necessary procedural and housekeeping

  5  instructions until after closing arguments.

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

  7  Statutes, is amended to read:

  8         44.102  Court-ordered mediation.--

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

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

11  mediation any filed civil action for monetary damages,

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

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

14  between the parties, unless:

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

16  does not include a claim for personal injury.

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

18  debt.

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

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

21  Rules.

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

23  referral to nonbinding arbitration under this chapter.

24         6.  The parties have agreed to binding arbitration.

25         7.  The parties have agreed to an expedited trial

26  pursuant to section 7 of this act.

27         8.  The parties have agreed to voluntary trial

28  resolution pursuant to s. 44.104.

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

30  filed civil action for which mediation is not required under

31  this section.


                                  7

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






                                          HB 775, Second Engrossed



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

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

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

  4  or other parental responsibility issues as defined in s.

  5  61.13. Upon motion or request of a party, a court shall not

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

  7  history of domestic violence that would compromise the

  8  mediation process.

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

10  services mediation program has been established, may refer to

11  mediation all or any portion of a matter relating to

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

13  need of services.

14         Section 3.  Section 44.104, Florida Statutes, is

15  amended to read:

16         44.104  Voluntary binding arbitration and voluntary

17  trial resolution.--

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

19  civil dispute may agree in writing to submit the controversy

20  to voluntary binding arbitration, or voluntary trial

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

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

23  constitutional issue is involved.

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

25  which provides in voluntary binding arbitration for a method

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

27  which provides in voluntary trial resolution a method for

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

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

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

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


                                  8

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






                                          HB 775, Second Engrossed



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

  2  meet the qualifications and training requirements adopted

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

  4  the agreement method fails or for any reason cannot be

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

  6  one or more qualified arbitrators, or the trial resolution

  7  judge, as the case requires.

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

  9  compensated by the parties according to their agreement, but

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

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

12  request for binding arbitration, or voluntary trial

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

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

15  case requires.  Once appointed, the arbitrators or trial

16  resolution judge shall notify the parties of the time and

17  place for the hearing.

18         (5)  Application for voluntary binding arbitration or

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

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

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

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

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

24  applications for voluntary binding arbitration and the records

25  of the applications for voluntary trial resolution from all

26  other civil actions.

27         (6)  Filing of the application for binding arbitration

28  or voluntary trial resolution will toll the running of the

29  applicable statutes of limitation.

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

31  shall have such power to administer oaths or affirmation and


                                  9

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






                                          HB 775, Second Engrossed



  1  to conduct the proceedings as the rules of court shall

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

  3  trial resolution judge shall issue subpoenas for the

  4  attendance of witnesses and for the production of books,

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

  6  court for orders compelling attendance and production.

  7  Subpoenas shall be served and shall be enforceable in the

  8  manner provided by law.

  9         (8)  A voluntary binding arbitration The hearing shall

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

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

12  resolution judge shall conduct a voluntary trial resolution

13  hearing.  The trial resolution judge may determine any

14  question and render a final decision.

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

16  proceedings under this section.

17         (10)  An appeal of a voluntary binding arbitration

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

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

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

21  with the applicable rules of procedure or evidence.

22         (b)  Any alleged partiality or misconduct by an

23  arbitrator prejudicing the rights of any party.

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

25  the Constitution of the United States or of the State of

26  Florida.

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

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

29  in the circuit court in the circuit in which the voluntary

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

31  court, any party may appeal to the appropriate appellate


                                  10

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






                                          HB 775, Second Engrossed



  1  court.  Factual findings determined in the voluntary trial are

  2  not subject to appeal.

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

  4  appeals.  No further review shall be permitted unless a

  5  constitutional issue is raised.

  6         (13)(11)  If no appeal is taken within the time

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

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

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

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

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

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

13  the contempt powers of the court and for which judgments

14  execution shall issue on request of a party.

15         (14)(12)  This section shall not apply to any dispute

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

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

18  party to the arbitration or voluntary trial resolution when

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

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

21  chief arbiter or the trial resolution judge that the third

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

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

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

25  under this section.

26         Section 4.  Section 57.105, Florida Statutes, is

27  amended to read:

28         57.105  Attorney's fee; sanctions for raising unfounded

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

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

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


                                  11

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






                                          HB 775, Second Engrossed



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

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

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

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

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

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

  7  before trial:

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

  9  to establish the claim or defense; or

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

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

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

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

14  provided,

15

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

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

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

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

20  claimant pursuant to this subsection finds that there was a

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

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

23  interest.

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

25  determines that the claim or defense was initially presented

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

27  modification, or reversal of existing law or the establishment

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

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

30  which the moving party proves by a preponderance of the

31  evidence that any action taken by the opposing party,


                                  12

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






                                          HB 775, Second Engrossed



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

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

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

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

  5  purpose of unreasonable delay, the court shall award damages

  6  to the moving party for its reasonable expenses incurred in

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

  8  loss resulting from the improper delay.

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

10  other sanctions or remedies available under law or under court

11  rules.

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

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

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

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

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

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

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

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

20  contracts entered into on said date or thereafter.

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

22  768.79, Florida Statutes, are amended to read:

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

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

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

26  unless filing is necessary to enforce the provisions of this

27  section. In any case involving multiple party plaintiffs or

28  multiple party defendants, an offer shall specify its

29  applicability to each party and may specify any conditions

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

31  offer as the offer applies to such party.


                                  13

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






                                          HB 775, Second Engrossed



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

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

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

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

  5  party.

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

  7  fees under pursuant to the provisions of this section unless

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

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

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

11  and attorney's fees.

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

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

14  consider, along with all other relevant criteria, the

15  following additional factors:

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

17  claim.

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

19  parties.

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

21  issue.

22         4.  Whether the person making the offer had

23  unreasonably refused to furnish information necessary to

24  evaluate the reasonableness of such offer.

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

26  presenting questions of far-reaching importance affecting

27  nonparties.

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

29  that the person making the offer reasonably would be expected

30  to incur if the litigation should be prolonged.

31


                                  14

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






                                          HB 775, Second Engrossed



  1         Section 6.  Section 57.071, Florida Statutes, is

  2  amended to read:

  3         57.071  Costs; what taxable.--

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

  5  shall also be allowed:

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

  7  bonds or other security furnished by such party.

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

  9  transcribing proceedings and depositions, including opening

10  statements and arguments by counsel.

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

12  provided to such party, notwithstanding any other provision of

13  law to the contrary.

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

15  costs unless the party retaining the expert witness furnishes

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

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

18  factual basis of the opinions, including documentary evidence

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

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

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

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

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

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

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

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

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

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

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

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

31


                                  15

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






                                          HB 775, Second Engrossed



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

  2  after the court enters an order adopting the joint expedited

  3  trial stipulation.

  4         (2)  All interrogatories and requests for production

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

  6  adopting the joint expedited trial stipulation and all

  7  responses must be served within 20 days after receipt.

  8         (3)  The court shall determine the number of

  9  depositions required.

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

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

12  60-day discovery cut-off, if such schedule would not impose an

13  undue burden on the court calendar.

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

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

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

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

18  evidence, and the closing.

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

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

21  evidence, and the closing.

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

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

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

25  jury instructions and verdict form.

26         (11)  The parties may introduce a verified written

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

28  curriculum vitae instead of calling the expert to testify at

29  trial.

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

31  depositions, including video depositions, regardless of where


                                  16

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






                                          HB 775, Second Engrossed



  1  the deponent lives or whether the deponent is available to

  2  testify.

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

  4  Florida Evidence Code and the Florida Rules of Civil Procedure

  5  apply.

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

  7  trial absent extraordinary circumstances.

  8         Section 8.  Section 768.77, Florida Statutes, is

  9  amended to read:

10         768.77  Itemized verdict.--

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

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

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

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

15  into the following categories of damages:

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

17  economic losses;

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

19  noneconomic losses; and

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

21  damages, if applicable.

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

23  damages, shall be further itemized into amounts intended to

24  compensate for losses which have been incurred prior to the

25  verdict and into amounts intended to compensate for losses to

26  be incurred in the future. Future damages itemized under

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

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

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

30  itemizing amounts intended to compensate for future losses,

31


                                  17

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






                                          HB 775, Second Engrossed



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

  2  which such amounts are intended to provide compensation.

  3         Section 9.  Subsections (1) and (2) of section 768.78,

  4  Florida Statutes, are renumbered as subsections (2) and (3),

  5  respectively, paragraph (a) of present subsection (1) is

  6  amended, and a new subsection (1) is added to said section, to

  7  read:

  8         768.78  Proposals for structured settlement;

  9  alternative methods of payment of damage awards.--

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

11  parties shall specifically discuss the option and advantages

12  for the plaintiff of settlement through use of structured

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

14  plaintiff chooses to receive payment in the form of periodic

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

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

17  shall apply:

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

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

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

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

22  liability carrier shall assign the liability to make such

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

24  plaintiff and defendant.

25         (b)  The plaintiff shall have the right to

26  independently select a properly licensed and appointed

27  structured settlement broker to place the structured

28  settlement on behalf of the plaintiff and defendant.

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

30  which this section applies shall include a finding that the

31  settlement complies with this section.


                                  18

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






                                          HB 775, Second Engrossed



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

  2  settlement of which is under $100,000.

  3         (e)  Nothing herein shall create an additional action

  4  against the defendant or his attorneys.

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

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

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

  8  liability carrier if the liability carrier generally (except

  9  where otherwise agreed to or ordered by a court) assigns

10  payment obligations to an affiliated life insurance company,

11  and the liability company does not generally use outside

12  brokers and retains liability in the event of the affiliated

13  life insurance company's default.

14         (2)(1)(a)  In any action to which this part applies in

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

16  to compensate the claimant includes for future economic losses

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

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

19  of the following means, unless an alternative method of

20  payment of damages is provided in this section:

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

22  damages so assessed, with future economic losses and expenses

23  reduced to present value; or

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

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

26  determines that manifest injustice would result to any party,

27  enter a judgment ordering future economic damages, as itemized

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

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

30  lump-sum payment.

31


                                  19

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






                                          HB 775, Second Engrossed



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

  2  Statutes, is amended to read:

  3         95.031  Computation of time.--Except as provided in

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

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

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

  7  action accrues.

  8         (2)(a)  Actions for products liability and fraud under

  9  s. 95.11(3) must be begun within the period prescribed in this

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

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

12  have been discovered with the exercise of due diligence,

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

14  95.11(3), but in any event an action for fraud under s.

15  95.11(3) must be begun within 12 years after the date of the

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

17  fraud was or should have been discovered.

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

19  95.11(3), must be begun within the period prescribed in this

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

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

22  have been discovered with the exercise of due diligence,

23  rather than running from any other date prescribed elsewhere

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

25  Under no circumstances may a claimant commence an action for

26  products liability, including a wrongful death action or any

27  other claim arising from personal injury or property damage

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

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

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

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


                                  20

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






                                          HB 775, Second Engrossed



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

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

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

  4  except those included within subparagraphs 1 or 2, are

  5  conclusively presumed to have an expected useful life of 10

  6  years or less.

  7         1.  Aircraft used in commercial or contract carrying of

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

  9  railroad equipment used in commercial or contract carrying of

10  passengers or freight, and improvements to real property,

11  including elevators and escalators, are not subject to the

12  statute of repose provided within this subsection.

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

14  manufacturer specifically warranted, through express

15  representation or labeling, as having an expected useful life

16  exceeding 10 years, has an expected useful life commensurate

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

18  such circumstances, no action for products liability may be

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

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

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

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

23  component in the manufacture of another product, whichever is

24  later.

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

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

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

28  exposure or use did not manifest itself until after expiration

29  of the repose period.

30         (d)  The repose period prescribed within paragraph

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


                                  21

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






                                          HB 775, Second Engrossed



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

  2  had actual knowledge that the product was defective in the

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

  4  claim of concealment under this section shall be made with

  5  specificity, and must be based upon substantial factual and

  6  legal support. Maintaining the confidentiality of trade

  7  secrets does not constitute concealment under this section.

  8         Section 11.  Any action for products liability which

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

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

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

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

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

14  shall be barred.

15         Section 12.  Section 90.407 Florida Statutes, is

16  amended to read:

17         90.407  Subsequent remedial measures.--Evidence of

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

19  which measures if taken before the event it occurred would

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

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

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

23  rule does not require the exclusion of evidence of subsequent

24  remedial measures when offered for another purpose, such as

25  proving ownership, control, or the feasibility of

26  precautionary measures, if controverted, or impeachment.

27         Section 13.  Section 768.1257 Florida Statutes, is

28  created to read:

29         768.1257  State-of-the-art defense for products

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

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


                                  22

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






                                          HB 775, Second Engrossed



  1  shall consider the state of the art of scientific and

  2  technical knowledge and other circumstances that existed at

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

  4         Section 14.  Section 768.1256, Florida Statutes, is

  5  created to read:

  6         768.1256  Government rules defense.--In a products

  7  liability action brought against a manufacturer or seller for

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

  9  presumption that the product is not defective or unreasonably

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

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

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

13  product that allegedly caused the harm was in compliance with

14  product design, construction, or safety standards relevant to

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

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

17  prevent the type of harm that allegedly occurred, and

18  compliance with such standards is required as a condition for

19  selling or otherwise distributing the product.

20         Section 15.  Section  768.0705, Florida Statutes, is

21  created to read:

22         768.0705  Limitation on premises liability.--

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

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

25  organization owning or controlling an interest in a business

26  premises, including a convenience business that is in

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

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

29  trespassers, caused by criminal acts committed by third

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

31


                                  23

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






                                          HB 775, Second Engrossed



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

  2  within an enclosed building.

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

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

  5  controlling an interest in a business premises:

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

  7  premises;

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

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

10  premises; and

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

12  circumstances to prevent the occurrence of the criminal act.

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

14  that substantially implements the applicable security measures

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

16  against liability in connection with criminal acts that occur

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

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

19  convenience business.

20         Section 16.  Section 768.075, Florida Statutes, is

21  amended to read:

22         768.075  Immunity from liability for injury to

23  trespassers on real property; definitions; duty to

24  trespassers.--

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

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

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

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

29  property resulting from or arising by reason of the

30  trespasser's commission of the offense of trespass as

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


                                  24

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






                                          HB 775, Second Engrossed



  1  under the influence of alcoholic beverages with a

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

  3  trespasser was under the influence of any chemical substance

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

  5  under the influence of any substance controlled under chapter

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

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

  8  impaired.  For the purposes of this section, voluntary

  9  intoxication or impediment of faculties by use of alcohol or

10  any of the aforementioned substances shall not excuse a party

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

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

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

14  person or organization owning or controlling the interest in

15  real property shall not under this subsection be immune from

16  liability if gross negligence or intentional willful and

17  wanton misconduct on the part of such person or organization

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

19  injury or damage to the trespasser.

20         (2)  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 any discovered or

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

25  and regardless of whether the trespasser was intoxicated or

26  otherwise impaired.

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

28         1.  "Implied invitation" means that the visitor

29  entering the premises has an objectively reasonable belief

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

31  that portion of the real property where injury occurs.


                                  25

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






                                          HB 775, Second Engrossed



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

  2  real property without invitation, either express or implied,

  3  and whose actual physical presence was detected, within 24

  4  hours preceding the accident, by the person or organization

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

  6  actual physical presence the person or organization owning or

  7  controlling an interest in real property was alerted by a

  8  reliable source within 24 hours preceding the accident. The

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

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

11  organization owning or controlling an interest in real

12  property has issued an express invitation to enter or remain

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

14  property open to use by persons pursuing purposes such as

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

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

17  property without invitation, either express or implied, and

18  whose actual physical presence was not detected, within 24

19  hours preceding the accident, by the person or organization

20  owning or controlling an interest in real property.

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

22  interest in real property has no duty to warn undiscovered

23  trespassers of dangerous conditions, but may be held liable

24  for injury proximately caused by the person's or

25  organization's intentional misconduct.  A person or

26  organization owning or controlling an interest in real

27  property has a duty to warn discovered trespassers of latent

28  dangerous conditions that are known to the person or

29  organization owning or controlling an interest in real

30  property but may otherwise be held liable by discovered

31  trespassers for injury proximately caused by the gross


                                  26

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






                                          HB 775, Second Engrossed



  1  negligence or intentional misconduct of the person or

  2  organization controlling an interest in real property.

  3         (c)  This subsection shall not be interpreted or

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

  5  "attractive nuisance doctrine."

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

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

  8  organization, shall not be held liable for negligence that

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

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

11  commission of a felony on the property.

12         Section 17.  Section 768.725, Florida Statutes, is

13  created to read:

14         768.725  Punitive damages; burden of proof.--In all

15  civil actions a party seeking punitive damages must establish

16  at trial by clear and convincing evidence its entitlement to

17  an award of punitive damages and the amount of punitive

18  damages.

19         Section 18.  Section 768.72, Florida Statutes, is

20  amended to read:

21         768.72  Pleading in civil actions; claim for punitive

22  damages.--

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

24  shall be permitted unless there is a reasonable showing by

25  evidence in the record or proffered by the claimant which

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

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

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

29  procedure.  The rules of civil procedure shall be liberally

30  construed so as to allow the claimant discovery of evidence

31  which appears reasonably calculated to lead to admissible


                                  27

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






                                          HB 775, Second Engrossed



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

  2  financial worth shall proceed until after the pleading

  3  concerning punitive damages is permitted.

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

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

  6  convincing evidence, finds that the defendant was guilty of

  7  intentional misconduct or gross negligence. As used in this

  8  section, the term:

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

10  had actual knowledge of the wrongfulness of the conduct and

11  the high probability that injury or damage to the claimant

12  would result and, despite that knowledge, intentionally

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

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

15  conduct was so reckless or wanting in care that it

16  demonstrates a conscious disregard or indifference to the

17  life, safety, or rights of persons exposed to such conduct.

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

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

20  imposed for the conduct of an employee or agent, only if the

21  conduct of the employee or agent meets the criteria specified

22  in subsection (2) and:

23         (a)  The officers, directors, partners, or managers of

24  the employer, principal, corporation or other legal entity

25  actively and knowingly participated in such conduct;

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

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

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

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

30  the employer, principal, corporation or other legal entity

31


                                  28

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






                                          HB 775, Second Engrossed



  1  engaged in gross negligence that contributed to losses or

  2  damages sustained by the claimant.

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

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

  5  partners, managers, officers, or primary owners.

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

  7  nature and shall 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 19.  Section 768.73, Florida Statutes, is

11  amended to read:

12         768.73  Punitive damages; limitation.--

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

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

15  punitive damages awarded to a claimant may not exceed

16  $250,000, except as provided in paragraph (b). In any civil

17  action in which the judgment for compensatory damages exceeds

18  $50,000, the judgment for punitive damages awarded to a

19  claimant may not exceed three times the amount of compensatory

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

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

22  products liability, misconduct in commercial transactions,

23  professional liability, or breach of warranty, and involving

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

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

26  exceed three times the amount of compensatory damages awarded

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

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

29  not apply to any class action.

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

31  limitations If any award for punitive damages exceeds the


                                  29

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






                                          HB 775, Second Engrossed



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

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

  3  the amount in excess of the limitation unless the claimant

  4  demonstrates to the court by clear and convincing evidence

  5  that the defendant engaged in intentional misconduct and that

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

  7  circumstances which were presented to the trier of fact.

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

  9  appropriate court from exercising its jurisdiction under s.

10  768.74 in determining the reasonableness of an award of

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

12  compensatory damages.

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

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

15  action if that defendant establishes, before trial, that

16  punitive damages have previously been awarded against that

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

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

19  the claimant seeks compensatory damages. For purposes of a

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

21  conduct" includes acts resulting in the same manufacturing

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

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

24  units of a product.

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

26  or single course of conduct for which punitive damages have

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

28  convincing evidence that the amount of prior punitive damages

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

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

31  In determining the sufficiency of prior punitive damages, the


                                  30

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






                                          HB 775, Second Engrossed



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

  2  conduct has ceased.  If subsequent punitive damages are

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

  4  the record to support its determination of the insufficiency

  5  of prior punitive damages. If subsequent punitive damages are

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

  7  subsequent punitive damage award by the amount of any punitive

  8  damage awards previously collected through judgments rendered

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

10  course of conduct.

11         (3)(2)  The jury may neither be instructed nor informed

12  as to the provisions of this section.

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

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

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

16  has not commenced.

17         Section 20.  Section 768.736, Florida Statutes, is

18  created to read:

19         768.736  Punitive damages; exceptions for

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

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

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

23  any alcoholic beverage or drug to the extent that the

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

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

26  section shall not apply in cases where the defendant proves

27  that his or her intoxication was involuntary.

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

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

30         768.81  Comparative fault.--

31


                                  31

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






                                          HB 775, Second Engrossed



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

  2  section applies, the court shall enter judgment against each

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

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

  5  liability; provided that with respect to any party whose

  6  percentage of fault equals or exceeds that of a particular

  7  claimant, the court shall enter judgment with respect to

  8  economic damages against that party on the basis of the

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

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

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

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

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

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

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

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

17  pleading when defenses are first presented, subject to

18  amendment any time before trial in accordance with the Florida

19  Rules of Civil Procedure.

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

21  nonparty and include the named or unnamed nonparty on the

22  verdict form for purposes of apportioning damages, a defendant

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

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

25         (4)  APPLICABILITY.--

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

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

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

29  of negligence, strict liability, products liability,

30  professional malpractice whether couched in terms of contract

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


                                  32

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






                                          HB 775, Second Engrossed



  1  determining whether a case falls within the term "negligence

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

  3  and not the conclusory terms used by the parties.

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

  5  by any person to recover actual economic damages resulting

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

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

  8  doctrine of joint and several liability is specifically

  9  provided by chapter 403, chapter 498, chapter 517, chapter

10  542, or chapter 895.

11         (5)  APPLICABILITY OF JOINT AND SEVERAL

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

13  the doctrine of joint and several liability applies to all

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

15  $25,000.

16         (5)(6)  Notwithstanding anything in law to the

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

18  wrongful death arising out of medical malpractice, whether in

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

20  this section is attributed to a teaching hospital as defined

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

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

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

24  several liability.

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

26  324.021, Florida Statutes, is amended, and paragraph (c) is

27  added to that subsection, to read:

28         324.021  Definitions; minimum insurance required.--The

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

30  for the purpose of this chapter, have the meanings

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


                                  33

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






                                          HB 775, Second Engrossed



  1  instances where the context clearly indicates a different

  2  meaning:

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

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

  5  of the Florida Statutes or existing case law:,

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

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

  8  obtain insurance acceptable to the lessor which contains

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

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

11  $500,000 combined property damage liability and bodily injury

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

13  for the purpose of determining financial responsibility for

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

15  operator in connection therewith; further, this subparagraph

16  paragraph shall be applicable so long as the insurance meeting

17  these requirements is in effect.  The insurance meeting such

18  requirements may be obtained by the lessor or lessee,

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

20  combined coverage for bodily injury liability and property

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

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

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

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

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

26  determining liability for the operation of the vehicle or the

27  acts of the operator in connection therewith only up to

28  $100,000 per person and up to $300,000 per incident for bodily

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

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

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


                                  34

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






                                          HB 775, Second Engrossed



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

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

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

  4  specified liability of the lessor for economic damages shall

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

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

  7  covering the lessee or operator.  Nothing in this subparagraph

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

  9  its own negligence.

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

11  vehicle to any permissive user shall be liable for the

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

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

14  $300,000 per incident for bodily injury and up to $50,000 for

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

16  is uninsured or has any insurance with limits less than

17  $500,000 combined property damage and bodily injury liability,

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

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

20  vehicle. The additional specified liability of the owner for

21  economic damages shall be reduced by amounts actually

22  recovered from the permissive user and from any insurance or

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

24  subparagraph shall be construed to affect the liability of the

25  owner for his or her own negligence.

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

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

28  motor vehicles that are used for commercial activity in the

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

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

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


                                  35

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






                                          HB 775, Second Engrossed



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

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

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

  4  indirect affiliation with the rental company. The term also

  5  includes a motor vehicle dealer that provides temporary

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

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

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

  9  the tortious actions of another employer in that relationship,

10  or for the tortious actions of any jointly employed employee

11  under that relationship, provided that:

12         (a)  The employer seeking to avoid liability pursuant

13  to this section did not authorize or direct the tortious

14  action;

15         (b)  The employer seeking to avoid liability pursuant

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

17  conduct and failed to take appropriate action;

18         (c)  The employer seeking to avoid liability pursuant

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

20  day job duties of the jointly employed employee who has

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

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

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

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

25  employer under the contract;

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

27  tortious misconduct or workplace safety violations, regardless

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

29  seeking to avoid liability pursuant to this section by all

30  other joint employers under a written contract forming the

31  joint employment relationship, and that the employer seeking


                                  36

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






                                          HB 775, Second Engrossed



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

  2  take appropriate action as a result of receiving any such

  3  report related to a jointly employed employee who has

  4  committed a tortious act.

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

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

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

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

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

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

11  is a leased employee.

12         (3)  This section shall not alter any responsibilities

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

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

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

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

17         Section 24.    Section 768.735, Florida Statutes, is

18  created to read:

19         768.735 Punitive damages; exceptions; limitation.--

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

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

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

23  under chapter 400.  Such actions shall be governed by

24  applicable statutes and controlling judicial precedent.

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

26  abuse of the elderly, or abuse of the developmentally

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

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

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

30  times the amount of compensatory damages awarded to each

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


                                  37

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






                                          HB 775, Second Engrossed



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

  2  apply to any class action.

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

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

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

  6  the amount in excess of the limitation unless the claimant

  7  demonstrates to the court by clear and convincing evidence

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

  9  circumstances that were presented to the trier of fact.

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

11  appropriate court from exercising its jurisdiction under s.

12  768.74 in determining the reasonableness of an award of

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

14  compensatory damages.

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

16  the provisions of this section.

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

18  Statutes, is amended to read:

19         400.023  Civil enforcement.--

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

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

22  action against any licensee responsible for the violation.

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

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

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

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

27  deceased resident when the cause of death resulted from the

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

29  action may be brought in any court of competent jurisdiction

30  to enforce such rights and to recover actual and punitive

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


                                  38

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






                                          HB 775, Second Engrossed



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

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

  3  $50,000, costs of the action, and damages, unless the court

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

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

  6  justiciable issue of either law or fact.  Prevailing

  7  defendants may be entitled to recover reasonable attorney's

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

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

10  administrative remedies available to a resident and to the

11  agency. This section does not preclude an attorney from

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

13  to attorney's fees recovered under this section.

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

15  application thereof to any person or circumstance is held

16  invalid, the invalidity does not affect other provisions or

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

18  invalid provision or application, and to this end the

19  provisions of this act are declared severable.

20         Section 27.  Section 768.737, Florida Statutes, is

21  created to read:

22         768.737  Punitive damages; application in

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

24  intended to apply to civil actions, including arbitration

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

26  arbitrator who renders an award for punitive damages must

27  issue a written opinion setting forth the conduct which gave

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

29  in s. 768.72 to such conduct.

30         Section 28.  (1)  The Office of Program Policy Analysis

31  and Governmental Accountability shall, after issuing a request


                                  39

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






                                          HB 775, Second Engrossed



  1  for proposals, contract with a national independent actuarial

  2  firm to conduct an actuarial analysis, consistent with

  3  generally accepted actuarial practices, of the expected

  4  reduction in liability judgments, settlements, and related

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

  6  shall be based on credible loss cost data derived from

  7  settlement or adjudication of liability claims accruing after

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

  9  estimate of the percentage decrease in such judgments,

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

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

12  are expected.

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

14  department by March 1, 2007.

15         Section 29.  This act shall take effect October 1,

16  1999.

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31


                                  40