House Bill hb1651

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    Florida House of Representatives - 2001                HB 1651

        By Representative Bense






  1                      A bill to be entitled

  2         An act relating to restoring confidence in the

  3         judicial system; creating s. 43.291, F.S.;

  4         specifying membership composition and

  5         requirements of judicial nominating

  6         commissions; providing limitations; providing

  7         for terms; abolishing prior offices; providing

  8         for suspension or removal; requiring racial,

  9         ethnic, gender, and geographical diversity of

10         commission memberships; repealing s. 43.29,

11         F.S., relating to judicial nominating

12         commissions; reenacting ss. 3, 6, 9, 10, 11,

13         12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23,

14         24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, and

15         35 of ch. 99-225, Laws of Florida, which amend

16         ss. 44.104, 95.031, 90.407, 768.095, 768.075,

17         768.72, 768.73, 768.81, 324.021, 400.023,

18         400.029, and 400.629, F.S., and create ss.

19         47.025, 768.1257, 768.1256, 768.096, 768.0705,

20         768.36, 768.725, 768.735, 768.736, 768.737, and

21         768.098, F.S.; providing for voluntary trial

22         resolution upon the agreement of parties to a

23         civil dispute; providing for the appointment

24         and compensation of a trial resolution judge;

25         providing guidelines for conducting a voluntary

26         trial resolution; providing for enforcement and

27         appeal; providing for expedited trials;

28         providing that certain venue provisions in a

29         contract for improvement to real property are

30         void; specifying appropriate venue for actions

31         against resident contractors, subcontractors,

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  1         sub-subcontractors, and materialmen; requiring

  2         the clerk of courts to report certain

  3         information on negligence cases to the Office

  4         of the State Courts Administrator; imposing a

  5         12-year statute of repose on actions brought to

  6         recover for harm caused by products with a

  7         specified expected useful life; exempting

  8         certain categories of products from the statute

  9         of repose; imposing variable repose periods

10         based on specific warranties by the

11         manufacturer; providing an exception for

12         certain injuries; providing for tolling under

13         particular circumstances; specifying the date

14         by which certain actions must be brought or be

15         otherwise barred by the statute of repose;

16         providing limitations on the admissibility of

17         subsequent remedial measures; providing

18         exceptions; requiring the finder of fact, in

19         certain product defect actions, to consider

20         circumstances that existed at the time of

21         manufacture; providing a government rules

22         defense with respect to certain products

23         liability actions; providing for rebuttable

24         presumptions; providing an exception; providing

25         an employer with a presumption against

26         negligent hiring under specified conditions in

27         an action for civil damages resulting from an

28         intentional tort committed by an employee;

29         revising the conditions under which an employer

30         is immune from civil liability for disclosing

31         information regarding an employee to a

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  1         prospective employer; providing a presumption

  2         against liability for criminal acts for

  3         convenience business under specified

  4         conditions; delineating the duty owed to

  5         trespassers by a person or organization owning

  6         or controlling an interest in real property;

  7         providing definitions; providing for the

  8         avoidance of liability to discovered and

  9         undiscovered trespassers under described

10         circumstances; providing immunity from certain

11         liability arising out of the attempt to commit

12         or the commission of a felony; prohibiting a

13         plaintiff from recovering damages if plaintiff

14         is more than a specified percentage at fault

15         due to the influence of alcoholic beverages or

16         drugs; providing for evidentiary standards for

17         an award of punitive damages; revising

18         provisions with respect to claims for punitive

19         damages in civil actions; requiring clear and

20         convincing evidence of gross negligence or

21         intentional misconduct to support the recovery

22         of such damages; providing definitions;

23         providing criteria for the imposition of

24         punitive damages with respect to employers,

25         principals, corporations, or other legal

26         entities for the conduct of an employee or

27         agent; providing for the application of the

28         section; revising provisions with respect to

29         limitations on punitive damages; providing

30         monetary limitations; providing for the effect

31         of certain previous punitive damages awards;

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  1         providing for the application of the section;

  2         providing that ss. 768.72(2)-(4), 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.; providing that ss. 768.725 and

  9         768.73, F.S., relating to punitive damages, do

10         not apply to intoxicated defendants; providing

11         for application of punitive damages statutes to

12         arbitration; providing for the apportionment of

13         damages on the basis of joint and several

14         liability when a party's fault exceeds certain

15         percentages; limiting the applicability of

16         joint and several liability based on the amount

17         of damages; providing for the allocation of

18         fault to a nonparty; requiring that such fault

19         must be proved by a preponderance of the

20         evidence; providing the lessor of a motor

21         vehicle under certain rental agreements shall

22         be deemed the owner of the vehicle for the

23         purpose of determining liability for the

24         operation of the vehicle within certain limits;

25         providing for the liability of the owner of a

26         motor vehicle who loans the vehicle to certain

27         users; limiting the liability of employers in a

28         joint employment relationship under specific

29         circumstances; providing exceptions and

30         limitations; relating to actions brought on

31         behalf of nursing home residents; providing

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  1         that a party to any such action may not recover

  2         attorney's fees unless parties submit to

  3         mediation; specifying requirements for such

  4         mediation; providing for application; providing

  5         a standard for an award of punitive damages;

  6         relating to actions brought on behalf of

  7         assisted living care facility residents;

  8         providing that a party to any such action may

  9         not recover attorney's fees unless parties

10         submit to mediation; specifying requirements

11         for such mediation; providing for application;

12         providing a standard for an award of punitive

13         damages; relating to actions brought on behalf

14         of adult family care home residents; providing

15         that a party to any such action may not recover

16         attorney's fees unless parties submit to

17         mediation; specifying requirements for such

18         mediation; providing for application; providing

19         a standard for an award of punitive damages;

20         requiring the Office of Program Policy Analysis

21         and Government Accountability to contract with

22         an actuarial firm to conduct an actuarial

23         analysis of expected reductions in judgments

24         and related costs resulting from litigation

25         reforms; specifying the basis and due date for

26         the actuarial report; providing a declaration

27         of intent pertaining to the constitutional

28         prerogatives of the judiciary; providing for

29         severability; providing an effective date.

30         WHEREAS, it is the sense of the Legislature, and its

31  finding, that a crisis exists in public confidence in our

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  1  civil justice system. The public has expressed continuing

  2  concern over frivolous lawsuits, delay and inefficiency in

  3  resolving claims, and ineffective or insufficient incentives

  4  to settle claims. There exists a present public necessity to

  5  restore citizens' faith in the justice system, and

  6         WHEREAS, the Legislature believes and finds that making

  7  the composition of judicial nominating commissions more

  8  geographically diverse and accountable to the electorate will

  9  help restore public confidence, and

10         WHEREAS, the crisis in public confidence in our civil

11  justice system is exacerbated by doctrines which require a

12  person to pay more than his or her fair share of a loss, base

13  liability on what one owns rather than what one does wrong,

14  encourage irresponsible conduct and discourage personal

15  responsibility, and impede citizen productivity and

16  well-being, and

17         WHEREAS, the inequities, imbalances, and disincentives

18  plaguing our judicial system for almost three decades have

19  contributed directly and substantially to at least four crises

20  identified by the Legislature, in addition to the crisis in

21  public confidence presently existing, and

22         WHEREAS, the seeds of the imbalances in the civil

23  justice system took root in 1973, when the Supreme Court in

24  Hoffman v. Jones dramatically altered Florida's fault-based

25  system and permitted a plaintiff to recover damages in tort

26  even if 99 percent responsible for the plaintiff's own loss,

27  yet retained the doctrine of joint and several liability,

28  under which defendants are required to pay more than their

29  fair share of a loss, and

30         WHEREAS, shortly after Hoffman, the Court greatly

31  expanded the liability of Florida retailers and manufacturers

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  1  of products by adopting the doctrine of strict liability,

  2  which imposes liability without fault, and

  3         WHEREAS, for the next twenty years following these

  4  decisions, the number of tort filings in Florida rose

  5  dramatically, far in excess of the state's increase in

  6  population, and

  7         WHEREAS, as noted above, the Legislature was forced to

  8  declare crises at least four different times in the civil

  9  litigation system, in 1975, 1976, 1986, and 1988, and

10         WHEREAS, in 1985 the Florida Supreme Court found in

11  Walt Disney World v. Wood that the Legislature was the

12  appropriate body to determine the continued viability, if any,

13  of joint and several liability, and

14         WHEREAS, in the Fabre v. Marin in 1993, the Supreme

15  Court reaffirmed the principal that one's liability should be

16  based on one's fault, and

17         WHEREAS, from 1997 through 1999, the Legislature

18  conducted comprehensive, exhaustive legislative hearings,

19  which revealed that many of the same inequities and imbalances

20  in the tort system which had arisen during the past three

21  decades, and which had prompted at least four different

22  crises, continued to persist in the system, and

23         WHEREAS, those exhaustive legislative hearings further

24  revealed that many of the states against which Florida

25  competed for economic development had made improvements in

26  their civil system which placed Florida at a competitive

27  disadvantage with those states, and

28         WHEREAS, an empirical economic analysis demonstrated

29  that the productivity of individual citizens is enhanced in

30  states where civil justice reforms are enacted, and diminished

31  in states where liability-enhancing measures are enacted, and

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  1  a separate analysis demonstrated that Floridians stood to gain

  2  one billion dollars in savings if Florida enacted certain

  3  civil justice reforms, and

  4         WHEREAS, since the hearings in 1997 through 1999,

  5  citizens of the State of Texas have actually realized billions

  6  of dollars in savings as a result of civil justice reforms,

  7  and

  8         WHEREAS, the Legislature finds that the scourge of

  9  drunk driving has been and remains a matter of paramount state

10  concern, which should be addressed in every manner reasonably

11  possible, and

12         WHEREAS, a critical sector of Florida's society and

13  economy, the care of the elderly, is in the midst of a

14  catastrophic crisis arising in substantial part from the

15  present civil litigation system, and

16         WHEREAS, economic indicators point to the likelihood of

17  a weakened economy both at the state and national level, which

18  could serve to exacerbate the inequities and imbalances in the

19  civil justice system, and threaten the economic well-being of

20  Florida's citizens, and

21         WHEREAS, the Legislature finds and declares that in

22  view of the history of Florida's tort system since 1973, the

23  present crisis in public confidence, the present crisis in

24  nursing home litigation, and the lingering inequities in the

25  civil justice system which could further deepen the present

26  crises, it is of paramount importance to enact proactive

27  comprehensive legislation which will help to remedy the

28  inefficiencies and imbalances in Florida's civil justice

29  system, which will serve to enhance economic productivity in

30  the state, improve the fairness and predictability of the

31

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  1  system, and enhance the overall well-being of all Florida's

  2  citizens, and

  3         WHEREAS, the Legislature further finds and declares

  4  that the civil justice system must strike a careful balance

  5  ensuring that tort victims are fairly compensated for their

  6  injuries, while maintaining fairness, common sense, and

  7  predictability to the system, encouraging responsible conduct,

  8  and demanding personal accountability for irresponsible

  9  conduct. This delicate balance, affecting every element of

10  Florida's society and economy, can best be accomplished

11  through comprehensive legislative action, and

12         WHEREAS, the Legislature further finds and declares

13  that the constituent elements of this legislation are properly

14  and integrally connected to civil justice reform by serving to

15  balance all competing interests and improving the efficiency

16  of the litigation system, enhancing the fairness and

17  predictability of standards of conduct for all Florida's

18  citizens, and moving Florida closer to a fault-based system as

19  contemplated and encouraged by the Supreme Court in Fabre v.

20  Marin and Walt Disney World v. Wood, NOW, THEREFORE,

21

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

23

24         Section 1.  Section 43.291, Florida Statutes, is

25  created to read:

26         43.291  Judicial nominating commissions.--

27         (1)  Each judicial nominating commission established

28  pursuant to s. 11(d), Art. V of the State Constitution shall

29  consist of nine members appointed by the Governor, each of

30  whom shall be a resident of the territorial jurisdiction

31  served by the commission to which the member is appointed.

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  1  Five members shall be members in good standing of The Florida

  2  Bar who are actively engaged in the practice of law and four

  3  members shall not be members of The Florida Bar.

  4         (2)(a)  In making such appointments, the Governor shall

  5  seek to ensure that the members of the commissions reflect the

  6  racial, ethnic, and gender diversity of the population within

  7  the territorial jurisdiction of the court for which

  8  nominations will be considered.

  9         (b)  In appointing members for judicial circuits of

10  this state, the Governor shall appoint at least one

11  commissioner from each county within the judicial circuit and

12  such commissioner shall reside within the county from which he

13  or she is appointed.

14         (c)  In appointing members for court of appeals

15  districts of this state, the Governor shall appoint at least

16  one commissioner from each judicial circuit within the

17  district and such commissioner shall reside within the

18  judicial circuit from which he or she is appointed.

19         (d)  In appointing members for the Supreme Court

20  Judicial Nominating Commission, the Governor shall appoint at

21  least one commissioner from each court of appeals district

22  within the state and such commissioner shall reside within the

23  court of appeals district from which he or she is appointed.

24         (3)  No justice or judge may be a member of a judicial

25  nominating commission.  A member of a judicial nominating

26  commission may hold public office other than judicial office.

27  A member of a judicial nominating commission is not eligible

28  for appointment to the state judicial office for which the

29  commission has the authority to make nominations, either

30  during such term of membership or for a period of 2 years

31

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  1  thereafter.  All acts of a judicial nominating commission

  2  shall be made with concurrence of a majority of its members.

  3         (4)  All members shall be appointed for a term to end

  4  concurrently with the term to which the Governor was elected.

  5  The terms of all members shall be concurrent, and the terms

  6  may commence at any time following the inauguration of the

  7  Governor as a result of a general election.  If a member is

  8  unable to complete his or her term, the Governor shall appoint

  9  another individual, qualified under the same subsection of

10  this section as the member previously appointed, to fill the

11  remainder of the member's term. All terms shall end at

12  midnight on the evening prior to the next inauguration of a

13  Governor following a general election. A member of a judicial

14  nominating commission may be suspended by the Governor for

15  cause pursuant to uniform rules of procedure established by

16  the Executive Office of the Governor consistent with s. 7,

17  Art. IV of the State Constitution and thereafter removed by

18  the Senate.

19         (5)  The office of any member of any judicial

20  nominating commission appointed pursuant to s. 43.29 prior to

21  the effective date of this act is abolished upon the effective

22  date of this act and is replaced by those offices created

23  pursuant to subsection (1).  Any member of a judicial

24  nominating commission who will not complete a 4-year term

25  because of enactment of this section may be reappointed by the

26  Governor.

27         Section 2.  Section 43.29, Florida Statutes, is

28  repealed.

29         Section 3.  Sections 3, 6, 9, 10, 11, 12, 13, 14, 15,

30  16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30,

31

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  1  31, 32, 33, 34, and 35, of chapter 99-225, Laws of Florida,

  2  are reenacted to read:

  3         Section 3.  Section 44.104, Florida Statutes, is

  4  amended to read:

  5         44.104  Voluntary binding arbitration and voluntary

  6  trial resolution.--

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

  8  civil dispute may agree in writing to submit the controversy

  9  to voluntary binding arbitration, or voluntary trial

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

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

12  constitutional issue is involved.

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

14  which provides in voluntary binding arbitration for a method

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

16  which provides in voluntary trial resolution a method for

17  appointing a member of The Florida Bar in good standing for

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

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

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

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

22  meet the qualifications and training requirements adopted

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

24  the agreement method fails or for any reason cannot be

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

26  one or more qualified arbitrators, or the trial resolution

27  judge, as the case requires.

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

29  compensated by the parties according to their agreement, but

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

31

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

  2  request for binding arbitration, or voluntary trial

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

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

  5  case requires.  Once appointed, the arbitrators or trial

  6  resolution judge shall notify the parties of the time and

  7  place for the hearing.

  8         (5)  Application for voluntary binding arbitration or

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

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

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

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

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

14  applications for voluntary binding arbitration and the records

15  of the applications for voluntary trial resolution from all

16  other civil actions.

17         (6)  Filing of the application for binding arbitration

18  or voluntary trial resolution will toll the running of the

19  applicable statutes of limitation.

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

21  shall have such power to administer oaths or affirmation and

22  to conduct the proceedings as the rules of court shall

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

24  trial resolution judge shall issue subpoenas for the

25  attendance of witnesses and for the production of books,

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

27  court for orders compelling attendance and production.

28  Subpoenas shall be served and shall be enforceable in the

29  manner provided by law.

30         (8)  A voluntary binding arbitration The hearing shall

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

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

  2  resolution judge shall conduct a voluntary trial resolution

  3  hearing.  The trial resolution judge may determine any

  4  question and render a final decision.

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

  6  proceedings under this section.

  7         (10)  An appeal of a voluntary binding arbitration

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

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

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

11  with the applicable rules of procedure or evidence.

12         (b)  Any alleged partiality or misconduct by an

13  arbitrator prejudicing the rights of any party.

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

15  the Constitution of the United States or of the State of

16  Florida.

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

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

19  in the circuit court in the circuit in which the voluntary

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

21  court, any party may appeal to the appropriate appellate

22  court.  Factual findings determined in the voluntary trial are

23  not subject to appeal.

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

25  appeals. No further review shall be permitted unless a

26  constitutional issue is raised.

27         (13)(11)  If no appeal is taken within the time

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

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

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

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

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

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

  3  the contempt powers of the court and for which judgments

  4  execution shall issue on request of a party.

  5         (14)(12)  This section shall not apply to any dispute

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

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

  8  party to the arbitration or voluntary trial resolution when

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

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

11  chief arbitrator or the trial resolution judge that the third

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

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

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

15  under this section.

16         Section 6.  Expedited trials.--Upon the joint

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

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

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

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

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

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

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

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

25  after the court enters an order adopting the joint expedited

26  trial stipulation.

27         (2)  All interrogatories and requests for production

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

29  adopting the joint expedited trial stipulation, and all

30  responses must be served within 20 days after receipt.

31

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  1         (3)  The court shall determine the number of

  2  depositions required.

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

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

  5  60-day discovery cutoff, if such schedule would not impose an

  6  undue burden on the court calendar.

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

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

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

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

11  evidence, and the closing.

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

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

14  evidence, and the closing.

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

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

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

18  jury instructions and verdict form.

19         (11)  The parties may introduce a verified written

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

21  curriculum vitae instead of calling the expert to testify at

22  trial.

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

24  depositions, including video depositions, regardless of where

25  the deponent lives or whether the deponent is available to

26  testify.

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

28  Florida Evidence Code and the Florida Rules of Civil Procedure

29  apply.

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

31  trial absent extraordinary circumstances.

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  1         Section 9.  Section 47.025, Florida Statutes, is

  2  created to read:

  3         47.025  Actions against contractors.--Any venue

  4  provision in a contract for improvement to real property which

  5  requires legal action involving a resident contractor,

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

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

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

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

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

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

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

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

14  parties stipulate to another venue.

15         Section 10.  Through the state's uniform case reporting

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

17  State Courts Administrator, beginning in 2003, information

18  from each settlement or jury verdict and final judgment in

19  negligence cases as defined in section 768.81(4), Florida

20  Statutes, as the President of the Senate and the Speaker of

21  the House of Representatives deem necessary from time to time.

22  The information shall include, but need not be limited

23  to:  the name of each plaintiff and defendant; the verdict;

24  the percentage of fault of each; the amount of economic

25  damages and noneconomic damages awarded to each plaintiff,

26  identifying those damages that are to be paid jointly and

27  severally and by which defendants; and the amount of any

28  punitive damages to be paid by each defendant.

29         Section 11.  Effective July 1, 1999, subsection (2) of

30  section 95.031, Florida Statutes, is amended to read:

31

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  1         95.031  Computation of time.--Except as provided in

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

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

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

  5  action accrues.

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

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

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

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

10  discovered or should have been discovered with the exercise of

11  due diligence, instead of running from any date prescribed

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

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

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

15  the fraud was or should have been discovered.

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

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

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

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

20  been discovered with the exercise of due diligence, rather

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

22  95.11(3), except as provided within this subsection. Under no

23  circumstances may a claimant commence an action for products

24  liability, including a wrongful death action or any other

25  claim arising from personal injury or property damage caused

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

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

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

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

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

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

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

  2  except those included within subparagraph 1. or subparagraph

  3  2., are conclusively presumed to have an expected useful life

  4  of 10 years or less.

  5         1.  Aircraft used in commercial or contract carrying of

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

  7  railroad equipment used in commercial or contract carrying of

  8  passengers or freight, and improvements to real property,

  9  including elevators and escalators, are not subject to the

10  statute of repose provided within this subsection.

11         2.  Any product not listed in subparagraph 1., which

12  the manufacturer specifically warranted, through express

13  representation or labeling, as having an expected useful life

14  exceeding 10 years, has an expected useful life commensurate

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

16  such circumstances, no action for products liability may be

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

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

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

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

21  component in the manufacture of another product, whichever is

22  later.

23         3.  With regard to those products listed in

24  subparagraph 1., except for escalators, elevators, and

25  improvements to real property, no action for products

26  liability may be brought more than 20 years after delivery of

27  the product to its first purchaser or lessor who was not

28  engaged in the business of selling or leasing the product or

29  of using the product as a component in the manufacture of

30  another product. However, if the manufacturer specifically

31  warranted, through express representation or labeling, that

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  1  the product has an expected useful life exceeding 20 years,

  2  the repose period shall be the time period warranted in

  3  representations or label.

  4         (c)  The repose period prescribed in paragraph (b) does

  5  not apply if the claimant was exposed to or used the product

  6  within the repose period, but an injury caused by such

  7  exposure or use did not manifest itself until after expiration

  8  of the repose period.

  9         (d)  The repose period prescribed within paragraph (b)

10  is tolled for any period during which the manufacturer through

11  its officers, directors, partners, or managing agents had

12  actual knowledge that the product was defective in the manner

13  alleged by the claimant and took affirmative steps to conceal

14  the defect. Any claim of concealment under this section shall

15  be made with specificity and must be based upon substantial

16  factual and legal support. Maintaining the confidentiality of

17  trade secrets does not constitute concealment under this

18  section.

19         Section 12.  (1)  The amendments to section 95.031(2),

20  Florida Statutes, made by this act shall apply to any action

21  commenced on or after the effective date of that section,

22  regardless of when the cause of action accrued, except that

23  any action for products liability which would not have been

24  barred under section 95.031(2), Florida Statutes, prior to the

25  amendments to that section made by this act may be commenced

26  before July 1, 2003, and, if it is not commenced by that date

27  and is barred by the amendments to section 95.031(2), Florida

28  Statutes, made by this act, it shall be barred.

29         (2)  This section shall take effect July 1, 1999.

30         Section 13.  Section 90.407, Florida Statutes, is

31  amended to read:

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  1         90.407  Subsequent remedial measures.--Evidence of

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

  3  which measures if taken before the event it occurred would

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

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

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

  7  rule does not require the exclusion of evidence of subsequent

  8  remedial measures when offered for another purpose, such as

  9  proving ownership, control, or the feasibility of

10  precautionary measures, if controverted, or impeachment.

11         Section 14.  Section 768.1257, Florida Statutes, is

12  created to read:

13         768.1257  State-of-the-art defense for products

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

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

16  shall consider the state of the art of scientific and

17  technical knowledge and other circumstances that existed at

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

19         Section 15.  Section 768.1256, Florida Statutes, is

20  created to read:

21         768.1256  Government rules defense.--

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

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

24  there is a rebuttable presumption that the product is not

25  defective or unreasonably dangerous and the manufacturer or

26  seller is not liable if, at the time the specific unit of the

27  product was sold or delivered to the initial purchaser or

28  user, the aspect of the product that allegedly caused the

29  harm:

30

31

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

  2  rules, regulations, or standards relevant to the event causing

  3  the death or injury;

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

  5  standards are designed to prevent the type of harm that

  6  allegedly occurred; and

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

  8  regulations, or standards is required as a condition for

  9  selling or distributing the product.

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

11  subsection (1), there is a rebuttable presumption that the

12  product is defective or unreasonably dangerous and the

13  manufacturer or seller is liable if the manufacturer or seller

14  did not comply with the federal or state codes, statutes,

15  rules, regulations, or standards which:

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

17  injury;

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

19  allegedly occurred; and

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

21  distributing the product.

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

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

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

25         Section 16.  Section 768.096, Florida Statutes, is

26  created to read:

27         768.096  Employer presumption against negligent

28  hiring.--

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

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

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

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

  2  employee, the employer conducted a background investigation of

  3  the prospective employee and the investigation did not reveal

  4  any information that reasonably demonstrated the unsuitability

  5  of the prospective employee for the particular work to be

  6  performed or for the employment in general. A background

  7  investigation under this section must include:

  8         (a)  Obtaining a criminal background investigation on

  9  the prospective employee under subsection (2);

10         (b)  Making a reasonable effort to contact references

11  and former employers of the prospective employee concerning

12  the suitability of the prospective employee for employment;

13         (c)  Requiring the prospective employee to complete a

14  job application form that includes questions concerning

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

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

17  conviction and the penalty imposed, and whether the

18  prospective employee has ever been a defendant in a civil

19  action for intentional tort, including the nature of the

20  intentional tort and the disposition of the action;

21         (d)  Obtaining, with written authorization from the

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

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

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

25  reasonably be obtained; or

26         (e)  Interviewing the prospective employee.

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

28  requirement of this section, an employer must request and

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

30  information as reported and reflected in the Florida Crime

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

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

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

  3  presumption that the employer failed to use reasonable care in

  4  hiring an employee.

  5         Section 17.  Section 768.095, Florida Statutes, is

  6  amended to read:

  7         768.095  Employer immunity from liability; disclosure

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

  9  employer who discloses information about a former or current

10  employee employee's job performance to a prospective employer

11  of the former or current employee upon request of the

12  prospective employer or of the former or current employee is

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

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

15  from civil liability for such disclosure or its consequences

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

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

18  rebutted upon a showing that the information disclosed by the

19  former or current employer was knowingly false or deliberately

20  misleading, was rendered with malicious purpose, or violated

21  any civil right of the former or current employee protected

22  under chapter 760.

23         Section 18.  Section 768.0705, Florida Statutes, is

24  created to read:

25         768.0705  Limitation on premises liability.--The owner

26  or operator of a convenience business that substantially

27  implements the applicable security measures listed in ss.

28  812.173 and 812.174 shall gain a presumption against liability

29  in connection with criminal acts that occur on the premises

30  and that are committed by third parties who are not employees

31

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  1  or agents of the owner or operator of the convenience

  2  business.

  3         Section 19.  Section 768.075, Florida Statutes, is

  4  amended to read:

  5         768.075  Immunity from liability for injury to

  6  trespassers on real property.--

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

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

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

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

11  property resulting from or arising by reason of the

12  trespasser's commission of the offense of trespass as

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

14  under the influence of alcoholic beverages with a

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

16  trespasser was under the influence of any chemical substance

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

18  under the influence of any substance controlled under chapter

19  893, or if the trespasser is affected by any of the aforesaid

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

21  impaired. For the purposes of this section, voluntary

22  intoxication or impediment of faculties by use of alcohol or

23  any of the aforementioned substances shall not excuse a party

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

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

26  organization owning or controlling the interest in real

27  property shall not be immune from liability if gross

28  negligence or intentional willful and wanton misconduct on the

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

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

31  trespasser.

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

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

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

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

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

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

  7  or otherwise impaired.

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

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

10  premises has an objectively reasonable belief that he or she

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

12  the real property where injury occurs.

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

14  real property without invitation, either express or implied,

15  and whose actual physical presence was detected, within 24

16  hours preceding the accident, by the person or organization

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

18  actual physical presence the person or organization owning or

19  controlling an interest in real property was alerted by a

20  reliable source within 24 hours preceding the accident. The

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

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

23  organization owning or controlling an interest in real

24  property has issued an express invitation to enter the

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

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

27  by the person whose status is at issue.

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

29  property without invitation, either express or implied, and

30  whose actual physical presence was not detected, within 24

31

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  1  hours preceding the accident, by the person or organization

  2  owning or controlling an interest in real property.

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

  4  person or organization owning or controlling an interest in

  5  real property must refrain from intentional misconduct that

  6  proximately causes injury to the undiscovered trespasser, but

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

  8  liability to discovered trespassers, a person or organization

  9  owning or controlling an interest in real property must

10  refrain from gross negligence or intentional misconduct that

11  proximately causes injury to the discovered trespasser, and

12  must warn the trespasser of dangerous conditions that are

13  known to the person or organization owning or controlling an

14  interest in real property but that are not readily observable

15  by others.

16         (c)  This subsection shall not be interpreted or

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

18  "attractive nuisance doctrine."

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

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

21  organization, shall not be held liable for negligence that

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

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

24  commission of a felony on the property.

25         Section 20.  Section 768.36, Florida Statutes, is

26  created to read:

27         768.36  Alcohol or drug defense.--

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

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

30  any beverage that contains 0.5 percent or more alcohol by

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

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

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

  3  term does not include any drug or medication obtained pursuant

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

  5  accordance with the prescription, or any medication that is

  6  authorized under state or federal law for general distribution

  7  and use without a prescription in treating human diseases,

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

  9  dosage.

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

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

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

13  plaintiff was injured:

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

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

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

17  breath alcohol level of 0.08 percent or higher; and

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

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

20  fault for his or her own harm.

21         Section 21.  Section 768.725, Florida Statutes, is

22  created to read:

23         768.725  Punitive damages; burden of proof.--In all

24  civil actions, the plaintiff must establish at trial, by clear

25  and convincing evidence, its entitlement to an award of

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

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

28         Section 22.  Section 768.72, Florida Statutes, is

29  amended to read:

30         768.72  Pleading in civil actions; claim for punitive

31  damages.--

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

  2  shall be permitted unless there is a reasonable showing by

  3  evidence in the record or proffered by the claimant which

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

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

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

  7  procedure.  The rules of civil procedure shall be liberally

  8  construed so as to allow the claimant discovery of evidence

  9  which appears reasonably calculated to lead to admissible

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

11  financial worth shall proceed until after the pleading

12  concerning punitive damages is permitted.

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

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

15  convincing evidence, finds that the defendant was personally

16  guilty of intentional misconduct or gross negligence. As used

17  in this section, the term:

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

19  had actual knowledge of the wrongfulness of the conduct and

20  the high probability that injury or damage to the claimant

21  would result and, despite that knowledge, intentionally

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

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

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

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

26  rights of persons exposed to such conduct.

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

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

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

30  conduct of the employee or agent meets the criteria specified

31  in subsection (2) and:

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

  2  legal entity actively and knowingly participated in such

  3  conduct;

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

  5  employer, principal, corporation, or other legal entity

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

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

  8  legal entity engaged in conduct that constituted gross

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

10  injury suffered by the claimant.

11         (4)  The provisions of this section shall be applied to

12  all causes of action arising after the effective date of this

13  act.

14         Section 23.  Section 768.73, Florida Statutes, is

15  amended to read:

16         768.73  Punitive damages; limitation.--

17         (1)(a)  Except as provided in paragraphs (b) and (c),

18  an award of punitive damages may not exceed the greater of:

19         1.  Three times the amount of compensatory damages

20  awarded to each claimant entitled thereto, consistent with the

21  remaining provisions of this section; or

22         2.  The sum of $500,000. In any civil action based on

23  negligence, strict liability, products liability, misconduct

24  in commercial transactions, professional liability, or breach

25  of warranty, and involving willful, wanton, or gross

26  misconduct, the judgment for the total amount of punitive

27  damages awarded to a claimant may not exceed three times the

28  amount of compensatory damages awarded to each person entitled

29  thereto by the trier of fact, except as provided in paragraph

30  (b). However, this subsection does not apply to any class

31  action.

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  1         (b)  Where the fact finder determines that the wrongful

  2  conduct proven under this section was motivated solely by

  3  unreasonable financial gain and determines that the

  4  unreasonably dangerous nature of the conduct, together with

  5  the high likelihood of injury resulting from the conduct, were

  6  actually known by the managing agent, director, officer, or

  7  other person responsible for making policy decisions on behalf

  8  of the defendant, it may award an amount of punitive damages

  9  not to exceed the greater of:

10         1.  Four times the amount of compensatory damages

11  awarded to each claimant entitled thereto, consistent with the

12  remaining provisions of this section; or

13         2.  The sum of $2,000,000. If any award for punitive

14  damages exceeds the limitation specified in paragraph (a), the

15  award is presumed to be excessive and the defendant is

16  entitled to remittitur of the amount in excess of the

17  limitation unless the claimant demonstrates to the court by

18  clear and convincing evidence that the award is not excessive

19  in light of the facts and circumstances which were presented

20  to the trier of fact.

21         (c)  Where the fact finder determines that at the time

22  of injury the defendant had a specific intent to harm the

23  claimant and determines that the defendant's conduct did in

24  fact harm the claimant, there shall be no cap on punitive

25  damages.

26         (d)(c)  This subsection is not intended to prohibit an

27  appropriate court from exercising its jurisdiction under s.

28  768.74 in determining the reasonableness of an award of

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

30  compensatory damages.

31

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

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

  3  action if that defendant establishes, before trial, that

  4  punitive damages have previously been awarded against that

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

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

  7  the claimant seeks compensatory damages. For purposes of a

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

  9  conduct" includes acts resulting in the same manufacturing

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

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

12  units of a product.

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

14  or single course of conduct for which punitive damages have

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

16  convincing evidence that the amount of prior punitive damages

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

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

19  punitive damages. In permitting a jury to consider awarding

20  subsequent punitive damages, the court shall make specific

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

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

23  or course of conduct has ceased. Any subsequent punitive

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

25  punitive damage awards rendered in state or federal court.

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

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

28  punitive damages, calculated based on the final judgment for

29  punitive damages. This subsection does not limit the payment

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

31  punitive damages.

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  1         (4)(2)  The jury may neither be instructed nor informed

  2  as to the provisions of this section.

  3         (5)  The provisions of this section shall be applied to

  4  all causes of action arising after the effective date of this

  5  act.

  6         Section 24.  Section 768.735, Florida Statutes, is

  7  created to read:

  8         768.735  Punitive damages; exceptions; limitation.--

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

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

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

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

13  applicable statutes and controlling judicial precedent.

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

15  abuse of the elderly, or abuse of the developmentally

16  disabled, or actions arising under chapter 400 and involving

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

18  amount of punitive damages awarded to a claimant may not

19  exceed three times the amount of compensatory damages awarded

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

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

22  to any class action.

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

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

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

26  the amount in excess of the limitation unless the claimant

27  demonstrates to the court by clear and convincing evidence

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

29  circumstances that were presented to the trier of fact.

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

31  appropriate court from exercising its jurisdiction under s.

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  1  768.74 in determining the reasonableness of an award of

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

  3  compensatory damages.

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

  5  the provisions of this section.

  6         Section 25.  Section 768.736, Florida Statutes, is

  7  created to read:

  8         768.736  Punitive damages; exceptions for

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

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

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

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

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

14  alcohol level of 0.08 percent or higher.

15         Section 26.  Section 768.737, Florida statutes, is

16  created to read:

17         768.737  Punitive damages; application in

18  arbitration.--Where punitive damages are available as a remedy

19  in an arbitration proceeding, ss. 768.72, 768.725, and 768.73

20  apply. When an award of punitive damages is made in an

21  arbitration proceeding, the arbitrator who renders the award

22  must issue a written opinion setting forth the conduct which

23  gave rise to the award and how the arbitrator applied the

24  standards in s. 768.72 to such conduct.

25         Section 27.  Subsections (3), (4), (5), and (6) of

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

27         768.81  Comparative fault.--

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

29  section applies, the court shall enter judgment against each

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

31

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

  2  liability, except as provided in paragraphs (a), (b), and (c):

  3         (a)  Where a plaintiff is found to be at fault, the

  4  following shall apply:

  5         1.  Any defendant found 10 percent or less at fault

  6  shall not be subject to joint and several liability.

  7         2.  For any defendant found more than 10 percent but

  8  less than 25 percent at fault, joint and several liability

  9  shall not apply to that portion of economic damages in excess

10  of $200,000.

11         3.  For any defendant found at least 25 percent but not

12  more than 50 percent at fault, joint and several liability

13  shall not apply to that portion of economic damages in excess

14  of $500,000.

15         4.  For any defendant found more than 50 percent at

16  fault, joint and several liability shall not apply to that

17  portion of economic damages in excess of $1,000,000.

18

19  For any defendant under subparagraph 2., subparagraph 3., or

20  subparagraph 4., the amount of economic damages calculated

21  under joint and several liability shall be in addition to the

22  amount of economic and noneconomic damages already apportioned

23  to that defendant based on that defendant's percentage of

24  fault.

25         (b)  Where a plaintiff is found to be without fault,

26  the following shall apply:

27         1.  Any defendant found less than 10 percent at fault

28  shall not be subject to joint and several liability.

29         2.  For any defendant found at least 10 percent but

30  less than 25 percent at fault, joint and several liability

31

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  1  shall not apply to that portion of economic damages in excess

  2  of $500,000.

  3         3.  For any defendant found at least 25 percent but not

  4  more than 50 percent at fault, joint and several liability

  5  shall not apply to that portion of economic damages in excess

  6  of $1,000,000.

  7         4.  For any defendant found more than 50 percent at

  8  fault, joint and several liability shall not apply to that

  9  portion of economic damages in excess of $2,000,000.

10

11  For any defendant under subparagraph 2., subparagraph 3., or

12  subparagraph 4., the amount of economic damages calculated

13  under joint and several liability shall be in addition to the

14  amount of economic and noneconomic damages already apportioned

15  to that defendant based on that defendant's percentage of

16  fault.

17         (c)  With respect to any defendant whose percentage of

18  fault is less than the fault of a particular plaintiff, the

19  doctrine of joint and several liability shall not apply to any

20  damages imposed against the defendant. ; provided that with

21  respect to any party whose percentage of fault equals or

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

23  judgment with respect to economic damages against that party

24  on the basis of the doctrine of joint and several liability.

25         (d)  In order to allocate any or all fault to a

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

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

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

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

30  pleading when defenses are first presented, subject to

31

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  1  amendment any time before trial in accordance with the Florida

  2  Rules of Civil Procedure.

  3         (e)  In order to allocate any or all fault to a

  4  nonparty and include the named or unnamed nonparty on the

  5  verdict form for purposes of apportioning damages, a defendant

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

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

  8         (4)  APPLICABILITY.--

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

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

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

12  of negligence, strict liability, products liability,

13  professional malpractice whether couched in terms of contract

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

15  determining whether a case falls within the term "negligence

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

17  and not the conclusory terms used by the parties.

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

19  by any person to recover actual economic damages resulting

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

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

22  doctrine of joint and several liability is specifically

23  provided by chapter 403, chapter 498, chapter 517, chapter

24  542, or chapter 895.

25         (5)  APPLICABILITY OF JOINT AND SEVERAL

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

27  the doctrine of joint and several liability applies to all

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

29  $25,000.

30         (5)(6)  Notwithstanding anything in law to the

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

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  1  wrongful death arising out of medical malpractice, whether in

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

  3  this section is attributed to a teaching hospital as defined

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

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

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

  7  several liability.

  8         Section 28.  Effective July 1, 1999, paragraph (b) of

  9  subsection (9) of section 324.021, Florida Statutes, is

10  amended, and paragraph (c) is added to that subsection, to

11  read:

12         324.021  Definitions; minimum insurance required.--The

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

14  for the purpose of this chapter, have the meanings

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

16  instances where the context clearly indicates a different

17  meaning:

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

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

20  of the Florida Statutes or existing case law:,

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

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

23  obtain insurance acceptable to the lessor which contains

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

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

26  $500,000 combined property damage liability and bodily injury

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

28  for the purpose of determining financial responsibility for

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

30  operator in connection therewith; further, this subparagraph

31  paragraph shall be applicable so long as the insurance meeting

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  1  these requirements is in effect.  The insurance meeting such

  2  requirements may be obtained by the lessor or lessee,

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

  4  combined coverage for bodily injury liability and property

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

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

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

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

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

10  determining liability for the operation of the vehicle or the

11  acts of the operator in connection therewith only up to

12  $100,000 per person and up to $300,000 per incident for bodily

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

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

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

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

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

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

19  specified liability of the lessor for economic damages shall

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

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

22  covering the lessee or operator.  Nothing in this subparagraph

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

24  its own negligence.

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

26  vehicle to any permissive user shall be liable for the

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

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

29  $300,000 per incident for bodily injury and up to $50,000 for

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

31  is uninsured or has any insurance with limits less than

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  1  $500,000 combined property damage and bodily injury liability,

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

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

  4  vehicle. The additional specified liability of the owner for

  5  economic damages shall be reduced by amounts actually

  6  recovered from the permissive user and from any insurance or

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

  8  subparagraph shall be construed to affect the liability of the

  9  owner for his or her own negligence.

10         (c)  Application.--

11         1.  The limits on liability in subparagraphs (b)2. and

12  (b)3. do not apply to an owner of motor vehicles that are used

13  for commercial activity in the owner's ordinary course of

14  business, other than a rental company that rents or leases

15  motor vehicles. For purposes of this paragraph, the term

16  "rental company" includes only an entity that is engaged in

17  the business of renting or leasing motor vehicles to the

18  general public and that rents or leases a majority of its

19  motor vehicles to persons with no direct or indirect

20  affiliation with the rental company. The term also includes a

21  motor vehicle dealer that provides temporary replacement

22  vehicles to its customers for up to 10 days.

23         2.  Furthermore, with respect to commercial motor

24  vehicles as defined in s. 627.732, the limits on liability in

25  subparagraphs (b)2. and (b)3. do not apply if, at the time of

26  the incident, the commercial motor vehicle is being used in

27  the transportation of materials found to be hazardous for the

28  purposes of the Hazardous Materials Transportation

29  Authorization Act of 1994, as amended, 49 U.S.C. ss. 5101 et

30  seq., and that is required pursuant to such act to carry

31

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  1  placards warning others of the hazardous cargo, unless at the

  2  time of lease or rental either:

  3         a.  The lessee indicates in writing that the vehicle

  4  will not be used to transport materials found to be hazardous

  5  for the purposes of the Hazardous Materials Transportation

  6  Authorization Act of 1994, as amended, 49 U.S.C. ss. 5101 et

  7  seq.; or

  8         b.  The lessee or other operator of the commercial

  9  motor vehicle has in effect insurance with limits of at least

10  $5,000,000 combined property damage and bodily injury

11  liability.

12         Section 29.  Section 768.098, Florida Statutes, is

13  created to read:

14         768.098  Limitation of liability for employee

15  leasing.--

16         (1)  An employer in a joint employment relationship

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

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

19  tortious actions of any jointly employed employee under that

20  relationship, provided that:

21         (a)  The employer seeking to avoid liability pursuant

22  to this section did not authorize or direct the tortious

23  action;

24         (b)  The employer seeking to avoid liability pursuant

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

26  conduct and fail to take appropriate action;

27         (c)  The employer seeking to avoid liability pursuant

28  to this section did not have actual control over the

29  day-to-day job duties of the jointly employed employee who has

30  committed a tortious act nor actual control over the portion

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

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

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

  3  employer under the contract;

  4         (d)  The employer seeking to avoid liability pursuant

  5  to this section is expressly absolved in the written contract

  6  forming the joint employment relationship of control over the

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

  8  committed a tortious act, and actual control over the portion

  9  of the job site at which or from which the tortious conduct

10  arose or at which and from which the jointly employed employee

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

12  employer under the contract; and

13         (e)  Complaints, allegations, or incidents of any

14  tortious misconduct or workplace safety violations, regardless

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

16  seeking to avoid liability pursuant to this section by all

17  other joint employers under the written contract forming the

18  joint employment relationship, and that the employer seeking

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

20  take appropriate action as a result of receiving any such

21  report related to a jointly employed employee who has

22  committed a tortious act.

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

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

25  the day-to-day job duties of the jointly employed employee who

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

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

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

29  is a leased employee.

30         (3)  This section shall not alter any responsibilities

31  of the joint employer who has actual control over the

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  1  day-to-day job duties of the jointly employed employee and who

  2  has actual control over the portion of a job site at which or

  3  from which the employee is employed, which arises from s.

  4  768.096.

  5         Section 30.  Subsections (6), (7), and (8) are added to

  6  section 400.023, Florida Statutes, to read:

  7         400.023  Civil enforcement.--

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

  9  following conditions precedent must be met:

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

11  pleading or defensive motion to a complaint brought under this

12  section and before trial, the parties or their designated

13  representatives shall meet in mediation to discuss the issues

14  of liability and damages in accordance with this paragraph for

15  the purpose of an early resolution of the matter.

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

17  pleading or defensive motion, the parties shall:

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

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

20  which shall appoint a mediator within 10 days after such

21  notice.

22         b.  Set a date for mediation.

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

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

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

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

27  the parties without a hearing.

28         2.  The mediation must be concluded within 120 days

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

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

31  subject to mediation under this subsection.

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  1         3.  The mediation shall be conducted in the following

  2  manner:

  3         a.  Each party shall ensure that all persons necessary

  4  for complete settlement authority are present at the

  5  mediation.

  6         b.  Each party shall mediate in good faith.

  7         4.  All aspects of the mediation which are not

  8  specifically established by this subsection must be conducted

  9  according to the rules of practice and procedure adopted by

10  the Supreme Court of this state.

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

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

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

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

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

16  subsequently proceeds to trial under this section and the

17  plaintiff prevails but is awarded an amount in damages,

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

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

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

21         (c)  This subsection applies only to claims for

22  liability and damages and does not apply to actions for

23  injunctive relief.

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

25  that accrue on or after October 1, 1999.

26         (7)  Discovery of financial information for the purpose

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

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

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

30  for punitive damages.

31

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

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

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

  4  egregiousness of the conduct that caused the actual harm to

  5  the resident.

  6         Section 31.  Section 400.429, Florida statutes, is

  7  amended to read:

  8         400.429  Civil actions to enforce rights.--

  9         (1)  Any person or resident whose rights as specified

10  in this part are violated shall have a cause of action against

11  any facility owner, administrator, or staff responsible for

12  the violation.  The action may be brought by the resident or

13  his or her guardian, or by a person or organization acting on

14  behalf of a resident with the consent of the resident or his

15  or her guardian, or by the personal representative of the

16  estate of a deceased resident when the cause of death resulted

17  from a violation of the decedent's rights, to enforce such

18  rights. The action may be brought in any court of competent

19  jurisdiction to enforce such rights and to recover actual

20  damages, and punitive damages when malicious, wanton, or

21  willful disregard of the rights of others can be shown.  Any

22  plaintiff who prevails in any such action may be entitled to

23  recover reasonable attorney's fees, costs of the action, and

24  damages, unless the court finds that the plaintiff has acted

25  in bad faith, with malicious purpose, and that there was a

26  complete absence of a justiciable issue of either law or fact.

27  A prevailing defendant may be entitled to recover reasonable

28  attorney's fees pursuant to s. 57.105.  The remedies provided

29  in this section are in addition to and cumulative with other

30  legal and administrative remedies available to a resident or

31  to the agency.

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  1         (2)  To recover attorney's fees under this section, the

  2  following conditions precedent must be met:

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

  4  pleading or defensive motion to a complaint brought under this

  5  section and before trial, the parties or their designated

  6  representatives shall meet in mediation to discuss the issues

  7  of liability and damages in accordance with this paragraph for

  8  the purpose of an early resolution of the matter.

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

10  pleading or defensive motion, the parties shall:

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

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

13  which shall appoint a mediator within 10 days after such

14  notice.

15         b.  Set a date for mediation.

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

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

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

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

20  the parties without a hearing.

21         2.  The mediation must be concluded within 120 days

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

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

24  subject to mediation under this subsection.

25         3.  The mediation shall be conducted in the following

26  manner:

27         a.  Each party shall ensure that all persons necessary

28  for complete settlement authority are present at the

29  mediation.

30         b.  Each party shall mediate in good faith.

31

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  1         4.  All aspects of the mediation which are not

  2  specifically established by this subsection must be conducted

  3  according to the rules of practice and procedure adopted by

  4  the Supreme Court of this state.

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

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

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

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

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

10  subsequently proceeds to trial under this section and the

11  plaintiff prevails but is awarded an amount in damages,

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

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

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

15         (c)  This subsection applies only to claims for

16  liability and damages and does not apply to actions for

17  injunctive relief.

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

19  that accrue on or after October 1, 1999.

20         (3)  Discovery of financial information for the purpose

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

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

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

24  for punitive damages.

25         (4)  In addition to any other standards for punitive

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

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

28  egregiousness of the conduct that caused the actual harm to

29  the resident.

30         Section 32.  Section 400.629, Florida Statutes, 1998

31  Supplement, is amended to read:

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  1         400.629  Civil actions to enforce rights.--

  2         (1)  Any person or resident whose rights as specified

  3  in this part are violated has a cause of action against any

  4  adult family-care home, provider, or staff responsible for the

  5  violation.  The action may be brought by the resident or the

  6  resident's guardian, or by a person or organization acting on

  7  behalf of a resident with the consent of the resident or the

  8  resident's guardian, to enforce the right.  The action may be

  9  brought in any court of competent jurisdiction to enforce such

10  rights and to recover actual damages, and punitive damages

11  when malicious, wanton, or willful disregard of the rights of

12  others can be shown.  Any plaintiff who prevails in any such

13  action is entitled to recover reasonable attorney's fees,

14  costs of the action, and damages, unless the court finds that

15  the plaintiff has acted in bad faith or with malicious purpose

16  or that there was a complete absence of a justiciable issue of

17  either law or fact.  A prevailing defendant is entitled to

18  recover reasonable attorney's fees pursuant to s. 57.105.  The

19  remedies provided in this section are in addition to other

20  legal and administrative remedies available to a resident or

21  to the agency.

22         (2)  To recover attorney's fees under this section, the

23  following conditions precedent must be met:

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

25  pleading or defensive motion to a complaint brought under this

26  section and before trial, the parties or their designated

27  representatives shall meet in mediation to discuss the issues

28  of liability and damages in accordance with this paragraph for

29  the purpose of an early resolution of the matter.

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

31  pleading or defensive motion, the parties shall:

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

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

  3  which shall appoint a mediator within 10 days after such

  4  notice.

  5         b.  Set a date for mediation.

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

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

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

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

10  the parties without a hearing.

11         2.  The mediation must be concluded within 120 days

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

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

14  subject to mediation under this subsection.

15         3.  The mediation shall be conducted in the following

16  manner:

17         a.  Each party shall ensure that all persons necessary

18  for complete settlement authority are present at the

19  mediation.

20         b.  Each party shall mediate in good faith.

21         4.  All aspects of the mediation which are not

22  specifically established by this subsection must be conducted

23  according to the rules of practice and procedure adopted by

24  the Supreme Court of this state.

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

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

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

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

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

30  subsequently proceeds to trial under this section and the

31  plaintiff prevails but is awarded an amount in damages,

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

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

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

  4         (c)  This subsection applies only to claims for

  5  liability and damages and does not apply to actions for

  6  injunctive relief.

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

  8  that accrue on or after October 1, 1999.

  9         (3)  Discovery of financial information for the purpose

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

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

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

13  for punitive damages.

14         (4)  In addition to any other standards for punitive

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

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

17  egregiousness of the conduct that caused the actual harm to

18  the resident.

19         Section 33.  (1)  The Office of Program Policy Analysis

20  and Government Accountability shall, after issuing a request

21  for proposals, contract with a national independent actuarial

22  firm to conduct an actuarial analysis, consistent with

23  generally accepted actuarial practices, of the expected

24  reduction in liability judgments, settlements, and related

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

26  shall be based on credible loss cost data derived from

27  settlement or adjudication of liability claims accruing after

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

29  estimate of the percentage decrease in such judgments,

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

31

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

  2  are expected.

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

  4  Office of Program Policy Analysis and Government

  5  Accountability by March 1, 2007.

  6         Section 34.  It is the intent of this act and the

  7  Legislature to accord the utmost comity and respect to the

  8  constitutional prerogatives of Florida's judiciary, and

  9  nothing in this act should be construed as any effort to

10  impinge upon those prerogatives. To that end, should any court

11  of competent jurisdiction enter a final judgment concluding or

12  declaring that any provision of this act improperly encroaches

13  upon the authority of the Florida Supreme Court to determine

14  the rules of practice and procedure in Florida courts, the

15  Legislature hereby declares its intent that any such provision

16  be construed as a request for rule change pursuant to s. 2,

17  Art. 5 of the State Constitution and not as a mandatory

18  legislative directive.

19         Section 35.  If any provision of this act or the

20  application thereof to any person or circumstance is held

21  invalid, the invalidity does not affect other provisions or

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

23  invalid provision or application, and to this end the

24  provisions of this act are declared severable. Section 43.29,

25  Florida Statutes, is repealed.

26         Section 4.  This act shall take effect October 1, 2001.

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

  2                          HOUSE SUMMARY

  3
      Revises the judicial nominating commission member
  4    appointment process. Reenacts sections 3, 6, 9, 10, 11,
      12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25,
  5    26, 27, 28, 29, 30, 31, 32, 33, 34, and 35 of chapter
      99-225, Laws of Florida, relating to civil actions. See
  6    bill for details.

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