Florida Senate - 2006                        SENATOR AMENDMENT
    Bill No. HB 145
                        Barcode 704476
                            CHAMBER ACTION
              Senate                               House
                                   .                    
                                   .                    
 1                                 .                    
                                   .                    
 2                                 .                    
                                   .                    
 3         Floor: WD/2R            .                    
       03/29/2006 01:31 PM         .                    
 4  ______________________________________________________________
 5  
 6  
 7  
 8  
 9  
10  ______________________________________________________________
11  Senator Campbell moved the following amendment:
12  
13         Senate Amendment (with title amendment) 
14         Delete everything after the enacting clause
15  
16  and insert:  
17         Section 1.  Section 768.81, Florida Statutes, is
18  amended to read:
19         768.81  Apportionment of tort responsibility
20  Comparative fault.--
21         (1)  SHORT TITLE.--This section may be cited as the
22  "Uniform Apportionment of Tort Responsibility Act."
23         (2)(1)  DEFINITION.--As used in this section, the term:
24         (a)  "Economic "economic damages" means past lost
25  income and future lost income reduced to present value;
26  medical and funeral expenses; lost support and services;
27  replacement value of lost personal property; loss of appraised
28  fair market value of real property; costs of construction
29  repairs, including labor, overhead, and profit; and any other
30  economic loss which would not have occurred but for the injury
31  giving rise to the cause of action.
                                  1
    2:50 PM   03/28/06                             h014500d-32-t02

Florida Senate - 2006 SENATOR AMENDMENT Bill No. HB 145 Barcode 704476 1 (b) "Comparative fault" includes comparative 2 negligence, unreasonable misuse of a product, and unreasonable 3 failure to avoid and mitigate harm. 4 (c) "Person" has the same meaning as in s. 1.01. 5 (d) "Released person" means a person who would be 6 liable for damages to a claimant for wrongful death, personal 7 injury, or harm to property if the person had not been 8 discharged from liability under subsection (8). 9 (e) "Responsibility," with respect to a claim for 10 damages for wrongful death, personal injury, or harm to 11 property arising from negligence or strict liability, means 12 the legal consequences of an act or omission that is the basis 13 for liability or a defense in whole or part. 14 (3)(2) EFFECT OF COMPARATIVE CONTRIBUTORY FAULT.-- 15 (a) In an action seeking damages for wrongful death, 16 personal injury, or harm to property based on negligence or 17 strict liability, or based on a claim for which the claimant 18 may be subject to a defense in whole or part based on 19 comparative fault, any comparative fault chargeable to the 20 claimant diminishes the amount that the claimant would 21 otherwise be entitled to recover as compensatory damages for 22 the death, injury, or harm by the percentage of responsibility 23 assigned to the claimant under subsection (4). This section 24 does not apply to any claim for wrongful death, personal 25 injury, or harm to property based upon an intentional tort. 26 (b) In a trial by jury, the court shall instruct the 27 jury regarding the legal effect of the jury's findings, made 28 under subsection (4), concerning a claimant's right to recover 29 damages under paragraph (a). 30 (4) FINDING DAMAGES; ATTRIBUTION OF RESPONSIBILITY.-- 31 (a) In an action to recover damages for wrongful 2 2:50 PM 03/28/06 h014500d-32-t02
Florida Senate - 2006 SENATOR AMENDMENT Bill No. HB 145 Barcode 704476 1 death, personal injury, or harm to property involving the 2 responsibility of more than one party or a released person, 3 the court shall instruct the jury to answer special 4 interrogatories to make the following findings: 5 1. The amount of damages to which a claimant would be 6 entitled if comparative fault were disregarded; 7 2. As to each claim, the percentage of the total 8 responsibility attributed to each claimant, defendant, and 9 released person who caused the death, injury, or harm. The 10 total combined responsibility for all claimants, parties, and 11 released persons must equal 100 percent. However, a nonparty 12 or intentional tortfeasor may not appear on the verdict form, 13 and apportionment of fault or damages may not be attributed to 14 a nonparty or intentional tortfeasor; 15 3. Whether any of the parties or released persons 16 acted in concert to cause the wrongful death, personal injury, 17 or harm to property; and 18 4. Any other issue of fact fairly raised by the 19 evidence which is necessary to make a finding under subsection 20 (5) or enter judgment under subsection (6). 21 22 If the trial is conducted without a jury, the court shall make 23 the findings. 24 (b) When calculating the percentage of responsibility 25 of each party or released party, the jury or judge must 26 consider the nature of the conduct of each party and released 27 person who is found to be responsible and the extent of the 28 causal relation between the conduct of the party or released 29 person and the damages claimed. 30 (c) The court shall determine the extent to which the 31 responsibility of one party, which is based on the act or 3 2:50 PM 03/28/06 h014500d-32-t02
Florida Senate - 2006 SENATOR AMENDMENT Bill No. HB 145 Barcode 704476 1 omission of another party, warrants that the parties be 2 treated as a single party for the purpose of submitting 3 instructions to the jury or making findings under paragraph 4 (a). In an action to which this section applies, any 5 contributory fault chargeable to the claimant diminishes 6 proportionately the amount awarded as economic and noneconomic 7 damages for an injury attributable to the claimant's 8 contributory fault, but does not bar recovery. 9 (5)(3) APPORTIONMENT OF DAMAGES; DETERMINING DAMAGE 10 AWARD; REALLOCATION OF UNCOLLECTIBLE SHARE OF ECONOMIC 11 DAMAGES.-- 12 (a) After the jury or judge has made findings under 13 subsection (4), the court shall find, in accordance with the 14 percentages of responsibility found, the monetary amount of 15 any award of damages to a claimant, the amount of the share of 16 damages for which each party found liable is responsible, and 17 any amount attributable to a released person. 18 (b) After the court has made its findings pursuant to 19 paragraph (a), a claimant may, no later than 1 year after the 20 judgment has become final by lapse of time for appeal or after 21 appellate review, move the court to determine whether all or 22 part of the amount of a share of economic damages for which a 23 party is liable will not be reasonably collectible and, if so, 24 to request a reallocation of the damages. For purposes of this 25 subsection, it is presumed that a party's share of damages is 26 not reasonably collectible if the party lacks sufficient 27 insurance coverage to pay its share of the damage award or if 28 the party is totally or partially immune from liability. If 29 the court finds, by a preponderance of the evidence, that the 30 share of a party is not reasonably collectible, the court 31 shall make findings reallocating the uncollectible share 4 2:50 PM 03/28/06 h014500d-32-t02
Florida Senate - 2006 SENATOR AMENDMENT Bill No. HB 145 Barcode 704476 1 severally to the other parties, the claimant, and any released 2 person. The reallocation must be made in the proportion that 3 each party's and released person's respective percentage of 4 responsibility bears to the total of the percentages of 5 responsibility attributed to the parties, the claimant, and 6 any released person, but not including the percentage being 7 reallocated, so that the sum of the proportional shares 8 reallocated to the parties and released persons equals 100 9 percent. 10 (c) A party whose liability for economic damages is 11 reallocated remains liable to a claimant for any additional 12 share of responsibility allocated to the claimant. A party 13 that discharges an additional share of responsibility 14 allocated to it pursuant to paragraph (b) has a right of 15 reimbursement from the party from which the share was 16 reallocated. Upon motion, the court in the judgment entered 17 under subsection (6) shall declare the rights and obligations 18 resulting from the reallocation, including any rights and 19 obligations with regard to subrogation or a secured position. 20 If any party to whom reallocation has been made holds a 21 secured position with regard to the share reallocated, each 22 party to whom reallocation has been made has a proportionate 23 share in the secured position. Any amount recovered under this 24 subsection from a party whose liability for economic damages 25 has been reallocated must be distributed to each of the 26 parties to whom the reallocation was made in the same 27 proportion as the original reallocation. 28 (d) Reallocation does not create a liability on the 29 part of a released person for any reallocated share of 30 responsibility unless the release or other agreement so 31 provides. 5 2:50 PM 03/28/06 h014500d-32-t02
Florida Senate - 2006 SENATOR AMENDMENT Bill No. HB 145 Barcode 704476 1 (e) If a motion for reallocation is made, any party 2 may conduct discovery regarding any issue that is relevant to 3 the motion. In cases to which this section applies, the court 4 shall enter judgment against each party liable on the basis of 5 such party's percentage of fault and not on the basis of the 6 doctrine of joint and several liability, except as provided in 7 paragraphs (a), (b), and (c): 8 (a) Where a plaintiff is found to be at fault, the 9 following shall apply: 10 1. Any defendant found 10 percent or less at fault 11 shall not be subject to joint and several liability. 12 2. For any defendant found more than 10 percent but 13 less than 25 percent at fault, joint and several liability 14 shall not apply to that portion of economic damages in excess 15 of $200,000. 16 3. For any defendant found at least 25 percent but not 17 more than 50 percent at fault, joint and several liability 18 shall not apply to that portion of economic damages in excess 19 of $500,000. 20 4. For any defendant found more than 50 percent at 21 fault, joint and several liability shall not apply to that 22 portion of economic damages in excess of $1 million. 23 24 For any defendant under subparagraph 2., subparagraph 3., or 25 subparagraph 4., the amount of economic damages calculated 26 under joint and several liability shall be in addition to the 27 amount of economic and noneconomic damages already apportioned 28 to that defendant based on that defendant's percentage of 29 fault. 30 (b) Where a plaintiff is found to be without fault, 31 the following shall apply: 6 2:50 PM 03/28/06 h014500d-32-t02
Florida Senate - 2006 SENATOR AMENDMENT Bill No. HB 145 Barcode 704476 1 1. Any defendant found less than 10 percent at fault 2 shall not be subject to joint and several liability. 3 2. For any defendant found at least 10 percent but 4 less than 25 percent at fault, joint and several liability 5 shall not apply to that portion of economic damages in excess 6 of $500,000. 7 3. For any defendant found at least 25 percent but not 8 more than 50 percent at fault, joint and several liability 9 shall not apply to that portion of economic damages in excess 10 of $1 million. 11 4. For any defendant found more than 50 percent at 12 fault, joint and several liability shall not apply to that 13 portion of economic damages in excess of $2 million. 14 15 For any defendant under subparagraph 2., subparagraph 3., or 16 subparagraph 4., the amount of economic damages calculated 17 under joint and several liability shall be in addition to the 18 amount of economic and noneconomic damages already apportioned 19 to that defendant based on that defendant's percentage of 20 fault. 21 (c) With respect to any defendant whose percentage of 22 fault is less than the fault of a particular plaintiff, the 23 doctrine of joint and several liability shall not apply to any 24 damages imposed against the defendant. 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 amendment any time before trial in accordance with the Florida 7 2:50 PM 03/28/06 h014500d-32-t02
Florida Senate - 2006 SENATOR AMENDMENT Bill No. HB 145 Barcode 704476 1 Rules of Civil Procedure. 2 (e) In order to allocate any or all fault to a 3 nonparty and include the named or unnamed nonparty on the 4 verdict form for purposes of apportioning damages, a defendant 5 must prove at trial, by a preponderance of the evidence, the 6 fault of the nonparty in causing the plaintiff's injuries. 7 (6) ENTERING AND MODIFYING JUDGMENT.-- 8 (a) After determining an award of damages to a 9 claimant and the amount of the several share, including any 10 reallocated share of economic damages, for which each party 11 found liable is responsible, the court shall enter judgment 12 severally against each party adjudged liable, except in the 13 following situations: 14 1. If two or more parties adjudged liable acted in 15 concert to cause the wrongful death of, personal injury to, or 16 harm to the property of the claimant, the court shall enter 17 judgment jointly and severally against the parties for their 18 joint share of the economic damages. 19 2. If a party is adjudged liable for the act or 20 omission of another party under paragraph (4)(c), the court 21 shall enter judgment jointly and severally against the parties 22 for their joint share of the economic damages. 23 3. If a party is adjudged liable by way of gross 24 negligence, the court shall enter judgment jointly and 25 severally against that party for the economic damages. 26 4. If any provision of law, other than this section, 27 so requires, the court shall enter judgment jointly and 28 severally or otherwise conform the judgment to the law. 29 (b) The court shall retain jurisdiction to modify a 30 judgment for purposes of this section and, if a court grants a 31 motion for reallocation pursuant to subsection (5) after 8 2:50 PM 03/28/06 h014500d-32-t02
Florida Senate - 2006 SENATOR AMENDMENT Bill No. HB 145 Barcode 704476 1 judgment is entered, the court shall modify the judgment to 2 declare the rights and obligations resulting from the 3 reallocation, including any rights and obligations with regard 4 to subrogation or a secured position. 5 (7) RIGHT OF CONTRIBUTION AND INDEMNITY; THIRD-PARTY 6 ACTION.-- 7 (a) Except as otherwise provided in paragraph (b), a 8 party that is jointly and severally liable with one or more 9 other parties under this section has a right of contribution 10 from another party jointly liable for any amount the party 11 pays in excess of the several amount for which the party is 12 responsible. A party against whom contribution is sought is 13 not liable for more than the monetary amount of the party's 14 several share of responsibility determined pursuant to 15 subsection (5). 16 (b) A party who is adjudged liable for the act or 17 omission of another party under subparagraph (6)(a)2. has a 18 right of indemnification from the other party. 19 (c) A party who is subject to liability for the 20 wrongful death of, injury to, or harm to property of a 21 claimant under this section has a right to: 22 1. Join a person, other than an intentional 23 tortfeasor, who is also subject to liability to the claimant 24 for all or part of the same death, injury, or harm if the 25 claimant has not sued the person; and 26 2. Seek contribution or indemnity, whichever is 27 appropriate, from another person whose liability is not 28 determined in the proceeding in which the party is adjudged 29 liable if the other person is responsible for all or part of 30 the claimant's death, injury, or harm. 31 (d) A claim for contribution or indemnity may be 9 2:50 PM 03/28/06 h014500d-32-t02
Florida Senate - 2006 SENATOR AMENDMENT Bill No. HB 145 Barcode 704476 1 asserted in the original action, except as to an intentional 2 tortfeasor, or in a separate action. 3 (8) EFFECT OF RELEASE.-- 4 (a) A release, covenant not to sue, covenant not to 5 execute a judgment, or similar agreement by a claimant and 6 person subject to liability discharges the person from 7 liability to the claimant to the extent provided in the 8 agreement and from liability for contribution to any other 9 person subject to liability to the claimant for the same 10 death, injury, or harm. The agreement does not discharge any 11 other person subject to liability upon the same claim unless 12 the agreement so provides. 13 (b) The amount of the claim of the releasing person 14 under paragraph (a) against other persons jointly and 15 severally liable for the same death, injury, or harm for which 16 the released person would have been liable shall be reduced by 17 the percentage of responsibility attributed to the released 18 person pursuant to subsection (4). 19 (c) A release, covenant not to sue, covenant not to 20 execute a judgment, or similar agreement extinguishes any 21 claim for contribution or indemnity which the released person 22 would have had against another person that would have been 23 jointly and severally liable with the released person. 24 (9) UNIFORMITY OF APPLICATION AND CONSTRUCTION.--In 25 applying and construing this uniform act, consideration must 26 be given to the need to promote uniformity of the law with 27 respect to its subject matter among states that enact it. 28 (10)(4) APPLICABILITY.-- 29 (a) This section applies to negligence cases. For 30 purposes of this section, "negligence cases" includes, but is 31 not limited to, civil actions for damages based upon theories 10 2:50 PM 03/28/06 h014500d-32-t02
Florida Senate - 2006 SENATOR AMENDMENT Bill No. HB 145 Barcode 704476 1 of negligence, strict liability, products liability, 2 professional malpractice whether couched in terms of contract 3 or tort, or breach of warranty and like theories. In 4 determining whether a case falls within the term "negligence 5 cases," the court shall look to the substance of the action 6 and not the conclusory terms used by the parties. 7 (b) This section does not apply to any action brought 8 by any person to recover actual economic damages resulting 9 from pollution, to any action based upon an intentional tort, 10 or to any cause of action as to which application of the 11 doctrine of joint and several liability is specifically 12 provided by chapter 403, chapter 498, chapter 517, chapter 13 542, or chapter 895. 14 (c) The provisions of ss. 46.015, 768.041, and 768.31 15 do not apply to any action to which this section applies. 16 (11)(5) TEACHING HOSPITALS.--Notwithstanding anything 17 in law to the contrary, in an action for damages for personal 18 injury or wrongful death arising out of medical malpractice, 19 whether in contract or tort, when an apportionment of damages 20 pursuant to this section is attributed to a teaching hospital 21 as defined in s. 408.07, the court shall enter judgment 22 against the teaching hospital on the basis of such party's 23 percentage of fault and not on the basis of the doctrine of 24 joint and several liability. 25 Section 2. This act shall take effect October 1, 2006, 26 and shall apply to causes of action that accrue on or after 27 that date. 28 29 30 ================ T I T L E A M E N D M E N T =============== 31 And the title is amended as follows: 11 2:50 PM 03/28/06 h014500d-32-t02
Florida Senate - 2006 SENATOR AMENDMENT Bill No. HB 145 Barcode 704476 1 Delete everything before the enacting clause 2 3 and insert: 4 A bill to be entitled 5 An act relating to the apportionment of tort 6 liability; amending s. 768.81, F.S.; creating 7 the "Florida Uniform Apportionment of Tort 8 Responsibility Act"; providing definitions 9 relating to the apportionment of damages; 10 specifying the effect of comparative fault; 11 providing procedures for the attribution of 12 responsibility for wrongful death, personal 13 injury, or harm to property; providing a 14 procedure for determining the damage award; 15 providing for the reallocation of uncollectible 16 shares within a specified time; requiring that 17 a finding that an award is uncollectible be 18 made by a preponderance of the evidence; 19 providing a right of contribution and 20 indemnity; specifying the effect of a release; 21 providing for uniform construction; providing 22 for applicability; providing an effective date. 23 24 25 26 27 28 29 30 31 12 2:50 PM 03/28/06 h014500d-32-t02