HB 433

1	A bill to be entitled
2	An act relating to negligence; amending s. 768.81, F.S.;
3	defining the terms "negligence action" and "products
4	liability action"; requiring the trier of fact to consider
5	the fault of all parties to an accident when apportioning
6	damages in a products liability action alleging an
7	additional or enhanced injury; providing an effective
8	date.
9
10	Be It Enacted by the Legislature of the State of Florida:
11
12	Section 1.  Section 768.81, Florida Statutes, is amended to
13	read:
14	768.81  Comparative fault.-
15	(1)  DEFINITIONS DEFINITION.-As used in this section, the
16	term:
17	(a)  "Economic damages" means past lost income and future
18	lost income reduced to present value; medical and funeral
19	expenses; lost support and services; replacement value of lost
20	personal property; loss of appraised fair market value of real
21	property; costs of construction repairs, including labor,
22	overhead, and profit; and any other economic loss that which
23	would not have occurred but for the injury giving rise to the
24	cause of action.
25	(b)  "Negligence action" means, without limitation, a civil
26	action for damages based upon a theory of negligence; strict
27	liability; products liability; or professional malpractice,
28	whether couched in terms of contract, tort, or breach of
29	warranty and like theories. The substance of an action, not
30	conclusory terms used by a party, determines whether an action
31	is a negligence action.
32	(c)  "Products liability action" means a civil action based
33	upon a theory of strict liability, negligence, breach of
34	warranty, nuisance, or similar theories for damages caused by
35	the manufacture, construction, design, formulation,
36	installation, preparation, or assembly of a product. The term
37	includes an action alleging that injuries received by a claimant
38	in an accident were greater than the injuries the claimant would
39	have received but for a defective product. The substance of an
40	action, not the conclusory terms used by a party, determines
41	whether an action is a products liability action.
42	(2)  EFFECT OF CONTRIBUTORY FAULT.-In a negligence an
43	action to which this section applies, any contributory fault
44	chargeable to the claimant diminishes proportionately the amount
45	awarded as economic and noneconomic damages for an injury
46	attributable to the claimant's contributory fault, but does not
47	bar recovery.
48	(3)  APPORTIONMENT OF DAMAGES.-In a negligence action cases
49	to which this section applies, the court shall enter judgment
50	against each party liable on the basis of such party's
51	percentage of fault and not on the basis of the doctrine of
52	joint and several liability.
53	(a)1.  In order to allocate any or all fault to a nonparty,
54	a defendant must affirmatively plead the fault of a nonparty
55	and, absent a showing of good cause, identify the nonparty, if
56	known, or describe the nonparty as specifically as practicable,
57	either by motion or in the initial responsive pleading when
58	defenses are first presented, subject to amendment any time
59	before trial in accordance with the Florida Rules of Civil
60	Procedure.
61	2.(b)  In order to allocate any or all fault to a nonparty
62	and include the named or unnamed nonparty on the verdict form
63	for purposes of apportioning damages, a defendant must prove at
64	trial, by a preponderance of the evidence, the fault of the
65	nonparty in causing the plaintiff's injuries.
66	(b)  In a products liability action alleging that injuries
67	received by a claimant in an accident were greater than the
68	injuries the claimant would have received but for a defective
69	product, the trier of fact shall consider the fault of all
70	entities who contributed to the accident when apportioning fault
71	between or among the parties and nonparties included on the
72	verdict form.
73	(4)  APPLICABILITY.-
74	(a)  This section applies to negligence cases. For purposes
75	of this section, "negligence cases" includes, but is not limited
76	to, civil actions for damages based upon theories of negligence,
77	strict liability, products liability, professional malpractice
78	whether couched in terms of contract or tort, or breach of
79	warranty and like theories. In determining whether a case falls
80	within the term "negligence cases," the court shall look to the
81	substance of the action and not the conclusory terms used by the
82	parties.
83	(b)  This section does not apply to any action brought by
84	any person to recover actual economic damages resulting from
85	pollution, to any action based upon an intentional tort, or to
86	any cause of action as to which application of the doctrine of
87	joint and several liability is specifically provided by chapter
88	403 or, chapter 498, chapter 517, chapter 542, or chapter 895.
89	(5)  MEDICAL MALPRACTICE.-Notwithstanding anything in law
90	to the contrary, in an action for damages for personal injury or
91	wrongful death arising out of medical malpractice, whether in
92	contract or tort, if when an apportionment of damages pursuant
93	to this section is attributed to a teaching hospital as defined
94	in s. 408.07, the court shall enter judgment against the
95	teaching hospital on the basis of such party's percentage of
96	fault and not on the basis of the doctrine of joint and several
97	liability.
98	Section 2.  This act shall take effect upon becoming a law.

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