CS for SB 142                                    First Engrossed
       
       
       
       
       
       
       
       
       2011142e1
       
    1                        A bill to be entitled                      
    2         An act relating to negligence; amending s. 768.81,
    3         F.S.; defining the terms “accident,” “negligence
    4         action,” and “products liability action”; requiring
    5         the trier of fact to consider the fault of all persons
    6         who contributed to an accident when apportioning
    7         damages in a products liability action alleging an
    8         enhanced injury; requiring the jury instructions to
    9         apportion certain fault in a products liability
   10         action; providing the rules of evidence apply;
   11         providing legislative intent to overrule a judicial
   12         opinion; providing a legislative finding that fault
   13         should be apportioned among all responsible persons in
   14         a products liability action; providing for retroactive
   15         application of the act; providing a legislative
   16         finding that the retroactive application of the act
   17         does not impair vested rights; providing an effective
   18         date.
   19  
   20  Be It Enacted by the Legislature of the State of Florida:
   21  
   22         Section 1. Section 768.81, Florida Statutes, is amended to
   23  read:
   24         768.81 Comparative fault.—
   25         (1) DEFINITIONS DEFINITION.—As used in this section, the
   26  term:
   27         (a) “Accident” means the events and actions that relate to
   28  the incident as well as those events and actions that relate to
   29  the alleged defect or injuries, including enhanced injuries.
   30         (b) “Economic damages” means past lost income and future
   31  lost income reduced to present value; medical and funeral
   32  expenses; lost support and services; replacement value of lost
   33  personal property; loss of appraised fair market value of real
   34  property; costs of construction repairs, including labor,
   35  overhead, and profit; and any other economic loss that which
   36  would not have occurred but for the injury giving rise to the
   37  cause of action.
   38         (c) “Negligence action” means, without limitation, a civil
   39  action for damages based upon a theory of negligence, strict
   40  liability, products liability, professional malpractice whether
   41  couched in terms of contract or tort, or breach of warranty and
   42  like theories. The substance of an action, not conclusory terms
   43  used by a party, determines whether an action is a negligence
   44  action.
   45         (d) “Products liability action” means a civil action based
   46  upon a theory of strict liability, negligence, breach of
   47  warranty, nuisance, or similar theories for damages caused by
   48  the manufacture, construction, design, formulation,
   49  installation, preparation, or assembly of a product. The term
   50  includes an action alleging that injuries received by a claimant
   51  in an accident were greater than the injuries the claimant would
   52  have received but for a defective product. The substance of an
   53  action, not the conclusory terms used by a party, determines
   54  whether an action is a products liability action.
   55         (2) EFFECT OF CONTRIBUTORY FAULT.—In a negligence an action
   56  to which this section applies, any contributory fault chargeable
   57  to the claimant diminishes proportionately the amount awarded as
   58  economic and noneconomic damages for an injury attributable to
   59  the claimant’s contributory fault, but does not bar recovery.
   60         (3) APPORTIONMENT OF DAMAGES.—In a negligence action cases
   61  to which this section applies, the court shall enter judgment
   62  against each party liable on the basis of such party’s
   63  percentage of fault and not on the basis of the doctrine of
   64  joint and several liability.
   65         (a)1. In order to allocate any or all fault to a nonparty,
   66  a defendant must affirmatively plead the fault of a nonparty
   67  and, absent a showing of good cause, identify the nonparty, if
   68  known, or describe the nonparty as specifically as practicable,
   69  either by motion or in the initial responsive pleading when
   70  defenses are first presented, subject to amendment any time
   71  before trial in accordance with the Florida Rules of Civil
   72  Procedure.
   73         2.(b) In order to allocate any or all fault to a nonparty
   74  and include the named or unnamed nonparty on the verdict form
   75  for purposes of apportioning damages, a defendant must prove at
   76  trial, by a preponderance of the evidence, the fault of the
   77  nonparty in causing the plaintiff’s injuries.
   78         (b)In a products liability action alleging that injuries
   79  received by a claimant in an accident were enhanced by a
   80  defective product, the trier of fact shall consider the fault of
   81  all persons who contributed to the accident when apportioning
   82  fault between or among them. The jury shall be appropriately
   83  instructed by the trial judge on the apportionment of fault in
   84  products liability actions where there are allegations that the
   85  injuries received by the claimant in an accident were enhanced
   86  by a defective product. The rules of evidence apply to these
   87  actions.
   88         (4) APPLICABILITY.—
   89         (a)This section applies to negligence cases. For purposes
   90  of this section, “negligence cases” includes, but is not limited
   91  to, civil actions for damages based upon theories of negligence,
   92  strict liability, products liability, professional malpractice
   93  whether couched in terms of contract or tort, or breach of
   94  warranty and like theories. In determining whether a case falls
   95  within the term “negligence cases,” the court shall look to the
   96  substance of the action and not the conclusory terms used by the
   97  parties.
   98         (b) This section does not apply to any action brought by
   99  any person to recover actual economic damages resulting from
  100  pollution, to any action based upon an intentional tort, or to
  101  any cause of action as to which application of the doctrine of
  102  joint and several liability is specifically provided by chapter
  103  403, chapter 498, chapter 517, chapter 542, or chapter 895.
  104         (5) MEDICAL MALPRACTICE.—Notwithstanding anything in law to
  105  the contrary, in an action for damages for personal injury or
  106  wrongful death arising out of medical malpractice, whether in
  107  contract or tort, if when an apportionment of damages pursuant
  108  to this section is attributed to a teaching hospital as defined
  109  in s. 408.07, the court shall enter judgment against the
  110  teaching hospital on the basis of such party’s percentage of
  111  fault and not on the basis of the doctrine of joint and several
  112  liability.
  113         Section 2. The Legislature intends that this act be applied
  114  retroactively and overrule D’Amario v. Ford Motor Co., 806 So.
  115  2d 424 (Fla. 2001), which adopted what the Florida Supreme Court
  116  acknowledged to be a minority view. That minority view fails to
  117  apportion fault for damages consistent with Florida’s statutory
  118  comparative fault system, codified in s. 768.81, Florida
  119  Statutes, and leads to inequitable and unfair results,
  120  regardless of the damages sought in the litigation. The
  121  Legislature finds that, in a products liability action as
  122  defined in this act, fault should be apportioned among all
  123  responsible persons.
  124         Section 3. This act is remedial in nature and applies
  125  retroactively. The Legislature finds that the retroactive
  126  application of this act does not unconstitutionally impair
  127  vested rights. Rather, the law affects only remedies, permitting
  128  recovery against all tortfeasors while lessening the ultimate
  129  liability of each consistent with this state’s statutory
  130  comparative fault system, codified in s. 768.81, Florida
  131  Statutes. In all cases, the Legislature intends that this act be
  132  construed consistent with the due process provisions of the
  133  State Constitution and the Constitution of the United States.
  134         Section 4. This act shall take effect upon becoming a law.