HB 201

A bill to be entitled
2An act relating to negligence; amending s. 768.81, F.S.;
3defining the terms "negligence action" and "products
4liability action"; requiring the trier of fact to consider
5the fault of all parties to an accident when apportioning
6damages in a products liability action alleging an
7additional or enhanced injury; deleting language
8concerning applicability and the definition of the term
9"negligence cases"; amending s. 25.077, F.S.; conforming
10provisions to changes made by this act; providing
11legislative findings and intent; providing for retroactive
12application; providing an effective date.
14Be It Enacted by the Legislature of the State of Florida:
16     Section 1.  Section 768.81, Florida Statutes, is amended to
18     768.81  Comparative fault.-
19     (1)  DEFINITIONS DEFINITION.-As used in this section, the
21     (a)  "Economic damages" means past lost income and future
22lost income reduced to present value; medical and funeral
23expenses; lost support and services; replacement value of lost
24personal property; loss of appraised fair market value of real
25property; costs of construction repairs, including labor,
26overhead, and profit; and any other economic loss that which
27would not have occurred but for the injury giving rise to the
28cause of action.
29     (b)  "Negligence action" means, without limitation, a civil
30action for damages based upon a theory of negligence, strict
31liability, products liability, or professional malpractice,
32whether couched in terms of contract, tort, or breach of
33warranty and like theories. The substance of an action, not
34conclusory terms used by a party, determines whether an action
35is a negligence action.
36     (c)  "Products liability action" means a civil action based
37upon a theory of strict liability, negligence, breach of
38warranty, nuisance, or similar theories for damages caused by
39the manufacture, construction, design, formulation,
40installation, preparation, or assembly of a product. The term
41includes an action alleging that injuries received by a claimant
42in an accident were greater than the injuries the claimant would
43have received but for a defective product. The substance of an
44action, not the conclusory terms used by a party, determines
45whether an action is a products liability action.
46     (2)  EFFECT OF CONTRIBUTORY FAULT.-In a negligence an
47action to which this section applies, any contributory fault
48chargeable to the claimant diminishes proportionately the amount
49awarded as economic and noneconomic damages for an injury
50attributable to the claimant's contributory fault, but does not
51bar recovery.
52     (3)  APPORTIONMENT OF DAMAGES.-In a negligence action cases
53to which this section applies, the court shall enter judgment
54against each party liable on the basis of such party's
55percentage of fault and not on the basis of the doctrine of
56joint and several liability.
57     (a)1.  In order to allocate any or all fault to a nonparty,
58a defendant must affirmatively plead the fault of a nonparty
59and, absent a showing of good cause, identify the nonparty, if
60known, or describe the nonparty as specifically as practicable,
61either by motion or in the initial responsive pleading when
62defenses are first presented, subject to amendment any time
63before trial in accordance with the Florida Rules of Civil
65     2.(b)  In order to allocate any or all fault to a nonparty
66and include the named or unnamed nonparty on the verdict form
67for purposes of apportioning damages, a defendant must prove at
68trial, by a preponderance of the evidence, the fault of the
69nonparty in causing the plaintiff's injuries.
70     (b)  In a products liability action alleging that injuries
71received by a claimant in an accident were greater than the
72injuries the claimant would have received but for a defective
73product, the trier of fact shall consider the fault of all
74persons who contributed to the accident when apportioning fault
75between or among them.
76     (4)  APPLICABILITY.-
77     (a)  This section applies to negligence cases. For purposes
78of this section, "negligence cases" includes, but is not limited
79to, civil actions for damages based upon theories of negligence,
80strict liability, products liability, professional malpractice
81whether couched in terms of contract or tort, or breach of
82warranty and like theories. In determining whether a case falls
83within the term "negligence cases," the court shall look to the
84substance of the action and not the conclusory terms used by the
86     (b)  This section does not apply to any action brought by
87any person to recover actual economic damages resulting from
88pollution, to any action based upon an intentional tort, or to
89any cause of action as to which application of the doctrine of
90joint and several liability is specifically provided by chapter
91403, chapter 498, chapter 517, chapter 542, or chapter 895.
92     (5)  MEDICAL MALPRACTICE.-Notwithstanding anything in law
93to the contrary, in an action for damages for personal injury or
94wrongful death arising out of medical malpractice, whether in
95contract or tort, if when an apportionment of damages pursuant
96to this section is attributed to a teaching hospital as defined
97in s. 408.07, the court shall enter judgment against the
98teaching hospital on the basis of such party's percentage of
99fault and not on the basis of the doctrine of joint and several
101     Section 2.  Section 25.077, Florida Statutes, is amended to
103     25.077  Negligence action case settlements and jury
104verdicts; case reporting.-Through the state's uniform case
105reporting system, the clerk of court shall report to the Office
106of the State Courts Administrator, beginning in 2003,
107information from each settlement or jury verdict and final
108judgment in negligence actions cases as defined in s. 768.81(4),
109as the President of the Senate and the Speaker of the House of
110Representatives deem necessary from time to time. The
111information shall include, but need not be limited to: the name
112of each plaintiff and defendant; the verdict; the percentage of
113fault of each; the amount of economic damages and noneconomic
114damages awarded to each plaintiff, identifying those damages
115that are to be paid jointly and severally and by which
116defendants; and the amount of any punitive damages to be paid by
117each defendant.
118     Section 3.  The Legislature intends this law to be applied
119retroactively and the holding in D'Amario v. Ford Motor Co., 806
120So. 2d 424 (Fla. 2001), which adopted what the Florida Supreme
121Court acknowledged to be a minority view, to be nullified. That
122minority view fails to apportion fault for damages consistent
123with Florida's statutory comparative fault system, codified in
124section 768.81, Florida Statutes, and leads to inequitable and
125unfair results, regardless of what damages are sought in the
126litigation. The Legislature finds that, in products liability
127actions as defined in this act, fault should be apportioned
128among all responsible persons.
129     Section 4.  The Legislature finds that this act is remedial
130and that its retroactive application does not unconstitutionally
131impair vested rights. Rather, this act affects only remedies,
132permitting a recovery against all tortfeasors while lessening
133the ultimate liability of each consistent with Florida's
134statutory comparative fault system, codified in section 768.81,
135Florida Statutes. In all cases, the Legislature intends this law
136to be construed consistent with the due process provisions of
137the federal and state constitutions.
138     Section 5.  This act shall take effect upon becoming a law.

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