Florida Senate - 2023                              CS for SB 236
       
       
        
       By the Committee on Banking and Insurance; and Senator Hutson
       
       
       
       
       
       597-02362-23                                           2023236c1
    1                        A bill to be entitled                      
    2         An act relating to civil remedies; amending s. 57.104,
    3         F.S.; creating a rebuttable presumption that a
    4         lodestar fee is a sufficient and reasonable attorney
    5         fee in most civil actions; providing an exception;
    6         amending s. 95.11, F.S.; reducing the statute of
    7         limitations for negligence actions; amending s.
    8         624.155, F.S.; providing standards for bad faith
    9         actions; providing for the distribution of proceeds
   10         when two or more third-party claims arising out of a
   11         single occurrence exceed policy limits; creating s.
   12         768.0427, F.S.; providing definitions; providing
   13         standards for the admissibility of evidence to prove
   14         the cost of damages for medical expenses in certain
   15         civil actions; requiring certain disclosures with
   16         respect to claims for medical expenses for treatment
   17         rendered under letters of protection; specifying the
   18         damages that may be recovered by a claimant for the
   19         reasonable and necessary cost of medical care;
   20         creating s. 768.0701, F.S.; requiring the trier of
   21         fact to consider the fault of certain persons who
   22         contribute to an injury; amending s. 768.79, F.S.;
   23         providing for the applicability of that section;
   24         amending s. 768.81, F.S.; providing that a party in a
   25         negligence action who is at fault by a specified
   26         amount may not recover damages under a comparative
   27         negligence action; providing applicability; repealing
   28         ss. 626.9373 and 627.428, F.S., relating to attorney
   29         fees payable to insureds filing actions against
   30         insurers; amending ss. 624.123, 624.488, 627.062,
   31         627.401, 627.727, 627.736, 627.756, and 628.6016,
   32         F.S.; conforming provisions to changes made by the
   33         act; repealing ss. 631.70 and 631.926, F.S., relating
   34         to awards of attorney fees; amending ss. 475.01,
   35         475.611, 517.191, 627.441, and 632.638, F.S.;
   36         conforming provisions to changes made by the act;
   37         providing a directive to the Division of Law Revision;
   38         providing applicability and construction; providing an
   39         effective date.
   40          
   41  Be It Enacted by the Legislature of the State of Florida:
   42  
   43         Section 1. Section 57.104, Florida Statutes, is amended to
   44  read:
   45         57.104 Computation of attorney attorneys’ fees.—
   46         (1) In any action in which attorney attorneys’ fees are to
   47  be determined or awarded by the court, the court shall consider,
   48  among other things, time and labor of any legal assistants who
   49  contributed nonclerical, meaningful legal support to the matter
   50  involved and who are working under the supervision of an
   51  attorney. For purposes of this section “legal assistant” means a
   52  person, who under the supervision and direction of a licensed
   53  attorney engages in legal research, and case development or
   54  planning in relation to modifications or initial proceedings,
   55  services, processes, or applications; or who prepares or
   56  interprets legal documents or selects, compiles, and uses
   57  technical information from references such as digests,
   58  encyclopedias, or practice manuals and analyzes and follows
   59  procedural problems that involve independent decisions.
   60         (2)In any action in which attorney fees are determined or
   61  awarded by the court, there is a strong presumption that a
   62  lodestar fee is sufficient and reasonable. This presumption may
   63  be overcome only in a rare and exceptional circumstance with
   64  evidence that competent counsel could not otherwise be retained.
   65         Section 2. Subsections (3), (4), and (10) of section 95.11,
   66  Florida Statutes, are amended to read:
   67         95.11 Limitations other than for the recovery of real
   68  property.—Actions other than for recovery of real property shall
   69  be commenced as follows:
   70         (3) WITHIN FOUR YEARS.—
   71         (a) An action founded on negligence.
   72         (b) An action relating to the determination of paternity,
   73  with the time running from the date the child reaches the age of
   74  majority.
   75         (b)(c) An action founded on the design, planning, or
   76  construction of an improvement to real property, with the time
   77  running from the date of actual possession by the owner, the
   78  date of the issuance of a certificate of occupancy, the date of
   79  abandonment of construction if not completed, or the date of
   80  completion of the contract or termination of the contract
   81  between the professional engineer, registered architect, or
   82  licensed contractor and his or her employer, whichever date is
   83  latest; except that, when the action involves a latent defect,
   84  the time runs from the time the defect is discovered or should
   85  have been discovered with the exercise of due diligence. In any
   86  event, the action must be commenced within 10 years after the
   87  date of actual possession by the owner, the date of the issuance
   88  of a certificate of occupancy, the date of abandonment of
   89  construction if not completed, or the date of completion of the
   90  contract or termination of the contract between the professional
   91  engineer, registered architect, or licensed contractor and his
   92  or her employer, whichever date is latest. However,
   93  counterclaims, cross-claims, and third-party claims that arise
   94  out of the conduct, transaction, or occurrence set out or
   95  attempted to be set out in a pleading may be commenced up to 1
   96  year after the pleading to which such claims relate is served,
   97  even if such claims would otherwise be time barred. With respect
   98  to actions founded on the design, planning, or construction of
   99  an improvement to real property, if such construction is
  100  performed pursuant to a duly issued building permit and if a
  101  local enforcement agency, state enforcement agency, or special
  102  inspector, as those terms are defined in s. 553.71, has issued a
  103  final certificate of occupancy or certificate of completion,
  104  then as to the construction which is within the scope of such
  105  building permit and certificate, the correction of defects to
  106  completed work or repair of completed work, whether performed
  107  under warranty or otherwise, does not extend the period of time
  108  within which an action must be commenced. Completion of the
  109  contract means the later of the date of final performance of all
  110  the contracted services or the date that final payment for such
  111  services becomes due without regard to the date final payment is
  112  made.
  113         (c)(d) An action to recover public money or property held
  114  by a public officer or employee, or former public officer or
  115  employee, and obtained during, or as a result of, his or her
  116  public office or employment.
  117         (d)(e) An action for injury to a person founded on the
  118  design, manufacture, distribution, or sale of personal property
  119  that is not permanently incorporated in an improvement to real
  120  property, including fixtures.
  121         (e)(f) An action founded on a statutory liability.
  122         (f)(g) An action for trespass on real property.
  123         (g)(h) An action for taking, detaining, or injuring
  124  personal property.
  125         (h)(i) An action to recover specific personal property.
  126         (i)(j) A legal or equitable action founded on fraud.
  127         (j)(k) A legal or equitable action on a contract,
  128  obligation, or liability not founded on a written instrument,
  129  including an action for the sale and delivery of goods, wares,
  130  and merchandise, and on store accounts.
  131         (k)(l) An action to rescind a contract.
  132         (l)(m) An action for money paid to any governmental
  133  authority by mistake or inadvertence.
  134         (m)(n) An action for a statutory penalty or forfeiture.
  135         (n)(o) An action for assault, battery, false arrest,
  136  malicious prosecution, malicious interference, false
  137  imprisonment, or any other intentional tort, except as provided
  138  in subsections (4), (5), and (7).
  139         (o)(p) Any action not specifically provided for in these
  140  statutes.
  141         (p)(q) An action alleging a violation, other than a willful
  142  violation, of s. 448.110.
  143         (4) WITHIN TWO YEARS.—
  144         (a)An action founded on negligence.
  145         (b)(a) An action for professional malpractice, other than
  146  medical malpractice, whether founded on contract or tort;
  147  provided that the period of limitations shall run from the time
  148  the cause of action is discovered or should have been discovered
  149  with the exercise of due diligence. However, the limitation of
  150  actions herein for professional malpractice shall be limited to
  151  persons in privity with the professional.
  152         (c)(b) An action for medical malpractice shall be commenced
  153  within 2 years from the time the incident giving rise to the
  154  action occurred or within 2 years from the time the incident is
  155  discovered, or should have been discovered with the exercise of
  156  due diligence; however, in no event shall the action be
  157  commenced later than 4 years from the date of the incident or
  158  occurrence out of which the cause of action accrued, except that
  159  this 4-year period shall not bar an action brought on behalf of
  160  a minor on or before the child’s eighth birthday. An “action for
  161  medical malpractice” is defined as a claim in tort or in
  162  contract for damages because of the death, injury, or monetary
  163  loss to any person arising out of any medical, dental, or
  164  surgical diagnosis, treatment, or care by any provider of health
  165  care. The limitation of actions within this subsection shall be
  166  limited to the health care provider and persons in privity with
  167  the provider of health care. In those actions covered by this
  168  paragraph in which it can be shown that fraud, concealment, or
  169  intentional misrepresentation of fact prevented the discovery of
  170  the injury the period of limitations is extended forward 2 years
  171  from the time that the injury is discovered or should have been
  172  discovered with the exercise of due diligence, but in no event
  173  to exceed 7 years from the date the incident giving rise to the
  174  injury occurred, except that this 7-year period shall not bar an
  175  action brought on behalf of a minor on or before the child’s
  176  eighth birthday. This paragraph shall not apply to actions for
  177  which ss. 766.301-766.316 provide the exclusive remedy.
  178         (d)(c) An action to recover wages or overtime or damages or
  179  penalties concerning payment of wages and overtime.
  180         (e)(d) An action for wrongful death.
  181         (f)(e) An action founded upon a violation of any provision
  182  of chapter 517, with the period running from the time the facts
  183  giving rise to the cause of action were discovered or should
  184  have been discovered with the exercise of due diligence, but not
  185  more than 5 years from the date such violation occurred.
  186         (g)(f) An action for personal injury caused by contact with
  187  or exposure to phenoxy herbicides while serving either as a
  188  civilian or as a member of the Armed Forces of the United States
  189  during the period January 1, 1962, through May 7, 1975; the
  190  period of limitations shall run from the time the cause of
  191  action is discovered or should have been discovered with the
  192  exercise of due diligence.
  193         (h)(g) An action for libel or slander.
  194         (10) FOR INTENTIONAL TORTS RESULTING IN DEATH FROM ACTS
  195  DESCRIBED IN S. 782.04 OR S. 782.07.—Notwithstanding paragraph
  196  (4)(e) (4)(d), an action for wrongful death seeking damages
  197  authorized under s. 768.21 brought against a natural person for
  198  an intentional tort resulting in death from acts described in s.
  199  782.04 or s. 782.07 may be commenced at any time. This
  200  subsection shall not be construed to require an arrest, the
  201  filing of formal criminal charges, or a conviction for a
  202  violation of s. 782.04 or s. 782.07 as a condition for filing a
  203  civil action.
  204         Section 3. Section 624.155, Florida Statutes, is amended to
  205  read:
  206         624.155 Civil remedy.—
  207         (1) Any person may bring a civil action against an insurer
  208  when such person is damaged:
  209         (a) By a violation of any of the following provisions by
  210  the insurer:
  211         1. Section 626.9541(1)(i), (o), or (x);
  212         2. Section 626.9551;
  213         3. Section 626.9705;
  214         4. Section 626.9706;
  215         5. Section 626.9707; or
  216         6. Section 627.7283.
  217         (b) By the commission of any of the following acts by the
  218  insurer:
  219         1. Not attempting in good faith to settle claims when,
  220  under all the circumstances, it could and should have done so,
  221  had it acted fairly and honestly toward its insured and with due
  222  regard for her or his interests;
  223         2. Making claims payments to insureds or beneficiaries not
  224  accompanied by a statement setting forth the coverage under
  225  which payments are being made; or
  226         3. Except as to liability coverages, failing to promptly
  227  settle claims, when the obligation to settle a claim has become
  228  reasonably clear, under one portion of the insurance policy
  229  coverage in order to influence settlements under other portions
  230  of the insurance policy coverage.
  231  
  232  Notwithstanding the provisions of the above to the contrary, a
  233  person pursuing a remedy under this section need not prove that
  234  such act was committed or performed with such frequency as to
  235  indicate a general business practice.
  236         (2) Any party may bring a civil action against an
  237  unauthorized insurer if such party is damaged by a violation of
  238  s. 624.401 by the unauthorized insurer.
  239         (3)(a) As a condition precedent to bringing an action under
  240  this section, the department and the authorized insurer must
  241  have been given 60 days’ written notice of the violation. Notice
  242  to the authorized insurer must be provided by the department to
  243  the e-mail address designated by the insurer under s. 624.422.
  244         (b) The notice shall be on a form provided by the
  245  department and shall state with specificity the following
  246  information, and such other information as the department may
  247  require:
  248         1. The statutory provision, including the specific language
  249  of the statute, which the authorized insurer allegedly violated.
  250         2. The facts and circumstances giving rise to the
  251  violation.
  252         3. The name of any individual involved in the violation.
  253         4. Reference to specific policy language that is relevant
  254  to the violation, if any. If the person bringing the civil
  255  action is a third party claimant, she or he shall not be
  256  required to reference the specific policy language if the
  257  authorized insurer has not provided a copy of the policy to the
  258  third party claimant pursuant to written request.
  259         5. A statement that the notice is given in order to perfect
  260  the right to pursue the civil remedy authorized by this section.
  261         (c) No action shall lie if, within 60 days after the
  262  insurer receives notice from the department in accordance with
  263  this subsection, the damages are paid or the circumstances
  264  giving rise to the violation are corrected.
  265         (d) The authorized insurer that is the recipient of a
  266  notice filed pursuant to this section shall report to the
  267  department on the disposition of the alleged violation.
  268         (e) The applicable statute of limitations for an action
  269  under this section shall be tolled for a period of:
  270         1. Sixty days after the insurer receives from the
  271  department the notice required by this subsection.
  272         2. Sixty days after the date appraisal is invoked pursuant
  273  to paragraph (f).
  274         (f) A notice required under this subsection may not be
  275  filed within 60 days after appraisal is invoked by any party in
  276  a residential property insurance claim.
  277         (4)An action for bad faith involving a failure to settle a
  278  liability insurance claim, including any such action brought
  279  under the common law, shall not lie if the insurer tenders the
  280  lesser of the policy limits or the amount demanded by the
  281  claimant either:
  282         (a)Before a complaint asserting such claim, accompanied by
  283  sufficient evidence to support the amount of the claim, is
  284  filed; or
  285         (b)Within 90 days after service of such complaint upon the
  286  insurer.
  287  
  288  Failure of an insurer to offer payment pursuant to this
  289  subsection shall not constitute bad faith and is inadmissible as
  290  evidence in any action seeking to establish bad faith on the
  291  part of the insurer.
  292         (5)In any bad faith action, whether such action is brought
  293  under this section or is based on the common-law remedy for bad
  294  faith:
  295         (a)Mere negligence alone is insufficient to constitute bad
  296  faith.
  297         (b)1.The insured, claimant, and representative of the
  298  insured or claimant have a duty to act in good faith in
  299  furnishing information regarding the claim, in making demands of
  300  the insurer, in setting deadlines, and in attempting to settle
  301  the claim. This duty does not create a separate cause of action,
  302  but may only be considered pursuant to subparagraph 2.
  303         2.In any action for bad faith against an insurer, the
  304  trier of fact may consider whether the insured, claimant, or
  305  representative of the insured or claimant did not act in good
  306  faith pursuant to this paragraph, in which case the trier of
  307  fact may reasonably reduce the amount of damages awarded against
  308  the insurer.
  309         (6)If two or more third-party claimants have competing
  310  claims arising out of a single occurrence, which in total may
  311  exceed the available policy limits of one or more of the insured
  312  parties who may be liable to the third-party claimants, an
  313  insurer is not liable beyond the available policy limits for
  314  failure to pay all or any portion of the available policy limits
  315  to one or more of the third-party claimants if, within 90 days
  316  after receiving notice of the competing claims in excess of the
  317  available policy limits, the insurer complies with either
  318  paragraph (a) or paragraph (b).
  319         (a)The insurer files an interpleader action under the
  320  Florida Rules of Civil Procedure. If the claims of the competing
  321  third-party claimants are found to be in excess of the policy
  322  limits, the third-party claimants are entitled to a prorated
  323  share of the policy limits as determined by the trier of fact.
  324  An insurer’s interpleader action does not alter or amend the
  325  insurer’s obligation to defend its insured.
  326         (b)Pursuant to binding arbitration that has been agreed to
  327  by the insurer and the third-party claimants, the insurer makes
  328  the entire amount of the policy limits available for payment to
  329  the competing third-party claimants before a qualified
  330  arbitrator selected by the insurer at the expense of the
  331  insurer. The third-party claimants are entitled to a prorated
  332  share of the policy limits as determined by the arbitrator, who
  333  must consider the comparative fault, if any, of each third-party
  334  claimant, and the total likely outcome at trial based upon the
  335  total of the economic and noneconomic damages submitted to the
  336  arbitrator for consideration. A third-party claimant whose claim
  337  is resolved by the arbitrator must execute and deliver a general
  338  release to the insured party whose claim is resolved by the
  339  proceeding.
  340         (7)(4) Upon adverse adjudication at trial or upon appeal,
  341  the authorized insurer shall be liable for damages, together
  342  with court costs and reasonable attorney attorney’s fees
  343  incurred by the plaintiff.
  344         (8)(5)No Punitive damages may not shall be awarded under
  345  this section unless the acts giving rise to the violation occur
  346  with such frequency as to indicate a general business practice
  347  and these acts are:
  348         (a) Willful, wanton, and malicious;
  349         (b) In reckless disregard for the rights of any insured; or
  350         (c) In reckless disregard for the rights of a beneficiary
  351  under a life insurance contract.
  352  
  353  Any person who pursues a claim under this subsection shall post
  354  in advance the costs of discovery. Such costs shall be awarded
  355  to the authorized insurer if no punitive damages are awarded to
  356  the plaintiff.
  357         (9)(6) This section does shall not be construed to
  358  authorize a class action suit against an authorized insurer or a
  359  civil action against the commission, the office, or the
  360  department or any of their employees, or to create a cause of
  361  action when an authorized health insurer refuses to pay a claim
  362  for reimbursement on the ground that the charge for a service
  363  was unreasonably high or that the service provided was not
  364  medically necessary.
  365         (10)(7) In the absence of expressed language to the
  366  contrary, this section shall not be construed to authorize a
  367  civil action or create a cause of action against an authorized
  368  insurer or its employees who, in good faith, release information
  369  about an insured or an insurance policy to a law enforcement
  370  agency in furtherance of an investigation of a criminal or
  371  fraudulent act relating to a motor vehicle theft or a motor
  372  vehicle insurance claim.
  373         (11)(8) The civil remedy specified in this section does not
  374  preempt any other remedy or cause of action provided for
  375  pursuant to any other statute or pursuant to the common law of
  376  this state. Any person may obtain a judgment under either the
  377  common-law remedy of bad faith or this statutory remedy, but is
  378  shall not be entitled to a judgment under both remedies. This
  379  section does shall not be construed to create a common-law cause
  380  of action. The damages recoverable pursuant to this section
  381  shall include those damages which are a reasonably foreseeable
  382  result of a specified violation of this section by the
  383  authorized insurer and may include an award or judgment in an
  384  amount that exceeds the policy limits.
  385         (12)(9) A surety issuing a payment or performance bond on
  386  the construction or maintenance of a building or roadway project
  387  is not an insurer for purposes of subsection (1).
  388         Section 4. Section 768.0427, Florida Statutes, is created
  389  to read:
  390         768.0427Admissibility of evidence to prove medical
  391  expenses in personal injury or wrongful death actions;
  392  disclosure of letters of protection; recovery of past and future
  393  medical expenses damages.—
  394         (1)DEFINITIONS.—As used in this section, the term:
  395         (a)“Factoring company” means a person who purchases a
  396  health care provider’s accounts receivable at a discount below
  397  the invoice value of such accounts.
  398         (b)“Health care coverage” means any third-party health
  399  care or disability services financing arrangement, including,
  400  but not limited to, arrangements with entities certified or
  401  authorized under federal law or under the Florida Insurance
  402  Code; state or federal health care benefit programs; workers’
  403  compensation; and personal injury protection.
  404         (c)“Health care provider” means any of the following
  405  professionals and entities, and professionals and entities
  406  similarly licensed in another jurisdiction:
  407         1.A provider as defined in s. 408.803.
  408         2.A clinical laboratory providing services in this state
  409  or services to health care providers in this state, if the
  410  clinical laboratory is certified by the Centers for Medicare and
  411  Medicaid Services under the federal Clinical Laboratory
  412  Improvement Amendments and the federal rules adopted thereunder.
  413         3.A federally qualified health center as defined in 42
  414  U.S.C. s. 1396d(l)(2)(B), as that definition existed on the
  415  effective date of this act.
  416         4.A health care practitioner as defined in s. 456.001.
  417         5.A health care professional licensed under part IV of
  418  chapter 468.
  419         6.A home health aide as defined in s. 400.462.
  420         7.A provider licensed under chapter 394 or chapter 397 and
  421  its clinical and nonclinical staff providing inpatient or
  422  outpatient services.
  423         8.A continuing care facility licensed under chapter 651.
  424         9.A pharmacy permitted under chapter 465.
  425         (d)“Letter of Protection” means any arrangement by which a
  426  health care provider renders treatment in exchange for a promise
  427  of payment for the claimant’s medical expenses from any judgment
  428  or settlement of a personal injury or wrongful death action. The
  429  term includes any such arrangement, regardless of whether
  430  referred to as a letter of protection.
  431         (2)ADMISSIBLE EVIDENCE OF MEDICAL TREATMENT OR SERVICE
  432  EXPENSES.—Evidence offered to prove the amount of damages for
  433  past or future medical treatment or services in a personal
  434  injury or wrongful death action is admissible only as provided
  435  in this subsection.
  436         (a)Evidence offered to prove the amount of damages for
  437  past medical treatment or services that have been satisfied is
  438  limited to evidence of the amount actually paid, regardless of
  439  the source of payment.
  440         (b)Evidence offered to prove the amount necessary to
  441  satisfy unpaid charges for incurred medical treatment or
  442  services is limited to evidence as provided in this paragraph.
  443         1.If the claimant has health care coverage, evidence of
  444  the amount which such health care coverage is obligated to pay
  445  the health care provider to satisfy the charges for the
  446  claimant’s incurred medical treatment or services, plus the
  447  claimant’s share of medical expenses under the insurance
  448  contract or regulation.
  449         2.If the claimant has health care coverage but obtains
  450  treatment under a letter of protection or otherwise does not
  451  submit charges for any health care provider’s medical treatment
  452  or services to health care coverage, evidence of the amount the
  453  claimant’s health care coverage would pay the health care
  454  provider to satisfy the past unpaid medical charges under the
  455  insurance contract or regulation, plus the claimant’s share of
  456  medical expenses under the insurance contract or regulation, had
  457  the claimant obtained medical services or treatment pursuant to
  458  the health care coverage.
  459         3.If the claimant does not have health care coverage,
  460  evidence of 120 percent of the Medicare reimbursement rate in
  461  effect at the time of trial for the claimant’s incurred medical
  462  treatment or services, or, if there is no applicable Medicare
  463  rate for a service, 170 percent of the applicable state Medicaid
  464  rate.
  465         4.If the claimant obtains medical treatment or services
  466  under a letter of protection and the health care provider
  467  subsequently transfers the right to receive payment under the
  468  letter of protection to a third party, evidence of the amount
  469  the third party paid or agreed to pay the health care provider
  470  in exchange for the right to receive payment pursuant to the
  471  letter of protection.
  472         5.Any evidence disclosed under subsection (3) related to a
  473  letter of protection.
  474         (c)Evidence offered to prove the amount of damages for any
  475  future medical treatment or services the claimant will receive
  476  is limited to evidence as provided in this paragraph.
  477         1.If the claimant has health care coverage or is eligible
  478  for any health care coverage, evidence of the amount for which
  479  the future charges of health care providers could be satisfied
  480  if submitted to such health care coverage, plus the claimant’s
  481  share of medical expenses under the insurance contract or
  482  regulation.
  483         2.If the claimant does not have health care coverage,
  484  evidence of 120 percent of the Medicare reimbursement rate in
  485  effect at the time of trial for the medical treatment or
  486  services the claimant will receive, or, if there is no
  487  applicable Medicare rate for a service, 170 percent of the
  488  applicable state Medicaid rate.
  489         (d)This subsection does not impose an affirmative duty
  490  upon any party to seek a reduction in billed charges to which
  491  the party is not contractually entitled.
  492         (e)Individual contracts between providers and authorized
  493  commercial insurers or authorized health maintenance
  494  organizations are not subject to discovery or disclosure and are
  495  not admissible into evidence.
  496         (3)LETTERS OF PROTECTION; REQUIRED DISCLOSURES.—In a
  497  personal injury or wrongful death action, as a condition
  498  precedent to asserting any claim for medical expenses for
  499  treatment rendered under a letter of protection, the claimant
  500  must disclose:
  501         (a)A copy of the letter of protection.
  502         (b)All billings for the claimant’s medical expenses, which
  503  must be itemized and, to the extent applicable, coded according
  504  to the American Medical Association’s Current Procedural
  505  Terminology (CPT), or the Healthcare Common Procedure Coding
  506  System (HCPCS), in effect for the year in which services are
  507  rendered.
  508         (c)If the health care provider sells the accounts
  509  receivable for the claimant’s medical expenses to a factoring
  510  company or other third party:
  511         1.The name of the factoring company or other third party
  512  who purchased such accounts.
  513         2.The dollar amount for which the factoring company or
  514  other third party purchased such accounts, including any
  515  discount provided below the invoice amount.
  516         (d)Whether the claimant, at the time medical treatment was
  517  rendered, had health care coverage and, if so, the identity of
  518  such coverage.
  519         (e)Whether the claimant was referred for treatment under a
  520  letter of protection and, if so, the identity of the person who
  521  made the referral. If the referral is made by the claimant’s
  522  attorney, disclosure of the referral is permitted, and evidence
  523  of such referral is admissible notwithstanding any provision
  524  within s. 90.502. Moreover, in such situation, the financial
  525  relationship between a law firm and a medical provider,
  526  including the number of referrals, frequency, and financial
  527  benefit obtained, is relevant to the issue of the bias of a
  528  testifying medical provider.
  529         (4)DAMAGES RECOVERABLE FOR MEDICAL TREATMENT OR SERVICE
  530  EXPENSES.—The damages that may be recovered by a claimant in a
  531  personal injury or wrongful death action for the reasonable and
  532  necessary cost or value of medical care rendered may not include
  533  any amount in excess of the evidence of medical treatment and
  534  services expenses admitted pursuant to subsection (2), and also
  535  may not exceed the sum of the following:
  536         (a)Amounts actually paid by or on behalf of the claimant
  537  to a health care provider who rendered medical treatment or
  538  services;
  539         (b)Amounts necessary to satisfy charges for medical
  540  treatment or services that are due and owing but at the time of
  541  trial are not yet satisfied; and
  542         (c)Amounts necessary to provide for any reasonable and
  543  necessary medical treatment or services the claimant will
  544  receive in the future.
  545         Section 5. Section 768.0701, Florida Statutes, is created
  546  to read:
  547         768.0701Premises liability for criminal acts of third
  548  parties.—Notwithstanding s. 768.81(4), in an action for damages
  549  against the owner, lessor, operator, or manager of commercial or
  550  real property brought by a person lawfully on the property who
  551  was injured by the criminal act of a third party, the trier of
  552  fact must consider the fault of all persons who contributed to
  553  the injury.
  554         Section 6. Subsection (1) of section 768.79, Florida
  555  Statutes, is amended to read:
  556         768.79 Offer of judgment and demand for judgment.—
  557         (1) In any civil action for damages and in any civil action
  558  involving an insurance contract filed in the courts of this
  559  state, if a defendant files an offer of judgment which is not
  560  accepted by the plaintiff within 30 days, the defendant shall be
  561  entitled to recover reasonable costs and attorney’s fees
  562  incurred by her or him or on the defendant’s behalf pursuant to
  563  a policy of liability insurance or other contract from the date
  564  of filing of the offer if the judgment is one of no liability or
  565  the judgment obtained by the plaintiff is at least 25 percent
  566  less than such offer, and the court shall set off such costs and
  567  attorney’s fees against the award. Where such costs and
  568  attorney’s fees total more than the judgment, the court shall
  569  enter judgment for the defendant against the plaintiff for the
  570  amount of the costs and fees, less the amount of the plaintiff’s
  571  award. If a plaintiff files a demand for judgment which is not
  572  accepted by the defendant within 30 days and the plaintiff
  573  recovers a judgment in an amount at least 25 percent greater
  574  than the offer, she or he shall be entitled to recover
  575  reasonable costs and attorney’s fees incurred from the date of
  576  the filing of the demand. If rejected, neither an offer nor
  577  demand is admissible in subsequent litigation, except for
  578  pursuing the penalties of this section.
  579         Section 7. Subsection (2) of section 768.81, Florida
  580  Statutes, is amended, and subsection (6) is added to that
  581  section, to read:
  582         768.81 Comparative fault.—
  583         (2) EFFECT OF CONTRIBUTORY FAULT.—In a negligence action,
  584  contributory fault chargeable to the claimant diminishes
  585  proportionately the amount awarded as economic and noneconomic
  586  damages for an injury attributable to the claimant’s
  587  contributory fault, but does not bar recovery, subject to
  588  subsection (6).
  589         (6)GREATER PERCENTAGE OF FAULT.—In a negligence action to
  590  which this section applies, any party found to be greater than
  591  50 percent at fault for his or her own harm may not recover any
  592  damages. This subsection does not apply to an action for damages
  593  for personal injury or wrongful death arising out of medical
  594  negligence pursuant to chapter 766.
  595         Section 8. Section 626.9373, Florida Statutes, is repealed.
  596         Section 9. Section 627.428, Florida Statutes, is repealed.
  597         Section 10. Subsection (4) of section 624.123, Florida
  598  Statutes, is amended to read:
  599         624.123 Certain international health insurance policies;
  600  exemption from code.—
  601         (4) Any international health insurance policy or
  602  application solicited, provided, entered into, issued, or
  603  delivered pursuant to this subsection is exempt from all
  604  provisions of the insurance code, except that such policy,
  605  contract, or agreement is subject to the provisions of ss.
  606  624.155, 624.316, 624.3161, 626.951, 626.9511, 626.9521,
  607  626.9541, 626.9551, 626.9561, 626.9571, 626.9581, 626.9591,
  608  626.9601, 627.413, 627.4145, 627.428, and 627.6043.
  609         Section 11. Subsection (4) of section 624.488, Florida
  610  Statutes, is amended to read:
  611         624.488 Applicability of related laws.—In addition to other
  612  provisions of the code cited in ss. 624.460-624.488:
  613         (4) Sections 627.291, 627.413, 627.4132, 627.416, 627.418,
  614  627.420, 627.421, 627.425, 627.426, 627.4265, 627.427, 627.428,
  615  627.702, and 627.706; part XI of chapter 627; ss. 627.912,
  616  627.913, and 627.918;
  617  
  618  apply to self-insurance funds. Only those sections of the code
  619  that are expressly and specifically cited in ss. 624.460-624.489
  620  apply to self-insurance funds.
  621         Section 12. Paragraph (b) of subsection (3) of section
  622  627.062, Florida Statutes, is amended to read:
  623         627.062 Rate standards.—
  624         (3)
  625         (b) Individual risk rates and modifications to existing
  626  approved forms are not subject to this part or part II, except
  627  for paragraph (a) and ss. 627.402, 627.403, 627.4035, 627.404,
  628  627.405, 627.406, 627.407, 627.4085, 627.409, 627.4132,
  629  627.4133, 627.415, 627.416, 627.417, 627.419, 627.425, 627.426,
  630  627.4265, and 627.427, and 627.428, but are subject to all other
  631  applicable provisions of this code and rules adopted thereunder.
  632         Section 13. Section 627.401, Florida Statutes, is amended
  633  to read:
  634         627.401 Scope of this part.—No provision of this part of
  635  this chapter applies to:
  636         (1) Reinsurance.
  637         (2) Policies or contracts not issued for delivery in this
  638  state nor delivered in this state, except as otherwise provided
  639  in this code.
  640         (3) Wet marine and transportation insurance, except ss.
  641  627.409 and, 627.420, and 627.428.
  642         (4) Title insurance, except ss. 627.406, 627.415, 627.416,
  643  627.419, and 627.427, and 627.428.
  644         (5) Credit life or credit disability insurance, except s.
  645  627.419(5) ss. 627.419(5) and 627.428.
  646         Section 14. Subsection (8) of section 627.727, Florida
  647  Statutes, is amended to read:
  648         627.727 Motor vehicle insurance; uninsured and underinsured
  649  vehicle coverage; insolvent insurer protection.—
  650         (8) The provisions of s. 627.428 do not apply to any action
  651  brought pursuant to this section against the uninsured motorist
  652  insurer unless there is a dispute over whether the policy
  653  provides coverage for an uninsured motorist proven to be liable
  654  for the accident.
  655         Section 15. Subsection (8) of section 627.736, Florida
  656  Statutes, is amended to read:
  657         627.736 Required personal injury protection benefits;
  658  exclusions; priority; claims.—
  659         (8) APPLICABILITY OF PROVISION REGULATING ATTORNEY FEES.
  660  With respect to any dispute under the provisions of ss. 627.730
  661  627.7405 between the insured and the insurer, or between an
  662  assignee of an insured’s rights and the insurer, the provisions
  663  of s. 768.79 ss. 627.428 and 768.79 apply, except as provided in
  664  subsections (10) and (15), and except that any attorney fees
  665  recovered must:
  666         (a) Comply with prevailing professional standards;
  667         (b) Not overstate or inflate the number of hours reasonably
  668  necessary for a case of comparable skill or complexity; and
  669         (c) Represent legal services that are reasonable and
  670  necessary to achieve the result obtained.
  671  
  672  Upon request by either party, a judge must make written
  673  findings, substantiated by evidence presented at trial or any
  674  hearings associated therewith, that any award of attorney fees
  675  complies with this subsection. Notwithstanding s. 627.428,
  676  Attorney fees recovered under ss. 627.730-627.7405 must be
  677  calculated without regard to a contingency risk multiplier.
  678         Section 16. Section 627.756, Florida Statutes, is amended
  679  to read:
  680         627.756 Bonds for construction contracts; attorney fees in
  681  case of suit.—
  682         (1) Section 627.428 applies to suits brought by owners,
  683  contractors, subcontractors, laborers, and materialmen against a
  684  surety insurer under payment or performance bonds written by the
  685  insurer under the laws of this state to indemnify against
  686  pecuniary loss by breach of a building or construction contract.
  687  Owners, contractors, subcontractors, laborers, and materialmen
  688  shall be deemed to be insureds or beneficiaries for the purposes
  689  of this section.
  690         (2) A surety who issues a bid, performance, or payment bond
  691  in connection with construction activities where hazardous
  692  substances exist or are discovered is liable under ss. 376.308
  693  and 403.727 only to the extent provided in this section
  694  subsection. In case of a default, the surety is liable only for
  695  the cost of completion of the contract work in accordance with
  696  the plans and specifications, less the balance of funds
  697  remaining to be paid under the contract, up to the penal sum of
  698  the bond. The surety is not liable on a bond to indemnify or
  699  compensate the obligee for loss or liability arising from
  700  personal injury or property damage, whether or not caused by a
  701  breach of the bonded contract. Further, a right of action does
  702  not accrue on a bond to or for the use of any person other than
  703  the obligee named in the bond.
  704         Section 17. Subsection (4) of section 628.6016, Florida
  705  Statutes, is amended to read:
  706         628.6016 Applicability of related laws.—In addition to
  707  other provisions of the code cited in ss. 628.6011-628.6018:
  708         (4) Sections 627.291, 627.413, 627.4132, 627.416, 627.418,
  709  627.420, 627.421, 627.425, 627.426, 627.4265, 627.427, 627.428,
  710  627.702, and 627.706; part XI of chapter 627; ss. 627.912,
  711  627.913, and 627.918; and
  712  
  713  apply to assessable mutual insurers; however, ss. 628.255,
  714  628.411, and 628.421 do not apply. No section of the code not
  715  expressly and specifically cited in ss. 628.6011-628.6018
  716  applies to assessable mutual insurers. The term “assessable
  717  mutual insurer” shall be substituted for the term “commercial
  718  self-insurer” as appropriate.
  719         Section 18. Section 631.70, Florida Statutes, is repealed.
  720         Section 19. Section 631.926, Florida Statutes, is repealed.
  721         Section 20. Paragraphs (a) and (j) of subsection (1) of
  722  section 475.01, Florida Statutes, are amended to read:
  723         475.01 Definitions.—
  724         (1) As used in this part:
  725         (a) “Broker” means a person who, for another, and for a
  726  compensation or valuable consideration directly or indirectly
  727  paid or promised, expressly or impliedly, or with an intent to
  728  collect or receive a compensation or valuable consideration
  729  therefor, appraises, auctions, sells, exchanges, buys, rents, or
  730  offers, attempts or agrees to appraise, auction, or negotiate
  731  the sale, exchange, purchase, or rental of business enterprises
  732  or business opportunities or any real property or any interest
  733  in or concerning the same, including mineral rights or leases,
  734  or who advertises or holds out to the public by any oral or
  735  printed solicitation or representation that she or he is engaged
  736  in the business of appraising, auctioning, buying, selling,
  737  exchanging, leasing, or renting business enterprises or business
  738  opportunities or real property of others or interests therein,
  739  including mineral rights, or who takes any part in the procuring
  740  of sellers, purchasers, lessors, or lessees of business
  741  enterprises or business opportunities or the real property of
  742  another, or leases, or interest therein, including mineral
  743  rights, or who directs or assists in the procuring of prospects
  744  or in the negotiation or closing of any transaction which does,
  745  or is calculated to, result in a sale, exchange, or leasing
  746  thereof, and who receives, expects, or is promised any
  747  compensation or valuable consideration, directly or indirectly
  748  therefor; and all persons who advertise rental property
  749  information or lists. A broker renders a professional service
  750  and is a professional within the meaning of s. 95.11(4)(b) s.
  751  95.11(4)(a). Where the term “appraise” or “appraising” appears
  752  in the definition of the term “broker,” it specifically excludes
  753  those appraisal services which must be performed only by a
  754  state-licensed or state-certified appraiser, and those appraisal
  755  services which may be performed by a registered trainee
  756  appraiser as defined in part II. The term “broker” also includes
  757  any person who is a general partner, officer, or director of a
  758  partnership or corporation which acts as a broker. The term
  759  “broker” also includes any person or entity who undertakes to
  760  list or sell one or more timeshare periods per year in one or
  761  more timeshare plans on behalf of any number of persons, except
  762  as provided in ss. 475.011 and 721.20.
  763         (j) “Sales associate” means a person who performs any act
  764  specified in the definition of “broker,” but who performs such
  765  act under the direction, control, or management of another
  766  person. A sales associate renders a professional service and is
  767  a professional within the meaning of s. 95.11(4)(b) s.
  768  95.11(4)(a).
  769         Section 21. Paragraph (h) of subsection (1) of section
  770  475.611, Florida Statutes, is amended to read:
  771         475.611 Definitions.—
  772         (1) As used in this part, the term:
  773         (h) “Appraiser” means any person who is a registered
  774  trainee real estate appraiser, a licensed real estate appraiser,
  775  or a certified real estate appraiser. An appraiser renders a
  776  professional service and is a professional within the meaning of
  777  s. 95.11(4)(b) s. 95.11(4)(a).
  778         Section 22. Subsection (7) of section 517.191, Florida
  779  Statutes, is amended to read:
  780         517.191 Injunction to restrain violations; civil penalties;
  781  enforcement by Attorney General.—
  782         (7) Notwithstanding s. 95.11(4)(f) s. 95.11(4)(e), an
  783  enforcement action brought under this section based on a
  784  violation of any provision of this chapter or any rule or order
  785  issued under this chapter shall be brought within 6 years after
  786  the facts giving rise to the cause of action were discovered or
  787  should have been discovered with the exercise of due diligence,
  788  but not more than 8 years after the date such violation
  789  occurred.
  790         Section 23. Subsection (2) of section 627.441, Florida
  791  Statutes, is amended to read:
  792         627.441 Commercial general liability policies; coverage to
  793  contractors for completed operations.—
  794         (2) A liability insurer must offer coverage at an
  795  appropriate additional premium for liability arising out of
  796  current or completed operations under an owner-controlled
  797  insurance program for any period beyond the period for which the
  798  program provides liability coverage, as specified in s.
  799  255.0517(2)(b). The period of such coverage must be sufficient
  800  to protect against liability arising out of an action brought
  801  within the time limits provided in s. 95.11(3)(b) s.
  802  95.11(3)(c).
  803         Section 24. Subsection (11) of section 632.638, Florida
  804  Statutes, is amended to read:
  805         632.638 Applicability of other code provisions.—In addition
  806  to other provisions contained or referred to in this chapter,
  807  the following chapters and provisions of this code apply to
  808  fraternal benefit societies, to the extent applicable and not in
  809  conflict with the express provisions of this chapter and the
  810  reasonable implications thereof:
  811         (11) Section 627.428;
  812         Section 25. The Division of Law Revision is directed to
  813  replace the phrase “the effective date of this act” wherever it
  814  occurs in this act with the date this act becomes a law.
  815         Section 26. The amendments made by this act to s. 95.11,
  816  Florida Statutes, apply to causes of action accruing after the
  817  effective date of this act.
  818         Section 27. This act shall not be construed to impair any
  819  right under an insurance contract in effect on or before the
  820  effective date of this act. To the extent that this act affects
  821  a right under an insurance contract, this act applies to an
  822  insurance contract issued or renewed after the effective date of
  823  this act.
  824         Section 28. Except as otherwise expressly provided in this
  825  act, this act shall apply to causes of action filed after the
  826  effective date of this act.
  827         Section 29. This act shall take effect upon becoming a law.