Florida Tort Reform: Bad to the Bone Legislation That No Adjustment Will Fix!!!!

By: James D. Underwood, Esq. & Christopher M. Tuccitto, Esq.

The recently enacted and so-called Tort “Reform” law has something bad about it for everyone that will impact medical providers, attorneys, and consumer/claimants alike. Key components of the law include the elimination of attorney client privilege related to any referrals to medical providers by an attorney to their client, the elimination of attorney’s fees from insurers when an insured or their assignee recovers in litigation including all types of claims whether medical, vehicle damage, or even life insurance coverage. Additionally, the legislation eliminates the ability of an individual from recovering damages for injuries from an at fault party if the individual was more than fifty percent at fault for the injuries, provides for additional burdens to bring a bad faith claim against an insurer, and limits the evidence that may be presented to prove the amount of past, current, and future medical expenses related to injuries.

The legislation limits Florida consumers access to courts as it eliminates the ability of first party claimants from having their attorney’s fees covered by their insurer when they recovery wrongfully denied benefits under their policy of insurance. In the past when you were forced to sue your own insurance company or when an assignee sued the responsible insurer for wrongfully denied benefits insurers were required by Florida Statute 627.428 to pay the reasonable attorney’s fees and costs for the necessity of the litigation. This law eliminates this statutory provision and likely will impact all policies of insurance written in Florida after the effective date of the legislation which was March 24, 2023. This elimination of the recovery of attorney’s fees will impact PIP cases, vehicle damage cases, life insurance policy suits, and all suits related to first party insurance claims. Now, claimants will need to compensate their legal representation from their recovery. Many claims that could have been pursued against an insurer in the past will no longer be financially viable as the recovery will be used primarily to satisfy legal representation even if the insurer wrongfully denied payments.

The law changes the evidence that may be used to prove damages as it relates to injuries from charges for incurred medical care to the exact amount already reimbursed by applicable insurance but does allow for any evidence of reasonable amounts billed to the claimant for medically necessary treatment and services. As to future medical expenses, the bill limits the evidence used to prove the amount to what a responsible insurer would pay for those future services, but it also allows for any evidence of reasonable future amount to be billed to the claimant for medically necessary treatment or services. These changes will lower the amount of recovery for claimants across the board, impacting the monies available to cover outstanding medical expenses.

Going forward, it will be interesting to see how the insurance companies handle claims now that the threat of exposure to the claimant/insured for attorney’s fees and costs has been eliminated. For insurance like PIP, which only provides up to $10,000 in coverage, it’s easy to see many scenarios where the insurance companies nickel and dime the medical providers at every opportunity, knowing that it will be economically unfeasible for an attorney to handle a claim against them for a percentage of what amounts to a relatively small amount in dispute.

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