Florida Senate Bill S0236 Analysis / Analysis

                    The Florida Senate 
BILL ANALYSIS AND FISCAL IMPACT STATEMENT 
(This document is based on the provisions contained in the legislation as of the latest date listed below.) 
Prepared By: The Professional Staff of the Committee on Banking and Insurance  
 
BILL: SB 236 
INTRODUCER: Banking and Insurance Committee and Senator Hutson 
SUBJECT:  Civil Remedies 
DATE: March 2, 2023 
 
 ANALYST STAFF DIRECTOR  REFERENCE  	ACTION 
1. Thomas Knudson BI Fav/CS 
2.     JU  
3.     FP  
 
Please see Section IX. for Additional Information: 
COMMITTEE SUBSTITUTE - Substantial Changes 
 
I. Summary: 
SB 236 makes the following changes to Florida’s civil justice system: 
 Provides that a contingency fee multiplier for an attorney fee award is appropriate only in a 
rare and exceptional circumstance, adopting the federal standard. 
 Reduces the statute of limitations for general negligence cases from 4 years to 2 years. 
 Modifies Florida’s “bad faith” framework to: 
o Provide an insurer has no liability for bad faith failure to settle a liability claim if the 
insurer tenders the lesser of the policy limits or the amount demanded by the claimant 
before a complaint is filed, or within 90 days after service of the complaint. 
o Provide that negligence alone is not enough to demonstrate bad faith. 
o Require insureds, claimants, and their representatives to act in good faith with respect to 
furnishing information, making demands, setting deadlines, and attempting to settle the 
insurance claim. 
o Allow an insurer, when there are multiple claimants in a single action, to limit the 
insurer’s bad faith liability by paying the total amount of the policy limits at the outset to 
the court through an interpleader action or, through binding arbitration, making the entire 
policy limits available for payment to the competing third-party claimants. 
 Provides a uniform process for the admissibility and the calculation of medical damages in 
personal injury or wrongful death actions, thereby, modifying the collateral source rule 
limiting the introduction of evidence for medical damages.  
 Requires the trier of fact in a negligent security action against the owner, lessor, operator, or 
manager of commercial or real property brought by a person lawfully on the property who 
REVISED:   BILL: SB 236   	Page 2 
 
was injured by the criminal act of a third party, to consider the fault of all persons who 
contributed to the injury. 
 Applies the offer of judgment statute to any civil action involving an insurance contract. 
 Except for causes of action for personal injury or wrongful death arising out of medical 
negligence, changes Florida’s comparative negligence system from a “pure” comparative 
negligence system to a “modified” comparative negligence system, whereby a plaintiff who 
is found to be more that 50 percent at fault for his or her own harm may not recover damages 
from any defendant. 
 Repeals Florida’s one-way attorney fee provisions for insurance cases. 
 Provides that the amendment to the statute of limitation applies prospectively to causes of 
action accruing after the effective date of the bill, that the remainder of the bill applies to 
causes of action filed after the effective date, and that the bill shall not be construed to impair 
any right under an existing insurance contract. 
 
The bill may have a positive fiscal impact on state and local government. 
 
The bill takes effect upon becoming a law.  
II. Present Situation: 
Torts: Negligence, Elements, and Standards 
A tort is a civil legal action to recover damages for a loss, injury, or death due to the conduct of 
another. Some have characterized a tort as a civil wrong, other than a claim for breach of 
contract, in which a remedy is provided through damages.
1
 When a plaintiff files a tort claim, he 
or she alleges that the defendant’s “negligence” caused the injury. Negligence means “doing 
something that a reasonably careful person would not do” in a similar situation or “failing to do 
something that a reasonably careful person would do” in a similar situation.
2
 When a plaintiff 
seeks to recover damages for a personal injury and alleges that the injury was caused by the 
defendant’s negligence, the plaintiff bears the legal burden of proving that the defendant’s 
alleged action was a breach of the duty that the defendant owed to the plaintiff.
3
  
 
Negligence Pleadings 
To establish a claim for relief and initiate a negligence lawsuit, a plaintiff must file a 
“complaint.” The complaint must state a cause of action and contain: a short and plain statement 
establishing the court’s jurisdiction, a short and plain statement of the facts showing why the 
plaintiff is entitled to relief, and a demand for judgment for relief that the plaintiff deems himself 
or herself entitled. The defendant responds with an “answer,” and provides in short and plain 
terms the defenses to each claim asserted, admitting or denying the averments in response.
4
 
                                                
1
 BLACK’S LAW DICTIONARY (11th ed. 2019). 
2
 Fla. Std. Jury Instr. Civil 401.3, Negligence. 
3
 Florida is a comparative negligence jurisdiction as provided in s. 768.81(2), F.S. In lay terms, if a plaintiff and defendant are 
both at fault, a plaintiff may still recover damages, but those damages are reduced proportionately by the degree that the 
plaintiff’s negligence caused the injury.  
4
 Fla. R. Civ. P. 1.110.  BILL: SB 236   	Page 3 
 
Under the Florida Rules of Civil Procedure, allegations of fraud, mistake, and a denial of 
performance or occurrence must be pled with “particularity.”
5
 
 
Four Elements of a Negligence Claim 
To establish liability, the plaintiff must prove four elements: 
 Duty – That the defendant owed a duty, or obligation, of care to the plaintiff; 
 Breach – That the defendant breached that duty by not conforming to the standard required; 
 Causation – That the breach of the duty was the legal cause of the plaintiff’s injury; and 
 Damages – That the plaintiff suffered actual harm or loss.
6
 
 
Burden or Standard of Proof 
A “burden of proof” is the obligation a party bears to prove a material fact. The “standard of 
proof” is the level or degree to which an issue must be proved.
7
 The plaintiff carries the burden 
of proving, by a specific legal standard, that the defendant breached the duty that was owed to 
the plaintiff that resulted in the injury. In civil cases, two standards of proof generally apply:  
 The “greater weight of the evidence” standard, which applies most often in civil cases, or  
 The “clear and convincing evidence” standard, which is a higher standard of proof.
8
 
 
However, both of these standards are lower than the “reasonable doubt” standard which is used 
in criminal prosecutions.
9
 Whether the greater weight standard or clear and convincing standard 
applies is determined by case law or the statutes that govern the underlying substantive issues.
10
 
 
Greater Weight of the Evidence 
The greater weight of the evidence standard of proof means “the more persuasive and convincing 
force and effect of the entire evidence in the case.”
11
 Some people explain the “greater weight of 
the evidence” concept to mean that, if each party’s evidence is placed on a balance scale, the side 
that dips down, even by the smallest amount, has met the burden of proof by the greater weight 
of the evidence. 
 
Clear and Convincing 
The clear and convincing standard, a higher standard of proof than the greater weight of the 
evidence standard, requires that the evidence be credible and the facts which the witness testifies 
to must be remembered distinctly. The witness’s “testimony must be precise and explicit and the 
witnesses must be lacking in confusion as to the facts in issue.” The evidence must be so strong 
that it guides the trier of fact to a firm conviction, to which there is no hesitation, that the 
allegations are true.
12
 
 
                                                
5
 Fla. R. Civ. P. 1.120(b) and (c). 
6
 6 Florida Practice Series s. 1.1; see Barnett v. Dept. of Fin. Serv., 303 So.3d 508, 513 (Fla. 2020). 
7
 5 Fla. Prac. Civil Practice s. 16.1, (2020 ed.)  
8
 Id. 
9
 Thomas D. Sawaya, Florida Personal Injury Law and Practice with Wrongful Death Actions, s. 24:4 (2020). 
10
 5 Fla. Prac. Civil Practice s. 16.1 (2020 ed.). 
11
 Fla. Std. Jury Instr. 401.3, Greater Weight of the Evidence. 
12
 Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4
th
 DCA 1983) as discussed in the Sawaya treatise, supra at s. 24:4.  BILL: SB 236   	Page 4 
 
Standards of Care and Degrees of Negligence 
Courts have developed general definitions for the degrees of negligence.  
 
Slight Negligence 
 
Slight negligence is generally defined to mean the failure to exercise a great amount of care 
typical of an extraordinarily prudent person.
13
 
 
Ordinary Negligence 
 
Ordinary negligence, which is also referred to as simple negligence, is the standard of care 
applied to the vast majority of negligence cases. It is characterized as the conduct that a 
reasonable and prudent person would know could possibly cause injury to a person or property.
14
 
 
Gross Negligence 
 
Gross negligence means the failure of a person to exercise slight care. Florida courts have 
defined gross negligence as the type of conduct that a “reasonably prudent person knows will 
probably and most likely result in injury to another” person.
15
  
 
In order for a plaintiff to succeed on a claim involving gross negligence, he or she must prove: 
 Circumstances, which, when taken together, create a clear and present danger; 
 Awareness that the danger exists; and 
 A conscious, voluntary act or omission to act, that will likely result in an injury.
16, 17
 
 
Statute of Limitations 
A statute of limitation establishes a time limit for a plaintiff to file an action, or the case will be 
barred. “Statutes of limitations are designed to protect defendants from unusually long delays in 
the filing of lawsuits and to prevent prejudice to defendants from the unexpected enforcement of 
stale claims.”
18
 Similarly, statutes of limitations “are designed to promote justice by preventing 
surprises through the revival of claims that have been allowed to slumber until evidence has been 
lost, memories have faded, and witnesses have disappeared.”
19
 A statute of limitation begins to 
run when the cause of action accrues. A cause of action accrues when the last element 
constituting the cause of action occurs.
20
 In a personal injury action based on the negligent act of 
                                                
13
 Sawaya, supra at s. 2:12. 
14
 Id. 
15
 Id. 
16
 Id. 
17
 Culpable negligence is a fourth degree of negligence but is not discussed in this analysis. 
18
 Caduceus Properties, LLC, v. Graney, 137 So.3d 987, 992 (Fla. 2014) (citing Totura & Co. v. Williams, 754 So.2d 671, 
681 (Fla. 2000). 
19
 Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 348-89 (1944).  
20
 Section 95.031(1)(a), F.S.  BILL: SB 236   	Page 5 
 
another, the last element occurs when the plaintiff is injured.
21
 In Florida, an action for a 
negligence claim must be brought within 4 years after the cause of action accrues.
22
 
 
Florida’s is among only four states
23
 that have a statute of limitation of 4 years for negligence 
actions. Only three states have statutes of limitation longer than 4 years.
24
 Forty-three states and 
the District of Columbia have statutes of limitation of less than 4 years (16 states
25
 and the 
District of Columbia have a 3 year statute of limitation, 24 states
26
 have a 2 year statute of 
limitation, and three states
27
 have a 1 year statute of limitation). 
 
Statutory and Common Law Bad Faith Actions 
Insurance, Generally 
Insurance is a contract between an insurance company (“insurer”) and the insurance policy’s 
beneficiary (“the insured”), in which, for specified consideration called a “premium,” the insurer 
agrees to pay the insured or third-party claimants for covered losses.
28
 An insurer generally owes 
two significant contractual duties to its insured in exchange for premium payments: the duty to 
indemnify and the duty to defend.
29
  
 The “duty to indemnify” refers to the insurer’s obligation to issue payment to the insured on 
a valid claim.
30
 For example, an insured may purchase a policy requiring the insurer to repair 
or replace the insured’s vehicle in the event of a car accident. If a covered accident then 
occurs, causing the insured’s vehicle to be destroyed, the duty to indemnify requires the 
insurer to replace the insured’s vehicle. 
 The “duty to defend” refers to the insurer’s duty to defend the insured in court against a third 
party with respect to a covered claim.
31
 For example, an insured may purchase a liability 
policy in the event the insured causes a car accident and injuries a third party. If a covered 
accident then occurs, causing injury to a third-party claimant who sues the insured, the duty 
to indemnify requires the insurer to defend the insured against the claimant’s lawsuit. 
 
Insurer’s Common Law and Statutory Duties 
Historically, damages in actions for breaches of insurance contracts were limited to those 
contemplated by the parties when they entered into the contract.
32
 As liability policies began to 
replace indemnity policies as the standard insurance policy form, courts recognized that insurers 
owed a duty to act in good faith towards their insureds.
33
 Florida courts for many years have 
                                                
21
 35 Fla. Jur 2d Limitations and Laches s. 65 (2020). 
22
 Section 95.11(3)(a), F.S. 
23
 Nebraska, Wyoming, and Utah (2 years for wrongful death) are the others. 
24
 Missouri (5 years), Maine (6 years) and North Dakota (6 years, 2 years for wrongful death). 
25
 Arkansas, Maryland, Massachusetts, Michigan, Mississippi, Montana, New Hampshire, New Mexico, New York, North 
Carolina, Rhode Island, South Carolina, South Dakota, Vermont, Washington, and Wisconsin. 
26
 Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, 
Kansas, Minnesota, Nevada, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, Texas, Virginia, and West Virginia. 
27
 Kentucky, Louisiana, and Tennessee. 
28
 16 Williston on Contracts s. 49:103 (4th ed.). 
29
 Id. 
30
 Id. 
31
 Id. 
32
 Id. 
33
 Id.  BILL: SB 236   	Page 6 
 
recognized an additional duty that does not arise directly from the insurance contract, the 
common law duty of good faith on the part of an insurer to the insured in negotiating settlements 
with third-party claimants.
34
 The common law rule is that a third-party beneficiary who is not a 
formal party to a contract may sue for damages sustained as the result of the acts of one of the 
parties to the contract.
35
 This is known as a third-party claim of bad faith. At common law, the 
insured cannot raise a bad faith claim against the insurer outside of the third-party claim 
context.
36
 
 
Florida’s bad faith law and jurisprudence were designed to hold insurers accountable for failing 
to fulfill their contractual obligation to indemnify the insured or beneficiary on a valid claim.
37
 
Florida recognizes two distinct bad faith causes of action that may be initiated against an insurer. 
The first recognized bad faith cause of action provides a third-party common law cause of action 
when an insurer fails in good faith to settle a third party’s claim against the insurer within policy 
limits and exposes the insured to liability in excess of his or her insurance coverage.
38
 Florida 
courts do not recognize a common law first-party bad faith cause of action by the insured against 
its own insurer.
39
 However, a first-party bad faith cause of action has been created by the 
legislature.  
 
In 1982, the Legislature enacted s. 624.155, F.S. Section 624.155, F.S., recognizes a claim for 
bad faith against an insurer not only in the instance of settlement negotiations with a third party 
but also for an insured seeking payment from his or her own insurance company. Thus the 
section creates a first-party bad faith cause of action in Florida. Most property insurance claims 
are first-party claims
40
, and bad faith actions on such claims may proceed only pursuant to s. 
624.155, F.S. Here, bad faith is defined as the commission of any of the following acts by the 
insurer that damages any person: 
 Violating certain provisions of the Florida Insurance Code such as specified provisions of the 
Unfair Insurance Trade Practices Act under s. 626.9541, F.S. 
 Not attempting in good faith to settle claims when, under all the circumstances, it could and 
should have done so, had it acted fairly and honestly toward its insured with due regard for 
her or his interests; 
 Making claims payments to insureds or beneficiaries not accompanied by a statement setting 
forth the coverage under which payments are being made; or 
 Except as to liability coverages, failing to promptly settle claims, when the obligation to 
settle the claim has become reasonably clear, under one portion of the insurance policy 
coverage in order to influence settlements under other portions of the insurance policy 
coverage.
41
  
 
                                                
34
 See Auto. Mut. Indem. Co. v. Shaw, 184 So. 852 (Fla. 1938). 
35
 See Thompson v. Commercial Union Insurance Company, 250 So.2d 259 (Fla. 1971). 
36
 See Laforet, 658 So.2d at 58-59. 
37
 Harvey v. GEICO General Insurance Company, 259 So.3d 1, 6, (Fla. 2018) (quoting Berges v. Infinity Insurance 
Company, 896 So.2d 665, 682 (Fla. 2004)). 
38
 Opperman v. Nationwide Mutual Fire Insurance Company, 515 So.2d 263, 265 (Fla. 5th DCA 1987). 
39
 State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 58-59 (Fla. 1995). 
40
 Homeowners insurance provides liability coverage, thus third-party litigation may occur under a property insurance policy. 
41
 Section 624.155(1)(a) and (b), F.S.  BILL: SB 236   	Page 7 
 
Florida courts have interpreted an insurer’s obligation to “act fairly” towards its insured, holding 
that when the insured’s liability is clear and an excess judgment
42
 is likely due to the resulting 
damage, the insurer has an affirmative duty to initiate settlement negotiations with third-party 
claimants.
43
 If settlement fails, the insurer has the burden of showing that there was no realistic 
possibility of settling the claim within the policy limits.
44
 However, failure to settle a claim, 
without more, does not necessarily mean that an insurer has acted in bad faith, as liability may be 
unclear or the damages may be minimal. Further, courts have generally indicated that merely 
negligently failing to settle a claim does not rise to the level of bad faith, though a jury may 
consider negligence in the larger context of whether bad faith occurred.
45
 
 
Damages available under an insurance contract are only those up to the policy limits, while 
damages available in a bad faith claim may be much higher, and may include: 
 Damages the plaintiff incurred due to the insurer’s bad faith conduct;
46
 
 Compensation for emotional distress, in certain circumstances;
47
 and  
 Punitive damages where the insurer’s bad faith conduct occurred with such frequency as to 
constitute a general business practice and such conduct was: 
o Willful, wanton, and malicious; 
o In reckless disregard for the rights of any insured; or 
o In reckless disregard for the rights of a beneficiary under a life insurance contract.
48
  
 
Presuit Notice to Initiate Bad Faith Litigation under s. 624.155, F.S. 
As a condition precedent to bringing a bad faith cause of action under s. 624.155, F.S., the 
insured must have provided the insurer and the Department of Financial Services at least 60 days 
written notice of the alleged violation.
49
 The 60-day window contemplated under s. 624.155, 
F.S., provides insurers with a final opportunity to comply with their claim-handling obligations 
when a good-faith decision by the insurer would indicate that contractual benefits are owed.
50
 
The civil remedy notice must specify the following information: 
 
 The statutory provision, including the specific language of the statute, which the authorized 
insurer allegedly violated; 
 The facts and circumstance giving rise to the violation; 
 The name of any individual involved in the violation; 
 A reference to specific policy language that is relevant to the violation, if any. If the person 
bringing the civil action is a third-party claimant, she or he shall not be required to reference 
the specific policy language if the authorized insurer has not provided a copy of the policy to 
the third party claimant pursuant to written request; and 
                                                
42
 An “excess judgment” is a judgment in an amount over and above the insurance policy’s coverage limits, which amount is 
paid out of the insured’s own pocket. 
43
 Powell v. Prudential Prop. and Cas. Ins. Co., 584 So.2d 12, 14 (Fla. 3d DCA 1991). 
44
 Id. at 14. 
45
 See DeLaune v. Liberty Mut. Ins. Co., 314 So.2d 601, 603 (Fla. 4th DCA 1975). 
46
 Section 624.155(4), F.S. 
47
 Times Ins. Co., Inc. v. Burger, 712 So.2d 389 (Fla. 1998). 
48
 Section 624.155(5), F.S. 
49
 Section 624.155(3), F.S. 
50
 See Talat Enterprises, Inc., v. Aetna Cas. and Sur. Co, 753 So.2d 1278, 1284 (Fla. 2000).  BILL: SB 236   	Page 8 
 
 A statement that the notice is given in order to perfect the right to pursue the civil remedy 
authorized under s. 624.155, F.S.
51
 
 
This notice requirement does not apply to bad faith actions that proceed under the common law.  
 
Response by the Insurer in Bad Faith Litigation  
If the insurer fails to respond to a civil remedy notice under s. 624.155, F.S., within the 60-day 
window, there is a presumption of bad faith sufficient to shift the burden to the insurer to show 
why it did not respond.
52
 No action shall lie if the insurer responds within 60 days of receipt of 
the civil remedy notice by either paying damages or correcting the circumstances giving rise to 
the claim.
53
  
 
Indefiniteness About What Constitutes Bad Faith 
In Florida, the question of whether the insurer has committed “bad faith” is generally a question 
for the jury, but Florida law does not define what conduct constitutes bad faith. In Berges v. 
Infinity Ins. Co., the Florida Supreme Court noted that “the question of whether an insurer has 
acted in bad faith in handling claims against the insured is determined under the ‘totality of the 
circumstances’ standard . . . Each case is determined on its own facts and ordinarily the question 
of failure to act in good faith with due regard for the interests of the insured is for the jury.”
54
  
 
Three dissenting justices in the Berges case indicated that the problem with presuming that bad 
faith is a jury question is that a jury may be prejudiced in favor of a sympathetic injured person, 
regardless of whether the insurer actually committed bad faith, as follows: 
 
What the jury knows in these cases is that there is a tragically and grievously injured 
victim, that the insured had very low limits of insurance, and that if the jury finds against 
the insurer, then all of the victim’s damages will be paid by the insurer. It is these very 
facts which are not allowed to be known by a jury in liability cases because of the known 
prejudicial influence these facts . . . have on jury verdicts.
55
 
 
Following the Berges decision, courts have noted that “[u]ntil there is a substantial change in the 
statutory scheme or the rationale explained in the majority opinion in Berges, however, juries 
will continue to render verdicts regarding an insurer’s alleged bad faith when the pertinent facts 
are in dispute.”
56
 In any event, the Berges decision made it more difficult for an insurer to 
resolve a third-party bad faith lawsuit through a motion for summary judgment, as such motions 
are decided by the court based on questions of law, and whether an insurer acted in bad faith is 
now, under Berges, almost always a question of fact. 
 
                                                
51
 Section 624.155(3)(b)(1)-(5), F.S. 
52
 Fridman v. Safeco Ins. Co. of Illinois, 185 So.3d 1214, 1220, (Fla. 2016); Imhof v. Nationwide Mut. Ins. Co., 643 So.2d 
617, 619 (Fla 1994). 
53
 Id. 
54
 Berges, 896 So.2d at 680. 
55
 Id. at 686, n. 12 (Wells, J., dissenting).  
56
 United Auto. Ins. Co. v. Estate of Levine ex rel. Howard, 87 So.3d 782, 788 (Fla. 3d DCA 2011).  BILL: SB 236   	Page 9 
 
Statutory Bad Faith Actions against Property Insurers 
Section 624.1551, F.S., provides that bad faith litigation for failure to settle a property insurance 
claim may not be filed until after the insured has established through adverse adjudication by a 
court that the insurer breached the insurance contract and a final judgment or decree has been 
rendered against the insurer. The acceptance of an offer of judgment or the payment of an 
appraisal award does not constitute an adverse adjudication. The difference between an insurer's 
appraiser's final estimate and the appraisal award may be evidence of bad faith but is not 
considered an adverse adjudication and does not on its own give rise to a cause of action for bad 
faith. The provision applies to civil remedy actions based upon a property insurer: 
 Not attempting in good faith to settle claims when, under all the circumstances, it could and 
should have done so, had it acted fairly and honestly toward its insured and with due regard 
for his or her interests; 
 Making claims payments to insureds or beneficiaries not accompanied by a statement setting 
forth the coverage under which payments are being made; or 
 Except as to liability coverages, failing to promptly settle claims, when the obligation to 
settle a claim has become reasonably clear, under one portion of the insurance policy 
coverage in order to influence settlements under other portions of the insurance policy. 
 
Transparency in Damages  
Calculating Medical Damages 
In a typical negligence action, the jury is responsible for determining the amount of damages to 
the plaintiff. In such action, the plaintiff may seek to inform the jury of the plaintiff’s medical 
bills as evidence of the plaintiff’s medical damages. However, Florida law generally prohibits 
defendants from introducing evidence of amounts accepted by a plaintiff’s medical providers as 
evidence of the plaintiff’s medical costs.
57
 Whether a plaintiff’s medical bills, instead of amounts 
accepted as payment in full, are reasonable evidence of a plaintiff’s medical damages has 
become a matter of dispute because medical bills are often multiples of amounts typically 
accepted as payment in full.
58
  
 
Further complicating matters, is the fact that medical providers often have significantly different 
rates for an identical procedure, based on their contracts with an insurer, an accepted standard 
Medicare or Medicaid rate, or a negotiated discounted amount. Nonetheless, plaintiffs have an 
incentive to present large medical bills for past medical costs to a jury. Awards for past medical 
expenses influence awards for future medical costs and non-economic damages, including 
damages for pain and suffering.
59
 
 
                                                
57
 Dial v. Calusa Palms Master Assn., Inc., 337 So.3d 1229, 1231-32 (Fla. 2022) (Polston, J. concurring) 
58
 George A. Nation, III, Hospital Chargemaster Insanity: Heeling the Healers, 43 PEPP L. REV. 745 (2016) (stating that 
“[h]ospital list prices, contained in something called a chargemaster are insanely high, often running ten times the amount 
that hospitals routinely accept as full payment from insurers”). 
59
 See Durse v. Henn, 68 So.3d 271, 275 (Fla. 4th DCA 2011). In Durse, the plaintiff argued that the admission of the full 
amount of his medical bills, not the amount accepted as payment in full, was necessary to establish the “value of future 
medical expenses and non-economic damages.” Id. Larger awards for past medical expenses would seem to promote larger 
awards for other types of damages.  BILL: SB 236   	Page 10 
 
Collateral Source Rule 
Under Florida law, a “collateral source” is any payment made to a claimant or on a claimant’s 
behalf by or pursuant to: 
 The United States Social Security Act, except Title XVIII and Title XIX; any federal, state, 
or local income disability act; or any other public programs providing medical expenses, 
disability payments, or other similar benefits, except those prohibited by federal law and 
those expressly excluded by law as collateral sources. 
 Any health, sickness, or income disability insurance; automobile accident insurance that 
provides health benefits or income disability coverage; and any other similar insurance 
benefits, except life insurance benefits available to the claimant, whether purchased by her or 
him or provided by others. 
 Any contract or agreement of any group, organization, partnership, or corporation to provide, 
pay for, or reimburse the costs of hospital, medical, dental, or other health care services. 
 Any contractual or voluntary wage continuation plan provided by employers or by any other 
system intended to provide wages during a period of disability.
60
 
 
At common law, the collateral source rule did two things:  
 First, the rule ensured that a plaintiff could recover the full amount of damages suffered in a 
personal injury tort case. Under the rule, a court was prohibited from reducing the damages a 
plaintiff received by the benefits of collateral sources. As such, a plaintiff could recover the 
full value of the medical services billed, regardless of the amount that was actually paid for 
the services. 
 Second, the rule prohibited a defendant from introducing evidence of collateral sources at 
trial for fear that introduction of such evidence would confuse and mislead the jury.
61
  
 
Legislative Modification of the Collateral Source Rule 
In 1986, the Legislature enacted the Tort Reform and Insurance Act (“Act”) which modified the 
first prong of the collateral source rule.
62
 The Act created s. 768.76, F.S., requiring a court to 
reduce the amount of damages awarded to a plaintiff from all collateral sources, except where a 
subrogation or reimbursement right exists.
63
 For example, if a jury awards damages for past 
medical costs that were paid in full by the plaintiff’s health insurer, a court must reduce that 
award after the trial. 
 
Goble v. Froman, a 2005 Florida Supreme Court case,
64
 demonstrates how courts apply the Act 
in a case involving past paid medical damages. In Goble, the plaintiff’s medical providers billed 
him $574,554 for treatment. However, because his insurer had a preexisting fee schedule with 
the medical providers, the providers accepted $145,970, writing off more than $400,000. The 
plaintiff argued on appeal that the jury award of $574,554 should stand.  
 
                                                
60
 Section 768.76(2)(a), F.S. 
61
 Gormley v. GTE Prods. Corp., 587 So.2d 455, 458 (Fla. 1991).  
62
 Chapter 86-160, s. 55, L.O.F.  
63
 Section 768.76(1), F.S. 
64
 Goble v. Frohman, 901 So.2d 830, 834 (Fla. 2005).  BILL: SB 236   	Page 11 
 
The Second District Court of Appeal (DCA) disagreed, holding that the payments were collateral 
sources made on the claimant’s behalf subject to setoff under s. 768.76, F.S.
 65
 On appeal, the 
Florida Supreme Court agreed, finding that permitting a setoff for contractual discounts was 
consistent with the Legislature’s intent to reduce litigation costs when insurers are required to 
pay damages in excess of what an injured party actually incurred. Thus, the Act prevented the 
plaintiff from receiving a windfall of over $400,000 in “phantom damages.”
66
 
 
Even though the Act modified the first prong of the collateral source rule with respect to what 
damages a plaintiff could ultimately recover, the Act did not modify the second evidentiary 
prong of the rule. Accordingly, a plaintiff may still introduce into evidence the full amount of his 
or her medical bills; but a defendant may be prohibited from introducing the amounts paid and 
accepted in full satisfaction of those bills.
67
 As such, it is possible that the jury will not be 
informed of the actual amounts that were paid and accepted for a plaintiff’s medical care.
68
  
 
Letters of Protection 
A “letter of protection” is a written agreement between a plaintiff and a medical provider 
wherein the provider agrees to defer collection on the medical bill until the plaintiff recovers in a 
lawsuit; upon recovery from a lawsuit, the provider is then paid from the proceeds of the 
lawsuit.
69
 As such, a letter of protection may give the plaintiff’s medical provider a financial 
interest in the outcome of the litigation.
70
 If there is no favorable recovery, the client may remain 
liable to pay the medical bills.
71
  
 
Letters of protection have sometimes been criticized as reflecting inflated, inaccurate amounts 
for medical damages that are not reflective of the usual and customary billing practices in the 
medical community.
72
 Since a letter of protection is an agreement in which the provider agrees 
not to collect payment for services until litigation has ended, there may not yet be a “paid value” 
available to present to the jury for consideration.  
 
                                                
65
 Goble v. Frohman, 848 So.2d 406, 409 (Fla. 2d DCA 2003). 
66
 See Goble, 901 So.2d at 834. 
67
 Lance B. Stephan, Sticker Shock: Florida Juries Still Awarding Phantom Damages, 33 Trial Advoc. Q. 23 (Fall 2014). 
68
 Instead of providing evidence of the amounts paid and accepted for the plaintiff’s care, the defense must generally 
introduce evidence of the reasonable value of the medical care. See Instruction 501.2b., Fla. Std. Jury Instr. (Civ.). 
69
 Cf. Broward Outpatient Med. Ctr., LLC v. Fenstersheib Law Group, P.A., 307 So.3d 779, 780 (Fla. 4th DCA 2020) 
(quoting language from a letter of protection as follows: “[T]he attorney for the above [Plaintiff] (patient), does hereby agree 
to . . . withhold such sums from any settlement or judgment as may be necessary to adequately protect the above listed health 
care providers and to promptly pay such sums to them upon receipt of payment of any settlement or judgment without 
demand.”). 
70
 See Carnival Corp. v. Jimenez, 112 So.3d 513, 520 (Fla. 2d DCA 2013) (“Undeniably, the existence of the letter of 
protection gave Dr. Smith a financial interest in the outcome of Ms. Jimenez’s personal injury action”). 
71
 See Smith v. Geico Cas. Co., 127 So.3d 808, 812 n.2 (Fla. 2d DCA 2013) (quoting Caroline C. Pace, Tort Recovery for 
Medicare Beneficiaries: Procedures, Pitfalls and Potential Values, 49 Hous. Law 24, 27 (2012)). 
72
 Cf. Worley v. Central Fla. Young Men’s Christian Ass’n, Inc., 228 So.3d 18, 24 (Fla. 2017) (“[A] Sea Spine employee 
testified during depositions that at the time of Worley’s treatment, its entire practice was based on patients treated pursuant to 
LOPs”); id. at 27 (Polston, J., dissenting) (“YMCA contends, and has throughout the litigation, that these providers’ bills are 
grossly inflated and do not reflect usual and customary billing practices within the medical community. Worley concedes that 
YMCA has sufficient evidence to argue that the medical bills [from the treating physicians in this case] are unreasonable”).  BILL: SB 236   	Page 12 
 
Admissibility of Evidence Showing an Attorney Referred a Client for Medical Treatment 
Florida’s Evidence Code recognizes that certain communications are “privileged,” and therefore 
may be confidential and not discoverable in a legal proceeding.
73
 One such privilege is the 
lawyer-client privilege, which provides that a communication between lawyer and client is 
“confidential” if it is not intended to be disclosed to other persons except those to whom 
disclosure is in furtherance of the rendition of legal services to the client, and those reasonably 
necessary for the transmission of the communication.
74
 The lawyer-client privilege does not 
apply to protect the communication when any of the following apply: 
 The services of the lawyer were sought or obtained to enable anyone to commit or plan to 
commit a crime or fraud. 
 A communication is relevant to an issue between parties who claim through the same 
deceased client. 
 A communication is relevant to an issue of breach of duty by the lawyer to the client or by 
the client to the lawyer, arising from the lawyer-client relationship. 
 A communication is relevant to an issue concerning the intention or competence of a client 
executing an attested document to which the lawyer is an attesting witness, or concerning the 
execution or attestation of the document. 
 A communication is relevant to a matter of common interest between two or more clients if 
the communication was made by any of them to a lawyer retained or consulted in common 
when offered in a civil action between the clients or their successors in interest.
75
 
 
In 2017, the Florida Supreme Court decided Worley v. Central Florida YMCA,
76
 where the issue 
was whether a communication between an attorney and a client in which the attorney referred the 
client to a particular medical treatment provider was admissible in court. In that case, the 
plaintiff suffered an injury when she fell in the defendant’s parking lot. She subsequently went to 
the emergency room, where she was advised to see a knee pain specialist. The plaintiff 
ultimately retained an attorney, and only after she retained this attorney did she seek medical 
care from a particular orthopedic institute and other specified providers. Afterwards, the attorney 
filed suit on the plaintiff’s behalf against the defendant, seeking to recover damages, including 
the costs of her medical care from those medical providers.
77
  
 
During the litigation discovery process, the attorneys for the defendant sought to discover the 
nature of the relationship between the plaintiff’s law firm and the medical providers who treated 
the plaintiff’s injuries. Specifically, at the first deposition, defense counsel asked the plaintiff 
whether she had been referred to her medical provider by her attorneys. Her attorneys objected to 
this line of questioning, arguing that such communications were protected by the lawyer-client 
privilege. 
 
                                                
73
 See, e.g., s. 90.5015, F.S. (journalist’s privilege); s. 90.502, F.S. (lawyer-client privilege); s. 90.503, F.S. (psychotherapist-
patient privilege); s. 90.504, F.S. (husband-wife privilege); s. 90.505, F.S. (privilege with respect to communications to 
clergy). 
74
 Section 90.502(1)(c), F.S. 
75
 Section 90.502(4), F.S. 
76
 228 So.3d 18 (Fla. 2017). 
77
 Id. at 20.  BILL: SB 236   	Page 13 
 
The Florida Supreme Court, by a 4-3 margin, agreed with the plaintiff, holding that “the question 
of whether a plaintiff’s attorney referred him or her to a doctor for treatment is protected by the 
attorney-client privilege.”
78
 The Court concluded as follows: 
Even in cases where a plaintiff's medical bills appear to be inflated for the purposes of 
litigation, we do not believe that engaging in costly and time-consuming discovery to 
uncover a “cozy agreement” between the law firm and a treating physician is the 
appropriate response . . . Moreover, we worry that discovery orders such as the one in this 
case will inflate the costs of litigation to the point that some plaintiffs will be denied 
access to the courts, as attorneys will no longer be willing to advance these types of costs. 
Finally, attempting to discover this information requires the disclosure of materials that 
would otherwise be protected under the attorney-client privilege.
79
 
 
In contrast, the dissent in Worley argued that a lawyer’s referral of a client to a medical provider 
is for medical care, not for legal services and therefore, is not an attorney-client privileged 
communication.
80
 In support of its position, the dissent cited several other court opinions finding 
that a referral or history of a referral relationship is relevant to financial bias. One of the cited 
cases also explained that a referral was relevant to “whether the expert has recommended an 
allegedly unnecessary and costly procedure with greater frequency in litigation cases, and 
whether the expert, as a treating physician, allegedly overcharged for the medical services at 
issue in the lawsuit.”
81
 In further support for its position, the dissent argued that if the financial 
relationship between an insurer and its expert is discoverable, which it is, the same relationship 
between a plaintiff’s law firm and its experts should also be discoverable.
82
 
 
Premises Liability 
Premises liability refers to the duty of an individual or entity that owns or controls real property 
to reasonably operate and maintain such property for the safety of those who enter or remain on 
the property. Unlike ordinary negligence, which is based upon active negligence, a premises 
liability claim is based upon passive negligence; that is, a premises liability claim stems from the 
tortfeasor’s failure to act to prevent harm to the injured party and not from any affirmative 
actions of the tortfeasor.
83
  
 
Common premises liability claims include slip and fall accidents, dog bites, trip or misstep 
accidents, and swimming pool accidents. As to an invitee, a landowner or possessor is liable if 
he/she/it: 
 Negligently failed to maintain the premises in a reasonably safe condition; or 
 Negligently failed to correct a dangerous condition about which the defendant either knew or 
should have known, by the use of reasonable care; or 
                                                
78
 Id. at 25. 
79
 Id. at 26. 
80
 Id. at 26-27. 
81
 Id. (quoting Katzman v. Rediron Fabrication, Inc., 76 So.3d 1060, 1064 (Fla. 4th DCA 2011). 
82
 Id. at 29-30. 
83
 Nicholson v. Stonybrook Apts., LLC, 154 So.3d 490 (Fla. 4th DCA 2015).  BILL: SB 236   	Page 14 
 
 Negligently failed to warn the claimant of a dangerous condition about which the defendant 
had, or should have had, knowledge greater than that of claimant, and, if so, such negligence 
was a legal cause of loss, injury, or damage.
84
 
 
A premises liability claim may also involve negligent security allegations, in which a person 
injured by a third party’s criminal acts (that is, a third party’s intentional tort) on another’s 
property attempts to hold the property owner liable for failing to provide adequate security 
measures on the property. To prevail on a negligent security claim, the plaintiff must prove that 
the: 
 Plaintiff was lawfully present on the defendant’s property;
85
  
 Defendant had a duty to provide adequate security on the property but breached such duty;
86
 
 Plaintiff was injured because of a third party’s criminal act, which act was reasonably 
foreseeable to the defendant and would not have occurred but for the defendant’s breach;
87
 
and 
 Plaintiff incurred actual damages.
88
  
 
In Florida, comparative negligence does not apply to an action based upon an intentional tort.
89
 
Thus, when apportioning fault in a negligent security claim, a jury is unable to apportion fault to 
a criminal actor whose intentional conduct injured the plaintiff. This means the owner or 
operator of the premises where the criminal conduct occurred is financially responsible for all the 
damages caused by the criminal conduct of a third party.  
 
                                                
84
 Fla. Std. Jury Instr. 401.20 Issues on Plaintiff’s Claim — Premises Liability. 
85
 The only duty a property owner owes to an undiscovered trespasser is to refrain from causing intentional harm, while the 
only duty he or she owes to a known trespasser is to refrain from committing gross negligence or intentional harm and to 
warn of known dangers that are not readily observable. Nicholson, 154 So.3d at 492.  
86
 Generally, a property owner has no duty to protect another person from criminal acts committed by third parties on his or 
her property, but such a duty may arise where a special relationship exists between the property owner and the victim or 
between the property owner and the third party such that the property owner has a duty to control the third party’s conduct. 
Special relationships recognized by Florida courts include landlord-tenant, hotel-guest, employer-employee, proprietor-
patron, and school-student; all involve a person who has entered upon the property of another and in so doing lost a measure 
of control in providing for his or her own protection. See, Stevens v. Jefferson, 436 So.2d 33 (Fla. 1983); K.M. ex rel. D.M. v. 
Publix Super Markets, Inc., 895 So.2d 1114 (Fla. 4th DCA 2005); Gross v. Fam. Servs. Agency, Inc., 716 So.2d 337 (Fla. 4th 
DCA 1998); Salerno v. Hart Fin. Corp., 521 So.2d 234 (Fla. 4th DCA 1988); Restatement 2d Torts s. 315; Frederic S. 
Zinober, Litigating the Negligent Security Case: Who’s In Control Here?, 44 Stetson L. Rev. 289 (2015).   
87
 Generally, a negligent person is not liable for the damages suffered by another when some separate force or action is an 
intervening cause of the harm, but where the intervening cause is foreseeable, the original negligent actor may still be held 
liable. Thus, a negligent security claim’s success often hinges on the foreseeability of the crime committed, as property 
owners are not expected to prevent all possible crimes which may occur on their property. Whether or not a crime was 
foreseeable is a question of fact, but evidence of foreseeability may include the crime rate in the premises’ immediate area, 
whether similar crimes have previously been committed on the premises, and the nature of the property itself (in other words, 
is the property of a type that is likely to attract crime). Stevens, 436 So.2d at 34-35; Gibson v. Avis Rent-A-Car System, Inc., 
386 So.2d 520 (Fla. 1980); Williams v. Office of Sec. & Intelligence, Inc., 509 So.2d 1282 (Fla. 3d DCA 1987). 
88
 Globe Sec. Systems Co. v. Mayor’s Jewelers, Inc., 458 So.2d 828 (Fla. 3d DCA 1984).  
89
 Section 768.81(4), F.S.; Merrill Crossings Assocs. v. McDonald, 705 So.2d 560 (Fla. 1997).  BILL: SB 236   	Page 15 
 
Comparative Negligence  
Joint and Several Liability 
Traditionally, when multiple defendants contributed to a plaintiff’s injury, the doctrine of “joint 
and several liability” required any one of the defendants to pay the full amount of the plaintiff’s 
damages.
90
 This was true even where the defendants did not act in concert but instead each 
committed a separate and independent act, and then the acts combined to cause an injury to the 
plaintiff. For example, if defendants A, B, and C, while driving their vehicles, each contributed 
to an accident that caused a plaintiff damages of $100,000, with A being 40% at fault, B being 
59% at fault, and C being 1% at fault, the plaintiff could recover the full $100,000 from the 
plaintiff’s choice of any of the three defendants. 
 
Contributory Negligence 
Under the common law, a plaintiff who was found to be at fault for his or her own injury was 
completely barred from recovering any damages from the defendant.
91
 This doctrine, known as 
“contributory negligence,” prohibited any recovery by the plaintiff, even if the plaintiff had only 
barely contributed to his or her own injuries. The doctrine rested on a “policy of making the 
personal interests of each party depend upon his own care and prudence.”
92
 However, over time, 
most United States jurisdictions began to believe the doctrine of contributory negligence was too 
harsh of a rule and began to change their approaches.  
 
Joint and Several Liability, Contributory Negligence, and Comparative Negligence in Florida 
In 1886, the Florida Supreme Court adopted the contributory negligence approach;
93
 and in 
1914, the Court acknowledged its acceptance of the doctrine of joint and several liability.
94
 In 
1973, the Florida Supreme Court changed Florida to a “pure comparative negligence” 
jurisdiction, deciding that the traditional contributory negligence approach was “almost 
universally regarded as unjust and inequitable.”
95
 As a result, under the pure comparative 
negligence approach, juries would now decide the percentage of fault contributed by each party 
in an accident, and then the damages would be apportioned accordingly.
96
 
 
In 1986, the Legislature passed the Tort Reform and Insurance Act (“Act”), which essentially 
codified Hoffman and further committed Florida to the comparative negligence approach.
97
 
Within the same Act, the Legislature also substantially limited the application of the doctrine of 
                                                
90
 See Louisville & Nashville R.R. Co. v. Allen, 65 So. 8, 12 (Fla. 1914) (“Where . . . separate and independent acts of 
negligence of several combine to produce directly a single injury, each is responsible for the entire result . . . .”). 
91
 See Hoffman v. Jones, 280 So.2d 431 (Fla. 1973). 
92
 Kevin J. Grehan, Comparative Negligence, 81 COLUM. L. REV. 1688, note 3 (quoting W. Prosser, The Law of Torts ss. 1, 
42 (4th ed. 1971). 
93
 Louisville & Nashville R.R. Co. v. Yniestra, 21 Fla. 700 (1886) (citing Butterfield v. Forrester, 103 Eng. Rep. 926 (K.B. 
1809)). 
94
 Louisville & Nashville R.R. Co. v. Allen, 65 So. at 12. 
95
 Hoffman v. Jones, 280 So.2d at 436. 
96
 See id. at 438 (“If plaintiff and defendant are both at fault, the former may recover, but the amount of his recovery may be 
only such proportion of the entire damages plaintiff sustained as the defendant’s negligence bears to the combined negligence 
of both the plaintiff and the defendant”). 
97
 Chapter 86-160, s. 60, L.O.F. (codified at s. 768.81(2), F.S.).  BILL: SB 236   	Page 16 
 
joint and several liability in negligence actions.
98
 Joint and several liability was repealed for the 
purposes of most negligence actions in 2006.
99
  
 
As a result of the Act in its current form, Florida is a “pure comparative negligence jurisdiction” 
without the doctrine of joint and several liability.
100
 In other words, a jury in a typical Florida 
negligence action decides each party’s percentage of fault; and the court, in its final judgment, 
apportions damages based on the jury’s fault determination.
101
 
 
Comparative Negligence Approaches by United States Jurisdictions 
Today, three different approaches for how a court should apportion damages in a negligence 
action when two or more defendants contribute to an injury generally exist, as follows:
102
 
 Contributory negligence approach, followed by four states
103
 and the District of Columbia. 
Under this traditional common law approach, if the plaintiff contributed to the accident in 
any way, the plaintiff recovers nothing. For example:  
o If the plaintiff is 1 percent at fault for an accident causing the plaintiff $100,000 in 
damages and the defendant is 99 percent at fault in such accident, the plaintiff recovers 
nothing. 
o If the plaintiff is zero percent and the defendant is 100 percent at fault in such accident, 
the plaintiff recovers 100 percent of his or her damages—that is, $100,000. 
 Pure comparative negligence approach, followed by Florida and 11 other states.
104
 Under 
this approach, the jury determines each party’s percentage of fault and the court apportions 
damages accordingly. For example:  
o If the plaintiff is 40 percent at fault for an accident causing the plaintiff $100,000 in 
damages and the defendant is 60 percent at fault in such accident, the plaintiff recovers 
60 percent of his or her damages—that is, $60,000. 
o If the plaintiff is 70 percent at fault for an accident causing the plaintiff $100,000 in 
damages and the defendant is 30 percent at fault in such accident, the plaintiff recovers 
30 percent of his or her damages—that is, $30,000. 
 Modified comparative negligence approach, followed by 34 states. Under this approach, the 
jury determines each party’s percentage of fault, but the plaintiff recovers nothing if he or she 
was to blame for at least a certain percentage of the fault, with three sub-approaches: 
o In 10 states, the plaintiff recovers nothing if he or she was 50 percent or more at fault.
105
 
For example: 
                                                
98
 Chapter 86-160, s. 60, L.O.F. (codified at s. 768.81(3), F.S.). 
99
 Chapter 2006-6, s. 1, L.O.F. (codified at s. 768.81(3), F.S.). 
100
 Section 768.81(3), F.S. (“In a negligence action, the court shall enter judgment against each party liable on the basis of 
such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.”). 
101
 See Fla. Sup. Ct. Std. Jury Instr. 501.4 (Comparative Negligence, Non-Party Fault and Multiple Defendants), 
https://www.floridabar.org/rules/florida-standard-jury-instructions/civil-jury-instructions/civil-instructions/#500 (last 
accessed February 27, 2023). 
102
 LawInfo, Comparative and Contributory Negligence Laws by State, https://www.lawinfo.com/resources/personal-
injury/comparative-and-contributory-negligence-laws-by-state.html (last accessed February 27, 2023). 
103
 Alabama, Maryland, North Carolina, and Virginia. See id. 
104
 Alaska, Arizona, California, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, and 
Washington state. See id. 
105
 Arkansas, Colorado, Delaware, Georgia, Idaho, Maine, Nebraska, North Dakota, Tennessee, and Utah.  BILL: SB 236   	Page 17 
 
 If the plaintiff is 50 percent at fault for an accident causing the plaintiff $100,000 in 
damages, the plaintiff recovers nothing.  
 If the plaintiff is 49 percent and the defendant is 51 percent at fault for such accident, 
the plaintiff recovers 51 percent of his or her damages—that is, $51,000. 
o In 23 states, the plaintiff recovers nothing if he or she was more than 50 percent at 
fault.
106
 For example: 
 If the plaintiff is 51 percent and the defendant is 49 percent at fault for an accident 
causing the plaintiff $100,000 in damages, the plaintiff recovers nothing.  
 If the plaintiff and the defendant are each 50 percent at fault for such accident, the 
plaintiff recovers 50 percent of his or her damages—that is, $50,000. 
o In one state, the plaintiff recovers only if his or her conduct was “slightly” negligent and 
the defendant’s conduct was “grossly negligent.”
107
 
 
Awarding Attorney Fees in Litigation  
In most United States jurisdictions, each party to civil litigation pays its own attorney, regardless 
of the outcome of the litigation, and a court may only award attorney fees to the prevailing side if 
authorized by statute or agreement of the parties to the litigation.
108
 This is often referred to as 
the “American Rule” for attorney fees, and contravenes the “English Rule” under which English 
courts generally awarded attorney fees to the prevailing party in litigation.
109
 
 
Florida has enacted a number of statutes that authorize courts to award attorney fees in civil 
litigation. As the Florida Supreme Court has noted, these statutory provisions generally fall into 
two categories.
110
 In the first category, statutes direct a court to assess attorney fees against only 
one side in certain types of actions. An example is found in s. 627.428, F.S., which directs the 
court to assess reasonable attorney fees against the insurer and in favor of the insured or a 
beneficiary who prevails in litigation. The second category follows the English Rule and 
authorizes the prevailing party, whether it is the plaintiff or the defendant, to recover its attorney 
fees from the opposing party.  
 
Lodestar Approach 
In 1985, the Florida Supreme Court held that courts should calculate the amount of statutorily-
authorized attorney fees under the "lodestar approach."
111
 Under this approach, the first step is 
for the court to determine the number of hours reasonably expended by an attorney on the case. 
The second step requires the court to determine a reasonable hourly rate. The number of hours 
reasonably expended (determined in the first step), multiplied by the reasonable hourly rate 
(determined in the second step), produces the “lodestar amount,” which is considered an 
objective basis for what the attorney fee amount should be.  
 
                                                
106
 Connecticut, Hawaii, Illinois, Indiana, Iowa, Kansas, Massachusetts, Michigan, Minnesota, Montana, Nevada, New 
Hampshire, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Vermont, West Virginia, 
Wisconsin, and Wyoming. 
107
 South Dakota. 
108
 Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1147-1148 (Fla. 1985). 
109
 Id. 
110
 Id. 
111
 Fla. Patient's Comp. Fund v. Rowe, 472 So.2d 1145 (Fla. 1985).  BILL: SB 236   	Page 18 
 
Addition of a Contingency Fee Multiplier 
In certain cases, the court may greatly increase the lodestar amount by applying a contingency 
fee multiplier, which essentially takes the lodestar amount and multiplies that amount by a factor 
of 1.5, 2.0, 2.5, or some other number.
112
 The concept of the contingency fee multiplier arose 
from judicial interpretations of statutory authorization of attorney fees in particular cases,
113
 but 
the Legislature has also expressly provided for use of a contingency fee multiplier in certain 
cases.
114
 In a 1990 case, the Florida Supreme Court discussed three different types of cases and 
whether a contingency fee multiplier should be applied in each case, as follows: 
 Public policy enforcement cases. These cases may involve discrimination, environmental 
issues, and consumer protection issues. In these cases, a contingency fee multiplier is usually 
inappropriate. 
 Family law, eminent domain, estate, and trust cases. In these cases, a contingency fee 
multiplier is usually inappropriate. 
 Tort and contract claims, including insurance cases. In these cases, a contingency fee 
multiplier may be applied if the plaintiff can demonstrate the following factors show a need 
for the multiplier: 
o Whether the relevant market requires a contingency fee multiplier to obtain counsel;  
o Whether the attorney can mitigate the risk of nonpayment; and  
o Whether any other factors established in Rowe
115
 support the use of the multiplier.
116
 
 
Further, in the same decision, the Court noted that the size of the contingency fee multiplier 
varies from 1.0 to 2.5 based on the likelihood of success at the outset of the case, as follows:  
 1.0 to 1.5, if the trial court determines that success was more likely than not at the outset; 
 1.5 to 2.0, if the trial court determines that the likelihood of success was approximately even 
at the outset; and 
 2.0 to 2.5, if the trial court determines that success was unlikely at the outset.
117
    
                                                
112
 The Court may also adjust the amount based on the results obtained by the attorney. Standard Guar. Ins. Co. v. 
Quanstrom, 555 So.2d 828, 830-31 (Fla. 1990). Contingency risk multipliers are also referred to as contingency fee 
multipliers.     
113
 The rationale for applying a contingency risk multiplier to increase an attorney fee award is that plaintiffs and plaintiffs' 
attorneys generally do not recover any money unless they prevail. The attorney fee multiplier induces attorneys to take a risk 
on cases they might not otherwise take, allowing would-be plaintiffs to find attorneys willing to represent them. 
114
 See s. 790.33(3)(f)1., F.S. (explicitly authorizing a contingency fee multiplier in certain cases relating to the preemption of 
firearm and ammunition regulation). 
115
 The Rowe factors were based upon Disciplinary Rule 2-106(b) of the Florida Bar (which is now Rule of Professional 
Conduct 4-1.5), and were as follows: 
 Time and labor required, novelty and difficulty of the question involved, and the skill and requisite to perform the legal 
service properly. 
 Likelihood, if apparent to the client, that the acceptance of employment would preclude other employment by the lawyer. 
 Fee customarily charged in the locality for similar legal services. 
 Amount involved and results obtained. 
 Time limitations imposed by the client and circumstances. 
 Nature and length of the professional relationship with the client. 
 Experience, reputation, and ability of the lawyer(s) providing services. 
 Whether the fee is a fixed or contingency fee. 
Rowe, 472 So.2d at 1150–1151. 
116
 Quanstrom, 555 So.2d at 833-835. 
117
 Id. at 834.  BILL: SB 236   	Page 19 
 
 
Federal Court Treatment of the Contingency Fee Multiplier 
Part of the Florida Supreme Court's rationale for adopting the contingency fee multiplier 
framework in 1985 was that, at the time, it was being applied in federal courts.
118
 However, in 
1992, the U.S. Supreme Court decided Burlington v. Dague, in which it rejected the use of a 
contingency fee multiplier under certain federal fee-shifting statutes. Dague essentially signaled 
that the Supreme Court was closing the door on the contingency fee multiplier's use in most, if 
not all, federal cases.
119
  
 
In 2010, in the case of Perdue v. Kenny A. ex. rel. Winn, a case involving a class action lawsuit 
filed on behalf of 3,000 children in the Georgia foster care system, the U.S. Supreme Court again 
addressed the contingency risk multiplier issue.
120
 The plaintiffs argued in the underlying case 
that the foster care system in two counties was constitutionally deficient. The case went to 
mediation, and the parties entered a consent decree resolving all issues. Subsequently, the 
plaintiffs' attorneys sought attorney fees under 42 U.S.C. s. 1988.
121
  
 
The federal district court calculated the fees using the lodestar approach, arriving at a $6 million 
figure, and then applied a 1.75 contingency fee multiplier, for a total attorney fee of $10.5 
million. The district court justified the contingency fee multiplier by finding that the attorneys 
had: 
 Advanced $1.7 million with no ongoing reimbursement. 
 Worked on a contingency basis, and therefore were not guaranteed payment. 
 Displayed a high degree of skill, commitment, dedication, and professionalism. 
 Achieved extraordinary results.
122
 
 
On review, the U.S. Supreme Court reversed the district court's calculation of attorney fees, 
remanding the case because the district court did not provide adequate justification for the 75 
percent increase. The Court reiterated that "there is a strong presumption that the lodestar figure 
is reasonable," but that such presumption "may be overcome in those rare circumstances in 
which the lodestar does not adequately consider a factor that may properly be considered in 
determining a reasonable fee."
123
 The Court also determined that a contingency fee multiplier 
may be applicable in “exceptional” circumstances.
124
 
 
Thus, the Perdue Court determined that the application of contingency fee multipliers may 
sometimes be appropriate, while also issuing several warnings about contingency fee multipliers, 
as follows: 
                                                
118
 See Rowe, 472 So.2d at 1146 ("[W]e . . . adopt the federal lodestar approach for computing reasonable attorney fees"). 
119
 See City of Burlington v. Dague, 112 S.Ct. 2638, 2642-2643 (1992) ("Thus, enhancement for the contingency risk posed 
by each case would encourage meritorious claims to be brought, but only at the social cost of indiscriminately encouraging 
nonmeritorious claims to be brought as well... [W]e hold that enhancement for contingency is not permitted under the fee-
shifting statutes at issue"). 
120
 Perdue v. Kenny A. ex rel. Winn, 130 S.Ct. 1662 (2010). 
121
 42 U.S.C. s. 1988(b) allows the court to award attorney fees to the prevailing party in certain civil rights actions. 
122
 Perdue, 130 S.Ct. at 1670. 
123
 Id. at 1673 (emphasis added). 
124
 Id.  BILL: SB 236   	Page 20 
 
 When a trial court fails to give detailed explanations for why it applies a contingency fee 
multiplier, "widely disparate awards may be made, and awards may be influenced . . . by a 
judge's subjective opinion regarding particular attorneys or the importance of the case."
125
 
 "[U]njustified enhancements that serve only to enrich attorneys are not consistent" with the 
aims of a statute that seek to compensate plaintiffs.
126
 
 In many cases, attorney fees "are not paid by the individuals responsible for the constitutional 
or statutory violations on which the judgment is based . . . . Instead, the fees are paid . . . by 
state and local taxpayers," resulting in a diversion of funds from other government 
programs.
127
 
 
Florida Supreme Court Treatment of the Contingency Fee Multiplier 
In 2017, the Florida Supreme Court rejected the U.S. Supreme Court's Dague decision, instead 
holding that the contingency fee multiplier in Florida courts is not subject to the "rare and 
exceptional circumstances" requirement.
128
 The Court acknowledged that, based upon its 
decision to maintain the applicability of the contingency fee multiplier without the restrictions 
implemented by the Dague decision, Florida "separat[ed] from federal precedent in this area."
129
 
 
Recent Florida Legislation 
During Special Session D in May of 2022, the Legislature passed CS/SB 2-D, which was signed 
into law by the Governor. Amending s. 627.70152, F.S., the bill created a strong presumption 
that, in lawsuits arising under a residential or commercial property insurance policy, a lodestar 
fee is sufficient and reasonable; and that such presumption could only be rebutted in a rare and 
exceptional circumstance.
130
  
 
Attorney Fees Arising from Insurance Litigation 
Section. 627.428, F.S., allows an insured to recover attorney fees if he or she prevails in a 
lawsuit against the insurer to enforce an insurance policy – which has been referred to as the 
“one-way attorney fee” in insurance litigation.
131
 Some version of this statute has been the law in 
Florida since at least 1893.
132
 The statute provides, in part: 
Upon the rendition of a judgment or decree by any of the courts of this state against 
an insurer and in favor of any named or omnibus insured or the named beneficiary 
under a policy or contract executed by the insurer, the trial court or, in the event of an 
                                                
125
 See id. at 1676. 
126
 See id. 
127
 See id. at 1677. 
128
 See Joyce v. Federated Nat'l Ins. Co., 228 So.3d 1122 (Fla. 2017) ("[W]ith all due deference to the United States Supreme 
Court, we do not accept the Dague majority's rationale for rejecting contingency fee multipliers"). 
129
 Id. at 1130.  
130
 Chapter 2022-268, s. 16, L.O.F. 
131
 Other states with similar “one-way” attorney fee provisions for insureds are Arkansas (Ark. Code s. 23-79-208), Delaware 
(18 Del. Code s. 4102), Hawaii (Hi. Rev. Stat. s. 431:10-242), Idaho (Id. Code 41-1839), Kansas (Kan. Stat. s. 40-256), 
Nebraska (Neb. Rev. Stat. Ann. S. 44-359), New Hampshire (N.H. Rev. Stat. s. 491-22-b), New Jersey – by court rule (N.J. 
Court R. 4:42-9(a)(6)), New Mexico (N.M. Stat. s. 39.2-1), North Carolina - for litigation not over $25,000 (N.C. Gen. Stat. 
s. 6-21.1), and Texas (Tex. Ins. Code s. 542.060). 
132
 See Tillis v. Liverpool & London & Globe Insurance Company, 35 So. 171 (Fla. 1903) (rejecting an insurance company 
argument that the 1893 law providing that an insured may recover attorney fees in actions against an insurance company to 
enforce a policy violates due process and equal protection).  BILL: SB 236   	Page 21 
 
appeal in which the insured or beneficiary prevails, the appellate court shall adjudge 
or decree against the insurer and in favor of the insured or beneficiary a reasonable 
sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting 
the suit in which the recovery is had.
133
 
 
Section 626.9373, F.S., applies the same standard to suits against surplus lines insurers. In 
December 2022, during Special Session A, the legislature passed SB 2-A, which was signed into 
law by the Governor. The passage of SB 2-A eliminated one-way attorney fees for property 
insurance cases, and in turn, removed the provision added during the May 2022 Special Session 
D relating to lodestar fees in such property insurance cases.
134
 
 
Attorney Fees Arising from Offers of Judgment 
Section 768.79, F.S., provides for attorney fees where a party’s offer to settle a case has been 
rejected. The statute states, in part: 
(1) In any civil action for damages filed in the courts of this state, if a defendant files 
an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant 
shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him 
… if the judgment is one of no liability or the judgment obtained by the plaintiff is at 
least 25 percent less than such offer…. If a plaintiff files a demand for judgment which 
is not accepted by the defendant within 30 days and the plaintiff recovers a judgment 
in an amount at least 25 percent greater than the offer, she or he shall be entitled to 
recover reasonable costs and attorney’s fees…. 
 
An offer must: 
 Be in writing and state that it is being made pursuant to this section; 
 Name the party making it and the party to whom it is being made; 
 State with particularity the amount offered to settle a claim for punitive damages, if any; and 
 State its total amount.
135
 
 
The court may disallow an award of costs and attorney fees to the prevailing party if it is 
determined the prevailing party did not make the offer in good faith.
136
 When determining the 
reasonableness of an award of attorney fees, the court must consider the following factors along 
with other relevant criteria: 
 The then apparent merit or lack of merit in the claim; 
 The number and nature of offers made by the parties; 
 The closeness of questions of fact and law at issue; 
 Whether the person making the offer had unreasonably refused to furnish information 
necessary to evaluate the reasonableness of such offer; 
 Whether the suit was in the nature of a test case presenting questions of far-reaching 
importance affecting nonparties; and 
                                                
133
 Section 627.428(1), F.S. This is similar to the language in s. 626.9373, F.S., which applies to surplus lines insurers. 
Florida courts interpret the statutes to have the same meaning. 
134
 Chapter 2022-271, s. 17, L.O.F. 
135
 Section 768.79(2), F.S. 
136
 Section 768.79(8)(a), F.S.  BILL: SB 236   	Page 22 
 
 The amount of the additional delay cost and expense that the person making the offer 
reasonably would be expected to incur if the litigation should be prolonged.
137
 
III. Effect of Proposed Changes: 
Contingency Fee Multiplier 
Section 1 amends s. 57.104, F.S., to create a presumption that the lodestar fee is sufficient and 
reasonable in a case in which attorney fees are determined by or awarded by the court. A 
claimant may overcome this presumption only in a rare and exceptional circumstance, and only 
if he or she can demonstrate that he or she could not have otherwise reasonably retained 
competent counsel. Essentially, the bill brings Florida contingency fee multiplier law in line with 
the current federal standard. 
 
Statute of Limitations  
Section 2 amends s. 95.11, F.S., to reduce the statute of limitations for general negligence 
actions from four years to two years. This generally means that a plaintiff who fails to file a 
lawsuit within two years, rather than within four years, of the occurrence of negligence will be 
barred from filing the suit. 
 
Statutory and Common Law Bad Faith Actions 
Section 3 amends s. 624.155, F.S., to provide that an insurer may not be found to have acted in 
bad faith for failure to settle a liability insurance claim, whether pursuant to the statute or 
common law, if the insurer tenders the lesser of the policy limits or the amount demanded by the 
claimant either: 
 Before a complaint asserting such claim, accompanied by sufficient evidence to support the 
amount of the claim, is filed; or 
 Within 90 days after service of such complaint upon the insurer. 
 
Failure of the insurer to tender such payment does not constitute bad faith and is inadmissible as 
evidence in any action seeking to establish bad faith on the part of the insurer. 
 
The bill makes the following provisions applicable to all bad faith claims: 
 Mere negligence alone is insufficient to constitute bad faith.  
 The insured, the third-party claimant, and any representative of the insured or the claimant 
have a duty to act in good faith in furnishing information about the claim, making demands 
of the insurer, setting deadlines, and attempting to settle the claim.
138
 
 The trier of fact may consider whether the insured, the third-party claimant, or his or her 
representative did not act in good faith and, if so, reasonably reduce the damages awarded 
against the insurer. 
 
Further, the bill specifies that, if two or more third-party claimants make competing claims 
arising out of a single occurrence, which in total exceed the insured’s available policy limits, the 
                                                
137
 Section 768.79(8)(b), F.S. 
138
 Under the bill, this duty does not create a separate cause of action.   BILL: SB 236   	Page 23 
 
insurer does not commit bad faith by failing to pay all or any portion of the available limits to 
one or more of the third-party claimants if, within 90 days after receiving notice of the 
competing claims, the insurer either:  
 Files an interpleader action
139
 under the Florida Rules of Civil Procedure;
140
 or 
 Pursuant to binding arbitration that has been agreed to by the insurer and the third-party 
claimants, makes the entire amount of the policy limits available for payment to the 
competing third-party claimants before a qualified arbitrator selected by the insurer at the 
insurer’s expense.
141
 
 
Transparency in Damages 
Section 4 creates s. 768.0427, F.S., to establish a uniform process for the admissibility of 
evidence and the calculation of medical damages in personal injury or wrongful death actions. 
As such, the bill modifies the collateral source rule to limit the introduction of evidence for 
medical damages. 
 
Definitions 
The bill defines the following terms: 
 “Factoring company” means a person who purchases a health care provider’s accounts 
receivable at a discount below the invoice value of such accounts.  
 “Health care coverage” means any third-party health care or disability services financing 
arrangement including, but not limited to, arrangements with entities certified or authorized 
under federal law or under the Florida Insurance Code; state or federal health care benefit 
programs; workers’ compensation; and personal injury protection. 
 “Health care provider” means any of the following professionals and entities, and 
professionals and entities similarly licensed in another jurisdiction: 
o A provider as defined in s. 408.803; and a licensed provider under chapter 394 or chapter 
397, and its clinical and nonclinical staff providing inpatient or outpatient services. 
o A certified clinical laboratory. 
o A federally qualified health center as under federal law. 
o A health care practitioner. 
o A licensed health care professional. 
o A home health aide. 
o A licensed continuing care facility. 
                                                
139
 An interpleader action is an action initiated by the holder of property to determine the rights of two or more claimants to 
the property. This avoids the problem of the property holder being sued by the claimants separately. Legal Information 
Institute, Interpleader, 
https://www.law.cornell.edu/wex/interpleader#:~:text=A%20way%20for%20a%20holder,who%20actually%20owns%20the
%20property (last accessed February 27, 2023). 
140
 If the trier of fact finds that the claims of the competing third-party claimants exceed the policy limits, the bill specifies 
that the third-party claimants are entitled to a prorated share of the policy limits as determined by the trier of fact. This does 
not alter or limit the insurer’s duty to defend the insured.  
141
 The bill specifies that the third-party claimants are entitled to a prorated share of the policy limits as determined by the 
arbitrator, who must consider the comparative fault, if any, of each third-party claimant, and the total likely outcome at trial 
based upon the total of the economic and non-economic damages submitted to the arbitrator for consideration. Further, a 
third-party claimant whose claim is resolved by the arbitrator must execute and deliver a general release to the insured party 
whose claim is resolved by the proceeding.   BILL: SB 236   	Page 24 
 
o A pharmacy. 
 “Letter of protection” means any arrangement where a health care provider renders medical 
treatment in exchange for a promise of payment for the claimant’s medical expenses from 
any judgment or settlement of a personal injury or wrongful death action. 
 
Limitations on Admissible Evidence 
The bill limits what evidence is allowed to be presented to the factfinder to prove the amount of 
damages for past or future medical care.  
 
Past Paid Medical Bills 
 
The bill restricts evidence of services that have already been satisfied to the amount actually paid 
for the services, regardless of the source of such payment. As such, if an insurer paid the full 
medical bill for past services, the amount paid by the insurer is the only amount admissible. The 
initial billed amount may not be presented as evidence. 
 
Past Unpaid Medical Bills 
 
Whether a particular piece of evidence is admissible to prove the amount to satisfy already 
incurred, but yet unpaid, medical bills is dependent on the type of health care coverage the 
claimant has, if any, as follows: 
 Claimant has insurance: If the claimant has health care coverage, evidence of the amount the 
coverage is obligated to pay the provider for satisfaction of the medical services rendered 
plus the claimant’s portion of medical expenses under the contract are admissible.  
 Claimant has insurance but obtains treatment under a letter of protection: If the claimant has 
health care coverage but forgoes the coverage and obtains medical treatment under a letter of 
protection (or otherwise does not submit charges to his or her insurer), evidence of the 
amount the health care coverage would pay under the contract plus the claimant’s portion of 
medical expenses, had he or she obtained treatment pursuant to the health care coverage, is 
admissible.  
 Claimant has no insurance: If the claimant does not have health care coverage, evidence of 
120 percent of the Medicare reimbursement rate in effect at the time of the trial is admissible. 
If there is no applicable Medicare rate for the services in question, the admissible amount is 
170 percent of the applicable state Medicaid rate.  
 Claimant receives services under a letter of protection, and the bill is then transferred to a 
third party: If the claimant receives services pursuant to a letter of protection and the provider 
subsequently transfers the right to receive payment of the bill to a third party, evidence of the 
amount the third party agreed to pay the provider for the right to receive payment is 
admissible.  
 
Future Medical Bills 
 
Similarly, the bill provides uniform guidance for admissible evidence relating to damages for 
future medical treatments, based on whether the claimant has health care coverage or is eligible 
for health care coverage, as follows:   BILL: SB 236   	Page 25 
 
 Claimant has insurance or is eligible for insurance: If the claimant has health care coverage 
or is eligible for health care coverage, evidence of the amount for which the future charges 
could be satisfied by the coverage plus the petitioner’s portion of medical expenses under the 
contract are admissible.  
 Claimant has no insurance: If the claimant does not have health care coverage, evidence of 
120 percent of the Medicare reimbursement rate in effect at the time of the trial for such 
future services is admissible. If there is no applicable Medicare rate for the future services in 
question, 170 percent of the applicable state Medicaid rate amount is admissible.  
 
Disclosure of Contracts 
The bill maintains protection from disclosure for individual contracts between providers and 
authorized commercial insurers or authorized health maintenance organizations. Therefore, such 
contracts are not subject to discovery or disclosure and are not admissible into evidence.  
 
Required Disclosures When a Letter of Protection is Used 
 
The bill provides a procedure for the use of a letter of protection. If the petitioner obtains medical 
care under a letter of protection, the bill requires the claimant to disclose the following for the 
determination of damages: 
 A copy of the letter of protection. 
 All billings for the rendered medical expenses, which must be itemized and coded for the 
year services are rendered. 
 If the provider sells the accounts receivable to a third party or factoring company, the name 
of the third party and the dollar amount for which the third party purchased the accounts. 
 Whether the claimant had health care coverage at the time of treatment, and the identity of 
such coverage. 
 Whether the claimant was referred for treatment under a letter of protection and, if so, the 
identity of the person who made the referral. If the referral was made by the claimant’s 
attorney, disclosure of the referral is permitted, and evidence of the referral is admissible in 
the litigation, notwithstanding the lawyer-client privilege in s. 90.502, F.S. In such instance, 
the financial relationship between a law firm and a medical provider, including the number of 
referrals, frequency, and financial benefit obtained, is relevant to the issue of any bias of a 
testifying medical expert. 
 
Amount of Damages 
The bill prohibits damages from including any amounts above the amount actually paid for the 
satisfaction for services rendered. Further, the bill prohibits an award of damages from 
exceeding: 
 The amount actually paid by or on behalf of the claimant to the provider; 
 The amount necessary to satisfy charges for medical services that are owed or not yet 
satisfied at the time of trial; and 
 The amount necessary to provide for any reasonable and necessary future medical treatment. 
  BILL: SB 236   	Page 26 
 
Premises Liability  
Section 5 creates s. 768.0701, F.S., to provide that, in a negligent security action against the 
owner, lessor, operator, or manager of commercial or real property brought by a person lawfully 
on the property who was injured by a third party’s criminal act, the trier of fact must consider the 
fault of all persons who contributed to the injury. 
 
Attorney Fees Arising from Offers of Judgment 
Section 6 amends s. 768.79, F.S., to apply the offer of judgment statute to any civil action 
involving an insurance contract. 
 
Comparative Negligence  
Section 7 amends s. 768.81, F.S., to, except for causes of action for personal injury or wrongful 
death arising out of medical malpractice, modify Florida’s damages apportionment standard from 
a pure comparative negligence approach to a modified comparative negligence approach. Under 
the bill, any party to a negligence action found to be more than 50 percent at fault for his or her 
own harm may not recover any damages. 
 
One-Way Attorney Fees 
Sections 8 and 9 repeal ss. 626.9373 and 627.428, F.S., thereby eliminating Florida’s one-way 
attorney fee provisions for insurance cases.  
 
Miscellaneous Sections of the Bill 
Sections 10 – 24 amend/repeal various sections of Florida Statutes in order to conform them to 
changes made elsewhere by the bill. 
 
Section 25 directs the Division of Law Revision to replace the phrase “the effective date of this 
act” with the date the bill becomes law. 
 
Section 26 provides that the change made by the bill reducing the statute of limitation for general 
negligence cases from 4 years to 2 years applies to causes of action accruing after the effective 
date of the bill. 
 
Section 27 provides that the bill shall not be construed to impair any right under an insurance 
contract in effect on or before the effective date of this bill; to the extent that the bill does affect a 
right under an insurance contract, the bill applies only to an insurance contract issued or renewed 
after the effective date of the bill. 
 
Section 28 provides that, except as otherwise expressly stated in the bill, the bill applies to all 
causes of action filed after the effective date of the bill. 
 
Section 29 provides that the bill takes effect upon becoming a law.  BILL: SB 236   	Page 27 
 
IV. Constitutional Issues: 
A. Municipality/County Mandates Restrictions: 
None. 
B. Public Records/Open Meetings Issues: 
None. 
C. Trust Funds Restrictions: 
None. 
D. State Tax or Fee Increases: 
None. 
E. Other Constitutional Issues: 
None. 
V. Fiscal Impact Statement: 
A. Tax/Fee Issues: 
None. 
B. Private Sector Impact: 
None. 
C. Government Sector Impact: 
None. 
VI. Technical Deficiencies: 
None. 
VII. Related Issues: 
None. 
VIII. Statutes Affected: 
This bill substantially amends the following sections of the Florida Statutes: 57.104, 95.11, 
624.155, 768.79, 768.81, 624.123, 624.488, 627.062, 627.401, 627.727, 627.736, 627.756, 
628.6016, 475.01, 475.611, 517.191, 627.441, and 632.638.  
  BILL: SB 236   	Page 28 
 
This bill creates the following sections of the Florida Statutes: 768.0427 and 768.0701.  
 
This bill repeals the following sections of the Florida Statutes: 626.9373, 627.428, 631.70, and 
631.926.  
IX. Additional Information: 
A. Committee Substitute – Statement of Substantial Changes: 
(Summarizing differences between the Committee Substitute and the prior version of the bill.) 
CS by Banking and Insurance Committee on March 7, 2023: 
The committee substitute makes the following changes:  
 Revises the effective date provisions to provide that the: 
o Amendment made by the bill reducing the statute of limitation for general 
negligence cases from 4 years to 2 years applies prospectively to causes of action 
accruing after the effective date of the bill; 
o Remainder of the bill applies to causes of action filed after the effective date; and 
o Bill shall not be construed to impair any right under an existing insurance contract 
provisions regarding the delivery of a policy. 
B. Amendments: 
None. 
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.