| 26 | | - | damages; revising definitions; deleting obsolete 13 |
|---|
| 27 | | - | language; providing applicability; providing an 14 |
|---|
| 28 | | - | effective date. 15 |
|---|
| 29 | | - | 16 |
|---|
| 30 | | - | Be It Enacted by the Legislature of the State of Florida: 17 |
|---|
| 31 | | - | 18 |
|---|
| 32 | | - | Section 1. Section 429.29, Florida Statutes, is amended to 19 |
|---|
| 33 | | - | read: 20 |
|---|
| 34 | | - | 429.29 Civil actions to enforce rights. — 21 |
|---|
| 35 | | - | (1) As used in this section, the term: 22 |
|---|
| 36 | | - | (a) "Licensee" means an indivi dual, corporation, 23 |
|---|
| 37 | | - | partnership, firm, association, governmental entity, or other 24 |
|---|
| 38 | | - | entity that is issued a permit, registration, certificate, or 25 |
|---|
| 26 | + | damages; deleting obsolete language; providing 13 |
|---|
| 27 | + | applicability; providing an effective date. 14 |
|---|
| 28 | + | 15 |
|---|
| 29 | + | Be It Enacted by the Legislature of the State of Florida: 16 |
|---|
| 30 | + | 17 |
|---|
| 31 | + | Section 1. Subsections (2) through (7) of section 429.29, 18 |
|---|
| 32 | + | Florida Statutes, are renumbered as subsections (4) through (9), 19 |
|---|
| 33 | + | respectively, subsection (1) is amended, and new subsections (2) 20 |
|---|
| 34 | + | and (3) are added to that section, to read: 21 |
|---|
| 35 | + | 429.29 Civil actions to enforce rights. — 22 |
|---|
| 36 | + | (1) An exclusive cause of action for negligence or a 23 |
|---|
| 37 | + | violation of a resident's Any person or resident whose rights as 24 |
|---|
| 38 | + | specified under in this part which alleges direct or vicariou s 25 |
|---|
| 51 | | - | license by the agency and is legally responsible for all aspects 26 |
|---|
| 52 | | - | of the operation of the facility. 27 |
|---|
| 53 | | - | (b) "Management company or active participant" means an 28 |
|---|
| 54 | | - | individual or entity that contracts or receives a fee to provide 29 |
|---|
| 55 | | - | any of the following services for a facility: 30 |
|---|
| 56 | | - | 1. Hiring or firing the administrator or director of 31 |
|---|
| 57 | | - | nursing; 32 |
|---|
| 58 | | - | 2. Controlling or having control ov er staffing levels at 33 |
|---|
| 59 | | - | the facility; 34 |
|---|
| 60 | | - | 3. Having control over the budget of the facility; 35 |
|---|
| 61 | | - | 4. Implementing and enforcing the policies and procedures 36 |
|---|
| 62 | | - | of the facility; or 37 |
|---|
| 63 | | - | 5. Receiving and controlling a line of credit, loan, or 38 |
|---|
| 64 | | - | other credit instrument that is used either in whole or in part 39 |
|---|
| 65 | | - | by, or for the benefit of, the subject facility where a resident 40 |
|---|
| 66 | | - | resides or resided during the subject residency. 41 |
|---|
| 67 | | - | (c) "Passive investor" means an individual or entity that 42 |
|---|
| 68 | | - | has an interest in a facility but does not part icipate in the 43 |
|---|
| 69 | | - | decisionmaking or operations of the facility. 44 |
|---|
| 70 | | - | (2) An exclusive cause of action for a residents' Any 45 |
|---|
| 71 | | - | person or resident whose rights violation or for negligence as 46 |
|---|
| 72 | | - | specified under in this part which alleges direct or vicarious 47 |
|---|
| 73 | | - | liability for the personal injury or death of a resident arising 48 |
|---|
| 74 | | - | from such rights violation or negligence and which seeks damages 49 |
|---|
| 75 | | - | for such injury or death may be brought only against the 50 |
|---|
| 51 | + | liability for the personal injury or death of an assisted living 26 |
|---|
| 52 | + | resident arising from such negligence or violation of rights and 27 |
|---|
| 53 | + | which seeks damages for such injury or death may be brought only 28 |
|---|
| 54 | + | against the licensee, the licensee's management or consulti ng 29 |
|---|
| 55 | + | company, the licensee's managing employees, and any direct 30 |
|---|
| 56 | + | caregivers, whether employees or contractors. A passive investor 31 |
|---|
| 57 | + | is not liable under this section. An action against any other 32 |
|---|
| 58 | + | individual or entity may be brought only pursuant to subsection 33 |
|---|
| 59 | + | (3) are violated shall have a cause of action . 34 |
|---|
| 60 | + | (a) The action may be brought by the resident or his or 35 |
|---|
| 61 | + | her guardian, or by a person or organization acting on behalf of 36 |
|---|
| 62 | + | a resident with the consent of the resident or his or her 37 |
|---|
| 63 | + | guardian, or by the personal re presentative of the estate of a 38 |
|---|
| 64 | + | deceased resident regardless of the cause of death. 39 |
|---|
| 65 | + | (b) If the action alleges a claim for the resident's 40 |
|---|
| 66 | + | rights or for negligence that caused the death of the resident, 41 |
|---|
| 67 | + | the claimant shall, after the verdict, but before the judgment 42 |
|---|
| 68 | + | is entered, be required to elect either survival damages 43 |
|---|
| 69 | + | pursuant to s. 46.021 or wrongful death damages pursuant to s. 44 |
|---|
| 70 | + | 768.21. If the action alleges a claim for the resident's rights 45 |
|---|
| 71 | + | or for negligence that did not cause the death of the resident , 46 |
|---|
| 72 | + | the personal representative of the estate may recover damages 47 |
|---|
| 73 | + | for the negligence that caused injury to the resident. 48 |
|---|
| 74 | + | (c) The action may be brought in any court of competent 49 |
|---|
| 75 | + | jurisdiction to enforce such rights and to recover actual 50 |
|---|
| 88 | | - | licensee, the licensee's management company or active 51 |
|---|
| 89 | | - | participant, the licensee's managing employees, or any direct 52 |
|---|
| 90 | | - | caregivers, whether employees or contractors. A passive investor 53 |
|---|
| 91 | | - | is not liable under this section. An action against any other 54 |
|---|
| 92 | | - | individual or entity may be brought only pursuant to subsection 55 |
|---|
| 93 | | - | (3) are violated shall have a c ause of action. 56 |
|---|
| 94 | | - | (a) The action may be brought by the resident or his or 57 |
|---|
| 95 | | - | her guardian, or by an individual a person or organization 58 |
|---|
| 96 | | - | acting on behalf of a resident with the consent of the resident 59 |
|---|
| 97 | | - | or his or her guardian, or by the personal representative of the 60 |
|---|
| 98 | | - | estate of a deceased resident regardless of the cause of death. 61 |
|---|
| 99 | | - | (b) If the action alleges a claim for a residents' the 62 |
|---|
| 100 | | - | resident's rights violation or for negligence that caused the 63 |
|---|
| 101 | | - | death of the resident, the claimant must, after the verdict, but 64 |
|---|
| 102 | | - | before the judgment is entered, shall be required to elect 65 |
|---|
| 103 | | - | either survival damages pursuant to s. 46.021 or wrongful death 66 |
|---|
| 104 | | - | damages pursuant to s. 768.21. If the action alleges a claim for 67 |
|---|
| 105 | | - | a residents' the resident's rights violation or for negligence 68 |
|---|
| 106 | | - | that did not cause the death of the resident, the personal 69 |
|---|
| 107 | | - | representative of the estate may recover damages for the 70 |
|---|
| 108 | | - | negligence that caused injury to the resident. 71 |
|---|
| 109 | | - | (c) The action may be brought in any co urt of competent 72 |
|---|
| 110 | | - | jurisdiction to enforce such rights and to recover actual 73 |
|---|
| 111 | | - | damages, and punitive damages for the residents' rights 74 |
|---|
| 112 | | - | violation of the rights of a resident or negligence. 75 |
|---|
| 88 | + | damages, and punitive damages for the violation of the rights of 51 |
|---|
| 89 | + | a resident or negligence. 52 |
|---|
| 90 | + | (d) A Any resident who prevails in seeking injunctive 53 |
|---|
| 91 | + | relief or a claim for an administrative remedy is entitled to 54 |
|---|
| 92 | + | recover the costs of the action and a reasonable attorney fees 55 |
|---|
| 93 | + | attorney's fee assessed against the defendant of up to not to 56 |
|---|
| 94 | + | exceed $25,000. Fees shall be awarded solely for the injunctive 57 |
|---|
| 95 | + | or administrative relief and not for any claim or action for 58 |
|---|
| 96 | + | damages whether such claim or action is brought together with a 59 |
|---|
| 97 | + | request for an injunction or administrative relief or as a 60 |
|---|
| 98 | + | separate action, except as provided under s. 768.79 or the 61 |
|---|
| 99 | + | Florida Rules of Civil Procedure. Sections 429.29-429.298 62 |
|---|
| 100 | + | provide the exclusive remedy for a cause of action for recovery 63 |
|---|
| 101 | + | of damages for the persona l injury or death of a resident 64 |
|---|
| 102 | + | arising out of negligence or a violation of rights specified in 65 |
|---|
| 103 | + | s. 429.28. 66 |
|---|
| 104 | + | (e) This section does not preclude theories of recovery 67 |
|---|
| 105 | + | not arising out of negligence or s. 429.28 which are available 68 |
|---|
| 106 | + | to a resident or to the age ncy. The provisions of Chapter 766 69 |
|---|
| 107 | + | does do not apply to any cause of action brought under ss. 70 |
|---|
| 108 | + | 429.29-429.298. 71 |
|---|
| 109 | + | (2) As used in this section, the term: 72 |
|---|
| 110 | + | (a) "Licensee" means an individual, corporation, 73 |
|---|
| 111 | + | partnership, firm, association, governmental entity, o r other 74 |
|---|
| 112 | + | entity that is issued a permit, registration, certificate, or 75 |
|---|
| 125 | | - | (d) A Any resident who prevails in seeking injunctive 76 |
|---|
| 126 | | - | relief or a claim for an administrative remedy is entitled to 77 |
|---|
| 127 | | - | recover the costs of the action and a reasonable attorney fees 78 |
|---|
| 128 | | - | attorney's fee assessed against the defendant of up to not to 79 |
|---|
| 129 | | - | exceed $25,000. Such attorney fees must shall be awarded solely 80 |
|---|
| 130 | | - | for the injunctive or administrative relief and not for any 81 |
|---|
| 131 | | - | claim or action for damages whether such claim or action is 82 |
|---|
| 132 | | - | brought together with a request for an injunction or 83 |
|---|
| 133 | | - | administrative relief or as a separate action, except as 84 |
|---|
| 134 | | - | provided under s. 768.79 o r the Florida Rules of Civil 85 |
|---|
| 135 | | - | Procedure. Sections 429.29-429.298 provide the exclusive remedy 86 |
|---|
| 136 | | - | for a cause of action for recovery of damages for the personal 87 |
|---|
| 137 | | - | injury or death of a resident arising out of negligence or a 88 |
|---|
| 138 | | - | violation of rights specified in s. 429 .28. 89 |
|---|
| 139 | | - | (e) This section does not preclude theories of recovery 90 |
|---|
| 140 | | - | not arising out of negligence or s. 429.28 which are available 91 |
|---|
| 141 | | - | to a resident or to the agency. The provisions of Chapter 766 92 |
|---|
| 142 | | - | does do not apply to any cause of action brought under ss. 93 |
|---|
| 143 | | - | 429.29-429.298. 94 |
|---|
| 144 | | - | (3) A cause of action for a residents' rights violation or 95 |
|---|
| 145 | | - | for negligence may not be asserted against an individual or 96 |
|---|
| 146 | | - | entity other than the licensee, the licensee's management 97 |
|---|
| 147 | | - | company or active participant, the licensee's managing 98 |
|---|
| 148 | | - | employees, or any direct caregivers, whether employees or 99 |
|---|
| 149 | | - | contractors, unless, after a motion for leave to amend hearing, 100 |
|---|
| 125 | + | license by the agency, and that is legally responsible for all 76 |
|---|
| 126 | + | aspects of the operation of the facility. 77 |
|---|
| 127 | + | (b) "Management or consulting company" means an individual 78 |
|---|
| 128 | + | or entity who contra cts with, or receives a fee from, a licensee 79 |
|---|
| 129 | + | to provide any of the following services for a facility: 80 |
|---|
| 130 | + | 1. Hiring or firing of the administrator or director of 81 |
|---|
| 131 | + | nursing; 82 |
|---|
| 132 | + | 2. Controlling or having control over the staffing levels 83 |
|---|
| 133 | + | at the facility; 84 |
|---|
| 134 | + | 3. Having control over the budget of the facility; or 85 |
|---|
| 135 | + | 4. Implementing and enforcing the policies and procedures 86 |
|---|
| 136 | + | of the facility. 87 |
|---|
| 137 | + | (c) "Passive investor" means an individual or entity that 88 |
|---|
| 138 | + | has an interest in a facility but does not participate in the 89 |
|---|
| 139 | + | decisionmaking or operations of the facility. 90 |
|---|
| 140 | + | (3) A cause of action may not be asserted against an 91 |
|---|
| 141 | + | individual or entity other than the licensee, the licensee's 92 |
|---|
| 142 | + | management or consulting company, the licensee's managing 93 |
|---|
| 143 | + | employees, and any direct caregivers, whet her employees or 94 |
|---|
| 144 | + | contractors, unless, after a motion for leave to amend hearing, 95 |
|---|
| 145 | + | the court or an arbitration panel determines that there is 96 |
|---|
| 146 | + | sufficient evidence in the record or proffered by the claimant 97 |
|---|
| 147 | + | to establish a reasonable showing that: 98 |
|---|
| 148 | + | (a) The individual or entity owed a duty of reasonable 99 |
|---|
| 149 | + | care to the resident and that the individual or entity breached 100 |
|---|
| 162 | | - | the court or an arbitration panel determines that there is 101 |
|---|
| 163 | | - | sufficient evidence in the record or proffered by the claimant 102 |
|---|
| 164 | | - | to establish a reasonable showing that: 103 |
|---|
| 165 | | - | (a) The individual or entity owed a duty of reasonable 104 |
|---|
| 166 | | - | care to the resident and breached that duty; and 105 |
|---|
| 167 | | - | (b) The breach of that duty is a legal cause of loss, 106 |
|---|
| 168 | | - | injury, death, or damage to the resident. 107 |
|---|
| 169 | | - | 108 |
|---|
| 170 | | - | For purposes of this subsection, if i t is asserted in a proposed 109 |
|---|
| 171 | | - | amended pleading that such cause of action arose out of the 110 |
|---|
| 172 | | - | conduct, transaction, or occurrence set forth or attempted to be 111 |
|---|
| 173 | | - | set forth in the original pleading, the proposed amendment 112 |
|---|
| 174 | | - | relates back to the original pleading. 113 |
|---|
| 175 | | - | (4)(2) In any claim brought pursuant to this part alleging 114 |
|---|
| 176 | | - | a violation of residents' resident's rights or negligence 115 |
|---|
| 177 | | - | causing injury to or the death of a resident, the claimant has 116 |
|---|
| 178 | | - | shall have the burden of proving, by a preponderance of the 117 |
|---|
| 179 | | - | evidence, that: 118 |
|---|
| 180 | | - | (a) The defendant owed a duty to the resident; 119 |
|---|
| 181 | | - | (b) The defendant breached the duty to the resident; 120 |
|---|
| 182 | | - | (c) The breach of the duty is a legal cause of loss, 121 |
|---|
| 183 | | - | injury, death, or damage to the resident; and 122 |
|---|
| 184 | | - | (d) The resident sustained loss, injury, death, or d amage 123 |
|---|
| 185 | | - | as a result of the breach. 124 |
|---|
| 186 | | - | 125 |
|---|
| 162 | + | that duty; and 101 |
|---|
| 163 | + | (b) The breach of that duty is a legal cause of loss, 102 |
|---|
| 164 | + | injury, death, or damage to the resident. 103 |
|---|
| 165 | + | 104 |
|---|
| 166 | + | For purposes of this subsection, if, in a proposed amended 105 |
|---|
| 167 | + | pleading, it is asserted that such cause of action arose out of 106 |
|---|
| 168 | + | the conduct, transaction, or occurrence set forth or attempted 107 |
|---|
| 169 | + | to be set forth in the original pleading, the proposed amendment 108 |
|---|
| 170 | + | relates back to the original pleading. 109 |
|---|
| 171 | + | Section 2. Section 429.297, Florida Statutes, is amended 110 |
|---|
| 172 | + | to read: 111 |
|---|
| 173 | + | 429.297 Punitive damages; pleading; burden of proof. — 112 |
|---|
| 174 | + | (1) A In any action for damages brought under this part, 113 |
|---|
| 175 | + | no claim for punitive damages may not be brought under this part 114 |
|---|
| 176 | + | shall be permitted unless there is a reasonable showing by 115 |
|---|
| 177 | + | admissible evidence that has been submitted by the parties that 116 |
|---|
| 178 | + | provides in the record or proffered by the claimant which would 117 |
|---|
| 179 | + | provide a reasonable basis for recovery of such damages when the 118 |
|---|
| 180 | + | criteria in this section are applied . 119 |
|---|
| 181 | + | (a) The claimant may move to amend her or his complaint to 120 |
|---|
| 182 | + | assert a claim for punitive damages as allowed by the rules of 121 |
|---|
| 183 | + | civil procedure in accordance with evidentiary requirements set 122 |
|---|
| 184 | + | forth in this section . 123 |
|---|
| 185 | + | (b) The court shall conduct a hearing to determine whether 124 |
|---|
| 186 | + | there is sufficient admissible evidence submitted by the parties 125 |
|---|
| 199 | | - | Nothing in This part does not shall be interpreted to create 126 |
|---|
| 200 | | - | strict liability. A violation of the rights provided set forth 127 |
|---|
| 201 | | - | in s. 429.28 or in any other standard or guidelines specified in 128 |
|---|
| 202 | | - | this part or in any applicable ad ministrative standard or 129 |
|---|
| 203 | | - | guidelines of this state or a federal regulatory agency may 130 |
|---|
| 204 | | - | shall be evidence of negligence but is shall not be considered 131 |
|---|
| 205 | | - | negligence per se. 132 |
|---|
| 206 | | - | (5)(3) In a any claim brought pursuant to this section, a 133 |
|---|
| 207 | | - | licensee, individual person, or entity has shall have a duty to 134 |
|---|
| 208 | | - | exercise reasonable care. Reasonable care is that degree of care 135 |
|---|
| 209 | | - | which a reasonably careful licensee, individual person, or 136 |
|---|
| 210 | | - | entity would use under like circumstances. 137 |
|---|
| 211 | | - | (6)(4) In a any claim for a residents' resident's rights 138 |
|---|
| 212 | | - | violation or for negligence by a nurse licensed under part I of 139 |
|---|
| 213 | | - | chapter 464, such nurse has shall have the duty to exercise care 140 |
|---|
| 214 | | - | consistent with the prevailing professional standard of care for 141 |
|---|
| 215 | | - | a nurse. The prevailing professional standard of care for a 142 |
|---|
| 216 | | - | nurse is shall be that level of care, skill, and treatment 143 |
|---|
| 217 | | - | which, in light of all relevant surrounding circumstances, is 144 |
|---|
| 218 | | - | recognized as acceptable and appropriate by reasonably prudent 145 |
|---|
| 219 | | - | similar nurses. 146 |
|---|
| 220 | | - | (7)(5) Discovery of financial information for th e purpose 147 |
|---|
| 221 | | - | of determining the value of punitive damages may not be 148 |
|---|
| 222 | | - | conducted had unless the plaintiff shows the court by proffer or 149 |
|---|
| 223 | | - | evidence in the record that a reasonable basis exists to support 150 |
|---|
| 199 | + | to ensure that there is a reasonable basis to believe that the 126 |
|---|
| 200 | + | claimant, at trial, will be able to demonstrate by clear and 127 |
|---|
| 201 | + | convincing evidence th at the recovery of such damages is 128 |
|---|
| 202 | + | warranted under a claim for direct liability as specified in 129 |
|---|
| 203 | + | subsection (2) or under a claim for vicarious liability as 130 |
|---|
| 204 | + | specified in subsection (3). 131 |
|---|
| 205 | + | (c) The rules of civil procedure shall be liberally 132 |
|---|
| 206 | + | construed so as to allow the claimant discovery of evidence 133 |
|---|
| 207 | + | which appears reasonably calculated to lead to admissible 134 |
|---|
| 208 | + | evidence on the issue of punitive damages. No Discovery of 135 |
|---|
| 209 | + | financial worth may not shall proceed until after the pleading 136 |
|---|
| 210 | + | on concerning punitive damages is approved by the court 137 |
|---|
| 211 | + | permitted. 138 |
|---|
| 212 | + | (2) A defendant may be held liable for punitive damages 139 |
|---|
| 213 | + | only if the trier of fact, by based on clear and convincing 140 |
|---|
| 214 | + | evidence, finds that a specific person or corporate defendant 141 |
|---|
| 215 | + | actively and knowingly participated in inte ntional misconduct or 142 |
|---|
| 216 | + | engaged in conduct that constitutes gross negligence and 143 |
|---|
| 217 | + | contributed to the loss, damages, or injury suffered by the 144 |
|---|
| 218 | + | claimant the defendant was personally guilty of intentional 145 |
|---|
| 219 | + | misconduct or gross negligence . As used in this section, the 146 |
|---|
| 220 | + | term: 147 |
|---|
| 221 | + | (a) "Intentional misconduct" means that the defendant 148 |
|---|
| 222 | + | against whom punitive damages are sought had actual knowledge of 149 |
|---|
| 223 | + | the wrongfulness of the conduct and the high probability that 150 |
|---|
| 236 | | - | a claim for punitive damages. 151 |
|---|
| 237 | | - | (8)(6) In addition to any ot her standards for punitive 152 |
|---|
| 238 | | - | damages, any award of punitive damages must be reasonable in 153 |
|---|
| 239 | | - | light of the actual harm suffered by the resident and the 154 |
|---|
| 240 | | - | egregiousness of the conduct that caused the actual harm to the 155 |
|---|
| 241 | | - | resident. 156 |
|---|
| 242 | | - | (9)(7) The resident or the residen t's legal representative 157 |
|---|
| 243 | | - | shall serve a copy of a any complaint alleging in whole or in 158 |
|---|
| 244 | | - | part a violation of any rights specified in this part to the 159 |
|---|
| 245 | | - | agency for Health Care Administration at the time of filing the 160 |
|---|
| 246 | | - | initial complaint with the clerk of the cour t for the county in 161 |
|---|
| 247 | | - | which the action is pursued. The requirement of providing a copy 162 |
|---|
| 248 | | - | of the complaint to the agency does not impair the resident's 163 |
|---|
| 249 | | - | legal rights or ability to seek relief for his or her claim. 164 |
|---|
| 250 | | - | Section 2. Section 429.297, Florida Statutes , is amended 165 |
|---|
| 251 | | - | to read: 166 |
|---|
| 252 | | - | 429.297 Punitive damages; pleading; burden of proof. — 167 |
|---|
| 253 | | - | (1) A In any action for damages brought under this part, 168 |
|---|
| 254 | | - | no claim for punitive damages may not be brought under this part 169 |
|---|
| 255 | | - | shall be permitted unless there is a reasonable showing by 170 |
|---|
| 256 | | - | admissible evidence submitted by the parties which provides in 171 |
|---|
| 257 | | - | the record or proffered by the claimant which would provide a 172 |
|---|
| 258 | | - | reasonable basis for recovery of such damages pursuant to this 173 |
|---|
| 259 | | - | section. 174 |
|---|
| 260 | | - | (a) The claimant may move to amend her or his compla int to 175 |
|---|
| 236 | + | injury or damage to the claimant would result and, despite that 151 |
|---|
| 237 | + | knowledge, intentionally pursued that course of conduct, 152 |
|---|
| 238 | + | resulting in injury or damage. 153 |
|---|
| 239 | + | (b) "Gross negligence" means that the defendant's conduct 154 |
|---|
| 240 | + | was so reckless or wanting in care that it constituted a 155 |
|---|
| 241 | + | conscious disregard or indifference to the life, s afety, or 156 |
|---|
| 242 | + | rights of persons exposed to such conduct. 157 |
|---|
| 243 | + | (3) In the case of vicarious liability of an individual, 158 |
|---|
| 244 | + | employer, principal, corporation, or other legal entity, 159 |
|---|
| 245 | + | punitive damages may not be imposed for the conduct of an 160 |
|---|
| 246 | + | employee or agent unless only if the conduct of the employee or 161 |
|---|
| 247 | + | agent meets the criteria specified in subsection (2) and an 162 |
|---|
| 248 | + | officer, director, or manager of the actual employer, 163 |
|---|
| 249 | + | corporation, or legal entity condoned, ratified, or consented to 164 |
|---|
| 250 | + | the specific conduct as provided in subsec tion (2).: 165 |
|---|
| 251 | + | (a) The employer, principal, corporation, or other legal 166 |
|---|
| 252 | + | entity actively and knowingly participated in such conduct; 167 |
|---|
| 253 | + | (b) The officers, directors, or managers of the employer, 168 |
|---|
| 254 | + | principal, corporation, or other legal entity condoned, 169 |
|---|
| 255 | + | ratified, or consented to such conduct; or 170 |
|---|
| 256 | + | (c) The employer, principal, corporation, or other legal 171 |
|---|
| 257 | + | entity engaged in conduct that constituted gross negligence and 172 |
|---|
| 258 | + | that contributed to the loss, damages, or injury suffered by the 173 |
|---|
| 259 | + | claimant. 174 |
|---|
| 260 | + | (4) The plaintiff shall must establish at trial, by clear 175 |
|---|
| 273 | | - | assert a claim for punitive damages as allowed by the rules of 176 |
|---|
| 274 | | - | civil procedure in accordance with evidentiary requirements 177 |
|---|
| 275 | | - | provided in this section . 178 |
|---|
| 276 | | - | (b) The court shall conduct a hearing to determine whether 179 |
|---|
| 277 | | - | there is sufficient admissible evidence submitted by the parties 180 |
|---|
| 278 | | - | to ensure that there is a reasonable basis to believe that the 181 |
|---|
| 279 | | - | claimant, at trial, will be able to demonstrate by clear and 182 |
|---|
| 280 | | - | convincing evidence that the recovery of such damages is 183 |
|---|
| 281 | | - | warranted under a claim for direct liability as s pecified in 184 |
|---|
| 282 | | - | subsection (2) or under a claim for vicarious liability as 185 |
|---|
| 283 | | - | specified in subsection (3). 186 |
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| 284 | | - | (c) The rules of civil procedure must shall be liberally 187 |
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| 285 | | - | construed so as to allow the claimant discovery of evidence 188 |
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| 286 | | - | which appears reasonably calculated t o lead to admissible 189 |
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| 287 | | - | evidence on the issue of punitive damages. No Discovery of 190 |
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| 288 | | - | financial worth may not shall proceed until after the pleading 191 |
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| 289 | | - | concerning punitive damages is approved by the court permitted. 192 |
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| 290 | | - | (2) A defendant may be held liable for punitive damages 193 |
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| 291 | | - | only if the trier of fact, by based on clear and convincing 194 |
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| 292 | | - | evidence, finds that a specific individual or corporate 195 |
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| 293 | | - | defendant actively and knowingly participated in intentional 196 |
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| 294 | | - | misconduct or actively and knowingly engaged in conduct that 197 |
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| 295 | | - | constitutes gross negligence and contributed to the loss, 198 |
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| 296 | | - | damages, or injury suffered by the claimant the defendant was 199 |
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| 297 | | - | personally guilty of intentional misconduct or gross negligence . 200 |
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| 298 | | - | |
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| 299 | | - | CS/HB 995 2024 |
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| 300 | | - | |
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| 301 | | - | |
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| 302 | | - | |
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| 303 | | - | CODING: Words stricken are deletions; words underlined are additions. |
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| 304 | | - | hb0995-01-c1 |
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| 305 | | - | Page 9 of 10 |
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| 306 | | - | F L O R I D A H O U S E O F R E P R E S E N T A T I V E S |
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| 307 | | - | |
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| 308 | | - | |
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| 309 | | - | |
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| 310 | | - | As used in this section, the term: 201 |
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| 311 | | - | (a)(b) "Gross negligence" means that the defendant's 202 |
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| 312 | | - | conduct was so reckless or wanting in care that it constituted a 203 |
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| 313 | | - | conscious disregard or indifference to the life, safety, or 204 |
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| 314 | | - | rights of individuals persons exposed to such conduct. 205 |
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| 315 | | - | (b)(a) "Intentional misconduct" means that the defendant 206 |
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| 316 | | - | against whom punitive damages are sought had actual knowledge of 207 |
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| 317 | | - | the wrongfulness of the conduct and the high probability that 208 |
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| 318 | | - | injury or damage to the claimant would result and, despite that 209 |
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| 319 | | - | knowledge, intentionally pursued that course of conduct, 210 |
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| 320 | | - | resulting in injury or damage. 211 |
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| 321 | | - | (3) In the case of vicarious liability of an individual, 212 |
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| 322 | | - | employer, principal, corporation, or other legal entity, 213 |
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| 323 | | - | punitive damages may not be imposed for the conduct of an 214 |
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| 324 | | - | employee or agent unless only if the conduct of the employee or 215 |
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| 325 | | - | agent meets the criteria specified in subsection (2) and an 216 |
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| 326 | | - | officer, director, or manager of the actual employer, 217 |
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| 327 | | - | corporation, or legal entity condoned, ratified, or consented to 218 |
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| 328 | | - | the specific conduct as provided in subsection (2). : 219 |
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| 329 | | - | (a) The employer, principal, corporation, or other legal 220 |
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| 330 | | - | entity actively and knowingly participated in such conduct; 221 |
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| 331 | | - | (b) The officers, directors, or managers of the employer, 222 |
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| 332 | | - | principal, corporation, or other legal entit y condoned, 223 |
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| 333 | | - | ratified, or consented to such conduct; or 224 |
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| 334 | | - | (c) The employer, principal, corporation, or other legal 225 |
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| 335 | | - | |
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| 336 | | - | CS/HB 995 2024 |
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| 339 | | - | |
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| 340 | | - | CODING: Words stricken are deletions; words underlined are additions. |
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| 342 | | - | Page 10 of 10 |
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| 343 | | - | F L O R I D A H O U S E O F R E P R E S E N T A T I V E S |
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| 344 | | - | |
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| 345 | | - | |
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| 346 | | - | |
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| 347 | | - | entity engaged in conduct that constituted gross negligence and 226 |
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| 348 | | - | that contributed to the loss, damages, or injury suffered by the 227 |
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| 349 | | - | claimant. 228 |
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| 350 | | - | (4) The plaintiff must establish at trial, by clear and 229 |
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| 351 | | - | convincing evidence, its entitlement to an award of punitive 230 |
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| 352 | | - | damages. The "greater weight of the evidence" burden of proof 231 |
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| 353 | | - | applies to a determination of the amount of damages. 232 |
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| 354 | | - | (5) This section is rem edial in nature and shall take 233 |
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| 355 | | - | effect upon becoming a law. 234 |
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| 356 | | - | Section 3. The amendments to ss. 429.29 and 429.297, 235 |
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| 357 | | - | Florida Statutes, made by this act apply to causes of action 236 |
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| 358 | | - | that accrue on or after July 1, 2024. 237 |
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| 359 | | - | Section 4. This act shall take effect July 1, 2024. 238 |
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| 273 | + | and convincing evidence, its entitlement to an award of punitive 176 |
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| 274 | + | damages. The "greater weight of the evidence" burden of proof 177 |
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| 275 | + | applies to a determination of the amount of damages. 178 |
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| 276 | + | (5) This section is remedial in nature and shall take 179 |
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| 277 | + | effect upon becoming a law. 180 |
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| 278 | + | Section 3. The amendments made by this act apply to causes 181 |
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| 279 | + | of action accruing on or after the effective date of this act. 182 |
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| 280 | + | Section 4. This act shall take effect July 1, 2024. 183 |
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