The Subrogation Strategist

On Friday, March 24, 2023, Florida’s governor, Ron DeSantis, signed into law a tort reform bill, HB 837.  The bill impacts, among other things, bad faith actions and attorney’s fee awards.  Of particular importance to subrogation professionals are provisions impacting comparative fault, the statute of limitations and premises liability with respect to the criminal acts of third persons.

With respect to the statute of limitations, the bill amended Fla. Stat. § 95.11(3) and (4), to reduce the statute of limitations for negligence actions from four (4) years to two (2) years.

As for comparative fault, Fla. Stat. § 768.81 was amended to move Florida from a pure comparative fault jurisdiction for negligence actions to a modified comparative fault jurisdiction.  Pursuant to § 768.81(6), as revised, in a negligence action subject to that section, “any party found to be greater than 50 percent at fault for his or her own harm may not recover any damages.”  Section 768.81(6), however, does not apply to actions for damages for personal injury or wrongful death arising out of medical negligence.

With respect to premises liability for the acts of third persons, the bill creates Fla. Stat. § 768.0701.  This section states that, notwithstanding § 768.81(4) – which discusses apportionment of fault in actions brought by a person to recover economic damages resulting from pollution, actions based on intentional torts and joint and several liability as specifically provided in other chapters – “in an action for damages against the owner, lessor, operator, or manager of commercial or real property brought by a person lawfully on the property who was injured by the criminal act of a third party, the trier of fact must consider the fault of all persons who contributed to the injury.”  The bill also creates Fla. Stat. § 768.0706 which, among other provisions, establishes a presumption against liability provision protecting the owner or principal operator of a multifamily residential property who substantially implements certain security measures.

Although the act itself is effective immediately, amendments to Fla. Stat. § 95.11 “apply to causes of action accruing after the effective date of [the] act.”  In addition, to the extent that the act affects a right under an insurance contract, the act applies to insurance contracts issued or renewed after the act’s effective date.  Finally, the last provision of HB 837 states that “[e]xcept as otherwise expressly provided in [the] act, [the] act shall apply to causes of action filed after the effective date of [the] act.”

You can view the full text of the bill here.