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 Fiscal Policy
BILL: CS/CS/SB 236
INTRODUCER: Fiscal Policy, Banking and Insurance Committee and Senator Hutson
SUBJECT: Civil Remedies
DATE: March 20, 2023 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Thomas Knudson BI Fav/CS
2. Bond Cibula JU Fav/1 amendment
3. Thomas/Bond Yeatman FP Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/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.
 Repeals Florida’s one-way attorney fee provisions for insurance cases, while maintaining the
ability to award attorney fees to an owner, contractor, subcontractor, laborer or materialman
that prevails in a claim against a construction surety bond.
 Creates a limited ability to recover attorney's fees from an insurance company after a total
coverage denial through a declaratory judgment action.
 Reduces the statute of limitations for general negligence cases from 4 years to 2 years, while
providing protections to servicemembers during terms of active duty which materially affect
the servicemember's ability to appear.
 Modifies Florida’s “bad faith” framework to:
o Provide an insurer has no liability for a bad faith claim if the insurer tenders the lesser of
the policy limits or the amount demanded by the claimant within 90 days after receipt of
the claim and sufficient evidence to support the claim.
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, if 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
BILL: CS/CS/SB 236 Page 2
through an interpleader action or, through binding arbitration, making the entire policy
limits available for payment to the competing third-party claimants.
 Applies the offer of judgment statute to any civil action involving an insurance contract.
 Specifies that certain evidence is admissible to calculate medical damages in personal injury
or wrongful death actions. These changes modify the collateral source rule in a way that
allows the parties to present to the finder of fact evidence of actual medical costs or evidence
that better approximates medical costs that may be incurred by a claimant.
 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
was injured by the criminal act of a third party, to consider the fault of all persons who
contributed to the injury.
 Provides that the owner or operator of a multifamily residential property is presumed to not
be negligent in connection to a criminal act occurring on the property if the property has
certain safety and security features and, starting in 2025, obtains and substantially complies
with a Crime Prevention Through Environmental Design Assessment.
 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.
 Provides that the amendment to the statute of limitations for negligence actions 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 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
1
BLACK’S LAW DICTIONARY (11th ed. 2019).
2
Fla. Std. Jury Instr. Civil 401.4, 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.
BILL: CS/CS/SB 236 Page 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
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.
4
Fla. R. Civ. P. 1.110.
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.
BILL: CS/CS/SB 236 Page 4
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
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 limitations 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
12
Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983) as discussed in the Sawaya treatise, supra at s. 24:4.
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).
BILL: CS/CS/SB 236 Page 5
lost, memories have faded, and witnesses have disappeared.”19 A statute of limitations 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
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 4-year general statute of limitations for negligence action is unique. Only one state has
a longer statute of limitations at 5 years, and Florida is the only state at 4 years. Many states are
at 3 years, but the majority of states are at 2 years or less.23
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.24 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.25
 The “duty to indemnify” refers to the insurer’s obligation to issue payment to the insured on
a valid claim.26 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.27 For example, an insured may purchase a liability
policy in the event the insured causes a car accident and injures 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.28 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.29 Florida courts for many years have
recognized an additional duty that does not arise directly from the insurance contract, the
19
Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 348-9 (1944).
20
Section 95.031(1)(a), F.S.
21
35 Fla. Jur 2d Limitations and Laches s. 65 (2020).
22
Section 95.11(3)(a), F.S.
23
National Conference of State Legislatures, Negligence Statutes of Limitations, February 24, 2023 (on file with the Senate
Committee on Judiciary).
24
16 Williston on Contracts s. 49:103 (4th ed.).
25
Id.
26
Id.
27
Id.
28
Id.
29
Id.
BILL: CS/CS/SB 236 Page 6
common law duty of good faith on the part of an insurer to the insured in negotiating settlements
with third-party claimants.30 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.31 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.32
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.33
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.34 Florida
courts do not recognize a common law first-party bad faith cause of action by the insured against
its own insurer.35 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. The statute recognizes a claim for bad faith
against an insurer no