HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 837 Civil Remedies
SPONSOR(S): Judiciary Committee, Civil Justice Subcommittee, Gregory and others
TIED BILLS: IDEN./SIM. BILLS: SB 236
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY
CHIEF
1) Civil Justice Subcommittee 12 Y, 6 N, As CS Jones Jones
2) Judiciary Committee 16 Y, 8 N, As CS Jones Kramer
SUMMARY ANALYSIS
The main purpose of Florida’s civil justice system is to properly and fairly redress the civil wrongs caused
throughout the state, whether such wrongs be in the form of tortious conduct, breaches of contract, or other
non-criminal harm for which the law provides a remedy. The civil justice system accomplishes this goal by
providing a neutral court system empowered to decide the amount of monetary damages required to make
each wronged person whole again. A functioning civil justice system, when it operates justly:
Provides a fair and equitable forum to resolve disputes;
Discourages persons from resorting to self-help methods to redress wrongs;
Appropriately compensates legitimately harmed persons;
Shifts losses to responsible parties;
Provides incentives to prevent future harm; and
Deters undesirable behavior.
CS/CS/HB 837 makes the following changes to Florida’s civil justice system:
Changes Florida’s comparative negligence system from a “pure” comparative negligence system to a
“modified” system, except for medical negligence cases, so that a plaintiff who is more at fault for his or
her own injuries than the defendant may not generally recover damages from the defendant.
Provides uniform standards to assist juries in calculating the accurate value of medical damages in
personal injury or wrongful death actions.
Modifies Florida’s “bad faith” framework to:
o Allow an insurer to avoid third-party bad faith liability if the insurer tenders the policy limits or the
amount demanded by the claimant within 120 days after receiving actual notice of the claim.
o Clarify that negligence alone is not enough to demonstrate bad faith.
o Require a claimant 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.
Provides that a contingency fee multiplier for an attorney fee award is appropriate only in a rare and
exceptional circumstance, adopting the federal standard.
Provides that Florida’s one-way attorney fee provisions for insurance cases apply in limited situations.
Requires the trier of fact in certain negligent security actions to consider the fault of all persons who
contributed to the injury, establishes a presumption against negligent security liability in specified
situations, and expands immunity for a property owner defending a lawsuit against a criminal actor who
is injured on the property.
Reduces the statute of limitations for general negligence cases from 4 years to 2 years.
The bill may have a positive fiscal impact on state and local governments, and on private entities. The bill
provides an effective date of upon becoming a law.
FULL ANALYSIS
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
The Civil Justice System in General
The main purpose of Florida’s civil justice system is to properly and fairly redress the civil wrongs
caused throughout the state, whether such wrongs be in the form of tortious conduct, breaches of
contract, or other non-criminal harm for which the law provides a remedy. The civil justice system
accomplishes this goal by providing a neutral court system empowered to decide the amount of
monetary damages required to make each wronged person whole again. A functioning civil justice
system, when it operates justly:
Provides a fair and equitable forum to resolve disputes;
Discourages persons from resorting to self-help methods to redress wrongs;
Appropriately compensates legitimately harmed persons;
Shifts losses to responsible parties;
Provides incentives to prevent future harm; and
Deters undesirable behavior.1
Tort Law
One of the goals of the civil justice system is to redress tortious conduct, or “torts.” A tort is a wrong for
which the law provides a remedy. Torts are generally divided into two categories, as follows:
An intentional tort, examples of which include an assault, a battery, or a false imprisonment.
Negligence, which is a tort that is unintentionally committed. To prevail in a negligence lawsuit,
the party seeking the remedy, the “plaintiff,” must demonstrate that the:
o Defendant had a legal duty of care requiring the defendant to conform to a certain
standard of conduct for the protection of others, including the plaintiff, against
unreasonable risks;
o Defendant breached his or her duty of care by failing to conform to the required
standard;
o Defendant’s breach caused the plaintiff to suffer an injury; and
o Plaintiff suffered actual damage or loss resulting from such injury. 2
Negligence
Duty of Care
The first of the four elements a plaintiff must show to prevail in a negligence action is that the defendant
owed the plaintiff a "duty of care" to do something or refrain from doing something. The existence of a
legal duty is a threshold requirement that, if satisfied, “merely opens the courthouse doors.”3 Whether a
duty sufficient to support a negligence claim exists is a matter of law 4 determined by the court.5 A duty
may arise from various sources, including:
Legislative enactments or administrative regulations;
Judicial interpretations of such enactments or regulations;
Other judicial precedent; and
The general facts of the case.6
1 Cf. Am. Jur. 2d Torts s. 2.
2 6 Florida Practice Series s. 1.1; see Barnett v. Dept. of Fin. Serv., 303 So. 3d 508 (Fla. 2020).
3 Kohl v. Kohl, 149 So. 3d 127 (Fla. 4th DCA 2014).
4 A matter of law is a matter determined by the court, unlike a matter of fact, which must be determined by the jury. Matters of law
include issues regarding a law’s application or interpretation, issues regarding what the relevant law is, and issues of fac t re s e rve d fo r
judges to resolve. Legal Information Institute, Question of Law, https://www.law.cornell.edu/wex/question_of_law (last visi te d Fe b . 1 3 ,
2023); Legal Information Institute, Question of Fact, https://www.law.cornell.edu/wex/Question_of_fact (last visited Feb. 13, 2023).
5 Kohl, 149 So. 3d at 135; Goldb erg v. Fla. Power & Light Co., 899 So. 2d 1110.
6 Goldb erg, 899 So. 2d at 1105 (citing Clay Elec. Co-op., Inc. v. Johnson, 873 So. 2d 1182 (Fla. 2003)).
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In determining whether a duty arises from the general facts of the case, courts look to whether the
defendant’s conduct foreseeably created a “zone of risk” that posed a general threat of harm to
others—that is, whether there was a likelihood that the defendant’s conduct would result in the type of
injury suffered by the plaintiff.7 Such zone of risk defines the scope of the defendant’s legal duty, which
is typically to either lessen the risk or ensure that sufficient precautions are taken to protect others from
the harm the risk poses.8 However, it is not enough that a risk merely exists or that a particular risk is
foreseeable; rather, the defendant’s conduct must create or control the risk before liability may be
imposed.9
Breach of the Duty of Care
The second element a plaintiff must prove is that the defendant "breached," or failed to discharge, the
duty of care. Whether a breach occurred is generally a matter of fact for the jury to determine.10
Causation
The third element a plaintiff must prove is that the defendant's breach of the duty of care "proximately
caused" the plaintiff's injury. Whether or not proximate causation exists is generally a matter of fact for
the jury to determine.11 Florida follows the “more likely than not” standard in proving causation; thus, the
inquiry for the factfinder is whether the defendant’s negligence probably caused the plaintiff’s injury.12 In
making such a determination, the factfinder must analyze whether the injury was a foreseeable
consequence of the danger created by the defendant’s negligent act or omission. 13 It is not required
that the defendant’s conduct must be the exclusive cause, or even the primary cause, of the plaintiff’s
injury suffered; instead, the plaintiff must only show that the defendant’s conduct substantially caused
the injury.14
Damages
The final element a plaintiff must show to prevail in a negligence action is that the plaintiff suffered
some harm, or "damages." Actual damages, also called compensatory damages, are damages the
plaintiff actually suffered as the result of the injury.15 Juries award compensatory damages to
compensate an injured person for a defendant’s negligent acts. 16 Compensatory damages consist of
both:
“Economic damages,” which typically consist of financial losses that can be easily quantified,
such as lost wages, the cost to replace damaged property, or the cost of medical treatment;
and
“Non-economic damages,” which typically consist of nonfinancial losses that cannot be easily
quantified, such as pain and suffering, inconvenience, physical impairment, mental anguish,
disfigurement, and loss of the capacity to enjoy life.17
In certain limited situations, a court may also award “punitive damages,” the purpose of which is to
punish a defendant for bad behavior and deter future bad conduct, rather than to compensate the
plaintiff for a loss.18
7 Kohl, 149 So. 3d at 135 (citing McCain v. Fla. Power Corp., 593 So. 2d 500 (Fla. 1992); Whitt v. Silverman, 788 So. 2d 210 (Fla.
2001)).
8 Kohl, 149 So. 3d at 135; Whitt, 788 So. 2d at 217.
9 Bongiorno v. Americorp, Inc., 159 So. 3d 1027 (Fla. 5th DCA 2015) (citing Demelus v. King Motor Co. of Fort Lauderdale, 24 So. 3d
759 (Fla. 4th DCA 2009)).
10 Wallace v. Dean, 3 So. 3d 1035 (Fla. 2009).
11 Sanders v. ERP Operating Ltd. P’ship, 157 So. 3d 273 (Fla. 2015).
12 Ruiz v. Tenent Hialeah Healthsystem, Inc., 260 So. 3d 977 (Fla. 2018).
13 Id. at 981-982.
14 Id. at 982.
15 Birdsall v. Coolidge, 93 U.S. 64 (1876).
16 St. Regis Paper Co. v. Watson, 428 So. 2d 243 (Fla. 1983).
17 Cf. s. 766.202(8), F.S.
18 See ss. 768.72, 768.725, and 768.73, F.S. (providing standards and requirements for awarding punitive damages).
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Comparative Negligence – Background
Doctrines of Joint & Several Liability and Contributory Negligence
Doctrine of Joint & 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. 19
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 percent at fault, B being 59 percent at fault, and C being
1 percent at fault, the plaintiff could recover the full $100,000 from his choice of any of the three
defendants.
Doctrine of 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.20 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. 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 & Several Liability, Contributory Negligence, and Comparative Negligence in Florida
In 1886, the Florida Supreme Court adopted the contributory negligence approach;21 and in 1914, the
Court acknowledged its acceptance of the doctrine of joint and several liability. 22
However, in its 1973 Hoffman v. Jones decision, 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.” 23 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. 24
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.25 Within the same Act,
the Legislature also abolished the doctrine of joint and several liability in most negligence actions. 26
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.27 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.28
19 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 . . . .”).
20
See Butterfield v. Forrester, 103 Eng. Rep. 926 (K.B. 1809).
21 Louisville & Nashville R.R. Co. v. Yniestra, 21 Fla. 700 (1886) (citing Butterfield v. Forrester, 103 Eng. Rep. 926 (K.B. 1809)).
22 Allen, 65 So. at 12.
23 Hoffman v. Jones, 280 So. 2d 431, 436 (Fla. 1973).
24 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 suc h
proportion of the entire damages plaintiff sustained as the defendant’s negligence bears to the combined negligence of both t he plaintiff
and the defendant”).
25 Ch. 86-160, s. 60, L.O.F. (codified at s. 768.81(2), F.S.).
26 Ch. 86-160, s. 60, L.O.F. (codified at s. 768.81(3), F.S.).
27 S. 768.81(3), F.S. (“In a negligence action, the court shall enter judgment against each party liab le on the basis of such party’s
percentage of fault and not on the basis of the doctrine of joint and several liability”).
28 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 visited Feb. 13, 2023).
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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:29
Contributory negligence approach, followed by 4 states 30 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.31 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