FLORIDA TRUCK CRASH LAW OVERVIEW

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1 The TLG State Survey Project was edited and compiled by JJ Burns. If this particular document requires an update, addition or modification, please contact him at or (816) FLORIDA TRUCK CRASH LAW OVERVIEW Joseph V. Camerlengo, B.C.B.S. Coker, Schickel, Sorenson, Posgay, Camerlengo, & Iracki 136 East Bay Street Jacksonville, FL The Basics a. Statutes of Limitations and Required Notices i. Uninsured Motorist or Insurance Claims: A legal or equitable action on a contract, obligation, or liability founded on a written instrument must be commenced within 5 years. Fla. Stat (2)(b). ii. Negligence not Resulting in Death: An act founded on negligence and injuries not resulting in death: 4 years Fla. Stat (3)(a). iii. Wrongful death: 2 years Fla. Stat (4)(d). While we are focused on trucking and CMV crashes, to the extent that your case may involve subsequent medical or other malpractice claims, there are additional concerns. iv. Professional Malpractice Claims Other than med mal: 2 years from the discovery of the professional negligence. Fla. Stat (4)(a). v. Medical Malpractice Claims: Claims for medical malpractice have additional considerations and requirements that are conditions precedent to filing suit that go beyond the basic information provided herein. Fla. Stat (4)(b) provides that the claim must be filed within 2 years of the date that the claimant knew or should have known of the medical malpractice, but in no event greater than 4 years from the date of treatment unless there was fraud or concealment. Florida is a true discovery state in that the 2 year statute of limitations does not begin to run until the claimant knew or should have known of both the adverse result and the potential malpractice. There are presuit requirements and a notice period that are potential mine fields set forth in the medical malpractice Act at Fla. Stat et seq. vi. Sovereign Immunity Claims: Claims against state or other government or municipal entities are governed by Fla. Stat , which does not provide for a different statute of limitations. However, under the sovereign immunity statute, a condition precedent to filing suit is to provide notice to the state and/or any municipal or other government agency within 3 years of the crash 1

2 1. Time for the Notice: (6)(a) provides that an action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also presents the claim in writing to the Department of Financial Services, within 3 years after such claim accrues and the Department of Financial Services or the appropriate agency denies the claim in writing. If the cause of action is for wrongful death, the claimant must present the claim in writing to the Department of Financial Services within 2 years after the claim accrues. Fla. Stat (6)(a)(2). 2. Contents of the Notice: Pursuant to (6)(c), the form of the notice is specific in what information must be included and case law has required strict compliance with the notice requirements of the In addition, if your suing or making a claim against a county, municipality or other local sovereign entity, many of them have added specific language or information requirements for the notice of claim in addition to what is required by As long as the local ordinances do not conflict with the Fla. Stat , they have been upheld as valid conditions precedent to bringing a claim. For instance in Duval County, municipal ordinance section et seq. provides additional persons that must be served with the notice and adds additional information that must be included in the notice. Section provides: In addition to the information required by Fla. Stat (6)(c), a notice served upon the General Counsel pursuant to this Chapter shall contain the following information: (a) The name and address of the claimant; (b) The date, time and place of the injury or occurrence complained of; (c) A description of the injury or damage suffered by the claimant; (d) The names of the agents or employees of the City or independent agency involved, if known to the claimant; and (e) A statement, in general terms, of the relief sought from the City or independent agency. A great resource for researching whether any municipal codes apply is 3. Waiting Period until Denial of Claim: As stated above, the action cannot be brought until the agency denies the claim in writing. However, the agency cannot make you wait indefinitely. In addition, the statute provides for a tolling of the statute of limitations in the shorter limitation cases of wrongful death and medical malpractice. Fla Stat (6)(b) provides that the failure of the Department of Financial Services or the appropriate agency to make final disposition of a claim within 6 months after it is filed shall be deemed a final denial of the claim. In medical malpractice and in wrongful death actions, the failure of the Department of Financial Services or the appropriate agency to make final disposition of a claim within 90 days after it is filed shall be deemed a final denial of the claim. The statute of limitations for medical malpractice actions and wrongful death actions is tolled for the period of time taken by the Department of Financial Services or the appropriate agency to deny the claim. 2

3 4. Failure to Comply: Failure to comply with these requirements within the applicable statute of limitations will result in dismissal of your client s claim with prejudice. Fla Stat (6)(b) states the requirements of notice to the agency and denial of the claim pursuant to paragraph (a) are conditions precedent to maintaining an action but shall not be deemed to be elements of the cause of action and shall not affect the date on which the cause of action accrues. 5. Requirement for Separate Notices for Each Claimant: As discussed in the substantive sovereign immunity section below, there are specific damage limitations of $200,000 per person and a combined $300,000 per incident. It is imperative that you notice each claim separately. For instance, an injured spouse in one notice letter and the non-injured spouse s consortium claim in a separate notice letter. In a death case, the estate claims should be sent in one notice letter and each survivor s claim in a separate notice letter. All claims that are sent in one notice letter are subject to the $200,000 limitation. vii. The limitation begins from the time the cause of action accrues. Fla. Stat The accrual begins when satisfaction of the last element of the cause of action occurs. Fla. Stat (1). b. Florida Wrongful Death Claims i. Generally: The Florida Wrongful Death Act is set forth at Fla. Stat et seq. The Act provides that only the Personal Representative of the Estate can bring the claim and shall recover for the benefit of the decedent s survivors and estate all damages specified in the act caused by the injury resulting in death. When a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate. Accordingly, Florida does not allow for conscious pain and suffering before death or for fear of impending death. ii. Definitions: Fla. Stat provides the definitions used throughout the wrongful death act: 1. Survivors means the decedent s spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the child born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child s support. 2. Minor children means children under 25 years of age, notwithstanding the age of majority. 3. Support includes contributions in kind as well as money. 3

4 4. Services means tasks, usually of a household nature, regularly performed by the decedent that will be a necessary expense to the survivors of the decedent. These services may vary according to the identity of the decedent and survivor and shall be determined under the particular facts of each case. 5. Net accumulations means the part of the decedent s expected net business or salary income, including pension benefits, that the decedent probably would have retained as savings and left as part of her or his estate if the decedent had lived her or his normal life expectancy. Net business or salary income is the part of the decedent s probable gross income after taxes, excluding income from investments continuing beyond death that remains after deducting the decedent s personal expenses and support of survivors, excluding contributions in kind. iii. Damages that may be claimed: All potential beneficiaries of a recovery for wrongful death, including the decedent s estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged. Pursuant to Fla. Stat damages may be awarded as follows: (1) Each survivor may recover the value of lost support and services from the date of the decedent s injury to her or his death, with interest, and future loss of support and services from the date of death and reduced to present value. In evaluating loss of support and services, the survivor s relationship to the decedent, the amount of the decedent s probable net income available for distribution to the particular survivor, and the replacement value of the decedent s services to the survivor may be considered. In computing the duration of future losses, the joint life expectancies of the survivor and the decedent and the period of minority, in the case of healthy minor children, may be considered. (2) The surviving spouse may also recover for loss of the decedent s companionship and protection and for mental pain and suffering from the date of injury. (3) Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury. For the purposes of this subsection, if both spouses die within 30 days of one another as a result of the same wrongful act or series of acts arising out of the same incident, each spouse is considered to have been predeceased by the other. (4) Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury. Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors. (5) Medical or funeral expenses due to the decedent s injury or death may be recovered by a survivor who has paid them. 4

5 (6) The decedent s personal representative may recover for the decedent s estate the following: (a) Loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest. Loss of the prospective net accumulations of an estate, which might reasonably have been expected but for the wrongful death, reduced to present money value, may also be recovered: 1. If the decedent s survivors include a surviving spouse or lineal descendants; or 2. If the decedent is not a minor child as defined in s (2), there are no lost support and services recoverable under subsection (1), and there is a surviving parent. (b) Medical or funeral expenses due to the decedent s injury or death that have become a charge against her or his estate or that were paid by or on behalf of decedent, excluding amounts recoverable under subsection (5). (c) Evidence of remarriage of the decedent s spouse is admissible. (7) All awards for the decedent s estate are subject to the claims of creditors who have complied with the requirements of probate law concerning claims. (8) The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence as defined by s (1). iv. Filing a Wrongful Death vs. Survivor Claim: In cases where your decedent lived for a significant period of time and then died, you should consider filing alternative survivor claims pursuant to Fla. Stat Florida is not an election state where you can choose which cause of action to pursue. If the decedent died as a result of her injuries suffered in the crash, then the only remedy is under the Florida Wrongful Death Act. If the decedent died as a result of unrelated injuries or causes, then a survivor claim applies. You can and should plead these in the alternative if you have any question so as to preserve both claims. c. Joint and Severable Liability. The Florida Legislature eliminated joint and several liability in Fla. Stat (3) provides that 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. d. Comparative Fault. Florida is a pure comparative fault state. In a negligence action, contributory fault diminishes the amount awarded of economic and noneconomic damages. Recovery is not barred. Fla. Stat (2). 5

6 e. Non-Parties at Fault. Florida allows for the jury to determine the fault of other negligent non-parties to the case. Fabre vs. Marin, 623 So.2d 1182 (Fla. 1993). The Fabre decision was codified by the legislature in Fla. Stat (3)(a) which provides that: In order to allocate any or all fault to a nonparty, a defendant must affirmatively plead the fault of a nonparty and, absent a showing of good cause, identify the nonparty, if known, or describe the nonparty as specifically as practicable, either by motion or in the initial responsive pleading when defenses are first presented, subject to amendment any time before trial in accordance with the Florida Rules of Civil Procedure. In order to allocate any or all fault to a nonparty and include the named or unnamed nonparty on the verdict form for purposes of apportioning damages, a defendant must prove at trial, by a preponderance of the evidence, the fault of the nonparty in causing the plaintiff s injuries. f. Availability of Direct Claim Against Employer When Employer Admits Scope of Employment. There is a split in the Florida District Courts of Appeal on this issue and the Florida Supreme Court has not yet ruled. Accordingly, you definitely want to plead all available causes of action and name the actual individuals involved. For instance, if you have a bad driving record or poor maintenance that contributed to the crash, name the person or persons that were in charge of those decisions or that were actually negligent in addition to the active negligence of the truck driver. The First and Fifth District Courts of Appeal have ruled favorably on the issue, although not in a trucking case. See Dunmore vs. Eagle Motor Lines, 560 So.2d 1261 (Fla. 1 st DCA 1990); and Trevino v. Mobley, 63 So.3d 865 (Fla. 5 th DCA 2011). There is a bad old decision in a CMV case out of the Second District Court of Appeals from 1977 that holds otherwise. See Clooney v. Geeting, 352 So.2d 1216 (Fla. 2 nd DCA 1977). In Clooney, the trial court struck the plaintiff s claims for negligent hiring, negligent retention, negligent entrustment, and punitive damages alleged against the trucking company regarding a truck driver that allegedly the trucking company knew was neither physically nor mentally able to drive the truck and that the safety manager knew this prior to the crash. The Second DCA affirmed the trial Court s decision based on the fact that the alleged counts did not impose additional liability on the motor carrier who had admitted ownership of the truck, and permissive use resulting in vicarious liability. There are many reasons the Clooney decision is bad law now that could be a treatise in and of itself. However, the main reasons are that the case was decided before the Florida Legislature enacted laws that adopted a pure comparative negligence standard, eliminated joint and several liability and enacted the punitive damage statute to allow gross negligence to qualify for punitive damages. In short, the Clooney decision would have the exact opposite result on the identical facts if decided today. g. Punitive Damages. Claims for punitive damages are controlled by both statute and the Florida Rules of Civil Procedure. In Florida, you cannot seek punitive damages unless leave of court is given. i. Pleading Standards: Fla. Stat (1) provides in any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for 6

7 recovery of such damages. The claimant may move to amend her or his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure. The rules of civil procedure shall be liberally construed so as to allow the claimant discovery of evidence which appears reasonably calculated to lead to admissible evidence on the issue of punitive damages. Florida Rule of Civil Procedure 1.190(f) provides that a motion to amend the complaint to add a claim for punitive damages shall make a reasonable showing by evidence in the record or by evidence to be proffered by the claimant that provides a reasonable basis upon which a claim for punitive damages could be based. ii. Burden of Proof for Punitive Damages: In all civil actions, the plaintiff must establish at trial, by clear and convincing evidence, its entitlement to an award of punitive damages. The greater weight of the evidence burden of proof applies to a determination of the amount of damages. Fla. Stat A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence. Fla. Stat (2) 1. Intentional Misconduct Defined: Intentional misconduct means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage. 2. Gross Negligence Defined: Gross negligence means that the defendant s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct. i. Punitive Damages Against an Employer: In the case of an employer, principal, corporation, or other legal entity, punitive damages may be imposed for the conduct of an employee or agent only if the conduct of the employee or agent meets the criteria specified in Fla. Stat (2) and the employer, principal, corporation, or other legal entity (a) actively and knowingly participated in such conduct; (b) knowingly condoned, ratified, or consented to such conduct; or (c) engaged in conduct that constituted gross negligence and that contributed to the loss, damages, or injury suffered by the claimant. Fla. Stat (3)(a)-(c). ii. Limitations on Punitive Damages: Normally, an award of punitive damages may not exceed the greater of three times the amount of compensatory damages awarded to each claimant or the sum of $500,000. Fla. Stat (1)(a). However, there are exceptions to the general rule. a. Tortfeasor Motivated by Unreasonable Financial Gain: Where the fact finder determines that the wrongful conduct proven under this section was motivated solely by unreasonable financial gain and determines that the unreasonably dangerous nature of the conduct, together with the high likelihood of injury resulting from the conduct, was actually known by the managing agent, director, 7

8 officer, or other person responsible for making policy decisions on behalf of the defendant, the jury may award an amount of punitive damages not to exceed the greater of the greater of four times the amount of compensatory damages awarded to each claimant or the sum of $2,000,000. Fla. Stat (1)(b). b. Tortfeasor Intended to Harm: There is no cap on an award of punitive damages when the fact finder determines that at the time of injury the defendant had a specific intent to harm the claimant and determines that the defendant s conduct did in fact harm the claimant. Fla. Stat (1)(c). c. Judicially Imposed Caps: Notwithstanding the limitations on punitive damages codified in Fla. Stat (1)(a)-(c), those limitations specifically do not prevent a judge from exercising her discretion to determine the reasonableness of an award of punitive damages that is less than the legislatively prescribed caps. Fla. Stat (1)(d). d. Previous Awards of Punitive Damages: This limitation usually applies in product liability cases. Punitive damages may not be awarded against a defendant in a civil action if that defendant establishes, before trial, that punitive damages have previously been awarded against that defendant in any state or federal court in any action alleging harm from the same act or single course of conduct for which the claimant seeks compensatory damages. For purposes of a civil action, the term the same act or single course of conduct includes acts resulting in the same manufacturing defects, acts resulting in the same defects in design, or failure to warn of the same hazards, with respect to similar units of a product. Fla. Stat (2). In subsequent civil actions involving the same act or single course of conduct for which punitive damages have already been awarded, if the court determines by clear and convincing evidence that the amount of prior punitive damages awarded was insufficient to punish that defendant s behavior, the court may permit a jury to consider an award of subsequent punitive damages. In addition, the court may consider whether the defendant s act or course of conduct has ceased. Any subsequent punitive damage awards must be reduced by the amount of any earlier punitive damage awards rendered in state or federal court. Fla. Stat (2)(b). iii. iv. Limits do not Apply to Intoxicated Defendants: The clear and convincing evidence burden and the limitations on punitive damages do not apply to any defendant who, at the time of the act or omission for which punitive damages are sought, was under the influence of any alcoholic beverage or drug to the extent that the defendant s normal faculties were impaired, or who had a blood or breath alcohol level of 0.08 percent or higher. Fla. Stat Discovery of Financial Worth: No discovery of financial worth shall proceed until after the pleading concerning punitive damages is permitted. Fla. Stat (1). A defendant can only be liable for punitive damages if the jury finds intentional 8

9 misconduct or gross negligence by clear and convincing evidence. Fla. Stat (2). h. Pleadings. Florida is an ultimate fact pleading state. Florida Rule of Civil Procedure 1.110(b) provides a pleading which sets forth a claim for relief, whether an original claim, counterclaim, crossclaim, or third-party claim, must state a cause of action and shall contain (1) a short and plain statement of the grounds upon which the court s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the ultimate facts showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief to which the pleader deems himself or herself entitled. Relief in the alternative or of several different types may be demanded. Every complaint shall be considered to demand general relief. i. Adoption of Federal Regulations. Fla. Stat (1)(a) adopts the relevant portions of the FMCSR s for all vehicles engaged in interstate commerce. With a number of exceptions, Fla. Stat (1)(b) adopts a number of the safety provisions of the FMCSRs for CMV s engaged in intrastate commerce, including the rules and regulations contained in 49 C.F.R. parts 382, 383, 385, and , with the exception of 49 C.F.R. s as it relates to the definition of bus. There are a number of helpful definitions that apply to CMVs and CMV crashes set forth in Fla. Stat For instance, Fla. Stat (12) defines a commercial motor vehicle to include any vehicle used to transport persons or cargo that 1) has a gross vehicle weight rating of 10,000 pounds or more; 2) Is designed to transport more than 15 passengers, including the driver; or 3) Is used in the transportation of hazardous materials. j. Tort Reform. Florida has had a number of tort reform efforts most of which have been thwarted or do not directly impact trucking/cmv crashes. However, in addition to the abolition of joint and several liability, there are several tort reform limitations to be aware of when pursuing claims in Florida. i. Alcohol or Drug Defense: Pursuant to Fla. Stat , a plaintiff may not recover any damages for loss or injury to his or her person or property if the trier of fact finds that, at the time the plaintiff was injured: (a) The plaintiff was under the influence of any alcoholic beverage or drug to the extent that the plaintiff s normal faculties were impaired or the plaintiff had a blood or breath alcohol level of 0.08 percent or higher; and (b) As a result of the influence of such alcoholic beverage or drug the plaintiff was more than 50 percent at fault for his or her own harm. ii. Limited Liability for Owners of Cars: The owner who is a natural person and loans a motor vehicle to any permissive user shall be liable for the operation of the vehicle or the acts of the operator in connection therewith only up to $100,000 per person and up to $300,000 per incident for bodily injury and up to $50,000 for property damage. If the permissive user of the motor vehicle is uninsured or has any insurance with limits less than $500,000 combined property damage and bodily injury liability, the owner shall be liable for up to an additional $500,000 in economic damages only arising out 9

10 of the use of the motor vehicle. The additional specified liability of the owner for economic damages shall be reduced by amounts actually recovered from the permissive user and from any insurance or self-insurance covering the permissive user. Nothing in this subparagraph shall be construed to affect the liability of the owner for his or her own negligence. Fla. Stat (9)(b)3. iii. Government rules defense: In a product liability action brought against a manufacturer or seller for harm allegedly caused by a product, there is a rebuttable presumption that the product is not defective or unreasonably dangerous and the manufacturer or seller is not liable if, at the time the specific unit of the product was sold or delivered to the initial purchaser or user, the aspect of the product that allegedly caused the harm: (a) complied with federal or state codes, statutes, rules, regulations, or standards relevant to the event causing the death or injury; (b) the codes, statutes, rules, regulations, or standards are designed to prevent the type of harm that allegedly occurred; and (c) compliance with the codes, statutes, rules, regulations, or standards is required as a condition for selling or distributing the product. Fla. Stat (1). 1. Government Rules Offense: The opposite is also true. There is a rebuttable presumption that the product is defective or unreasonably dangerous and the manufacturer or seller is liable if the manufacturer or seller did not comply with the federal or state codes, statutes, rules, regulations, or standards which: (a) were relevant to the event causing the death or injury; (b) are designed to prevent the type of harm that allegedly occurred; and (c) require compliance as a condition for selling or distributing the product. Fla. Stat (2). 2. Other Evidentiary Issues: a. Violation of FMCSR as Negligence Per Se. Like many states, Florida allows the violation of a statute or regulation to be used as evidence of negligence. Generally, violations of traffic laws and government regulations can only be used as evidence of negligence. See Florida Standard Civil Jury Instruction However, the Negligence Per Se instruction in Florida is not to be given in cases involving a violation of a traffic regulation. See Notes on Use to Florida Standard Jury Instructions and 401.9; and dejesus v. Seaboard Coast Line Railroad Co., 281 So.2d 198 (Fla. 1973). b. Impeachment/Admissibility of Conviction or Guilty Plea. Any witness s credibility may be attacked by evidence that the witness has been convicted of a crime that involved dishonesty or a false statement regardless or the punishment. Fla. Stat (1). Use of prior crime convictions involving punishment by death or imprisonment of greater than 1 year under the law the witness was convicted may also be used. Id. In a civil case, the evidence of any conviction is inadmissible if it is so remote as to have no bearing on the present character of the witness. Fla. Stat (1)(a). Practically, you can ask the witness if they have been convicted of one of these crimes and on how many occasions. If they answer correctly, that is the extent of the inquiry. If however, they deny or testify inaccurately, then certified copies of the convictions and dispositions can be used to 10

11 impeach the witness. In regard to the admissibility of a traffic citation from the crash in question and/or the disposition of the citation, the citation and the plea or verdict are generally inadmissible in the subsequent civil case arising from the crash. For noncriminal traffic infractions, if the guilty party elects to pay the ticket or to go to traffic school or if adjudication is withheld, Fla. Stat makes those elections inadmissible. However, where the crash resulted in serious bodily injury or death and the defendant pleads guilty or is found guilty at a mandatory hearing, that may be admissible in the subsequent civil proceeding. See Figuerdo v. Keller Industries, Inc., 583 So.2d 432 (Fla. 3 rd DCA 1991) and Mackey vs. Reserve Insurance Co., (Fla. 1 st DCA1977). c. Expert Witnesses. In 2013, the Florida legislature amended Fla. Stat to formally adopt the Daubert standard for the admissibility of expert witness opinions. Until then, Florida utilized the Frye standard for the introduction of expert testimony. i. Expert Discovery: In state court, the Florida Rules of Civil Procedure do not require written reports to be prepared or given in advance of trial or deposition. However, it is within the discretion of the trial judge to limit an expert s opinions. Generally, experts are held to the opinions previously disclosed in deposition and/or any written opinions or report. Most judges allow robust discovery of the expert and his or her relationship with the defense. Accordingly, discovery directed to the defendant requesting the amount paid and number of times the defense law firm, defendant and insurance carrier have paid/used the expert over the last 3-5 years is permitted and similar discovery to the expert can be effective as well. See Allstate v. Boecher, 705 So.2d 106 (Fla. 1999) and Fla.R.Civ.Pro 1.280(5). Florida is a non-joinder state and you cannot name the insurance carrier or discuss the fact or amount of insurance available. However, at trial you can ask the expert how many times the defense has used him or paid him over the last 3 years and those numbers will include the insurance carrier discovery responses. d. Evidence of Medical Bills. In Florida, the collateral source rule allows the plaintiff to present the gross amount of the medical bills at trial and then the Court reduces the verdict by any collateral source payments post-trial. Fla. Stat There have been many attempts legislatively to limit the amount of past medical bills introduced at trial to the contractually reduced amounts under health insurance, workers compensation, Medicare, Medicaid, Tricare, etc. However, the Florida Supreme Court recently affirmed the fact that the full amount of medical bills gets put into evidence and then past adjustments are deducted from the award. John Joerg, Jr., etc., et al. v. State Farm Mutual Automobile Insurance Co., 176 So.3d 1247 (Fla. 2015). The collateral source rule functions as both a rule of damages and a rule of evidence. As a rule of damages, the collateral source rule permits an injured party to recover full compensatory damages from a tortfeasor irrespective of the payment of any element of those damages by a source independent of the tortfeasor. As a rule of evidence, the collateral source rule prohibits the introduction of any evidence of payments from collateral sources, upon proper objection. In Florida, the damages portion of the rule has been superseded by legislative action. However, the evidentiary portion of the rule remains alive and well in Florida. Durse v. Henn, 68 So. 3d 271, (Fla. 4th DCA 2011). Usually evidence 11

12 of health insurance is inadmissible during the trial and, if mentioned, results in the collateral source standard jury instruction being given. e. Self-Critical Analysis. Florida has not adopted any self-critical analysis privilege outside of the medical malpractice arena, which involves an express statutory privilege. f. Spoliation of Evidence. Florida s spoliation of evidence law can give rise to significant sanctions and a beneficial evidentiary presumption, but does not usually permit a separate cause of action against already named Defendants. See Martino v. Wal-Mart Stores, Inc., 908 So.2d 3442 (Fla. 1995)(Where the Florida Supreme Court held that there was no independent cause of action for spoliation of evidence and that the adverse evidentiary inferences and myriad of other sanctions are appropriate where a named defendant destroys evidence). In addition, if the destroyed evidence was material and essential to a party s ability to prove her case, then stiff sanctions up to and including the striking of pleadings have been upheld. See Depuy, Inc. v. Eckes, 427 So.2d 306 (Fla. 3 rd DCA 1983). The courts do not require bad faith conduct to get sanctions for spoliation of evidence, but the egregious nature of the defendant s conduct c is considered in determining the appropriate sanctions. 3. Other Procedural Issues: a. Venue i. In Florida, the action can be brought in the county where the defendant resides, the cause of action accrued, or where the property is in litigation. Fla. Stat If multiple defendants, the action can be brought in any county the defendants reside. Fla. Stat ii. When the defendant is a domestic corporation, the action can be brought in any county where such corporation has, or usually keeps, an office for the transaction of its customary business, where the cause of action accrued, or where the property in litigation is located. When the defendant is a foreign corporation doing business in Florida, the action shall be brought in the county where the corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located. Fla. Stat b. Service of Process. Service in Florida is governed by Chapter 48 of the Florida Statutes. Generally, Fla. Stat requires that all process except subpoenas shall be directed to the sheriffs of the state. However, most sheriffs have appointed independent process servers in almost every county in Florida, with some exceptions. The independent process servers tend to achieve service faster. A nonresident motor vehicle owner or driver constitutes the Secretary of State as his or her agent for the service of civil process in any civil action begun in the courts of the state against such owner or driver. Fla. Stat In addition, a Florida resident that is evading service of process or later moves away can also be served through the Secretary of State. c. Local Rules. Each Judicial Circuit has local rules that could clearly impact your handling of the case. In addition, many judges have division rules that apply as well. 12

13 Finally, the Florida Bar Trial Lawyers Section has adopted the Guidelines for Professional Conduct that should be reviewed and followed. These can be located on the Florida Bar website. 4. Insurance a. Insurance Basics. Florida has great insurance statutes and case law regarding the disclosure of insurance coverage, declaratory judgment actions, prevailing party attorney s fees in cases denying insurance coverage, and bad faith. It starts with Fla. Stat which provides that the insurance carrier must fully disclose all insurance policies that may provide insurance coverage for a defendant in a crash in Florida, or for a crash elsewhere with a person or entity insured under a Florida policy. Fla. Stat provides for one way attorney s fees in favor of the insured in any lawsuit over insurance coverage. Unfortunately, Florida does not require mandatory bodily injury insurance coverage. i. UM/UIM Claims: Florida UM/UIM policies provide coverage over and above the tortfeasor s insurance and are not offset by other insurance available. Fla. Stat In order to preserve your clients rights to pursue UM/UIM claims, the insurer must be put on notice of the bodily injury carriers tender of its limits and be given an opportunity to waive or preserve its right of subrogation. Fla. Stat (6). Florida requires all insurance policies issued in the state that provide bodily injury coverage to also provide stacking uninsured and underinsured coverage unless the insured signs a knowing rejection of UM/UIM and other requirements are met (e.g. annual notice on an approved form that the policy does not provide UM/UIM coverage, the insured is charged less in premiums, etc.). Fla. Stat (1). UM/UIM claims do require cooperation with the insurer s investigation and the insurer and do utilize the no-fault threshold in order to obtain noneconomic damages. For best results, you will want to include a count against the insurer for bad faith claims handling in your UM/UIM complaint and then request the court to stay the bad faith claim until the jury s determination of your clients damages. ii. PIP/No-Fault Threshold: Florida is a no-fault state although there has been much talk in the legislature to abolish no-fault and institute mandatory bodily injury coverage. The provisions of the Florida No Fault Law are set forth in Fla. Stat et seq. 1. PIP Limits: Unfortunately, there are only $10,000 in PIP benefits available, and the applicable statute contains many limitations and billing requirements that make it difficult for unfamiliar providers to be reimbursed. If multiple PIP policies apply, only one may provide PIP coverage. The $10,000 in PIP coverage pays 80% of medical expenses incurred and 60% of lost wages as a result of bodily injuries diagnosed within 14 days of the crash. PIP coverage applies in the following order: (a) the injured party s own PIP coverage; (b) if none, a resident relative s PIP coverage; (c) if none, any PIP coverage on the car the injured party is in; and (d) if none, any PIP coverage on the car that caused the crash. PIP coverage protects a Florida insured even if the crash occurs outside the state of Florida. Fla. Stat (4)(e). 13

14 2. No-Fault Threshold: If the tortfeasor has purchased No Fault coverage, then a plaintiff may only recover non-economic damages if the injury or disease consists in whole or in part of: (a) Significant and permanent loss of an important bodily function; (b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement; (c) Significant and permanent scarring or disfigurement; or (d) Death. Fla. Stat (2). b. Bad Faith. Bad faith on the part of an insurance company according to the Florida Standard Jury Instruction is failing to settle a claim 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. Model Instruction Generally, in order for there to be bad faith claims handling, the insurer must have a reasonable opportunity to settle the claim. There are many nuances to Florida s bad faith law. For instance, while it is preferred that the plaintiff make an offer to settle within the limits, the lack of a formal settlement demand does not preclude a finding of bad faith, but constitutes merely one factor to be considered in the bad faith claim. Powell v. Prudential Prop. And Cas. Ins. Co., 584 So.2d 12 (Fla. 3 rd DCA 1991). i. Multiple Claimant Situations: Where there are multiple claimants in a particular crash, the insurance carrier has different obligations to its insured. The insurer must fully investigate all claims arising from the crash; try to settle all of the claims within the limits; if that is not possible, try to minimize the magnitude of possible excess judgments against its insured by reasoned claim settlement practices (1 st trying to resolve the largest claims and then as many other claims as possible within the limits); and to keep the insured informed of the claim resolution process. See Farinas v. Florida Farm Bureau, 850 So.2d 555 (Fla. 4 th DCA 2003); General Security National Ins. Co. v. Marsh, 303 F.Supp.2d 1321 (M.D.Fla. 2004); and Liberty Mutual Ins. Co. v. Davis, 412 F.2d 575 (5 th Cir. 1969). ii. 1 st Party vs. 3 rd Party Bad Faith: In Florida, 3 rd party bad faith claims can be pursued under both common law and statutory causes of action. However, before the enactment of Fla. Stat , there was no common-law right to pursue a bad faith claim against your own insurance carrier. Therefore, all 1 st party insurance claims (e.g. UM, UIM, PIP, disability insurance, and homeowners insurance claims) must be based on the statutory cause of action. As a condition precedent to a statutory bad faith cause of action, you must timely file a Civil Remedy Notice of Insurer Violation and properly provide it to both the insurer and the Department of financial services. Fla. Stat The insurance carrier then has a 60 day window during which the insurer may cure the bad faith and pay the policy limits to resolve the claim. There is no such cure opportunity in third-party common-law bad faith claims. Accordingly, most experienced bad faith attorneys would argue it is potential legal malpractice to file a civil remedy notice of insurer violation, because there is. See Clauss v. Fortune Ins. Co., 523 So.2d 1177 (Fla. 5 th DCA 1988). 14

15 iii. Getting Florida Bad Faith Law To Apply in Your Cases: Florida choice of law doctrine usually follows lex loci contractus to hold that the interpretation of an insurance contract is determined by the state where the insurance policy was executed. However, with respect to performance issues pursuant to an insurance policy, the doctrine of performance vel non has been successfully argued for the application of the insurance bad faith law of the state in which performance under the insurance policy was owed. The Florida Supreme Court utilized this doctrine to apply Florida bad faith law to a Mississippi auto insurance policy for a crash that occurred in Florida. See Government Employees Ins. Co. v. Grounds, 332 So.2d 13 (Fla. 1976). Other Florida state and federal courts have focused on matters concerning performance (e.g. where the obligation to defend the cause of action was, where the wrongful death cause of action was filed, where the negotiations between the adjuster and plaintiff s counsel commenced, etc.) to apply Florida bad faith law to insurance policies issued outside the state of Florida. See Betzoldt v. Auto Club Group Ins. Co., 124 So.2d 402 (Fla. 2 nd DCA 2013)(holding that Florida bad faith law applied to a Michigan insurer that issued insurance policies only to Michigan drivers that caused a crash in Florida); Virginia Farm Bureau Mutual Ins. Co. vs. Dunford, 877 So.2d 22 (Fla. 4 th DCA 2004)(applying Florida bad faith law to an insurance policy issued in Virginia to a Virginia resident that caused a crash in Florida); Teachers Insurance Co. v. Berry, 901 F.Supp. 322 (N.D. Fla. 1995) (applying Florida bad faith law to a Pennsylvania insurer that issued a liability insurance policy to a Pennsylvania resident in Pennsylvania who then caused a crash in Florida); and Shin Crest PTE, Ltd. V. AIU Ins. Co., 2008 WL (M.D. Fla. 2009)(applying Florida bad faith law to an insurance policy issued to a Taiwanese company that manufactured a chair that caused injury in Florida despite the fact that the insurance contract stated that Taiwanese law would govern breach of contract and declaratory judgment claims on the policy). Obviously, getting Florida s robust third-party bad faith law to apply in most cases would be advantageous. c. Agreements not to Execute. Under Florida law, you can consider entering into various types of agreements or consent judgments with the insured and, depending on the facts and whether the insurer is providing a defense, with or without the insurance company s blessing. There are many of these types of agreements that are generally entered into to take full advantage of Florida s robust bad-faith law. If you have a claim that is potentially worth more than the insurance limits available, early consultation with a Florida bad faith attorney is highly recommended as the requirements and law in this area is constantly changing. 5. Trial Matters a. Jury instructions. The Florida Standard Jury Instructions appearing on the court's website at shall be used by the trial judges of this state in instructing the jury in civil actions to the extent that the Standard Jury Instructions are applicable, unless the trial judge determines that an applicable Standard Jury Instruction is erroneous or inadequate. Fla. R. Civ. P

16 b. Trial. Trial process and procedure is governed by the applicable Florida Rules of Civil Procedure, Florida Rules of Judicial Administration, the Florida Evidence Code, case law interpreting the above, and to the extent not inconsistent, the local rules of each judicial circuit. i. Voir Dire and Jury Selection: Florida state courts permit broad latitude in voir dire to allow the attorneys to make educated use of both for cause strikes and peremptory strikes. Florida Rule of Civil Procedure Rule provides, in part, that the rights of the parties to conduct a reasonable examination of each juror orally shall be preserved. 1. Time Limitations: Most trial judges place no time limitations on the parties voir dire. Some trial judges will attempt to provide a reasonable time for jury selection based on the facts of the case. However, most will allow additional time upon a reasonable showing based on the jurors responses. 2. Peremptory Strikes: Usually, the parties are granted 3 peremptory strikes and the number of strikes for the plaintiff must equal the number of strikes for all defendants. Fla.R.Civ.P. Rule 1.431(d). Where the defendants interests are completely aligned (e.g. a vicariously liable employer or owner of the at fault vehicle) usually there are no additional peremptory challenges provided. However, where the defendants are not completely aligned or have independent negligence, additional peremptory strikes are provided. Peremptory strikes can be used for almost any reason, except excluding jurors based on a particular protected class, group or trait. If you suspect opposing counsel is violating the prohibition, you can raise a Neal challenge and advise the court that you believe the potential juror or jurors are being stricken based solely on their belonging to a protected class or group. The burden then shifts to the striking party to provide a neutral reason for exercising the peremptory strike. The trial judge has to conduct an appropriate inquiry and document the record or your verdict could be reversed. 3. For Cause Strikes: Rule 1.431(c) provides that If it appears that the juror does not stand indifferent to the action... another shall be called in that juror s place. Any doubt as to a juror s ability to be fair and impartial should be resolved in favor of excusing the juror for cause. Farias v. State, 540 So. 2d 201 (Fla. 3 rd DCA 1989). Where the prospective juror vacillates between assertions of partiality and impartiality, a reasonable doubt has been created which would require that the juror be excused. Smith v. State, 463 So. 2d 542 (Fla. 5 th DCA 1985). There is no rehabilitation of a juror once the juror has expressed misgivings about their ability to be fair, even where the trial judge extracts commitments that the juror will try to be fair or will be fair. See Club West, Inc. v. Tropigas of Florida, Inc., 514 So. 2d 426 (Fla. 3 rd DCA 1987); Leon v. State, 396 So. 2d 203 (Fla. 3 rd DCA 1981); Sikes v. Seaboard Coast Line Railroad Co., 487 So. 2d 1118 (Fla. 3 rd DCA 1989); and Robinson v. State, 506 So. 2d 1070 (Fla. 5 th DCA 1987). ii. Opening Statement and Closing Argument: Florida grants broad discretion to the trial judge in controlling the presentation of evidence and the pace of the trial. More recently, some trial judges are requesting commitments of time estimated for opening statement and/or closing argument and then holding the parties to those estimates. Plaintiff does get to go first and last throughout the trial. This includes a rebuttal 16