Recap of committee week 2 & preview of week 3
The Florida legislature is steeped in tradition but this session is a stark departure from tradition thanks to COVID-19. Topics include the resulting $2 billion shortfall in the budget with legislators saying “no money,” discussion of riot control based on the national civil unrest, and the COVID-19 vaccine rollout.
Governor DeSantis last Thursday released his proposed $96.6 billion state budget for the next fiscal year that begins July 1. The proposal is about $4.3 billion more than this year’s budget, with $2.6 billion of that federal pass-through dollars related to deal with COVID and its impacts, per this outline released by the Governor’s Office. The sole power to set the next state budget lies with the legislature. Appropriations leaders have warned of potential budget cuts and/or fee increases.
This week marks the third week of committee meetings with two more to go. Last week’s committee meetings were lively with debate on high profile bills such as protecting businesses from frivolous COVID liability lawsuits to repealing Personal Injury Protection (PIP), and pivoting to Bodily Injury liability coverage. These committee meetings are what we call the “lead-up” to the 2021 legislative session that opens on March 2. We are closely watching so many issues using virtual solutions, but are happy to host you in Tallahassee if you have an interest in coming to town and attempting to catch some legislators outside the Capitol.
Updates within each bill are noted in red font:
Contingency Risk Multipliers – SB 212 by Senator Jeff Brandes (R-Pinellas) is a renewed attempt to put the brakes on a growing abuse of attorney fee awards. The bill provides that for certain attorney fees awarded for claims arising under property insurance policies, a strong presumption is created that a lodestar fee is sufficient and reasonable; and providing that such presumption may be rebutted only under certain circumstances, specifically “in a rare and exceptional circumstance with evidence that competent counsel could not be retained in a reasonable manner.” The bill passed the House last session but got hung up in the Senate. The bill awaits its first hearing.
Residential Property Insurance – Comparable in some aspects to SB 212 is SB 76, which focuses on attorney fees and roof replacements. Sponsored by the Chairman of the Senate Banking and Insurance Committee, Senator Jim Boyd (R-Bradenton), the bill would require a notice of intent before initiating a lawsuit and award attorney fees bases on the relationship between the plaintiff demand and final judgment. If the claimant recovers at least 80%, full attorney fees would be awarded; less than 20%, then there would be no attorney fees. Judgments between 20% and 80% would merit the same proportional attorney fee. The bill also attempts to thwart neighborhood roofing canvassers trying to use insurance policies to cover normal wear-and-tear. It would require insurance companies to provide full replacement for roofs under 10 years old and establish a reimbursement schedule for older roofs based on age and type of roof to pay actual cash value. A claim would have to be filed within two years and insurance companies would have the right to request inspection and photographs prior to work commencing. A comparable bill in the House, HB 305 by Rep. Bob Rommel (R-Collier) revises definitions of supplemental and reopened claims. SB 76 will have its first hearing tomorrow at 3:30pm before the Senate Banking and Insurance Committee.
Offers of Judgment – SB 686 by Senator Jeff Brandes (R-Pinellas) would allow parties in a lawsuit to make an exclusive offer of judgment identifying the total amount of indemnity or damages and stipulating attorney fees and costs would be determined at a later date by the parties or the court. A party serving the offer would not be required to stipulate an amount offered for attorney fees and costs; the other party would have 30 days to challenge the validity of the offer. The bill awaits its first hearing. There is no House companion bill.
Insurance Policies – SB 742 seeks to fix a number of issues in insurance law and regulation. The bill, sponsored by Senate Keith Perry (R-Gainesville) would redefine “covered policy” under the Florida Hurricane Catastrophe Fund in relation to certain collateral protection insurance policies; specify when service of process is valid and binding upon insurers; specify the entities that must receive requests for loss run statements; limit loss run statement requests with respect to group health insurance policies to group policyholders; and authorize, rather than require, rate filings for certain residential property insurance to include certain rate factors. The bill was filed a week ago Friday and is awaiting its first hearing.
Civil Liability for COVID-19 Damages ̶ HB 7 by Rep. Lawrence McClure (R-Plant City) and the identical SB 72 by Senator Jeff Brandes (R-Pinellas) are meant to provide businesses and institutions civil immunity from lawsuits so long as they acted in good faith in following coronavirus health precautions. The bills provide requirements for a civil action based on a COVID-19-related claim; provide that the plaintiff has the burden of proof in such action; and provide a statute of limitations, severability, and retroactive applicability. The Senate bill passed the Judiciary Committee last Monday on a 7-4 vote along party lines after a lively debate, with four amendments offered by Democratic members either defeated or withdrawn. The House bill will have its second stop Wednesday at 1:15pm before the Pandemics & Public Emergencies Committee.
Motor Vehicle Insurance (PIP) ̶ This is a perennial effort to do away with Personal Injury Protection (PIP) coverage under Florida’s No-Fault insurance law and replace it with bodily injury (BI) liability coverage. Similar bills failed the last several sessions. SB 54 by Senator Danny Burgess (R- Zephyrhills) passed unanimously in its first hearing last week before the Banking and Insurance Committee. A bad faith amendment was added to the bill that would establish standards for third-party claimants. A dispute between the Senate and House about such bad faith provisions sank last year’s effort. There is no identical bill in the House.
Demand Letters for PIP ̶ HB 237 by Rep. Keith Truenow (R-Tavares) requires written notice of intent to initiate litigation for relief related to Personal Injury Protection (PIP) benefits. It also revises requirements for demand letter for PIP benefits and prohibits actions by & prosecutions on behalf of claimants unless certain requirements are met. The bill awaits its first hearing.
Motor Vehicle Insurance Coverage Exclusions ̶ HB 273 by Rep. Scott Plakon (R-Longwood) creates a named driver exclusion. It provides private passenger motor vehicle policies may exclude identified individuals from specified coverages and provides exceptions. It has an identical Senate companion in SB 420 by Hooper. Both bills await their first hearing.
Hurricane Loss Mitigation Program – SB 168 by Senator Ed Hooper (R- Pinellas) continues a controversial program that while on its face appears to “harden” mobile homes from the threat of hurricanes, it has been questioned by many mitigation experts who have said the effectiveness of the $2 million annual program is doubtful. We will keep a close eye on this bill in hopes the legislature will ask for concrete data to show the results of this appropriation post Hurricane Irma. The bill will have its first hearing tomorrow at 3:30pm before the Senate Banking and Insurance Committee. A similar bill, HB 423, by Rep. Kaylee Tuck (R-Sebring) has just been filed in the House.
Resiliency ̶ SB 514 by Senator Ray Rodrigues (R-Lee) establishes the Statewide Office of Resiliency within the Governor’s Office. It also creates the Statewide Sea-Level Rise Task Force within the resiliency office and authorizes the Department of Environmental Protection to contract for specified services, upon request of the task force. It also requires the Environmental Regulation Commission to take certain action on the task force’s recommendations. This bill contains an appropriation of $500,000. A similar proposal passed the Senate in 2020 but failed to get through House committees. It has an identical House companion in HB 315. Both bills await thier first hearing.
Telehealth Practice Standards – HB 247 by Rep. Tom Fabricio (R-Hialeah) and Rep. Mike Giallombardo (R-Cape Coral) revises the definition of “telehealth” and would allow providers to prescribe controlled substances during telehealth visits. It and an identical Senate bill, SB 660 by Senator Manny Diaz (R-Hialeah) await their first hearing.
Telehealth – SB 700 by Senator Ana Maria Rodriguez (R-Doral) would require the Agency for Health Care Administration to reimburse the use of telehealth services under certain circumstances and with certain limitations; authorize telehealth providers to prescribe specified controlled substances under certain circumstances; authorize out-of-state physician telehealth providers to engage in formal supervisory relationships with certain non-physician health care practitioners in this state; authorize registered pharmacy technicians to compound and dispense medicinal drugs under certain circumstances; and exempt certain registered pharmacy technicians from specified prohibitions. The bill awaits its first hearing. There is no House companion bill.
Florida Building Code – HB 401 by Rep. Elizabeth Fetterhoff (R-DeLand) exempts assisted living facilities from compliance with rules relating to lifeguard standards; authorizes substantially affected person to file petition with the Florida Building Commission to review local government regulations and provides requirements for such petition; provides requirements for the commission when considering petition; requires the commission to issue nonbinding advisory opinion within a specified timeframe; authorizes the commission to issue errata to code; prohibits local government from requiring certain contracts for issuance of building permit; and requires evaluation entities that meet certain criteria to comply with certain standards. The bill was just filed and has no Senate companion so far.
LMA Newsletter of 2-1-21
