Recap of final committee week 5
The fifth and final week of pre-session committee meetings occurred last week among a flurry of activity, as outlined below. Committees will resume meeting a week from today, with the full Florida Legislature beginning its 60-day session a week from tomorrow on March 2. House Speaker Chris Sprowls says he expects COVID-19 business liability protection to be among the first bills the full House will consider – possibly next Thursday or Friday.
This year’s opening session will look a lot different due to COVID-19 health precautions. Rather than get together in a joint session with the House for the opening day State of the State address by Governor DeSantis, the Senate will remain in its chamber and watch the address on a video monitor. All Senators will be tested before attending their luncheon afterward; all staff and media will still be subject to weekly testing as well. The Senate’s public galleries will remain closed during the session and all public comment on bills will continue to take place via a video link at the convention center down the street. Subject matter experts invited by committee chairs to testify will continue to be allowed to appear in person. Senate President Wilton Simpson explained the procedures in this memo issued last week.
The House protocols are not as strict; they are allowing in-person testimony at hearings. All House staff (and Senate, as noted) will continue to be tested weekly during the session.
Here is a master list of the legislative bills we’re following so far in the upcoming 60-day session (you can click the bill link to go directly to its details farther below). “New” and “Updated” bills are so noted. Updates within each bill are now noted in blue font:
Contingency Risk Multipliers
Residential Property Insurance
Offers of Judgment Updated
Consumer Protection
Insurance Policies
Credit for Reinsurance New
Civil Liability for COVID-19 Damages Updated
COVID-19-related Claims Against Health Care Providers Updated
Motor Vehicle Insurance (PIP) Updated
Demand Letters for PIP
Motor Vehicle Insurance Coverage Exclusions
Hurricane Loss Mitigation Program Updated
Resiliency Updated
Telehealth Practice Standards
Telehealth Updated
Construction Defects New
Florida Building Code
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 (billable hours x reasonable hourly rate) 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. There is no identical bill in the House. (Return to Top of Page)
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 60 days before initiating a lawsuit. It creates a “strong presumption” for a lodestar fee (billable hours x reasonable hourly rate) but award attorney fees based 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 (instead of the current three) and insurance companies would have the right to request inspection and photographs prior to work commencing.
SB 76 passed the Senate Banking and Insurance Committee on a 9-3 vote February 2 and now goes to the Judiciary Committee. Read more about that meeting here. Senator Brandes noted that 93% of claims come in after the first year of the event, with most fraud occurring in later years, with Senator Boyd saying that “two years is plenty of time to file a claim.” Both pointed to Texas and two other states that experienced these same problems and passed similar legislation to solve them. Under federal law, Boyd noted, contingency fee multipliers are awarded only in “rare and exceptional circumstances” when the lodestar fee would not have been “adequate to attract competent counsel.” Boyd said the Florida Supreme Court has not adopted the federal standard and has held there is no “rare and exceptional” circumstances requirement before a court can apply a contingency fee multiplier. “Reforming the multiplier will help consumers,” he said.
The Office of Insurance Regulation made a presentation in January showing that homeowners insurance companies will likely double their losses from 2019 to 2020. The combined ratios are above 100 for the third year in a row, with net underwriting losses in each of the past five years.
A comparable bill in the House, HB 305 by Rep. Bob Rommel (R-Collier) revises definitions of supplemental and reopened claims. It awaits its first hearing. (Return to Top of Page)
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 had its first hearing last Monday before the Senate Judiciary Committee, which Senator Brandes chairs. There was lengthy debate on an amendment to clarify language. The bill ultimately passed on a 6-4 vote. Committee staff prepared this bill analysis in preparation for the meeting. The bill now goes before the Banking and Insurance Committee. There is no House companion bill. (Return to Top of Page)
Consumer Protection – HB 717 by Rep. Chuck Clemons (R-Dixie & Gilchrist) attempts to go to the heart of insurance fraud in Florida – unlicensed and unregulated contractors. The bill prohibits unlicensed activity by an adjusting firm; prohibits a person from providing claims adjusting services unless the person meets specified requirements; and prohibits licensed contractors & subcontractors from engaging in certain activities unless licensed & compliant as public adjusters. The bill also provides disclosure requirements that insurance coverage must meet before being eligible for export under Surplus Lines Law; prohibits foreign venue clauses in property insurance policies; and provides penalties for a licensed bail bond agent or a temporary bail bond agent who knowingly engages in certain activities.
The bill also address life & health insurance lines. It authorizes regulators to disapprove use of insurance agency names containing words “Medicare” or “Medicaid” and prohibits life insurers from writing new policies of industrial life insurance beginning on a certain date. The bill is awaiting its first hearing. There is no identical Senate bill.
The issue of homeowners (and auto) fraud and unlicensed activity was brought up in a presentation to the Senate Judiciary Committee on February 1. Read more about that here. (Return to Top of Page)
Insurance Policies – SB 742 seeks to fix a number of issues in insurance law and regulation. The bill, sponsored by Senator 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 is awaiting its first hearing. An identical House bill, HB 815 by Rep. Tommy Gregory (R-Bradenton) is awaiting committee assignments. (Return to Top of Page)
(NEW) Credit for Reinsurance – SB 728 by Senator Doug Broxson (R-Pensacola) and the identical bill HB 733 by Rep. Elizabeth Fetterhoff (R-DeLand) adopt provisions of the NAIC Credit for Reinsurance Model Law, which is based on negotiations between U.S, EU, and UK regulators. It eliminates additional collateral requirements for reinsurers if the reinsurer is domiciled in a “reciprocal jurisdiction.” Capital and surplus requirements and solvency or capital ratio requirements would be determined by administrative rule. The bill requires the assuming insurer to notify the Florida Office of Insurance Regulation (OIR) if it falls below minimum requirements and agree to be bound by the jurisdiction of Florida courts and pay all final judgments. There are also OIR reporting requirements. You can read the bill analysis here. The Senate bill unanimously passed the Insurance and Banking Committee last Tuesday and now goes to the Judiciary Committee. The House bill is awaiting its first hearing in the Insurance & Banking Subcommittee. (Return to Top of Page)
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 to substantially comply 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 bills also require a finding of gross negligence and apply a tougher clear and convincing evidence standard. The bills excludes healthcare providers, which are addressed instead in SB 74 (see next Bill Watch item).
The Senate bill was temporarily postponed last Monday during its second stop before the Senate Commerce and Tourism Committee. Look for the bill to be taken up at the committee’s next meeting next Tuesday, March 2.
The House bill passed its final committee last Tuesday and now goes to the full House for a vote, although it’s no longer identical to the Senate version. The House Judiciary Committee passed the bill on a 14-7 vote after heated debate at times over a series of amendments. Rep. McClure won approval of an amendment that clarifies that in cases where existing multiple health guidelines exist, a business would need show only that it substantially complied with one of them. Two other McClure amendments also passed, including one reducing the proposed statute of limitations to one year to file an action.
Six amendments filed by Democrats that opposed the bill were denied debate and all temporarily postponed on procedural grounds. One of those would have changed the bill’s current requirement that a plaintiff must have a signed affidavit from a physician attesting COVID transmission came from the defendant. Another would have included a presumptive eligibility for workers’ compensation insurance for health care workers, EMTs, law enforcement, and school employees who test positive for COVID. Other amendments would have prevented employers from taking certain retaliatory actions against infected employees As noted at the top of this Bill Watch, House Speaker Sprowls is reported as saying he wants to get this bill before the full House for a vote as soon as possible. (Return to Top of Page)
COVID-19-related Claims Against Health Care Providers ̶ SB 74 by Senator Jeff Brandes (R-Pinellas) would do for healthcare workers and facilities what HB 7 (see above) does for businesses and organizations: protect them from liability lawsuits relating to the coronavirus so long as government-issued health standards were substantially and properly followed. The bill provides preliminary procedures for civil actions based on COVID-19-related claims; provides the standard of proof required at trial for such claims (gross negligence or intentional misconduct, instead of simply negligence); provides immunity from liability for COVID-19-related claims under certain circumstances, such as unavailability of personnel or supplies; and requires COVID-19-related claims to commence within a specified timeframe, among other things. The bill passed on a 6-4 party-line vote on February 10 in the Senate Judiciary Committee that Sen. Brandes chairs and now awaits its second hearing before the Health Policy Committee.
The House bill, PCB HHS 21-01 by the House Health and Human Services Committee and Chair Colleen Burton (R-Lakeland) had its first hearing last Wednesday, passing the HHS Committee on a 17-3 vote. The bills have some key differences. The Senate bill covers lawsuits for injuries that occur up to a year after the end of a declared state or federal health emergency and is seen as broader in the types of liability claims that would be limited. The House bill reduces the statute of limitations on medical malpractice claims involving COVID from two years to one year; has an added good faith provision allowing judges to make the call whether defendants were immune from liability; and has a sunset provision one year and a day after becoming effective. Like HB 7 for regular businesses and organizations, this bill also requires a plaintiff – for non-medical negligence claims against healthcare providers – have a signed affidavit from a physician attesting COVID transmission came from the defendant. (Return to Top of Page)
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) would replace the current $10,000 in PIP which covers anyone’s medical bills in an accident and replace it with BI coverage for those other than the driver, with a minimum amount of $25,000 for one injury/death and $50,000 for two or more injuries/deaths. It passed the Banking and Insurance Committee on January 26 where a bad faith amendment was added 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.
This year’s House bill HB 719 by Rep. Erin Grall (R-Vero Beach) is similar to SB 54 but has no bad faith provision. It has a bunch of other measures, including revising garage liability insurance requirements, requirements on transportation network companies such as Uber and their drivers and vehicle owners, as well as financial responsibility requirements for owners or lessees of for-hire passenger transportation vehicles. The bill is awaiting its first hearing before the Civil Justice & Property Rights Subcommittee.
SB 54 went before the Senate Judiciary Committee last Monday where these changes were made:
- Low-income motorists and students would be offered reduced coverage of $15,000 for one injury/death and $30,000 for two injuries/deaths.
- Insurance companies would be allowed to offer policies with deductibles up to $200 for windshield repairs, as a disincentive to some auto-glass businesses that offer free gift cards to motorists who agree to questionable repairs and replacements.
The committee passed the bill on a 7-2 vote. It now goes to the Rules Committee, its last stop before going to the Senate floor. (Return to Top of Page)
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. There is no identical Senate bill. (Return to Top of Page)
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. (Return to Top of Page)
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 unanimously passed the Senate Banking and Insurance Committee February 2 and awaits its next hearing before the Community Affairs Committee. A similar bill, HB 423, by Rep. Kaylee Tuck (R-Sebring) passed by unanimous vote last Wednesday before the House Pandemics & Public Emergencies Committee and will now go to the Insurance & Banking Subcommittee. (Return to Top of Page)
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. The bill passed the Senate Environment and Natural Resources Committee by a 6-0 vote last Monday. It now goes to its second stop before the Appropriations Subcommittee on Agriculture, Environment, and General Government. An identical House companion in HB 315 is awaiting its first hearing. (Return to Top of Page)
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. (Return to Top of Page)
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 passed unanimously in its first hearing last Wednesday before the Senate Health Policy Committee. It now goes to the Appropriations Subcommittee on Health and Human Services. House bill HB 247 (above) is considered comparable for requiring similar AHCA reimbursement. (Return to Top of Page)
(NEW) Construction Defects – SB 270 by Senator Keith Perry (R-Gainesville) revises and expands the mandatory procedures governing how construction defects disputes are resolved. The bill would define the term “material violation” in a warranty and require that a person submit a construction defect claim to the warranty provider before bringing a cause of action; require that a claimant submit a construction defect claim to the warranty provider before serving a notice of claim; authorize a person served with a copy of a notice of claim to perform a reasonable inspection of the property subject to the claim; require, instead of authorize, a person served with a notice to serve a copy of the notice to specified persons under certain circumstances, among other changes. You can read the bill analysis here. The bill passed the Senate Judiciary Committee last Monday on a 9-1 vote and now goes to the Community Affairs Committee.
In the House, a similar bill,HB 21 by Rep. Alex Andrade (R-Pensacola) would also require a claimant to notify a mortgagee or assignee within a specified timeframe after settlement. You can read the bill analysis here. The bill narrowly passed the Civil Justice & Property Rights Subcommittee on a 10-8 vote last Wednesday and now goes to the Regulatory Reform Subcommittee. (Return to Top of Page)
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 is awaiting its first committee hearing. An identical Senate Bill SB 1146 by Senator Jason Brodeur (R-Lake Mary) is also awaiting its first committee hearing. (Return to Top of Page)
LMA Newsletter of 2-22-21
