Tort reform passes as certain lawyers rush to file lawsuits
Governor DeSantis this past Friday morning signed into law a tort reform bill passed the night before by the legislature designed to reverse Florida’s out of control litigation environment. The Governor acted quickly within an hour of receiving the bill, to stem a mass filing of lawsuits by the trial bar leading up to the bill’s final passage. The new law, HB 837, took effect immediately upon his signature. (See the “Civil Remedies” section below on what the bill does.)
“Florida has been considered a judicial hellhole for far too long and we are desperately in need of legal reform that brings us more in line with the rest of the country,” the Governor said. “I am proud to sign this legislation to protect Floridians, safeguard our economy and attract more investment in our state.”
On hand for the signing were Senate President Kathleen Passidomo, who said that when people suffer a loss, they should be compensated quickly and fairly and that the vast majority of attorneys work hard to provide sound legal representation. “Unfortunately, there are a few bad actors who are in the business to draw out civil cases as long as possible, collecting more and more fees from insurance companies. Litigation drives up the basic costs of goods and services for everyone across all areas of industry and commerce.” House Speaker Paul Renner noted “this legislation prevents frivolous lawsuits and allows good claims to move forward.”
The new law “brings balance to the system and protects the legal rights of Floridians to access the courts while reducing the number of frivolous lawsuits,” said House bill co-sponsor Rep. Tom Fabricio, and “returns Florida’s tort system to fundamental American judicial principles that the most responsible pay for the damages they caused and trusts juries to fairly decide cases,” said the bill’s other co-sponsor Rep. Tom Gregory. Senate sponsor Travis Hutson called it “the most meaningful and robust reforms in decades,” and said it will “eliminate unfair practices that bad actors have abused.”
Some of those bad actors, the “billboard lawyers” as the Governor referred to them at the beginning of the session, saw the bill’s unavoidable passage weeks ago and began filing thousands of lawsuits to beat the law’s effective date, to protect their one-way attorney fees under the old law. (See Pick-up in Lawsuits Ahead of Tort Reform in last week’s newsletter.) The Morgan & Morgan law firm notified the insurance defense law firm of Cole, Scott & Kissane that it had filed 25,000 lawsuits and that insurance carriers can expect letters demanding the policy limits. If the policy limit isn’t agreed to within five days, the lawsuit will be served, full litigation will follow, and “the ability to settle for the policy limits will be gone,” according to the message at right, sent by the defense firm to its lawyers.
Besides tort reform being signed into law, there is other news that could impact insurance and general business litigation. Florida Supreme Court Justice Ricky Polston announced his retirement last week. According to the Insurance Journal, he had been instrumental in a number of recent favorable decisions impacting property insurance cases. His replacement, when announced, will be the Governor’s fifth pick on the 7-member court.
This week will be another busy one for remaining insurance and related bills, but also toward crafting next year’s state budget. Last week, the Senate General Government Appropriations Committee and the House State Administration Appropriations Subcommittee presented the Chairs’ budgets. Senator Jason Brodeur and Representative Demi Busatta-Cabrera, the respective chairs of the committees, outlined their budget recommendations for key executive branch departments, including the Department of Financial Services, and its Office of Insurance Regulation. Notably, both budgets include funding for modernizing the agency’s technology systems, with emphasis on transition to the cloud. Additionally, both budgets include a little over $1.2 million for the Division of Insurance Fraud staff resources plus other funding for insurance fraud fighting tools. The final budget must be agreed to and sent to the Governor by the end of session May 5.
We have separated this Bill Watch and those for the remainder of our weekly session newsletters into two categories – “Bills in Play” and “Bills Not in Play”. For those of you who were following closely and have a favorite that has been placed in the latter, don’t forget: It has been my experience that most good ideas take 3 years to pass!”
Here is a master list of the legislative bills we’re following so far. You can click the bill link in the list below to go directly to the bill and its details farther below. “Updated” bills are so noted. Updates within each bill are noted in blue font:
Surplus Requirements for Residential Property Insurers
Financial Services Updated
Property Insurance Updated
Motor Vehicle Liability Policies Updated
Motor Vehicle Insurance
Commercial Vehicle Insurance
Motor Vehicle Glass Updated
Civil Remedies Updated
Civil Remedies for Unlawful Employment Practices
Litigation Financing Consumer Protection
Consumer Protection Updated
Emergency Residential Property Insurance Assistance Trust Fund
Contacting Consumer Debtors Updated
Home Repairs and Solicitation Sales
Collateral Protection Insurance on Real Property Updated
Natural Emergencies Updated
Causes of Action Based on Improvements to Real Property Updated
Condominium and Cooperative Associations Updated
Flood Damage Prevention Updated
My Safe Florida Home Program Updated
Limitation of Actions Involving Real Estate Appraisers and Appraisal Management Companies Updated
Flood Disclosures for Real Property Sales
Flood Zone Disclosures for Dwelling Units
Implementation of the Recommendations of the Blue-Green Algae Task Force
Access to Pharmacies and Prescription Drugs Under Insurance and Pharmacy Benefit Managers Policies
Health Insurance Cost Sharing
Insurance (health) Updated
Telehealth Practice Standards Updated
Physician Certifications for the Medical Use of Marijuana Updated
Civil Remedies ̶ SIGNED INTO LAW HB 837 and SB 236 by Reps. Tommy Gregory (R-Lakewood Ranch) and Tom Fabricio (R-Miami-Dade) and Senator Travis Hutson (R-Palm Coast), pick-up where the December 2022 special session on insurance market reforms left off, by eliminating one-way attorney fees in most lines of insurance – not just property insurance.
Last week the Senate set aside its own bill and on Thursday passed the House bill, HB 837, on a 23-15 vote. Democrat Linda Stewart of Orlando voted for the bill and four Republicans (Jennifer Bradley, Jason Brodeur, Erin Grall, and Jonathan Martin) voted against it. Senators Grall and Martin are both practicing plaintiff attorneys.
During floor debate, Senate bill sponsor Travis Hutson said, “We have a fundamental problem in Florida when you turn on your TV or your radio and the ad says, ‘If you have been injured, call an attorney first. Do not call your insurance. Call an attorney.’ That is a problem. It’s not right. Senator Grall countered, saying “We have blindly accepted the insurance industry’s anecdotes, statistics to move this omnibus bill depriving Floridians of their constitutional rights to access courts.” But Senator Jim Boyd, an insurance agent and Chairman of the Senate Banking and Insurance Committee, reminded his colleagues that “by and large, insurance companies treat their customers fairly. Guess what? If they didn’t, they wouldn’t be in business for very long.” And a few minutes later, he honed in on the key issue – the one driving rate increases for all Floridians and causing the market distress we’ve witnessed: “What it does take away are claimants getting $1,000 and attorneys getting $50,000 or $100,000 to represent them on that $1,000 claim,” Boyd said.
The very next morning, on Friday March 24, Governor DeSantis signed HB 837 into law, with its provisions going into effect immediately. The new law makes additional changes to state statutes to reduce excessive litigation and resulting costs to insurance consumers. As passed, the bill does the following PROSPECTIVELY from this past Friday on:
- Adopts the federal standard for contingency fee multiplier in that it applies in only rare and exceptional circumstances.
- Repeals the one-way attorney fee statute (as was done for property insurance in December 2022) for admitted and surplus lines. Attorney fees will only be paid if the insurer totally denies insurance coverage and the plaintiff lawyer prepares (and wins) a declaratory judgment action (dec action) to determine coverage. Reservation of rights letters do not constitute as a claim denial. This section does NOT apply to property insurance total denial dec actions.
- General negligence cases must be filed in 2 years, down from 4 years.
- Changes Bad Faith laws:
- Applies bad faith to liability claims.
- Bad faith safe harbor is 90 days after receiving actual notice of a claim.
- Negligence singularly and failure to tender policy limits is not bad faith.
- A judge can consider failure of the policyholder/claimant to act in good faith when determining damages against the insurer.
- Interpleader process will be used with more than one claimant and when claims exceed policy limits.
- Binding arbitration is paid for by insurance company, all parties must agree to it and it is allowed with more than one claimant where policy limits are exceeded.
- Provides that an offer of judgment applies to any insurance civil action.
- Establishes uniform jury standards to transparently calculate personal injury or wrongful death medical damage costs:
- Evidence of past paid medical bills and unpaid bill data will now be a part of a court case.
- Ensures that a letter of protection is not inflated by ensuring the health insurance benefits are transparent to the jury.
- Evidence of past or future unpaid medical bills for those uninsured or on Medicaid/Medicare are subject to 120% of the Medicare rate or 170% of the Medicaid rate if no Medicare rate.
- Evidence of past medical bills if letter of protection is sold is the sales price of the letter.
- Evidence of future medical bills for insured plaintiffs is the provider health insurance rate for future care plus the plaintiff’s cost share.
- The jury can also be presented any reasonable amount for past and future medical bills.
- Ensures transparency about a provider/plaintiff counsel financial relationship to inform the jury.
- All persons who contributed to the injury in a premises liability action will now become part of the civil action. The bill establishes a presumption against liability for criminal acts of apartment complex non employees, owners or operators that occur in the complex if security measures and training is in place.
- Changes Florida’s comparative negligence system so that if a plaintiff is more at fault for their injuries, they may not recover damages from the defendant. Medical malpractice coverage/cases are not included with this change. (Return to Top of List)
Consumer Protection – HB 1185 and SB 1398 by Representative Mike Giallombardo (R-Cape Coral) by Senator Nick Diceglie (R- St. Petersburg) provides additional requirements for distributed energy systems and specifies violations and penalties for licensees. The bill prohibits certain contracts by public adjusters (PA’s) and provides an additional requirement for a public adjuster’s license. The bill revises provisions relating to hurricane deductibles and reduces the time period in which a property insurance company may cancel a policy in certain circumstances. The bill also revises duties of carriers & agents concerning the sale of annuities and provides additional requirements for service agreement policies.
HB 1185 was heard in the House Insurance and Banking Subcommittee on March 21, with a clarifying amendment adopted. You can view the House Bill analysis. Scott Johnson, in his Johnson Strategies blog, notes the following highlights:
- Attorney Loss Consultants: The bill partially addresses the problem of so-called attorney “loss consultants” that perform services identical to that of a PA but without a PA license. It clarifies that the attorney adjusting exemption does not apply to “…employees, interns, volunteers, or contractors…” of any attorney or firm.
- PA’s & 3rdparties: The bill prohibits a PA from contracting with 3rd parties (such as water firms or build back contractors) unless the homeowner client provides written consent. If done without consent, the 3rd party invoice is paid out of the public adjusters’ fee.
- PA Contract Cancellations: A major problem after both Hurricanes Michael and Ian was PA’s signing up policyholders then taking weeks, sometimes months, to begin work. The CFO’s bill provides that after a declared emergency policyholders have 30 days to cancel their contracts, without penalty or obligation. The contract must state this fact and also state it can be cancelled if the PA fails to provide a copy of an “unaltered ” written estimate within 45 days of signing.
- Paying the Policy Limits: Under the bill if no later than 14 days after the loss is reported the insurer pays, or commits in writing to pay, the policy limits, the PA must inform the insured that such payment might not be increased and that the PA is entitled only to reasonable compensation for time and expenses incurred.
- Contingency Fee Calculations: Under the bill if a public adjuster has a contract effective after the insured receives an insurers offer and the PA increases the insurers offer, the PA’s percentage is calculated on the difference between the original offer and the final payment, not the total claim payment.
- Claim Payments: When a claim is settled while the insured is represented by a public adjuster, the insurer must pay via check(s) and must issue one check to the public adjuster and another for the balance made payable to the insured.
- Miscellaneous Policyholder Benefits: The bill changes and/or creates other requirements for PA contracts that should be helpful in expediting the claims process, lowering fraud and protecting the policyholder. (Details in the Amendment beginning in Section 9 on line 352)
CFO Jimmy Patronis had some passionate words during his testimony surrounding the “hell” that is recovering from a hurricane. He boldly stated that insurance companies “suck,” contractors “suck,” and public adjusters “suck too.” Though he noted there are good and bad people in both, he emphasized it’s the “parasites that come after the storm while people are vulnerable that they are trying to target with this legislation”. Representative Hunschofsky thanked him for highlighting the vultures that come in quickly after a storm, while asking if he was continuing to work with the stakeholders to make sure this isn’t adding on to their trauma. Patronis responded that he is happy to advocate for this legislation, and talked with them at the time of the meeting, going on to describe the people “below pond scum” who set up fraudulent GoFundMe campaigns using traumatic images off the internet of hurricanes and SurfSide. The Florida Association of Public Insurance Adjusters testified that their standards are the highest possible and that they are completely 100% aligned with the CFO and bill sponsor to protect consumers, but highlighted that public adjusters are in the minority for soliciting after events, and that if legislators want a moratorium, then do it for everyone. The bill was unanimously passed out of committee and is now awaiting its second stop in the House State Administration & Technology Subcommittee.
SB 1398 was heard in the Senate Banking and Insurance Committee and a clarifying amendment was adopted. There was a lot of public testimony from public adjusters advocating against the bill, but DiCeglie noted in his closing that unfortunately there has been a lot of bad practices following catastrophic storms in Florida. He continued that the lines of communication will remain open, but ultimately this is consumer protection legislation, and they need to stay at the forefront. The bill was passed unanimously and is now waiting for its second stop in the Senate Appropriations Committee on Agriculture, Environment and General Government. You can view the Senate Bill analysis for more details. (Return to Top of List)
Financial Services ̶ HB 487 and SB 1158 by Rep. Michelle Salzman (R-Cantonment) by Senator Nick DiCeglie (R-St. Petersburg) is the Department of Financial Services (DFS) annual omnibus bill which covers a myriad of topics under the jurisdiction of DFS, as well as the inner workings of the department itself. Topics include reinsurance, adjusters, insurance agents, workers’ comp, bail bonds, new rules on board and associations, and sales representatives. You can see the House Bill analysis and the Senate Bill analysis for details.
The House Bill was heard in the House Insurance and Banking Subcommittee on March 21. CFO Patronis waived his testimony in support of the bill and no other questions were asked. Rep. Salzman adopted an amendment that moved some of the sections of HB 487 closer to its Senate counterpart. The substance of both bills are similar; however, the sections are slightly off. After the amendment was adopted, the bill passed unanimously out of the committee. Its next stop is the full House Appropriations Committee.
The Senate Banking and Insurance Committee took up SB 1158 on March 22. An amendment was adopted that moved the Senate bill closer to the House bill. The amendment removed several sections of the bill that changed the number of years of appointments for specific boards. The amendment also added a sunset date to the Fire Marshall DSO and made other clarifying cross reference clarifications. The bill passed unanimously out of the committee and is now in the Senate Appropriations Committee on Agriculture, Environment and General Government. (Return to Top of List)
Property Insurance ̶ HB 505 and SB 418 by Rep. Kim Berfield (R-Clearwater) and Senator Keith Perry (R-Gainesville) revises requirements for residential property insurance rate filings. The bill allows a residential property insurer’s rate filing to estimate projected hurricane losses by using a weighted or straight average of two or more models approved by the Florida Commission on Hurricane Loss Projection Methodology. The bill authorizes insurance companies to file with OIR their personal lines rating plans relating to windstorm mitigation construction standards and allows premium discounts and credits on residential property lines for windstorm mitigation measures. The bill also revises the timeframe for notices from carriers to policyholders of automatic bank withdrawal increases, and revises requirements for notice of certain automobile policies.
SB 418 unanimously passed in the Senate Military and Veterans Affairs, Space and Domestic Security Subcommittee on March 7 with an amendment. The adopted amendment made the following changes:
- Provides that if the Director of the Citizens Property Insurance Corporation provides a designee to serve on the Florida Commission on Hurricane Loss Projection Methodology, the designee must have actuarial science experience; and
- Removes the 10% and 15% policy deductibles for properties valued at $1 million and greater, and provides a policy covering a risk with dwelling limits of:
- $250,000 or more, but less than $1 million, the insurance company need not offer the $500 hurricane deductible;
- $1 million or more, but less than $3 million, the insurance company may, in lieu of offering the $500 and 2% deductible, offer a deductible amount applicable to hurricane losses equal to 3% of the policy dwelling limits; and
- $3 million or more, the insurance company need not offer the $500 or 2% deductibles.
SB 418 is now in the Rules Committee, its last stop before the full Senate.
HB 505 was heard in the House State Administration & Technology Appropriations Subcommittee on March 21. It differs slightly from the Senate bill in that it does not contain the deductible thresholds that the Senate bill contains. The bill also allows the Executive Director of Citizens Property Insurance to designate a person to serve on the Florida Commission on Hurricane Loss Projection Methodology in the executive director’s place and allows for the electronic delivery of health insurance policy documents. The bill also removes requirements regarding sending paper insurance policy documents. Representative Nixon inquired about specific discounts and savings for the described resilience efforts, to which Representative Berfield responded that it depends on the type of mitigation and organization, but an example could be to use nails with ridging in them creating a stronger bond to a home, or using a glue to secure it to the home. The bill unanimously passed the committee and is now in its final stop in the House Commerce Committee. (Return to Top of List)
Motor Vehicle Liability Policies ̶ HB 57 and SB 516 by Rep. Keith Truenow (R-Tavares) and Senator Nick DiCeglie (R-St. Petersburg) revises the definition of “motor vehicle liability policy” to include certain policies issued by specified risk retention groups and further defines those groups as being “A”-rated and providing only commercial coverage for its members. The Senate bill was heard in the Senate Banking and Insurance Committee on March 22 and an amendment was adopted. The amendment authorizes qualified surplus lines insurance companies to provide commercial automobile insurance. Senator Thompson asked if this bill would stifle marketplace competition, but Senator DiCeglie insisted that as a business owner, this bill would offer options and parameters for market entrance into these groups, which “is always good.” SB 516 was passed unanimously out of committee and is now awaiting its next stop in the Senate Appropriations Committee on Criminal and Civil Justice.
HB 57 unanimously passed the Insurance and Banking Subcommittee on February 14 after withdrawing an amendment and is now in the House Commerce Committee, its last stop before the full House. (Return to Top of List)
Motor Vehicle Glass ̶ HB 541 and SB 1002 by Rep. Griff Griffitts (R-Panama City) and by Senator Linda Stewart (D-Orlando) and Senator Ed Hooper (R-Palm Harbor) bars vehicle insurance policyholders from entering into Assignment of Benefits (AOB) contracts with repair shops.
On March 14, 2023, the Insurance & Banking Subcommittee adopted an amendment that made the following changes to the House bill:
- Provides that a motor vehicle repair shop may not offer a customer a rebate, gift, gift card, cash, coupon, or other thing of value in exchange for making an insurance claim for motor vehicle glass replacement or repair;
- Prohibits an employee of a motor vehicle repair shop from offering gifts;
- Establishes that it is a violation of law for a motor vehicle repair shop to fail to provide electronic or written notice to a customer whether the calibration or recalibration of an ADAS is required;
- Defines ADAS as any motor vehicle electronic safety system associated with motor vehicle glass and designed to support the driver and motor vehicle in a manner intended to:
- Increase motor vehicle safety; and
- Reduce losses associated with motor vehicle crashes;
- Allows an insurance company, when issuing or renewing a policy providing comprehensive coverage or combined additional coverage, to offer a policyholder or applicant a deductible of $250 for claims of damage to the windshield of a motor vehicle, which they may decline; and
- Establishes that, if a deductible for comprehensive coverage or combined additional coverage is applied to a loss that includes other damage in addition to windshield damage, no windshield damage deductible may apply.
In presenting HB 541, Rep. Griffitts noted that claims on auto glass have led to over 33,000 lawsuits being filed in Florida in 2022 alone, with 22 attorneys accounting for 79% of those lawsuits. It was passed unanimously by the Subcommittee. HB 541 is now scheduled for the House Civil Justice Subcommittee today (March 27) at 8am.
The Senate bill revises definitions under the Florida Motor Vehicle Repair Act to ensure that businesses that calibrate or recalibrate advanced driver assistance systems associated with windshields are regulated under the bill. The bill also prohibits any employees of motor vehicle repair shops from offering an inducement to a customer in exchange for making an insurance claim for motor vehicle glass replacement or repair. It also prohibits an assignment agreement of post-loss benefits for motor vehicle glass replacement or repair. Senator Stewart has noted that auto glass litigation has gone up by 4,000% in the last 10 years.
SB 1002 was heard on Monday March 20 in the Senate Commerce and Tourism Committee. As in the previous committee, there was much discussion around the idea that SafeLite and insurance companies may be “steering” customers to SafeLite and away from independent operators. Independent operators testified, saying that that bill would shut them down. SafeLite, responding to these accusations, testified that it was under a number of regulations that prevent steering and would be happy to provide the recordings of its calls with policy holders. The Senate Commerce and Tourism unanimously passed SB 1002 and the bill is now awaiting its last stop in the Senate Rules Committee. (Return to Top of List)
Contacting Consumer Debtors ̶ SB 128 and HB 113 by Senator Ana Maria Rodriguez (R-Miami-Dade) and Rep. Alex Andrade (R-Pensacola) prohibits a creditor from contacting a consumer whose debt arose from documented elder and economic abuse or human trafficking. Those who violate that would be subject to the same sanctions as any other consumer debt collector. The bill also requires the state Office of Financial Regulation to inform and furnish relevant information to the appropriate regulatory body of the state, the Federal Government, or The Florida Bar if a person has been named in a certain consumer complaint alleging specified violations of law. It also authorizes debtors to bring civil actions against creditors who violate the act. We spend a lot of time trying to help the elderly, who are often victims of contractor fraud and/or unscrupulous attorneys. This is a helpful bill in combating additional abuse at the hands of such abusers. SB 128 is scheduled to have its first hearing before the Senate Banking and Insurance Committee Wednesday (March 29) at 8:30am. The House bill still awaits its first hearing before the Insurance & Banking subcommittee. (Return to Top of List)
Collateral Protection Insurance on Real Property ̶ SB 410 and HB 793 by Senator Ileana Garcia (R-Miami) and Rep. Juan Fernandez-Barquin (R-Miami) creates a new section in Chapter 627 of the Florida Statutes, titled “Real Property Collateral Protection Insurance.” It establishes regulations for insurance companies and agents engaging in transactions involving collateral protection insurance (the so-called “lender-placed” or “force-placed” insurance) on real property, including manufactured and mobile homes. It defines terms, outlines the terms of policies, and provides calculations of coverages and premiums. It also prohibits certain practices, such as issuing collateral protection insurance if the insurer or insurance agent owns the real property; compensating a lender, investor, or servicer on collateral protection insurance policies; offering contingent commissions, profit-sharing, or other payments dependent on profitability or loss ratios to any person affiliated with a servicer or the insurer in connection with collateral protection insurance; and providing free or below-cost outsourced services to a lender, investor, or servicer. The bill also specifies the terms of the insurance policy, which must become effective no earlier than the date of lapse of insurance upon mortgaged real property, and must terminate on the earliest of certain dates. It also states that an insurance charge may not be made to a mortgagor for collateral protection insurance before the effective date of the insurance or for a term longer than the scheduled term of the insurance.
The House bill was heard in the Insurance and Banking Subcommittee on March 14, passing unanimously without any amendments. It awaits a hearing before the State Administration and Technology Appropriations Subcommittee, its second of three committee stops. The Senate companion, SB 410 had its first hearing on March 22 in the Senate Banking and Insurance Committee. Senator Powell asked for clarification on why the bill was necessary, to which Senator Hutson responded that they’re copying federal and other states’ legislation so that consumers can find insurance when there is a collapse in coverage. The bill passed unanimously and now awaits a hearing in the Senate Appropriations Committee on Agriculture, Environment, and General Government, its second of three committee stops. (Return to Top of List)
Natural Emergencies – SB 250 by Senator Jonathan Martin (R- Fort Myers) establishes temporary housing for disaster relief workers and makes permanent funding for local-government emergency loans. After both Hurricane Ian and Nicole devastated parts of the state last year, the Florida Legislature is pursuing a series of proposals, including SB 250, aimed at helping communities recover from future storms. Other provisions of the bill include:
- Allowing residents to remain on their property in temporary housing, such as trailers, as they rebuild;
- Requiring faster approval of building permits to streamline the rebuilding effort;
- Retroactively prohibiting local governments from raising building fees until October 2024 in communities impacted by Hurricanes Ian and Nicole;
- Requiring faster removal of damaged derelict boats from state waters by their owners;
- Establishing temporary housing for disaster relief works;
- Establishing permanent funding for local government emergency loans;
- Requiring local governments have uniform pre-storm contracts for debris removal;
- Encouraging local governments and school districts to develop emergency financial plans for disasters; and
- Protecting the identities of people hurt or killed in natural disasters from public records searches to avoid potential fraud.
SB 250 was heard in the Senate Fiscal Policy Committee on March 23. This bill, based on the findings from the Senate Select Committee on Resiliency, provides a host of changes that aid state and local government entities in being more flexible and reacting better to natural disasters. These changes include greater funding for local government emergency bridge loan programs, extending permitting deadlines, expediting permitting applications for disaster repair and recovery, and extending the grace period for the removal of derelict vessels after a hurricane. At this committee stop, however, the bill’s sponsor, Senator Martin, proposed an amendment that would require property insurance companies to submit a claims handling manual to the Officer of Insurance Regulation by August 1, 2023, and by May 1st of every year after that, and within 30 days of any update to the manual. Florida has an extremely broad public records requirement, which would likely mean that these manuals would be available to the public. The amendment was adopted and the bill was unanimously passed out of its committee. It now goes to the full Senate for consideration.
The House Select Committee on Hurricane Resiliency & Recovery is expected to release its own proposal soon, which will take the form of a companion House bill to SB 250. (Return to Top of List)
Causes of Action Based on Improvements to Real Property ̶ HB 85 and SB 360 by Rep. John Snyder (R-Stuart) and Senator Travis Hutson (R-Palm Coast) revises the timeline for filing lawsuits on design, planning, or construction defects. It shortens the 10-year statute of repose to 7 years and adjusts the trigger date of that 7 year marker by changing the commencement dates to run based on the date the Certificate of Occupancy was issued. The bill also specifies this timeline in regard to temporary certificate of occupancy, certificate of occupancy, and certificate of completion. On March 15, the full Senate passed SB 360 on a 31-8 vote, and sent it to the House.
On March 23, the House adopted an amendment on HB 85 that made it identical to the Senate Bill, then substituted the Senate bill in its place. The House passed SB 360 on an 89-8 vote and sent it to the Governor for his expected signature. (Return to Top of List)
Condominium and Cooperative Associations ̶ SB 154 and HB 1395 by Senator Jennifer Bradley (R-Fleming Island) and Rep. Vicki Lopez (R-Miami-Dade) makes several clarifying and technical changes to the requirements for Condominium and Cooperative Associations, including revising the circumstances under which community association managers or management firms must comply with the milestone inspection requirement passed in the May 2022 special session in SB 4-D. The bill clarifies that milestone inspections apply to buildings that are three stories tall or higher; revises the definition of the terms “milestone inspection” and “substantial structural deterioration”; authorizes local enforcement agencies to make certain determinations relating to milestone inspections after a building reaches a specified age; authorizes municipal governing bodies to adopt certain ordinances relating to association repairs; revises the types of policyholders not required to purchase flood insurance as a condition for maintaining certain policies issued by the Citizens Property Insurance Corporation; and revises condominium association reserve account requirements for structural integrity improvements.
On March 16, SB 154 had its second hearing in the Senate Fiscal Policy Committee. We recommend reviewing the staff analysis and you can review below what the amendments changed to the underlying bill. Please note the House bill is quite different from the Senate bill so these bills are a moving target!
- Restructured the milestone inspection requirements for better clarity;
- Provided that the three-story height of a building is determined by the Florida Building Code;
- Required a building that reaches 30 years of age before December 31, 2024, to have a milestone inspection before December 31, 2024;
- Permitted local enforcement agencies to accept an inspection and report that was completed before July 1, 2022, with conditions; and
- Clarified that the requirement to ensure compliance with the milestone requirements apply to the associations and not to the unit owners.
SB 154 unanimously passed out of that committee and is now on the full Senate floor for Second Reading.
The House bill was heard in its first committee, the House Regulatory Reform & Economic Development Subcommittee on March 22. An amendment was adopted that requires the use of the Building Commission’s uniform milestone inspection report form to be mandatory rather than optional. The amendment also changes the due date for the Building Commission’s form to October 1, 2023 and clarifies that only associations required to complete a structural integrity reserve study are required to maintain reserves to be in the study. The amendment also clarifies a requirement of last year’s SB 4-D that all Citizens Property Insurance policyholders obtain flood insurance. It excludes Citizens condo owners, so long as they live in a condominium building covered by a master flood policy, or their unit is over 40 feet above the ground plane. The bill unanimously passed and is now waiting its second stop in the State Administration & Technology Appropriations Subcommittee. You can review the updated staff analysis for more details. (Return to Top of List)
Flood Damage Prevention ̶ HB 859 and SB 1018 by Rep. Fabian Basabe (R-North Bay Village) and Senator Jay Trumbull (R-Panama City) provides legislative findings that public and private investments in communities are important for economic growth, and that protecting structures from flooding is essential to maintaining resilient communities. The bill modifies freeboard requirements for certain buildings. (Freeboard is the additional height, usually expressed as a factor of safety in feet, above the base flood elevation in determining the level at which a structure’s lowest floor or the bottom of the lowest horizontal structural member must be elevated.) The bill also establishes maximum voluntary freeboard requirements for all new construction and substantial improvements to existing construction and prohibits voluntary freeboard from being used in the calculation of the maximum allowable height for certain construction in applicable zoning districts. The bill requires the Florida Building Commission to develop and adopt minimum freeboard requirements by a specified date, and to review the freeboard requirements in the Florida Building Code every 5 years. The House bill is awaiting its first hearing in the Regulatory Reform & Economic Development Subcommittee. The Senate bill had its first hearing in the Community Affairs Committee on March 15 and passed unanimously. SB 1018 is now scheduled for the Environment and Natural Resources Committee today (March 27) at 11:30am. (Return to Top of List)
My Safe Florida Home Program ̶ HB 881 and SB 748 by Rep. Chip LaMarca (R-Lighthouse Point) and Senator Jim Boyd (R-Bradenton) amends the My Safe Florida Home Program , which seeks to offer incentives to homeowners to harden their homes from future hurricanes and reduce their insurance premiums as a result. The bill requires that licensed, rather than certified, inspectors are to provide hurricane mitigation inspections on site-built, single-family, residential properties that have been granted a homestead exemption. The bill also revises the information provided to homeowners as part of a hurricane mitigation inspection, revises the hurricane mitigation inspectors that may be selected by the Department of Financial Services to provide hurricane mitigation inspections, and deletes a provision requiring the department to implement a certain quality assurance program. Additionally, the bill revises the criteria for mitigation grant eligibility for homeowners; deletes a provision that subjects mitigation projects to random reinspection for a specified timeframe; revises the improvements for which mitigation grants may be used, including secondary water barriers for roofs; and revises the amount that low-income homeowners may receive from the department under the grant program.
The House bill was heard in the State Administration & Technology Appropriations Subcommittee. According to the sponsor, so far, the program itself has been able to provide 20,000 inspections and approve 3,400 grant applications. The bill itself intends to improve the functionality of the program and expand its eligibility beyond simply windborne debris zones to include homeowners across the state. Representative Robinson noted that the bill expands the amount of people who can use it, but it does not seem to expand the amount of funding. Rep LaMarca responded that there is a separate legislative effort for budget issues to hopefully expand program funding, so once they expand the pool, the funding would follow. The bill was unanimously approved and is now scheduled for its final stop in the House Commerce Committee today (March 27) at 2pm.
SB 748 is now in the Senate Appropriations Committee on Agriculture, Environment and General Government. (Return to Top of List)
Limitation of Actions Involving Real Estate Appraisers and Appraisal Management Companies ̶ HB 213 and SB 398 by Rep. David Borrero (R-Miami-Dade) and Senator Ana Maria Rodriguez (R-Miami) is another bill aimed at reducing frivolous litigation. With the exception of allegations of fraud, it requires any action against a real estate appraiser or appraisal management company that occurred prior to July 1, 2023 must be filed by July 1, 2024. Subsequent actions would need to similarly be filed within one year after the alleged act is discovered or should have been discovered, but in any event brought no more than four years after services were rendered.
The House bill was heard on March 14 and an amendment was adopted that deleted a provision that would have lowered the statute of limitations to bring an action against an appraiser or appraiser management company from 4 years to 1 year. As amended, the bill only provides a 7 year cap on the statute of repose, so that an appraiser or appraiser management company cannot be sued for an appraisal past that period. The amendment also deleted an original provision specifying that all actions for damages or other relief brought against an appraiser or appraisal management company would be governed exclusively by this bill. HB 213 was heard in the House Regulatory Reform and Economic Development Subcommittee on March 22 and was passed unanimously and without debate. Borrero, in presenting the bill, noted that in many cases these suits come after an appraiser has retired and is effectively unable to provide evidence or substantiation for their appraisal. The House bill is now in its final stop in the House Judiciary Committee.
The Senate companion bill is scheduled to have its first hearing Wednesday (March 29) at noon in the Senate Judiciary Committee. (Return to Top of List)
Insurance (health) ̶ SB 312 and HB 1111 by Senator Jay Collins (R-Tampa) and by Rep. Webster Barnaby (R- Deland) revises restrictions on the use of genetic information for insurance purposes by life insurance and long-term care insurance companies. The bill specifies a restriction on and an authorized use of genetic information for insurance purposes by disability income carriers. It provides that certain restrictions against unfair discrimination or unlawful rebates do not include value-added products or services offered or provided by insurers or their agents if certain conditions are met. The Senate bill is still awaiting its first hearing in the Senate Banking and Insurance Committee.
The comparable House bill, which focuses on the value-added insurance products, had its first hearing in the House Insurance and Banking Subcommittee on March 21. It intends to clarify current law and remove red tape that bars life insurance providers the opportunity to offer value added insurance products, such as will preparation, grief counseling, and the safe return of a person’s remains if they passed away outside the US. Supporters contend these services could benefit consumers at no additional cost or even at a discount to their policy, while creating more competition in the marketplace – also benefiting Florida consumers. An amendment was adopted that removed two provisions of the bill regarding the use of genetic testing information by life insurance companies, long-term care insurance companies, and disability income carriers. Language was also removed regarding the description of value-added services that was redundant of, and potentially conflicted with, existing provisions in the Act regarding gifts given by insurance companies to its policyholders. The bill passed unanimously and is now in the House Healthcare Regulation Subcommittee. (Return to Top of List)
Telehealth Practice Standards ̶ HB 267 and SB 298 by Rep. Tom Fabricio (R-Miramar) and Senator Jim Boyd (R-Bradenton) revises the definition of the term “telehealth” to strike the current prohibition on audio-only telephone calls, allowing Medicaid to elect reimbursement. A similar bill reached an impasse in last year’s regular session over whether to strike the prohibition. The Senate bill had its first hearing on Feb. 20 before the Health Policy Committee, passing unanimously. Senators asked questions about the cost for the audio only telehealth bills, if the patient would pay a copay, and if the bill would allow elderly individuals, minorities, and those in urban communities with poor broadband access to communicate with their doctors. Senator Boyd responded to the questions about the bill by stating that the cost for audio only telehealth bills would likely be the same as in-person visits, and that patients would likely pay a copay. He also clarified that if the healthcare practitioner and the patient decide an in-person visit is warranted, they can follow up with that. He said this would help those in rural areas and communities where it is cost effective, convenient, and time saving. Senator Harrell also emphasized that this bill would help those in rural areas who do not have the capability for video conferencing. The Senate Bill was unanimously approved by the Senate Banking and Insurance Committee on March 15 and awaits a hearing in the Rules Committee, its last stop before going to the full Senate. The House bill is scheduled to have its first hearing tomorrow (March 28) at 2pm in the Healthcare Regulation Subcommittee. (Return to Top of List)
Physician Certifications for the Medical Use of Marijuana ̶ SB 344 & HB 387 by Sen. Jason Brodeur, (R-Sanford), and Rep. Spencer Roach, (R-North Fort Myers) would allow physicians to use telehealth to recertify medical-marijuana patients. Patients are required to receive in-person physical exams from physicians to get certified to use medical marijuana. Under current law, they also are required to be evaluated in person at least once every 30 weeks for recertification. This legislation would allow recertification to be done through telehealth, which generally involves using online technology to provide care remotely.
HB 837 passed unanimously in its final stop in the Health and Human Services Committee on March 17 and awaits consideration by the full House. The Senate bill is scheduled to have its first hearing today (March 27) at 3pm before the Senate Health Policy Committee. (Return to Top of List)
Civil Remedies for Unlawful Employment Practices ̶ HB 315 and SB 738 by Rep. Alex Andrade (R-Pensacola) and Senator Jason Brodeur (R-Lake Mary) amends Section 760.11 of the Florida Statutes to provide limits on a judgment for punitive and compensatory damages for claims brought under the recently enacted Critical Race Theory (CRT) reforms. The bill allows judgment for the total amount of punitive damages awarded to an aggrieved party claiming CRT discrimination to be at least $50,000 and up to $1 million. The judgment for the total amount of compensatory damages awarded to the aggrieved person for mental anguish and loss of dignity must be the amount of the aggrieved person’s actual damages or three times the amount of his or her highest annual salary, whichever is greater. The total amount of recovery against the state and its agencies and subdivisions may not exceed the sovereign immunity limitations in statute. The right to trial by jury is preserved in any such private right of action in which the aggrieved person is seeking compensatory or punitive damages, and any party may demand a trial by jury. The Commission on Human Relations’ determination of reasonable cause is not admissible into evidence in any civil proceeding, including any hearing or trial, except to establish for the court the right to maintain the private right of action. A civil action brought under this section must be commenced no later than one year after the date of determination of reasonable cause by the commission. The commencement of such action divests the commission of jurisdiction of the complaint, except that the commission may intervene in the civil action as a matter of right. The House bill is awaiting its first hearing in the House Civil Justice Subcommittee, while the Senate bill has been assigned to Judiciary, one of three committee stops. (Return to Top of List)
Litigation Financing Consumer Protection – SB 1612 and HB 1447 by Senator Clay Yarborough (R- Jacksonville) and Rep. Toby Overdorf (R-Stuart) would regulate litigation finance (also called litigation funding or legal financing), where a third party unrelated to the lawsuit provides capital to a plaintiff involved in litigation in return for a portion of any financial recovery from the lawsuit. The measure would require litigation financiers to register with the Department of State and file a surety bond along with other registration requirements. It would also prohibit certain practices and conduct and establish requirements for such financiers to assess specified interest, fees and charges. A similar effort in the 2021 session failed. SB 1612 has been referred to the Judiciary and Fiscal Policy Committees and its House companion has been referred to the Civil Justice Subcommittee and Judiciary Committee. (Return to Top of List)
- Allows the recovery of extra-contractual damages for common law bad faith;
- Provides that automobile insurance companies also writing homeowners insurance may not continue to write in Florida unless at least 5% of their total policy count in the state is homeowners insurance policies;
- Requires new domestic residential property insurance companies to have a surplus of at least $30 million;
- Requires the Florida Office of Insurance Regulation (OIR) to conduct market conduct exams after a hurricane under certain conditions;
- Requires the OIR to publish litigation data from 2021, 2022, and 2023 on its website;
- Requires Citizens Insurance to file litigation data with the Legislature each year;
- Removes the requirement that a Citizens Insurance policyholder must prove water damage was not caused by flood;
- Requires the Insurance Consumer Advocate to prepare an annual report analyzing rate filings involving a rate increase request and summarizing the grounds upon which the increase was approved;
- Provides that an admitted or surplus lines insurance company writing homeowners or commercial property insurance may not cancel or nonrenew a policy during a pending claim;
- Requires insurance companies to provide certain adjuster and engineer reports to the policyholder within 10 days after receipt and prohibits companies from imposing an additional premium because of a filed a claim, except under specific circumstances;
- Limits the ability of insurance companies to cancel coverage, require additional repairs, or increase the policy premium for the first contract year once a binder is issued;
- Provides that if a roof deductible is applied, no other deductible may be applied to any other loss caused by the same peril and requires 48 hours’ notice to a homeowner before an inspection of a homeowner’s residential property;
- Provides that repeated violations of the 90-day pay or deny rule is an unfair trade practice and that the claim filing deadlines in 627.70132 are tolled during the period of active duty for a policyholder in active military service; and
- Requires that a policyholder must agree to appraisal, that appraisal must be invoked within 30 days after presentation of a dispute, and that appraisal may not be invoked after the filing of a lawsuit.
SB 1340 has been referred to the Senate Banking and Insurance, Judiciary and Fiscal Policy Committees. HB 1431 is awaiting its first hearing in the House Insurance and Banking Subcommittee. (Return to Top of List)
Surplus Requirements for Residential Property Insurers – SB 1528 and HB 1431 by Senator Linda Stewart (D-Orlando) and Rep. Spencer Roach (R-North Fort Myers) increases surplus requirements from the current $15 million to $20 million for new property insurance companies entering the Florida market. Also, beginning July 1, 2030, and every 5 years after, the minimum surplus requirement must be increased by $5 million. SB 1528 has been assigned to the Senate Banking and Insurance and Rules Committees, and its companion HB 1431 is awaiting its first hearing in the House Insurance and Banking Subcommittee. (Return to Top of List)
Insurance Claims – SB 1662 and HB 1497 by Senator Erin Grall (R-Fort Pierce) and Representative Jeff Holcomb (R-Spring Hill) requires the Office of Insurance Regulation to consider the recovery of funds under specified provisions in reviewing an insurance company’s rates. The bill also requires insurance companies to report the recovered funds under specified provisions and requires that a policyholder’s payment of a deductible or copayment is not a condition of a carrier’s claim payment. SB 1662 has been referred to the Senate Insurance and Banking, Judiciary, and Rules Committees, and its companion HB 1497 has been referred to the House Insurance & Banking Subcommittee and Commerce Committee. (Return to Top of List)
Motor Vehicle Insurance ̶ HB 429 and SB 586 by Rep. Danny Alvarez (R-Brandon) and Senator Erin Grall (R-Fort Pierce) 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. The primary difference between PIP and mandatory BI is that under PIP, someone injured in an auto accident seek coverage first under their own PIP policy, whereas under mandatory BI, someone injured in an auto accident would seek recovery from a responsible third-party’s (other driver’s) BI coverage. The House bill is still awaiting its first hearing in the House Insurance and Banking Subcommittee. The Senate bill is still awaiting its first hearing in the Senate Banking and Insurance Committee. (Return to Top of List)
Commercial Vehicle Insurance ̶ SB 434 by Senator Tom Wright (R-Port Orange) revises liability insurance requirements for movers’ commercial motor vehicles and revises additional liability insurance requirements for commercial motor vehicles, providing an exception and a requirement for wreckers. The bill currently has no House companion and is awaiting its first hearing in the Senate Banking and Insurance Committee. (Return to Top of List)
Emergency Residential Property Insurance Assistance Trust Fund – SB 1526 and HB 1415 by Senator Tracie Davis (D-Jacksonville) and Rep. Angie Nixon (D-Jacksonville) establishes a trust fund within the Department of Financial Services (DFS) that will assist homeowners with annual income under $250,000 acquire homeowners insurance. SB 1526 has been referred to three committees, and its House companion is now in the Insurance and Banking Subcommittee. (Return to Top of List)
Home Repairs and Solicitation Sales ̶ HB 419 by Rep. John Temple (R-The Villages) requires unlicensed vendors to take certain actions within a specified timeframe after receiving initial payment. The bill provides conditions under which such vendors do not have just cause, provides criminal penalties and guidelines for prosecuting violations, and revises exemption from permitting requirements for certain solicitors, salespersons, and agents. The bill currently has no Senate companion and is awaiting its first hearing in the House Regulatory Reform & Economic Development Subcommittee. (Return to Top of List)
Flood Disclosures for Real Property Sales ̶ SB 484 & HB 325 by Senator Jennifer Bradley (R-Fleming Island) & Rep. Susan Valdes (D-Tampa) would require people selling real estate to provide information to buyers about flooding. Under the bill, sellers would be required to disclose information such as whether the property has sustained flood damage; whether it is located in a designated flood-hazard zone; whether sellers have received federal assistance for flood damage; and whether flood damage insurance claims have been filed. The Senate bill is awaiting its first hearing in the Senate Judiciary Committee, while the House bill awaits its first hearing in the House Regulatory Reform & Economic Development Subcommittee. (Return to Top of List)
Flood Zone Disclosures for Dwelling Units ̶ SB 716 and HB 1291 by Senator Linda Stewart (D-Orlando) by Rep. Bruce Antone (D-Orlando) requires landlords or persons authorized to enter into rental agreements on behalf of landlords to make written disclosures to tenants before the commencement of a tenancy regarding whether the dwelling unit is located within a flood zone established by the Federal Emergency Management Agency. This disclosure must include the risk designation for the flood zone and definition of the designation. The Senate bill is awaiting its first hearing before the Senate Judiciary Committee, while the House bill has been assigned to the Civil Justice Subcommittee, Regulatory Reform & Economic Development Subcommittee, and Judiciary Committee. (Return to Top of List)
Implementation of the Recommendations of the Blue-Green Algae Task Force ̶ HB 423 by Rep. Lindsay Cross (D-St. Petersburg) and SB 1538 by Senator Linda Stewart (D-Orlando) requires owners of certain onsite sewage treatment & disposal systems to have the systems inspected; requires DEP to administer the program; and requires estimated pollutant load reductions in basin management action plans to meet or exceed specified requirements. The bill revises requirements for allocation of such reductions, requires plans to provide & reevaluate certain mitigation strategies, and requires new or revised plans to list certain spatially focused projects. Finally, this legislation requires DEP to assess certain projects, and requires assessments to be included in plan updates. The House bill is awaiting its first hearing in the House Water Quality, Supply & Treatment Subcommittee while the Senate bill has been assigned to the Environment and Natural Resources Committee; Appropriations Committee on Agriculture, Environment, and General Government; and Fiscal Policy Committee. (Return to Top of List)
Access to Pharmacies and Prescription Drugs Under Insurance and Pharmacy Benefit Managers Policies ̶ HB 203 by and SB 420 by Rep. Karen Gonzalez Pittman (R-Hillsborough) and Senator Tom Wright (R-Port Orange) addresses much of the Governor’s proposal requiring OIR to examine PBMs to ascertain compliance with specified laws; requires PBMs to have standard contracts with pharmacies; prohibits PBMs from denying pharmacies & pharmacists the right to participate as contract providers; authorizes persons & entities to bring actions & injunctive relief; prohibits PBMs from engaging in acts against patients; and prohibits health insurers & PBMs from engaging in acts relating to covered clinician-administered drugs. The House bill is awaiting its first hearing in the House Healthcare Regulation Subcommittee. The Senate bill is awaiting its first hearing in the Senate Health Policy Committee.
Governor DeSantis released a legislative proposal of reforms January 12 on Pharmacy Benefit Managers (PBMs) that “will enhance transparency and reduce the influence of pharmacy middlemen, which will help consumers as well as our small pharmacies,” he said. This is a subject we have followed for years and picks up where the Florida Legislature left off in March 2022 with passage of HB 357 to increase oversight of PBMs, in part by giving the Office of Insurance Regulation (OIR) more authority over the companies. (Return to Top of List)
Health Insurance Cost Sharing ̶ SB 46 and HB 1063 by Senator Tom Wright (R-Volusia) and Rep. Lindsay Cross (D-St. Petersburg) also addresses Pharmacy Benefit Managers (PBMs). It requires specified individual health insurers and their PBMs to apply payments by or on behalf of insureds toward the total contributions of the insureds’ cost-sharing requirements. Similar requirements would be made on specified health insurance groups and in contracts with PBMs. The Senate bill is still awaiting its first hearing before the Senate Banking and Insurance Committee. The House bill is awaiting its first hearing before the Healthcare Regulation Subcommittee. (Return to Top of List)
LMA Newsletter of 3-27-23