[*] Sole Practitioner, Tallahassee, Florida. The author has served as a lobbyist and as Special Legislative Counsel to the Academy of Florida Trial Lawyers, Tallahassee, Florida, since 1987. B.S., Florida State University, 1970; J.D., Florida State University, 1975. The author formerly served as a staff attorney with the Florida House of Representatives from 1975 to 1986 and, in his capacity as staff counsel to the Florida House of Representatives Committee on Health Care and Insurance, participated in the development of the Comprehensive Medical Malpractice Reform Act of 1985 and the Tort Reform and Insurance Act of 1986. Return to text.

[1] See, e.g., Fla. HB 415 (1997), Fla. SB 1472 (1997) (protecting directors of funeral processions from liability resulting from accidents); Fla. SB 1052 (1997), Fla. HB 1949 (1997) (exempting public schools from liability for injuries arising out of public non-school use of the facilities); Fla. SB 1256 (1997), Fla. HB 855 (1997) (limiting the liability of private schools for injuries to students during non-school activities); Fla. SB 1778 (1997), Fla. HB 1691 (1997), Fla. HB 2117 (1997) (shielding car rental companies from vicarious liability); Fla. SB 2166 (1997) (limiting the medical malpractice liability of health care practitioners); Fla. SB 766 (1997), Fla. SB 1658 (1997), Fla. HB 1673 (1997) (limiting the medical malpractice liability of private teaching hospitals); Fla. SB 1264 (1997), Fla. HB 589 (1997) (limiting the liability of nursing homes for violation of their residents' rights). Return to text.

[2] See, e.g., Comprehensive Medical Malpractice Reform Act of 1985, ch. 85-175, 1985 Fla. Laws 1180 (amending and codified in scattered sections of FLA. STAT.); Tort Reform and Insurance Act of 1986, ch. 86-160, 1986 Fla. Laws 695 (amending and codified in scattered sections of FLA. STAT.); Florida Medical Incident Recovery Act of 1988, ch. 88-1, 1988 Fla. Laws 119 (amending and codified in scattered sections of FLA. STAT.). Return to text.

[3] See, e.g., Act effective July 5, 1989, ch. 89-289, 1989 Fla. Laws 1743 (amending and codified in scattered sections of FLA. STAT.); Act effective June 26, 1990, ch. 90-201, 1990 Fla. Laws 894 (amending and codified in scattered sections of FLA. STAT.); Act effective Jan. 24, 1991, ch. 91-1, 1991 Fla. Laws 21 (amending and codified in scattered sections of FLA. STAT.); Act effective Jan. 1, 1994, ch. 93-415, 1994 Fla. Laws 62 (amending and codified in scattered sections of FLA. STAT.). Return to text.

[4] See, e.g., Tort Reform and Insurance Act of 1986, ch. 86-160, 1986 Fla. Laws 695, 698 (amending and codified in scattered sections of FLA. STAT.). Return to text.

[5] See, e.g., Kenneth S. Abraham, The Causes of the Insurance Crisis, in NEW DIRECTIONS IN LIABILITY 54 (1988). Return to text.

[6] Ch. 85-175, 1985 Fla. Laws 1180. Return to text.

[7] Ch. 86-160, 1986 Fla. Laws 695. Return to text.

[8] One example of the insurance "crisis" of the time was the alleged inability of day care centers to obtain liability insurance. Return to text.

[9] Compare ch. 85-175, 1985 Fla. Laws 1180, with ch. 86-160, 1986 Fla. Laws 695. Return to text.

[10] See ch. 86-160, 1986 Fla. Laws 695. The 1986 Act virtually abolished the doctrine of joint and several liability for cases where the damages exceed $25,000. See FLA. STAT. § 768.81(5) (1997). Under the hybrid scheme included in the 1986 Act, the doctrine of joint and several liability is to be applied only to a defendant's liability for economic damages and only in circumstances where the defendant's fault equals or exceeds that of the plaintiff. See id. Defendants can never be jointly and severally liable for noneconomic damages; their liability is limited solely to their proportional share. See id. The Florida Supreme Court interpreted this provision to allow apportionment of "proportional shares" among persons who are not parties to the suit, such as unknown tortfeasors, settlors, or immune tortfeasors. See Fabre v. Marin, 623 So. 2d 1182, 1185 (Fla. 1993).

The 1986 Act also imposed a cap of $450,000 on noneconomic damages. See FLA. STAT. § 768.80 (1997). This cap was subsequently declared unconstitutional by the Florida Supreme Court. See Smith v. Department of Ins., 507 So. 2d 1080, 1083 (Fla. 1987). Moreover, the 1986 Act limited the amount of punitive damage awards. See FLA. STAT. § 768.72-73 (1997). Under the Act, punitive damages in negligence cases are presumed excessive if they exceeded three times the compensatory damages. See id. Furthermore, 60% of the punitive damage awards in such cases were to go to the state. See id. § 768.73 (1991). In 1992, the Legislature decreased the state's share to 35%. See Act effective April 8, 1992, ch. 92-85, § 2, 1992 Fla. Laws 821, 821-22 (amending FLA. STAT. § 768.73 (1991)). In 1995, the state share came under sunset review and was not reenacted, thus retiring this provision. See Act effective July 1, 1995, ch. 92-85, § 3, 1992 Fla. Laws 821, 822. The Legislature has considered reenactment of the state share but has not yet reinstated it. See Fla. SB 708 (1995); Fla. HB 2669 (1995); Fla. SB 822 (1996); Fla. HB 773 (1996).

The 1986 Act allowed courts to order structured payments of future economic losses exceeding $250,000 in negligence cases. See FLA. STAT. § 768.78 (1997). It also required an offset for payments to an injured person from collateral sources, requiring a reduction of an award to reflect payment by other sources of medical insurance, disability insurance, etc. See id. § 768.76. The 1986 provided statutory remittitur and additur provisions that list specific criteria the court must consider to reduce or increase awards. See id. § 768.74. Finally, the 1986 Act required all verdicts to be itemized, with a detailed break out of past and future economic and noneconomic damages. See id. § 768.77. Return to text.

[11] See ch. 86-160, 1986 Fla. Laws 695, 698. Return to text.

[12] See id. at 695. Return to text.

[13] See FLA. STAT. § 766.301 (1997) (listing an unusual codification of legislative findings and intent). Return to text.

[14] Ch. 88-1, 1988 Fla. Laws 119, 119 (amending and codified in scattered sections of FLA. STAT.). Return to text.

[15] See id. The 1988 Act granted greater immunity to health care practitioners when rendering emergency care. See FLA. STAT. § 768.78 (1997). Liability may only be imposed when the practitioner breaches a "reckless disregard" standard. See id. The 1988 Act also imposed strict requirements for presuit investigation and screening of medical malpractice cases. See id. §§ 766.203-.206. These procedures included extensive requirements designed to make it more difficult and expensive to file such lawsuits. See id. Coupled with severe penalties against attorneys who do not comply with the specific requirements, the intended effect of these provisions was to virtually eliminate any chance of frivolous or unfounded lawsuits being brought against doctors. See id.

A voluntary binding arbitration provision of medical malpractice claims was also included. See id. §§ 766.207-.212. Furthermore, the arbitration process was tied to caps not only on noneconomic damages and attorneys' fees, but also on economic damages. See id. For example, wage-loss damages were limited to 80% of lost wages and loss of earning capacity. See id.

Moreover, the 1988 Act created the Florida Birth-Related Neurological Injury Compensation Plan, a state "no-fault" program designed to provide limited compensation for infants who suffer a brain or spinal cord injury as a result of oxygen deprivation or mechanical injury at birth, and as a result are permanently and substantially mentally and physically impaired. See id. §§ 766.301-.316. The exclusive remedies under the program allow reimbursement for medical care and custodial expenses not otherwise covered by insurance or other government programs, and limit any award for emotional and psychological damages to $100,000. See id.

Finally, the Act completely abolished joint and several liability for teaching hospitals and the Board of Regents. See id. § 766.112. Return to text.

[16] The Legislature's attention did, however, turn to the workers' compensation area after a series of large insurance rate increases. This "workers' compensation insurance crisis" prompted the passage of four major revisions. See Act effective Oct. 1, 1989, ch. 89-289, 1989 Fla. Laws 1743 (amending and codified in scattered sections of FLA. STAT.); Act effective July 1, 1990, ch. 90-201, 1990 Fla. Laws 894 (amending and codified in scattered sections of FLA. STAT.); Act effective Jan. 24, 1991, ch. 91-1, 1991 Fla. Laws 21 (amending and codified in scattered sections of FLA. STAT.); Act effective Jan. 1, 1994, ch. 93-415, 1994 Fla. Laws 62 (amending and codified in scattered sections of FLA. STAT.). These changes, which have dramatically transformed the workers' compensation law, chapter 440, Florida Statutes, are beyond the scope of this Article. Return to text.

[17] See John Kennedy & Michael Griffen, Legislative Power Shifts to Orange, ORLANDO SENT., Nov. 7, 1996, at A1. Return to text.

[18] See Mary Ellen Klas, Delay Tactics, FLA. TREND, July 1997, at 84-85. Return to text.

[19] Peter Mitchell, In Legislative Races, Tort Reform Becomes (Finally) a Defining Issue, WALL ST. J., Aug. 21, 1996, at F1 (interviewing Bill Herrle of the National Federation of Independent Business). Return to text.

[20] See Bob Keefe, Talk of Tort Reform Heats Up, ST. PETE. TIMES, Feb. 23, 1997, at D5. Major participants in TRUE include the Florida Chamber of Commerce, Associated Industries of Florida, the National Federation of Independent Business, the Florida Retail Federation, the Florida Medical Association, and the Florida Institute of Certified Public Accountants. See Memorandum from Tort Reform United Effort to Governor Lawton Chiles (Sept. 10 1997) (discussing civil justice reform proposals) (on file with author). Return to text.

[21] FLA. CHAMBER OF COM. & TRUE, THEY JUST DON'T GET IT! (1997) (on file with author). Return to text.

[22] Major participants included the Academy of Florida Trial Lawyers, the Coalition for Family Safety, the Coalition to Protect Florida Elders, the AARP, the Florida Consumer Action Network, the Florida State Council of Senior Citizens, and numerous others. See FLA. H. R. COMM. ON FIN. SERVS., APPEARANCE RECORD, PCB FS 97-06 (Apr. 16, 1997) (on file with comm.). Return to text.

[23] Repub., Windermere. Senate Bill 1774 was unveiled at a press conference on March 6, 1997, at which Senator Ostalkiewicz and Representative Bob Brooks, Repub., Winter Park, announced their intention to file the bill. Ultimately, however, Representative Brooks never filed the companion to Senate Bill 1774 in the House. See FLA. LEGIS., FINAL LEGISLATIVE BILL INFORMATION, 1997 REGULAR SESSION, HISTORY OF SENATE BILLS at 138, SB 1774. Return to text.

[24] See Fla. SB 1774 (1997). The bill would have allowed the introduction of evidence of prior similar lawsuits brought by the plaintiff. See id. § 1. It would have allowed the trier of fact to "consider the plaintiff's involvement . . . in determining liability." Id. How this ambiguous directive was expected to be implemented is unclear.

Further, the bill would have shortened the statute of limitations from four to two years for tort actions based on negligence or intentional acts, including products liability. See id. § 2. It also would have applied this limit to written or unwritten contract actions. See id. Any suit would have been required to be brought within two years from the time the incident giving rise to the action occurred, or from the time the facts giving rise to action were discovered or should have been discovered with the exercise of due diligence. See id. The existing two-year medical malpractice statute of limitations would not have been affected. See id.

Moreover, the bill would have reinstated and increased the state share of punitive damage awards to 100%, payable to the State's Public Education Capital Outlay and Debt Service Trust Fund for school construction. See id. § 3. Calculation of attorneys' fees based on any part of the punitive damage award would have been prohibited. See id.

The bill would have capped noneconomic damages at $250,000, using a broad definition of noneconomic damages. See id. § 5. This was included despite the fact that the Florida Supreme Court had already held such caps to be in violation of article I, section 21 of the Florida Constitution. See Smith v. Department of Ins., 507 So. 2d 1080, 1087-1089 (Fla. 1987). Additionally, the bill would have required that "all civil suits for monetary damages" be referred for nonbinding arbitration. Fla. SB 1774, § 6 (1997). Under the proposed scheme, if the arbitrator awarded damages to the plaintiff and the plaintiff proceeded with the lawsuit, then the plaintiff would have to pay the defendant's legal fees and costs if the plaintiff recovered less than the arbitrator's award. See id. Conversely, if the plaintiff recovered damages equal to or greater than the arbitration award, then the defendant would have to pay the plaintiff's legal fees and costs. See id.

Finally, the bill provided that Florida's comparative fault law, codified at section 768.81, Florida Statutes, would apply to "all civil actions," not just to specified negligence cases. Id. § 7. This would have broadened its application by eliminating the current exceptions for intentional torts, pollution cases, and causes of action for which the application of joint and several liability is specifically provided by chapters 403 (Environmental Protection), 498 (Land Sales Practices), 517 (Securities Transactions), 542 (Combinations Restricting Trade or Commerce), and 895 (Racketeering and Illegal Debts). See id. This section of the bill would have also shifted Florida from a "pure" comparative fault approach to a modified approach in which recovery by a plaintiff would be barred in any situation where the claimant was more than 50% at fault for the injury. See id. Finally, the bill would have eliminated all the remaining vestiges of the doctrine of joint and several liability, including in cases where joint and several liability is specifically required by other sections of the Florida Statutes. See id. Return to text.

[25] See FLA. LEGIS., FINAL LEGISLATIVE BILL INFORMATION, 1997 REGULAR SESSION, HISTORY OF SENATE BILLS at 138, SB 1774. Return to text.

[26] See id. Return to text.

[27] Repub., Bradenton. See Fla. SB 2148 (1997). No House companion was ever filed. Return to text.

[28] See id. The bill would have imposed a 12-year statute of repose in products liability cases with the statute running from the date of delivery of the product to its original purchaser. See id. § 1. Moreover, to claim punitive damages, a plaintiff would be required to prove by clear and convincing evidence a reasonable basis for the damages at the time a claim for punitive damages is filed. See id. § 2. Certiorari review would be immediately available with regard to both the trial court's procedure and the sufficiency of the evidence related to the basis for the punitive damages. See id. No punitive damages would be allowed if the compensatory damages sought were only for economic losses, including those resulting from fraud in the inducement. See id. The bill would have required that the question of liability and the amount of punitive damages be tried separately from those relating to compensatory damages. See id. It would have prohibited the introduction of evidence relating to punitive damages prior to a determination by the trier of fact that the defendant was liable for compensatory damages. See id. It would have required the same trier of fact to try both compensatory and punitive damage issues. See id.

Additionally, the bill would have prohibited awards of punitive damages based solely on vicarious liability. See id. § 3. Damages could be awarded only against a person who "knowingly participated in the conduct constituting the aggravating factor providing the basis for punitive damages." Id. Officers, directors, or managers of a corporation would similarly be required to have knowingly participated in or condoned the behavior before they could be held liable. See id. Also, the bill would have reinstated the state share of punitive damage awards and increased the state share to 75%, prior to deduction of attorneys' fees, but after the deduction of other costs of litigation. See id. The proceeds would go to the Public Medical Assistance Trust Fund, subject to a 40/35 split between that fund and a proposed court system funding trust, the Court Article V Trust Fund, if and when that trust fund came into being. See id.

The bill would have prohibited, except under certain circumstances, a punitive damage award against a defendant who established before trial that punitive damages had previously been awarded against the defendant in any action in state or federal court alleging harm from the same act or course of conduct. See id. It would have allowed a subsequent award of punitive damages based on the same act or course of conduct only if the court determined that the claimant could offer new and substantial evidence of previously discovered, additional wrongdoing on the part of the defendant. See id. Punitive damages awarded under such circumstances were to be reduced by the sum of all punitive damages previously awarded against the defendant involving the same act or course of conduct. See id. Provisions in the current law relating to proration of the state share of settlements, proration of partial collections of punitive damages, calculation of attorneys' fees based on punitive damages, and the prohibition against informing the jury of the provisions of the section would all have been repealed. See id.

The bill would have extended the current statutory itemized verdict provisions in two ways. Compare id. § 4, with FLA. STAT. § 768.77 (1997). First, it would have applied the itemized verdict provisions to all civil actions, instead of just to negligence actions. See Fla. SB 2148 (1997). Second, it would have applied structured judgment provisions to awards of noneconomic damages in cases in which the trier of fact makes an award of future noneconomic losses in excess of $100,000, rather than just to economic damages in cases involving economic losses in excess of $250,000. See id. § 5. Further, it would have provided for the structuring of all judgments of economic and noneconomic damages at the request of either party, and eliminated the ability of the court to deny the request where manifest injustice would result to any party. See id. In the situation where a claimant dies prior to the termination of a structured award of noneconomic damages, the bill would terminate the liability of the defendant for any future payments. See id. The bill also would have imposed similar proration and periodic payment requirements on attorneys' fees that are based on a structured award. See id. Termination of the defendant's liability for payment of remaining attorneys' fees would occur upon the death of the plaintiff, even though these fees may in part be based upon economic damages that would still be payable in a lump sum to the estate of the plaintiff. See id.

Finally, the bill would have repealed section 768.81(5), Florida Statutes, which provides for the application of joint and several liability to cases under $25,000. See id. § 6. Return to text.

[29] See FLA. LEGIS., FINAL LEGISLATIVE BILL INFORMATION, 1997 REGULAR SESSION, HISTORY OF SENATE BILLS, at 160, SB 2148. Return to text.

[30] Lisa Gibbs, Tort Reform's First Salvos, BROWARD DAILY BUS. REV., Mar. 31, 1997, at A1. Return to text.

[31] See Klas, supra note 18, at 85-86. Return to text.

[32] See Fla. HB 2117 (1997). Return to text.

[33] Repub., Clearwater. Return to text.

[34] Although the Legislature is often criticized for acting slowly, the steps by which this bill came to be introduced in a race against the legislative clock is a revealing example of how issues can be "fast-tracked," albeit at the cost of short cuts and outright irregularities in the process. April 25 was the last day for consideration of bills on second reading. See FLA. H.R. RULE 137 (1996). The bill had to make it to the floor by that date to be considered for a final vote during the last week of the session. See id. The first version of the bill was unveiled on April 10, 1997, as the House Financial Services Committee Proposed Committee Bill 6. See Fla. H.R. Comm. on Fin. Servs., PCB 97-06 (draft of Apr. 10. 1997). Interestingly, this committee has jurisdiction over insurance and banking matters, not the civil justice system; the civil justice system falls under the jurisdiction of the House Civil Justice and Claims Committee. On April 15, the Proposed Committee Bill was noticed for consideration by the Financial Services Committee on April 16. See Fla. H.R. Comm. on Fin. Servs., Notice of Committee Meeting (Apr. 15, 1997). Three hours before the hearing, a proposed amendment was revealed that would strike everything after the enacting clause and insert all new language. See Fla. H.R. Comm. on Fin. Servs., PCB 97-06-1bb-bi (draft of Apr. 15, 1997). At the hearing on April 16, Chairman Safley took approximately three hours of public testimony, but then allowed committee members only one minute per side to debate the bill. See Fla. H.R. Comm. on Fin. Servs., tape recording of proceedings (Apr. 16, 1997) (on file with comm.) [hereinafter Financial Services Hearing]. The amendment was adopted and the bill was voted favorably. See Fla. H.R. Comm. on Fin. Servs., Committee Bill Action Worksheet PCB FS 97-06 (Apr. 16, 1997) (on file with comm.). Representative John Rayson, Repub., Pompano Beach, made a motion to reconsider the vote by which the bill passed and leave the matter pending, which would require the bill to be carried over to another committee meeting pursuant to Florida House Rule 60. See Financial Services Hearing, supra. Immediately, another member made a Motion to Rise. Chairman Safley ruled that the motion to rise superseded the motion to reconsider and, thus, the motion to reconsider was not valid. See id. Representative Rayson protested Chairman Safley's ruling and appealed to the Speaker, who, upon a review of the meeting tapes, agreed that Rayson's motion to reconsider was valid. As a result, the bill was returned to the Financial Services Committee. On April 24, the House Financial Services met at a specially called meeting during the noon break in the House Floor Session to take up the motion to reconsider. See FLA. H. JOUR. 703 (Reg. Sess. 1997) (motion to allow special leave to meet); Fla. H.R. Comm. on Fin. Servs., Notice of Committee Meeting (filed Apr. 23, 1997). Representative Earl Ziebarth, Repub., Deland, asked to debate the Motion to Reconsider, but Chairman Safley refused, ruling that the motion was non-debatable (contrary to Florida House Rule 145). See Financial Services Hearing, supra. A vote was taken, the motion to reconsider failed, and the bill was reported out favorably. See Fla. H.R. Comm. on Fin. Servs., Committee Bill Action Worksheet PCB FS 97-06 (Apr. 24, 1997) (on file with comm.). Later the same day, the bill was introduced as House Bill 2117 and read the first time by publication in the House Journal. See FLA. H.R. JOUR. 876 (Reg. Sess. 1997). Subsequently, the bill was not referred to the Civil Justice and Claims Committee (the committee with substantive jurisdiction over the areas addressed by the bill) as would have been the normal practice for a bill affecting this area of the law, or to the House Economic Impact Council as required by Florida House Rule 46(a). See FLA. LEGIS., FINAL LEGISLATIVE BILL INFORMATION, 1997 REGULAR SESSION, HISTORY OF HOUSE BILLS at 332-33, HB 2117. Interestingly, as one of the last items of business during the 1997 Regular Session, the Speaker ruled that the motion to reconsider was debatable, contrary to the Financial Services Committee Chairman Safley's Ruling. See FLA. H. JOUR. 2189 (Reg. Sess. 1997). Return to text.

[35] Fla. HB 2117, Preamble (1997). Return to text.

[36] See id. The following discussion refers to the bill as passed with the "strike everything" amendment, not the provisions of the original Proposed Committee Bill 6. Return to text.

[37] See Fla. HB 2117, § 2 (1997). Current Florida law provides for a four-year statute of limitation and no statute of repose in products liability cases. See FLA. STAT. § 95.11 (1997). Return to text.

[38] See Fla. HB 2117, § 2 (1997). Return to text.

[39] See id. § 3. This provision would change the long-standing Florida law applicable to owners of dangerous devices, including motor vehicles. Under this principle, where the "agency or appliance . . . was 'dangerous in itself,' or liable to inflict serious injury to others, when operated in the customary method of use . . . public safety demands that [the owner] shall be answerable for the exercise of his servant's judgment." Southern Cotton Oil Co. v. Anderson, 80 Fla. 725, 86 So. 629, 634 (1920) (quoting Barmore v. Vicksburg, S & P Ry. Co., 38 So. 210 (Miss. 1905)). Return to text.

[40] See Fla. HB 2117, § 3 (1997). The curious use of insurance limits here betrays the real purpose of this provision—to immunize rental car companies from vicarious liability under the dangerous instrumentality doctrine. A similar statutory scheme was adopted for long-term car leasing situations in 1986. See FLA. STAT. § 324.021(9)(b) (1997). Return to text.

[41] See Fla. HB 2117, § 3 (1997). Return to text.

[42] See id. Return to text.

[43] See id. § 4. Return to text.

[44] See id. In essence, this would impose a 51% modified comparative fault scheme instead of pure comparative fault when drugs or alcohol are involved; i.e., if the impaired plaintiff is 51% or more at fault for the injury, he or she receives no award. Return to text.

[45] See id. § 4. This would similarly impose a modification to the current rule of pure comparative fault in the form of a "more than" rule; that is, the injured plaintiff could recover only when the defendant's fault was equal to or more than that of the plaintiff's. Note that the bill produces an absurd result in the situation where one substance-impaired person injures another substance-impaired person. Return to text.

[46] See id. Return to text.

[47] See id. Return to text.

[48] See id. § 5. This appears to be intended to abrogate the doctrine of respondeat superior to immunize an employer in situations where an employee commits an intentional tort against a third party. Groups representing senior citizen interests noted that this provision would shield a nursing home from liability for any act of abuse committed by an attendant against a resident. Return to text.

[49] See id. § 6. Return to text.

[50] Compare id. with FLA. STAT. § 768.72 (1997). Return to text.

[51] See Fla. HB 2117, § 6 (1997). Return to text.

[52] See id. Return to text.

[53] Id. Thus, not only would the required burden of proof be increased, but conduct must be more heinous before punitive damages could be awarded. Current law allows punitive damages for "willful, wanton, or gross misconduct." FLA. STAT. § 768.73(1)(a) (1997). Return to text.

[54] See Fla. HB 2117, § 6 (1997). Return to text.

[55] See id. Return to text.

[56] See id. § 7. Return to text.

[57] Under current law, the limit applies to civil actions based on "negligence, strict liability, products liability, misconduct in commercial transactions, professional liability, or breach of warranty." FLA. STAT. § 768.73(1)(a) (1997). As drafted, the proposal appears intended to eliminate the "three-times" limit for contract actions, and would thus enlarge the availability of punitive damages in the area of misconduct in commercial transactions. See Fla. HB 2117, § 7 (1997). Return to text.

[58] See Fla. HB 2117, § 7 (1997). Return to text.

[59] Id. Return to text.

[60] See id.; cf., W.R. Grace & Co.—Conn. v. Waters, 638 So. 2d 502, 506 (Fla. 1994) (holding that a defendant can be subject to repeated awards of punitive damages based on the same conduct). Return to text.

[61] Fla. HB 2117, § 7 (1997). Return to text.

[62] Id. Return to text.

[63] Id. Return to text.

[64] See id. Return to text.

[65] See id. § 8. Return to text.

[66] See id. § 9. This concept originally surfaced in separate bills in both the House and the Senate. See HB 557 (1997) (Rep. Merchant); SB 474 (1997) (Sen. Gutman); SB 764 (1997) (Sen. Crist); and SB 1208 (1997) (Sen. Lee). Senate Bill 764 and Senate Bill 474 were combined by the Senate Judiciary into a committee substitute that eventually passed both houses and was signed into law by the Governor. See Act effective May 23, 1997, ch. 97-80, 1997 Fla. Laws 477, 477 (codified at FLA. STAT. § 772.12 (1997)). This provision was probably viewed as one that would be politically damaging to vote against, and thus was added to House Bill 2117 to increase that bill's chances of passage. Return to text.

[67] See HB 2117, § 9 (1997). Return to text.

[68] Repub., Orlando. Return to text.

[69] See Lucy Morgan, Lawsuit Limiting Bill Lives, For Now, ST. PETE. TIMES, Apr. 25, 1997, at E1. Return to text.

[70] Editorial, A Too-Rushed Reform, MIAMI HERALD, Apr. 29, 1997, at A6. Return to text.

[71] Martin Dyckman, For Most Residents, "FAIR" Might Not Be, ST. PETE. TIMES, Apr. 20, 1997, at D3. Return to text.

[72] See FLA. H.R. RULE 96 (1996-98). Return to text.

[73] Furthermore, it cannot be assumed that House Bill 2117 includes all of the items on the tort reform agenda. Conspicuously absent, for example, is a medical malpractice component. See HB 2117 (1997). Return to text.

[74] Repub., Ocoee. Return to text.

[75] See Klas, supra note 18, at 85-86. Return to text.

[76] See id. Return to text.

[77] See id. Return to text.

[78] See Letter from Representative Tom Warner, Chairman, Florida House of Representatives Committee on Civil Justice & Claims, to Representative Dan Webster, Speaker, Florida House of Representatives (June 24, 1997) (on file with comm.). Return to text.

[79] The main topics covered during the course of the eight tentatively scheduled meetings were: The Tort System; Liability and Fault; Defenses and Limitations; Compensation and Damages; Civil Litigation; Frivolous Suits or Defenses; and Streamlining and Alternative Dispute Resolution. See id. Return to text.

[80] See De'Ann Weimer, Lawmaker Offers Plan to Curb Suits, Big Injury Awards, PALM BCH. POST, Mar. 17, 1997, at D1. Return to text.

[81] See Klas, supra note 18, at 86. Return to text.

[82] OFFICE OF THE FLA. S. PRES., PRESIDENT TONI JENNINGS ANNOUNCES THE CREATION OF THE SELECT COMMITTEE ON LITIGATION REFORM 2 (1997) (on file with author). Return to text.

[83] Id. at 3. Return to text.

[84] Id. at 2. Return to text.

[85] See id. at 3 (including joint and several liability, statutes of limitations, non-economic damages, evidence, vicarious liability, comparative fault, punitive damages, attorneys' fees, and non-binding arbitration). Return to text.

[86] See id. at 2. Return to text.

[87] See id. at 4. Return to text.

[88] Klas, supra note 18, at 86. Return to text.

[89] See KENNETH D. KRANZ, ANALYSIS OF FLORIDA CASE FILINGS: 1986-1996 1 (1997) (on file with author) (consisting of information from ALEAN MILLER, OFFICE OF THE STATE COURTS ADMINISTRATOR, FLORIDA SUPREME COURT SUMMARY REPORTING SYSTEM REPORTS (1986-1996)). Return to text.

[90] See id. at 2. Civil cases include domestic relations, probate, negligence, condominium, contractual indebtedness, mortgage foreclosure, eminent domain, and other miscellaneous civil matters. For purposes of this analysis, cases other than civil cases include criminal cases and juvenile cases (which include delinquency and dependency cases). Data was not available from the Office of the State Courts Administrator for criminal case filings. See Letter from Alean Miller, Court Statistic Consultant, Office of the State Courts Administrator, to Lynn McCartney, Assistant Director for Legislative Affairs of the Academy of Florida Trial Lawyers (Sept. 5, 1997) (on file with author). Criminal case data used for 1994 through 1996 was obtained from the Justice Council, Florida House of Representatives. See HOUSE JUSTICE COUNCIL, 1997 POST-SESSION RESOURCE BOOK 53-56 (1997). Return to text.

[91] See KRANZ, supra note 89, at 2. Return to text.

[92] See id. Return to text.

[93] See id. Return to text.

[94] See ALEAN MILLER, OFF. OF THE ST. CTS. ADMINISTRATOR, FLORIDA SUPREME COURT SUMMARY REPORTING SYSTEM REPORT: STATEWIDE SUMMARY 1/96 THROUGH 12/96 § II-B (1997). Return to text.

[95] See id. Negligence cases include professional malpractice, products liability, auto negligence, and other negligence. Return to text.

[96] See KRANZ, supra note 89, at 2. Return to text.

[97] See id. Return to text.

[98] See id. Return to text.

[99] See id. at 4. Return to text.

[100] See id. at 1. Return to text.

[101] See id. Return to text.

[102] See id. at 4. Return to text.

[103] See STEVEN K. SMITH ET AL., U.S. DEP'T OF JUST., BUREAU OF JUSTICE STATISTICS SPECIAL REPORT: CIVIL JUSTICE SURVEY OF STATE COURTS, 1992; TORT CASES IN LARGE COUNTIES 2 (1995). Return to text.

[104] See COURT STAT. PROJECT, EXAMINING THE WORK OF STATE COURTS, 1994: A NATIONAL PERSPECTIVE FROM THE COURT STATISTICS PROJECT i (1995) (a joint project of the Conference of State Court Administrators, the State Justice Institute, the Bureau of Justice Statistics, and the National Center for State Courts' Court Statistics Project). Return to text.

[105] BRIAN J. OSTROM & NEAL B. KAUDER, EXAMINING THE WORK OF STATE COURTS, 1995: A NATIONAL PERSPECTIVE FROM THE COURT STATISTICS PROJECT 26 (1996). Return to text.

[106] See FLA. STAT. § 768.73(1)(a) (1997). Negligence cases include civil actions based on negligence, strict liability, products liability, misconduct in commercial transactions, professional liability, or breach of warranty. See id. Return to text.

[107] See HOUSE JUSTICE COUNCIL, supra note 90, at 58. Records were kept as a result of the requirement that the state take a share of all punitive damage awards during this period of time. See FLA. STAT. § 768.73 (1995). The state share was 60% from July 1, 1986, to April 7, 1992, and 35% from April 8, 1992 to July 1, 1995. The Florida Standard Jury Instructions offer some insight into the types of conduct that warrant awards of punitive damages:

(1) the conduct causing . . . [the injury] to the claimant was so gross and flagrant as to show a reckless disregard of human life or of the safety of the person exposed to the effects of such conduct; or (2) the conduct showed such an entire lack of care that the defendant must have been consciously indifferent to the consequences; or (3) the conduct showed such an entire lack of care that the defendant must have wantonly or recklessly disregarded the safety and welfare of the public; or (4) the conduct showed such reckless indifference to the rights of others as to be equivalent to an intentional violation of those rights.
Florida Standard Jury Instruction in Civil Cases § PD(a)(2) (1997). Return to text.

[108] See HOUSE JUSTICE COUNCIL, supra note 90, at 58. Of these 350,000 tort cases, 305,106 involved negligence. See KRANZ, supra note 89, at 1. Return to text.

[109] See HOUSE JUSTICE COUNCIL, supra note 90, at 58. Return to text.

[110] See id. Return to text.

[111] See id. (finding that the state collected $8,771,006 in punitive damage awards over nine years). Return to text.

[112] This calculation of $1.9 million is a very rough calculation because it necessarily assumes an even distribution of awards over time. The state share is based upon 60% of awards for the first six years and 35% for the last three years. At this point, the actual distribution of awards over time is not definitively known. Return to text.

[113] See HOUSE JUSTICE COUNCIL, supra note 90, at 58 (based on total reported awards of $129.9 million for the nine-year period). Return to text.

[114] See id. Return to text.

[115] See CAROL J. DEFRANCES ET AL., U.S. DEP'T OF JUST., BUREAU OF JUSTICE STATISTICS SPECIAL REPORT: CIVIL JUSTICE SURVEY OF STATE COURTS, 1992; CIVIL JURY CASES AND VERDICTS IN LARGE COUNTIES 8, tbl. 8 (1995). Return to text.

[116] See id. (finding that of the total amount of $267,879,000 awarded in punitive damages for all jury cases, only $91,477,000 were awarded in tort cases). Return to text.

[117] See id. Return to text.

[118] See RALPH NADAR & WESLEY J. SMITH, NO CONTEST: CORPORATE LAWYERS AND THE PERVERSION OF JUSTICE IN AMERICA 281 (1996) (citing a study by Professors Michael Rustad and Thomas Koenig). The data was updated subsequently and presented in testimony to Congress in May 1995. See id. n.74. Return to text.

[119] See id. at 281. Return to text.

[120] See id. at 280-81. Return to text.

[121] See Rand Institute for Civil Justice, Punitive Damage Awards in Financial Injury Jury Verdicts (visited Sept. 16, 1997) . Return to text.

[122] See id. Return to text.

[123] See id. Return to text.

[124] See id. Return to text.

[125] See, e.g., MASON DIXON & HANK FISHKIND, NATIONAL FEDERATION OF INDEPENDENT BUSINESS SURVEY OF FLORIDA BUSINESS (1997) (presented at the FAIR Press Conference on April 15, 1997). The survey polled Florida small business owners and executives about their views on the tort system after they had been bombarded with TRUE propaganda for months. Return to text.

[126] FLORIDA DEP'T OF LAB. AND EMPLOY. SEC. & BUREAU OF LAB. MKT. INFO., FLORIDA LABOR MARKET TRENDS 3 (1997). Return to text.

[127] Gregg Fields, Booming Economy Buoys Clinton's Florida Campaign, MIAMI HERALD, Sept. 16, 1996, at A1. Return to text.

[128] See Top 10 Things to Know about Florida, TOPRANK, 1997, at 170. Return to text.

[129] Jacquline Bueno, All I Want for Christmas is a Business in Florida, WALL ST. J., Dec. 4, 1996, at F2. Return to text.

[130] See U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES: 1996 543 tbl. 844 (1996). Return to text.

[131] See id. Return to text.

[132] See KENNETH D. KRANZ, ANALYSIS OF GROSS STATE PRODUCTION, JOB GROWTH, PAYROLL, AND POPULATION (1997) (based on information obtained from the U.S. Dep't of Com., Bureau of Economic Analysis) (on file with author). Return to text.

[133] See id. Return to text.

[134] See id. Return to text.

[135] See id. Return to text.

[136] See id. Return to text.

[137] See id. Return to text.

[138] See THOMAS J. CAMPBELL ET AL., LIABILITY REFORMS' CAUSES AND ECONOMIC IMPACTS (1994). The study also attempts to relate differing state characteristics to the probability that a state will adopt liability reforms. This aspect of the study will not be discussed here. Return to text.

[139] See id. at 38-39. Return to text.

[140] Id. at 39. Return to text.

[141] Id. at 11. Return to text.

[142] See FLA. STAT. § 768.73(1)(a) (1997) (limiting punitive damages in certain cases); id. § 768.74 (providing for a remittitur and additur); id. § 768.77 (providing for itemized verdicts); id. § 768.81 (comparative fault). Return to text.

[143] See Smith v. Department of Ins., 507 So. 2d 1080, 1083 (Fla. 1987). Return to text.

[144] See id. § 768.81. Return to text.

[145] See Keefe, supra note 20, at D5 (interviewing Scott Carruthers of the Academy of Florida Trial Lawyers). Return to text.

[146] See id. Return to text.

[147] See id. Return to text.

[148] See id. Return to text.

[149] ACADEMY OF FLORIDA TRIAL LAWYERS, IN THE PURSUIT OF TRUTH i (1997) (on file with author). Return to text.

[150] Id. Return to text.