Lawmakers are taking aim at trial lawyers. It could affect who you could sue, and how much you could win.

Some lawyers fear new laws could jeopardize the state’s opioid lawsuit.
New Florida Governor Ron DeSantis addresses members of the Florida Legislature during a luncheon on the fourth floor rotunda of the Capitol in January. [SCOTT KEELER  |   Times]
New Florida Governor Ron DeSantis addresses members of the Florida Legislature during a luncheon on the fourth floor rotunda of the Capitol in January. [SCOTT KEELER | Times]
Published March 1, 2019

TALLAHASSEE — Tampa lawyer William “Chip” Merlin has been dubbed the “master of disaster,” but there’s no mess like a bill blowing through the Legislature this year that would make it tougher to hold insurance companies accountable after a storm, he says.

“It’s truly a get-out-jail-free card that our Legislature is proposing,” Merlin said last week. “It does nothing for policyholders at all.”

The bill Merlin is concerned about is just one of more than a dozen the Legislature is taking up this year that could protect insurance companies and corporations from litigation.

Emboldened by new leadership in Tallahassee and a more conservative Supreme Court, lawmakers and the insurance industry are pushing an array of bills that would cap damages for reimbursements for pain and suffering in lawsuits, impose restrictions on product lawsuits in which the product was “unreasonably misused,” and force homeowners into lengthy appraisal processes before suing insurance companies.

Lawmakers and tort reform advocates say that cracking down on frivolous lawsuits will lower insurance rates for homeowners, doctors and businesses, an oft-used defense for their annual push to limit damages.

Last week, a House committee heard testimony from consumer advocates, academics and a lawyer for Publix, who said it’s 65 percent more expensive to settle claims in Florida than in any of the other states where the chain operates.

“Being the ‘judicial hellhole’ that we are has caused every person’s rates go up,” state Rep. Tom Leek, R-Ormond Beach, referring to the annual state rankings produced by a coalition of medical professional associations and other groups, such as chemical and drug industries, that aims to limit corporate liability. “I want to have balance. I want to eliminate the crazy things on each side.”

Leek, a lawyer for an insurance company, has filed several bills trying to rein in the number of lawsuits. He and others see Florida’s new Supreme Court as much more willing to take up the cause and reverse decades of past decisions.

The high court no longer has any justices appointed by Democratic governors after Gov. Ron DeSantis replaced three members in January.

Proposed changes include bringing back a cap on non-economic damages, also known as compensation for pain and suffering. In 2014, the Supreme Court, with the support of its more moderate justices, overturned a 2003 law that capped non-economic damages at $1 million when someone dies from medical malpractice.

The court found the law unconstitutional and, in its majority opinion, justices accused lawmakers of manufacturing the “alleged medical malpractice crisis,” noting that “the numbers of physicians in Florida were actually increasing, not decreasing.”

Leek wants to bring back a cap on damages at $1 million. (Juries now decide how much someone’s pain and suffering is worth.) He said the court over the decades has steadily made it easier for trial lawyers, and the effects have hurt business.

“What we’ve seen are well-intentioned laws whose interpretations have swung wildly out of balance,” Leek said.

But lawyers say this year’s legislation could dramatically — an unnecessarily — alter the legal landscape.

“The idea that we’re a type of litigation hellhole is just ridiculous,” said Leslie Kroeger, president-elect of the Florida Justice Association, made up of trial lawyers. “It has no sense of reality.”

She points to the state’s humming economy as evidence that lawyers are not preventing businesses from thriving in Florida. And she notes that Republicans have been appointing judges in the state for 20 straight years.

She fears that one of the bills, House Bill 17 and Senate Bill 1320, could jeopardize Florida’s massive lawsuit against the nation’s largest opioid manufacturers and distributors.

That bill includes the “Rational Use of a Product Act,” language taken from the American Legislative Exchange Council, a conservative nonprofit that writes bills for lawmakers around the country. The group has funded by a variety of big corporations over the years, including by some of the pharmaceutical companies Florida is suing.

The bill would allow judges and juries to dismiss lawsuits in which a product was used “for a purpose or in a manner that was not reasonably foreseeable by the seller,” or, “a reasonably prudent person would not have used the product in the same or similar manner or circumstances.”

The vague definitions raise questions about whether the thousands of people who died from opioid overdoses — the heart of the state’s case against the drug makers — would qualify as “rational use.”

“It struck me that, ‘Gosh, what could a pharmaceutical company do in an opioids case?’” Kroeger said. “What does ‘misuse’ mean? What if someone had a drink with an opioid they were prescribed? Is that misuse?”

Leek, the sponsor, said he doesn’t believe his limitation would apply in the opioid example, but is now considering clarifying the language to make sure it doesn’t.

“I want to make absolutely sure that we’re not interfering with that opioid legislation in any way,” Leek said.

A spokeswoman Attorney General Ashley Moody did not give an opinion on the bill, but said the office did not believe that House Speaker José Oliva meant to harm its case with House Bill 17.

“Our office will work with the House to ensure that any legislation does not impair our opioid litigation,” spokeswoman Lauren Schenone said. “We oppose any effort to undermine our work to hold the people who caused the opioid epidemic accountable.”

Lawyers also have concerns over Senate Bill 714 and House Bill 301, which, in their current forms, would alter how property owners could sue their insurance companies.

The bills would allow insurance companies to invoke the appraisal process after a homeowner files a notice of intent to sue, potentially delaying repairs. It would also prevent the homeowner from suing the insurer for “bad faith” if the homeowner prevails during the appraisal process.

Merlin, the Tampa disaster lawyer, said it creates an incentive for insurance companies to underpay and delay, with little consequences.

“Why would anybody propose legislation like that?” Merlin said. “It’s tough enough for people who have claims.”

The bill’s House sponsor, state Rep. David Santiago, R-Deltona, said that his intent was to prevent lawsuits, which end up being expensive for everyone.

But after hearing from lawyers and others, he agreed that his bill tilts too heavily in favor of insurance companies, and he will amend it.

“Their concerns were legitimate enough for me to amend the bill,” Santiago said.

The News Service of Florida contributed to this story.