Home Articles Commentary: Florida’s New Tort Law Adds Insult to the Injured

Commentary: Florida’s New Tort Law Adds Insult to the Injured


Within the past year, rules surrounding tort law were changed in Florida. These changes benefit insurance companies and negligent parties more than they do victims.

With the passing of the Florida Tort Reform Act, also referred to as House Bill 837, the Florida Legislature created protections for insurance companies regarding bad faith claims and slashed the statute of limitations for injury claims in half.

Now, victims have only two years to sue for injury. Changes were also made regarding contributory fault, which might impact recovery for certain victims.

Other changes include alterations to how negligent security claims and attorney’s fees are handled. In light of these recent changes and amendments to long-standing laws, it is increasingly important for injury victims to consult an experienced lawyer when seeking compensation.

Recent Changes to Florida Tort Law for Injury Victims

In March of 2023, the Florida Legislature passed HB 837, which massively altered its laws surrounding personal injury and bad faith claims, making it more challenging for victims to hold negligent parties and insurance companies accountable in certain situations. For victims, it is important to thoroughly understand these changes and how they might impact compensation claims moving forward.

Contributory Negligence

Previously, Florida was more closely aligned with the definition of so-called “pure” comparative negligence, enabling victims to recover compensation for a defendant’s share of fault even if the victim was largely at fault for their own injuries. The Florida Legislature changed the state’s stance on comparative fault and enacted a “modified” comparative fault rule.

According to the new rules, victims cannot recover any compensation if they are more than 50% at fault for their injuries. This provides a greater incentive for negligent parties to blame the victim for their injuries, as doing so could prevent them from paying any damages.

Contributory and comparative negligence most often impacts victims of motor vehicle accidents, making consulting a Fort Lauderdale car accident lawyer all the more important after a crash following these legal changes.

Because of this recent change, it is even more crucial that victims be careful of how they speak following an accident. Do not accept fault to any degree when communicating with an insurance company or negligent party. Doing so could cause you to lose your case entirely.

Bad Faith Claims

Insurance companies rarely want to pay injured parties what they are due and might act in bad faith to deny claims or derail the claims process. When insurance companies act in bad faith, claimants can typically file an action to recover compensation.

The recent changes passed by the Florida Legislature include a 90-day grace period for insurance companies regarding possible bad faith claims. The grace period for insurance companies in these instances was previously 60 days.

This means that, upon receiving notice of a possible claim, an insurance company can pay damages or correct their behavior to become immune to a bad faith claim, and they have more time to do so now.

Furthermore, negligence alone is no longer sufficient to prove bad faith in Florida. So, if an insurance adjuster failed to respond to your communications or denied your claim due to negligence, that is not reason enough for you to succeed on a bad faith claim.

And, if the victim also acted with bad faith during the claims process, the judge in the case can lower the damages awarded against the insurance company.

In cases involving multiple claimants, insurance companies now have additional protections. For example, the new law offers immunity to insurance companies beyond policy limits if they adhere to new procedures outlined in the law. This again creates impediments for injured victims seeking compensation in Florida.

Statute of Limitations

The statute of limitations for negligence claims was also recently amended in Florida. Now, victims have just two years to file a lawsuit. Previously, the filing deadline was four years from the date of an accident.

This recent change cut the statute of limitations in half for any cause of action that occurred on or after March 24, 2023. While two years might still appear a sufficient time to file a lawsuit, victims might be unaware of the alteration to the filing deadline for personal injury claims, leaving them unable to bring a claim if the new filing deadline has passed.

If you have already filed your claim and it has been more than two years since an accident occurred, your case should be unaffected. Still, the amending of Florida’s statute of limitations may considerably impact victims and their ability to hold a negligent party accountable.

Negligent Security Claims

Changes to Florida’s statute regarding negligent security lawsuits were also included in HB 837. Now, a judge or jury can consider the actions of all parties involved in a negligent security lawsuit, not only the property owner’s negligence. This can thereby reduce the compensation awarded to a victim by a party whose negligence allowed or permitted an assault to occur on their property.

There is also now a presumption of no negligence for a property owner if they comply with the safety precautions laid out in the new rules included in HB 837, which are essentially a bare-bones checklist of procedures that may or may not actually increase security.

Attorney’s Fees

Rules regarding attorney’s fees have also been changed in Florida. Currently, one-way attorney’s fees (which allow only one party – typically the plaintiff – to receive attorney’s fees) are limited to cases where the insurer totally denies benefits and the claimant succeeds in a declaratory action. This change makes it easier for insurance companies and negligent parties to retain counsel to contest a claim, as they may not have to pay attorney’s fees to a claimant, depending on the situation. This can make it harder for victims to win at trial and might ultimately reduce the compensation they take home in Florida.

Many plaintiffs’ attorneys provide counsel and charge contingency fees, meaning they are only paid when a victim is. Changes to Florida law limit attorney’s fees to a reasonable hourly rate, known as a “lodestar fee.” The new law states that there is a “strong presumption” that this will be “sufficient” and that fees can only be calculated differently in “rare and exceptional circumstances.”

Author Bio: 

David I. Fuchs is a personal injury attorney in Fort Lauderdale and the founder of David I. Fuchs, Injury & Accident Lawyer, P.A. David has an extensive background representing plaintiffs in personal injury cases and has been practicing law for more than three decades.