The new law denying injured persons any damages if they are more than 50% at fault could cause the plaintiff to shoot craps in mediation or negotiation.
The injured plaintiff now faces the risk of taking and recovering nothing unless she can convince an insurance company or a jury that she was not more than 50% at fault–a difficult if not impossible task in many cases where there is no way to objectively predict how a jury would apportion percentages of fault.
This will steeply compromise the plaintiff’s bargaining position in negotiation and mediation, which is precisely what the sponsors of the bill wanted. Faced with the prospect of getting nothing, plaintiffs may feel compelled either to accept a fraction of what they deserve, or risk losing it all.
The biggest change in Florida personal injury law is the change in the law of comparative negligence which now says that an injured party may not recover any damages if the injured party is more than 50 percent at fault.
This will affect every single case where both parties were partially at fault, and where the percentage of fault attributable to each is debatable, as is so often the case.
What if you were seriously injured in a collision at an intersection. In court, suppose the facts are contested, and a jury finds you to be 51% at fault in causing the collision, and the other driver to be 49% at fault.
You may have hospital bills, scars, permanent disabilities and lost earnings for which the other driver was 49% responsible. But rather than collect 49% of those damages from the other side, under the new law, you will get nothing. Nothing.
This means that a sizeable chunk of damages that were previously available under law no longer exists, and many injured persons will be denied recovery of a percentage of damages to which they were formerly entitled. A longstanding civil right to damages simply done away with by an act of the Legislature and the stroke of the Governor’s pen.
Florida leads the nation in the deaths of nursing home residents and staff due to COVID-19. And the state has one of the lowest rates of vaccination among nursing home staff in the country, according to the Tampa Bay Times.
Yet now, seniors who succumb to COVID because their residential facility failed to maintain safe protocols, will virtually be unable to sue for damages.
That’s the effect of the COVID-19 Shield Law, Florida Statute 768.38, said to among the toughest of its kind among the 33 or so states with similar laws.
The law covers not only nursing homes, but businesses, schools, government agencies, hospitals and religious facilities as well. Among other things:
To sue, you must have an affidavit from a licensed Florida physician swearing that the plaintiff’s COVID-19 resulted from the defendant’s acts or omissions;
Even then, the defendant will not be liable if the defendant made a “good faith effort to substantially comply with standards and guidelines at the time….”
The defendant will not be liable unless its actions constituted “gross negligence” proven by “clear and convincing evidence.”
There’s a 1 year Statute of Limitations, rather than the 4-year statute of limitations for negligence cases, and 2-year statute of limitations for medical malpractice.
The net effect is that the bar has been set so high, it is nearly impossible to prove a case. Lawyers won’t be bringing cases that they might otherwise have accepted. Posing the question: Do we really want to spare liability, and allow for lax standards, where the need for due care is greatest? And a new surge is on the rise?
Personal Injury Attorney Mark Wolin proudly serves Florida and South Florida communities in Miami-Dade County, Monroe County and Broward County including Aventura, Bal Harbour, Bay Harbor Islands, Biscayne Gardens, Biscayne Park, Davis Harbor, El Portal, Hallandale, Hallandale Beach, Hialeah, Hollywood, Hollywood Beach, Liberty City, Little Haiti, Little River, Miami, Miami’s Upper East Side, Miami Beach, Miami Gardens, Miami Shores, North Bay Village, North Miami, North Miami Beach, Opa Locka, Pembroke Pines, Pembroke Park, Sunny Isles Beach and Surfside, Florida. View our privacy policy here.
