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Valentine's day, when a young man's thoughts turn to candy. Sorry, but that is a brutal truth. I recall throwing away a great many valentine's cards back in the day. It was traditional that each child in each class provided a card to every other student. Talk about wasted forest resources. The only retention was the lollipop, or occasional chocolate attached. As we age, perhaps this Hallmark holiday became of more significance? Or, perhaps less?
This valentine's day, however, brought a press release from Florida. The Governor appeared with both Senate President and House Speaker on valentine's day to announce an effort to address the perception that Florida is "a judicial hellhole due to excessive litigation and a legal system that benefitted the lawyers more than people who are injured.” Workers' compensation is not mentioned in the release, but there are possible potential implications.
I have heard criticism from various jurisdictions regarding perceptions that workers' compensation benefits are inadequate or incomplete. Many across the country complain about their perceptions of the "grand bargain," and lament their conclusions regarding the adequacy of benefits and the evolution of the quid pro quo. In those conversations, I am often reminded of the sentiments of various groups regarding attorney fees in their respective jurisdictions. Too often, the refrain is a comparison of fees to substantive benefits and allegations of perceptions that lawyers benefit more than the injured worker.
The focus of the valentine's day press release is on "billboard attorneys." Senate President Passidomo noted a distinction, and assured that “the vast majority of attorneys work very hard to provide sound legal representation for Floridians in these difficult circumstances." The perception is not of a broad nature, not a conclusion regarding "lawyers" in toto. But, she explained a perception that "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, and that has to stop."
The conclusion of the release is that the 2023 legislative session will include "the most comprehensive reforms in decades to decrease frivolous lawsuits and prevent predatory practices of trial attorneys." This is reportedly to "include eliminating one-way attorney fees and fee multipliers for all lines of insurance." And in that, "all lines," is the potential perhaps that workers' compensation could be implicated.
There are those who will see any inkling of "reform" as disruptive and even threatening. Others may view "reform" as empowering and inspiring. The details will be in a bill, and that will undoubtedly provide greater edification of the reform proposal.
The release notes that reform will bring Florida closer to the processes in other states. There is a focus on the manner in which "Litigation drives up the basic costs of goods and services for everyone across all areas of industry and commerce." In that regard, some may likewise see implications for workers' compensation. At every level of business, there is an element of consumer cost that comes from workers' compensation. Most businesses are paying such premiums, and include that cost in their prices. Each supplier, service partner, or other entity involved with any business or consummer likely has some degree of workers' compensation expense built into its pricing, with the exception of small employers (less than 4 employees).
The release notes the potential for litigation, and the environment it sustains, to result in "the hidden cost of lawsuit abuse." The Speaker noted that this "has cost the state jobs and driven up the cost of goods and services.” The Speaker cited a report concluding that "lawsuit abuse costs Florida households more than $5,000, and costs the state more than 173,000 jobs annually."
The release proceeds to identify objectives such as "eliminat(ion of) one-way attorney fees for all lines of insurance and attorney fee multipliers to permanently disincentivize frivolous lawsuits." The Florida "bad faith" law is mentioned specifically, as is an effort to "incentivize good faith between both parties" in litigation. There is also reference to previous legislative action in regards to reform in a special session last May.
Under this reform proposal, Florida’s “bad faith” law would be modernized to balance the scales between plaintiff attorneys and insurance companies to incentivize "good faith" between both parties and promote the best interest of the consumer. This provision would also maintain consumer-focused protections to ensure that true bad actors are held accountable.
The Legislature convenes this year on April 10, 2023 and committee work is underway.
By Judge David Langham
Courtesy of Florida Workers' Comp
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About The Author
About The Author
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Judge David Langham
David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.
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