LIABILITY

Statutes of Limitation

Bodily Injury and Property Damage

Florida has a four-year statute of limitations for bodily injury caused by negligence. Fla. Stat. § 95.11(3)(a) (2018). The statute of limitations for property damage claims is also four years. Fla. Stat. § 95.11(3)(h) (2018).

Breach of Contract for Cargo Losses

The statute of limitations for written contracts is five years. Fla. Stat. § 95.11(2)(b) (2018). For oral contracts, the statute of limitations is four years. Fla. Stat. § 95.11(3)(k) (2018).

Of course, state law only applies as to cargo transported intrastate. Federal law applies to cargo damaged or lost during interstate transport, 49 U.S.C. § 14706 (2012), also known as the “Carmack Amendment.” While there is not a definite statute of limitations in the amendment, a carrier cannot contract for a period of less than 9 months to file a claim against it or a period of less than 2 years for bringing a civil action against it. 49 U.S.C. § 14706(e) (2012). If the carrier denies a claim made by a shipper, in whole or in part, the shipper has at least two (2) years to bring a civil action under the Carmack Amendment. Id; see also Swift Textiles, Inc. v. Watkins Motor lines, Inc., 799 F.2d 697, n. 4 (11th Cir. 1986) (“The Carmack Amendment on its face contemplates that the choice of a statute of limitation is to lie with the shipper subject to the minimum time limit prescribed by the Act. Although the two year and one day period is not mandatory in the sense that it is imposed as an absolute by the Act, the Act clearly anticipates statutes of limitation and legislatively approves any limitation period exceeding two years. A natural way to manifest the carrier’s choice of a limitation period would be in the tariff classification which motor carriers have to file.”).

Negligent Entrustment, Hiring, Retention, Supervision

Florida has adopted section 390 of the Restatement (Second) of Torts (1965). Kitchen v. K-Mart Corp. 697 So. 2d 1200, 1202 (Fla. 1997). Section 390 provides:

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them. Id.; Fina v. Hennarichs, 19 So. 3d 1081 (Fla. Dist. Ct. App. 2009) (holding that parents were liable for negligently entrusting ATV to their 13-year old son).

What if Line and Scope is Admitted?

In Florida, the general rule is a plaintiff loses the right to bring negligent entrustment, hiring, and retention claims once an employer admits that it is vicariously liable for its employee’s tortious act because vicarious-liability and derivative-liability are parallel theories of liability. Clooney v. Geeting, 352 So. 2d 1216, 1220 (Fla. Dist. Ct. App. 1977); see also Dewit v. UPS Ground Freight, Inc. No. 1:16-CV-36, 2017 WL 2903347, at *4 (N.D. Fla. June 16, 2017) (“Because Plaintiffs’ derivative-liability claims do not expose UPS Freight to any additional liability, they are duplicative of the vicarious-liability claims and must be dismissed.”).

The general rule has been called into question since the passage of § 324.021(9)(b)(3) in 1999. When the negligent entrustment claim imposes distinct liability for the employer, the negligent entrustment claim survives and may be prosecuted simultaneously with the vicarious liability claim. Trevino v. Mobley, 63 So. 3d 865 (Fla. Dist. Ct. App. 2011). The Trevino Court addressed the interplay between § 324.021(9)(b)(3) and the law in Clooney. Section 324.021(9)(b)(3) limited the parents’ vicarious liability to $100,000 for noneconomic damages but the statute did not limit the parents’ derivative liability for noneconomic damages for negligently entrusting the vehicle to their son. Fla. Stat. § 324.021(9)(b)(3) (2018). In his concurrence, Justice Sawaya wrote that “[t]his case demonstrates why the decision in Clooney v. Geeting, 352 So. 2d 1216 (Fla. 2d DCA 1977), should be abandoned and no longer followed by the courts in this state.” Id. at 868.

Line and Scope of Employment

Whether an employee was acting in the line and scope of his employment is determined as a matter of fact, and several factors must be considered, including: (1) the type of work for which the employee was employed; (2) whether the action was performed substantially within the time and space limits of his employment; (3) whether the action was initiated, at least to an extent, to help the employer; (4) whether the employee was engaged in his employment for the act or if the act was not authorized or expected by the employer; (5) whether there was a deviation from the employment; (6) whether the employee abandoned the employer’s business; (7) whether the employee left the business for a purely personal errand; (8) whether the employee returned to the business after the deviation but before the act was committed; and (9) whether the employer could have expected or foreseen the employee’s conduct. Herren v. White, White, Wilson and Associates, 531 So. 2d 1021, 1022 (Fla. Dist. Ct. App. 1988); see also Fernandez v. Florida Nat. College, Inc., 925 So. 2d 1096, 1101 (Fla. Dist. Ct. App. 2006).

Comparative or Contributory Negligence

Florida has pure comparative fault rules. Birge v. Charron, 107 So. 3d 350, 355-56 (Fla. 2012) (holding that a defendant can diminish his liability based on the comparative fault of other parties, “including those negligent nonparties properly pled and proven as such by the defendant.”). The plaintiff’s damages are diminished proportionately to the plaintiff’s percentage of contributory fault. Fla. Stat. § 768.81(2)-(3) (2018); see Colbert v. U.S., No. 3:09-cv-998-J-20JRK, 2014 WL 11353232, at *6 (M.D. Fla. March 6, 2014) (holding that where a defendant is only 80% responsible for a car crash, the plaintiff can only recover 80% of his actual damages from that defendant).

Sudden Emergency Defense?

Florida recognizes the “sudden emergency” defense. This doctrine may be established where the defendant satisfies the following facts: “(1) that the claimed emergency actually or apparently existed; (2) that the perilous situation was not created or contributed to by the person confronted; (3) that alternative courses of action in meeting the emergency were open to such person; and (4) that the action or course taken was such as would or might have been taken by a person of reasonable prudence in the same or similar situation.” Wallace v. Nat'l Fisheries, Inc., 768 So. 2d 17, 18 (Fla. Dist. Ct. App. 2000). "The presence or absence of a sudden emergency situation is a question of fact ordinarily to be decided by the jury." Id. at 18. (citing Scott v. Opa Locka, 311 So. 2d 825, 826-27 (Fla. Dist. Ct. App. 1975)). "So, too, is the issue of whether, under the circumstances, the defendant reacted to the situation in a prudent manner." Id. at 1819 (citing Cleveland v. Miami, 263 So. 2d 573 (Fla. 1972)).

A defendant-driver facing a sudden emergency is not held to the same standard of care as a typical driver, but he is still required to act in a reasonable and prudent manner under the circumstances. Dupree v. Pitts, 159 So. 2d 904, 906-07 (Fla. Dist. Ct. App. 1964). A driver facing a sudden emergency "is not negligent, provided he has used due care to avoid meeting such an emergency and, after it arises, he exercises such care as a reasonably prudent and capable driver would use under the unusual circumstances, which is usually [a question] for the jury." Id. at 906 (quoting Blashfield, Cyc. of Automobile Law & Practice, Sec. 668, pp. 538-45).

Contribution or Implied Indemnity from Third-Parties

Florida adopted the Uniform Contribution Among Tortfeasors Act. Fla. Stat. § 768.31 (2018). One of the purposes of the UCATA is to encourage settlements. Healthcare Staffing Solutions, Inc. v. Wilkinson ex rel. Wilkenson, 86 So. 3d 519, 522 (Fla. Dist. Ct. App. 2012). The right of contribution arises only when the tort liability has been settled or a judgment has been entered against the tortfeasor. Carpenter v. Bachman Enter., Inc., 657 So. 2d 42 (Fla. Dist. Ct. App. 1995); Showell Indus., Inc. v. Holmes County, 409 So. 2d 78, 79 (Fla. Dist. Ct. App. 1982). In the same vein, a tortfeasor only has a right to contribution where his settlement or judgment extinguishes the liability of another tortfeasor. Fla. Stat. § 768.31(5); see Woods v. Withrow, 413 So. 2d 1179, 1183 (Fla. 1982) (“A tortfeasor who settles without extinguishing the liability of another tortfeasor, and whose payment later turns out to be more than his fair share, has no right of contribution against the other. In buying his peace, such a settling tortfeasor merely misjudged the value of the claim.”) (internal citations omitted); Trapper John Animal Control, Inc. v. Gilliard, 96 So. 3d 461 (Fla. Dist. Ct. App. 2012) (holding that release executed between estate and company did not settle liability of physician, so company could not seek contribution from physician).

In pursuing a contribution claim, an insurance company stands in the shoes of its insured. Fla. Stat. § 768.31(2)(e); Sacred Heart Hosp. of Pensacola v. Frazier, 621 So. 2d 491, 493 (Fla. Dist. Ct. App. 1993).

Under the UCATA, contribution only exists in favor of a joint tortfeasor who has paid more than his pro rata share of the common liability, and the tortfeasor’s total recovery is limited to the amount paid by him in excess of his pro rata share. Fla. Stat. § 768.31(2)(b) (2018). Florida courts consider the amount of the “entire liability”, the identity of each party that contributed to the tortious injury, and the percentage of fault assignable to each party when calculating a contributory defendant’s pro rata share. Healthcare Staffing Sol., Inc. v. Wilkinson ex rel. Wilkinson, 86 So. 3d 519, 521 (Fla. Dist. Ct. App. 2012). The “entire liability” is the amount paid by the settling tortfeasor as long as the amount paid was reasonable. Id. at 522-23. A contribution claim may be brought as a motion after a judgment has been entered, as a permissive counterclaim, or as a separate action. Fla. Stat.768.31(4); Chinos Villas, Inc. v. Bermudez, 448 So. 2d 1179, 1180 (Fla. Dist. Ct. App. 1984). In any case, a cause of action does not accrue until either a settlement is paid by a tortfeasor or a judgment is entered against a tortfeasor. Dept. of Transp. V. Gen. Portland, Inc., 443 So. 2d 276, 278 (Fla. Dist. Ct. App. 1983); Showell Indus., Inc. v. Holmes Co., 409 So. 2d 78, 79 (Fla. Dist. Ct. App. 1982).

Additionally, Florida law recognizes both common law indemnity and contractual indemnity. There is a two-pronged test under Florida common law to determine if indemnity applies: (1) the party seeking indemnity must be completely without fault or active negligence and his liability must be derived from vicarious liability; and (2) the indemnity is sought from the actual tortfeasor. Houdaille Indus., Inc. v. Edwards, 374 So. 2d 490, 493 (Fla. 1979). There is no common law indemnity where both parties are found to have even the slightest bit of fault. Diplomat Props. Ltd. Par. v. Tecnoglass, LLC, 114 So. 3d 357, 360 (Fla. Dist. Ct. App. 2013). Florida contractual indemnity agreements are subject to the requirements of Florida Statute § 725.01, such that they are in writing and with sufficient consideration. Fla. Stat. § 725.01 (2018).

Exclusivity of Workers Compensation

Under Florida law, the liability of an employer under Workers’ Compensation “shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee . . .” Fla. Stat. § 440.11(1) (2018). There are some narrow exceptions. Id.

Seat Belt and Helmet Use

Florida law makes it unlawful to operate a motor vehicle unless each passenger is restrained by a seat belt. Fla. Stat. § 316.614(4)(a) (2018). This statute also provides that a violation of this provision “shall not constitute negligence per se, nor shall such violation be used as prima facie evidence of negligence or be considered in mitigation of damages, but such violation may be considered as evidence of comparative negligence, in any civil action.” Id. at § 316.614(4)(10) (2018). The seat belt defense should be raised “by alleging the failure and its contributing effect to . . . damages as an issue of comparative negligence.” Ridley v. Safety Kleen Corp., 693 So. 2d 934, 938 (Fla. 1996). “The plaintiff’s total award is first reduced by his or her comparative fault in causing the accident. This reduced sum is then reduced a second time by deducting the percentage of the plaintiff’s damages that were caused by the failure to wear a seat belt.” Id at 944.

All motorcycle operators must wear protective headgear that is securely fastened to his or her head. Fla. Stat. § 316.211(1) (2018). This rule does not apply to motorcycle operators over twenty-one years old who have an insurance policy providing at least $10,000 in medical benefits for motorcycle injuries. Fla. Stat. § 316.211(3)(b) (2018). It is not negligence per se to violate § 316.211(1) if there is no evidence that failing to wear a helmet was a proximate cause to the injury. Rex Utils. Inc. v. Gaddy, 413 So. 2d 1232, 1234 (Fla. Dist. Ct. App. 1982).

Spoliation

A duty to preserve materials can arise by statute, contract, a properly served discovery request, or where circumstances would cause a party to “reasonably foresee litigation.” League of Woman Voters of Fla. v. Detzner, 172 So. 3d 363, 391 (Fla. 2015); Royal & Sunalliance v. Lauderdale Marine Ctr., 877 So. 2d 843, 845 (Fla. Dist. Ct. App. 2004). The elements of a spoliation claim are: “(1) existence of a potential civil action; (2) a legally recognized duty to preserve evidence; (3) destruction of that evidence: (4) a significant impairment in the ability to prove the claim or defense; (5) a causal relationship between the evidence destruction and the inability to prove the claim or defense; and (6) damages.” Royal & Sunalliance, 877 So. 2d at 845 (citing Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088, 1091(Fla. Dist. Ct. App. 2001) and Cont’l Ins. Co. v. Herman, 576 So. 2d 313, 315 (Fla. Dist. Ct. App. 1990)).

Florida does not recognize “first party” spoliation claims, meaning that there is not an independent cause of action against a defendant fails to preserve evidence for litigation. Martino v. Wal-Mart Store, Inc., 908 So. 2d 342, 347 (Fla. 2005). Alternatively, a court has the discretion to impose discovery sanctions, strike a party’s pleadings for intentional spoliation or impose adverse inferences in certain scenarios. Id. A jury can make adverse inferences based on unpreserved evidence where: (1) the evidence existed at one time; (2) the spoliator had a duty to preserve the evidence; and (3) the evidence was critical to an opposing party being able to prove its prima facie case or a defense. Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 781 (Fla. Dist. Ct. App. 2006).

Florida still supports a claim for third-party spoliation. Martino, 908 So. 2d at 346, n.2. Third-party spoliation claims do not accrue until after the substantive lawsuit has been completed. Yoder v. Kuvin, 785 So. 2d 679, 681 (Fla. Dist. Ct. App. 2001). This is because a third-party spoliation claim is aimed at compensating a plaintiff for being unable to prove his claim due to lost or destroyed evidence, rather than the actual injury or damage. Shaw v. Cambridge Integrated Serv. Group, Inc., 888 So. 2d 58, 63 (Fla. Dist. Ct. App. 2004).

DAMAGES

Caps

Generally, there are no caps on noneconomic damages in negligence actions, except for medical malpractice actions and causes of action related to individuals or companies who loan or rent vehicles. Fla. Stat. § 766.118 (2018). The Florida Supreme Court found that the caps in § 766.118 were unconstitutional. North Broward Hospital Dist. v. Kalitan, 219 So. 3d 49 (Fla. 2017). In the rental car context, the “caps provided in section 324.021(9)(b) limit the vicarious liability of innocent rental car companies and owners.” Lewis v. Enter. Leasing Co., 912 So. 2d 349, 351 (Fla. Dist. Ct. App. 2005). Noneconomic damages include “pain and suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of capacity for enjoyment of life, and other nonfinancial losses . . .” Fla. Stat. § 766.202(8). “Juries have wide latitude in determining an award of noneconomic damages in tort cases.” Subaqueous Serv., Inc. v. Corbin, 25 So. 3d 1260, 1268 (Fla. Dist. Ct. App. 2010). The defendant can seek to have a verdict for noneconomic damages remitted if it is “clearly excessive . . . in light of the facts and circumstances which were presented to the trier of fact.” Fla. Stat. § 768.043(1) (2018). However, trial courts rarely disturb the jury’s verdict as to noneconomic damages.

For caps on punitive damages, see infra § 2(G)(2)

Joint & Several Liability

There is no joint and several liability for causes of action. Fla. Stat. § 768.81 (2018); see also Hennis v. City Tropics Bistro, Inc., 1 So. 3d 1152, 1154 (Fla. Dist. Ct. App. 2009) (noting that “the Legislature's enactment of section 768.81 represented a policy shift away from joint and several liability toward the apportionment of fault, with each defendant being held responsible only for its percentage of fault.”).

Standard of Proof Required for Compensatory Damages

Collateral Source Rule

The Florida Legislature modified the collateral source rule so as to keep the historical part of the rule excluding evidence at a jury trial of any payments made by collateral sources, but changed the rule so that the trial court must reduce the jury’s award when entering a judgment by the “total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources . . . Fla. Statute 768.76(1) (2018); Joerg v. State Farm Mut. Auto. Ins. Co., 176 So. 3d 1247, 1249 (Fla. 2015). Collateral source payments are not admissible as evidence because they might “confuse the jury with respect to both liability and damages” and lead “the jury to believe that the plaintiff is trying to obtain a double or triple payment for one injury, . . . or to believe that compensation already received is sufficient recompense.” Id. (quoting Gormley v. GTE Products Corp., 587 So. 2d 455, 458 (Fla. 1991)). If the jury reaches a verdict in favor of the plaintiff, the trial court should then consider evidence of collateral source payment before entering a judgment in favor of the plaintiff. The statute was adopted, in part, to prevent the plaintiff “from receiving windfalls.” Id. at 1249.

In Nationwide Mut. Fire Ins. Co. v. Harrell, 53 So. 3d 1084 (Fla. Dist. Ct. App. 2010), the appellate court affirmed the trial court’s decision to permit the plaintiff to introduce evidence of her gross medical bills while also precluding the defendant from offering evidence that a private health care insurer paid part of the medical bills.

Notably, the trial court should not reduce an award when entering a judgment in favor of the plaintiff if the collateral source payor has a “subrogation or reimbursement right.” Fla. Statute § 768.76(1) (2018). The Florida Supreme Court has explained that this exception does not result in a windfall to the plaintiff because the collateral source payor can seek to be reimbursed from the plaintiff. Joerg, 176 So. 3d at 1249.

Hedonic Damages

Florida courts do not permit recovery of hedonic damages in wrongful death actions. Sharbaugh v. Beaudry, 267 F.Supp.3d 1326, 1340 (N.D. Fla. 2017); Brown v. Seebach, 763 F. Supp. 574, 583 (S.D. Fla. 1991) (“The court is of the opinion that there is no cause of action for hedonic damages in Florida.”).

Life Care Plans

Florida courts allow expert testimony as to a life care plan as long as the expert meets the requirements of § 90.702. Fla. Stat. § 90.702 (2013); Shearon v. Sullivan, 821 So. 2d 1222 (Fla. Dist. Ct. App. 2002). Trial courts require expert testimony that the future medical expenses are reasonably certain to occur. Id at 1225.

Wrongful Death Standing and Damages

The Florida Wrongful Death Act allows for the decedent’s personal representative to bring an action to recover damages for the decedent’s survivors and estate. Fla. Stat. § 768.20 (2018). The “survivors” include the “decedent’s spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, blood relatives and adoptive brothers or sisters.” Fla. Stat. § 768.18(1) (2018).

“Each survivor may recover the value of lost support and services from the date of the decedent’s injury to his death, with interest, and future loss of support and services from the date of death and reduced to present value.” Fla. Stat. § 768.21(1) (2003). “The surviving spouse may also recover for losing the decedent’s companionship and protection and for mental pain and suffering from the date of injury.” Fla. Stat. § 768.21(2) (2003). “Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.” Fla. Stat. § 768.21(3) (2003). Parents of a deceased minor child can recover for mental pain and suffering from the date of the injury. Fla. Stat. § 768.21(4) (2003). Any survivor who pays for a decedent’s medical or funeral expenses can recover them. Fla. Stat. § 768.21(5) (2003). A decedent’s personal representative can recover: (1) lost earnings from the date of injury to the date of death; (2) loss of prospective net accumulations of the estate that might have been reasonably expected but for the wrongful death; and (3) medical or funeral expenses that were charged to the estate or paid on its behalf. Fla. Stat. § 768.21(6) (2003).

Punitive Damages

Standard for Recovery

Florida permits the recovery of punitive damages. The plaintiff must offer “clear and convincing evidence” that the defendant was “personally guilty of intentional misconduct or gross negligence”. Fla. Stat. § 768.72(2) (2018). Intentional misconduct is defined as “the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.” Id. Gross negligence is defined as “the defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.” Id. In Mercury Motors Exp., Inc. v. Smith, the Florida Supreme Court declined to impose punitive damages on a trucking company where a truck driver who was inebriated collided with another car, killing the other driver, because the trucking company was only liable via respondeat superior rather than any fault of its own. Mercury Motors Exp., Inc. v. Smith, 393 So. 2d 545, 457-59 (Fla. 1981). The court opined that an employer can be liable for punitive damages if, where an employee acts willfully and wantonly, the plaintiff can “prove some fault on the part of the employer which foreseeably contributed to the plaintiff’s injury.” Id. at 549; see also U.S. Concrete Pipe Co v. Bould, 437 So. 2d 1061, 1066 (Fla. 1983) (discussing impact of Mercury Motors).

Caps

In general, punitive damages may not exceed the greater of either: (1) three times the amount of compensatory damages awarded to each plaintiff entitled thereto or (2) $500,000. Fla. Stat. § 768.73(1)(a) (2018). If the conduct was found to be (1) motivated solely by unreasonable financial gain, (2) the unreasonably dangerous nature of the conduct with a high likelihood of injury resulting from the conduct, and (3) is actually known by the managing agent, director, officer, or other person responsible for making policy decisions, then punitive damages are capped at the greater of either four times the amount of compensatory damages awarded to each claimant, or $2 million. Fla. Stat. § 768.73(1)(b) (2018). However, there is no cap on punitive damages where the defendant acted with a specific intent to harm the plaintiff. Fla. Stat. § 768.73(1)(c) (2018).

Insurable?

Florida law does not generally allow punitive damages to be insured. Hines v. GEICO Indem. Co., No. 8:14-cv-1062-T-24 TGW, 2016 WL 688050, at *4 (M.D. Fla. Feb. 19, 2016). The inclusion of punitive damages within liability insurance coverage is considered invalid as contrary to public policy. Employer Ins. Of Wausau v. Lavender, 506 So. 2d 1166, 1167 n.1 (Fla. Dist. Ct. App. 1987) (“In Florida, public policy prohibits liability insurance coverage for punitive damages assessed against a person because of his wrongful conduct.”).

While an active tortfeasor will not be able to seek coverage for punitive damages under a policy, a tortfeasor who is only vicariously liable for another’s wrong can seek coverage for punitive damages. U.S. Concrete Pipe Co. v. Bould, 437 So. 2d 1061, 1064 (Fla. 1983); see also Travelers Indem. Co. v. Despain, No. 5:05-cv-489-Oc-10-GRJ, 2006 WL 3747318, at *3 (M.D. Fla. Dec. 18, 2006) (“Florida public policy generally prohibits insurance coverage for punitive damages for the direct wrongful conduct of the insured, even where the insurance policy specifically provides for such insurance . . . Here, the [plaintiff] seeks punitive damages against [defendant] under a theory of vicarious corporate liability and, thus, Florida public policy does not preclude coverage.”).

Offers of Judgment

Florida’s rules governing offers of judgment are stated at Florida Rule of Civil Procedure 1.442 and Florida Statute § 768.79.

Florida Statute § 768.79 provides that:

In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within thirty (30) days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred by her or him on the defendant's behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25% less than such offer, and the court shall set off such costs and attorney's fees against the award.

Fla. Stat. § 768.79. “Where such costs and attorney’s fees total more than the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the plaintiff’s award.” Id. Conversely, “[i]f a plaintiff who files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney’s fees incurred from the date of the filing of the demand.” Id. Rejected offers for judgment are inadmissible in litigation aside from assessing penalties under § 768.79.

Any offer of settlement must (1) be in writing and state that it is made pursuant to § 768.79; (2) name the party making it and the party to whom it is being made; (3) state the amount offered to settle a claim for punitive damages (if any); and (4) state the total amount of the offer. Id. at § 768.79(2)(a)-(d). The form and substance of the offer required under § 768.79 is important. Id. For example, a Florida appellate court recently invalidated an offer of judgment that did not strictly conform to Florida’s statutory requirements. Deer Valley Realty, Inc. v. SB Hotel Assoc. LLC, 190 So. 3d 203, 207 (Fla. Dist. Ct. App. 2016). There, the defendant developer’s offer of judgment stated: “This proposal for settlement is inclusive of all attorney’s fees and costs incurred by Plaintiff or Defendant.” Id. However, the developer “neglected to include a statement that ‘attorney’s fees [were] part of the legal claim.” Id. (emphasis in original). Because the proposal failed to include the necessary language that the agreed attorney’s fees were “part of the legal claim,” the court found the proposal “invalid and unenforceable.” Id.

Biomechanics

Florida courts allow “biomechanical opinions as to the general causation of a type of injury . . .” Maines v. Fox, 190 So. 3d 1135, 1141 (Fla. Dist. Ct. App. 2016). Biomechanical engineers are allowed to testify as to the general mechanism of an injury. “Biomechanical experts are not, however, allowed to render opinions that require medical expertise.” Id. In Maines, the appellate court held that the trial court erred by precluding the expert from testifying about whether the particular accident could have caused the plaintiff’s injuries. The expert was both a biomechanical engineer and a medical doctor.

Of course, any proffered expert must pass the tests found in § 90.702. Fla. Statute § 90.702.

Must policy limits be disclosed pre-suit?

Yes, upon request. Florida Statute § 627.4137 requires an insurance company to reveal to an injured party making a claim against the insured party the amount of the limits of liability coverage upon receiving a request in writing for that information. Fla. Stat. § 627.4137 (2018). The insurance company’s response is due within 30 days of receiving the request. Id.

Out-of-state insurers and insureds should note that this requirement does not apply for any policy that is not “delivered” or “intended for delivery” in the State of Florida. Fla. Stat. § 627.401(2) (2018) (“No provision of this part of this chapter applies to: . . . [p]olicies or contracts not issued for delivery in this state nor delivered in this state, except as otherwise provided in this code.”); see Travelers Indem. Co. of Ill. v. Royal Oak Enters., Inc., 359 F. Supp. 2d 1321, 1322 (M.D. Fla. 2005) (explaining parameters of “delivery” and “intent to deliver” insurance policies under Florida law); J.B. Hunt Transp. Inc. v. S & D Transp., Inc., 2013 WL 12086300, at *2 (S.D. Fla. July 29, 2013) (noting that the requirements under Fla. Stat. § 627.401 et sec. do not apply to an insurance policy that is delivered in Tennessee).

May claimant recover general damages if the claimant does not have own auto-insurance? So-called “No pay, No play” rules.

The Florida Legislature has not enacted a “No Pay, No Play rule,” as some other states have. E.g., La. Stat. Ann. § 32:866 (2018); Cal. Civ. Proc. Code § 3333.4 (2018).