Colodny Fass Featured in Federation of Regulatory Counsel August 2011 Update

Aug 17, 2011


Colodny Fass attorneys were featured contributors to the Florida section of the Federation of Regulatory Counsel’s (“FORC”) August 2011 “FORC Alert.”  To view the publication, click here.  The articles are reprinted below.

Enactment of CS/SB 142 Overturns Controversial 2001 Florida Supreme Court Ruling Defining How “Crashworthiness” Motor Vehicle Cases can be Tried

A controversial 2001 Florida Supreme Court ruling that defined how motor vehicle “crashworthiness” cases were tried was overturned with the enactment of CS/SB 142 Relating to Negligence, which Florida Governor Rick Scott signed into law on June 23, 2011.

New Florida Insurance-Related Laws to Expand Commercial Lines, Provide Workers’ Comp Extraterritorial Reciprocity and More

Florida Governor Rick Scott signed various insurance-related bills into law on June 17, 2011, among which were CS/CS/HB 99 relating to Commercial Insurance Rates, CS/HB 723 relating to Reciprocity in Workers’ Compensation Claims and CS/HB 1087 relating to Insurance. 

Eleventh Circuit Court of Appeals Upholds Florida’s Cap on Noneconomic Medical Malpractice Damages and Certifies Questions to Supreme Court of Florida

Recently, in Estate of McCall ex rel. McCall v. U.S., No. 09-16375, 2011 WL 2084069, at *1 (11th Cir. May 27, 2011), the Eleventh Circuit Court of Appeals issued an opinion upholding the constitutionality of Florida’s limitation on noneconomic damages in medical malpractice cases in that the statute did not violate equal protection under the United States Constitution and did not constitute a taking of private property under the United States and Florida Constitutions.  The Court certified questions to the Supreme Court of Florida with respect to the Florida Constitution:  whether the statute violated the right to equal protection, the right to access to courts, the right to trial by jury, and the guarantee of separation of powers.   To access the opinion, click here.

Florida Supreme Court Finds 2005 Asbestos Lawsuit Restrictions Unconstitutional

In rulings issued on July 8, 2011, the Florida Supreme Court found that the Florida Legislature acted unconstitutionally in 2005 by placing new restrictions on lawsuits filed by asbestos exposure victims.  Specifically, the 2005 Legislature addressed these claims with the enaction of the Asbestos and Silica Compensation Fairness Act (“ASCFA”), which applied retroactively to all claims other than those already in litigation and raised the burden on claimants.  The ASCFA enumerated various and specific elements of a prima facie case and established that a claimant must establish a prima facie showing of the enumerated elements before being permitted to bring a claim.  Subsequently, ASCFA was challenged on Constitutional grounds and struck down by the Florida Supreme Court because the retroactive application of the ASCFA violates the due process clause of the Florida Constitution.  During Florida’s 2011 Legislative Session, the ASCFA was proposed as a model to create the “Sinkhole Compensation Fairness Act” in an effort to control the cost of sinkhole tail claims–those that are made subsequent to the effective termination date of the occurring policy period–by weeding out questionable claims and ensuring that only real sinkhole claims qualify for consideration.  To access the corresponding Supreme Court rulings, click here and here.

Third District Court of Appeal Withdraws Opinion Allowing Bad Faith Claims to Go Forward Solely on Basis of Appraisal Award

In a July 20, 2011 en banc opinion, the Third District Court of Appeal withdrew its previous opinion in State Farm Florida Ins. Co. v. Seville Place Condominium Association, — So. 3d —, 2009 WL 3271300 (Fla. 3d DCA 2009), which had allowed bad faith claims against State Farm Florida Insurance Company to go forward without full resolution of the underlying claims dispute. The new opinion, found at — So. 3d —, 2011 WL 2905642, denied appellate review and focused solely on the fact that only insurers facing imminent, irreparable, harm may seek certiorari review of erroneous orders of the trial court.  Since State Farm had not yet suffered irreparable harm – “on the record before us, no discovery pertaining to the bad faith claims or the punitive damages claim has yet been sought or compelled” – the petition for certiorari review was denied. Id. at *3.  To view the new Seville Place opinion, click here.