Dec 1, 2010

The following article was published by The News Service of Florida on December 1, 2010:



THE CAPITAL, TALLAHASSEE, Dec. 1, 2010…. A Senate bill filed this week to expand protections for automakers and other manufacturers marks the beginning of what is likely to be a renewed battle between the Republican Legislature and trial lawyers over the balance between individual responsibility and protection of the rights of the wronged to be compensated.

Observers say a shift in the Senate – which has been in recent years a buffer for trial lawyers against some of the least plaintiff-friendly measures – may signal difficult times ahead for the Bar, and an even better outlook for businesses seeking lawsuit protection.

A measure filed Tuesday by Sen. Garrett Richter, R-Naples, may make for the first big battle in the new climate. The new Senate leadership has boasted of being more conservative and several new members over the last few years have replaced more moderate senators.

Workshopped last year but never voted on, Richter’s new bill (SB 142) would retroactively give businesses some lawsuit protections that they were denied by a 2001 court case. That court case made automakers liable for damages in the case of a defective part, regardless of a driver’s behavior. If Richter’s bill were to pass, those automakers could seek recovery from drivers or others who may be partially at fault.

Richter said he hoped to bring the issue before the Senate Judiciary Committee in January.

The bill specifically boosts protections for automakers by allowing them to present more evidence when they are sued for product defects that result in enhanced injury following a crash. Florida is among a handful of states that consider a crash – and any fault of the driver in that crash – unrelated and irrelevant to injuries caused by defective parts or design.

That interpretation was cemented into Florida law following a 2001 Florida Supreme Court ruling that manufacturers could be held solely liable for design defects that enhanced the injury suffered in a crash, regardless who was at fault in the crash itself.

The court’s rationale for excluding evidence of the driver’s fault in causing an accident is that the accident-causing fault is not relevant to whether an automobile manufacturer designed a defective product.

The bill would eliminate the separation and allow juries to hear details on the events leading up the liability claim and then apportion fault. Along with evidence of the faulty part, juries could hear, for example, whether the driver was drunk, driving recklessly, or otherwise impaired.

Richter said the bill would assist Ford Motor Co., which did not benefit from federal bailout efforts at General Motors and Chrysler beginning in 2008 that have provided those car makers some immunity from defective product lawsuits.   

Leslie Kroeger, a plaintiff’s attorney at Leopold-Kevin in West Palm Beach who testified against the bill last year, said the Florida Supreme Court got it right in 2001 when it ruled that injuries sustained by the initial accident and the product defect are two completely separate issues.

As an example, Kroeger said a driver who accidentally rear-ends a vehicle should be liable for broken arm caused by the impact, but not a subsequent fire brought about by a faulty circuit that caused even more injury to the crash victim.

“Why should it make a difference?” Kroeger said.

Lawmakers’ last foray into the world of civil litigation came in 2006. After years of efforts, business-led backers finally pushed through legislation to do away with the last vestiges of Florida’s joint and several liability laws, which allowed individual defendants to be financially responsible for paying claim regardless of their degree of fault.

Other changes advocated by business groups did not gain adequate traction in the Senate, which has been more agreeable to arguments posed by such groups as the Florida Justice Association.

While they disagree on the merits of the bill, both Kroeger and Richter anticipate renewed interest in civil litigation issues when lawmakers return for committee hearings leading up to the 2011 legislative session.

Gov.-elect Rick Scott campaigned on reducing regulation and making it easier for businesses to cut costs and provide jobs. Meanwhile, Senate President Mike Haridopolos, R-Merritt Island, and House Speaker Dean Cannon, R-Winter Park, have both said efforts to free businesses from costly lawsuits are a top priority.

“This year there will be more steps taken (on civil litigation reform),” Richter said. “This is one of them.”

“My plan is to educate people,” Kroeger said. “Once they hear how this would play out, I think they’ll understand Florida now deals with the issue correctly.”