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Florida’s First District Court of Appeal once again explained the importance of strict compliance with the pre-suit notice requirements involving government entities. Section 768.28(6)(a), Fla. Stat., mandates that before an action is filed against the state or one of its agencies or subdivisions, the claimant must present the claim in writing to the appropriate agency (and when required, to the Department of Financial Services) and must do so within 3 years after the claim accrues. The requirement of notice to an agency is a condition precedent to maintaining an action and compliance is strictly construed.

Cont’d 2

FAILURE TO COMPLY WITH THE PRESUIT NOTICE REQUIREMENTS CAN BE FATAL TO

A PLAINTIFF’S CASE

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TRIAL- EVIDENCE -DAMAGES- MEDICARE PAYMENTS

In Gulfstream Park Racing Ass’n, Inc. v. Volin, No. 4D19-3471,

2021 WL 1997278 (Fla. 4th DCA May 19, 2021) Florida’s Fourth District reiterated a long established, but seldom conceded, evidentiary ruling regarding the admissibility of medical bills in bodily injury lawsuits, where Medicare has paid the plaintiff’s medical expenses.

Volin sued Gulfstream for negligence after she fell on

Gulfstream’s property and broke her hip. Volin was 72-years-old at the time of her fall and claimed that before her injury she planned to continue working as a part-time cashier at Winn-Dixie until she reached 80 years old. Gulfstream moved to preclude Volin from introducing the gross amount of her medical bills into evidence because Medicare had satisfied her medical expenses for a lesser amount. The trial court denied Gulfstream’s motion, finding that it would allow the full amount of the medical expenses to be introduced into evidence for the jury’s consideration and handle any collateral source setoffs post-verdict.

Cont’d 3

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2 In City of Jacksonville v. Boman, No. 1D20-658, 2021 WL 1903693 (Fla. 1st DCA May 12,

2021), the plaintiff claimed injuries from falling into a manhole. The plaintiff served five notices of claim, only three of which were served within the three year period. Two notices went to the City of Jacksonville (the “City”) identifying the City’s transportation authority as the responsible entity. The third notice was sent to the Florida Department of Transportation (“FDOT”). After the three-year period expired, the plaintiff sent the fourth notice to the Jacksonville Electric Authority (“JEA”). The fifth notice went to the City, again. The lawsuit filed by the plaintiff named the City and JEA as defendants. Both the City and JEA moved for summary judgment. The City argued it was a separate entity from JEA and not responsible for the manhole. JEA asserted that the plaintiff’s notice was served untimely and that notice to the City did not constitute notice to JEA. The plaintiff argued that notice sent to the City served as notice to JEA because the City’s claims adjusters could also investigate claims made against JEA. The trial court denied these motions for summary judgment.

On appeal, the First District reversed, finding the plaintiff failed to comply with the notice

requirements and, consequently, her claims against both entities warranted dismissal. The Court held the plaintiff failed to notify JEA, the appropriate agency, of her claim within the three years required by statute. That defect alone was fatal to her claim against JEA. Additionally, the Court rejected the argument that any of the notices sent to the City served as notice to JEA because JEA was a separate agency operating independently from the City. Notice to the “appropriate agency” means notice must be presented to the specific entity that allegedly caused the injury or loss—not the person or group evaluating the claims made against the entity. Although the City and JEA shared claims adjusters, the plaintiff was still required to give notice of her claim to JEA first and in a timely manner. The investigation of the plaintiff’s claim undertaken by the adjuster after timely notice was received by the City did not substitute for or eliminate the need for proper notice to JEA. In other words, notice to the adjuster will not suffice, even if that same adjuster will later investigate the claim.

The takeaway: notices of claim should be carefully scrutinized for compliance with the

statutory requirements. Proper pre-suit notice to a government entity must 1) be made in writing by the claimant prior to filing suit; 2) served within 3 years of the claim accruing; and, 3) sent to the appropriate agency and if necessary, the Department of Financial Services. Failing to satisfy these requirements can be fatal to a plaintiff’s claim and provide an opportunity to seek dismissal of the case. By: Jennifer C. Barron

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3 At trial, Volin sought to recover the gross amount of her past medical bills, totaling

$101,402.55. She also sought to recover $35,835.22 in lost past wages and $25,272.08 for the loss of future earning capacity. Finally, Volin requested $750,000 for past noneconomic damages and $650,000 in future noneconomic damages.

The jury returned a verdict finding both Gulfstream and Volin 50% at fault. On the verdict

form, the jury awarded Volin $787,508.55, including (1) $101,402.55 for past medical expenses; (2) $25,271 in past lost wages; (3) $35,835 for loss of future earning capacity; (4) $325,000 in past noneconomic damages; and (5) $300,000 in future noneconomic damages. Post-trial, the court setoff certain amounts from the verdict and entered judgment for Volin in the amount of $360,225.34.

Gulfstream filed an appeal on the grounds that the court committed error when it denied

Gulfstream’s motion to preclude Volin from introducing the gross amount of her medical bills to the jury. Gulfstream contended that Medicare’s satisfaction of the debt for a lesser amount renders the amounts billed by her physicians inadmissible. Gulfstream’s position was that the jury should only be told the amount of the Medicare lien.

On appeal, the Fourth District held the gross amount a medical provider has billed for its

services is inadmissible as evidence at trial when Medicare satisfies the plaintiff’s medical expenses for a lesser amount. The court characterized the amounts billed by the provider, in excess of the Medicare payment, as being “phantom damages”, because they are amounts which the provider billed, but which the plaintiff will never pay. The court found the trial court committed error by admitting evidence of the gross amount of the medical bills, reversed the circuit court’s judgment, and remanded the case for a new trial on damages.

In explaining this decision, the Fourth District first distinguished between the evidentiary

treatment of Medicare payments and payments made by a health insurance company based upon Florida’s collateral source statute, Fla. Stat. § 768.76, as follows: “While payments from an insurance company are setoff from a verdict, Medicare benefits are not setoff and are not considered a collateral source. . . . The statute does not authorize a court to setoff payments from Medicare.”

The Court further explained that this ruling was entirely consistent with its prior decisions in Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547 (Fla. 4th DCA 2003) (error to admit the gross amount of a plaintiff’s medical bills if Medicare paid their medical providers a lesser amount in full satisfaction of the plaintiff’s medical expenses) and Boyd v. Nationwide Mut. Fire Ins. Co., 890 So. 2d 1240, 1241 (Fla. 4th DCA 2005) (explaining the holding in Thyssenkrupp and stating that “evidence of the contractual discount by Medicare providers should be excluded from trial”). It further noted that this decision was consistent with the decision reached by the Second District in Cooperative Leasing, Inc. v. Johnson, 872 So. 2d 956 (Fla. 2d DCA 2004) (appropriate measure of compensatory damages for past medical expenses when a plaintiff has received Medicare benefits does not include the difference between the amount that the Medicare providers agreed to accept and the total amount of the plaintiff's medical bills). The court also expressly rejected the argument that the above cases

Cont’d 4

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4 were implicitly overruled by the Florida Supreme Court in Joerg v. State Farm Mut. Auto. Ins. Co., 176 So. 3d 1247 (Fla. 2015), noting the Second District had reached the same conclusion in Dial v. Calusa Palms Master Ass’n, Inc., 308 So. 3d 690 (Fla. 2d DCA 2020).

Finally, because this issue arises frequently, the Fourth District certified the following question to the Florida Supreme Court:

DOES THE HOLDING IN JOERG V. STATE FARM MUTUAL AUTOMOBILE

INSURANCE CO., 176 SO. 3D 1247 (FLA. 2015), PROHIBITING THE INTRODUCTION OF EVIDENCE OF MEDICARE BENEFITS IN A PERSONAL INJURY CASE FOR PURPOSES OF A JURY’S CONSIDERATION OF FUTURE MEDICAL EXPENSES ALSO APPLY TO PAST MEDICAL EXPENSES?

We are cautiously optimistic that the Florida Supreme Court will affirm the decisions by

the Fourth District and Second District in Gulfstream and Dial, respectively. Unfortunately, these decisions do very little to address the larger problem with “phantom damages” in those situations where a plaintiff elects not to utilize his or her available insurance coverage (PIP or health insurance) or, when a physician treats pursuant to a Letter of Protection. In those circumstances, the fiction promulgated by the plaintiffs’ bar will be that the full medical bill is still “owed” and therefore the full medical bill should be introduced into evidence. As a practical matter, we all know that these bills are routinely negotiated or compromised based on cooperative agreements and liaisons between plaintiffs’ lawyers and the treating physicians/surgical centers/factoring companies. For some reason, by way of willful ignorance, the courts and Legislature continue to allow this charade to play out, resulting in egregiously inflated settlements and verdicts.

It would seem that two rather simple and common-sense changes in the law would go a

long way towards curbing this abuse of the system: 1. If a plaintiff has available insurance (PIP, Medicare, Medicaid, private health insurance)

he/she is required to use that coverage to pay his/her medical expenses. If plaintiff elects not to use his/her insurance, then at trial he/she would be limited to introducing evidence of the amount which the insurance would have paid, had they submitted the bills.

2. If a medical provider sells its medical bills, for treatment performed pursuant to a Letter of Protection, to a factoring company for a discounted amount, the defense would be entitled to discover the discounted amount paid by the factoring company for the pur-chase of the bills, and allowed to introduce evidence of that discounted amount at trial as evidence of the reasonable value of the services provided by the provider.

By: Michael J. Roper

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PIP REPEAL AND MANDATORY BODILY INJURY COVERAGE CLOSE TO REALITY IN FLORIDA

On April 30, 2021, the Florida Legislature voted to pass Senate Bill 54/House Bill 719 (the “Bill”), which would repeal Florida’s longstanding statutory Personal Injury Protection (“PIP”) framework and enact mandatory bodily injury (“BI”) coverage for all Florida drivers. The Bill passed with strong bipartisan support (Senate vote of 37-3; House vote of 100-16). The Bill will now head to the desk of Governor Ron DeSantis for consideration.

According to the Florida Office of Insurance Regulation (“OIR”), the primary difference

between PIP and mandatory BI is that under PIP, which is a no-fault coverage, persons injured in an auto accident seek coverage first under their own PIP policy, whereas under mandatory BI, persons injured in an auto accident would seek recovery from a responsible third-party’s BI coverage.

The Bill would repeal PIP and amend Section 324.022, Fla. Stat., otherwise known as the

Financial Responsibility Law, to require that every Florida driver maintain BI coverage of at least $25,000 per person and $50,000 per occurrence. The Bill would leave unchanged the current $10,000 property damage minimum coverage limit. The Bill would also create Section 627.7265, Fla. Stat., which provides that insurers must offer medical payments (“MedPay”) coverage at limits of $5,000 and $10,000. In addition, the insurer may also offer MedPay coverage at any limit greater than $5,000. Each auto policy is deemed to have $10,000 of MedPay coverage unless the insurer obtains the insured’s written refusal of coverage.

Over the past five years, there have been several unsuccessful bills considered by the

legislature, which would have repealed PIP and replaced it with some form of mandatory BI coverage with varying details and coverage limits. While the stated goal of PIP repeal has always been to reduce the cost to consumers, critics are not confident that cost reduction would be the ultimate outcome.

In order to assist the Legislature in its efforts, OIR commissioned Pinnacle Actuarial

Resources, Inc. (“Pinnacle”) to conduct a study analyzing the potential impact of PIP repeal. Under conditions similar to those of the Bill as passed ($25,000/$50,000 BI coverage with $5,000 of MedPay), the Pinnacle study predicts that overall average statewide premiums would actually increase slightly. Based on the Pinnacle study, OIR concluded that PIP repeal should not be pursued if the goal is simply to reduce auto insurance premiums.

What is not reflected by the projected average increase is that any premium increase will

likely be borne by those who do not currently carry BI coverage. Florida drivers who already carry BI coverage at the mandatory levels will likely see an overall reduction in their premium costs. Critics speculate that, because the premium cost increase will affect those least able to pay, the number of uninsured drivers will increase as a result of the Bill.

Should the Bill become law, the changes would take effect January 1, 2022. However,

policies that are valid as of December 31, 2021 under the old framework are deemed to meet minimum security requirements until the policy is renewed, nonrenewed, or canceled on or after January 1, 2022.

By: Brandon A. Montville

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IMPACT OF ADA ACCOMMODATIONS AND/OR WORKERS’ COMPENSATION LIGHT DUTY JOBS ON FMLA RIGHTS

In Ramji v. Hospital Housekeeping Systems, 992 F.3d 1233 (11th Cir. 2021), the employer in an action brought under the Family and Medical Leave Act (“FMLA”) sought to defend itself by arguing that the Plaintiff was not harmed by its alleged FMLA violation given its actions taken pursuant to the Americans with Disabilities Act (“ADA”) and the State’s workers’ compensation statute. The Eleventh Circuit rejected the employer’s arguments.

The Court explained that a “disability” under the ADA and a “serious health condition”

under the FMLA are different concepts. The ADA and the FMLA, though they may overlap, are distinct statutes that must be analyzed separately. Workplace accommodations are not a benefit provided employees under the FMLA. Thus, the employer may not, in lieu of FMLA leave entitlement, require the employee to take another job with a reasonable accommodation.

The Court went on to confirm that an employee who is absent from his or her job as a result

of a workers’ compensation injury may have his or her FMLA leave run concurrently (assuming all other FMLA qualifications are met). However, an employee who declines a light duty position; though he or she may lose workers’ compensation benefits; is still entitled to continue on FMLA leave until able to return to work, or until his or her FMLA leave is exhausted.

By: Michael H. Bowling

FOURTH DISTRICT COURT OF APPEAL CONFIRMS SOVEREIGN IMMUNITY PROTECTIONS FOR “SECURITY AND CROWD

CONTROL” FOLLOWING A HIGH SCHOOL BASKETBALL GAME

The Fourth District Court of Appeal, in the recent case of School Board of Broward County v. McCall, No. 4D19-104, 2021 WL 1991683 (Fla. 4th DCA May 19, 2021), confirmed that decisions of a school board as to security and crowd control following a basketball game are entitled to sovereign immunity protection, as such decisions implicate a planning level function, rather than an operational function.

McCall sued the School Board after he suffered injuries while attending a high school

basketball game. He alleged that after the game ended, a crowd of people leaving the school suddenly turned around and ran back onto campus. To avoid being an obstacle in the way of the running crowd, he turned and ran with the crowd. While running, he fell, injuring his hip and shoulder. McCall alleged the School Board failed to provide adequate security and crowd control.

The School Board moved for summary judgment based on sovereign immunity, arguing

McCall’s claim of negligent security was directed at a planning level function. The record Cont’d 7

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reflected that before each school year, the principal, assistant principal, and school resource officer of each high school, along with a security specialist, would meet and determine the necessary number of police and security personnel for each sporting event. McCall argued the game was an “operational level event” and the School Board’s alleged failure to provide adequate security was not protected by sovereign immunity. The trial court denied the School Board’s motion, finding the security personnel decisions were an operational function and the question for the jury would be “whether or not adequate measures were put in place to protect the community.” The School Board filed an interlocutory appeal.

The Fourth District reversed, finding the School Board immune from the claim. In reaching its decision, the Court receded from its prior decision in City of Belle Glade v. Woodson, 731 So. 2d 797 (Fla. 4th DCA 1999) noting that the Florida Supreme Court’s decisions since Woodson had “…rendered obsolete [our] reasoning in Woodson that the existence of a duty renders sovereign immunity inapplicable.” Sanchez v. Miami Dade County., 286 So. 3d 191, 192 (Fla. 2019). Specifically, the Court first found a school board “owe[s] a duty to provide security to patrons at the basketball game.” However, the Fourth District continued, “that duty does not supersede the School Board’s claim of sovereign immunity.” Id. The Court noted the number and placement of supervisory personnel constitutes a discretionary decision, which is protected by sovereign immunity. Accordingly, a governmental entity’s decision on where to allocate its security or police resources is a planning level decision that is not subject to civil liability. The Court distinguished this scenario from those situations wherein the questioned conduct is being performed at the operational level—namely decisions or actions which merely implement policy, planning, or judgmental governmental functions. In this case, the questioned governmental act was the security plan itself. Such plan was “essential to the realization of the School Board’s objective and policy to teach students.” Notably, plaintiff did not allege any individual negligence by any of the security personnel, nor did he accuse the School Board of failing to follow its own plan and procedures.

Judge Gross dissented from the majority opinion. He faulted the majority for relying on

prior case precedent which concerns prisons and public parks. He argued that “[a] school board has a different relationship to students than a law enforcement agency does to prisoners or a county does to the park-going general public.” In his view, “the planning level function . . . was the School Board’s decision to have a program of interscholastic sports that spectators could attend. The proper level or type of security at a game is an operational level function that will differ from school to school and sport to sport.”

While affirming the availability of sovereign immunity for a school board relative to school

events, McCall also highlights the importance of having a security plan, and following that

plan.

By: Michael J. Roper and

Dale A. Scott

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2021 LEGISLATIVE SESSION UPDATE

Friday, April 30, 2021, marked the end of this year’s legislative session. At the start of the 2021 session, Florida was one of 28 state legislatures where neither party had a veto-proof supermajority because Republicans controlled both chambers and the governorship creating a state government trifecta. Nonetheless, as with most years, this session was a roller coaster ride. The critical legislation having liability related or other notable impact on local government is set forth hereafter.

Home-Based Businesses HB 403 (SB 266) - Home-based Businesses (HBB). The bill allows home-based businesses to operate in any area zoned for residential use and activities but must be secondary to the property’s use as a residential dwelling. Local control over the regulation of home-based businesses is weakened because local governments are prohibited from regulating home-based businesses in a manner that is more stringent than a residential home where no business activity is conducted. Local governments cannot enact or enforce any ordinance, regulation, or policy to regulate or license a home-based business, except as allowed by the bill. Furthermore, a home-based business must meet the following requirements: the employees of the business who work at residential dwelling must reside in the dwelling, except for up to two employees or independent contractors, and the parking generated may not be greater than would normally be expected at a residence with no business operations and complies with local zoning requirements. Additionally, the amendment:

• Removes prohibitions on having business activities occur within view of the street.

• Removes local control over HBB hours of operation (leaving the bill with no regulation at all on hours of operation).

• Removes ability for local governments to regulate businesses signs, exterior storage, traffic/the number of cars coming and going from the house.

• Removes the prohibition on an HBB building external modifications that are visible from the street or neighboring properties.

• Removes local control on HBB uses or equipment or process that creates noise, vibration, heat, smoke, dust, glare, fumes, or odors. Instead, the amendment requires that such local regulations treat HBBs the same as any other residential property where no business is conducted.

• Keeps a provision that would allow an HBB owner to sue a local government and recover attorney fees for any violations by a local government of the new law.

NOTE: The bill passed 77-41 as amended in the House, and the Senate concurred in the House amendment and passed the bill on a vote of 19-18. Some four minutes later, however, Senator Farmer raised a point of order as to the passage of the bill because three Senators, who were on the Floor, failed to vote in violation of the Senate’s Rules. The Senate President ruled the point of order well taken and requested the House return the bill for the Senate to take further action. The House failed to return the bill before adjourning Sine Die. In addition, Cont’d 9

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9 many local government entities have sent veto requests to the Governor’s office related to this seemingly overreaching pre-emption. Firearms and Ammunition SB 1884 (HB 1409) - Preemption of Firearms and Ammunition Regulation. The bill preempts the whole field of regulation of firearms and ammunition, including the purchase, sale, transfer, taxation, manufacture, ownership, possession, storage, and transportation thereof, to the State. The bill provides the right to maintain a legal action against a preempted local regulation, regulating firearms and ammunition, and applies even if the local regulation is unwritten. Lastly, the bill provides a mechanism for a plaintiff to recover damages and attorney’s fees when a government entity changes its regulation while the regulation is being challenged. When a government entity voluntarily changes the regulation, the plaintiff challenging the regulation is considered the prevailing party and may recover actual damages and attorney fees. COVID-19 Liability Protections for Businesses and Healthcare Providers SB 72 (SB 74) - Civil Liability for Damages Relating to COVID-19 was signed into law on March 29. It provides heightened liability protections against COVID-19-related claims due to the threat of unknown and potentially unbounded liability claims that may arise as a result of the pandemic. The protections are extended vastly to all persons, businesses, or other entities, including healthcare providers. A COVID-19-related lawsuit against any defendant must be brought within 1 year after a cause of action arises unless the cause of action occurred before the effective date of the bill. However, if a cause arises before the effective date of the bill, the plaintiff has 1 year from the effective date of the act to bring the claim. The bill takes effect upon becoming a law and applies retroactively. However, the bill does not apply in a civil action against a particular defendant if the suit is filed before the bill’s effective date. The bill defines a COVID-19-related claim, against a person, business, or other entity, but generally not a healthcare provider, as a claim that arises from or is related to COVID-19. For claims against a person other than a healthcare provider, the bill establishes preliminary requirements that a plaintiff must complete before the case can proceed. A court must determine whether:

• The complaint was pled with particularity. • A physician’s affidavit was simultaneously submitted stating that, within a

reasonable degree of medical certainty, the physician believed that the defendant caused, through acts or omissions, the plaintiff’s damages, injury, or death. If the plaintiff did not meet these requirements, the court must dismiss the action, but the plaintiff is not barred from correcting the deficiencies and refiling the claim.

• The defendant made a “good faith” effort to substantially comply with authoritative or controlling health standards when the action accrued. If the court determines that the defendant made the requisite good faith effort, the defendant is immune from civil liability. Cont’d 10

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10 Public Records Exemptions in Emergencies HB 327 (SB 418) - Public Records/ Disaster Response. The bill creates a public records exemption for the address and phone number of a person held by an agency impacted during an emergency. The bill provides that the exemption created under the bill is subject to the Open Government Sunset Review Act in accordance with s. 119.15, F.S., and will be repealed on October 2, 2026, unless reviewed and saved from repeal by the Legislature. The bill also provides a statement of public necessity as required by the State Constitution, providing that the exemption is necessary to limit the amount of privacy a person must forfeit by choosing to enter a shelter, and to protect a person from those who might seek to exploit their vulnerability following a catastrophic event. The bill passed (39-1) in the Senate and heads to the Governor’s desk for final approval. Bill Prohibiting Anonymous Complaints by Code Inspectors SB 60 (HB 883) - County and Municipal Code Enforcement. The bill prohibits county and municipal code inspectors from opening an investigation into violations of city or county codes or ordinances through an anonymous complaint. However, the bill excludes code inspectors who find a violation that presents an imminent threat to the public health, safety, or welfare of a community. An individual who files a complaint must provide their name and address to county or city officials before an investigation occurs. SB 60 passed (27-11) in the Senate and (81-35) in the House. The bill heads to the Governor’s desk. Bert Harris Property Rights HB 421 (SB 1876) - Governmental Actions Affecting Private Property Rights. The bill is headed to the Governor’s desk for final approval. As passed, the bill modifies the Bert Harris Act by:

• Revising the term “action of a governmental entity” to include adopting or enforcing any ordinance, resolution, regulation, rule, or policy, and the term “real property” to include any legal interest in land, including surface, subsurface, and mineral estates and any other relevant land interest held by a property owner;

• Reducing the timeframe, from 150 days to 90 days, under which a property owner must notify the government before filing a court action;

• Specifying that written settlement offers are presumed to protect the public interest;

• Allowing the property owner to have the court, rather than a jury, determine damages;

• Extending the point from which a prevailing property owner may recover attorney fees and costs – from the date of filing the circuit court action to the date the property owner presents the claim to the head of the governmental entity; and

• Authorizing a property owner, at any time after enactment of a law or regulation, to notify the government in writing that he or she deems a law or regulation’s Cont’d 11

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11 impact on his or her real property to be restrictive of allowable uses. The

government entity must respond to the property owner within 45 days after receiving the property owner's written notice to describe the limitations imposed on the property by the law or regulation.

The bill also allows a property owner to challenge an unlawful government exaction upon his or her property without waiting for a written notice of the action if the local government action is imminent. Finally, the bill revises the definitions of “land” and “real property” under Florida Land Use and Environmental Dispute Resolution Act (FLUEDRA). Drone Use for Law Enforcement Agencies HB 1049 (SB 44) - Use of Drones by Government Agencies. Additional legislation, SB 518/HB 433, were absorbed and combined with SB 44. The bill provides exemptions for law enforcement use of drones for traffic management and collection of evidence at a crime or traffic scene. The bill specifies for drone use on a crowd of 50 people guidelines must be followed. This includes, specified use for the drone, appropriate release storage and release of images or videos collected by the drone, and the head of law enforcement must have written authorization for drone use. Additionally, the bill allows state agencies and local governments to assess damage due to flood, wildfire, or any other natural disaster as well as monitoring vegetation or wildlife management on publicly land or water. The bill was amended by the House Floor with new exceptions for law enforcement agencies. Law enforcement agencies can use drones to gain an aerial perspective of a crowd of 50 or more to assist with traffic management, however, the agency can not issue a traffic infraction with images and video captured by the drone. The amendment allows fire department personnel to use drones to perform tasks authorized under their certification. Lastly, the amendment limits drone use during natural disasters prior to the expiration of a declared emergency. The House passed the bill with a vote of 88-24, and the Senate concurred with the amendment and unanimously passed the bill. The bill heads to the Governor. Autonomous Vehicles SB 1620 (HB 1289) -Autonomous Vehicles. The bill allows autonomous delivery vehicles to operate on streets or roads where the posted speed limit is 35 miles per hour or less. A low-speed autonomous delivery vehicle may operate on a street or road with a posted speed limit of more than 35 miles per hour, but no more than 45 miles per hour, under certain conditions. All provisions within this bill are replaced by conflicting federal regulations. A low-speed autonomous delivery vehicle must be covered by automobile insurance policy and require seatbelts if there is a person on the vehicle. The bill was amended on the floor to include a new definition for the maximum weight for personal delivery devices from 80 pounds to a weight established by the Department of Transportation rule. Additionally, the bill was amended to modify requirements for autocycle break and steering wheel mechanisms. After amendment, the bill passed unanimously in the House and heads to the Governor’s desk for final approval. Cont’d 12

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12 Prohibiting Declaratory Relief in Response to Record Requests SB 400 (HB 913) - Public Records. The bill prohibits an agency from responding to a request to inspect or copy a record by filing an action for declaratory relief against the requester to determine whether the record is a public record as defined by Florida Statutes, Section 119.011, or the status of the record as confidential or exempt from the provisions of Florida Statutes, Section 119.07(1). The bill passed unanimously in both chambers and heads to the Governor's desk for final approval. Big Fail And finally, the “big fail” success story for local government is HB 1129 (SB 1678) - Sovereign Immunity. The bill proposed an increase to the statutory limits on liability for tort claims against the state and its subdivisions to $500,000 per person, when totaled with all other claims or judgments arising out of the same incident not to exceed $1 million. The bill failed to receive a hearing this session.

If you have any questions regarding any of these bills or the impacts of the same, you should contact your general counsel or feel free to contact our office directly. By: Sherry G. Sutphen

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FIRM SUCCESS

Derek J. Angell and Joe D. Tessitore obtained reversal of a trial court order denying

discovery into a medical provider’s sale of their bills to a “factoring company.” The trial court had ruled that the sale was privileged and confidential. Florida’s Fifth District Court of Appeal disagreed, holding, “When a health care facility treats a personal injury plaintiff, the defendant being sued is entitled to discover the amount of the original medical bills and any discounts agreed upon when the health care facility sells plaintiff’s unpaid accounts to a factoring company.” The Court continued that this information “is typically relevant when plaintiff seeks to recover reasonable medical expenses as part of a lawsuit.” This ruling should have a significant impact on the valuation of personal injury cases in Florida. Here’s why.

Outpatient orthopedic surgeries dramatically increase the value of routine personal injury

actions. The amount a surgical center “bills” a plaintiff is often not rationally related to the actual value of the service. For example, an outpatient surgical center might bill $55,000 for a procedure. If the patient has Medicare, the center will only be reimbursed, say, $2,500 in full satisfaction of the bill. Private insurance may pay $4,000. But when a plaintiff treats under a letter of protection from their personal injury attorney, the center will only get paid after the claim settles.

This is where factoring companies come in. A factoring company is in the business of

purchasing accounts receivable at a discount so that the original creditor can receive cash immediately. The factor then bears the risk of collection and nonpayment. In the personal injury context, a factor who purchases a surgical center’s bill is effectively speculating on the outcome of the tort claim. If the plaintiff hits a home run at settlement or trial, the factor would intend to collect on the entire facial amount of the bill. But if the plaintiff loses their case, the factor likewise loses its investment.

A factor might therefore purchase a $55,000 outpatient surgical bill for $7,500 or

$10,000. Such an arrangement remains a windfall to the surgical center compared to what it would receive from Medicare or private insurance. In this sense, the surgical centers are realizing enhanced profits as a direct result of their involvement in personal injury litigation. And the factors, who now have a contractual right against the plaintiff for the entire bill, know they will be paid far more than their investment down the line. In the end, the losers are Florida’s insurers and the plaintiffs themselves.

But there is another significant element of this scheme that is impacted by the Fifth

District’s ruling. Juries are often told to tie noneconomic damages to the medical bills. Showing that a surgical center sold its $55,000 bill for $7,500 should lead to reduced economic awards and, indirectly, noneconomic awards as a consequence. By indicating the “relevance” of a factoring sale, the Fifth District has signaled that juries will be entitled to hear this evidence.

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CONTACT A MEMBER OF THE FIRM

Michael M. Bell - mbell@bellroperlaw.com David B. Blessing - dblessing@bellroperlaw.com

Michael J. Roper - mroper@bellroperlaw.com Frank M. Mari - fmari@bellroperlaw.com

Michael H. Bowling - mbowling@bellroperlaw.com John M. Janousek - jjanousek@bellroperlaw.com

Joseph D. Tessitore - jtessitore@bellroperlaw.com Jennifer C. Barron - jbarron@bellroperlaw.com

Dale A. Scott - dscott@bellroperlaw.com Nicholas J. Mari - nmari@bellroperlaw.com

Christopher R. Fay - cfay@bellroperlaw.com Derek J. Angell - dangell@bellroperlaw.com

Cindy A. Townsend - ctownsend@bellroperlaw.com Thomas A. Moore - tmoore@bellroperlaw.com

Anna E. Engelman - aengelman@bellroperlaw.com April H. Rembis - arembis@bellroperlaw.com

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