September 18, 2020
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HB 433

A bill to be entitled
2An act relating to negligence; amending s. 768.81, F.S.;
3defining the terms "negligence action" and "products
4liability action"; requiring the trier of fact to consider
5the fault of all parties to an accident when apportioning
6damages in a products liability action alleging an
7additional or enhanced injury; providing an effective
10Be It Enacted by the Legislature of the State of Florida:
12     Section 1.  Section 768.81, Florida Statutes, is amended to
14     768.81  Comparative fault.-
15     (1)  DEFINITIONS DEFINITION.-As used in this section, the
17     (a)  "Economic damages" means past lost income and future
18lost income reduced to present value; medical and funeral
19expenses; lost support and services; replacement value of lost
20personal property; loss of appraised fair market value of real
21property; costs of construction repairs, including labor,
22overhead, and profit; and any other economic loss that which
23would not have occurred but for the injury giving rise to the
24cause of action.
25     (b)  "Negligence action" means, without limitation, a civil
26action for damages based upon a theory of negligence; strict
27liability; products liability; or professional malpractice,
28whether couched in terms of contract, tort, or breach of
29warranty and like theories. The substance of an action, not
30conclusory terms used by a party, determines whether an action
31is a negligence action.
32     (c)  "Products liability action" means a civil action based
33upon a theory of strict liability, negligence, breach of
34warranty, nuisance, or similar theories for damages caused by
35the manufacture, construction, design, formulation,
36installation, preparation, or assembly of a product. The term
37includes an action alleging that injuries received by a claimant
38in an accident were greater than the injuries the claimant would
39have received but for a defective product. The substance of an
40action, not the conclusory terms used by a party, determines
41whether an action is a products liability action.
42     (2)  EFFECT OF CONTRIBUTORY FAULT.-In a negligence an
43action to which this section applies, any contributory fault
44chargeable to the claimant diminishes proportionately the amount
45awarded as economic and noneconomic damages for an injury
46attributable to the claimant's contributory fault, but does not
47bar recovery.
48     (3)  APPORTIONMENT OF DAMAGES.-In a negligence action cases
49to which this section applies, the court shall enter judgment
50against each party liable on the basis of such party's
51percentage of fault and not on the basis of the doctrine of
52joint and several liability.
53     (a)1.  In order to allocate any or all fault to a nonparty,
54a defendant must affirmatively plead the fault of a nonparty
55and, absent a showing of good cause, identify the nonparty, if
56known, or describe the nonparty as specifically as practicable,
57either by motion or in the initial responsive pleading when
58defenses are first presented, subject to amendment any time
59before trial in accordance with the Florida Rules of Civil
61     2.(b)  In order to allocate any or all fault to a nonparty
62and include the named or unnamed nonparty on the verdict form
63for purposes of apportioning damages, a defendant must prove at
64trial, by a preponderance of the evidence, the fault of the
65nonparty in causing the plaintiff's injuries.
66     (b)  In a products liability action alleging that injuries
67received by a claimant in an accident were greater than the
68injuries the claimant would have received but for a defective
69product, the trier of fact shall consider the fault of all
70entities who contributed to the accident when apportioning fault
71between or among the parties and nonparties included on the
72verdict form.
73     (4)  APPLICABILITY.-
74     (a)  This section applies to negligence cases. For purposes
75of this section, "negligence cases" includes, but is not limited
76to, civil actions for damages based upon theories of negligence,
77strict liability, products liability, professional malpractice
78whether couched in terms of contract or tort, or breach of
79warranty and like theories. In determining whether a case falls
80within the term "negligence cases," the court shall look to the
81substance of the action and not the conclusory terms used by the
83     (b)  This section does not apply to any action brought by
84any person to recover actual economic damages resulting from
85pollution, to any action based upon an intentional tort, or to
86any cause of action as to which application of the doctrine of
87joint and several liability is specifically provided by chapter
88403 or, chapter 498, chapter 517, chapter 542, or chapter 895.
89     (5)  MEDICAL MALPRACTICE.-Notwithstanding anything in law
90to the contrary, in an action for damages for personal injury or
91wrongful death arising out of medical malpractice, whether in
92contract or tort, if when an apportionment of damages pursuant
93to this section is attributed to a teaching hospital as defined
94in s. 408.07, the court shall enter judgment against the
95teaching hospital on the basis of such party's percentage of
96fault and not on the basis of the doctrine of joint and several
98     Section 2.  This act shall take effect upon becoming a law.

CODING: Words stricken are deletions; words underlined are additions.
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