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       Florida Senate - 2010                                     SB 744
       By Senators Richter and Fasano
       37-00632B-10                                           2010744__
    1                        A bill to be entitled                      
    2         An act relating to negligence; amending s. 768.81,
    3         F.S.; defining the terms “negligence action” and
    4         “products liability action”; requiring the trier of
    5         fact to consider the fault of all parties to an
    6         accident when apportioning damages in a products
    7         liability action alleging an additional or enhanced
    8         injury; providing an effective date.
   10  Be It Enacted by the Legislature of the State of Florida:
   12         Section 1. Section 768.81, Florida Statutes, is amended to
   13  read:
   14         768.81 Comparative fault.—
   15         (1) DEFINITIONS DEFINITION.—As used in this section, the
   16  term:
   17         (a) “Economic damages” means past lost income and future
   18  lost income reduced to present value; medical and funeral
   19  expenses; lost support and services; replacement value of lost
   20  personal property; loss of appraised fair market value of real
   21  property; costs of construction repairs, including labor,
   22  overhead, and profit; and any other economic loss that which
   23  would not have occurred but for the injury giving rise to the
   24  cause of action.
   25         (b)Negligence actionmeans, without limitation, a civil
   26  action for damages based upon a theory of negligence; strict
   27  liability; products liability; or professional malpractice,
   28  whether couched in terms of contract, tort, or breach of
   29  warranty and like theories. The substance of an action, not
   30  conclusory terms used by a party, determines whether an action
   31  is a negligence action.
   32         (c)Products liability actionmeans a civil action based
   33  upon a theory of strict liability, negligence, breach of
   34  warranty, nuisance, or similar theories for damages caused by
   35  the manufacture, construction, design, formulation,
   36  installation, preparation, or assembly of a product. The term
   37  includes an action alleging that injuries received by a claimant
   38  in an accident were greater than the injuries the claimant would
   39  have received but for a defective product. The substance of an
   40  action, not the conclusory terms used by a party, determines
   41  whether an action is a products liability action.
   42         (2) EFFECT OF CONTRIBUTORY FAULT.—In a negligence an action
   43  to which this section applies, any contributory fault chargeable
   44  to the claimant diminishes proportionately the amount awarded as
   45  economic and noneconomic damages for an injury attributable to
   46  the claimant’s contributory fault, but does not bar recovery.
   47         (3) APPORTIONMENT OF DAMAGES.—In a negligence action cases
   48  to which this section applies, the court shall enter judgment
   49  against each party liable on the basis of such party’s
   50  percentage of fault and not on the basis of the doctrine of
   51  joint and several liability.
   52         (a)1. In order to allocate any or all fault to a nonparty,
   53  a defendant must affirmatively plead the fault of a nonparty
   54  and, absent a showing of good cause, identify the nonparty, if
   55  known, or describe the nonparty as specifically as practicable,
   56  either by motion or in the initial responsive pleading when
   57  defenses are first presented, subject to amendment any time
   58  before trial in accordance with the Florida Rules of Civil
   59  Procedure.
   60         2.(b) In order to allocate any or all fault to a nonparty
   61  and include the named or unnamed nonparty on the verdict form
   62  for purposes of apportioning damages, a defendant must prove at
   63  trial, by a preponderance of the evidence, the fault of the
   64  nonparty in causing the plaintiff’s injuries.
   65         (b)In a products liability action alleging that injuries
   66  received by a claimant in an accident were greater than the
   67  injuries the claimant would have received but for a defective
   68  product, the trier of fact shall consider the fault of all
   69  entities who contributed to the accident when apportioning fault
   70  between or among the parties and nonparties included on the
   71  verdict form.
   72         (4) APPLICABILITY.—
   73         (a)This section applies to negligence cases. For purposes
   74  of this section, “negligence cases” includes, but is not limited
   75  to, civil actions for damages based upon theories of negligence,
   76  strict liability, products liability, professional malpractice
   77  whether couched in terms of contract or tort, or breach of
   78  warranty and like theories. In determining whether a case falls
   79  within the term “negligence cases,” the court shall look to the
   80  substance of the action and not the conclusory terms used by the
   81  parties.
   82         (b) This section does not apply to any action brought by
   83  any person to recover actual economic damages resulting from
   84  pollution, to any action based upon an intentional tort, or to
   85  any cause of action as to which application of the doctrine of
   86  joint and several liability is specifically provided by chapter
   87  403 or, chapter 498, chapter 517, chapter 542, or chapter 895.
   88         (5) MEDICAL MALPRACTICE.—Notwithstanding anything in law to
   89  the contrary, in an action for damages for personal injury or
   90  wrongful death arising out of medical malpractice, whether in
   91  contract or tort, if when an apportionment of damages pursuant
   92  to this section is attributed to a teaching hospital as defined
   93  in s. 408.07, the court shall enter judgment against the
   94  teaching hospital on the basis of such party’s percentage of
   95  fault and not on the basis of the doctrine of joint and several
   96  liability.
   97         Section 2. This act shall take effect upon becoming a law.

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