The passage of CS/CS/HB 837 in Florida's 2023 legislative session has caused significant discussion in the world of tort law. See Comparative Redux (March 2023).
It is important to remember that employees of most businesses (four or more employees, subject to various other specific exclusions) are limited to workers' compensation as a recovery for injury at work. That limitation precludes employee lawsuits against their employers in most circumstances. That does not prevent the injured employee from suing someone other than the employer. It is also important to remember that section 440.39, Fla. Stat. allows employers and their workers' compensation carriers participation in the event that the injured worker successfully pursues tort recovery against someone else.
It is noteworthy that section 440.39(4)(a), Fla. Stat. even allows an employer to file that lawsuit against a third-party, "in his or her own name." That bears repeating: the employer can file a lawsuit in the employee's name against some third party. But, this employer right does not accrue until "1 year after the cause of action thereof has accrued." Thus, for one year after the work accident, the third-party lawsuit filing right is the employee's alone. During the second year, either the employer or employee could file that lawsuit.
After two years, the provisions of section 440.29(4)(a) revert the right to sue back to the employee alone. In fairness, there have been few employers over the years that have pursued a lawsuit in the name of the injured employee. That said, it has happened. The fact has been that usually when such an employee has a viable lawsuit, they have tended to prosecute it themselves.
An element of CS/CS/HB 837 that has garnered some news coverage is the statute of limitations. The limitation is merely an arbitrary line drawn by the law for the sake of structure and predictability. Any lawsuit is likely to be governed by some such limitation. These merely state that a lawsuit of a particular description must be filed within such a limitation period or it is forever lost. The point is for lawsuits to be pursued while the facts and circumstances are reasonably recent.
Statutes of limitations have been in the news often in recent years. With the "Me Too" movement and the allegations of abhorrent behavior, there has been a lamentation of victims being foreclosed by the passage of time. CNN reported on a New York law that "extended," but some say "revived" the statute of limitations to allow cases twenty years past to be litigated there. If that was not a revival, then the 2022 Adult Survivors Act in New York more certainly was. Forbes reported this allowed victims "to assert previously time-barred claims." An important point is that statutes can change.
Some contend that anticipation of the passage of Florida HB837 led to tens of thousands of lawsuits being summarily filed out of concern over the statute of limitations. See William Rabb, 25,000 Lawsuits by Today?, Insurance Journal, March 23, 2023. Others have voiced higher predictions.
The bill deleted "an action founded on negligence" in section 95.11(3). That section is a list of the kinds of lawsuits that are subject to a four-year statute of limitations. The "negligence" description was also added to section 95.11(4), which is a list of lawsuits that are subject instead to a two-year statute of limitations. Thus, the time period in which one may seek recovery in tort for negligence is now two years in Florida.
Some would argue that a statute of limitations has the power to negate someone's rights. That is true, but only someone that fails to proceed with that lawsuit in a timely manner. The next argument might be that the time period for filing a lawsuit cannot be changed after the event. That is, if Horace Middlemier, III, was injured through someone's negligence on April 1, 2019, his statute of limitations is four years, until March 31, 2023 (the statute in effect that day said so). That is (was) also true. But, there are potential wrinkles.
The statute of limitations may instead be deemed "procedural" and thus the new law is applicable to any pending claim. Thus, there was a four-year limitation when Horace was injured, section 95.11(3). He would have been allowed to file his lawsuit until March 31, 2023. But, with the change in the law on March 24, 2023, that period was changed to two years. Thus, if Horace filed his lawsuit on March 23, 2023 his suit may proceed. But, if he filed it on March 25, 2023, it has been more than two years since the injury, and the suit is likely barred by the new statute of limitations. See M.D. Transp. v. Paschen, 996 So. 2d 902, 904 (Fla. 1st DCA 2008).
This outcome, or the chance of it, perhaps drove the filing of so many lawsuits as the passage of HB837 became likely? An article published by The American Bar Association contends that "The classic example of negligence is the attorney who did not file a lawsuit before the statute of limitations expired." In that discussion of attorney malpractice, the author cautions that merely failing to file is not sufficient to maintain a malpractice case. Instead
"Even if it was an inexcusable error, it gives rise to a viable legal malpractice claim only if the client proves to a “legal certainty” he or she would have won the case had it been filed on time. The client must also prove how much money he or she would have won and that the judgment was collectible."
That is not to say that any lawyer would want to defend her or himself against such claims of malpractice. As an aside, the limitations on a claim for legal malpractice is section 95.11(4)(b), "an action for professional malpractice, other than medical malpractice." Thus, to avoid the prospect of defending oneself against a raft of unwarranted and unfounded lawsuits, there was some urgency to file various cases like Horace's described above.
Thus, there is an immediate effect of Florida's new law. There was logic in the filing of the many lawsuits before March 24, 2023. And, there is a reason for reflection on section 440.39. The reversion to the injured worker in this section is after two years. The statute of limitations regarding negligence actions is now likewise two years. Thus, in those actions, there is no reversion to the injured worker in section 440.39(4)(a), Fla. Stat. Some will therefore see this reversion as a nullity, a surplus.
While that is notable and accurate regarding negligence actions, there are potential causes of action that an injured employee might still pursue after two years. Section 95.11(3) maintains a four-year statute of limitations for several actions that might be involved in a workplace injury. These include (examples only, all lettered are direct quote):
(b) An action founded on the design, planning, or construction of an improvement to real property(d) An action for injury to a person founded on the design, manufacture, distribution, or sale of personal property . . .(f) An action founded on a statutory liability.(k) A legal or equitable action on a contract, obligation, or liability not founded on a written instrument,(o) An action for assault, battery, false arrest, malicious prosecution, malicious interference, false imprisonment, or any other intentional tort,(p) Any action not specifically provided for in these statutes.
Thus, the reversionary period, after two years, but before four years, in section 440.39(4) retains some potential operative effect. The rights of the employer to file "in his or her own name" remains in the second year following the worker's injury. And, it may be that fewer negligence lawsuits are filed overall, see Comparative Redux (March 2023).
