The Wall Street Journal
By The Editorial Board
Dec. 15, 2017 7:07 p.m. ET
Florida has attracted high earners and businesses with its zero income tax, but as night follows day the state has also become a paradise for plaintiff attorneys. That’s the dispiriting news from the American Tort Reform Association’s annual survey of state legal climates.
The Sunshine State ranks as the top destination for litigation abuse for the first time since ATRA commenced its annual report in 2002. Mainly to blame are plaintiff attorneys who won’t let an accident or disaster go to waste, and they have friends in high places of government.
The Florida Supreme Court this year blocked a state law that limited attorney fees in medical liability lawsuits against public hospitals. The 4-3 majority ruled that law firms were constitutionally entitled to a 25% cut of their client’s recovery. In another case, the same court overturned a statutory limit on noneconomic damages in malpractice cases—including claims for inconvenience and lost enjoyment of life.
The state Supreme Court has twice ruled that arbitration agreements between doctors and patients are invalid unless they include provisions that require health-care providers to first concede liability. This subverts the purpose of arbitration and encourages more class-action lawsuits. It may also violate the Federal Arbitration Act, as one hospital has argued in a cert petition to the U.S. Supreme Court.
A legal racket has also developed involving assignment-of-benefit claims that allow policyholders to sign over their rights to third parties (e.g., contractors and attorneys) who are later repaid by insurers. The report notes that “some attorneys and contractors then use these agreements to inflate pricing, perform unnecessary repairs to homes following a storm, for example, and then sue insurers when the exorbitant charges are questioned.”
The number of flood insurance assignment-of-benefit claims have soared to 28,000 in 2016 from 405 in 2007. Lawsuits by auto-glass companies against insurers have increased by more than 1300% since 2012.
A hotspot of legal abuse is the tony Miami enclave Coral Gables, which sued the utility Florida Power & Light Company after Hurricane Irma for a power outage. The city has a history of resisting the utility’s tree-trimming efforts, and excessive foliage increased damage to power lines. Coral Gables this year also sued short-term home-rental site FlipKey for listing properties in the city as well as Facebook for publishing user posts that criticized the city’s employment of private security guards. The city commissioner is a plaintiff attorney.
The forecast for Florida’s legal climate isn’t bright. Bipartisan legislative majorities this year killed bills to curb assignment-of-benefit and workers compensation abuses, among other legal reforms. GOP House Speaker Richard Corcoran, who is expected to run for Governor next year, has raked in donations from trial lawyers.
Three justices comprising the state Supreme Court’s current trial lawyer majority will be required to retire on Jan. 8, 2019— Gov. Rick Scott’s last day in office. Plaintiff attorneys have challenged Mr. Scott’s authority to appoint their replacements, and the case will be decided by the same judges. Florida has become a haven for taxpayers tired of being fleeced by politicians, but people may stop coming if they keep getting pick-pocketed by plaintiff attorneys.
Appeared in the December 16, 2017, print edition.