Trucking Takes On Lawsuit Abuse in Florida
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For years, Florida owned a spot on the American Tort Reform Foundation’s “Judicial Hellholes” list for its reputation for being a place where judges in civil cases systematically apply laws and court procedures in an unfair and unbalanced manner, generally to the disadvantage of defendants.
That could soon be changing as the Florida Trucking Association and its business allies take on lawsuit abuse in the state’s courts, and with the state Legislature, where the climate for change seems to be improving, according to the ATRF.
As recently as 2017, Florida was No. 1 on the group’s infamous list. Today its legal climate has improved, and the state has been downgraded to the group’s “watch list.”
Armstrong
The winds of change blew strong earlier this year when the association and its allies got credit for playing a role in urging the Florida Supreme Court to bring the state’s summary judgment law in line with federal standards and most other states in the U.S.
The influential case that Florida’s high court used to change the law involved a trucking accident lawsuit that a state appellate court declined to dismiss, despite compelling truck dashcam video evidence that indicated the truck driver was not at fault.
A little over a year ago, the association and the Florida Justice Reform Institute filed a joint amicus curiae brief with the Supreme Court, asking it to bring the antiquated summary judgment rule up to date.
“That decision was a big one for us,” said Ken Armstrong, president of the Florida Trucking Association. “For decades, our Supreme Court took a different view of when summary judgment should be granted than most of the rest of the country — the federal standard and 38 other states.”
A summary judgment is a judgment entered by a court for one party against another party without a full trial.
Pianka
“Florida had a much more open-ended standard that basically resulted in stuff going to trial even when there was not the requisite genuine dispute,” said Richard Pianka, deputy general counsel for American Trucking Associations. “The new ruling brings the standard for summary judgment into line with where the vast majority of courts have been, and should make the system more fair.”
“Other states had a system by which if you are the defendant, and after going through the discovery process, you present a petition to the court saying this case has no merit, and here are the reasons why they are valid,” Armstrong said. “Then the burden of proof shifts back to the plaintiff to prove why the court should not dismiss the case. Florida’s law was not that.”
In January, the state trucking association held a closed-door lawsuit abuse forum for guidance from some of its members on how to spur reform in the courts and seek legislation to rid the court system of unfair rules and processes.
The group also is teaming with other reform and business groups to change a variety of unfair state laws and court procedures when the Legislature comes back in session in March. They include legislation giving motor carriers and the business community protection from liability from COVID-19 employee lawsuits, and protecting trucking defendants from inflated victim medical damages from plaintiff lawyers in trucking accident lawsuits.
The association also is supporting legislation that would stop plaintiff attorneys from frequently abusing a contingency fee multiplier process, and disallowing litigation financing that assists plaintiff attorneys in their costs prosecuting civil litigation against truckers.
The state high court’s Dec. 30 summary judgment ruling came after an appeal of a state appellate court that ruled that state law did not allow video evidence to support a summary judgment, reversing the trial court’s grant of a summary judgment.
The Florida Supreme Court (@flcourts) in late December ruled that Florida should align with a federal summary judgment standard, and has requested public comments by March 2, before the new standard takes effect in May. Here’s what you need to know. 1/5#FlaPol — Florida Justice Reform Institute (@FLJusticeReform) February 9, 2021
“It was an onboard truck video camera case, and the video clearly showed that the truck was staying in its lane, and doing what it was supposed to do as it came up to a stop at a traffic light,” Armstrong said. “The plaintiff produced an eyewitness who said the truck swerved out of its lane.”
But the truck’s dashcam video told the true story, and the Supreme Court agreed that the case was a textbook example calling for a summary judgment dismissing the case, noting that the federal summary judgment standard “is more rational, more fair and more consistent with the structure and purpose of our rules of civil procedure.”
In a friend-of-the-court brief filed with the Supreme Court, the association said many of its members employ on-premises or in-vehicle video equipment for risk management and security purposes, and rely on the information captured by such video equipment in defending lawsuits arising from incidents of alleged injury.
“Reliance on objective video evidence plays a critical role when it comes to managing risk and controlling litigation expense,” the brief said.
In its ruling, the Supreme Court said, “Our goals are simply to improve the fairness and efficiency of Florida’s civil justice system, to relieve parties from the expense and burdens of meritless litigation, and to save the work of juries for cases where there are real factual disputes that need resolution.”
But there are several additional issues on the association’s legislative reform list. For one, Armstrong said that an existing contingency fee multiplier rule allows plaintiff attorneys to ask a judge to increase their fees above the typical 33% fee of a jury verdict award or settlement agreement in cases that are “highly technical.”
“Over the years that good motive has been warped on almost every case with the plaintiff attorney asking for the multiplier fee — and the court is awarding it just willy-nilly in spite of what was originally intended, which is extraordinary circumstances,” Armstrong said.
“We are having a huge number of capital venture firms jumping into the legal space to fund lawsuits basically on the gamble that the plaintiff will win,” he added. “If you are a capital venture firm that finances lawsuits by lending money to a plaintiff attorney to carry the lawsuit forward, the rate of interest can be as high as 40% a year.”
Armstrong noted that because cases can take at least a year or two to be resolved, the amount of money tied up in interest can give the financier a say in how the cases get litigated. “It decreases the likelihood that a case is going to be settled, thereby increasing the chance that it’s going to a jury trial,” he said.
Armstrong said he’s confident the group’s legislative efforts will be passed into law, and that the Supreme Court has become “rebalanced” in recent years, more attentive to businesses.
“I think we’ve got a very good chance,” he said. “But there’s obviously opposition to this. Florida has a lot of plaintiffs attorneys, and it’s not an easy process to get legislation passed, signed by the governor and then not overruled by the courts. But if there’s ever a time when we are going to curb lawsuit abuse, this is the time.”
There is another factor that could help the association’s fight for reform, he said.
In a poll conducted for FTA by Mason-Dixon Polling & Research Inc. last summer, the state’s residents’ approval rate for truckers rose to 87% from a prior poll giving truckers a 57% approval rate, according to Armstrong.
The poll, taken at the height of the pandemic, says a lot about the hard work of truckers in getting much-needed goods to destinations such as grocery stores and online retail customers, he said.
“We’re in a very strong position now with the public and with consumers, businesses and legislators,” Armstrong said.
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