Disciplined in Sophisticated Defense and Insurance Litigation

January 25, 2019 | Blog Post| Introducing the New Florida Supreme Court (from an Insurance Perspective)

Ron DeSantis, the newly sworn Governor of the State of Florida, was given a unique opportunity to remake the Florida Supreme Court within his first days of office.  Three of the seven justices of the Florida Supreme Court were forced to step down in the first days of January 2019 due to mandatory retirement.  Those justices were Barbara Pariente, Peggy Quince, and Fred Lewis.  These three justices generally were part of a four or five justice majority in important decisions that were widely considered to be “pro plaintiff.”

Justice Alan Lawson joined the Supreme Court at the end of 2016.  Justice Lawson more times than not joined Justices Charles Canady and Ricky Polston in dissents from decisions that either struck down limitations on, or expanded, the ability to sue or recover damages.  These three justices made up the so-called “conservative wing” of the Supreme Court.  They remain on the Florida Supreme Court, along with Justice Jorge Labarga who generally joined the outgoing justices but began to vote with the more conservative justices toward the end of 2018.

In his first weeks in office, Governor DeSantis appointed three justices to replace Justices Pariente, Quince and Lewis.  The new justices are Barbara Lagoa, Robert Luck and Carlos G. Muñiz.  Justices Lagoa and Luck were previously judges on the Third District Court of Appeal.  Justice Muñiz has not previously served as a judge.  Prior to his appointment, Justice Muñiz served as general counsel for the U.S. Department of Education.  He previously served as deputy attorney general and chief of staff to Florida Attorney General Pam Bondi.  He also served as deputy general counsel in the Office of Governor Jeb Bush.

With the recent appointments, the seven justices of the Florida Supreme Court are: Charles Canady, Ricky Polston, Alan Lawson, Jorge Labarga, Barbara Lagoa, Robert Luck and Carlos G. Muñiz.  To better understand how these new justices change the composition of the Supreme Court, we will look at some of the recent closely divided decisions that are important from an insurance and tort perspective. 

Joyce v. Federated Nat'l Ins. Co.

In Joyce v. Federated Nat’l Ins. Co., 228 So. 3d 1122 (Fla. 2017), the Florida Supreme Court rejected a line of cases from the appellate courts that held that a contingency fee multiplier in statutory attorney fee awards should be awarded only in rare and exceptional circumstances.  In other words, Joyce made it easier for plaintiffs to claim and recover a multiplier on attorney fee awards.  The decision was joined by four justices.  Those justices included Justices Pariente, Labarga, Lewis, and Quince.  Three of those four have retired.  Justice Polston concurred in result only, but did not join the opinion.

Justices Canady and Lawson dissented. Both justices remain on the court.  The dissent concluded that “[t]he majority's decision points unmistakably to the need for a full re-examination of this Court's multiplier jurisprudence.”

Harvey v. GEICO Gen. Ins. Co.

In Harvey v. GEICO Gen. Ins. Co., 43 Fla. L. Weekly S375 (Fla. Sept. 20, 2018), the Supreme Court quashed a lower appellate court opinion in favor of Geico that reversed the denial of a motion for directed verdict in a third-party bad faith case.  The Harvey decision was written by Justice Quince, and joined by Justices Labarga, Lewis, and Pariente.  Justices Canady, Polston and Lawson dissented.  Perhaps signaling things to come, the dissent (written by Justice Canady) stated that “it is not ‘acceptable for the Court to merely say that bad faith is a jury question.  This Court should set forth ‘logical, objective’ rules for bad faith.’” 

Tiara Condo. Ass'n, Inc. v. Marsh & McLennan Companies, Inc.

In Tiara Condo. Ass'n, Inc. v. Marsh & McLennan Companies, Inc., 110 So. 3d 399 (Fla. 2013), the Florida Supreme Court held that the economic loss rule only applies only in the products liability context.  This was a 5-2 decision.  The majority included justices Pariente, Quince, Labarga, Lewis and Perry.  Justice Perry later was replaced by Justice Lawson.  Justices Canady and Polston dissented.

N. Broward Hosp. Dist. v. Kalitan

In N. Broward Hosp. Dist. v. Kalitan, 219 So. 3d 49 (Fla. 2017), the Florida Supreme Court held that statutory caps on non-economic damages in medical malpractice actions were unconstitutional.  This was a four justice majority opinion, which included Justices Pariente, Quince, Lewis and Labarga.  Justices Canady, Polston and Lawson dissented.

Sosa v. Safeway Premium Fin. Co.

Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91 (Fla. 2011) loosened the requirements for class certification.   The opinion was joined by Justices Lewis, Pariente, Labarga, and Perry.  Justices Canady, Polston and Quine dissented.  In a later case addressing similar issues, Justices Canady and Polston dissented, arguing that Florida’ jurisprudence in this area should adhere to the United States Supreme Court’s opinion in  Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).  See  Soper v. Tire Kingdom, Inc., 124 So. 3d 804, 806 (Fla. 2013).

Castellanos v. Next Door Co.

In Castellanos v. Next Door Co., 192 So. 3d 431 (Fla. 2016), the Florida Supreme Court struck down as unconstitutional a statute intended to limit attorney’s fees in worker’s compensation cases.  The majority included justices Lewis, Pariente, Labarga, Quince and Perry (since replaced by Justice Lawson).  Justices Canady and Polston dissented.

These cases present a sampling of recent insurance and tort decisions that have helped give Florida its reputation as a tough venue for insurance companies and defendants.  The newly appointed justices each were heralded by industry groups that advocate for business and insurance friendly reforms.  Insurance companies, corporations and attorneys will be watching the new Supreme Court closely to see how the new court addresses the issues discussed above as well as other hotly contested issues that soon will be before the Court.

Matthew J. Lavisky | PARTNER

Extra-Contractual, First-Party Coverage and Third-Party Coverage

(813) 281-1900 | TAMPA

Key Points