Florida SB 236 Tort Reform 2023: Modified Comparative Fault, Attorney Fees, and What Changed
Florida's March 2023 tort reform legislation — enacted through HB 837, the companion to SB 236 — represents the single most significant restructuring of Florida personal injury law since the 1990s. Governor DeSantis signed the legislation on March 24, 2023, and its provisions apply to causes of action accruing on or after that date. Cases filed under the prior law may continue under prior rules, creating a bifurcated litigation environment that Florida courts will be managing for several more years.
The headline change is Florida's shift from pure comparative negligence to modified comparative fault. Under the prior pure comparative fault system, a plaintiff who was 90% at fault could still recover 10% of damages from a defendant who was only 10% at fault. Under the new modified system, a plaintiff who is found to be more than 50% at fault for their own injuries is barred from recovery entirely. This change brings Florida in line with the majority of states and fundamentally alters how defense counsel approach contributory negligence arguments — a defense that was previously used primarily to reduce damages now becomes a potential complete bar.
The change has particular impact in premises liability and multi-vehicle accident cases, where establishing plaintiff comparative fault above 50% becomes a complete defense rather than merely a damages reduction tool. Defense lawyers have reported significantly more aggressive contributory negligence discovery and presentations in these case categories. From the plaintiff's perspective, cases where client conduct is a substantial factor in causation require more careful pre-suit evaluation of the comparative fault exposure.
On attorney fees, the reform eliminated the prevailing-party attorney fee provision that had previously applied to insurance bad faith claims under sections 624.155 and 627.428. Under the prior statute, an insured who prevailed in a bad faith action against their insurer was entitled to attorney fees as a matter of right. The elimination of this provision is expected to reduce the volume of bad faith litigation, which insurers argued was used as a coercive settlement tool rather than a legitimate remedy. Plaintiffs' counsel counter that without fee-shifting, smaller bad faith claims are economically unviable to litigate, effectively shielding insurers from accountability for low-dollar wrongful claim denials.
The statute also amended Florida's insurance bad faith standard. Previously, Florida applied a relatively low threshold for bad faith liability under section 624.155. The amended statute now requires a showing that the insurer failed to adopt and implement standards for the prompt investigation and settlement of claims — a more explicit and somewhat higher bar that aligns Florida's standard more closely with the NAIC model bad faith provisions.
Medical damages in personal injury cases are also affected. The reform limits recovery of medical damages to the amount actually paid or actually owed (not the amount billed) when evidence of medical expenses is introduced. This "paid or incurred" standard replaces the prior rule that allowed introduction of full billed charges as evidence of damages, a practice that often produced artificially inflated damage presentations. The change significantly affects negotiation leverage in cases where medical liens or letters of protection created a gap between billed amounts and actual payment obligations.