Comparative Redux

The 2023 legislative session will likely be remembered in the Florida legal world. It will perhaps have lasting historical importance due to the passage of CS/CS/HB 837. As a reminder, this designation means that the House Bill (HB) ultimately passed was changed in the process. There was a “committee substitute,” or “CS” on two occasions. “CS/HB837” would mean there was one committee substitute for House Bill 837. This is not of significance alone but is of interest. The CS denotes debate, discussion, and changes in the process.
There are various important aspects of this bill, but this post will focus on the sharing of fault when negligence leads to injury. In a simple example, two vehicles collide on a street. Driver ONE seeks damages from the other Driver TWO, and in our modern world from the other driver’s insurance company. For our example, we will assume that there is $100,000 in damages, and that Driver ONE is 20% at fault while Driver TWO is 80% at fault. Driver ONE files a lawsuit for damages.
As a side note, insurance is supposedly a secret that is generally kept from Florida juries that decide such cases, unlike workers’ compensation in which the carrier’s existence is not only known but usually stated patently in the case style. But see Winters v. Harper, 322 So.3d 192 (Fla. 1st DCA 2021). 
The English courts were confronted with such issues of multiple faults, and long ago established a legal doctrine called “contributory negligence.” This is said to have originated in England in 1809. Butterfield v. Forrester, 103 Eng. Rep. 926 (KB. 1809)(Plaintiff riding a horse a bit fast for the circumstances). The Florida Supreme Court adopted contributory negligence as the law of Florida in 1886, Louisville and Nashville Railroad Co. v. Yniestra, 21 Fla. 700 (Fla. 1886). Florida became a state in 1845. So, this was reasonably early in state history. 
Under that contributory analysis, Driver ONE would recover nothing. In contributory negligence, a party that is in any way at fault, even 1%, may not recover. This was once the majority rule in America. And there are states that retain this paradigm today (Alabama, Maryland, North Carolina, and Virginia). 
This is important in workers’ compensation. Workers’ compensation is a statutory derogation or departure from the tort system that evolved through common law. If in the accident hypothetical above Driver ONE was an employee and Driver TWO was her/his employer, then Driver ONE could not sue for negligence (tort) at all. Driver ONE would be limited to workers’ compensation benefit recovery for any bodily injuries. The foundation of this statutory change in rights and responsibilities is perceived as a “Grand Bargain” in which both employees and employers each gained benefit(s) and suffered detriment(s).
When workers’ compensation came to Florida in 1935, contributory negligence was the law. Thus, any employee might then have often struggled to recover in tort for employer negligence. Under contributory negligence, an employee deemed 1% at fault for an injury would recover nothing in a tort claim. Thus, there was significant benefit enjoyed by employees through the adoption of workers’ compensation, in which the employer was liable regardless of fault. Notably, that significant benefit came as a significant detriment (cost) to employers. There is yin and yang throughout. 
By Judge David Langham
Over the decades of the twentieth century, contributory negligence was viewed critically. Notably, Florida's history is not unique. Various American courts had adopted that process, a product of English common law. And some criticize the courts for essentially legislating, making law in the process. Similarly, various courts across the country began in the twentieth century to retreat from contributory negligence in response to the criticism and complaints.
This retreat is viewed from multiple perspectives. Some contend the courts should not have retreated from contributory negligence, but should have left that to the legislatures. Others contend the courts should not have created contributory negligence in the first instance, but see no wrong in the courts retreating (two wrongs make a right). Others criticize the courts both for the creation of contributory and the later retreat therefrom. 
There are debates over the separation of powers as regards this whole history. Notably, the retreat was largely judicial, but there are also examples of legislative retreats in some states. In short, the Grateful Dead likely said it best in Truckin (Warner Bros. 1971) - "Lately it occurs to me what a long, strange trip it's been."
What emerged instead, what was retreated to, was called “comparative negligence.” In comparative negligence, each party was held to account for the percentage of fault for which she/he/it was deemed responsible. In the example above, without the added complication of the employer/employee relationship, applying comparative negligence, Driver ONE could sue Driver TWO, but would collect only $80,000. Driver ONE could not collect from Driver TWO for the 20% of damages for which Driver ONE was responsible. 
This was seen as more fair, equitable, progressive, and less harsh. Many labels and characterizations have been used regarding it over the years. The fans of comparative negligence were critical that any degree of fault (1%) in contributory negligence could bar recovery. Thus, comparative swung fully to the other extreme allowing a party 99% at fault to nonetheless sue the 1% party. In correcting the perceived injustice of contributory, some perceived creating just another injustice. The proponents of comparative argued that it was nonetheless fair because the recovery was still limited in that instance to the 1%. 
While the damages are a particular consideration in this analysis, that is not the solitary consideration. The 1% defendant nonetheless found her/himself being sued (or threatened) and was faced with the challenges of defense, including defense costs and attorney fees. And, potentially, a 0% defendant might in fact be sued and perhaps would resort to a settlement because of the potential of being found 1% at fault. In some instances, such a defendant might find her/himself responsible for the attorney fees of the 99% at-fault plaintiff. There are various potential or arguable misgivings about pure comparative negligence. 
Notably, Florida’s Supreme Court spontaneously changed course one day (87 years after adopting contributory in 1886), abandoned contributory negligence, and adopted comparative negligence in 1973 in Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973). It changed the law in Florida. The Court explained that the change was justified “in light of current ‘social and economic customs' and modern ‘conceptions of right and justice.’” That changed the way Florida tort law worked. It made recovery more probable in instances in which a plaintiff had some, or even much, fault. Is it interesting that justice is not viewed as a constant, but is something that may be "modern," "current," or not? Are "right and justice" absolutes or variables?
Critics will note that not one Florida Supreme Court justice was elected by the people to decide what the law would be, nor are they even subject to a confirmation process. The justices are appointed by the Governor. Others will say this is not a worthy criticism as the justices that created Florida contributory were likewise appointed. Still others insist that courts making law has long been accepted, since the Norman Conquest (1160) and the origins of the Common Law. 
The Supreme Court's U-turn on contributory impacted workers’ compensation momentarily. Based on that change, the constitutionality of Florida workers’ compensation was again challenged. Acton v. Ft. Lauderdale Hosp., 418 So. 2d 1099 (Fla. 1st DCA1982). The argument was simply that workers' compensation was a grand bargain in the age of contributory negligence significantly challenging injured workers, but there was some buyer's remorse expressed in the new era of comparative. The bargain looked a bit less advantageous, less "grand," and some injured workers wanted the deal therefore stricken for all. The Court was not persuaded, and Florida workers’ compensation was again deemed constitutional.
Thus, Florida had begun with a process in which an injured party 1% at fault would recover nothing. It evolved to a process in which a party 99% at fault could nonetheless sue to recover 1%. And as time passed, comparative negligence began to attract critics of its own across the country. Florida was not immune to such criticism.
Some states began to modify the concept of comparative negligence, and others did not. Those that retained the 99%/1% described above came to be labeled “pure comparative negligence” states. Just as contributory negligence had lost favor and been replaced by comparative negligence, so did “pure” comparative negligence lose favor. Bloomberg lists the following as "pure" states today: Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, and Washington. Eleven states. They need to correct that "Florida" reference as it became incorrect last week.
Some contend that what emerged from the criticisms and evolution was “two types of modified comparative negligence.” While that generality is likely valid, it is also likely that some relatively minor distinctions exist within those two broad categories from state to state (perhaps there are more than two types in these two broad "categories"). 
With the signing of CS/CS/HB 837 Florida leaves the group of states that adhere to “pure comparative negligence.” Having judicially adopted "contributory" for 87 years, and judicially adopted "pure contributory" for 50 years, Florida's law is now legislated by the representatives elected by its people. This law brings Florida, legislatively, into a group of states applying one of the two “modified” courses. 
These two versions of "modified" are said to be “very similar.” In fact, the two that are described differ by 1%. The protagonist in television’s House once humorously stressed the significance of small differences and claimed “if her DNA was off by one percentage point, she’d be a dolphin.” The illustration is noteworthy, and despite seeming a small distinction, perhaps the difference of 1% may be of importance. But, this seems a small distinction nonetheless. 
It is likely that a civil jury will resort to round numbers, and thus 50% is a likely assignment of fault. Perhaps it is easy for a jury to say 50%/50%, It seems as likely that a jury concluding more fault will proceed from 50% to 55% to 60%, or some similar number. Absent some peculiarity, it seems unlikely a jury would randomly select 51%. 
Thus, “modified” comparative fault can be summarized - in some settings (“50 percent bar rule”), the party may not recover if “50% or more at fault.” In the second group, (“51% bar rule”), there is no recovery for a party “assigned 51% or more fault.” See Cornell Law for further definition and discussion. CS/CS/HB 837 brings Florida into this majority. The statute provides
“In a negligence action to which this section applies, any party found to be greater than 50 percent at fault for his or her own harm may not recover any damages. This subsection does not apply to an action for damages for personal injury or wrongful death arising out of medical negligence pursuant to chapter 766.”
Note, therefore, that if a jury sees equal fault, 50%/50%, in Florida there may still be recovery for the plaintiff. Fifty percent at fault does not bar recovery. The bar is for those "greater than 50 percent at fault." 
This is nonetheless undoubtedly a major shift as regards tort liability. But, from the perspective of workers’ compensation, the implications are limited. If the shift from contributory to pure comparative law did not change the Grand Bargain, it is difficult to see how a shift away from pure comparative (back towards contributory) to modified is a significant impact on the Grand Bargain. Thus, there seems little potential for any viable constitutional challenge of workers’ compensation based on this change.
It is important that workers’ compensation does include employer/carrier participation in tort recoveries. Section 440.39(1), Fla. Stat. (“such injured employee or . . . the employee’s dependents may accept compensation benefits . . . may pursue his or her remedy by action at law or otherwise against such third-party tortfeasor.”). 
Thus, when a worker is injured and entitled to workers’ compensation, she or he might also be able to sue some third-party motorist involved in the accident, the manufacturer of a machine that malfunctioned, or the owner of the premises in which the injury occurred. And, if the injured worker recovers in that suit, the employer/carrier is usually entitled to a share of that recovery.
The import, if any, of CS/CS/HB 837 in workers’ compensation will likely be in the probability that fewer such tort claims will be pursued. Before the change, an injured worker 99% (or allegedly 100%) at fault might nonetheless have sued for damages. The employer/carrier would have participated in that recovery, but because of the worker’s very high percentage of fault the repayment would be marginalized and likely minimal. That supposition is likely less valid in a case involving an injured worker 50% (or allegedly 55% or 75%) at fault, who may still pursue such claims. Therefore it is likely there will be fewer tort cases pursued to trial. Tort recoveries in settlements will likely decrease. Lien recovery will likely become less prevalent.
Thus, there is significance to the Florida personal injury law. CS/CS/HB 837 will affect many who are injured through their own fault. There will be some impact on workers’ compensation as a result of fewer tort claims and recoveries. And Florida joins the majority just as it did a few years ago with legislative and then judicial adoption of the Daubert evidentiary standard. That is another fine example of the debate on the separation of powers.
Some will complain about the legislation, but the consensus seems on the side of progress. The academics will point out that contributory was perceived as unjust, and that there are valid arguments that pure comparative is similarly unjust (equal and opposite, Newton's Third Law). The "modified" perhaps seeks the middle ground. That is little solace to the person injured, but 50.00000001% at fault. He or she is left responsible for their own outcome. Perhaps that seems unfair to the injured person. But, is it unfair to the person 1% at fault that an injured person 99% at fault could sue them? 
In the end, the law draws lines. They are often arbitrary. This "modified comparative" line is at work in a majority of states. This one was drawn by the elected representatives of the people, through the legislative process, and debate. This one became law upon the signature of the Governor. In the discussion of separation of powers, admitting the lines can be viewed as arbitrary, how should law be made? And, if the next "modern" decide in 50 years that there is some better approach, let them convince a court or legislature to make a new law. Progress, is, as they say, persistent. 
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    About The Author

    • Judge David Langham

      David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.

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