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HB 837’s Enabling Legislation: Note the different language for insurance and the new statute of limitations

Section 28. The amendments made by this act to s. 95.11, Florida Statutes, apply to causes of action accruing after the effective date of this act.
Section 29. This act shall not be construed to impair any right under an insurance contract in effect on or before the effective date of this act. To the extent that this act affects a right under an insurance contract, this act applies to an insurance contract issued or renewed after the effective date of this act.

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Cases filed by March 24th

It should be easy for our trial judges to conclude that for all cases filed before March 25, 2023, the statute does not apply.
Certainly, in cases where there are no amendments to the Complaint to add new causes of action, or new parties.
The Legislature’s express statement could not be clearer.
“The ‘plain meaning of the statute is always the starting point in statutory interpretation.’” Alachua County v. Watson, 333 So. 3d 162, 169 (Fla. 2022)
“[W]hen determining the meaning of a statute, courts do not reach policy considerations where the statute’s meaning is clear.” Shim v. Buechel, 339 So. 3d 315, 317 (Fla. 2022).

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Cases filed by March 24th

Courts have followed the plain language of a law when the law states that it should be applied prospectively. See Theodorou v. Burling, 438 So. 2d 400, 402 (Fla. 4th DCA 1983) (“The statute on its face is not to apply to any ‘action’ filed before July 1, 1980.”).
Brown & Brown, Inc. v. Gelsomino, 262 So. 3d 755, 758 (Fla. 4th DCA 2018) (indicating that the language in a 2006 law showed an intent to apply the law prospectively).

“This act shall take effect upon becoming a law and shall apply to causes of action that accrue on or after the effective date.” Ch. 2006-6, § 2, Laws. of Fla.
What’s remarkably similar? Section 30 in HB 837: “this act shall apply to causes of action filed after the effective date of this act.”

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Easy textualism

Trial judges should start and end with HB 837’s express language, at least for causes of action filed before 3/25/23. Easy textualism.
See School Bd. v. Fla. Dep’t of Health, 329 So. 3d 784, 787 (Fla. 3d DCA 2021) (“[W]e begin with the language of the statute, and, here, because that language provides a clear answer, it ends there as well.” (citation and quotation marks omitted)); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (“Textualism . . . begins and ends with what the text says and fairly implies.”).

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The Legislative drafting process

A review of the information publicly available on the Florida Senate’s website (https://www.flsenate.gov/Session/Bill/2023/837), as well as transcripts that were prepared from publicly available recordings of committee hearings illuminates the history and text of HB 837.
This legislation originated from House Bill 837, a general bill by the House Judiciary Committee filed February 15, 2023, that provided it would “take effect July 1, 2023,” but contained no directions on how it would apply when it took effect.

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The Legislative drafting process

A second committee substitute bill was filed by the House Judiciary Committee on March 9, 2023, with a new effective date providing it would “take effect upon becoming a law” and an application direction that “[t]he procedural changes within this act are remedial in nature and shall apply to all pending and prospective claims.” This was not the last word
In parallel proceedings in the Senate chamber, Senator Hutson, who sponsored the Senate version (SB 236), made clear at hearings on March 14 and 16, 2023, in the Senate Judiciary and Fiscal Policy Committees, that the Senate was “holding strong” to ensure that the law was prospective only, with Senator Stewart adding that it was “very important for us to put on the record” that the new legislation would not be applied to pending cases.
On March 14, 2023, Representative Gregory filed amendment 263047 in the House. This was a strike-all amendment replacing the text of the second committee substitute bill with a new version that, in relevant part, replaced the application provisions with sections 28-31. Amendment 263047 was adopted by the House on March 16, 2023, and all further amendments failed.
The engrossed bill (the second committee substitute bill as amended by 263047) passed in the House 80-31 on March 17, 2023, and passed in the Senate 23-15 on March 23, 2023. The enrolled bill was then sent to and signed by the Governor on March 24, 2023. It was designated Chapter No. 2023-15 on March 27, 2023.

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Defense Firm Websites

Tellingly, the defense bar fully agreed that HB 837 would not apply to cases filed before the law took effect.
Writing on March 23, 2023, the day before HB 837 took effect, the Florida Defense Lawyers Association told the Florida Supreme Court that trial lawyers were quickly filing tens of thousands of lawsuits “in order to avoid the impact of HB 837,” and asked the Court to consider issuing an emergency administrative order to allow defendants additional time to answer these lawsuits.
The letter was signed by four highly well-regarded FDLA officers, two of whom are Board-certified appellate attorneys, and all four who work for prominent defense firms across the State.
If it were actually true that HB 837 applied to pending cases filed before the law took effect, then how would plaintiffs have been filing around 200,000-plus lawsuits that would avoid the impact of HB 837?

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Defense Firm Websites

Over two dozen defense and corporate Firms acknowledged the obvious, that the statute does not apply to cases filed by 3/24/23.
While a few of these Firms (like Luks Santaniello) have tried to backtrack in a misguided attempt at advocacy, these Firms’ public views has been preserved.
In your filings: You can submit an Exhibit that lists twenty-seven defense and insurance industry firms that have all explained HB 837 does not apply to lawsuits filed by the effective date of the law.

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Defense Firm Websites

https://www.wickersmith.com/featured-news/florida-tort-reform-major-changes-what-to-know-and-why/
Effective Date HB 837/ SB 238 became effective law on the date of signature, March 24, 2023, and will apply to any lawsuit filed thereafter.
https://marshalldennehey.com/articles/florida-passes-tort-reform-what-you-need-know
On March 24, 2023, Florida Governor Ron DeSantis signed House Bill 837, “Civil Remedies,” into law. HB 837 contains sweeping tort reform that will uproot the landscape of Florida civil litigation. The changes apply to causes of action accruing after the effective date—March 24, 2023. Prior to the bill becoming law, plaintiffs’ firms, anticipating this monumental change, filed approximately 100,000 lawsuits. These filings represent approximately 77% of the total cases filed since January 1, 2023. Below is a brief summary of the changes and the potential impact the new law brings.

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Section 57.105

Section 57.105 safe-harbor motions.
Any attempt to have the statute apply to causes of action filed before 3/25/23 is in bad-faith, for any parts of HB 837. For many reasons.
The fact four judges have held the statute applies to pending cases is not a legal defense to Section 57.105 fees. See Boca Burger, Inc. v. Forum, 912 So. 2d 561, 569-71 (Fla. 2005) (holding that section 57.105 sanctions may be awarded for defending a patently erroneous trial court order).

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A refresher on 57.105

Section 57.105 safe-harbor motions.
A reminder: The safe-harbor motion is not a letter. There is no reason to ever serve an accompanying letter. It is a waste of your time.
You serve an actual Motion– the Motion you will file if the offending pleading is not withdrawn in 21 days or less.
I recommend you lay out the arguments in the Motion.
You must serve the Motion by email in the format of court-filed documents.
Your email serving the Motion should look, walk, and talk like a court-filed document.
There is no reason for the email to include any commentary.

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The Subject Line of the Safe-Harbor Motion email: �SERVICE OF COURT DOCUMENT CASE NUMBER 472018CA000222CAAXMX HELFINSTINE, JOSEPH VS REYES ROMERO, DEIMIEN JORGE

SERVICE OF COURT DOCUMENT, Case No.	47-2018-CA-000222
COURT	Nineteenth Judicial Circuit in and for Okeechobee County, Florida
CASE NAME	JOSEPH HELFINSTINE, as Personal Representative of the Estate of TAMMY HELFINSTINE ANDREWS, Deceased and JOHN SIMMS, as parent and natural guardian of JACOB SIMMS, a minor, Plaintiffs, v. SAW UNLIMITED GROUP, LLC, a Florida Corporation, BLK TRANSPORT, LLC, a Florida Corporation, J SIERRA INVESTMENTS, LLC, a Florida Corporation, LCAP EQUIPMENT, LLC n/k/a BIK EQUIPMENT LLC d/b/a BRAVADO TRUCKING, a Florida Corporation; PIOBARI LEASING, LLC, a Florida Corporation; DEIMIEN JORGE REYES ROMERO, BULK EXPRESS TRANSPORT, INC., a Florida Corporation, SOILTECH DISTRIBUTORS, INC., a Florida Corporation, STD ENTERPRISES, INC., a Florida Corporation, and ASHBRITT, INC., a Florida Corporation, Defendants.
TITLE OF DOCUMENT(S)	PLAINTIFFS’ MOTION FOR SANCTIONS PURSUANT TO SECTION 57.105, FLORIDA STATUTES, AGAINST DEFENDANT, ASHBRITT, INC. AND ASHBRITT, INC.’S ATTORNEYS, BRIAN D. STOKES, ESQ., P. RAUL ALVAREZ, JR., ESQ., JEFFREY M. THOMPSON, ESQ., MATTHEW R. SCHRECK, ESQ., CHRISTOPHER M. ALVAREZ, ESQ., AND THEIR LAW FIRM, ALVAREZ, WINTHROP, THOMPSON & SMOAK, P.A.
SENDER	Andrew Harris, Esq.
TELEPHONE NO. OF SENDER	(561) 867-9500
EMAIL OF SENDER	andrew@harrisappeals.com

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A refresher on 57.105

Section 57.105 safe-harbor motions.
You do not have to ever file the motions on Day 22 or any time – you can wait to see if your judge has ruled on the issue during and after the safe harbor period.
You can ask a judge to reserve on this issue.
You also do not need to serve these motions in every case.
Consider your relationship with opposing counsel and that Firm. You have to represent the best interests of all your clients in all of your cases.
And consider your judge. For example, here in the 15^th Judicial Circuit, I have seen orders from Judge Goodman where he is denying Plaintiff Motions to Strike Affirmative Defenses on procedural grounds. He has advised the Plaintiff’s counsel to bring this after discovery is complete, in a motion in limine.

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Cases filed by March 24th

To date, most judges have held HB 837 cannot be applied to cases (or causes of action) filed before 3/25/23. 32-4 or so from orders shared.
This has been examined mostly as to Section 768.0427 so far.
The analysis for most judges is simple. The Legislature expressed that the statute would apply prospectively. That is the end of the story.
A few judges in holding the statute cannot be applied to filed cases have engaged in a procedural/substantive debate.
My advice is to steer your trial judge to the plain language of the statute.
The procedural/substantive fight is surely going to be a ripe issue – but this should be for cases (or causes of action) that are filed on 3/25 or later.

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The outlier judges

Judge Anne-Leigh Gaylord Moe in Tampa: Order #1. A 40-page Order holding that at least part of HB 837 applied to a pending case in Sapp v. Brooks, No. 17-CA-5664 (Fla. 13th Cir. Ct. May 19, 2023).
Judge Moe engaged in a procedural/substantive analysis, concluding Section 768.0427 is retroactively applied.
She held the Legislature was constitutionally prohibited from directing that a procedural/remedial statute apply only to future cases, though she referenced no constitutional provision for this conclusion.
Headline Note: There is no constitutional provision, or case law, supporting her reasoning.

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The outlier judges

Judge Moe’s Order is, well, flawed.
Unfortunately, many legal arguments were not briefed in that case.
To be fair, I don’t know that anyone could have anticipated this reasoning.
Judge Moe cited cases holding that the Legislature’s express intent could not be followed by the judicial branch. But in each of these cases, the Legislature expressed an intent for the law to be applied to pending cases or claims that had accrued, but the law was held to be substantive.
The Legislature’s intent in those cases that a law govern a pending case or accrued claim was itself unconstitutional because it violated a plaintiff’s substantive, vested rights, or impaired a contract entered into before the statute’s effective date.

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The outlier judges

Even if Judge Moe were correct the statute, or at least Section 768.0427, is procedural, it cannot be applied to cases already filed.
The Legislature’s expressed intent must be respected by our trial judges, where the Legislature expressed the intent for the law to only apply to future cases.
There has never been a case where the Legislature has explained a law should apply for future cases, where the judicial branch has ignored that because the law has procedural or remedial effects.
A hypothetical: Consider that the Legislature somehow declared that all pleadings in court cases must be in Times New Roman and Font Size 12. The Legislature states that this applies to cases filed after today’s date.
Is Judge Moe really saying that you are now prohibited from using your preferred Arial Font Size 14 in your filings next week in a pending case?

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The outlier judges

Judge Moe did not understand or recognize that if procedural, she also lacked the authority to implement Section 768.0427 to pending cases.
The Florida Constitution states that the Florida Supreme Court “shall adopt rules for the practice and procedure in all courts.” Art. V, § 2, Fla. Const. The constitution further provides that no branch of government “shall exercise any powers appertaining to either of the other branches” unless expressly provided otherwise. Art. II, § 3, Fla. Const.
Accordingly, the Florida Supreme Court has “the exclusive authority to adopt rules of judicial practice and procedure for actions filed in this State, while the Legislature is charged with the responsibility of enacting substantive law.” See Floating Docks, Inc. v. Auto-Owners Ins., 82 So. 3d 73, 78 (Fla. 2012).

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Section 768.0427 and the outlier judges

When a law enacted by the legislature conflicts with a rule of procedure adopted by the Florida Supreme Court, the law is unconstitutional. Massey v. David, 979 So. 2d 931, 937 (Fla. 2008) (“[W]here this Court has promulgated rules that relate to practice and procedure, and a statute provides a contrary practice or procedure, the statute is unconstitutional to the extent of the conflict.”).
The same is true for laws that conflict with case law on a matter of procedure. DeLisle v. Crane Co., 258 So. 3d 1219, 1229 (Fla. 2018) (“A procedural rule of this Court may be pronounced in caselaw.”).
The Sapp order concluded that §768.0427 must be applied retroactively because it is “procedural.” But if that were true, then §768.0427 would be unconstitutional to the extent it conflicts with decisions of the Florida Supreme Court.
And §768.0427 conflicts with multiple such decisions.

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Section 768.0427 and prior case law

§768.0427(2) conflicts with multiple decisions applying the collateral-source rule.
Compare Gormley v. GTE Prods. Corp., 587 So. 2d 455, 457 (Fla. 1991) (“As a rule of evidence, the collateral source rule prohibits the introduction of any evidence of payments from collateral sources, upon proper objection.”);
Joerg v. State Farm Mut. Auto. Ins., 176 So. 3d 1247, 1249 (Fla. 2015) (“As an evidentiary rule, payments from collateral source benefits are not admissible because such evidence may confuse the jury with respect to both liability and damages.”); and
Dial v. Calusa Palms Master Ass’n, 337 So. 3d 1229, 1231 (Fla. 2022) (noting that Joerg “preclude[es] the admission of evidence of a plaintiff’s eligibility for future Medicare benefits”);
with § 768.0427(2)(c)(2), Fla. Stat. (allowing the admission of a plaintiff’s eligibility for future Medicare benefits).

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Section 768.0427 and prior case law

Section 768.0427(2) conflicts with the Florida Supreme Court’s Worley decision on the attorney-client privilege.
The Florida Supreme Court has held that “the attorney-client privilege protects a party from being required to disclose that his or her attorney referred the party to a physician for treatment.” Worley v. Cent. Fla. Young Men’s Christian Ass’n, 228 So. 3d 18, 20 (Fla. 2017).
But § 768.0427(3)(e) directly conflicts with Worley by requiring a plaintiff to disclose such a referral and by providing that evidence of the referral is admissible at trial.

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Section 768.0427 if it were procedural

So if a trial judge agrees with Judge Moe’s conclusion that § 768.0427 is procedural, then § 768.0427 would be unconstitutional because it conflicts with the Florida Supreme Court’s rulemaking authority. See DeLisle, 258 So. 3d at 1229; and Floating Docks, 82 So. 3d at 78 (the Florida Supreme Court has “the exclusive authority to adopt rules of judicial practice and procedure for actions filed in this State.”).
That power does not extend to lower courts. Art. V, § 2, Fla. Const.; State v. Ferguson, 556 So. 2d 462, 464 (Fla. 2d DCA 1990) (“Only the Florida Supreme Court has the power to adopt rules of practice and procedure for Florida’s courts.”), disapproved on other grounds, State v. Hernandez, 645 So. 2d 432, 435 (Fla. 1994).

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Another outlier order

Judge Moe’s second Order, Torres-Aponte v. Hudnall, No. 20-CA-7146.
This was a 30-page Order that doubled down in its flawed reasoning.
The Order begins by noting the plaintiff did not use his health insurance, and includes a discussion by Judge Moe suggesting there could not be any proper reason for a plaintiff to decline to use insurance.
She reasons that a procedural statute must apply to a pending case when it would make sense to do so given the posture of the case.
She focuses on the absence of the word “only” in Section 30. Of course, what was the point of Section 30 if HB 837 applied to all cases (or causes of action) filed before and after the law took effect on March 24th?

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Another outlier order

Judge Speiser in the 17th Circuit: McIntosh v. N. Broward Hosp. Dist., No. CACE-19-2027.
With almost no analysis, the court states that statutory language “regarding the temporal reach of a statute” is not dispositive. Thus, the court states it must examine whether parts of HB 837 are procedural or substantive.
With no analysis, the court concludes § 768.0427 is procedural.
The court then holds that § 768.81(6) is also procedural – the modified comparative fault standard.
The court in a one-sentence discussion states it agrees that this statute is procedural under Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973).

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Judge Kimberly Sharpe Byrd in New Port Richey: A much simpler analysis.�Miskiel v. Dukes, No. 2018-CA-2401 (Fla. 6th Cir. Ct. June 2, 2023).

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Miskiel v. Dukes, No. 2018-CA-2401 (Fla. 6th Cir. Ct. June 2, 2023).

Judge Byrd explained that given the express legislative command, it was therefore “unnecessary . . . to continue the constitutional analysis” because such an analysis “is only necessary to protect constitutional rights when the legislature attempts to apply a substantive change in the law retroactively.” Id.
Because “the legislature intended that the provision of the statute at issue be applied prospectively,” this was the sole consideration and the trial court was required to follow this legislative intent.

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Williams v. Wolf, No. 16-2019-CA-8017 (Fla. 4th Cir. June 15, 2023) (Anderson, J.)

Judge Anderson Order that I think is probably the most thorough order to date.
He explained, among other things, that it does not matter whether the law is procedural, remedial, or substantive because the legislative direction controls (adopting Judge Byrd’s flow chart).
While our judges should not be examining whether any parts of the statute are procedural, remedial, or substantive, for cases filed by March 24, 2023, Judge Anderson also explains why the medical damages statutory changes cannot be deemed procedural changes.

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Williams v. Wolf, No. 16-2019-CA-8017 (Fla. 4th Cir. June 15, 2023) (Anderson, J.)

“For instance, section 768.0427(2) addresses admissible evidence of medical treatment or service expenses, while section 768.0427(3) imposes certain disclosures as “a condition precedent to asserting any claim for medical expenses for treatment rendered under a letter of protection.” Obviously, a new condition precedent cannot be applied to a claim that has already been asserted.”
“Similarly, section 768.0427(4) governs the “damages that may be recovered by a claimant in a personal injury or wrongful death action for the reasonable and necessary cost or value of medical care rendered.” It defines the recoverable damages as being limited to “the evidence of medical treatment and services expenses admitted pursuant to subsection (2).” § 768.0427(4). Accordingly, the substantive measure of damages is defined by the evidentiary rules created by this same statute. This indicates that the legislature intended for the provisions of HB 837 to apply together in harmony—not that procedural aspects would apply in pending cases and substantive aspects only in future cases.”

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Williams v. Wolf, No. 16-2019-CA-8017 (Fla. 4th Cir. June 15, 2023) (Anderson, J.)

He also explains that if HB 837 were procedural it would be unconstitutional; and even when the Florida Supreme Court adopts a procedural statute, it has never adopted a statute but rejected a direction to only apply it to future cases.
This last point addresses the fact that the Supreme Court has often adopted legislature changes to the extent they are procedural.
It is possible the Court does that here for some or all of HB 837.
But this is also why you should try and steer your trial judge back to the plain language of Section 30 of HB 837, and ask opposing counsel to cite a single case where a court has defied the Legislature’s expressed intent for a law to apply to future cases.

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Louis v. Sprint United Mgt. Co. , No. 2019-CA-�9237-O (Fla. 9th Cir. July 17, 2023 (Chiu, J.)

Judge Chiu explains at length how Judge Sapp’s reasoning is so flawed.
“Even assuming the portions of the statute Defendant asks this Court to apply retroactively are procedural, this Court declines to attempt to "effectuate the legislation's intended purpose" by overriding the unambiguously stated intent contained in the text of the legislation.”
“The Sapp order's rationale depends upon the conclusion that the legislative branch's direction on temporal application of the Act's procedural aspects violates the separation of powers enshrined in Article II of the Florida Constitution, but cites no statutory or legal authority in support of such a conclusion. The Sapp order cites to the principle of statutory construction that states "when a statute is reasonably susceptible of two interpretations, by one of which it is unconstitutional and by the other valid, the court prefers the meaning that preserves to the meaning that destroys." A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 66 (2012). The Act, however, is not susceptible of two interpretations, because it defines its own temporal reach in clear, explicit, and unambiguous terms.”

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Louis v. Sprint United Mgt. Co. , No. 2019-CA-�9237-O (Fla. 9th Cir. July 17, 2023 (Chiu, J.)

Judge Chiu explains at length how Judge Sapp’s reasoning is so flawed.
“Moreover, the Sapp order's solution to the perceived separation of powers violation is for trial courts to apply the procedural portions of the act retroactively if they decide it "makes sense to do so." Such a path is particularly perilous because the rulemaking authority which the Sapp order claims the Act infringes upon belongs not to the trial courts, but rather exclusively to the Florida Supreme Court. Florida Constitution, Article V, § 2 ("The supreme court shall adopt rule for the practice and procedure in all courts ... ); Markert v. Johnston, 367 So.2d 1003, 1004 (Fla. 1978).”

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Louis v. Sprint United Mgt. Co. , No. 2019-CA-�9237-O (Fla. 9th Cir. July 17, 2023 (Chiu, J.)

“Defendant asks this Court to redraft the statute in the way Defendant wishes it to have been written, in open contravention of the stated intent of the legislature, for no more authoritative reason than the Sapp Court's assertion that it "makes good sense." Defendant requests an act of judicial legislation rather than statutory interpretation. By doing so, this Court would impose its own statutory regime, consisting of policies the Legislature did not enact. The judiciary stands unique among the three branches of government as a gatekeeper against not only the encroachment of the other branches, but also as a restraint upon its own power. That self-policing power is particularly vital given the ease which courts can drift into the legislative and executive provinces. Legislation is by design a product of painstaking compromise and negotiations between various competing policy interests in two houses of the Legislature, and subject to ratification by the executive branch. Defendant asks the Court to undo that labor with a genie-like stroke of the pen. This Court possesses neither the inclination, qualification, nor constitutional mandate to wield such policymaking power. Reasonable people can disagree with how the Legislature balanced the various considerations in passing the specific terms of the Act, but it is the role of the judiciary to interpret and apply, rather than rewrite, the work of elected policymakers.”

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Section 768.0427: Substantive in part

Again, our judges should not be examining whether any part of HB 837 is procedural for cases filed by 3/24/23.
But some of our judges are going to engage in this analysis.
A different Hillsborough County Judge. Judge Rex M. Barbas.
The entirety of his reasoning was as follows: “As Section 768.0427 would limit the evidence of Plaintiff’s damages that can be presented, the statute is substantive in nature and cannot be applied retroactively.” Order Denying Defendant’s Motion in Limine Regarding Admissible Evidence of Past and Future Medical Treatment and Service Expenses, Cole v. Pin Chasers, Inc., No. 19-CA-11229 (Fla. 13th Cir. Ct. June 2, 2023).
Here in the 15th Judicial Circuit, Judge Cheeseman likewise held the medical damage statutory changes are substantive. Spray v. Hathaway-Ryan, No. 50-2022-CA-005002.

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15th Circuit Order: Substantive elements to the statute. Spray v. Hathaway-Ryan, No. 50-2022-CA-005002.

In the present case, Defendant maintains §768.0427(3), Fla. Stat., does not affect Plaintiff’s substantive rights, but merely provides for additional disclosures in her personal injury claim. This contention is belied by the express language of subsection (3), which mandates various disclosures “as a condition precedent to asserting any claim for medical expenses for treatment rendered under a letter of protection.” Id. (emphasis added). The statute clearly contemplates certain disclosures in the context of a personal injury claim, the absence of which precludes a plaintiff’s ability to institute such a claim. Stated differently, Plaintiff’s failure to make said disclosures forecloses her right to collect medical expenses provided under a letter of protection. A statute will not operate retroactively if it impairs a vested right or creates new obligations. See Pembroke, 137 So. 3d at 425 (quoting State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 61 (Fla. 1995) (“[T]his Court has refused to apply a statute retroactively if the statute impairs vested rights, creates new obligations, or imposes new penalties”). Retroactive application of §768.0427(3), Fla. Stat., would directly impact Plaintiff’s rights and obligations in her personal injury claim. Accordingly, the Court declines to retroactively apply §768.0427(3), Fla. Stat., which was enacted after the filing of the above-styled case. Defendant’s motion to compel is, therefore, denied.

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Section 768.0427: Has substantive provisions

Judge Barbas had focused on damages, but Judge Cheeseman focused on the disclosure requirements.
Section 768.0427(3) imposes a new “condition precedent to asserting a claim for medical expenses for treatment rendered under a letter of protection.”
Conditions precedent are substantive requirements. Williams v. Campagnulo, 588 So. 2d 982 (Fla. 1991); VanBibber v. Hartford Accident & Indemn. Ins. Co., 439 So. 2d 880 (Fla. 1983); accord Weaver v. Myers, 229 So. 3d 1118, 1151-52 (Fla. 2017) (Canady, J., dissenting).
Another condition precedent: Forced disclosure of attorney-client communications previously privileged under section 90.502, Florida Statutes. Worley v. Central Fla. Young Men’s Christian Ass’n, Inc., 228 So. 3d 18, 24-25 (Fla. 2017).
The idea that this legislation does not impact a plaintiff’s vested right to keep prior communications with counsel confidential has no merit.

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