Alessandra Stivelman, a partner/shareholder at Eisinger Law, a boutique law firm specializing in Florida community association law, expounds on one of Florida’s new insurance laws: CS/CS/HB 837 relating to Civil Remedies, which could have real-world implications for condominium and community association residents, as well property managers.
Enacted in 2023, HB 837 substantially modified Florida’s bad faith laws and the state’s comparative negligence system from a “pure” to a “modified” one whereby a plaintiff who is found to be more than 50 percent at fault for his or her own harm may not recover damages from any defendant. Medical negligence is exempt.
“We are actively educating our condominium association clients, as well as property management companies, about this new law,” Stivelman said. “Every time we meet with a condominium’s board of directors, we strongly recommend they take proactive security measures and ensure all video surveillance is backed up to protect themselves from negligent liability should a violent incident ever occur.”
Specifically in regard to real estate and community associations, HB 837:
- Requires a trier of fact in a negligent security action against the owner, lessor, operator, or manager of commercial or real property brought by a person lawfully on the property who was injured by the criminal act of a third party, to consider the fault of all persons who contributed to the injury; and
- Provides that the owner or principal operator of a multifamily residential property that substantially implements certain security measures on that property is presumed to not be negligent in connection to a criminal act occurring on the premises which are committed by third parties who are not employees or agents of the owner or operator.
- The bill requires the Florida Crime Prevention Training Institute of the Department of Legal Affairs to develop a proposed curriculum or best practices for such owners or operators.
Recently, a lawsuit was filed by Miami man who was shot inside the doorway of his Brickell Key condo unit three years ago and is now taking legal action against his community association, property management company and a handful of other related parties. The lawsuit, which remains in active litigation, alleges they were negligent and should have done more to stop the shooter, illustrates the escalated potential for liability. Should the outcome of this case result in a punitive judgement, it will be the individual condominium owners who must pay the financial penalty.
HB 837, which amended Fla. Stat. 768.0706, essentially established a new presumption against liability with regard to multifamily residential property (which includes condominiums). Importantly, it provides that the owner or principal operator of a multifamily residential property that substantially implements the following security measures on that property has a presumption against liability in connection with criminal acts that occur on the premises which are committed by third parties who are not employees or agent of the owner or operator:
- A security camera system at points of entry and exit that records and maintains retrievable video footage to assist in offender identification and apprehension.
- A lighted parking lot illuminated at a certain intensity from dusk until dawn.
- Lighting in walkways, laundry rooms, common areas and porches also illuminating these areas.
- At least a 1-inch deadbolt in each dwelling unit door.
- A locking device on each window, each exterior sliding door and any other doors not used for community purposes
- Locked gates with key or fob access along pool fence areas.
- A peephole or door viewer on each dwelling unit door that does not include a window or that does not have a window next to the door.
Among other pertinent changes made by HB 837:
- Modifies Florida’s “bad faith” framework to allow an insurer to avoid third-party bad faith liability if the insurer tenders the policy limits or the amount demanded by the claimant within 90 days after receiving actual notice of the claim.
- Clarifies that mere negligence alone is not enough to demonstrate bad faith.
- Requires an insured and a claimant to act in good faith with respect to furnishing information, making demands, setting deadlines, and attempting to settle the claim.
- Allows an insurer to limit the insurer’s bad faith liability by paying the total amount of the policy limits at the outset when there are multiple claimants in a single action.
- Provides that a contingency fee multiplier for an attorney fee award is appropriate only in a rare and exceptional circumstance, essentially adopting the federal standard.
- Repeals Florida’s one-way attorney fee statutes, except that the one-way attorney fee structure still applies in certain actions, such as declaratory relief to determine insurance coverage after an insurer has made a total coverage denial of a claim.
- Clarifies that the offer of judgment statute applies in any civil action involving an insurance contract.
- Requires the trier of fact in certain negligent security actions to consider the fault of all persons who contributed to the injury and establishes a presumption against liability in certain situations.
- Reduces the statute of limitations for general negligence cases from 4 years to 2 years, with this change applying to causes of action accruing after the effective date of the bill.
- Clarifies that certain actions involving a service member are subject to a stay of proceedings.
“We are advising our community association clients that, before installing cameras on a premises, boards should determine with their legal counsel whether there are any restrictions in the association’s governing documents that may require approval of the membership,” Stivelman said.
Eisinger Law is a multi-practice Florida law firm focused on community association law, real estate law, developer representation, civil and commercial litigation, and insurance law. For more information, visit eisingerlaw.com or call (954) 894-8000.
