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Florida Fourth DCA rules that 2011 law made 2006 legislative elimination of joint and several and several liability generally retroactive

On November 28, 2018, in Brown & Brown v. Gelsomino et al, No. 4D17-3737, the Florida Fourth DCA reversed a trial court’s ruling applying joint and several liability to defendants found liable in 2014 for negligence occurring in 2002. At the time that the negligent acts occurred in 2002, joint and several liability still had limited applicability in Florida. In 2006, the Florida legislature amended the comparative negligence statute, section 768,81, to completely abolish joint and several liability, without expressly indicating that the amendment was to be applied retroactively. A law is presumed to apply prospectively, unless there is a clear legislative intent that the law be applied retroactively. Walker & LaBerge, Inc. v. Halligan, 344 So. 2d 239, 241 (Fla. 1977). In making its ruling, the trial court in this case apparently relied on this general rule and on the fact that the underlying cause of action accrued in 2002.

However, in 2011 the Florida legislature again amended the comparative fault statute. While the amendment dealt specifically with product liability causes of action (not at issue in this case), the Fourth DCA interpreted that amendment’s explicit reference to its retroactive application to apply generally to the comparative negligence statute. The Fourth DCA relied on Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d 294 (Fla. 2017), in which the Florida Supreme Court held that the 2011 statute was “remedial in nature and applied “retroactively” as to the entire statute and not just to the substantive amendments like those relating to product liability cases.