Political Drama in Florida Judicial Appointments

The conservative/liberal dichotomy of Supreme Court Justices influences Supreme Court decisions at the state level as well as at the national level. A political drama is unfolding in Florida over who will appoint Florida Supreme Court Justices in the near future.

The social, political, and economic views of justices of the Florida Supreme Court may influence the outcome of decisions in many areas of the law, including tort and insurance. An example is the recent decision in Holmes Regional Medical Center Inc. v. Allstate Ins. Co., 2017 WL 2981863 (Fla., filed July 13, 2017), which limits negligent drivers and their insurers from recouping damages payments from negligent medical providers who contributed to those damages.

Florida holds a negligent driver responsible not only for bodily damages directly caused by injuries due to the accident but also for damages caused by negligence on the part of medical care providers in treating the accident-related injuries. Florida law also allows the initial tortfeasor to sue the negligent medical care provider in equitable subrogation in an effort to recoup the portion of damages caused by the health care provider.

However, in the Holmes Regional Medical Center decision, the Florida Supreme Court justices held by a 4-3 vote that the initial tortfeasor and her liability insurer could not pursue equitable subrogation against the health care providers without first paying the full amount of the judgment against the tortfeasor, regardless of the limit of liability insurance coverage available to the initial tortfeasor.

In that particular case, the negligent driver had $1.1 million in liability coverage but the judgment entered against the negligent driver was for an amount over $11 million. The driver’s liability insurer paid its $1.1 million limit of liability coverage in partial satisfaction of the judgment. But under the Supreme Court's decision, neither the driver nor the insurer could seek recoupment from the negligent medical care providers without first paying the balance of the $11+ million judgment.

Long before that decision, the four justices responsible for it had been labeled by the press as "moderate" to "liberal." The three dissenting justices had been labeled by the press as "conservative." Would the decision have been different if the Court had consisted of four "conservative" justices and three "liberal" justices?

Three of the “liberal” justices are scheduled to retire because they will have reached the mandatory retirement age of 70 by Jan. 8, 2019 -- the same day a new Florida governor will be sworn in to replace the current governor. Our current governor, a political conservative, has promised to appoint three new justices the day he concludes his current term as governor. Several political organizations have filed a lawsuit asking the Florida Supreme Court to allow Florida's next governor to appoint the new justices.

On August 25, 2017, the Court said it will hear oral arguments in that lawsuit. Thus, it appears that the issue will be heard (and presumably decided) by the same justices who participated in the Holmes Regional Medical Center decision. Stay tuned for more drama.

By Steve O’Hara

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