With time running out in many state legislative sessions to pass much-needed litigation reform, thankfully the Florida legislature wasted no time this session in passing a law that will eliminate the concept of "joint and several" liability. HB145, which will end the possibility of defendants in civil lawsuits being forced to pay a larger share of the damages than their share of the liability, now awaits the expected signature of the governor. Under the new law, businesses and individuals would be liable only for damages that matched their share of the responsibility – a measure being applauded by small and large businesses throughout the state.
Recently, Florida's Lieutenant Governor Toni Jennings joined CFIF Corporate Counsel & Senior Vice President Renee Giachino to discuss Florida's efforts to restore justice to its legal system and other measures being considered this legislative session in Florida. What follows are excerpts from the interview that aired on "Your Turn – Meeting Nonsense with Common Sense," heard on WEBY 1330 AM, Northwest Florida's Talk Radio.
GIACHINO: My next guest needs no introduction, but she certainly deserves one.
She is a native of Orlando, Florida and began her career as a public school teacher. She then served two terms as a member of the Florida House of Representatives, and then served in the Florida Senate, where she served two terms as State Senate President.
While dedicating more than 24 years to public service, she also successfully ran a family-owned construction business. She is a pioneering woman and she stepped down after 20 years of leading the company as President, to be the first woman to hold the office of Lieutenant Governor of Florida.
As Lt. Governor of the nation's fourth most populous state, Ms. Toni Jennings utilizes her unique knowledge of business and her extensive public-sector experience to support Governor Bush's key initiatives for economic development, quality education and strengthening families.
Thank you for joining us this afternoon to discuss Florida's legislative session, what is going on in Tallahassee and the budget and supplemental budget proposed by you and the governor.
We appreciate your appearance.
JENNINGS: Renee it is great to be here. Thank you so much. The budget, the supplemental budget, the session -- why don't I just start with where we are at this point. This is really the mid-way point of the legislative session, and both chambers have passed their respective budgets. As you know, the governor recommends a budget early in the year. Ours was $70 billion dollars plus and is his outline of how he would like the state revenues spent. But it is the legislature's charge, constitutional responsibility and duty, to actually do the budget. And, while each chamber has passed their budgets, they are different. What they will do in the next couple of weeks is meet together in smaller groups in conference, to work out the individual differences – either come to some compromise, or allow some issues to just fall out of the budget altogether. They then will come back with a conference report and pass that. Then it will be time for the governor to again involve himself in the process by looking at the issues. Our governor has something unique that not all states have and that is the line-item veto. So he can really go into the budget and approve things and disapprove things by line without having to veto the whole budget. And that's a little bit of a thumbnail.
GIACHINO: If we can have a little more Florida civics lesson. If the governor should go in and line-item veto something, can that be overridden by two-thirds of a majority of the representatives?
JENNINGS: Anything the governor vetoes can be overridden by a two-thirds majority. Since we have such short sessions, this usually would occur after we leave here, (after you spend 24 years in one place you still think of it as "we"). That would be during the organizational session or the next session, which usually is after almost a whole year. So it is rare that that happens. I'll share with you, and some may remember, that in 1997 Dan Webster was Speaker of the House and I was Speaker of the Senate and it was the first time that we had a majority Republican house and senate. Dan and I talked and he said the most important bill, in fact the only bill, that we have to pass is the budget. So, let's do it early, let's do it first and let's pass it down to the governor while he is still here. Now in those two years – 1997 and 1998 – it was Governor Chiles, and that's what we did. We actually passed the budget out while we were still in session and that made the governor have to respond within a seven day time period. Since the legislature was still in session, we came back and overrode several of his vetoes. That does not happen very often. In fact, it never happened before. In that respect, we anticipate the legislature will do that on their regular time. So in essence, something vetoed in the budget very rarely gets overridden.
GIACHINO: When you talk about their regular time, I think most folks are familiar with the schedule that our Congressional leaders within the beltway have – that is, a recess over the summer and breaks throughout the year. I think it is quite a surprise, even to native Floridians, when they learn about Florida government and that they are only in legislative session for 60 days. When does panic set in?
JENNINGS: The good news is that Florida has, different from Washington and our Congress and different from many states, Florida has what we call a "citizen legislature." They are compensated at about $25,000 per year -- it may have gone up a little since I remember what it was. But the real idea is that you do this as a public service and you go back home and you have a full-time job and you work in a community and you live under the laws that you passed. So that is the positive part.
They are here for 60 days during the legislative session and that is a constitutional mandate. Now, they are also here during the fall months for committee meetings. Usually about a week out of every month. If it is an election year, as this one is, oftentimes they don't have committee meetings in September or October because of elections. The house members all stand for election every two years, so in the election year they rarely hold fall committee meetings. Of course, they can be back for special issues, like a special session, as they were last December when they were called into special session to talk about some of the hurricane issues and deal with some of the things that we had pending as a result of hurricanes in the fall. So, 60 days is a very compressed time. They meet, of course, beforehand, in January and February, almost constantly in committees to get things working.
GIACHINO: You reminded us that the only thing the legislators must do, what they are constitutionally mandated to do, is to set a budget. But we all know they manage to tackle some other very important issues and I want to talk just a few minutes if we can about one that is near and dear to my heart as a legal reform advocate and that is the elimination of joint and several liability.
You are a former business owner and I think you are intimately familiar with the havoc that frivolous and outrageous lawsuits can bring to small and large businesses. Can you please share with the listeners what this critically important legislation intends to do, what it says and where we are in the process with that legislation?
JENNINGS: Absolutely. And then you can give them the legal terms. I am going to give them the everyday walking-around terms, because this is how I view it. The doctrine of joint and several says that all those involved in -- and potentially causing -- an accident or harm are brought together. That's the joint part. If, for example, someone is injured -- and one in the group has a good bit of insurance but no one else in the group has insurance -- the doctrine says that the one with the good bit of insurance could bear all or a majority of the liability.
This can best be explained perhaps with an example. Say someone is injured in an accident, not a worker's compensation accident, but say an accident where a faulty piece of equipment was involved and there is Manufacturer X, but they bought it at Store C and it was sold by someone else. And say the injury might be because a man driving a tractor went up a hill in a very unsafe way and the tractor fell over and rolled over on him (I'm probably giving a bad example). Say it rolled over on him and the man was injured. His lawyer could come back and say he should sue the tractor manufacturer, and the people who sold him the tractor, and maybe somebody else. Well, the real bottom line is that the man maybe contributed himself to the injury, by the fact that he was trying to do something that he should not have been doing, by going up a very steep hill. Well, let's say the one with big insurance is the manufacturer – say it's John Deere, for example. So the lawyer goes in and says he is going to sue Store C, but they don't have much insurance. But John Deere has lots of insurance, so we are going to sue John Deere. And what happens is a judgment comes back -- and maybe the man himself was at fault 80%, yet he didn't have insurance -- and store C did not have insurance, but John Deere has plenty. So the court comes back and says to John Deere that, despite the fact that all you did was sell the original tractor and you did not have anything to do with the accident, but because he was using your equipment and you have insurance, we are going to charge you with 100% and you are going to have to pay all of it even though all of these other people were contributing to it.
I know this is a very long way of telling this. But the bottom line is that is not fair. We should all be responsible for that portion of fault that we had in causing an accident – that's true whether we are a manufacturer or a business – no matter who we are. It should not be reliant upon the fact that I am the one with the insurance and I maybe had 1% liability and somebody else who had no insurance but 90% of the liability and yet I have to pay all of the judgment. That is essentially what joint and several is.
So what it essentially comes back to is the idea of who is at fault and having those who are at fault pay, not just because you have insurance. It is a doctrine we have talked about for a long time. It is a doctrine of fairness. But in the frivolous lawsuit arena, you will find lawyers who will go after everybody that they can find and list, and especially in construction they do this, they list everybody who had anything to do with the project and they are looking for one person on the list that has sufficient insurance.
GIACHINO: That's right. Just simply having touched it you could be exposed to liability. Now we can all agree that it is fair that if someone is at fault they should have to pay, but they should only have to pay their portion of the damage, not the entirety of it simply because Company X or Company Y has gone out of business or is uninsured.
JENNINGS: And you hear it often. And I am so aware of it because I am from Orlando. You will hear of very sad situations at theme parks, sometimes where a child has stood up in the middle of the roller coaster and leaned over and taken off the safety belt, or gotten out of something before the equipment has stopped, and injured themselves. And of course what happens there is a very sad accident, wholly attributed to the person involved. Sometimes it is an adult who did not follow instructions, or were not cognizant of what they needed to do for their own safety, and yet because Disney – and usually it's Disney in this case – because Disney has a big bank account, they go after Disney. And other than the fact that Disney offered the attraction, it had nothing to do with an unsafe situation, it had nothing to do with not having the right kind of personal safety protection. That is just one sort of example.
It is a fairness doctrine as much as everything. But I will tell you that everybody pays. They pay in the long run through increased insurance premiums, because of the liability that is out there, they pay in increased cost to business. It is out there everywhere. This is a huge issue that both the house and the senate have addressed and passed already this year. We are awaiting it down here in the governor's office for his signature. It was the house bill that passed and they have to do some things to prepare the bill but I would say we will see it for signature and passage into law in the near future.
GIACHINO: You mentioned that everybody pays when we have frivolous lawsuits and unfair doctrines. Recently, the Institute for Legal Reform issued its annual ranking of the legal systems in all fifty states and Florida ranked 38th from best to worst legal systems. One of our neighbors, Georgia, ranked ahead of us at 27th. Another neighbor, Alabama, was behind us at 47th. I know we all hope we can keep corporations in Florida and bring more corporations to Florida. Do you think the passage of this bill and other types of litigation reform will help us keep and bring businesses to Florida?
JENNINGS: Absolutely. You know it is all about a business climate. For businesses here in Florida – and you know we have tried so hard and the legislators as our helpmates have tried diligently, to make the right kind of business climate. We have tried to make it a state with low regulatory imposements by government. And a low tax state, a state with no personal income tax. And a state with the right business climate when it comes to worker's compensation – which is an issue we have had to deal with time and time again because our rates are so much higher than our surrounding states which affords businesses the opportunity to move across state lines or having to compete unfairly with a lower rate that another state has that is right here on our border. So I think this will have a huge impact on the business climate here in Florida. That's why the business chamber of commerce and big and small businesses together supported this.
Oftentimes people hear what is going on in Tallahassee and think that it is all about big business. No, this is huge to the small employer, because the small employer is least able to compete in the litigation society that we have developed here. They cannot be away from their businesses. The cost of the litigation is just tremendous. This is probably the biggest help to small employers of anything that has happened in a long time.
GIACHINO: They are some of the ones at greatest risk when you talk about going after companies that have less insurance but they still bear the same amount of the burden to have to pay some of these judgments.
JENNINGS: That's certainly true.
GIACHINO: Lt. Governor, since taking the office in March of 2003, you have been a key figure in shaping the state's agenda for educational excellence. Can you update us please on any educational changes this legislative session? I know a lot of folks are interested particularly in what may be happening with the calendar for the school year.
JENNINGS: I'd love to share that with you and then I will give you a sort of overview of where things have been and we hope they are going during the entire Bush Administration. Now I am really showing my age when I say I grew up in the public school system in Florida when we started after Labor Day. I still say it was the advent of air conditioning – and now I am really showing it, because we did not have air conditioning in my elementary, my junior high or my high school. The good news was they had been air conditioned by the time I was actually teaching in one of those schools. But, I think that was part of what helped keep us from going to school practically in July.
The school calendar, with everything that has to go into it, has really gotten us turned around when schools start the first of August. So the legislature is working its way through several bills that would say the school year would start no earlier than seven days before Labor Day. The governor was hoping to keep it after Labor Day but the educational community made a fairly strong argument for the need to work in the exam period before the holiday break in December and there is some validity to that. That is where we are at the moment. The bills are making their way through their respective committees and we envision they will pass. That will mean that (not this year) but that next year, school can start no earlier than seven days before Labor Day.
GIACHINO: Did you say that passed?
JENNINGS: It is still being considered in both houses, but it has passed several committees in both the house and senate so it is just about ready to be moved to the calendar. There is plenty of time for that to happen.
GIACHINO: And there is nothing that says it has to even be voted on, right? Again, the only thing that is constitutionally mandated to be voted upon is the budget.
JENNINGS: That's right. So it may not even happen. And there may be people who say this is local control and they should be allowed to do things that they can control. But we do know what kind of havoc weather can have on our school calendar. In the last two years, every single school district has been closed at some point for storms.
Back to education in general, if I could sort of take you through a quick history of the A+ plan. It is the issue of accountability in schools and raising the bar and children getting a year's worth of learning in a year's time. Those are all things that this governor ran on and when he became governor in 1999 I happened to be the Senate President and it was my second term. The first thing that the legislature really focused on was the A+ plan. And that is not just the FCAT which you hear a lot about. In fact, we had testing before the A+ plan but that was what was utilized to measure children's progress in schools. The governor said we needed to also measure the schools, and if we are not making significant progress, then we need to do something about it, whether it is reading coaches in the schools or retention of the children or special things we need to do to make sure there is remediation for these children.
In the first year when these tests were given in 1999, our benchmark was 4th grade. That test had 48% of our children reading on grade level. That is 48% in the State of Florida. Today, last year's testing had 71%. It is all about making sure that children know how to read and do math. Now we have added science. If you cannot read, there is very little available out there. And if you cannot read past the 4th grade, every other thing you do in a learning process is dependent upon your ability to read. I share that with you because there have been such huge gains. The largest gains have been in our minority population – both Hispanic and African American, but all populations across all spectrums have done much better and they will continue to. That's why the governor this year has focused on achievement and looking at the middle schools and high schools and a curriculum that focuses on reading and a mandated curriculum of four credits in math and four in language arts, four in science and three in social studies.
GIACHINO: Lt. Governor, we appreciate all of your efforts. Unfortunately, we have run out of time. Thank you so much.
JENNINGS: My pleasure.April 28, 2006