The 2023 Florida Statutes (including Special Session C)

Title XLV
TORTS

Chapter 768
NEGLIGENCE

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F.S. 768.78

768.78 Alternative methods of payment of damage awards.—

(1)(a) In any action to which this part applies in which the court determines that an award to compensate the claimant includes future economic losses which exceed $250,000, payment of amounts intended to compensate the claimant for these losses shall be made by one of the following means, unless an alternative method of payment of damages is provided in this section:

1. The defendant may make a lump-sum payment for all damages so assessed, with future economic losses and expenses reduced to present value; or

2. Subject to the provisions of this subsection, the court shall, at the request of either party, unless the court determines that manifest injustice would result to any party, enter a judgment ordering future economic damages, as itemized pursuant to s. 768.77(1), in excess of $250,000 to be paid in whole or in part by periodic payments rather than by a lump-sum payment.

(b) In entering a judgment ordering the payment of such future damages by periodic payments, the court shall make a specific finding of the dollar amount of periodic payments which will compensate the judgment creditor for these future damages after offset for collateral sources. The total dollar amount of the periodic payments shall equal the dollar amount of all such future damages before any reduction to present value, less any attorney’s fees payable from future damages in accordance with paragraph (f). The period of time over which the periodic payments shall be made is the period of years determined by the trier of fact in arriving at its itemized verdict and shall not be extended if the plaintiff lives beyond the determined period. If the claimant has been awarded damages to be discharged by periodic payments and the claimant dies prior to the termination of the period of years during which periodic payments are to be made, the remaining liability of the defendant, reduced to present value, shall be paid into the estate of the claimant in a lump sum. The court may order that the payments be equal or vary in amount, depending upon the need of the claimant.

(c) As a condition to authorizing periodic payments of future damages, the court shall require the defendant to post a bond or security or otherwise to assure full payment of these damages awarded by the judgment. A bond is not adequate unless it is written by a company authorized to do business in this state and is rated A+ by Best’s. If the defendant is unable to adequately assure full payment of the damages, the court shall order that all damages be paid to the claimant in a lump sum pursuant to the verdict. No bond may be canceled or be subject to cancellation unless at least 60 days’ advance written notice is filed with the court and the judgment creditor. Upon termination of periodic payments, the court shall order the return of the security, or so much as remains, to the judgment debtor.

(d)1. In the event that the court finds that the judgment debtor has exhibited a continuing pattern of failing to timely make the required periodic payments, the court shall:

a. Order that all remaining amounts of the award be paid by lump sum within 30 days after entry of the order;

b. Order that, in addition to the required periodic payments, the judgment debtor pay the claimant all damages caused by the failure to timely make periodic payments, including court costs and attorney’s fees; or

c. Enter other orders or sanctions as appropriate to protect the judgment creditor.

2. If it appears that the judgment debtor may be insolvent or that there is a substantial risk that the judgment debtor may not have the financial responsibility to pay all amounts due and owing the judgment creditor, the court may:

a. Order additional security;

b. Order that the balance of payments due be placed in trust for the benefit of the claimant;

c. Order that all remaining amounts of the award be paid by lump sum within 30 days after entry of the order; or

d. Order such other protection as may be necessary to assure the payment of the remaining balance of the judgment.

(e) The judgment providing for payment of future damages by periodic payments shall specify the recipient or recipients of the payments, the dollar amounts of the payments, the interval between payments, and the number of payments or the period of time over which payments shall be made. Periodic payments shall be subject to modification only as specified in this subsection.

(f) Claimant’s attorney’s fee, if payable from the judgment, shall be based upon the total judgment, adding all amounts awarded for past and future damages. The attorney’s fee shall be paid from past and future damages in the same proportion. If a claimant has agreed to pay her or his attorney’s fees on a contingency fee basis, the claimant shall be responsible for paying the agreed percentage calculated solely on the basis of that portion of the award not subject to periodic payments. The remaining unpaid portion of the attorney’s fees shall be paid in a lump sum by the defendant, who shall receive credit against future payments for this amount. However, the credit against each future payment is limited to an amount equal to the contingency fee percentage of each periodic payment. Any provision of this paragraph may be modified by the agreement of all interested parties.

(g) Nothing in this subsection shall preclude any other method of payment of awards, if such method is consented to by the parties.

(2)(a) In any action for damages based on personal injury or wrongful death arising out of medical malpractice, whether in tort or contract, in which the trier of fact makes an award to compensate the claimant for future economic losses, payment of amounts intended to compensate the claimant for these losses shall be made by one of the following means:

1. The defendant may make a lump-sum payment for all damages so assessed, with future economic losses and expenses reduced to present value; or

2. The court shall, at the request of either party, enter a judgment ordering future economic damages, as itemized pursuant to s. 768.77, to be paid by periodic payments rather than lump sum.

(b) For purposes of this subsection, “periodic payment” means provision for the spreading of future economic damage payments, in whole or in part, over a period of time, as follows:

1. A specific finding of the dollar amount of periodic payments which will compensate for these future damages after offset for collateral sources shall be made. The total dollar amount of the periodic payments shall equal the dollar amount of all such future damages before any reduction to present value.

2. The defendant shall be required to post a bond or security or otherwise to assure full payment of these damages awarded. A bond is not adequate unless it is written by a company authorized to do business in this state and is rated A+ by Best’s. If the defendant is unable to adequately assure full payment of the damages, all damages, reduced to present value, shall be paid to the claimant in a lump sum. No bond may be canceled or be subject to cancellation unless at least 60 days’ advance written notice is filed with the court and the claimant. Upon termination of periodic payments, the security, or so much as remains, shall be returned to the defendant.

3. The provision for payment of future damages by periodic payments shall specify the recipient or recipients of the payments, the dollar amounts of the payments, the interval between payments, and the number of payments or the period of time over which payments shall be made.

History.—ss. 57, 65, ch. 86-160; s. 5, ch. 87-50; s. 47, ch. 88-1; s. 25, ch. 88-277; s. 1, ch. 88-335; s. 1174, ch. 97-102; s. 8, ch. 99-225.

F.S. 768.78 on Google Scholar

F.S. 768.78 on Casetext

Amendments to 768.78

Arrestable Offenses / Crimes under Fla. Stat. 768.78

Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 768.78.

Annotations, Discussions, Cases:

Cases from cite.case.law:

DIXON Sr. E. R. T. Jr. a v. UNITED STATES, 900 F.3d 1257 (11th Cir. 2018)

. . . Stat. § 768.78(2). . . . Stat. § 768.78(2)(b)(1). . . . Id. § 768.78(2)(a). . . . Stat. § 768.78(2)with id. at § 768.78(1). . . . Stat. § 768.78(2)(b). . . .

FLYING FISH BIKES, INC. v. GIANT BICYCLE, INC., 181 F. Supp. 3d 957 (M.D. Fla. 2016)

. . . Following the ascending structure of Section 768.78(1), the verdict form asks the jury, if “you have . . .

E. LONG v. BAKER, a k a, 37 F. Supp. 3d 1243 (M.D. Fla. 2014)

. . . . § 768.78. . . .

BOARD OF TRUSTEES OF THE JACKSONVILLE POLICE FIRE PENSION FUND, v. KICKLIGHTER,, 106 So. 3d 8 (Fla. Dist. Ct. App. 2013)

. . . award of attorney’s fees as the Pension Fund has conceded that the cap on attorney’s fees, see section 768.78 . . .

In STANDARD JURY INSTRUCTIONS IN CIVIL CASES- REPORT NO. In No. In No. In No. In No. s In No. In No. In No. In No., 35 So. 3d 666 (Fla. 2010)

. . . F.S. 768.78, adopted at the same time, provided for alternative methods of payment of damage awards when . . . At the same time, F.S. 768.78 was amended to substitute the words “the Court determines” in place of . . . No court opinion has expressly determined whether F.S. 768.77 or 768.78 is constitutional under the provisions . . . The committee takes no position on how a court would, if requested, comply with F.S. 768.78 in cases . . . For verdict requirements in medical negligence claims, see F.S. 768.77(2) and 768.78(2)(a). . . .

STANDARD JURY INSTRUCTIONS- CIVIL CASES NOS., 825 So. 2d 277 (Fla. 2002)

. . . In 1986 the legislature also adopted section 768.78 providing for alternative methods of payment of damage . . . also substituted the words “the Court determines” in place of the words “trier of fact” in section 768.78 . . . No court opinion has expressly determined whether section 768.77 or section 768.78 is constitutional . . . The committee takes no position on how the court might comply with section 768.78 in cases tried by a . . . extended payout of future noneco-nomic as well as economic damages, a purpose absent from present § 768.78 . . .

CLIPPER, v. BAY OAKS CONDOMINIUM ASSOCIATION, INC., 810 So. 2d 541 (Fla. Dist. Ct. App. 2002)

. . . their undersigned counsel and offers the [pjlaintiff, Justyna Brysiak Clipper, pursuant to [sjection 768.78 . . .

In RENZELMAN, Jo, 227 B.R. 740 (Bankr. W.D. Mo. 1998)

. . . filed a proof of claim on July 17, 1998, for a secured claim of $12,-950.00 and an unsecured claim of $768.78 . . .

PSYCHIATRIC INSTITUTE OF DEL- RAY, INC. d b a At M. D. v. KEEL,, 717 So. 2d 1042 (Fla. Dist. Ct. App. 1998)

. . . permitting periodic payments of the $2,400,000 awarded in future economic damages, pursuant to section 768.78 . . . future economic damage award in periodic installments rather than in a lump sum, pursuant to section 768.78 . . . Plaintiff responds that both subsection (l)(a) and (2)(a) of section 768.78 apply in this case and that . . . damages, as itemized pursuant to s. 768.77, to be paid by periodic payments rather than lump sum. § 768.78 . . . Appellants’ argument that section 768.78(2)(a) requires a trial court to comply with a party’s request . . .

ONG v. MIKE GUIDO PROPERTIES,, 668 So. 2d 708 (Fla. Dist. Ct. App. 1996)

. . . 1100 (Fla.1993), also addressed the inconsistency existing between section 44.102(5)(b), and section 768.78 . . .

BEYEL BROTHERS CRANE AND RIGGING COMPANY OF SOUTH FLORIDA, INC. v. ACE TRANSPORTATION, INC., 664 So. 2d 62 (Fla. Dist. Ct. App. 1995)

. . . The foregoing holding does not represent a conclusion that, if section 768.78 also applied to actions . . .

B. MAGSIPOC, B. v. LARSEN, 639 So. 2d 1038 (Fla. Dist. Ct. App. 1994)

. . . In such a case, proration would follow under section 768.78, based on the special verdict determination . . .

In STANDARD JURY INSTRUCTIONS CIVIL CASES, 541 So. 2d 90 (Fla. 1989)

. . . devise a basic form of damage verdict that is both responsive to the requirements of sections 768.77 and 768.78 . . . It has been suggested that we should ignore the provisions of sections 768.77 and 768.78 in structuring . . . damages, the complexity added to the verdict is to no end: that information serves no purpose in § 768.78 . . . extended payout of future noneconomic as well as economic damages, a purpose absent from present § 768.78 . . . Committee expresses no opinion of whether such future damages are “economic” within the meaning of § 768.78 . . .

DUNN APPRAISAL COMPANY, v. HONEYWELL INFORMATION SYSTEMS INC., 687 F.2d 877 (6th Cir. 1982)

. . . The court awarded Dunn Appraisal $61,-573.56 compensatory damages and $30,-768.78 punitive damages, plus . . .

, 222 Ct. Cl. 530 (Ct. Cl. 1979)

. . . Young brought an action against plaintiff for $768.78 in damages to her automobile. . . .