Cam Fentriss, FRSA LEGISLATIVE COUNSEL
At this writing, we are halfway through the 2017 legislative session. By the time you read this, session will be over and we will know how the story ends (if it ends – we are expecting special sessions this year). But for now, I can share a little of what we see at work in Tallahassee.
Our House, Senate, and governor are very strongly Republican. Much of this majority evolved from promises and assurances of being business friendly and of welcoming new industries to Florida – all to improve our economy and bring jobs, jobs, jobs to our state.
One of the most important components of a business-friendly climate is the tax and regulatory environment of any state. One of the best measures is how a state handles the type of litigation that regularly can and does put a company right out of business. Typically, politicians who are business-friendly are against excessive litigation that comes from trial lawyers, too many of whom file lawsuits
like gamblers roll the dice.
So, what happens when Florida’s House and Senate leadership comes from two people who are Republican trial lawyers? We can see the answer by the handling of legislation that is intended to keep Florida from turning into a world of litigation gone wild.
First, they look for an “attractive enemy” that can be blamed for all the problems that need to be solved. What does that mean? Well, if you have campaigned on a business-friendly platform but you are actually trial lawyer-friendly, you will not support anything that hurts trial lawyers but you cannot be seen as claiming that business is the enemy. For most purposes, the best attractive enemy is the insurance industry. The business community has a love/hate relationship with insurance – we need it and we are thankful for it when there is a problem but we hate the cost of premiums. The trial lawyer community has a hate/love relationship with insurance – they hate being questioned or challenged on a claim or lawsuit filed but they love the fact that insurance is in place for the big payoff.
Second, they make sure to give plenty of discussion time to any legislation so that no one can ever say that big issues (like workers’ comp or medical malpractice reform) were swept under the rug. Keep in mind that discussion time does not equal action. If there is no solution at the end of the discussion, then it was nothing more than talk.
Third, they may try to propose something that looks like a solution but actually is or includes a “deal killer” for the business community and/or insurance industry. One would use this tactic to make oneself look like the problem solver and the other side look like the naysayer, but it is really all just smoke and mirrors. Variations on this scheme would be proposing something that would be a great solution but adding a “poison pill” or proposing something that sounds like a big improvement but is really so small it would not fix much.
Fourth, they look to see what the other chamber (the House or the Senate) is doing and try to come up with a strategy for failure that depends on the action or inaction of the other chamber. Keep in mind that any change has to be approved exactly the same by the House, the Senate, and the governor. An example of a strategy for failure is when it is pretty clear that the Senate will not accept any changes, then the House can propose something really good, pass it, and come out looking like a real hero to business knowing all along that the changes will not be made because the Senate will do nothing. There are hundreds of variations on this strategy, and there are at least 30 people in the House and Senate who know how to work this.
Right now, this whole set of dynamics has a big impact on us and other types of businesses. It affects a long list of important issues, including workers’ compensation, assignment of benefits (AOB) abuse, construction defects, statute of repose, and general liability matters. The immediate threat to business is the cost of insurance but it is also the availability of insurance (as things get worse, it is likely that insurers will leave Florida). I am sure that some legislators would like to hide behind the position that these are just business issues and as such are not the responsibility of the legislature. That sounds nice but it is absolutely not correct when it comes to the types of insurance you must have: workers’ compensation. Insurance coverage that is required by law is as good as a tax that is imposed by the elected members of the legislature and the governor.
I am pretty sure that we will be playing this whole game again during the 2018 legislative session, so you may want to keep this little “guide to politics” handy because we will use it again.
Anna Cam Fentriss is an attorney licensed in Florida since 1988 representing clients with legislative and state agency interests. Cam has represented FRSA since 1993, is an Honorary Member of FRSA, recipient of the FRSA President’s Award and the Campanella Award in 2010. She is a member of the Florida Building Commission Special Occupancy Technical Advisory Committee, President of Building A Safer Florida Inc. and past Construction Coalition Chair (1995-1997).
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