Fault and damages in Florida

Two things decide what an injury claim is worth in Florida: how blame gets divided, and which losses the law lets a jury hear about. A 2023 law changed both, and one of the changes is a cliff — once your share of the blame passes 50%, the recovery goes to zero.

Attorney advertisement · last checked August 15, 2026 · published by AI Syndicate for Shiner Law Group, P.A. · Markdown version

The more-than-50% cliff

Florida is a modified comparative fault state. If you are partly to blame, your damages are reduced by your share — 30% your fault, you collect 70%. That part is Fla. Stat. 768.81(2): contributory fault “diminishes proportionately the amount awarded… but does not bar recovery, subject to subsection (6).”

Subsection (6) is the cliff. Fla. Stat. 768.81(6): “any party found to be greater than 50 percent at fault for his or her own harm may not recover any damages.” Not reduced. None.

This came from HB 837 (Chapter 2023-15), effective March 24, 2023. Before that, Florida was a pure comparative fault state — a person 90% at fault could still recover 10%.

Each defendant pays only its own share

Fla. Stat. 768.81(3) requires the court to “enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability.” If two defendants are each 50% at fault and one is broke, the other still only owes its half. Section 768.81 does not apply to claims based on an intentional tort — Fla. Stat. 768.81(4).

What Florida caps — and what it does not

Not capped

• There is no general cap on economic or noneconomic damages in an ordinary Florida negligence case. No auto cap, no premises cap, no general injury cap. HB 837 did not create one.
• The main medical malpractice caps are unenforceable. Fla. Stat. 766.118 is still printed in the statute book with figures like $500,000 and $1 million — but the Florida Supreme Court has held the practitioner and nonpractitioner noneconomic caps in subsections (2) and (3) unconstitutional. Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014) came first, in a wrongful-death case in which the practitioner cap was the one at issue — and it was a plurality, so no single set of reasoning commanded a majority. North Broward Hospital District v. Kalitan, 219 So. 3d 49 (Fla. 2017), decided 4–3, then held the caps on personal-injury noneconomic damages in section 766.118 unconstitutional. Those caps are not applied. Other parts of the section were not before the Court — so “there is no cap” is too broad a way to put it.

The medical malpractice arbitration limits, which are a separate thing

Those two decisions did not touch a different set of limits that sit in the arbitration rules, and they still bite:

• If both sides agree to voluntary binding arbitration, Fla. Stat. 766.207(7)(b) caps noneconomic damages at $250,000 per incident.
• If the claimant turns down a defendant's offer to arbitrate, Fla. Stat. 766.209(4)(a) limits damages at trial to net economic damages plus noneconomic damages of no more than $350,000 per incident. That one applies precisely because the case did not go to arbitration.

A Florida appeals court held in Poole v. DeFranko (Fla. 3d DCA, December 18, 2019) that these arbitration provisions were not considered by, and did not fall with, McCall and Kalitan.

Capped

Punitive damages also have a gate before the cap ever matters. Under Fla. Stat. 768.72(1) no punitive claim is permitted “unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery,” and Fla. Stat. 768.72(2) requires clear and convincing evidence of intentional misconduct or gross negligence — gross negligence being conduct “so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons.”

The rule that quietly shrinks medical damages

This one is not a cap, gets almost no attention, and changes real numbers. Fla. Stat. 768.0427, created by HB 837 in 2023, limits what evidence of medical charges a jury is allowed to hear.

• For bills already paid: only “the amount actually paid, regardless of the source of payment” — not the amount billed.
• For bills not yet paid: what the claimant's health coverage would pay; where that route does not apply, 120% of Medicare — and 170% of Medicaid only for a service with no applicable Medicare rate.
• Subsection (4) then caps the recovery: damages “may not include any amount in excess of the evidence of medical treatment and services expenses admitted” — so the evidence rule becomes a damages ceiling.
• It also forces disclosure of any letter of protection, itemized coded billing, factoring arrangements, and whether a treating provider came from an attorney referral, with the law-firm/provider financial relationship treated as relevant to bias.

In practice, a hospital's list price and the amount an insurer actually pays are very different numbers, and the gap between them used to be argued in front of juries. Now the jury largely hears the smaller one. We are not putting an example figure here, because we have no source for what a typical Florida gap looks like.

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