Florida: How Adjusters' Fault Argument Changed in 2023

Before HB 837, a Florida adjuster was negotiating over a slice of your recovery. Now, for most claims, they're negotiating over whether you get anything at all.

A fundamentally different incentive since 2023

Before House Bill 837, an adjuster's fault argument in a Florida claim was purely about degree — every additional point of fault shrank the payout, but the claim always survived in some form. Since March 24, 2023, for most negligence claims, an adjuster who can push a claimant's fault past 50% eliminates the claim entirely. This is a genuinely different kind of negotiation than the one that existed in Florida for decades before.

Medical malpractice kept the old incentive structure

Because medical malpractice claims remain pure comparative negligence under Chapter 766, an adjuster in that specific context still operates under the old dynamic: arguing fault reduces the payout, but never eliminates the claim outright, regardless of how high the fault percentage climbs. This makes the negotiating posture in a Florida malpractice case genuinely different from nearly every other kind of Florida injury claim today.

Why analysts say this shifted leverage toward insurers

Legal commentators have noted that the new system gives claimants stronger motivation to settle, since the risk of losing everything at trial is now real in a way it wasn't under the old pure comparative rule — and that this dynamic can translate into lower settlement amounts than claimants might have received before 2023, for the exact same underlying facts.

Why a recorded statement carries more weight now

An early, informal recorded statement always deserved caution, but the stakes are sharper under the post-2023 rule. A phrase that shifts an adjuster's internal fault assessment from 45% to 51% doesn't just shrink the payout modestly anymore — for most claim types, it can eliminate the recovery entirely. This is exactly the kind of shift that makes discussing a recorded statement with an attorney before giving one more important today than it was before HB 837.

Who ultimately decides

If a case goes to trial, the trier of fact — typically a jury — determines fault under whichever rule actually applies to the claim. In the far more common scenario of a negotiated settlement, this determination is effectively worked out between the parties. See our Florida comparative negligence calculator to see exactly how the 2023 change plays out for a specific fault percentage and claim type.

How fault is assigned in Florida — frequently asked questions

How did HB 837 change what a Florida insurance adjuster is trying to prove?

Before 2023, an adjuster only needed to establish some degree of fault to reduce a payout. Now, for most claims, proving a claimant was more than 50% at fault eliminates the claim entirely, giving adjusters a much stronger incentive to push fault past that specific line.

Does this change apply to a Florida medical malpractice claim too?

No. Because medical malpractice remains pure comparative negligence, an adjuster in a malpractice case still only reduces the payout by proving fault, rather than trying to eliminate the claim by crossing the 51% threshold.

Why do legal analysts say HB 837 gives defendants more settlement leverage?

Because the risk of losing everything at trial, rather than simply receiving a reduced award, gives claimants stronger motivation to settle, which analysts note can result in lower settlement amounts than under the old pure comparative system.

Should I give a recorded statement to a Florida insurance adjuster after 2023?

It's worth real caution, since an imprecise or offhand statement can now be used to push a claimant's fault percentage past the 51% threshold, eliminating the claim entirely rather than merely reducing it.

Who ultimately decides fault percentages in a Florida claim?

The trier of fact, typically a jury, if a case goes to trial. Before that, in a negotiated settlement, fault is effectively worked out between the parties based on the available evidence.

This page provides general guidance only and is not legal advice. Figures are based on Florida statute (Fla. Stat. § 768.81, Ch. 766) as amended by HB 837, verified per our methodology. Confirm how these considerations apply to a specific claim with a licensed Florida attorney before acting.