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.