DEMAND FOR SETTLEMENT - PRODUCTS LIABILITY
STATE OF FLORIDA
[FIRM NAME]
Attorneys at Law
[Street Address]
[City, Florida ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of Florida
DATE: [Date]
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS MAIL
[General Counsel / Risk Management / Claims Representative]
[Manufacturer / Distributor / Retailer Name]
[Street Address]
[City, State ZIP]
RE: PRODUCTS LIABILITY CLAIM - SETTLEMENT DEMAND
Claimant: [Client Full Name]
Date of Incident: [Date]
Product: [Product Name, Model Number, Serial Number]
Manufacturer: [Manufacturer Name]
Purchase Date/Location: [Date / Retailer Name]
Claim Number: [If assigned]
Dear [Recipient Name]:
This firm represents [Client Name] in connection with serious personal injuries caused by a defective [Product Name] designed, manufactured, distributed, and/or sold by your company. This letter constitutes our formal demand for settlement pursuant to Florida law.
I. FLORIDA-SPECIFIC LEGAL FRAMEWORK
A. Governing Law - Florida Products Liability Law
Florida products liability claims are governed by Fla. Stat. Chapter 768 and common law principles as modified by the 2023 Florida Tort Reform Act (HB 837). Prior to 2023, Florida recognized strict liability under West v. Caterpillar Tractor Co., 336 So. 2d 80 (Fla. 1976). The 2023 reforms significantly modified Florida products liability law.
Current Framework (Post-2023 Reform):
- Strict liability is retained only for manufacturing defects
- Design defect and failure to warn claims require proof of negligence
- Comparative fault threshold modified to 51% bar
Key Elements for Products Liability:
1. The defendant designed, manufactured, or sold the product;
2. The product was defective (manufacturing, design, or warning);
3. The defect existed when the product left the defendant's control;
4. The defect was a legal cause of the plaintiff's injuries; and
5. The plaintiff suffered damages.
See Aubin v. Union Carbide Corp., 177 So. 3d 489 (Fla. 2015).
B. Theories of Liability Recognized
Florida recognizes the following products liability theories:
1. Strict Liability (Manufacturing Defects Only):
For manufacturing defects, Florida retains strict liability. A manufacturing defect exists when the product departs from its intended design. McConnell v. Union Carbide Corp., 937 So. 2d 148 (Fla. 4th DCA 2006).
2. Negligence (Design Defects and Failure to Warn):
Under 2023 reforms, design defect and failure to warn claims require proof of negligence. High v. Westinghouse Electric Corp., 610 So. 2d 1259 (Fla. 1992).
3. Breach of Warranty:
Express and implied warranty claims under Florida's UCC, Fla. Stat. Sections 672.313 through 672.315.
C. Design Defect Standards
For design defects, Florida applies the risk-utility test (now requiring negligence analysis):
Risk-Utility Factors:
1. The usefulness and desirability of the product
2. The likelihood and severity of injury
3. The availability of a safer substitute product
4. The manufacturer's ability to eliminate the danger without impairing usefulness
5. The user's ability to avoid danger
6. The user's anticipated awareness of the inherent dangers
7. The feasibility of spreading the loss
See Cassisi v. Maytag Co., 396 So. 2d 1140 (Fla. 1st DCA 1981).
D. Statute of Limitations
IMPORTANT - 2023 REFORM CHANGE:
Under Fla. Stat. Section 95.11(3)(e), the statute of limitations for negligence actions, including products liability, is now two (2) years for causes of action accruing on or after March 24, 2023.
For causes of action that accrued before March 24, 2023, the prior four (4) year statute of limitations applies.
This claim arises from an injury that occurred on [Date], and therefore the limitations period expires on [Expiration Date].
E. Statute of Repose
Under Fla. Stat. Section 95.031(2)(b), a products liability action must be commenced within 12 years after the date of delivery of the product to its original purchaser.
Exception: If the manufacturer's warranty or guarantee exceeds 12 years, the statute of repose equals the warranty period.
The product at issue was delivered on [Date], which is within the repose period.
F. Comparative Fault
FLORIDA FOLLOWS MODIFIED COMPARATIVE FAULT (POST-2023 REFORM).
Under Fla. Stat. Section 768.81 (as amended by HB 837 in 2023), a plaintiff's recovery is reduced by their percentage of fault. Recovery is completely barred if the plaintiff is more than 50% at fault (51% bar).
Prior to March 24, 2023, Florida followed pure comparative negligence.
- Comparative fault is determined by the factfinder
- Includes consideration of product misuse and failure to follow warnings
- Allocation of fault among all parties, including non-parties
Our client was not comparatively at fault: [Describe why client bears no or minimal fault]
G. Joint and Several Liability
Florida has abolished joint and several liability under Fla. Stat. Section 768.81(3). Each defendant is responsible only for their proportionate share of damages.
Exception: Joint and several liability may apply when the defendants acted in concert.
H. Punitive Damages
Punitive damages are available in Florida under Fla. Stat. Section 768.72 upon clear and convincing evidence that the defendant was guilty of intentional misconduct or gross negligence.
Caps on Punitive Damages (Fla. Stat. Section 768.73):
- Generally: Greater of 3x compensatory damages or $500,000
- If motivated by unreasonable financial gain with knowledge of danger: Greater of 4x compensatory or $2,000,000
- No cap if defendant intended to harm or engaged in misconduct under influence of alcohol/drugs
II. PRESERVATION OF EVIDENCE - SPOLIATION WARNING
YOU ARE HEREBY DIRECTED TO IMMEDIATELY PRESERVE ALL EVIDENCE relating to this product and claim, including but not limited to:
Product-Related:
- [ ] The subject product and all component parts
- [ ] All exemplar products of the same make and model
- [ ] Design documents, specifications, and engineering drawings
- [ ] Manufacturing records for the subject product
- [ ] Quality control records and inspection reports
- [ ] Testing data and results (pre-market and post-market)
- [ ] Safety assessments and risk analyses
- [ ] FMEA (Failure Mode and Effects Analysis) documents
- [ ] All versions of owner's manuals, instructions, warnings, and labels
Regulatory and Complaints:
- [ ] Communications with FDA, CPSC, NHTSA, or other regulatory agencies
- [ ] Consumer complaints involving this product
- [ ] Prior claims and lawsuits involving this product
- [ ] Recall notices and service bulletins
Florida recognizes the independent tort of spoliation of evidence. Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088 (Fla. 4th DCA 2001). Destruction of evidence may result in adverse inferences and independent liability.
III. THE DEFECTIVE PRODUCT
A. Product Identification
| Product Information | Details |
|---|---|
| Product Name | [Full Product Name] |
| Manufacturer | [Manufacturer Name and Address] |
| Model Number | [Model Number] |
| Serial Number | [Serial Number] |
| Date of Manufacture | [Date, if known] |
| Lot/Batch Number | [If known] |
| Date of Purchase | [Purchase Date] |
| Retailer/Seller | [Retailer Name and Location] |
| Purchase Price | $[Amount] |
B. Chain of Distribution
| Entity | Role | Contact |
|---|---|---|
| [Manufacturer Name] | Manufacturer | [Address] |
| [Component Supplier] | Component Manufacturer | [Address] |
| [Distributor Name] | Distributor | [Address] |
| [Retailer Name] | Retailer/Seller | [Address] |
IV. THE DEFECT
A. Nature of Defect - Design Defect
Under Florida law (post-2023 reform), a design defect claim requires proof that the manufacturer failed to exercise reasonable care in designing the product. Applying the risk-utility analysis:
Risk-Utility Analysis:
[Apply factors to the specific case]
The [Product Name] contains a design defect in that:
[Detailed description of design defect]
Alternative Safer Design:
A feasible alternative design existed that would have prevented this injury:
[Describe alternative design]
B. Nature of Defect - Manufacturing Defect
A manufacturing defect exists when the specific product departed from its intended design. Strict liability applies to manufacturing defects in Florida. McConnell v. Union Carbide Corp., 937 So. 2d 148 (Fla. 4th DCA 2006).
The product at issue:
[Describe manufacturing defect if applicable]
C. Nature of Defect - Failure to Warn
Under Florida law, a manufacturer has a duty to warn of known dangers and dangers that should have been known. Post-2023, this requires proof of negligence.
Adequacy of Warnings:
A warning must be:
- Clear and understandable
- Convey the nature and extent of the danger
- Prominently displayed
- Adequate to inform the user how to avoid the danger
Learned Intermediary Doctrine: Florida recognizes this doctrine for prescription drugs and medical devices. Felix v. Hoffmann-LaRoche, Inc., 540 So. 2d 102 (Fla. 1989).
The warnings provided were inadequate because:
[Describe warning deficiencies]
V. THE INCIDENT
A. How the Injury Occurred
On [Date], at approximately [Time], our client was [describe what client was doing with the product]:
[Detailed narrative of the incident]
B. Foreseeable Use
Our client was using the product in a manner that was:
- [ ] Intended by the manufacturer
- [ ] Foreseeable by the manufacturer
- [ ] In accordance with provided instructions
C. No Comparative Fault
Our client exercised reasonable care at all times. Even if comparative fault is alleged, our client's conduct was not more than 50% at fault, and therefore recovery is not barred under Fla. Stat. Section 768.81.
VI. LIABILITY ANALYSIS
A. Strict Liability (Manufacturing Defect)
If a manufacturing defect is involved, all elements of Florida strict liability are satisfied:
- Defective Condition: The product contained a manufacturing defect.
- Departure from Intended Design: The product departed from its specifications.
- Defect Existed When Product Left Defendant's Control: The defect was present at the time of sale.
- Causation: The defect was a legal cause of our client's injuries.
- Damages: Our client has suffered substantial damages.
B. Negligence (Design Defect/Failure to Warn)
Your company was negligent by:
-
Negligent Design: Designing a product with an unreasonably dangerous characteristic when safer alternatives existed.
-
Negligent Manufacture: Failing to implement adequate quality control procedures.
-
Negligent Failure to Warn: Failing to provide adequate warnings of known dangers.
C. Breach of Warranty
Express Warranty (Fla. Stat. Section 672.313):
Your company expressly warranted that [describe warranty]. This warranty was breached.
Implied Warranty of Merchantability (Fla. Stat. Section 672.314):
The product was not fit for its ordinary purpose due to the defect.
VII. PRIOR KNOWLEDGE OF DEFECT
Evidence of your company's prior knowledge of this defect includes:
- [ ] [Number] prior complaints regarding this defect
- [ ] [Number] prior injuries from this defect
- [ ] Recall or service bulletins issued
- [ ] Internal documents acknowledging the defect
Such prior knowledge supports an award of punitive damages under Fla. Stat. Section 768.72 for intentional misconduct or gross negligence.
VIII. INJURIES AND DAMAGES
A. Injuries Sustained
As a direct and proximate result of the defective product, our client sustained:
Physical Injuries:
- [ ] [Injury 1]
- [ ] [Injury 2]
- [ ] [Injury 3]
Surgeries and Procedures:
- [ ] [Surgery 1]
- [ ] [Surgery 2]
Permanent Conditions:
- [ ] [Permanent condition 1]
- [ ] [Permanent condition 2]
B. Medical Expenses
| Provider | Service | Amount |
|---|---|---|
| [Provider 1] | [Service] | $[Amount] |
| [Provider 2] | [Service] | $[Amount] |
| TOTAL PAST MEDICAL | $[Total] |
Future Medical Expenses: $[Amount]
C. Lost Wages and Earning Capacity
| Category | Amount |
|---|---|
| Past Lost Wages | $[Amount] |
| Future Lost Earning Capacity | $[Amount] |
| TOTAL LOST WAGES | $[Total] |
D. Non-Economic Damages
- Physical pain and suffering
- Emotional distress
- Disfigurement
- Loss of enjoyment of life
- Inconvenience
E. Summary of Damages
| Category | Amount |
|---|---|
| Past Medical Expenses | $[Amount] |
| Future Medical Expenses | $[Amount] |
| Past Lost Wages | $[Amount] |
| Future Lost Earning Capacity | $[Amount] |
| TOTAL ECONOMIC DAMAGES | $[Subtotal] |
| Pain and Suffering | $[Amount] |
| Disfigurement | $[Amount] |
| Emotional Distress | $[Amount] |
| Loss of Enjoyment of Life | $[Amount] |
| TOTAL NON-ECONOMIC DAMAGES | $[Subtotal] |
| TOTAL COMPENSATORY DAMAGES | $[Total] |
F. Punitive Damages
Your company's conduct warrants punitive damages under Fla. Stat. Section 768.72. Your company knew of the defect and acted with intentional misconduct or gross negligence.
IX. SETTLEMENT DEMAND
Based upon the clear liability of your company under Florida law and the severe injuries suffered by our client, we hereby demand:
$[DEMAND AMOUNT]
This demand will remain open for forty-five (45) days from the date of this letter, expiring at 5:00 p.m. Eastern Time on [Expiration Date].
X. CONCLUSION
This case involves a defective product that caused serious injuries to our client. Your company is liable under Florida law. Our client was not more than 50% at fault, thus preserving the right to recovery.
If this matter cannot be resolved, we are prepared to file suit in the Circuit Court of [County] County, Florida, and to pursue this matter through trial.
Please contact me at your earliest convenience.
Respectfully submitted,
[FIRM NAME]
By: _________________________________
[Attorney Name]
Florida Bar No. [Number]
Attorney for [Client Name]
ENCLOSURES: [List]
cc: [Client Name]
[File]
FLORIDA PRODUCTS LIABILITY PRACTICE NOTES
-
[ ] 2023 Tort Reform: Major changes effective March 24, 2023 including: (1) strict liability limited to manufacturing defects; (2) statute of limitations reduced to 2 years; (3) comparative fault threshold changed to 51% bar.
-
[ ] Determine Accrual Date: Critical to determine whether pre- or post-reform law applies. Claims accruing before March 24, 2023 subject to prior law.
-
[ ] Manufacturing vs. Design: Manufacturing defects retain strict liability; design defects require negligence proof post-2023.
-
[ ] Statute of Repose: 12-year limit from delivery to original purchaser. Verify product delivery date.
-
[ ] Expert Testimony: Required to establish defect and causation in most cases. Florida follows Daubert standard under Fla. Stat. Section 90.702.
-
[ ] Punitive Damages Procedure: Punitive damages cannot be initially pled; must move for leave to amend after discovery. Fla. Stat. Section 768.72(1).
-
[ ] Fabre Defendants: Consider allocation of fault to non-parties under Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993).
-
[ ] Venue: Circuit Court in county where defendant resides, where cause of action accrued, or where property in litigation is located. Fla. Stat. Section 47.011.
-
[ ] Collateral Source Changes: 2023 reforms modified collateral source rule. Review Fla. Stat. Section 768.76.
-
[ ] Bad Faith: Consider potential bad faith claim against insurer if settlement demand rejected. Fla. Stat. Section 624.155.
Florida products liability law underwent significant changes in 2023. This template must be reviewed and customized by a licensed Florida attorney before use.