Fla. Lawmakers Propose Raising Bar For COVID-19 Suits

By Nathan Hale
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Law360 (January 7, 2021, 6:19 PM EST) -- The Florida Legislature has taken first steps toward shielding businesses from potentially frivolous injury lawsuits related to the COVID-19 pandemic with bills that would set requirements for such pleadings and provide immunity for defendants who made good faith prevention efforts.

On Wednesday, Jeff Brandes, R-St. Petersburg, filed Senate Bill 72, while Rep. Lawrence McClure, R-Dover, is sponsor of the identical House Bill 7. The bills are among the more highly anticipated efforts state lawmakers are expected to consider to address the health and economic challenges presented by the still-raging pandemic.

"The unprecedented nature of the COVID-19 pandemic has created an uncertain legal climate for Florida businesses, which could result in serious and ongoing economic challenges for our entire state," said Brandes, who is chair of the Senate Judiciary Committee, in a statement. "These important protections will aid in separating the serious and meritorious claims brought against a Florida business from the claims that are unfair or inappropriate as our state continues to fully reopen and recover."

The novel coronavirus continues to plague the Sunshine State even as it starts to roll out vaccinations. For the second day in a row, Florida reported a single-day record of coronavirus cases Thursday, with 19,816 new cases as total deaths in the state topped 22,400.

The proposed legislation would provide legal protections related to COVID-19 for a broad range of individuals and entities, including businesses, charities and educational and religious institutions — however, a Senate press release said, health care providers will be addressed separately.

The bills require any lawsuit that brings a COVID-19-related claim for damages, injury or death to be pled with particularity. The complaint also must be accompanied by an affidavit signed by an active physician attesting that "within a reasonable degree of medical certainty, the alleged injuries or damages were the result of the defendant's acts or omissions."

The court must dismiss the complaint without prejudice if either of those requirements is not met, according to the bills.

The legislation also requires the court to determine whether the defendant made a good faith effort to substantially comply with government-issued health standards or guidelines.

Such a finding would impart immunity from civil liability on the defendant. If the court finds such efforts were lacking, the plaintiff still must show clear and convincing evidence of at least gross negligence, according to the bills.

The bills also specify that it is the plaintiff's burden to demonstrate a lack of good faith effort by the defendant.

The legislation requires COVID-19-related civil actions to be filed within one year after the cause of action accrues. The bill would apply retroactively, setting a statute of limitations of one year from its becoming law for any claims that accrued before the law's effective date.

The preamble text of the bills calls a "strong and vibrant economy" essential to ensuring that Floridians can continue to work and eventually restore their quality of life after the pandemic ends and also says that Floridians "must be allowed to earn a living and support their families without unreasonable government intrusion."

"The Legislature also finds that there are no alternative means to meet this public necessity, especially in light of the sudden, unprecedented nature of the COVID-19 pandemic," the bills say. "The Legislature finds the public interest as a whole is best served by providing relief to these businesses, entities, and institutions so that they may remain viable and continue to contribute to the state."

Beth A. Vecchioli, a senior policy adviser with Holland & Knight LLP, said she applauds the Florida Legislature for tackling this complex issue, saying it is very important to keep essential businesses open to ensure that residents can be gainfully employed while still receiving essential services.

"This pandemic is unprecedented and businesses have struggled to keep their doors open while trying to make a good faith effort to comply with the [U.S. Centers for Disease Control and Prevention] guidelines pertaining to COVID-19 so that their employees and customers can be protected," she told Law360.

Vecchioli also noted that the bills do not bar lawsuits against essential businesses but just "raise the bar" for what evidence a plaintiff must produce and prove to prevail.

It also makes sense to address health care businesses in separate legislation, because their situation is "more complicated as they have been directly treating patients that have been exposed to or already contracted COVID-19," she added.

In a statement, Senate President Wilton Simpson, R-Trilby, said House Speaker Chris Sprowls, R-Palm Harbor, and the House had been "tremendous partners" in crafting this legislation, and Simpson spoke optimistically about continuing to work together on additional protections for health care providers.

But while the two chambers are starting with identical bills, Richard Pinsky, public policy manager at Akerman LLP, predicted the two bills will face differing paths.

The House, which has scheduled a first hearing for H.B. 7 at a committee workshop next week, is likely to keep the bill close to "as filed" as it moves through the process, Pinsky said.

But Brandes, the Senate sponsor, "will have more difficulty keeping all the stakeholders under the tent," Pinsky suggested, setting up a need for negotiations between the two chambers at the end of the two-month session, which starts Mar. 3, to determine what will be included in the final version of these bills and the separate health care versions.

"For sure, how nursing homes will be treated will be a controversy," Pinsky said. "Retroactivity and raising the standard from negligence to gross negligence will be two more points of controversy."

Ultimately, something will pass that the governor will be willing to sign, Pinsky predicted, but he said it is too early to know what will come across the finish line.

--Editing by Andrew Cohen.

For a reprint of this article, please contact reprints@law360.com.

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