New Florida Law Gives Businesses Liability Protections From COVID-19 Claims
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The impact of the COVID-19 pandemic has been difficult on Florida businesses, particularly those in the hospitality, travel and restaurant industries, forcing many of them to close their doors to the public at various times and to suffer financial hardship. As businesses are beginning to re-open, a growing concern has been expressed that frivolous COVID-19-related claims may threaten their financial survival. In response to this concern, on March 29, 2021, Florida Governor Ron DeSantis signed new legislation, Senate Bill 72 (the “New Law”), that provides new liability protections to Florida businesses, health care providers, and other organizations from frivolous COVID-19-related claims. This is a unique liability protection law and one of the first of its kind in the nation, and may be a model for other states.
1. What is a COVID-19-Related Claim Under the New Law?
As provided in the New Law, a “COVID-19-related claim” is defined as a “civil liability claim against a person, including a natural person, a business entity, an educational institution, a government entity, or a religious institution, which arises from or is related to COVID-19, otherwise known as the novel coronavirus,” which includes “any such claim for damages, injury, or death.”
2. What Are the Liability Protections Provided to Florida Businesses For COVID-19 Related Claims Under the New Law?
The New Law provides liability protections for COVID-19-related claims to businesses (not including health care providers) by establishing preliminary requirements that a plaintiff must complete before their lawsuit is able to proceed. These preliminary requirements are:
- The complaint must be pled with particularity;
- A physician’s affidavit must be filed at the same time as the complaint; and
- Evidence that the defendant did not make a good faith effort to substantially comply with authoritative or controlling health standards when the alleged action occurred.
These are significant hurdles that a potential plaintiff must overcome to be able to maintain the suit, that are not required in other personal injury suits, and are likely to discourage many marginal or weak claims from ever being filed in the first instance. Each of these requirements is addressed in more detail below.
A. Plaintiff’s Pleading Requirements and the Physician’s Affidavit
At the same time as filing a complaint, plaintiffs must submit a physician’s affidavit. The physician must state, within a reasonable degree of medical certainty, that the plaintiff’s COVID-19-related damages, injury, or death occurred as a result of the defendant’s acts or omissions.
Before a trial can proceed, the court will be required to determine, as a matter of law, whether the plaintiff’s complaint is pled with particularity and the physician’s affidavit complied with the necessary requirements. If the plaintiff does not meet these two preliminary requirements, the court is required to dismiss the action without prejudice, meaning the plaintiff will be prohibited from refiling its COVID-19-related claim.
B. Defendant’s Good Faith Effort to Substantially Comply with Authoritative or Controlling Health Standards
The court must also determine whether the defendant made a good faith effort to substantially comply with authoritative or controlling health standards when the alleged action occurred. The only admissible evidence at this stage is evidence relating to whether the defendant made a good faith effort to comply with authoritative or controlling health standards, or not.
If the court determines that the defendant made such a good faith effort, the defendant is immune from civil liability. On the other hand, if the court determines that the defendant did not make such a good faith effort, the plaintiff may proceed with its lawsuit.
C. Plaintiff’s Burden of Proof
In addition, even if a plaintiff is able to meet these preliminary requirements to maintain the suit, in order to prevail in the lawsuit, the plaintiff must prove, by clear and convincing evidence, that the defendant committed at least gross negligence. In order to establish gross negligence, the plaintiff must prove that that the “defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.” Fla. Stat. § 768.72(2)(b). The clear and convincing evidence standard is higher than the normal preponderance of the evidence standard, and requires evidence that is credible, remembered distinctly by witnesses, and be of such weight that produces in the mind of the trier of fact a firm belief or conviction, without hesitation, that the allegations are true. Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
This is a much more difficult showing to make than a normal personal injury claim, which only requires the plaintiff to establish normal negligence, which is the failure to meet a legal duty of care. If the plaintiff is unable to meet this high burden of proof, the defendant will not be liable for the COVID-19-related claim. In short, these new requirements will make it very difficult for plaintiffs to prevail in lawsuits asserting COVID-19-related claims.
3. How Long Do Plaintiffs Have to Bring COVID-19 Related Claims Under the New Law?
In addition, under the New Law, plaintiffs are required to bring their COVID-19-related claims within one year after the cause of action accrued, or within one year from March 29, 2021, if the cause of action accrued before that date. This is much shorter than the traditional statute of limitations for personal injury claims, which is typically four years from when the cause of action accrued.
The New Law provides businesses with liability protections from COVID-19-related claims because potential plaintiffs must establish certain preliminary requirements, and plaintiffs have a high burden of proof to prevail in the lawsuit. As a result, potential plaintiffs will likely be deterred from bringing frivolous COVID-19-related claims against businesses, and businesses will not have to divert its time, attention, and money to respond to such claims.
 Section 2 of the New Law provides liability protections to health care providers for the diagnosis or treatment of, and failure to diagnose or treat, a person with COVID-19. For COVID-19-related claims against a health care provider, the plaintiff is not required to file a physician’s affidavit at the same time as the complaint. In order to prevail in the lawsuit, the plaintiff must prove, by the greater weight of the evidence, that the health care provider was grossly negligent or engaged in intentional misconduct.