How the Passage of the COVID-19 Liability Protection Bill Affects Florida Businesses

Posted in Legal Alerts, Newsletters - 2021 on May 24, 2021

COVID-19 has affected the state of Florida, and the entire United States, in ways that were previously unfathomable. The virus has taken a catastrophic toll on the population as well as the economy. While many industries are struggling to recover, the risk of opportunistic insurance claims and lawsuits as a result of the pandemic is on the rise. The financial threat these lawsuits pose to the business community, large and small, is incalculable. Multiple plaintiffs have already filed lawsuits in hopes of compensation for a variety of reasons, including relatives of deceased family members seeking compensation for their loved ones’ deaths and businesses filing suits against insurance carriers that have denied business interruption claims. New state legislation passed on March 29, 2021 grants liability protection against COVID-19 related injury and death lawsuits to Florida businesses and educational, governmental, and religious institutions – all of which are attempting to recover from the devastating effects of the pandemic.

The recently passed law SB 72 – also known as “An Act Relating to Civil Liability for Damages Relating to COVID-19” – protects individuals, businesses, governmental entities, and religious organizations against claims related to COVID-19 by raising the standard for plaintiffs who claim COVID-19 related damages. The law creates a set of pre-suit requirements that must be fulfilled before a civil action can be filed and heightens the standard of proof plaintiffs must meet in order to be successful in a COVID-19 related claim. When a plaintiff claims COVID-19 related damages, injury, or death as a result of another party’s acts or omissions, they must now file an affidavit signed by an actively licensed physician in Florida attesting that the claims are a direct result of COVID-19. The court will then determine if the defendant made “good faith” efforts to comply with all current health standards when the cause of action accrued. If one or more set of health standards applied at the time, a defendant does not need to have complied with all such standards. A “good faith” effort is considered to be what a reasonable person would see as being a diligent and honest effort if they were put in the same situation. A plaintiff meets the pre-suit requirements if the court determines that the defendant did not make a “good faith” effort, the appropriate medical affidavit is submitted, and the complaint is pled with particularity.  

Plaintiffs must also meet a new heightened standard to prove their claims. Previously, a plaintiff only had to show a defendant failed to make a “good faith” effort under the “preponderance of evidence” standard. Under the new legislation, a plaintiff will have to prove with “clear and convincing evidence” that a defendant was grossly negligent in their “good faith” effort. The new legislation also changes when a plaintiff must file suit. Negligence claims are generally filed within four years from the date the action accrued except in cases involving professional negligence and wrongful death claims. In those specific cases, there is two-year statute of limitations. The new COVID-19 liability protection law requires plaintiffs to file their claims for damages within one year from the date the action accrues or, if the cause of action accrued before the effective date of the Act, within one year of the effective date of the Act. This means the new law applies retroactively to claims that accrued before the law went into effect. It does not, however, apply to civil actions already filed at the time the Act became effective.

While the new law does not thoroughly define “substantial compliance” or “good faith effort” for businesses, educational institutions, government entities, and religious institutions, protection does not extend to grossly negligent, reckless, or willful misconduct. Business owners and managers should carefully review their workplace protocols to see if they comply with local, state, and federal guidance from the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA). These agencies routinely update their COVID-19 guidelines for creating a safe work environment for employees. Many Florida localities have also issued detailed orders for businesses that are reopening (or staying open). Guidance for creating a safe work environment during the pandemic may change constantly, however, and employers have the responsibility to stay up to date on these guidelines to minimize risk to their employees and protect against future liability.

Many businesses have already had to defend themselves against plaintiffs who have filed claims alleging negligence. Even if the current COVID-19 related lawsuits present significant evidentiary challenges to proving causation, this law will further protect businesses from false and opportunistic claims. The new legislation provides a degree of liability protection that business owners will appreciate as many are concerned about potential frivolous lawsuits that will arise from their reopening. The law also serves to protect Florida’s judicial resources by permitting only meritorious claims to proceed to court. Business owners should rest assured knowing that this new legislation creates a high threshold for plaintiffs to meet to bring successful COVID-19 claims to court.