COVID Liability Legislation
Earlier this year, the Florida Legislature and Governor DeSantis signed a bill related to the liability of businesses, entities, and individuals regarding COVID-19. This bill provides broad immunities and essentially eliminates any realistic chance of bringing a lawsuit against anyone for contracting COVID-19.
The full law can be read here: Senate Bill No.72
However, a summary of the effects of the bill are as follows:
- The bill applies to any civil action after March 29, 2021.
- The law covers any civil liability claim related to COVID-19. There is not a really specific definition of what this might cover, therefore it can be interpreted to cover businesses, medical offices, nursing homes, and schools.
- Additional procedural requirements have been added prior to a claim being filed.
o A physician affidavit must be attached to the lawsuit stating the damages from COVID-19 were caused by the defendant.
o If the defendant made a good faith effort to comply with government-issued health standards or guidance, they are immune from liability.
- The statute of limitation has been reduced to 1 year.
- The burden of proving the claim is increased to gross negligence proven by clear and convincing evidence.
The bill all but eliminates the ability to bring action against an entity that may have caused a person to contract the COVID-19 virus. There are several reasons why.
Statute of Limitations
A reduced statute of limitations with only one year for filing a claim is much shorter than most negligence actions. In Florida, against a private entity, four years is allowed to bring a lawsuit. This bill means that even if there is a legitimate claim with all the evidence in the world but the lawsuit is filed 366 days after the injury occurred, the lawsuit is dismissed.
Broad Definition of Entities Covered
The broad definition of what entities are covered makes this more difficult as well. Traditionally, businesses, governmental entities, and medical offices with claims against them are all given different treatment for how actions are taken against them. They should be different because there are different standards of conduct.
For instance, Wal-Mart stores are kept reasonably safe based upon standards that are developed for Wal-Mart stores. Their standards are different from how a memory care unit at a nursing home or operating room in a surgical center would be. Juries should not treat these places the same, but this law puts them in the same category. This was likely done because the other aspects of the bill are so severely limited, it really doesn’t matter where the claim would be initiated, it has no real chance of success.
Burden of Proof
The procedural requirements and burden of proof necessary for these cases now are the figurative “nail in the coffin” for these cases.
Procedurally requiring a physician to swear under oath that the defendant’s conduct caused the injured party to contract COVID-19 is close to impossible. The science on the contraction of this virus is so new and unsettled, it would be very difficult for a physician to state with any certainty how someone contracted a virus. But even if there is a physician that can swear to this information, the defendant has a very easy method of getting the case dismissed. The only action they have to show to be immune from any case is that they made a good faith effort to comply with the governmental healthcare recommendations at the time.
This is so problematic because for much of the time of COVID-19, Florida did not have healthcare requirements, but merely suggestions. There are multiple times the Governor stated he would never issue a mask mandate. Without clear mandates of what businesses and entities were supposed to do to protect customers, how can it be shown the business didn’t comply?
Additionally, the burden of proof requires gross negligence proven by clear and convincing evidence. This is a much higher burden than typical negligence cases because a party essentially has to prove the defendant didn’t care to keep the plaintiff safe at all.
Is it Possible to Win a Case against a Defendant in Florida?
It would be surprising if there was a successful case brought against a defendant in Florida after this legislation took effect. The bigger concern is how far-reaching is this legislation. On its face, it shouldn’t increase the burdens that exist for a workers’ compensation case already. However, proving that case is likely just as difficult.
There is also the concern of whether a business disruption policy might be negatively affected by this law. Basically, it’s a first-party insurance claim where a business seeks reimbursement for loss of business. This happened a lot with the onset of the pandemic because many companies were forced to shut down and lost significant business.
COVID-19 has been disrupting our way of life for a long time now and will likely continue to do so for the foreseeable future. Many businesses, government offices, churches, and schools reacted to the healthcare warnings with a spectrum of responses — some shut down completely and reopened later with specific safety guidelines while others maintained semi-regular operations.
The problem with this law is that it protects both almost equally. The law attempts to provide a distinction and a path for plaintiffs to go against really bad actors, but in reality, it protects everyone across the board — regardless of what efforts they took to keep people safe.
At Carrillo Injury Law firm, we are always ready to take a look at your worker’s compensation claim or workplace injury incident. Reach out to us today by calling 352-371-4000 to schedule your free consultation.