COVID-19 Liability Shields Are Hot Topic in Florida Legislature

Bilzin Sumberg Publication
Client Alert
March 4, 2021

Florida’s new legislative session began this week with a push for the enactment of COVID-19 liability protections for various business and non-profit entities. The legislature will likely soon be voting on House Bill 7 and its counterpart Senate Bill 72, both of which aim to “provide liability protections for COVID-19-related claims.” Legislators supporting these bills intend to shield businesses, educational and religious institutions, and governmental entities acting in "good faith" from liability against claims for damages, injury, or death caused by exposure to COVID-19. Certain additional protections for healthcare providers are currently being addressed separately by the Florida legislature.

A majority of states have either passed legislation or signed executive orders providing COVID-19 liability protection to certain businesses. A number of other states, like Florida now, have pending legislation.

The bills, which are substantially the same, provide that plaintiffs who file a civil action based on a COVID-19 related claim must plead their allegations in the complaint with particularity and submit an affidavit signed by a physician, attesting to the physician’s belief that the plaintiff’s COVID-19 claim occurred as a result of the defendant’s acts or omissions. If the plaintiff is able to overcome this hurdle, the court is then required to determine, as a matter of law, whether the defendant made a “good faith effort” to comply with applicable health and safety guidelines. If so, the defendant would be immune from civil liability. In order for a defendant to be liable for a COVID-19-related claim, the plaintiff would need to prove that the person or entity acted with gross negligence or intentional misconduct. A showing of simple negligence would not be sufficient to impose liability on the defendant. In addition, the plaintiff has a heightened burden to prove the claim with clear and convincing evidence, as opposed to the more traditional greater weight of the evidence (or more probable than not) standard.

The legislation would further require that a plaintiff move expeditiously to file suit. A civil action for a COVID-19-related claim would need to be commenced within one year after the cause of action accrues. However, a plaintiff whose cause of action for a COVID-19-related claim accrued before the legislation becomes law must commence such action within one year of the law's effective date.

Critics oppose this legislation, arguing that the bills have been rushed through the pertinent committees at record speed and that passage of a law of this type would likely shut the courthouse doors to meritorious claims. Some also fear that the contemplated law would disincentivize companies from implementing and following necessary health and safety protocols to protect their customers and employees. Proponents respond that the legislation is meant to shield businesses from frivolous lawsuits and relieve just one of the many burdens now faced by a business community and government agencies that have already been hard hit by the pandemic.

With or without the liability shield, plaintiffs will likely face significant difficulties in many cases establishing that they were infected with COVID-19 at a certain place and due to a certain failure on the part of that place's proprietor. The proposed Florida legislation, should it become law, would likely reinforce and supplement those barriers.

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Philip R. Stein
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