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Jacksonville Business Journal

Florida Senate backs Covid-19 protection for businesses

COVID coronavirus rendering DOWELL

By Christine Sexton – News Service of Florida
January 26, 2021

The measure would shield companies from liabilities.

Tallahassee, FL - The Senate Judiciary Committee on Monday approved a proposal that would give Florida businesses that “substantially” comply with public-health guidelines broad protection from coronavirus-related lawsuits filed by customers and employees.

The bill (SB 72) would not apply to health-care providers such as hospitals, nursing homes and physicians, who have been clamoring for protections since spring. Instead, the bill would help shield other types of businesses and educational and religious institutions from claims for damages, injuries or deaths.

The Republican-controlled committee spent more than two hours debating the bill and four amendments offered by Democrats before voting 7-4 along party lines to move it to the Senate Commerce and Tourism Committee.

“I promise all my bills will not be like this. I promise that we will work together in most of our legislation in a much more, I believe, collaborative way to address this,” said Judiciary Chairman Jeff Brandes, a St. Petersburg Republican who is sponsoring the bill.

Without the legislation, Brandes said businesses could face lawsuits if they did not “wholly” comply with the various public-health orders issued at the state, local and federal levels.

“They would have been subject to lawsuits that could have put them under. Not only businesses but homeowners against homeowners, parishioners against pastors, and I think that’s what this legislation does,” Brandes said. “It says, ‘Look, we need to create a safe harbor for those businesses that substantially complied with the guidelines.’”

The proposal’s supporters contend employers that have been struggling to remain in operation during the pandemic are at risk of getting sued. But a Senate staff analysis said only six lawsuits have been filed.

Florida Justice Reform Institute President William Large, however, said his research indicates that 53 lawsuits have been filed across the state. Large said litigation has been filed against nursing homes and cruise lines, neither of which would be protected under the bill.

Large asked senators to ensure that they consider similar legislation to protect health-care providers.

“Sometime in the future, make sure our health-care providers are included in a bill that substantially looks like this,” said Large, whose business-backed group lobbies on a wide range of issues related to limiting lawsuits.

Brandes’ bill would require plaintiffs to file claims within one year after incidents. They would be required to obtain affidavits from Florida physicians attesting that the defendants’ acts or omissions caused the damages, injuries or deaths.

Businesses that courts deem have “substantially” complied with government-issued health standards or guidance would be immune from liability. The bills also would make it harder to win lawsuits, raising the bar of proof from simple negligence to gross negligence and upping evidentiary standards from the current “greater weight of the evidence” to “clear and convincing evidence.” 

Democrats on the committee proposed amendments that were defeated or withdrawn. For example, Sen. Tina Polsky, a Boca Raton Democrat who is an attorney, filed an amendment that would have required a “qualified medical expert” to sign an affidavit that a plaintiff was positive for COVID-19 at the time the cause of action accrued and that the plaintiff’s infection resulted in injury, damages, or death.

Polsky’s amendment would have deleted the provision in the bill that would require physician affidavits. In offering her amendment, Polsky said a physician would not be qualified to determine whether a business' actions caused the COVID-19 infection.

The Republican-led Legislature unveiled the Senate bill and its House counterpart (HB 7) this month. The bills are identical, and House and Senate leaders have thrown their support behind the proposals. The House bill cleared its first subcommittee last week in a party-line vote.

Lawmakers are considering the proposals as the numbers of COVID-19 cases and deaths have surged in Florida during the fall and winter. As of Monday, 1,658,169 cases of COVID-19 and 25,446 resident deaths had been reported in Florida since the pandemic hit.

Bill Herrle, executive director of the small-business group NFIB Florida, said businesses are keenly aware the liability proposal is moving through the Legislature.

“I can assure you that business owners are very aware that you are addressing this issue; that  you are debating it today,” Herrle said. “And the thing they like about it the most is it’s being done today here at the very outset of the legislative session.”

But Sen. Perry Thurston, a Fort Lauderdale Democrat who is an attorney, said he didn’t think liability protection was the most important COVID-19-related issue for the Legislature to tackle first as it prepares for the March 2 start of the annual session.

“Blanket immunity that we have here is not what I think should be our first line of attack on this virus that has plagued our community,” Thurston said, adding that he gets calls about food insecurity and evictions and job loss. “One of the speakers talked about the fact that this is the first item of business for the Florida Legislature. I think it’s something that we should be addressing. But when I have to go back to my community and talk about people being evicted, people having food insecurities, life or death issues, I think it’s a sad reflection on the state that this is what we choose to address first as it relates to this virus.”