Fla. Gov. Signs Sweeping COVID-19 Liability Protection Law
By Nathan Hale
Law360 (March 29, 2021, 10:15 PM EDT) -- Florida on Monday became the most populous state to date to enact legislation shielding businesses and health care providers from COVID-19 injury and death lawsuits, with the law drawing mostly praise from the state's legal community as needed to support a post-pandemic economic recovery despite controversy over certain provisions.
The legislation had drawn opposition from various groups, including the state's plaintiffs bar, unions and the AARP, plus Democratic lawmakers. But it was a top priority for Republicans, who control the Sunshine State's executive and legislative branches, and pushed the proposal through substantially in its original form and largely along party lines.
Gov. Ron DeSantis signed S.B. 72 the same day he received it from the Legislature. He was flanked at a press conference in Tallahassee by fellow Republican legislative leaders and the state's chief financial officer, who had toured Florida for months pushing the measure, as well as a local rock band that was invited to represent the kind of businesses that have been limited by liability concerns from COVID-19, according to the governor's office.
"Over the course of the past year, our state's businesses, health care providers and other organizations have been forced to operate in fear of frivolous lawsuits with no merit threatening their livelihoods," DeSantis said, applauding the legislation's quick passage. "As we move forward in our state's economic recovery, this good piece of legislation will provide Floridians with greater peace of mind as they go to work, go to school, and go about their daily lives."
The House passed S.B. 72 on Friday in an 83-31 vote largely split along party lines. The measure gives civil immunity to corporations, hospitals, nursing homes, government entities, schools and churches, among others, as long as the alleged negligence doesn't involve gross negligence or intentional misconduct.
The lower chamber passed the bill one week after it was advanced by the state Senate, which combined two bills that had separately addressed COVID-19 liability protections for businesses and health care providers.
The new law erects significant legal hurdles for individuals who want to sue over coronavirus-related injuries. Plaintiffs who file suit will need to provide a physician's affidavit of merit essentially vouching for an injury claim. They will also need to establish in court that a defendant did not make a good faith effort to comply with public health standards and to prove that a defendant committed gross negligence under a "clear and convincing" evidentiary standard.
The law establishes a one-year limitation period to sue from the later of the date of death, hospitalization or COVID-19 diagnosis that forms the basis of the claim. It applies to claims that accrued before the enactment of the law and within one year following the governor's signing of it, but it does not apply to lawsuits that have already been filed.
William Large, executive director of the Florida Justice Reform Institute, a tort reform advocacy group backed by the Florida Chamber of Commerce, praised the Legislature "for clearing the dark clouds of COVID-19 liability hanging over Florida's employers and medical providers, who should be focused on helping people get well and back to work, and not worrying about being sued."
"Today is a great day for businesses and health care providers in Florida," Beth A. Vecchioli, a senior policy advisor with Holland & Knight LLP, told Law360. "With the governor's signing of Senate Bill 72, they no longer have to be worried about fighting frivolous lawsuits from plaintiffs alleging they contracted COVID-19 at their place of business.
Fred E. Karlinsky, co-chair of Greenberg Traurig LLP's insurance regulatory and transactions practice group, said he thinks the legislation is an important step in making sure Florida is a leader among states in taking steps to protect businesses and help its economy and residents move in the right direction.
"This should serve to reduce potential litigation, which could have the effect of slowing down our recovery," he said. "The governor, CFO and the legislature should all be commended for their hard work during this very challenging legislative session and time."
Dean Cannon, president and CEO of GrayRobinson PA and a former Florida House speaker, said the legislation, which became effective immediately upon the governor's signature, represents decisive action that will help on a number of fronts.
"Florida's businesses and health care providers will immediately have the confidence to continue to operate without the fear of being slapped with a COVID-related lawsuit that doesn't provide clear and convincing evidence," he said. "At the same time, our court system will benefit from these reforms, as it will keep those who may be acting in bad faith at bay.
But Paul Jess, executive director of the Florida Justice Association, the state's plaintiffs bar, said the courts already are "perfectly equipped" to weed out lawsuits that lack merit.
"Florida has laws, rules and regulations in force to discourage bad actors and deter health care corporations from being lax in their protocols and training," he told Law360. "That is the whole point of our civil justice system — to encourage safe conduct, to deter unsafe practices and to hold wrongdoers accountable. This new law does the opposite and gives negligent businesses and health care facilities a free pass."
Jess said the new law protects corporate profits but does nothing to protect employees, customers and front line workers who have sacrificed to keep communities safe and the economy open.
There were also some words of caution among supporters of enacting liability protections.
Angela de Cespedes, a litigator with Saul Ewing Arnstein & Lehr LLP whose practice includes the defense of a wide range of businesses in injury and wrongful death cases, told Law360 this is the most comprehensive liability shield law passed to date in the U.S. and a win for those it is intended to protect, but she cautioned that attention must be paid to amend it where necessary to avoid unintended consequences or loopholes.
"Concerns remain with respect to how the process for making the evidentiary determinations required to successfully dismiss these actions will play out as far as time, fee and cost investments by defendant businesses are concerned," she said. "I suspect that the current requirements, including the physician affidavit necessary to file these suits, will have to be beefed up at some point so they more closely resemble that required in medical malpractice suits in order to achieve the desired results."
De Cespedes said combining the business and health care bills was a positive step to achieve consistency in outcomes, and she said thinks the measure should have been written to cover existing lawsuits, which fall outside of the protection of the law.
--Additional reporting by Y. Peter Kang. Editing by Jill Coffey.