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Sarasota Herald Tribune

Business groups demand that Florida craft virus lawsuit protections

John Kennedy - Sarasota Herald-Tribune
Published 09:37 pm - Nov. 27, 2020

TALLAHASSEE – Business groups have been clamoring for months for Florida lawmakers to enact measures aimed at protecting stores, cruise ships, health care providers and nursing homes slapped by hundreds of lawsuits stemming from the coronavirus pandemic.

Florida’s new Republican leaders say they are willing to approve some safeguards for businesses. But how far they’ll go is uncertain.

Meanwhile, some question whether there really is a looming courtroom crisis.

“It’s a solution in search of a problem,” said Paul Jess, executive director of the Florida Justice Association, which represents trial lawyers in Florida.

“There have been lawsuits filed,” he added. “But they all face a huge causation problem. They have to prove that someone caught COVID because of a business’s negligence. And that often is just not a winnable case.”

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While it’s not surprising that a trial lawyers’ group would oppose any measures limiting courtroom access, Florida Republicans leading the Legislature also are supporting  the broad concept of shielding businesses from lawsuits related to COVID-19 exposure or transmission.

But they acknowledge they don’t know exactly how to do it.

“I think we all agree it’s a problem that we need to figure out the best way to solve,” said House Speaker Chris Sprowls, R-Palm Harbor.

Sprowls said it was important that companies “trying to do the best thing for their customers and employees don’t get blindsided by a frivolous lawsuit, while making sure that somebody who was doing the wrong thing, that they’re still held accountable.”

Senate President Wilton Simpson, R-Trilby, said it was important that any legislation not “let people off the hook for negligence.”

“I don’t think you ever in any condition put a blanket statement … that no one would have any liability associated with COVID,” he said. “But I think if you’ve made the right attempt to follow the CDC (federal Centers for Disease Control and Prevention) guidelines, then that’s something we should take a look at.”

 Woman in grocery store Florida businesses want lawmakers to enact new protections from lawsuits stemming from COVID-19 exposure or transmission.  Sarah Gonzalez, NPR

From the earliest weeks of the pandemic, the Florida Chamber of Commerce and the Florida Justice Reform Institute, which lobbies to reduce the legal risks facing businesses, have spearheaded the effort for lawsuit limits. More than a dozen states so far have enacted some kind of liability protection.

The COVID-19 Complaint Tracker, a national database maintained by the law firm Hunton Andrews Kurth, showed 483 lawsuits have been filed in Florida related to the virus.

But about one-quarter of these complaints involve insurance companies, which Jess said mostly involve companies suing their insurers for failing to make good on business interruption policies supposed to help cover losses caused by the virus.

Still, William Large, president of the Florida Justice Reform Institute, said many other lawsuits have been filed against nursing homes by staff, patients and their families, cruise lines by passengers and crews, tour companies by customers in refund disputes and a host of workplace clashes tied to the coronavirus.

Large acknowledged that the lawsuits in Florida have not yet advanced to trial and could still be dismissed by a judge on legal grounds that there is insufficient proof that a business played a role in spreading the infection.

Still, he said, companies can’t operate under the threat that they’ll be tied up in court defending themselves.

“Business is down 50%, 60% sometimes 70% for some companies, and others have gone bankrupt,” Large said. “On top of that, they’re going to get sued for the transmission of COVID-19 because somebody thinks they got it in a particular facility, even if everyone is following state and local guidelines, cleaning up and spraying Lysol.

“But someone walks in without symptoms and is a carrier and someone else catches it.  It’s just not right the business should be held responsible,” he added.

A 40-member industry task force this summer proposed legislation that increased the standard for COVID-related liability to gross negligence or intentional bad conduct by a firm. It also proposed a tougher “clear and convincing” standard to establish liability, rather than just a preponderance of evidence that a company acted badly.

Task force members included representatives of restaurants, hotels, nursing homes, retailers, home builders and insurers.

Large and others earlier this year pushed Gov. Ron DeSantis and legislative leaders to call a special session to address the matter, which didn’t happen. At the same time, in Washington, U.S. Senate Majority Leader Mitch McConnell also insisted that Congress make it harder for workers and customers to sue employers and businesses for any damages related to the coronavirus.

McConnell demanded that liability protections be part of any new stimulus plan crafted to help states and jobless Americans. But so far, no agreement has been reached on another funding proposal, with several negotiations between Congress and President Donald Trump falling apart before Election Day.

President-elect Joe Biden is calling for an emergency aid package to be approved by Congress before he takes office in January, but whether liability protections fit into that are uncertain.

Congressional Democrats have argued that granting such protections would effectively give businesses and employers freedom to endanger workers without fear of repercussion.

Such concerns hover over the latest Florida drive for action.

“From a public policy point of view, if I’m a business now and there’s no immunity from COVID liability, I’m encouraged to do things properly and safely, to keep people from thinking of suing me,” Jess said.

“But if a law passed that gave me total immunity, what is my motivation for protecting the public?” he added. “As a business owner, I’d say. ‘Come on in, we don’t require masks, we don’t have social distancing.  We don’t care. You can’t sue us, we’re got total immunity.’”