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COVID-19 GENERAL LIABILITY BILL UPDATE

Saible Law Group, P.A. March 5, 2021

This week, Florida House Bill 7 (HB-7) and Senate Bill 72 (SB-72) – which collectively comprise the “COVID-19 General Liability Bill” (hereinafter referred to as “the proposed statute”) – moved one step closer to being passed into law.  To date, HB-7 has been read on the House floor and SB-72 has one more hearing before advancing to the Senate floor. At this time, it is strongly anticipated that HB-7/SB-72 will be one of the first bills passed this year.

In summary, the proposed statute applies to “Business Entities” as such term is defined in Section § 606.03, which includes “any form of corporation, partnership, association, cooperative, joint venture, business trust, or sole proprietorship that conducts business in [Florida].”[i] While the proposed statute expressly excludes “healthcare providers” (which is addressed in separate bills and has different proposed limitations[ii]), it pretty much applies to all other entities, including schools, governments, and non-profit organizations.

And while the proposed statute is not a complete exemption of liability, it clearly aims to protect businesses from lawsuits related to one's contraction of the COVID-19 virus. Notably, in comparison to traditional personal injury claims, the proposed statute imposes (1) additional pleading requirements on behalf of the Plaintiff; (2) a mandatory evidentiary hearing providing broad power to the trial court to grant summary judgment; (3) a substantially higher standard to prove a defendant's liability; and (4) a shortened Statute of Limitations.

Additional Pleading Requirements

The proposed statute requires that a Complaint “must be pled with particularity.” More notably, it requires the plaintiff to “submit an affidavit signed by a physician actively licensed in the state which attests to the physician's belief, with a reasonable degree of medical certainty, that the plaintiff's COVID-19-related damages, injury or death occurred as a result of the defendant's acts or omissions.” It should be noted that the proposed statute clearly distinguishes the particularity requirement as separate and distinct from the requirement to include a physician's affidavit. And while the proposed statute does not expressly define the term “particularity”, it is likely similar to that required in fraud claims[iii], the purpose of which “is to enable the court to determine whether a prima facie showing has been made.”[iv]

Mandatory Evidentiary Hearing Providing Broad Powers to the Trial Court to Grant Summary Judgement if Defendant Acted in Good Faith  

Section 3(c)(2) of the proposed statute requires the trial court to take additional steps to determine whether the lawsuit should be disposed of prior to trial. While the language in the proposed statute does not expressly refer to an “evidentiary hearing” or “summary judgment,” this is essentially what is required under this section. Specifically, this section states that “the court must determine, as a matter of law, whether…the defendant made a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance at the time the cause of action accrued.” It further provides that “during this stage of the proceeding, evidence is limited to evidence tending to demonstrate whether the defendant made such a good faith effort,” and “[i]f the court determines that the defendant made such a good faith effort, the defendant is immune from civil liability.” The proposed statute also expressly provides that it is the plaintiff's burden of proof to show that the defendant did not make a good faith effort as set forth under section 3(c)(2); something which obviously differs from Florida's summary judgment standard.

Notably, when applying the rules of statutory construction, the language in the statute – specifically the repeated use of the word “or” – clearly suggests that a defendant's attempted compliance with any “authoritative” standards or guidelines would be sufficient to establish its immunity from liability.[v] While the statute is silent as to what “standards or guidance” may be considered authoritative, such list would likely include city/county ordinances, the Agency for Health Care Administration, the United States Centers for Disease Control and Prevention, the National Institutes of Health, the United States Food and Drug Administration, and/or the Centers for Medicare and Medicaid Services

It should be noted, however, that the proposed statute is silent as to what standard the trial court must apply when determining whether the defendant acted in good faith. Additionally, while it is tempting to interpret section 3(c)(2) to require the evidentiary hearing to occur at the onset of the case, the proposed statute is silent as to when this must occur, suggesting that it may take place at any point prior to trial. Conversely (and unlike the new summary judgment standard), nothing appears to suggest that the evidentiary hearing should (or can) be postponed until after “sufficient discovery” has taken place.

Higher Standard to Prove Liability

Even if the plaintiff is able to overcome his or her burden at the mandatory good-faith evidentiary hearing, then in order to recover damages, he/she must still prove at trial by "clear and convincing evidence" that the defendant was “grossly negligent." Notably, the Florida Standard Jury Instruction states:

“Clear and convincing evidence” differs from the “greater weight of the evidence” in that it is more compelling and persuasive. “Clear and convincing evidence” is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation, about the matter in issue.[vi]

“Gross negligence” means that the defendant's conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.[vii]

Needless to say, this imposes a substantially higher burden and standard on plaintiffs than would be used in a traditional personal injury negligence case.

Statute of Limitations

The proposed statute sets forth a one (1) year statute of limitations from the date that the cause of action accrues, or alternatively, within one (1) year of the date that the proposed statute goes into effect. Most personal injury claims have a four (4) year statute of limitations, with medical malpractice and wrongful death claims having a two (2) year statute of limitations.

Here, the proposed statute does not define or otherwise explain when the cause of action for a COVID-19 related claim “accrues.” Generally, the accrual date for a personal injury claim is the date of the incident giving rise to the action. Usually, this date is not in dispute because it is the date of the accident which caused the injury (e.g., motor vehicle collision, slip and fall, etc.). However, because COVID-19 is a respiratory disease that primarily spreads through close contact with other people[viii], it may be difficult to pinpoint the exact date of accrual. Nonetheless, because it is generally accepted that COVID-19's time from exposure to symptom onset (known as the incubation period) is two to 14 days[ix], logic dictates that the accrual date would have to be within at least two (2) weeks of the plaintiff's first alleged symptoms.

It should be noted, however, that the proposed statute does not indicate it is exempt from § 95.051(i) Fla. Stat.[x], which tolls the statute of limitations for minors for up to seven (7) years.

Ultimately, while the proposed statute should substantially limit both the amount and exposure of COVID-19-related lawsuits, there are still many questions that will need to be answered. Some areas that the legislature hopefully considers before finalizing the bill are:

  • A more complete scope of what may be considered a “COVID-19-related claim”;

  • The degree of particularity that is required in both the Complaint and the physician's affidavit;

  • Whether the physician executing the required affidavit must be the physician who diagnosed the plaintiff with the virus, and if not, if such physician would be required to have specialized training and/or experience with infectious diseases;

  • Whether a retroactive diagnosis may be used by the plaintiff, or can otherwise be accepted by the court;

  • The standards the court must use to determine whether the plaintiff has met his or her burden at the good-faith evidentiary hearing;

  • A procedural time frame as to when the good-faith evidentiary hearing must or may take place.

Regardless, it goes without saying that the proposed statute is a great step in the right direction to protecting the businesses, entities, and institutions which are essential to Florida's continuing success and well-being!

[i] § 606.03, Fla. Stat.

[ii] See SB-74 and HB-2021

[iii] Fla. R. Civ. P. 1.120(b)

[iv] Gordon v. Etue, Wardlaw & Co., 511 So.2d 384 (Fla. 1st DCA 1987).  

[v] See Daniels v. Fla. Dept. of Health, 898 So.2d 61, 64 (Fla. 2005) (“In Florida, statutory interpretation is a question of law for the court to decide.”)(“When statutory language is clear and unambiguous, the statute must be given its plain and obvious meaning"); Metro. Cas. Ins. Co. v. Tepper, 2 So.3d 209, 213 (Fla. 2009)([T]he central purpose of statutory interpretation is deciphering and giving effect to legislative intent."); West Florida Reg'l Med. Ctr., Inc. v. See, 79 So.3d 1, 9 (Fla.2012) (“To discern legislative intent, courts must first look to the plain and obvious meaning of a statute's text, which may be discerned from a dictionary.”); Hayes v. State, 750 So.2d 1, 4 (Fla.1999)(“[Courts] are not at liberty to add words to statutes that were not placed there by the Legislature.”

[vi]  Fla. Std. Jury Instr. (Civ.) 404.13; 405.4; and 411.3

[vii] Fla. Std. Jury Instr. (Civ.) 503.1(b)(1); 503.2(b)(1)

[viii] Center for Disease Control and Prevention (2021), COVID-19 Frequently Asked Questions. U.S. Department of Health and Human Services. https://www.cdc.gov/coronavirus/2019-ncov/faq.html

[ix] Harvard Health Publishing (2021), If you've been exposed to the coronavirus, Harvard Medical School. https://www.health.harvard.edu/diseases-and-conditions/if-youve-been-exposed-to-the-coronavirus#:~:text=The%20time%20from%20exposure%20to,starting%20to%20experience%20symptoms

[x] § 95.051(i) Fla. Stat.