Florida’s COVID-19 liability protection law should help businesses avoid baseless coronavirus-related liability claims. After all, COVID-19 taught us that it’s virtually impossible to avoid a highly-contagious virus in the midst of a global pandemic. Virus-free zones are an illusion. The risk of exposure and infection can be reduced with preventative measures, but not eliminated. Nevertheless, a growing number of businesses are being sued by plaintiffs seeking compensation for personal injuries resulting from alleged exposure to COVID-19. In response, the Florida Legislature enacted a law that provides business establishments heightened legal protections against COVID-related liability.
The law seeks to deter unfounded claims against individuals and business while allowing meritorious cases to proceed. It does this by imposing heightened proof and pleading standards on plaintiffs filing COVID-19-related claims. The statute broadly defines a “COVID-19-related claim” to include civil liability claims against a person or business entity for damages, injury or death that arise from or are related to COVID-19, regardless of how the claim is denominated or presented. (A separate statute generally applies to COVID-19 claims against health care providers.)
Under this new law, COVID-19-related claims must be commenced within one year after the cause of action accrues. If the cause of action accrued prior to March 29, 2021, the plaintiff’s deadline to file a complaint is March 29, 2022. The complaint must be pled with particularity. Specific facts and details, as opposed to general statements and conclusory allegations, are required. The plaintiff must also submit a Florida-licensed physician’s affidavit attesting, within 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. If the plaintiff fails to comply with either of these requirements, the case will be dismissed without prejudice, which means they will be given another opportunity to comply.
Once these requirements are satisfied, the court will determine whether the defendant was making a good faith effort to substantially comply with any authoritative or controlling government-issued health standards or guidance at the time of plaintiff’s alleged exposure to COVID-19. This would include guidance issued by the CDC, the Florida Department of Health, counties, cities, etc. If the court finds a good faith effort, the defendant will not be liable for any act or omission associated with the COVID-19-related claim; otherwise, the plaintiff’s case will be allowed to proceed. But to win, the plaintiff must prove by clear and convincing evidence that the defendant’s conduct was grossly negligent, meaning that the likelihood of injury was known by the defendant to be imminent. Otherwise, the plaintiff will lose and the defendant will not be liable.
The broadest protections afforded by this law are reserved for those making a good faith effort to substantially comply with authoritative COVID-19 guidance. This should encourage businesses to implement reasonable and recommended preventative measures to reduce the risk of exposure and infection. Remember, businesses are not immune from COVID-19-related claims. If a plaintiff can satisfy the statute’s heightened pleading requirement (particularity), elevated burden of proof (clear and convincing evidence) and stricter standard or care (gross negligence), your business may be held liable.
Please contact us for more information about risk management measures and insurance to protect your business against COVID-19-related liability claims.