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Fla. COVID-19 Biz Liability Shield Bill Sent To Gov.'s Desk

By Y. Peter Kang · 2021-03-26 21:55:33 -0400

The Florida House of Representatives voted Friday to approve a controversial bill giving businesses and health care providers a legal safe harbor from COVID-19 injury and death suits, sending the measure to Gov. Ron DeSantis who is widely expected to sign it into law.

The Republican-controlled House passed S.B. 72 in an 83-31 vote largely split along party lines. If signed, the measure would give 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 bill, which was met with fierce opposition from the plaintiffs bar, erects significant legal hurdles for individuals who wish 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 proposed law would become effective immediately upon the governor's signature and would apply retroactively and create a one-year statute of limitations for claims.

Florida's lower legislative 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 House on March 5 had approved its own version for businesses in a similar 83-31 vote.

If DeSantis, a Republican, signs the bill, Florida would become the most populous state to enact such legislation to date, with similar measures already on the books in Ohio and Georgia. Although health care providers in Illinois enjoy some liability protections due to an executive order, a bill that would shield businesses is still pending in the Illinois General Assembly, according to legislative records.

While proponents of Florida's bill said it will help protect struggling businesses from frivolous lawsuits, state lawmakers critical of the measure said Friday that it goes too far in shielding businesses for bad behavior and effectively deprives individuals of their constitutional right to a jury trial.

Rep. Geraldine Thompson, a Democrat, said the bar is set too low for businesses to assert that they made a good-faith effort to follow health guidelines.

"It's scout's honor. It's pinky swear," she said during floor debate Friday. "And a judge is supposed to decide that the business has made a good faith effort. And it's a judge who makes the decision, rather than a jury, while we have a constitutional right to trial by jury. So this bill is very dangerous with regard to blocking access to the courts."

Democratic Rep. Joseph Geller, a partner with Greenspoon Marder LLP who focuses on complex civil litigation, told his fellow lawmakers that the gross negligence standard is too high a bar for plaintiffs to overcome, saying it was akin to the criminal standard for manslaughter cases.

"Gross negligence doesn't just mean you did something wrong. Gross negligence is something that rises to the level of willful or reckless conduct or indifference," he said. "It's not enough that you did the wrong thing, you have to do it so egregiously and shockingly that it's a standard that supports a finding of punitive damages, which is extraordinary under our system."

House Speaker Chris Sprowls, a Republican, said in a statement Friday that state lawmakers kept their promise to businesses and health care providers to pass a liability shield bill.

"We want to ensure that Floridians who do the right thing don't get blindsided by a frivolous COVID-19 lawsuit," he said.

The Florida Chamber of Commerce said in a statement Friday that the bill had been a top priority for the state's business community amid the pandemic.

"S.B. 72 will go a long way toward ensuring that businesses and health care providers will not fall prey to frivolous litigation for opening their doors while trying to keep everyone safe," the business group said via Twitter.

--Editing by Jill Coffey.

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