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Florida has joined a growing wave of states offering individuals, businesses and other organizations significant protections against Covid-19-related legal claims. But how does Florida’s new law — “Civil Liability for Damages Relating to Covid-19” (codified at section 768.38, Florida Statutes) — work? And what do businesses need to know — and do — now? 

The law’s practical effect

Begin with the law’s practical effect. The law creates a series of staged legal protections for businesses facing “Covid-19-related claims,” broadly defined to include any “civil liability claim” related to Covid-19. To take an example, allegations that an individual contracted Covid-19 because of a restaurant’s, supermarket’s or movie theater’s negligence fall squarely under the law.

At the pleading (i.e., complaint) stage, any Covid-19 claims must be pled “with particularity,” a heightened standard usually applicable to fraud claims. Complaints alleging a Covid-19 claim must also include a physician’s affidavit attesting that “within a reasonable degree of medical certainty,” the claimed Covid-19-related damages or injuries are attributable to the defendant. This latter requirement echoes pre-suit requirements for Florida medical malpractice plaintiffs. The rub: If a plaintiff fails on either score, a Covid-19 claim is susceptible to early dismissal.

The law contains two additional early-stage protections: The Covid-19 plaintiff must prove that the defendant did not make a “good faith effort” to “substantially comply with authoritative or controlling” health standards or guidance. This burden lies on the plaintiff; if they fail, the defendant has a complete defense. Covid-19 claims are also subject to a shortened, one-year statute of limitations. So, if a plaintiff waits too long to sue, his or her claim is barred.

If a Covid-19 plaintiff makes these preliminary proofs, his or her action can proceed. But to establish any liability, the plaintiff must prove “at least gross negligence” by “clear and convincing evidence.” Here, too, the Legislature upped the plaintiff’s ante. Both gross negligence and clear and convincing evidence offer additional protections to Covid-19 defendants because plaintiffs must generally prove more (since ordinary negligence is unavailable) and to a more demanding standard (since the default “greater weight of the evidence” standard is inapplicable).

In sum, the new law gives businesses and individuals defending Covid-19 claims a formidable litigation toolbox. Resourceful litigators can challenge Covid-19 claims early and often.

What to do now and what to look for

So, what, if anything, should businesses do now? There are four practical, immediate steps businesses should consider:

1. Businesses should ensure they are “substantially complying with authoritative or controlling government-issued health standards or guidance” and meticulously document their efforts to do so. Because doing so offers a complete defense to Covid-19 claims, this effort, and the ability to prove it, is essential. Of course, that invites the question: What counts as “authoritative or controlling government-issued health standards or guidance?” The Legislature offered some clues in the companion health care law, which defines a similar phrase as “instructions or recommendations from a federal, state, or local governmental entity.” That means Centers for Disease Control and Prevention guidance, state executive orders and local mask mandates, social distancing and capacity rules are all in play.
2. Keep in mind which entities qualify for the law’s protections. Almost all “business entities” do, as do charities, nonprofits, educational, and governmental institutions. Health care providers, however, should look to the companion law.
3. Ask your in-house (or outside) counsel to monitor the law and early cases interpreting it. There at least two themes to track: whether an ambitious plaintiff challenges the law’s constitutionality and, more practically, how courts apply the “good faith effort” standard. On this latter point, look for which “health standards or guidance” are most persuasive to courts and, by extension, what constitutes a judicially acceptable “good faith effort” to follow those standards.
4. If you end up facing a Covid-19 claim, encourage your counsel to think creatively and strategically about your defenses. Crafty plaintiffs might try to plead around the law, hiding their Covid-19 claims until later in the litigation. Alternatively, they might simply spring Covid-19 allegations (but keep the “claims” as is) on unwary defendants during discovery. Stay vigilant. Also, consider what counts as a “Covid-19” claim. While negligence claims are classic candidates, the law likely reaches further. If Covid-19 plays into the litigation at all, the law — and its protections — might apply.
   
   

Republished with permission. This article, "Guest Column: Florida’s Covid-19 Business Liability Law — What Businesses Need to Know (and do) Now," was published in the Tampa Bay Business Journal on May 21, 2021. (login required)