Just a few days ago Governor DeSantis signed Senate Bill 72 into law and, in doing so, created a robust shield against the anticipated onslaught of COVID-19 lawsuits within the State of Florida. Generally, the provisions of the law are assured to deflect all but the most egregious of cases under the theory the State of Florida as a whole will ultimately benefit from moving past the pandemic. The law itself is broken into two sections: (1) Fla. Stat. 768.38 of which covers claims against ‘certain business entities, educational institutions, governmental entities, and religious intuitions…’ and (2) 768.381 which deliberately carves out a slightly different set of rules for claims against health care providers. The obvious goal of both provisions is simple: to prevent our court system from being clogged from the potential 2+ million causes of action across the Sunshine State.
Interestingly, the law appears to place significant consideration of a defendant’s safety procedures at the time of the alleged infection of the plaintiff. Reading between the lines, this will likely prevent claims for infections arising in the March to June 2020 window at which time there was little known about the specifics of transmission vectors for the virus. Of course, there has been a significant shift from the initial months of the pandemic when we spent most our time vacillating between absorbing the progressive insanity that was Tiger King and obsessively washing our hands/sterilizing surfaces.
The shield referenced above places a “pre-hearing” before a lawsuit is permitted to even commence in which the defendant is able to provide essentially any evidence of a good faith effort to comply with local/state/federal government guidelines (really any of these from the way the law reads). Even if the suit is permitted, the burden of proof upon the plaintiff is VERY high and requires a demonstration of ‘at least gross negligence proven by clear and convincing evidence.’ While the specific requirements for the health care provider of the new law are slightly different, in essence the shield is still very much in place for these businesses as well. For both however, the Statute of Limitations is cut from four years down to just one.
The health care provider section of the new law specifically indicates it does not apply to workers’ compensation claims, while the first section is silent on this issue (but implicitly 440 is similarly unaffected). No doubt, the legislature is aware of the already-existing clear & convincing evidentiary standard for an exposure claims in Florida’s workers’ compensation chapter. Despite the significant barriers to entry there is no doubt this law will be tested in the immediate future and it remains to be seen what if any claims will make it to the finish line.