If enacted, the legislation would impose a one-year statute of limitations, meaning that any action for a COVID-19-related claim must be brought within year after the cause of action accrues.
On January 6, 2021, Florida legislators introduced a pair of bills—H.B. 7 in the Florida House and S.B. 72 in the Florida Senate—intended to address civil liability for damages for personal injuries relating to COVID-19. (In a previous Alert, we discussed the Associated Industries of Florida’s recommendation for the state to address legal liability.) As described below, the bills would impose strict pleading, filing and proof requirements on plaintiffs pursuing COVID-19-related actions; shield from liability defendants who attempted to comply with applicable health standards and guidelines; and establish a framework for courts to quickly dispose of spurious claims.
If passed, the legislation would create a new section of the Florida Statutes imposing a number of specific requirements on plaintiffs bringing a “COVID-19-related claim,” meaning a claim “which arises from or is related to COVID-19, also known as the novel coronavirus.” The term includes claims for damages, injury or death, but it does not include claims against a healthcare provider; such claims are expected to be addressed in separate legislation.
Pleading and Filing Requirements
In a civil case based on a COVID-19-related claim, the complaint would be required to be pled with “particularity,” meaning that plaintiffs subject to the law must allege specific facts concerning the who, what, where, when and how of the circumstances leading to their damages. Moreover, the complaint would need to be accompanied by an affidavit signed by an active physician, attesting that, “within a reasonable degree of medical certainty [the alleged injuries or damages were the] result of the defendant’s acts or omissions.” The purpose of this prerequisite is to weed out frivolous claims by imposing a high burden on the plaintiff, who would need to demonstrate evidence of the defendant’s culpability at the pleading stage. This is not required as a condition to file other lawsuits.
The statute would require courts to dismiss complaints based on COVID-19-related claims where the plaintiff fails to plead with particularity or fails to attach the required physician’s affidavit. The dismissals would be without prejudice, however, meaning that plaintiffs would have another chance to file a claim.
Immunity and Standard for Liability
At the pleading stage, in addition to determining whether the plaintiff pled its claim with particularity and submitted the required affidavit, the court would be required to determine 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.” Under the proposed statute, it would be the plaintiff’s burden to show that no good faith effort was made.
If the court determines that the defendant did make such a good faith effort, the defendant is immune from civil liability as a matter of law.
Even if the court finds that the defendant did not make a good faith effort to comply, the defendant can only be liable for an act or omission leading to a COVID-19-related claim if the plaintiff proves by clear and convincing evidence that the defendant acted with gross negligence. (By way of comparison, in a typical personal injury case, the plaintiff would only need to prove by a preponderance of the evidence that the defendant acted negligently.)
Time Bar for Filing Claims; Retroactive Application
If enacted, the legislation would impose a one-year statute of limitations, meaning that any action for a COVID-19-related claim must be brought within a year after the cause of action accrues. (Under Florida law, the statute of limitations applicable to most negligence claims is typically four years and, for wrongful death claims, two years.) A plaintiff whose cause of action accrued prior to the effective date of the proposed legislation would have one year to initiate the lawsuit. The statute would apply retroactively, but it would not apply to a plaintiff who had initiated a lawsuit and named particular defendant(s) before the bills become law.
While the fate of the legislation is unknown, Governor Ron DeSantis has commented that the threat of liability arising from COVID-19 injuries is holding back Florida’s economy, a sign that the governor is receptive to the legislation.
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Duane Morris has created a COVID-19 Strategy Team to help organizations plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.
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If you have any questions about this Alert, please contact Harvey W. Gurland, Jr., Justin M. L. Stern, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.
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