On March 29, Florida Governor Ron DeSantis signed into law one of the nation’s most aggressive laws intended to protect defendants from COVID-19-related lawsuits. Senate Bill 72 — which enacted Florida Statute Section 768.38 — provides civil tort immunity to any person, business, school, governmental entity or church from a COVID-19 related claim. As discussed below, the statute includes several layers of protection for defendants, ranging from a heightened legal standard, to pre-suit corroboration by a physician, to a compressed statute of limitations — all of which provide substantial hurdles for a plaintiff to overcome. The law retroactively applies to causes of action that accrued before the effective date of the statute; however, the law does not apply to lawsuits filed before March 29.
The breadth of the statute means it should have widespread applicability in Florida for claims related to the COVID-19 pandemic. The statute broadly defines a “COVID-19-related claim” as any claim for damages, injury, or death filed against a person, business, school, governmental entity, or religious organization that “arises from or is related to COVID-19.”
The statute sets heightened legal standards at various stages of the lawsuit. At the pleadings stage, for example, the law requires a plaintiff to plead her claims with particularity, similar to a claim for fraud.
Interestingly, the law requires a plaintiff to engage in a pre-suit investigation by conferring with a physician actively licensed in Florida. At the time of filing the complaint, the plaintiff must submit an affidavit signed by the physician who attests that, within a reasonable degree of medical certainty, the plaintiff’s COVID-19-related injury occurred as a result of the defendant’s conduct. If the complaint is not pled with particularity, or if the plaintiff fails to meet the requirements of the physician attestation, then the court must dismiss the action without prejudice.
In order to get the case in front of a jury, the plaintiff must first prove through an evidentiary hearing with the judge that the defendant did not make a good-faith effort to substantially comply with public health standards. At this hearing, the judge is limited to weighing evidence on the sole issue of whether the defendant made the requisite good-faith effort. If, after weighing the evidence, the court finds that the defendant made a good-faith effort to comply with the relevant COVID-19 standards, then the defendant is immune from civil liability. Although the statute does not make clear at which stage in the proceeding a judge makes this determination, a defendant should prepare for this evidentiary hearing to take place after fact discovery, similar to a motion for summary judgment or a motion for leave to amend to add punitive damages.
If a plaintiff meets her burden of establishing that a defendant did not make a good-faith effort, the case may then proceed to a trial. However, the statute imposes yet another hurdle for plaintiffs: a heightened burden of proof at trial. A plaintiff must prove by clear and convincing evidence that the defendant was grossly negligent in its conduct. Notably, this is the same standard required for a plaintiff to be entitled to punitive damages under Florida law. Therefore, if a plaintiff establishes liability against a defendant for a COVID-19-related claim, the plaintiff would also be entitled to punitive damages.
Finally, the statute substantially shortens the tort statute of limitations from four years to one year after the cause of action accrues, or within one year from the effective date of the statute if the cause of action accrued before the statute was enacted.
Although not addressed in detail here, the new law also provides similar protections to health care providers in Florida.
In all, Florida’s newest statute provides sweeping protections for businesses that made a good-faith effort to comply with pandemic-related guidelines. The requirements put in place will undoubtedly prevent some baseless lawsuits from being filed and will provide a mechanism for the early resolution of lawsuits, protecting a business owner who acted in good faith from incurring substantial fees and costs in defending these suits. Additionally, the law may prevent a slew of new filings from contributing to courts’ already backlogged dockets.
Critics of the new statute worry it will make it impossible for injured plaintiffs to proceed with COVID-19-related claims and will give blanket immunity to businesses who negligently put the public and their employees at increased risk during the pandemic. Given the difficulty in tracking transmission of COVID-19 because of its long incubation period and method of airborne transmission, the heightened burden of proof in the statute may make it difficult for plaintiffs with legitimate claims to prevail.
The Florida House passed S.B. 72 in an 83–31 vote, while the Senate passed the bill in a 24–15 vote. The new law reflects a strong desire by the Florida legislature and governor to reign in COVID-19-related litigation and protect businesses and health care providers from its effects.