New Florida Law Limits Liability for Defendants Facing COVID-19 Lawsuits

Jones Day

A new Florida law provides civil immunity from COVID-related lawsuits to defendants that complied in good faith with government health standards, and it imposes heightened pleading and proof requirements on plaintiffs.

On March 29, 2021, Florida enacted new legislation (codified at Florida Statutes § 768.38) adopting heightened legal protections for defendants facing COVID-related lawsuits. Most significantly, the law provides civil immunity to all persons, businesses, educational institutions, governmental entities, and religious institutions that made a "good faith effort to substantially comply" with government-issued health standards or guidance. A separate section of the legislation (codified at Florida Statutes § 768.381) also provides protections for health care providers facing COVID-related claims, though to a lesser degree. The law went into effect immediately.

The law, which broadly applies to any civil claim for damages, injury, or death that "arises from or is related to COVID-19," imposes heightened pleading and proof requirements on plaintiffs. Namely, courts must dismiss lawsuits where a plaintiff: (i) does not plead a complaint with particularity; or (ii) fails to submit a physician affidavit attesting, within a reasonable degree of medical certainty, that the plaintiff's injury was caused by the defendant's conduct. If a plaintiff clears these initial hurdles, the court then determines whether the defendant is entitled to immunity, placing the burden on the plaintiff to prove the absence of good-faith compliance with applicable health standards. In addition, the law allows recovery only upon proof of gross (not ordinary) negligence, under a heightened "clear and convincing evidence" standard.

These protections differ in lawsuits filed against health care providers. Plaintiffs still must prove gross negligence or intentional misconduct, but they need only meet the traditional "greater weight of the evidence" standard of proof. Moreover, the law places the burden on the defendant to prove "substantial compliance" with government-issued standards, treats this compliance as an affirmative defense (rather than an immunity), and applies to more narrowly defined categories of claims.

Among the law's stated purposes is to eliminate the "threat of unknown and potentially unbounded liability" for businesses and institutions already left financially vulnerable by the pandemic. Senate committee analysis estimated that nearly 600 lawsuits relating to COVID-19 have been filed in Florida courts. While the law's protections do not apply to existing lawsuits filed before the effective date, future plaintiffs must bring their claims within one year after a cause of action accrues.

According to the committee analysis, Florida joins at least 17 other states that have enacted legislation providing some form of civil liability immunity against COVID-19 claims.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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