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COVID-19 liability shield for businesses heads to the House floor

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Rep. Lawrence McClure

Rep. Lawrence McClure

A measure that would create a COVID-19 liability shield for businesses, schools, and religious institutions has cleared its final committee stop and is headed to the House floor.

The House Judiciary Committee voted 14-7 on February 16 to approve HB 7 by Rep. Lawrence McClure, R-Plant City.

McClure said that even though a flood of COVID litigation has failed to materialize, the bill is necessary to reassure businesses that it won’t.

“I’m not here to solve the courts being overwhelmed,” he said. “This bill is intended to give clarity to Florida businesses.”

McClure repeated a promise that he has made in two previous committee stops to continue working with critics.

“We’re not at the finish line, this isn’t a floor vote,” he said. “My door is open, and I hope that we can continue to work together.”

A companion, SB 72, by Senate Judiciary Chair Jeff Brandes, R-St. Petersburg, faces votes in two more committees, Commerce & Tourism and Rules, before reaching the Senate floor.

Both measures are considered a priority by the House speaker and Senate president in the 60-day session that convenes March 2.

Supporters, including Florida Chief Financial Officer Jimmy Patronis, the Florida Chamber of Commerce, the National Federation of Independent Business Florida, and the Florida Restaurant and Lodging Association, say the legislation is needed to help businesses recover from the economic fallout of the global health crisis.

Florida TaxWatch, the business-backed government watchdog, conducted a study that claims Florida’s economic recovery could be stalled by the threat of “frivolous lawsuits.”

“In short, if employers’ confidence in the economy is shaken due to the absence of a liability shield, [it could] reduce the Florida economy by as much as $27.6 billion and more than 356,000 jobs annually,” TaxWatch CEO Dominic Calabro said in a statement.

Critics, including the Florida Justice Association, which represents trial lawyers, Democrats, consumer advocates and labor unions, say the measures would make it nearly impossible for injured parties to pursue legitimate COVID-19 claims.

In the House Judiciary Committee, Republicans used a procedural maneuver to block a series of late-filed Democratic amendments.

Democrats said their amendments were late because they were drawn to proposed changes that the sponsor filed moments before a 6 p.m. deadline.

“How is [a] committee member supposed to do that prior to the main amendment having been filed?” said Rep. Ben Diamond, D-St. Petersburg and an attorney.

The bill originally granted immunity to businesses that “substantially comply” with health standards or guidelines.

But McClure added an amendment that says “that if more than one source or set of standards or guidance was authoritative or controlling…the defendant’s good faith effort to substantially comply with any one of those sources or sets of standards or guidance” confers immunity.

“So, if I complied with the city, but then I failed to comply with the county, then I’m immune?” asked Rep. Fentrice Driskell, D-Tampa and an attorney.

“Yes,” McClure said. “I want to avoid the gotcha.”

Curry Pajcic, treasurer of the Florida Justice Association, said a defendant could cite a local government that declined to impose any health guidelines.

“There are towns that believed that COVID was a hoax, so there are no guidelines,” he said. “This amendment allows a business owner to choose the lowest and the least.”

Critics also argued that other provisions of the bill would make it nearly impossible for an injured plaintiff to pursue a legitimate claim.

The measure requires a plaintiff to pre-file an affidavit from a physician attesting that “to a reasonable degree of medical certainty” the defendant caused the COVID-19 related injuries.

The measure would also require plaintiffs to adhere to an elevated “clear and convincing” evidence standard. To prevail, plaintiffs would have to prove that the defendant’s actions constituted “gross negligence.”

Allowing a judge to dismiss claims before the discovery process would violate the plaintiff’s Seventh Amendment right to a civil jury trial, Pajcic claimed.

Testifying against the bill, he held up the back of a $2 bill, and pointed to its depiction of the signing of the Declaration of Independence.

“One of the reasons we revolted from England is because the King of England took away the right to a jury trial,” he said. “These men, the founding fathers, put their lives on the line for that right…This bill is obnoxious to our constitutional rights.”

But Samantha Padgett, general counsel for the Florida Restaurant and Lodging Association, told the committee she disagreed.

“[Businesses] aren’t just concerned about their bottom lines, they’re concerned about keeping their doors open,” she said. “I believe that if you do nothing, then you are grossly negligent.”

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