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COVID liability protections for businesses to be debated this session

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Sen. Danny Burgess

Sen. Danny Burgess

The chair of the Select Committee on Pandemic Preparedness and Response says he is determined to enact liability protections for businesses in the 2021 session.

Sen. Danny Burgess, an attorney and a Republican from Zephyrhills, said Florida businesses need protection from “opportunistic” lawsuits if they hope to recover from the pandemic’s harsh economic fallout.

“Businesses have been through hell, employers, employees have been through hell, they have been brought to their knees,” he said. “And as they’re trying to get back on their feet and get their doors back open, they don’t need to be looking over their shoulder.”

Burgess said the legislation would not protect bad actors who are guilty of “egregious” behavior.

“We have to have a balanced approach, certain actors should still be held liable, but those are exceptions,” he said. “We just can’t have a wild west turkey shoot going on, that’s not what we need right now.”

No legislation has been filed, but Burgess said a draft bill promoted by the Florida Justice Reform Institute could serve as a starting point for debate.

The bill would exempt “essential businesses” from all COVID-19 liability. Others would be protected from claims filed by employees if the businesses can show they followed applicable guidelines.

The bill would authorize a limited cause of action for COVID-19 claims, with three key features:

• To establish liability, claimants would have to prove the defendant acted with “gross negligence” or “intentional conduct.”

• The evidentiary standard would increase from a “preponderance of evidence” to “clear and convincing.”

• The bill would set a one-year statute of limitations, instead of the four-year limit that generally applies under existing Florida law.

Paul Jess, executive director of the Florida Justice Association, which represents trial lawyers, sees no need for the legislation.

“This is really a solution in search of a problem,” he said. “We’ve been in this pandemic for months and months now, we don’t see an avalanche of lawsuits, and we don’t expect one.”

The COVID-19 Complaint Tracker, a national database maintained by Hunton Andrews Kurth, identified 483 lawsuits in Florida.

The bulk of the suits has yet to be heard and could be dismissed, Jess said.

“Almost a third of them are claims by businesses against their insurance companies for business interruption coverage that the insurance companies are pretty much universally denying, and that’s going to be the hottest area of litigation,” Jess said. “That will work itself out.”

COVID-related claims haven’t exploded because they are too difficult to prove, Jess said.

“The burden is always on the plaintiff to prove there was causation involved, and where on earth are you going to be able to prove where you got it,” he said.

And that’s only the first major hurdle a plaintiff already faces, Jess said.

“Even if you can prove that you got it on the premises, you have to be able to prove that the owner of the premises was somehow negligent, and you’re never going to be able to prove that because for the first six months at least, the guidance was all over the map.”

Now is not the time to remove a major incentive for businesses owners to maintain a safe environment, Jess said.

“As a matter of public policy, it’s just a terrible idea,” he said.

William Large, president of the Florida Justice Reform Institute, says the 482 suits demonstrate that the pandemic is already “a fertile ground for lawsuits.”

Businesses are demanding action, Large said.

“We’re offering suggestions based on the broad, considerable input of Florida’s business community, with the goal of getting our economy back on its feet.”

This summer, the institute formed the Restore Economic Strength through Employment and Tourism, or “RESET” task force.

Co-chaired by Large and Marc Salm, Publix Super Markets vice president of risk management, the task force included a handful of insurance companies, business groups such as Associated Industries of Florida, the Florida Retail Federation, and the Florida Restaurant & Lodging Association, and large employers, including Walgreens, Universal Studios, and Mosaic Company, the phosphate mining concern.

“The goal of the RESET task force is to prevent a crisis resulting from an onslaught of litigation tied to novel claims that a business exposed them to COVID-19, or failed to take adequate action to guard against the risk of exposure,” Large said.

The task force surveyed business owners and produced a white paper.

“While many of the businesses surveyed had not faced a lawsuit related to their operations during the pandemic, many reported they had been notified of potential claims,” the paper states.

Businesses face a litany of liability concerns related to the pandemic, the paper found.

“Of particular concern to businesses is the patchwork of sometimes inconsistent or vague regulations, ordinances and guidance documents regarding what they must do to prevent the spread of COVID-19 — guidance issued by different counties and municipalities, the state and its agencies, OSHA, and CDC, among others.”

Enforcing health guidelines is a major challenge, the paper found.

“As one business reported, ‘anything that requires the retail store or its employees to police or enforce local ordinances regarding the conduct of customers has prove[n] unworkable.”

Burgess is sympathetic to the business owner’s plight.

When the pandemic struck earlier this year, he was serving as executive director of the Florida Department of Veterans’ Affairs, where he was in charge of seven nursing homes.

“We were one of the first in the nation to shut down access to visitors, contractors, vendors, to have unbelievably advanced PPE standards, testing early and often, all of the above, and we still couldn’t keep the virus from getting into our facilities,” he said. “That’s not a negligent nursing home, that’s just the reality that we’re dealing with.”

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