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Patronis supports pandemic liability protection efforts

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Jimmy Patronis

Jimmy Patronis

Florida Chief Financial Officer Jimmy Patronis is joining business groups in a call for COVID-19 liability protections.

“Doing nothing is not an option,” Patronis said in a January 11 press conference conducted via Zoom. “This is the time for our Legislature to act.”

Patronis was flanked by Florida TaxWatch chair George LeMieux, a former U.S. senator.

“Now is the time to help our struggling businesses, not subject them to unwarranted legal attacks,” LeMieux said.

Tallahassee-based TaxWatch is a not-for-profit economic think tank that styles itself a government watchdog.

Organizers used the event to tout the latest TaxWatch study that predicts 208,000 jobs and $1.5 billion in state and local tax revenue would be at risk without liability protections.

Bill Herrle, executive director of the National Federation of Independent Business (NFIB Florida), echoed their calls.

“Small business owners need to know that the state has their back,” Herrle said.

Earlier this month, Senate Judiciary Chair Jeff Brandes, R-St. Petersburg, and Rep. Lawrence McClure, R-Plant City, filed SB 72 and HB 7, respectively. The identical bills would grant businesses, churches, and schools immunity from COVID-19-related liability if they can prove they “substantially” complied with government health standards or guidelines.

The House Civil Justice and Property Rights Subcommittee is scheduled to hear HB 7 on January 13.

Florida trial lawyers see no need for liability protections, calling them a “solution in search of a problem.”

A liability shield would eliminate an important incentive for business owners to protect their customers and employees at a time when the COVID-19 pandemic is surging, Paul Jess, executive director of the Florida Justice Association, told the News earlier this month.

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

Plaintiffs would already face the difficulty of proving where they contracted COVID-19, or that a business owner was to blame, 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,” he said.

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

The bulk of them could still face dismissal, Jess said. About a third are business owners suing their insurance company for failure to honor a business interruption claim, he said.

“That will take care of itself,” he said.

Sen. Danny Burgess, R-Zephyrhills and an attorney, said lawmakers don’t intend to protect “bad actors” who are guilty of the most “egregious” behavior.

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

SB 72 has yet to be referred, but Burgess expects it to be heard by the Select Committee on Pandemic Preparedness and Response, which he chairs.

The bills would establish a bifurcated procedure that requires the defendant to first appear before a judge with an affidavit from a Florida-licensed physician. The physician would have to attest that “within a reasonable degree of medical certainty” the defendant was responsible for the damages.

The bills would require the plaintiff to prove that the defendant did not make a good-faith effort to follow the government-issued health standards or guidance that was available at the time the cause of action accrued.

Under the bills, plaintiffs would have to prove that the defendant was “grossly” negligent. The standard of proof would increase from “preponderance of evidence” to the more rigorous “clear and convincing.”

The bills would set a one-year statute of limitation from the time the cause of action accrued, for claims filed after the bills’ effective date. Plaintiffs would have a year after the bills’ effective date to file a claim if their cause of action accrued before the bill’s effective date.

The bills would become effective when the governor signs them into law — or allows them to become effective without a signature.

The House speaker and Senate president have called the legislation a priority for the upcoming session that convenes March 2.

Herrle, the NFIB executive director, called the nearly 500 COVID-19-related lawsuits filed so far in Florida “just the tip of the iceberg.”

“We are counting on our legislative leaders to get this job done as quickly as possible,” he said.

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