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Senate Judiciary moves COVID shield measure

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Sen. Jeff Brandes

Sen. Jeff Brandes

A COVID-19 liability shield for businesses, schools, and religious institutions is now advancing in the Florida Senate, over the objection of trial attorneys and consumer advocates who warn that it goes too far.

The Senate Judiciary Committee voted 7-4 on January 25 to approve SB 72 by committee chair Jeff Brandes, R-St. Petersburg.

“If there’s one thing this bill does, it seeks to provide clarity, it seeks to provide a safe harbor,” Brandes said.

The bill would grant civil liability immunity to businesses that “substantially comply” with health guidelines.

In a bifurcated procedure modeled after the pre-suit process in medical malpractice claims, the bill would require plaintiffs to first submit to the court a claim with “particularity” and a doctor’s affidavit attesting, “with a reasonable degree of medical certainty,” that the defendant’s acts or omissions were responsible for the COVID-19 illness, injury, or death.

If the plaintiff fails to meet the burden, the judge could dismiss the claim. Plaintiffs, however, would have an opportunity to correct deficiencies and refile.

If the suit proceeds, plaintiffs would have to prove that the defendant committed “gross negligence” and adhere to a “clear and convincing” evidence standard that far exceeds the “preponderance of evidence” standard used in most civil cases.

Democrats on the panel tried unsuccessfully to revise the measure with amendments.

Rep. Tina Polsky, D-Boca Raton, proposed limiting the affidavit to a “qualified medical expert” who would affirm that the plaintiff tested positive for COVID-19 when the cause of action occurred.

Polsky argued that bill would require a doctor to reach a legal, not a medical conclusion.

“This is much more in line with medical malpractice pre-suit requirements,” Polksy said.

Brandes insisted that the provision is vital because it would allow a doctor to weed out dubious claims before the defendant was forced to hire an attorney and launch an “expensive discovery process.”

Sen. Darryl Rouson, a St. Peterburg Democrat who is also an attorney, filed an amendment that would have removed the protection for defendants who “substantially” comply with health guidelines.

Instead, it would have stated that, “a defendant is immune from civil liability for ordinary negligence if the court determines that the defendant complied with all applicable executive orders issued by the Governor in association with the declared state of emergency relating to COVID-19 and any guidelines from the Centers for Disease Control and Prevention applicable at the time the cause of action accrued.”

Businesses would have a clearer path to follow, Rouson said.

“I think clarity and narrowness of scope is brought to this bill with this amendment,” Rouson said. “It creates actual standards; it creates an actual bright line.”

Brandes said the amendment would leave businesses liable for damages for minor infractions, such as a restaurant that admits 51 diners instead of 50, or a barber who is unaware that he is carrying the virus, and accidentally lets his mask slip.

Polsky offered another amendment that would have lowered the evidentiary standard, but it, too, was voted down.

The Florida Justice Association, which represents trial attorneys, has argued that there is no need for the bill.

FJA treasurer Stephen Cain told the panel that his research uncovered only four COVID-19-related personal injury claims filed in Florida since the pandemic struck nearly a year ago.

The legislation would set such a higher barrier for plaintiffs, that it would “essentially bar access to the courthouse door” to injured parties, Cain said.

An identical House companion, HB 7 by Rep. Lawrence McClure, R-Plant City, is on a fast track in the House. It passed the Civil Justice and Property Rights Subcommittee 11-6 on January 13.

Both measures have been named top priorities of the House speaker and Senate president for the 60-day session that convenes March 2. During the bill’s first committee stop, McClure politely but firmly rejected a slate of similar amendments, but promised to work with critics.

Proponents include Chief Financial Officer Jimmy Patronis, the Florida Justice Reform Institute, the Florida Retail Federation, Associated Industries of Florida, the Florida Restaurant and Lodging Association, and the National Federation of Independent Business, Florida Chapter.

NFIB Florida president Bill Herrle told lawmakers that many of his members are one demand letter away from closing their doors.

“In December, one in four small business owners believed they will not be in business six months from now,” he said. “These risks are often uninsured and uninsurable.”

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