By MIKE SYNAN – 10.07.20
The legislative session in Tallahassee is still months away but the push has already started to give businesses complete immunity over lawsuits from COVID-19.
The effort is being led by some of the the biggest business groups in the state like the Associated Industries of Florida (AIF), the Florida Retail Federation (FRF) and the Florida Restaurant and Lodging Association. These groups want legal protections for businesses and are counting on strong GOP support in the Legislature.
“This is probably going to be around for a very long time,” said William Large, the president of the Florida Justice Reform Institute. Large said several steps are needed to properly protect businesses from lawsuits over the coronavirus including in trials where a person who caught the virus will be a major part of the case.
“If you are going to claim that a retail establishment was the basis of that, we want to have a heightened culpability standard in order to prove that it was gross negligence or intentional conduct,” Large said.
This would mean that plaintiffs would have to prove transmission by a clear and convincing standard instead of the current standard which is a preponderance of the evidence.
“Right now, it is very difficult to prove where the transmission took place, and if you are going to say it is because this particular retail establishment didn’t have a plastic barrier, didn’t have people going up and down aisles in different directions, didn’t ensure that the workers were washing their hands, if you are going to say that, we believe you have to prove that by a clear and convincing standard,” Large said.
Another key provision the business community wants in any legislation will be shortening the statute of limitations on lawsuits against businesses because of COVID-19. The current standard is for four years. Large and the business groups are pushing to limit it to one year instead.
Large told Florida Daily if left at four years “businesses are never going to be able to open” and “are never going to be able to get out from underneath the fear of COVID-19 lawsuits.”
Of course, businesses across Florida have already reopened without any such liability protections. Large said he believes the biggest reason for that is the NBA canceling its season, reflecting growing concerns about COVID-19 on the national level, on March 12, just two days before the end of Florida’s legislative session.
“We didn’t have time to address this issue,” Large told Florida Daily.
Several other state legislatures met later in the year and passed some type of restrictions on liability. Most of these states like Tennessee, Utah and Kansas are controlled by the GOP but Iowa also passed liability reforms, as did New Jersey, a solid state for the Democrats.
One controversial part of legislation which could be in Tallahassee next year would put limits on the ability of employees to sue their employer over COVID-19.
“Employers have a level of protection, and we need to pass this legislation to make it air tight,” Large told Florida Daily. “Although many of these claims might be federal in nature, we are recommending a catch-all provision that provides immunity for employers from claims against employees for COVID-19 transmission.”
Most of the time when disputes like this happen, they are handled by the federal government, but teachers’ unions have sued several school districts over reopening. To date, none of those unions have won in court.
Democrats will oppose any such proposal and Large said he expects trial lawyers to fight against it as well.
“I think they see this as a way to bring a lot of lawsuits. It should be very difficult to bring causation claims and that is what we are trying to do with this legislation,” Large said.
Retailers, health care providers and nursing home operators will support this push which should have the support of Gov. Ron DeSantis and the state House which is solidly Republican.
However, the Florida Senate remains in doubt with several key races in the balance in the final weeks of the election. These state Senate contests may determine the final outcome.
Reach Mike Synan at mike.synan@floridadaily.com.