COVID liability shield: Chamber of Commerce claims public support, trial lawyers say it protects bad actors

Briarpatch restaurant in Winter Park, as photographed in December 2019. Credit: U+1F360 via Wikimedia Commons

The Florida Chamber of Commerce says voters it surveyed overwhelmingly support legislation that would prevent workers and customers from suing a business owner if they get infected with COVID-19 in that workplace, basing that claim on its own poll of 619 likely voters.

Long an adversary of trial lawyers and labor unions, the chamber argues a liability shield is necessary to prevent “billboard trial lawyers” from exploiting the pandemic to drum up business. Such lawyers, the chamber said in a press release Thursday, would profit from filing “frivolous lawsuits” against employers for COVID infections linked to places of business.

“Florida has the fifth worst legal climate in America and now is the time to safeguard local businesses from billboard trial lawyers trying to leverage the global pandemic for their own profit,” said Mark Wilson, the Florida chamber’s president and CEO, in the press release.

Meanwhile, Florida trial lawyers who would represent workers in such lawsuits say such a shield would in effect grant blanket immunity that protects “bad actors,” not just business owners who demonstrate good-faith efforts to keep people safe but get sued anyway.

“As things stand now, this is simply a bill that is not good for the citizens of the state of Florida. This bill has unintended consequences,” said Stephen Cain, a Miami-based trial attorney and an officer with the Florida Justice Association, an association of 3,000 trial lawyers.

For the chamber, representing business interests, a COVID liability shield for employers is a top priority for fueling commerce while the coronavirus pandemic rages on. Backed by Gov. Ron DeSantis, House Speaker Chris Sprowls, and Senate President Wilton Simpson, the legislation is on a fast track toward expected passage in the legislative session beginning March 2.

The poll found that 74 percent of respondents surveyed between Jan. 14 and Jan. 22 expressed support for COVID liability-shield legislation “if the business made efforts to follow” public-health guidelines, as the legislation would require.

Even 63 percent of Democrats supported the idea, plus 85 percent of Republicans and 73 percent of “other” voters.

Support rises when doctors, hospitals, and nursing homes are included behind the shield, to 78 percent among all respondents, 71 percent among Democrats, 84 percent among Republicans, and 75 percent among “other” voters. The margin for error was plus or minus 4 percent.

The legislation also would protect charities, schools, churches, and other institutions where people congregate. Separate legislation would tackle litigation targeting doctors, hospitals, and nursing homes.

Cain, testifying this week before the Senate Judiciary Committee, said he believes most Florida businesses have reopened safely following Centers for Disease Control and Prevention guidelines and don’t need a blanket-immunity shield that would let bad actors off the hook.

“That’s proven by the fact there’s only been six state cases of personal injury related to COVID — six , not 53,” Cain said, disputing testimony from the Florida Justice Reform Institute, which promotes tort reform, that 53 COVID liability cases had been filed in Florida through this week.

Cain said the higher number includes lawsuits against cruise lines that may or may not be liable for their passengers’ mass infections but are governed not by state law but by federal maritime law.

Cain’s firm also represents the family of deceased, 70-year-old Publix employee Gerardo Gutierrez of Miami, asserting the he contracted his fatal case of COVID on the job from an infected coworker at a time when Publix allegedly forbade its employees to wear face masks and gloves to protect themselves.

“There are some things we can do to make this bill better for businesses across Florida,” Cain said, stressing that law firms are businesses too. “We are individual business owners. We want to open safely.”

Bill sponsor Sen. Jeff Brandes, a Pinellas County Republican and Senate Judiciary chairman, said in a hearing this week that business owners would be expected to comply with executive orders issued by DeSantis, which address matters such as reduced restaurant capacity but do not require the wearing of face masks.

Cain said the bill does not define what actions employers must undertake to keep their workers and customers safe and thus be immune from liability.

“It allows folks to skirt the rules as long as they ‘substantially comply’ — comply with what standards? This bill doesn’t tell you,” Cain said.

Florida has a workforce of more than 10 million people, according to the Florida Department of Economic Opportunity.