One more hurdle to go, and the House will pass legislation to protect businesses from COVID lawsuits

Rep. Fentrice Driskell entertains a friendly question from fellow Democratic Rep. Joe Geller during Florida House debate on a proposed COVID-lawsuit shield for businesses, on March 4, 2021. Source: Screenshot/Florida Channel

Democrats in the Florida House struggled Thursday to soften legislation that would shield businesses from COVID-exposure lawsuits, but the Republicans who control the chamber overruled any and all objections.

The move prepared the bill — which is being pushed hard by Gov. Ron DeSantis, House Speaker Chris Sprowls, and Senate President Wilton Simpson, all Republicans — for a final debate and a vote on Friday.

Rep. Ben Diamond helped lead his fellow Democrats during debate on March 4, 2021, on a proposed COVID-liability-protection bill for businesses. Source: Screenshot/Florida Channel

“We sure gave it a try,” said Rep. Ben Diamond, a Democrat from Pinellas County who helped lead his side of the debate, following the session.

The bill (HB 7) and a Senate companion (SB 72) would require anyone who wants to bring a COVID lawsuit to first find a doctor willing to swear an affadavit, “within a reasonable degree of medical certainty, that the plaintiff’s COVID-19-related damages, injury, or death” can be linked to acts or omissions by the targeted business.

Any lawsuit would have to argue “with particularity” what the defendant is supposed to have done wrong.

Additionally, a lawsuit would have to establish that the business failed to make “a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance at the time the cause of action accrued,” the bill says.

Finally, a plaintiff would have to establish that the business committed gross negligence while meeting a high burden of proof — clear and convincing evidence.

Only then could the case go before a jury.

Other than businesses, the measure would cover individuals, charitable organizations, nonprofits, public or private educational institutions, government entities, and religious institutions. The language does not apply to lawsuits already filed.

Separate legislation pending in the House and Senate would cover medical providers.

Business interests, large and small, support the measure out of fear they might be bankrupted having to defend or settle frivolous lawsuits arising from the confused early days of the pandemic, when state, local, and federal government issued sometimes contradictory guidance for controlling transmission.

Opponents, including trial lawyers, unions, nursing home patients, and social justice organizations, argued it would erect barriers to legitimate lawsuits that would be impossible to clear, and would reward negligence.

“This bill is anchored to the fears of the business community,” sponsor Lawrence McClure, a Republican from Hillsborough County, argued.

He rejected suggestions the bill would encourage bad behavior. “You have to make a good-faith effort to comply” with health guidelines to benefit from the litigation shield, he said.

The Democratic efforts, led by Diamond and Rep. Fentrice Driskell, of Hillsborough County, included a series of amendments attacking key language in the bill.

One of these would have lowered the threshold for filing a claim; and specified, and thus narrowed, the local, state, and federal guidelines businesses would have to follow — even to exclude DeSantis’ orders, Republicans argued.

“For liability to turn on whether or not a business exercised good faith in following health care guidelines, but to fail to include a definition of what those guidelines are, to me is a fatal flaw,” Driskell said. “We’re setting up our courts for failure, and we’re setting up our businesses for failure. We have the opportunity to correct this now.”

Other amendments would have stripped the need for a doctor’s affidavit; granted some classes of essential workers, including school employees, police, firefighters, and emergency medical technicians, a rebuttable presumption that they were infected at work; and bar firing of employees who stay away from work because they’re infected.

Each went down on a voice vote, although the rebuttable presumption amendment failed on a 40-78 voice vote. Not a single Republican voted yes.

Evan Jenne, a Broward County Democrat who co-leads his caucus, said as he exited the chamber that the effort hadn’t been futile.

“It raised some very valid points that our constituents are going to want to hear,” he said. “And the Senate still has time to do the right thing and make sure workers are protected. Because that was our main thrust. We all agree that businesses need to have some sort of protection; it just can’t be complete gross negligence,” Jenne said.

Michael Moline
Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal. He began his career covering the Florida Capitol for United Press International. More recently, he wrote for Florida Politics.