The Legislature’s GOP leadership scored their first major achievement of the 2021 legislative session on Friday when the House voted, 83-31, to make it harder to sue businesses for exposing customers and workers to COVID-19.
The party-line vote came just four days after the Legislature convened for its annual 60-day session. Similar legislation is on the same fast track in the Senate, as well as separate legislation in both chambers shielding medical providers.
Any differences in the versions would have to be reconciled before the legislation could go to Gov. Ron DeSantis for his signature. Senate President Wilton Simpson is closely allied with House Speaker Chris Sprowls and the governor in attempting to head off what they consider frivolous lawsuits intended mostly to bludgeon business owners into settling claims.
Trial lawyers, unions, and social justice groups are against it, complaining the measure leaves ordinary people no remedy against business owners who don’t do enough to protect against coronavirus transmission.
During about two hours in debate, more than one Democrat mentioned the case of Geraldo Gutierrez, a 70-year-old Publix employee from Miami who allegedly contracted his fatal case of COVID on the job from an infected coworker.
At that time early in the pandemic, Publix allegedly forbade its employees to wear face masks and gloves to protect themselves. A judge recently refused the company’s attempt to move the case to the workers’ compensation system, as the South Florida Sun Sentinel has reported.
“It’s time for this body to show that they truly care about workers — about the working-class families in this state — so that there will be no more Geraldo Gutierrezes that lose their lives,” said Rep. Angie Nixon, a Democrat from Duval County.
“Businesses do need protection from frivolous lawsuits, but not at the expense of workers, customers, let’s not forget tourists, students, parents, teachers, parishioners, heath care workers, and patients,” said Rep. Yvonne Hayes Hinson, a Democrat representing parts of Alachua and Marion counties.
Given that the GOP controls the state House, the vote wasn’t a surprise. But Democrats haven’t given up on fighting the legislation, said Rep. Ben Diamond, of Pinellas County, who has helped lead his caucus’ fight against the bill.
“My hope is that we can continue to work with the Senate to fix the problems with the bill,” he told the Phoenix.
“Obviously, this is a significant piece of legislation. What it underscores, really, is the need. It underscores the severity of the situation, which is we’re trying to get Florida back on its feet. And, in order to do that, we need businesses to thrive,” Sprowls told reporters following the vote.
The bill (HB 7) and Senate companion (SB 72) would make it harder to sue businesses, individuals, charitable organizations, nonprofits, public or private educational institutions, government entities, and religious institutions over exposure to COVID by creating a sort of pretrial in which a plaintiff would have to present strong evidence tying an infection to the entity’s negligence.
The bill provides that businesses could end any litigation early by establishing that they made “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.”
A plaintiff would have to establish that the business committed gross negligence while meeting a high burden of proof — clear and convincing evidence.
Democrats argued the bill isn’t necessary because there haven’t been many COVID liability lawsuits but that it might encourage businesses to ignore safety guidelines.
“There’s been no flood of COVID-related negligence claims — only a trickle of claims,” said Rep. Emily Slosberg, a Democrat from Palm Beach County.
“Rather, the bulk of the cases have claims involving civil rights, employment, or insurance issues. Why should we offer businesses near-blanket immunity against an almost nonexistent threat? The public deserves reasonable protection against bad actors,” she said.
Supporters conceded the pandemic hasn’t produced much litigation yet but warned it’s only a matter of time.
“It may be 50 lawsuits now, but if we don’t do this it’ll be 50,000,” said Rep. Bob Rommel, a Republican from Collier County.
“Floridians have repeatedly told us they are ready to get back to work. If you want to get back to work, you have to have a job to go to. And if you want to have a job to go to, responsible businesses have to be able to reopen safely without the fear of getting sued,” said Rep. Tom Leek, a Republican from Volusia County.
The bill, by Republican Lawrence McClure of Hillsborough County, would require a plaintiff to get a doctor to sign an affidavit expressing his or her reasonable medical judgment linking an infection to a business. Rep. Omari Hardy argued that is really a question of fact best decided by a jury — and not a medical judgment.
“When you look at the conditions, they can’t really be met,” he said. “For me, this bill has a when-pigs-fly sort of quality to it.”
Leek insisted: “There is no doctor in this state who would refuse a person the affidavit to go sue any one of those bad actors they’ve just described. There is no jury in this state that would fail to hold guilty one of the bad actors they’ve trotted out in front of you. This bill is about responsible businesses tying to reopen safely.”
Democrat Geraldine Thompson argued the right of access to the courts — through which Black Americans struggled to establish their civil rights — was at stake.
“Having experienced COVID — and it was not a pleasant thing — I want to say to you, let’s make sure businesses are doing what they are supposed to do to make sure that people, including their employees, are protected,” she said.
If Republicans really wanted to help businesses, they would support grants to help them acquire safety and sanitary equipment, Rep. Fentrice Driskell, of Hillsborough County, said.
“The biggest problem that our small businesses have is not getting sued — it’s having enough customers who feel safe to come to their restaurant, their barbershop, their salon so that they can thrive,” she said.