Florida Senate - 2021 SB 72 By Senator Brandes 24-00824B-21 202172__ 1 A bill to be entitled 2 An act relating to civil liability for damages 3 relating to COVID-19; creating s. 768.38, F.S.; 4 providing legislative findings and intent; defining 5 terms; providing requirements for a civil action based 6 on a COVID-19-related claim; providing that the 7 plaintiff has the burden of proof in such action; 8 providing a statute of limitations; providing 9 severability; providing retroactive applicability; 10 providing an effective date. 11 12 WHEREAS, on March 9, 2020, Governor Ron DeSantis issued 13 Executive Order Number 20-52 declaring a state of emergency for 14 the State of Florida due to the COVID-19 pandemic, and 15 WHEREAS, in light of the ongoing nature of the COVID-19 16 pandemic, the Governor has repeatedly extended the state of 17 emergency, including most recently on December 29, 2020, in 18 Executive Order Number 20-316, and 19 WHEREAS, the State of Florida continues under a declared 20 state of emergency, and 21 WHEREAS, throughout the declared state of emergency, the 22 Governor’s executive orders included industry-specific 23 restrictions to prevent the spread of COVID-19 based on the best 24 information available at the time, allowing and encouraging 25 certain businesses to continue to safely operate, and 26 WHEREAS, a strong and vibrant economy is essential to 27 ensure that Floridians may continue in their meaningful work and 28 ultimately return to the quality of life they enjoyed before the 29 COVID-19 outbreak, and 30 WHEREAS, Floridians must be allowed to earn a living and 31 support their families without unreasonable government 32 intrusion, and 33 WHEREAS, the Governor’s responsible reopening strategy 34 allowed businesses to continue to safely operate, bolstering 35 consumer confidence, while also enforcing reasonable 36 restrictions, and 37 WHEREAS, the Legislature recognizes that certain 38 businesses, entities, and institutions operating within the 39 state are essential to the state’s continuing success and well 40 being, and 41 WHEREAS, the Legislature recognizes that many businesses, 42 entities, and institutions accept significant risk in order to 43 provide their services to the public, and 44 WHEREAS, the Legislature further recognizes that the threat 45 of frivolous and potentially limitless civil liability, 46 especially in the wake of a pandemic, causes businesses, 47 entities, and institutions to react in a manner detrimental to 48 the state’s economy and residents, and 49 WHEREAS, the Legislature recognizes that practical, bright 50 line guidance protecting prudent businesses, entities, and 51 institutions significantly alleviates such liability concerns, 52 while also continuing to provide for the public health, and 53 WHEREAS, the Legislature finds that the unprecedented and 54 rare nature of the COVID-19 pandemic, together with the 55 indefinite legal environment that has followed, requires the 56 Legislature to act swiftly and decisively, NOW, THEREFORE, 57 58 Be It Enacted by the Legislature of the State of Florida: 59 60 Section 1. Section 768.38, Florida Statutes, is created to 61 read: 62 768.38 Liability protections for COVID-19-related claims.— 63 (1) The Legislature finds that the COVID-19 outbreak in the 64 state threatens the continued viability of certain business 65 entities, educational institutions, governmental entities, and 66 religious institutions that contribute to the overall well-being 67 of the state. The threat of unknown and potentially unbounded 68 liability to such businesses, entities, and institutions, in the 69 wake of a pandemic that has already left many of these 70 businesses, entities, and institutions vulnerable, has created 71 an overpowering public necessity to provide an immediate and 72 remedial legislative solution. Therefore, the Legislature 73 intends for certain business entities, educational institutions, 74 governmental entities, and religious institutions to enjoy 75 heightened legal protections against liability as a result of 76 the COVID-19 pandemic. The Legislature also finds that there are 77 no alternative means to meet this public necessity, especially 78 in light of the sudden, unprecedented nature of the COVID-19 79 pandemic. The Legislature finds the public interest as a whole 80 is best served by providing relief to these businesses, 81 entities, and institutions so that they may remain viable and 82 continue to contribute to the state. 83 (2) As used in this section, the term: 84 (a) “Business entity” has the same meaning as provided in 85 s. 606.03. The term also includes a charitable organization as 86 defined in s. 496.404 and a corporation not for profit as 87 defined in s. 617.01401. 88 (b) “COVID-19-related claim” means a civil liability claim 89 against a person, including a natural person, a business entity, 90 an educational institution, a governmental entity, or a 91 religious institution which arises from or is related to COVID 92 19, otherwise known as the novel coronavirus. The term includes 93 any such claim for damages, injury, or death. Any such claim, no 94 matter how denominated, is a COVID-19-related claim for purposes 95 of this section. The term does not include a claim against a 96 healthcare provider, regardless of whether the healthcare 97 provider meets one or more of the definitions in this 98 subsection. 99 (c) “Educational institution” means a school, including a 100 preschool, elementary school, middle school, junior high school, 101 secondary school, career center, or postsecondary school, 102 whether public or nonpublic. 103 (d) “Governmental entity” means the state or any political 104 subdivision thereof, including the executive, legislative, and 105 judicial branches of government; the independent establishments 106 of the state, counties, municipalities, districts, authorities, 107 boards, or commissions; or any agencies that are subject to 108 chapter 286. 109 (e) “Healthcare provider” means: 110 1. A provider as defined in s. 408.803. 111 2. A clinical laboratory providing services in the state or 112 services to health care providers in the state, if the clinical 113 laboratory is certified by the Centers for Medicare and Medicaid 114 Services under the federal Clinical Laboratory Improvement 115 Amendments and the federal rules adopted thereunder. 116 3. A federally qualified health center as defined in 42 117 U.S.C. s. 1396d(l)(2)(B), as that definition exists on the 118 effective date of this act. 119 4. Any site providing health care services which was 120 established for the purpose of responding to the COVID-19 121 pandemic pursuant to any federal or state order, declaration, or 122 waiver. 123 5. A health care practitioner as defined in s. 456.001. 124 6. A health care professional licensed under part IV of 125 chapter 468. 126 7. A home health aide as defined in s. 400.462(15). 127 (f) “Religious institution” has the same meaning as 128 provided in s. 496.404. 129 (3) In a civil action based on a COVID-19-related claim: 130 (a) The complaint must be pled with particularity. 131 (b) At the same time the complaint is filed, the plaintiff 132 must submit an affidavit signed by a physician actively licensed 133 in the state which attests to the physician’s belief, within a 134 reasonable degree of medical certainty, that the plaintiff’s 135 COVID-19-related damages, injury, or death occurred as a result 136 of the defendant’s acts or omissions. 137 (c) The court must determine, as a matter of law, whether: 138 1. The plaintiff complied with paragraphs (a) and (b). If 139 the plaintiff did not comply with paragraphs (a) and (b), the 140 court must dismiss the action without prejudice. 141 2. The defendant made a good faith effort to substantially 142 comply with authoritative or controlling government-issued 143 health standards or guidance at the time the cause of action 144 accrued. 145 a. During this stage of the proceeding, admissible evidence 146 is limited to evidence tending to demonstrate whether the 147 defendant made such a good faith effort. 148 b. If the court determines that the defendant made such a 149 good faith effort, the defendant is immune from civil liability. 150 c. If the court determines that the defendant did not make 151 such a good faith effort, the plaintiff may proceed with the 152 action. However, absent at least gross negligence proven by 153 clear and convincing evidence, the defendant is not liable for 154 any act or omission relating to a COVID-19-related claim. 155 (d) The burden of proof is upon the plaintiff to 156 demonstrate that the defendant did not make a good faith effort 157 under subparagraph (c)2. 158 (4) A civil action for a COVID-19-related claim must be 159 commenced within 1 year after the cause of action accrues. 160 However, a plaintiff whose cause of action for a COVID-19 161 related claim accrued before the effective date of this act must 162 commence such action within 1 year of the effective date of this 163 act. 164 Section 2. If any provision of this act or its application 165 to any person or circumstance is held invalid, the invalidity 166 does not affect other provisions or applications of the act 167 which can be given effect without the invalid provision or 168 application, and to this end the provisions of this act are 169 severable. 170 Section 3. This act shall take effect upon becoming a law 171 and shall apply retroactively. However, the provisions of this 172 act shall not apply in a civil action against a particularly 173 named defendant which is commenced before the effective date of 174 this act.