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.
   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,
   58  Be It Enacted by the Legislature of the State of Florida:
   60         Section 1. Section 768.38, Florida Statutes, is created to
   61  read:
   62         768.38Liability 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.