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Filing a COVID-19 Lawsuit May Be Harder Than You Think

The Florida Legislature has created a high standard for claims against businesses based on damages from COVID-19, according to coverage by JD Supra and The National Law Review. On March 29, 2021, Governor Ron DeSantis signed “CS/SB 72: Civil Liability for Damages Relating to COVID-19” into law.

The newly enacted Florida Statute 768.38 is designed to protect businesses, schools, the government, and other persons and entities from COVID-19 lawsuits – as long as the party being sued (the defendant) 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.”

Requirements for a COVID-19 Claim

Before a lawsuit can proceed, the person filing (the plaintiff) must provide an affidavit from a physician stating that their injury or loss is a result of the defendant’s acts or omission. Even if the plaintiff receives a physician’s affidavit, the court will also investigate whether the defendant made a good faith effort to follow COVID-19 guidelines in place at the time of the injury or loss.

The defendant has no responsibility to prove their good faith efforts, and if the plaintiff does not provide proof against the defendant’s good faith efforts, the court could award immunity with no evidence from the defendant.

If, after all this, the court allows the lawsuit to proceed, the plaintiff still has the burden of proof and must show “by clear and convincing evidence” that the defendant acted with gross negligence. This is an even higher evidentiary standard than the one present in standard negligence claims.

Claims Against Employers and Healthcare Providers

While workers must usually recover from their employers via workers’ compensation, gross negligence would also justify a COVID-19 claim against one’s employer. When it comes to COVID-19, health care providers are covered by a separate statute.

Shortening the Statute of Limitations

Most Florida tort claims have a 4-year statute of limitations, but COVID-19 claims will have a 1-year statute of limitations. This deadline applies to claims that emerged before the law was passed, as well. Shortening the statute of limitations is intended to eliminate any ongoing COVID-19 litigation.

Preemptive Legislation

Although Florida had seen less than a dozen COVID-19 claims at the time of enacting CS/SB 72, the state’s new law aims to discourage plaintiffs who are thinking about coming forward. To have a successful claim, plaintiffs must clear several legal hurdles and have an airtight case against the defendant. As such, many lawyers will not take on COVID-19 litigation and very few COVID-19 cases will see the inside of a courtroom.

Nevertheless, “Civil Liability for Damages Relating to COVID-19” would allow cases involving complete disregard of health and safety to make it through the court system.

If you’re ever unsure of your personal injury case, you should speak to an attorney about your rights and legal options. Many lawyers offer free consultations, and at Lauri J. Goldstein & Associates, PLLC, we use free case reviews to evaluate the strengths and weaknesses of your case.

When injured or bereaved clients come to us, we give them the legal advice they need and fight for what’s fair, 24/7.

Call us at (866) 675-4427 or contact us online to talk to an experienced attorney and find out if the law is on your side – we know we are!

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