We are already in February 2021! Can you believe it? Our Tampa Bay Buccaneers were crowned Super Bowl Champs, spring is upon us, yet we are still wearing masks, vaccinations are being provided to Floridians as fast as possible, yet it still looks a lot like 2020 in many ways.

What’s happening in Florida Legislature?

  • New protections for health care providers. A senate committee has successfully cleared legislation on February 10, 2021, that would create COVID-19 liability protections for Florida health care providers. Senate Bill 74 (SB 74) was advanced with a 6-4 vote. The proposal would require plaintiffs to prove a provider acted with “gross negligence or intentional misconduct instead of simple negligence.” Further, the evidentiary standard would also be “clear and convincing evidence” as opposed to the much lower bar of the “greater weight of the evidence.” All in all, the legislation was proposed to provide protections to Florida’s health care industry. Other similar measures are being advanced through the Republican-controlled legislature to extend protections to schools, churches, and businesses.
  • Potential immunity from liability. Senate Bill 72 (SB 72) advanced through the Senate Judiciary and would provide liability protection to businesses to be applied retroactively to a newly filed lawsuit. Plaintiffs would be required to obtain affidavits from Florida physicians attesting that defendants’ acts or omissions caused the damages, injuries or deaths. If businesses have “substantially” complied with government-issued health standards or guidance, the business would be immune from liability. A companion bill, House Bill 7 (HB 7) has advanced through the Florida House of Representatives which would raise the bar for personal injury and wrongful death lawsuits stemming from COVID-19 and provide immunity for businesses and entities that made a “good faith” prevention effort.

What’s the impact on Florida’s economy?

A Florida Tax Watch study reported that if employers’ confidence is shaken due to no liability shield, then the Florida economy, which has been booming, could be reduced by as much as 27.6 billion and more than 356,000 jobs annually. Dominic Calabro, President & CEO of Florida Tax Watch, shares:

“If Florida’s economy is to recover and regain its pre-pandemic prosperity, it is important that businesses, healthcare facilities, schools, nonprofits, government organizations, and other entities that are working hard to comply with public health directives or protective measures to reduce the risk of exposure to or transmission of COVID-19 are protected from unnecessary and costly civil liability. It is also important to make sure that those acting in ‘bad faith’ are held accountable for their negligence while ensuring that those who contract COVID-19 because of the gross negligence of others can recover for their injuries.”

It’s also interesting that in a Florida Chamber poll, Floridians heavily favor COVID-19 protections for businesses and medical providers.

What’s happening in the Florida court system?

In Florida, a restaurant owner urged the Eleventh Judicial Circuit to revive a proposed class action seeking COVID-19 related coverage. The brief claims that it adequately alleged a “direct physical loss” after its property suffered loss of use directly caused by state closures related to the pandemic, and asked the Eleventh Circuit to reverse the lower court’s judgment in favor of insurer, Lloyd’s of London.

This lawsuit stems back to April of 2020 when the Palm Beach restaurant, Sant Ambroeus, sued Lloyd’s of London alleging the insurer wrongfully denied coverage and therefore breached its insurance contract. The district court dismissed the lawsuit in December, indicating that the property did not sustain any physical damage, which was a precondition to coverage.

Sant Ambroeus argued that the district court ignored Florida case law, which held that “direct physical loss” entails more than structural alterations or physical damage. A couple of Florida courts have already held that a property’s loss of use is direct physical loss occurring “even where there is no damage to the structure.” The Florida Supreme Court has not weighed in on the issue and therefore the Eleventh Circuit and Florida Federal Courts are bound to follow an intermediate state appellate court’s ruling.

The restaurant has asked the Florida Supreme Court to certify the question of whether an “all-risk” policy that covers business interruption losses requires actual “physical damage” and whether direct physical loss can indicate more than just structural loss of property. The case is SA Palm Beach LLC et al. v. Certain Underwriters at Lloyd’s London et al., case number 20-14812 in the U.S. Court of Appeals for the Eleventh Circuit.

Henderson Franklin will continue to monitor the situation and share updates. Should you have any questions, I may be reached at heath.gelman@henlaw.com or by phone at 239-344-1273.