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Businesses and trial lawyers square off over Covid-19 litigation
By Arek Sarkissian, Matt Dixon
12/04/2020 05:00 AM EST
TALLAHASSEE — Florida’s business lobby and the state’s most powerful elected Republicans are teaming up to shield companies and health care providers from lawsuits filed by coronavirus victims, setting up a slugfest for the upcoming legislative session.
Florida’s effort to curb what it fears will be a wave of pandemic-related lawsuits follows the lead of other states, many of which began rewriting their laws months ago. The Florida effort also is an attempt by powerful state businesses to leverage the pandemic to win other tort reforms from the Legislature and governor.
Legislation drafted by state Senate Republicans is the first glimpse of how the fight will play out in Florida, which is by far the largest to delve into the coronavirus liability fray.
The bill borrows from the RESET Task Force, a group of Florida business and health care leaders that put forward recommendations and draft legislation built on ideas from other GOP-run states, including Alabama, Mississippi and Oklahoma, that have implemented or are debating coronavirus legal reforms.
Florida’s legislative session doesn’t begin until early March, but the lobbying effort on both sides already is well under way.
Business groups have successfully made the issue a top-tier priority for Florida Republicans, including Gov. Ron DeSantis, Senate President Wilton Simpson, House Speaker Chris Sprowls, and CFO Jimmy Patronis.
All were among the Republican lawmakers who went to Orlando this week for the annual gathering of the Associated Industries of Florida, one of the state’s most influential business groups.
The meeting featured speeches from politicians and offered attendees an opportunity to pay $7,500 for a round of golf with GOP lawmakers at the Ritz Carlton Golf Club.
Republican lawmakers scheduled to take part in the golf event included Senate Banking and Insurance Chair Jim Boyd of Bradenton; Sens. Jason Boyd of Sanford, Ed Hooper of Palm Harbor; and GOP Reps. Amber Mariano of Hudson, Stan McClain of Ocala, Jackie Toledo of Tampa, and Josie Tomkow of Polk City.
The lawmakers were dubbed “celebrity golfers,” according to the invitation.
The gathering “will bring key business leaders and elected officials together to discuss the affects and impact of COVID-19 on the Florida business community and the recent recommendations of the RESET Task Force with an emphasis on liability protection policy aimed at protecting Florida businesses from future Coronavirus-related lawsuits,” according to promotional material for the event.
In his speech at the closed-door gathering, DeSantis made the case that businesses should be protected from lawsuits stemming from the coronavirus pandemic, according to a recording of his remarks obtained by POLITICO.
“If you have a store, you can’t have people suing you,” DeSantis said Thursday . “Because how can you even prove whether somebody was infected in the store or not. Or if you hold an event.
“I mean, I want to have the Super Bowl, I want to have all these things. It makes it much more difficult to do that if there’s a specter of seeing a lot of lawsuits, which I don’t think any of them could succeed because I think it’s almost impossible to prove,” he said. “But I think It would cost a lot of money to have to defend and it would weigh down a lot of folks, particularly a lot of our small businesses.”
The Florida Chamber of Commerce, which was not part of the RESET Task Force, also has made Covid-19 liability reform its top session priority.
The Florida Justice Association, which represents trial attorneys, is circulating talking points and position papers that make the case that businesses and health care facilities have not been hit with coronavirus lawsuits even more than eight months into the pandemic.
Instead, the largest number of legal challenges have been filed by businesses suing insurance companies for denied claims.
Thirty percent of Florida’s Covid-19 lawsuits have been filed against insurers “who have denied business or employees access to benefits,” the Florida Justice Association wrote in talking points prepared ahead of the legislative session.
While no bills have yet been filed, the Florida Senate is preparing legislation that would raise the threshold for winning lawsuits, require complaints to be filed within a year of a person’s infection with Covid-19 and offer blanket coronavirus lawsuit immunity for state health care facilities, according to a copy of the draft bill obtained by POLITICO.
Health care facilities have lobbied heavily on the liability issue and were members of the RESET Task Force.
“It creates a safe harbor for businesses and shields homeowners and healthcare facilities,” Senate Judiciary Committee Chairman Jeff Brandes (R-St. Petersburg) said in an interview. He said he is likely to sponsor the bill.
The insurance industry is under pressure to exclude coronavirus-related claims from homeowner policies, he said.
“They're very concerned,” Brandes said. “These policies don't have the pandemic exclusions like most commercial liability policies do for businesses.”
Simpson, a Trilby Republican, has organized his chamber in a way that signals it will skew heavily in favor of business and insurance interests.
Along with Brandes on the Judiciary Committee, other Republican lawmakers who have fought with trial lawyers have been given key posts. Kelli Stargel of Lakeland will lead the budget committee, Kathleen Passidomo of Naples will chair the powerful Senate Rules Committee, and Jim Boyd, an insurance agent himself, will chair the Senate Banking and Insurance Committee.
The political math could be more complicated for business groups advocating reform in the House, where the Florida Justice Association helped Sprowls, an attorney, win his race for speaker.
During a one-day organization session last month, Sprowls said he is still getting input from members, but agreed that coronavirus-related lawsuits are a problem.
“I think we all agree it’s a problem that we need to figure out the best way to solve, making sure people who were going about it in kind of the right way, trying to do the right thing for their customers and employees, don’t get blindsided by a frivolous lawsuit, while making sure if someone is doing the wrong thing that they are still held accountable,” Sprowls told reporters last month.
That same day, Simpson echoed DeSantis’ sentiment that the issue should be addressed early in session.
“I don’t think you, under any condition, put a blanket statement that no one would have any liability associated with Covid,” he told reporters during the Nov. 17 organizational session at the State Capitol. “But I think if you made the right attempt to follow CDC guidelines, then that is something we should take a look at.”
In one measure of the fight to come, Sprowls and Simpson both have received significant campaign contributions from both sides of the debate.
A political committee Sprowls controls brought at least $160,000 tied to dozens of trial lawyers, more than the $77,500 from committees tied to the Associated Industries of Florida and $30,000 from committees tied to the Florida Chamber of Commerce.
Sprowls ran House GOP campaigns in 2020, raising most of his money through the Florida Republican Party of Florida, making the funds more difficult to track.
Trial lawyers gave more than $700,000 to a Simpson-led committee that funded and coordinated Senate GOP races in 2020. The group collected nearly $2.6 million from AIF and the Florida Chamber.
The draft Senate bill does offer blanket immunity to health care facilities, including nursing homes, but it requires proof of gross negligence to establish liability, meaning a defendant must have acted with “conscious disregard or indifference to the life, safety or rights of persons exposed to such conduct,” according to the draft bill.
Florida Justice Association Executive Director Paul Jess said health care facilities should be denied blanket immunity and said “gross negligence” is too high a standard to sue businesses.
“The draft gives legal immunity to negligent businesses. They would only be liable for gross negligence or internal misconduct,” Jess said in an email. “Health care providers would have total legal immunity under the draft. They would not even be liable for gross negligence or intentional misconduct.”
“The draft is a solution in search of a problem,” he added. “There is no flood of COVID related lawsuits against business or health care providers nationally or in Florida.”
The draft bill does not differentiate between essential business, such as grocery stores, that never closed during the pandemic, and others.
The RESET Task Force, made up of business industry leaders, drafted legislation that defined “essential” businesses as any not specifically deemed “non-essential” in an executive order. But some members of the group opposed splitting businesses into separate categories.
“Every business deserves the same protection. There is no such thing as a nonessential business,” said Bill Herrle, executive director of the National Federation of Independent Business Florida. “Just ask any family-owned business.”
Both sides of the debate agree Covid-related lawsuits are occurring, but drastically differ on their opinion of whether the legal challenges are frivolous.
William Large, president of the Florida Justice Reform Institute, a group involved in the RESET Task Force that has identified dozens of Covid-related lawsuits already filed, predicted that thousands more will come without new protections.
“It’s going to be a tsunami of litigation,” Large said Wednesday in an interview. “The Florida Legislature needs to address this issue now.”
Gary Fineout contributed to this report.
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With nearly 25 years of pest management industry experience, Andrew de la Chapelle has joined sibling companies PCO Bookkeepers and PCO M&A Specialists.


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