Bradley attorney Kyle Robisch was quoted in the Daily Business Review on how attorneys in Florida should prepare for the forthcoming COVID-19 liability shields. Businesses and health care providers reportedly fear being sued for what they've done — or haven't done — during the coronavirus pandemic. As a result, lawmakers in Florida have been developing legislation to protect would-be defendants from potentially frivolous lawsuits. Gov. Ron DeSantis is expected to sign numerous COVID-19 liability shields, which will leave judges working with language that will require interpretation, including whether defendants made a “good faith effort” to “substantially comply” with “authoritative or controlling government-issued health standards or guidance.”
Because those bills don’t explain whether they’re referring to city, county, state or federal requirements, Robisch noted there could be some wiggle room.
“Anticipate a lot of early action around those terms of art,” Robisch said. “Lawyers on all sides should monitor the early cases to see where courts land. Things like county mask ordinances and social distancing requirements, state capacity limits and CDC guidance are all likely in play.”
But for defense lawyers paying close attention, Robisch said those specificity requirements will provide “early opportunities to dismiss cases that aren’t ironclad from the start.”
Robisch suggested working with clients now to build and preserve a record that they’re making a “good faith effort” to comply with COVID-19 guidance, as the proposed laws say that can serve as an absolute defense.
“If businesses take steps now to document that effort, they’ll be well-positioned later once a COVID-19 plaintiff comes knocking,” Robisch said.
Those strict requirements might also lead to improvisation, Robisch said.
“Expect creative plaintiffs attorneys to try and plead ‘COVID-19 related claims’ as something else, to get around the statute,” Robisch said. “Also expect those claims to appear later in litigation—after initial pleadings—for the same reason. Defense attorneys should stay wary.”
The original article, "Southeast Takeaways: Traversing the 'Wild West' of COVID-19 Liability Shields," appeared in the Daily Business Review on March 30, 2021.