Courtesy of The Daily Business Review
Toby Snively, Esq.
Published July 1, 2021
Effective immediately under the first new Florida law
enacted this legislative session (SB 72), community associations throughout
the state should receive some protection from coronavirus lawsuits if they
attempted to follow governmental guidelines to prevent the spread of
COVID-19. Publicized as the most aggressive COVID-19 liability law in the
United States, this legislation enacted March 29 imposes tougher legal
requirements on individuals wanting to sue Florida business entities and
various other organizations over COVID-19-related claims. The plain language
of the law defines “business entities” to include corporations
not-for-profit. As such, this indicates the legislation’s new-found
protection extends to homeowners’ associations organized not-for-profit in
accordance with Section 720.302(1) of the Florida Statutes as well as
condominium associations organized not-for-profit in accordance with Section
718.111(1)(a) of the Florida Statutes.
By implementing a “gross negligence” standard, which is a higher bar for a
plaintiff to prove and has been defined by Florida courts as the type of
conduct that a “reasonably prudent person knows will probably and most
likely result in injury to another,” the law should make it more difficult
for a plaintiff to prevail in COVID-19-related lawsuit against a community
association. And in fact, by requiring the plaintiff to obtain a doctor’s
affidavit that states with reasonable medical certainty that the
association’s failure to follow guidelines caused the COVID-19 injury or
death and include that affidavit when the lawsuit is filed; and (ii)
requiring the plaintiff’s complaint to be plead with particularity, the law
implements preliminary requirements that make it more difficult to even file
a viable case.
Before the lawsuit is allowed to proceed, the court will now review and
determine as a matter of law whether the plaintiff complied with the
above-referenced preliminary requirements. If the answer is “no,” the court
must dismiss the lawsuit without prejudice. At this early stage, the court
will also accept evidence and determine whether or not the community
association made a good faith effort to substantially comply with
government-issued health standards or guidance and, if so, the association
is “immune from civil liability” and the proceeding should end.
Interestingly, the new law places the burden of proof on the plaintiff to
demonstrate that the association defendant did not make a good faith effort
to comply. Also, recognizing that local, state and federal guidance
detailing how best to combat the virus have evolved and sometimes been in
conflict during the pandemic, the new law should protect community
associations that attempted to comply with any one of these “authoritative
or controlling” sources of governmental guidance that existed at the time.
However, if the court determines the association did not make a good faith
effort, the lawsuit is allowed to proceed.
Under this legislation, community associations are still faced with
liability for gross negligence if proven by the heightened evidentiary
standard of “clear and convincing” evidence. For associations that closed
their common amenities due to COVID-19 and have not yet re-opened, this law
may offer the additional protection sought by those boards of directors to
now proceed, in consultation with the association’s legal counsel, with
cautiously re-opening common amenities as safely and smartly as possible.
With summertime in Florida quickly approaching, this is an encouraging
development for many owners eager to resume lounging in the community pool.
For associations with common amenities that are already open at this time,
the law offers protection to those associations that took steps to
substantially comply with governmental COVID-19 guidelines. This is achieved
under the law by a provision that applies it retroactively so long as the
lawsuit itself is filed after the law’s enactment—even if the COVID-19
infection and alleged damages occurred before the law existed. Finally, the
law concludes with an additional protection by reducing the amount of time
that a plaintiff has to file a lawsuit, from four years to one year,
commonly known as shortening the statute of limitations.