Pending Legislation Which Would Limit Association Liability For Covid-Related Claims

            As many of you may know, the 2021 Florida legislative session recently began, and already several bills have been filed that relate to community associations. None, however, may be more important than House Bill 7, and its corresponding Senate Bill 72, which would act to protect associations from liability due to Covid-related claims. Under the law, a Covid-related claim would include any civil liability claim which arises from or is related to Covid-19, and includes any claim for damages, injury or death. Further, the legislation is applicable to all not-for-profit corporations, which would include all community associations and many country clubs.

            Under the pending legislation, a plaintiff is required to plead their claim with particularity. Further, the plaintiff would be required to submit an affidavit, signed by a physician licensed in the State, which attests to the physician’s belief, within a reasonable degree of medical certainty, that the plaintiff’s Covid-related damages, injury or death occurred as a result of the defendant’s actions or omissions.

            Presuming the plaintiff was able to do so, the court then would be required to determine, as a matter of law, whether the defendant made a good faith effort to substantially comply with the controlling governmental issued health standards or guidelines that were available at the time the cause of action arose. Admissible evidence would be limited to demonstrating whether or not the defendant made such a good faith effort.

            If the court determined that the defendant made such a good faith effort, the defendant would be completely immune from civil liability. Further, if more than one set of standards or guidance was controlling or available at the time the cause of action arose, the defendant’s good faith effort to substantially comply with any one of such standards or guidelines would provide complete immunity from civil liability.

            In addition, even if the court determined that the defendant did not make such a good faith effort, the proposed legislation would still require the plaintiff to prove gross negligence on the part of the defendant, by clear and convincing evidence, in order to establish their Covid-related claim.

            Moreover, under the proposed law, a plaintiff must commence a civil action for Covid-related claims, within one (1) year after the cause of action has accrued or within one (1) year from the effective date of the pending legislation, if the cause of action accrued before the pending legislation became into law.

            While the proposed legislation deals with the liability issues, it does not address whether associations have adequate insurance coverage to cover any such claims or to provide an insurance company paid for defense in the event an association is sued for a Covid-related matter. As such, it will be critical for associations to consult with legal counsel and insurance professionals in dealing with COVID related issues.

SACHS SAX CAPLAN, P.L.
PETER S. SACHS