The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: CS/SB 72
INTRODUCER: Rules Committee; Senator Brandes and others
SUBJECT: Civil Liability for Damages Relating to COVID-19
DATE: March 15, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Davis Cibula JU Favorable
2. Harmsen McKay CM Favorable
3. Davis Phelps RC Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 72 is a combination of SB 72 and SB 74, with some additional changes. SB 72 creates
civil liability protections for individuals, businesses, governmental entities, and other
organizations against COVID-19-related claims. SB 74 provides lesser liability protections to
health care providers, who are defined in the bill, and provides procedures for civil actions
against them.
Liability Protections for COVID-19-Related Claims
The bill defines a COVID-19-related claim, against a person, business, or other entity, but
generally not a health care provider, as a claim that arises from or is related to COVID-19. For
claims against a person other than a health care provider, the bill establishes preliminary
requirements that a plaintiff must complete before the case is allowed to proceed. A court must
determine whether:
 The complaint was pled with particularity.
 A physician’s affidavit was simultaneously submitted stating that, within a reasonable degree
of medical certainty, the physician believed that the defendant caused, through acts or
omissions, the plaintiff’s damages, injury, or death. If the plaintiff did not meet these
requirements, the court must dismiss the action, but the plaintiff is not barred from correcting
the deficiencies and refiling the claim.
 The defendant made a good faith effort to substantially comply with authoritative or
controlling health standards when the action accrued. If the court determines that the
defendant made the requisite good faith effort, the defendant is immune from civil liability.
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If, in contrast, the court determines that the defendant did not make the requisite good faith
effort, the action may proceed.
If a plaintiff meets these preliminary requirements, then he or she bears the burden of proving
that the defendant did not make the good faith effort. Additionally, the plaintiff must meet the
heightened standard of proving that the defendant’s acts or omissions were grossly negligent by
the clear and convincing evidence standard.
Liability Protections for Health Care Providers
The liability protections for COVID-19-related claims against a health care provider mainly
relate to claims:
 Arising from the diagnosis or treatment of a person for COVID-19;
 The provision of a novel or experimental COVID-19 treatment;
 The transmission of COVID-19; and
 The delay or cancellation of a surgery or medical procedure.
However, a claim by a person other than a patient or resident alleging that the health care
provider caused the person to contract COVID-19 may be pursued under the provisions of the
bill that primarily relate to claims against persons other than a health care provider.
A COVID-19-related lawsuit against any defendant must be brought within 1 year after a cause
of action accrues unless the cause of action occurred before the effective date of the bill.
However, if a cause accrues before the effective date of the bill, the plaintiff has 1 year from the
effective date of the act to bring the claim.
The bill takes effect upon becoming a law and applies retroactively. However, the bill does not
apply in a civil action against a particular defendant if the suit is filed before the bill’s effective
date.
II. Present Situation:
Background
The COVID-19 pandemic has affected the state of Florida in ways that were unimaginable one
year ago. The toll on individuals, businesses, and the economy has been catastrophic. According
to the Department of Health, 1,940,380 residents have tested positive for COVID-19 in the state,
82,256 residents have been hospitalized, and 32,255 residents have died of the virus.1
As the pandemic forced businesses to close, millions of Americans lost their jobs. The U.S.
economy contracted at the greatest rate since World War II. In Florida, general revenue
collections for Fiscal Year 2019-20 were down nearly $1.9 billion from the forecast projections
made in January 2020. The vast majority of the loss, 84.7 percent, came from a loss of sales tax
revenues, the largest component and category most affected by the pandemic. The Revenue
Estimating Conference adopted a forecast for sales tax revenues in December 2020, as compared
1
Florida Department of Health, Division of Disease Control and Health Protection, Florida’s COVID-19 Data and
Surveillance Dashboard, https://experience.arcgis.com/experience/96dd742462124fa0b38ddedb9b25e429 (last visited March
14, 2021).
BILL: CS/SB 72 Page 3
to the January 2020 forecast, that anticipates a loss to General Revenue of approximately $2
billion in Fiscal Year 2020-21 and $1 billion in Fiscal Year 2021-22. The sales tax losses are
attributable to a substantial loss in the tourism and recreation areas, often driven by out-of-state
tourism, and also by reduced sales to local residents at restaurants and venues, including leisure
activities impacted by the pandemic.2
Governor DeSantis issued Executive Order No. 20-52 on March 9, 2020, declaring a state of
emergency and issuing guidelines to halt, mitigate, or reduce the spread of the outbreak. The
order has been extended 7times,3 most recently by Executive Order No. 21-45, issued on
February 26, 2021.
During the pandemic, government-issued health standards and guidance detailing how to best
combat the virus have sometimes been in conflict. They sometimes changed rapidly, making
appropriate responses difficult. Businesses and individuals often scurried to provide appropriate
responses based upon the information they received at any given time.
As businesses and entities struggle to re-open or keep their doors open, a growing concern has
been expressed that unfounded or opportunistic lawsuits for COVID-19-related claims could
threaten their financial survival. The concern is that time, attention, and financial resources
diverted to respond to the lawsuits could be the difference between individuals and entities
succeeding or failing as they attempt to emerge from the pandemic. One protection that has been
offered is the provision of heightened legal immunity from COVID-19 claims to fend off
meritless lawsuits and preserve scant resources.
COVID-Related Lawsuits
According to the Congressional Research Service,4 a growing number of plaintiffs have filed tort
lawsuits in hopes of being compensated for personal injuries that resulted from alleged exposure
to COVID-19 or from the failure of a defendant to properly treat the virus. Some examples of the
lawsuits include:
 The relatives of deceased family members, who allegedly contracted the virus in the
workplace, have filed cases stating that the employers caused the decedents’ deaths because
they failed to implement workplace safety measures.
 Many cruise ship passengers have filed lawsuits against cruise lines alleging that the cruise
line exposed them to the virus or caused them to contract the virus while on a cruise.
2
Executive Summary, Revenue Estimating Conference for the General Revenue Fund & Financial Outlook Statement,
August 14, 2020, and subsequently updated. http://edr.state.fl.us/Content/conferences/generalrevenue/archives/200814gr.pdf
(last visited Mar. 1, 2021).
3
A state of emergency declared under the State Emergency Management Act may not last for more than 60 days unless it is
renewed by the Governor. Section 252.36(2), F.S.
4
The Congressional Research Service works solely for the U.S. Congress and provides policy and legal analysis to both
members and committees of the House and Senate. It is a legislative branch agency housed within the Library of Congress.
https://www.loc.gov/crsinfo/.
BILL: CS/SB 72 Page 4
 Plaintiffs have sued assisted living facilities and nursing homes. They allege that their
relatives died because these entities negligently exposed their relatives to the virus or failed
to diagnose them in a timely or appropriate manner, and then treat the symptoms.
 Businesses that folded have sued their insurance companies challenging the denial of their
coverage for claims of business interruptions.
 Consumers have filed suits seeking financial reimbursement for travel, events, and season
passes at recreational venues which were cancelled or closed because of the pandemic.
 Employees have sued their employers alleging that the employer unlawfully terminated them
because they contracted the virus.
 Stockholders have sued public companies alleging that the companies violated federal
securities laws when they did not accurately state the pandemic’s toll on the companies’
finances as required in mandatory disclosure statements.5
The Congressional Research Service states that proponents of COVID-19 liability protections
assert that litigation and the cost of legal fees will cripple businesses, individuals, schools, and
non-profit organizations and deter the organizations from reopening. Proponents are concerned
that these entities will shape their business decision-making to avoid liability. This unwillingness
to continue or reopen businesses will delay the national economic recovery. Others believe that
many COVID-19-realted claims “are generally meritless, and therefore serve primarily to benefit
plaintiffs’ lawyers rather than vindicate injured person’s legal rights.”6
In contrast, opponents of liability protections disagree. They maintain that organizations would
encounter only minimal legal exposure for COVID-19 liability. The opponents also contend that
providing a shield for defendants would harm the public by permitting defendants to commit
negligent acts with legal protections. It would also remove any incentives for businesses to take
precautions against the spread of the virus.7
Florida Lawsuits
It is difficult to determine how many COVID-19-related lawsuits have been filed in the state.
Staff contacted the Office of the State Courts Administrator to ask if it could determine how
many claims have been filed in the state courts. The office did not have that data available. One
database estimates that 582 complaints relating to COVID-19 have been filed in Florida, but this
data does not delineate between those which are filed in state courts versus federal courts. 8
Many of the claims that have been filed in the federal district courts of the state are suits against
cruise ship lines where passengers allege that they contracted the virus while on the cruise.
5
Congressional Research Service, COVID-19 Liability: Tort, Workplace Safety, and Securities Law (Sept. 24, 2020),
https://crsreports.congress.gov/product/pdf/R/R46540 (last visited Mar. 1, 2021).
6
Id. at 2.
7
Id. at 3.
8
Hunton Andrews Kurth LLP, COVID-19 Complaint Tracker, https://www.huntonak.com/en/covid-19-tracker.html (last
visited Mar. 1, 2021).
BILL: CS/SB 72 Page 5
Legislative and Executive Responses of Other States
At least 17 states have enacted legislation to provide civil liability immunity to individuals and
entities from COVID-19-related claims.9 At least two additional states have issued executive
orders to provide liability limitations.10 These laws do not reflect separate healthcare liability
protections. To date, no similar federal legislation has been enacted, although S. 4317 was
introduced in the Senate on July 27, 2020, and referred to committee.11
In general terms, the legislation enacted by other states provides protections if a defendant acts in
good faith to substantially comply with the applicable COVID-19 standards. The immunity does
not apply if the defendant’s acts or omissions constitute gross negligence or willful or wanton
misconduct.
Torts: Negligence, Elements, and Standards
A tort is a civil legal action to recover damages for a loss, injury, or death due to the conduct of
another. Some have characterized a tort as a civil wrong, other than a claim for breach of
contract, in which a remedy is provided through damages.12 When a plaintiff files a tort claim, he
or she alleges that the defendant’s “negligence” caused the injury. Negligence is defined as the
failure to use reasonable care. It means the care that a reasonably careful person would use under
similar circumstances. According to the Florida Standard Jury Instructions, negligence means
“doing something that a reasonably careful person would not do” in a similar situation or “failing
to do something that a reasonably careful person would do” in a similar situation.13
When a plaintiff seeks to recover damages for a personal injury and alleges that the injury was
caused by the defendant’s negligence, the plaintiff bears the legal burden of proving that the
defendant’s alleged action was a breach of the duty that the defendant owed to the plaintiff.14
Negligence Pleadings
To establish a claim for relief and initiate a negligence lawsuit, a plaintiff must file a
“complaint.” The complaint must state a cause of action and contain: a short and plain statement
establishing the court’s jurisdiction, a short and plain statement of the facts showing why the
plaintiff is entitled to relief, and a demand for judgment for relief that the plaintiff deems himself
9
The states are: Alabama, Georgia, Idaho, Iowa, Kansas, Louisiana, Michigan, Mississippi, Nevada, North Carolina, Ohio,
Oklahoma, Oregon, South Dakota, Tennessee, Utah, and Wyoming. Additional, and sometimes separate, legislation has been
enacted by 17 states that provides medical liability limitations for health care facilities and workers. The database was current
as of December 14, 2020. National Conference of State Legislatures, State Action on Coronavirus (COVID-19),
https://www.ncsl.org/research/health/state-action-on-coronavirus-covid-19.aspx#db (last visited Mar. 1, 2021).
10
Alabama Executive Order signed by Governor Kay Ivey on May 8, 2020, and Arkansas Executive Order 20-33 signed by
Governor Asa Hutchison on June 5, 2020.
11
Safe to Work Act, s. 4317 –116th Cong. (2020) https://www.congress.gov/bill/116th-congress/senate-bill/4317/actions (last
visited Mar. 1, 2021).
12
BLACK’S LAW DICTIONARY (11th ed. 2019).
13
Fla. Std. Jury Instr. Civil 401.3, Negligence.
14
Florida is a comparative negligence jurisdiction as provided in s. 768.81(2), F.S. In lay terms, if a plaintiff and defendant
are both at fault, a plaintiff may still recover damages, but those damages are reduced proportionately by the degree that the
plaintiff’s negligence caused the injury.
BILL: CS/SB 72 Page 6
or herself entitled. The defendant responds with an “answer,” and provides in short and plain
terms the defenses to each claim asserted, admitting or denying the averments in response.15
Under the Florida Rules of Civil Procedure, there is a limited group of allegations that must be
pled with “particularity.” These allegations include allegations of fraud, mistake, and a denial of
performance or occurrence.16
Four Elements of a Negligence Claim
To establish liability, the plaintiff must prove four elements:
Duty – That the defendant owed a duty, or obligation, of care to the plaintiff;
Breach – That the defendant breached that duty by not conforming to the standard required;
Causation – That the breach of the duty was the legal cause of the plaintiff’s injury; and
Damages – That the plaintiff suffered actual harm or loss.
Burden or Standard of Proof
A “burden of proof” is the obligation a party bears to prove a material fact. The “standard of
proof” is the level or degree to which an issue must be proved.17 The pla