(l-r) Andrew Gordon, a partner at Hinshaw & Culbertson in Fort Lauderdale; Harsh Arora, a partner at Kelley Kronenberg in Fort Lauderdale; Dan Dolan, a partner at Dolan Dobrinsky Rosenblum Bluestein in Miami; and Barry Richard, a shareholder at Greenberg Traurig in Tallahassee. Courtesy photos
Businesses seeking to shield themselves from potential COVID-19 lawsuits brought by their customers or employees may have friends in the Florida Legislature during its 2021 legislative season.
And Harsh Arora, a partner with Kelley Kronenberg in Fort Lauderdale who has increasingly defended businesses during the coronavirus pandemic through preventive counseling, said the legislature has the right intent.
However, Arora claimed state lawmakers are missing the point by not providing a detailed roadmap for counsel representing small and midsize businesses who may be exposed to potential civil liability.
"Defense lawyers have to remain worried about consistently doing the preventive counseling for their clients and being careful that their clients have proper record keeping," Arora said. "If this legislation becomes law," businesses must have sufficient documentation to provide the court to quickly dismiss the case.
The legislation Arora is referring to is House Bill 7, a priority for some Florida lawmakers, addressing civil liability for damages related to the coronavirus. The bill provides the civil action requirements based on COVID-19 related claims, including the applicable statute of limitations and retroactive applicability, and specifies that the plaintiff has the burden of proof in this type of action.
Arora said his concern from a business standpoint is what businesses have to do in good faith and what is unclear. While a plaintiff has a higher bar to establish gross negligence, it is not certain that it will be enough to avoid litigation.
"The litigation is most likely filed to get some sort of settlement," Arora said. "When you file, you are incurring all sorts of expenses, attorney fees, and costs. You're already thinking: 'How can we settle this thing?'"
Now, litigators in Florida are keeping a close eye on HB 7, as the new Biden Administration has altered how the federal government is working with states to respond to the coronavirus.
Read the Florida House bill:
The goal, said Andrew Gordon, a partner at Hinshaw & Culbertson in Fort Lauderdale, was to provide businesses in Florida clarity and confidence as they adjust to the demands that this year will press on them.
"It is something that businesses in South Florida would benefit from across the board," Gordon said. "This piece of legislation is meant to avoid frivolous lawsuits where customers and their employees point their fingers at the business because they have the deep pockets and the insurance companies."
Dan Dolan, a partner at Dolan Dobrinsky Rosenblum Bluestein in Miami, said the premise of this legislation is absurd. He said the state law would shield all or most businesses from COVID-19 related liability lawsuits.
"The idea that any person, industry or business would have complete liability immunity through virtue of legislative fiat is just contrary to the basics of our justice system," Dolan said. "If we're all in this together, that a particularly well-funded industry would get a bulletproof vest in the future is just not American."
Barry Richard, a shareholder at Greenberg Traurig in Tallahassee, said between plaintiffs lawyers and defense attorneys, there is always a familiar split in these types of cases, regardless of the issue at hand.
"Plaintiffs lawyers are not going to like it because they don't like any limitations on being able to file actions for damages," Richard said. "The defense attorneys will like it because they like anything that limits the abilities to file actions for damages."
Michael A. Mora
Michael is the national cryptocurrency litigation reporter for Law.com, as well as an editor for ALM Global. He earned his master's degree from the Columbia University Graduate School of Journalism and is based in St. Petersburg, Florida. Reach him at [email protected].