Article Courtesy of The Daily Business Review

By 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.