Does the new Florida Statute implementing liability protections for COVID-19 related claims completely protect Associations?

14 May 2021

Does the new Florida Statute implementing liability protections for COVID-19 related claims completely protect Associations?  (e.g., Homeowner Associations, Condominium Associations, and Co-Operative Associations)

The simple answer to the question whether the new Florida Statute regarding liability protections for COVID-19 related claims (FS 768.38) completely protects association is…No.  However, this does not mean:

  1. that the Statutes is completely ineffective with respect to protecting Associations;
  2. that it does not afford a significate degree of protections;
  3. that it may not dissuade COVID-19 lawsuits against Associations; and
  4. that it does not create significant hurdles for a claimant to overcome in pursuing COVID-19 claims against Associations.

Please appreciate that the statute does provide significant requirements that must be met with respect to COVID-19 claims against not-for-profit associations.  Moreover, complying with these requirements may, if not should, prove difficult.  In fact, one of the initial and onerous requirements found in Section 3(b) of the Statute provides:

At the same time the complaint is filed, the plaintiff must submit an affidavit signed by a physician actively licensed in this state which attest to the physician’s belief, within a reasonable degree of medical certainty, that the plaintiff’s COVID-19 related damages, injury, or death occurred as a result of the defendant’s acts or omissions.      (emphasis added)

Given the above, please understand that essentially a precursor to even filing a complaint is that a physician must have determined and signed an affidavit, not only that he believes that the COVID-19 injury or death resulted from the defendant’s (e.g., the Association’s) acts or omissions, but that the physician’s belief is predicated on a “reasonable degree of medical certainty”.  As such, an initial question arises whether physicians will be willing to take such a position given all the nuances and uncertainty with COVID-19 and the potential risk and liability they may face from undertaking such a position.  Additionally, if the defendant (e.g., the Association) made a good faith effort to substantially comply with the government issued health standards or guidelines at the time the alleged COVID-19 infection occurred, then in that event, the defendant (e.g., the Association) should be immune from civil liability.  However, it is not entirely clear what a judge or jury would consider to constitute a “good faith effort,” especially in light of what some may view as less than clear “government issued health standards or guidelines”.  Additionally, which government issued health standards or guidelines are the Associations to follow?  By way of example, those issued by the Federal Government, State Government, County Government, City Government, the CDC, etc.  Additionally, is the Association required to follow all of them.  Moreover, how will the Association demonstrate the precise policies and procedures that were in place and followed at the time the plaintiff allegedly contracted COVID-19?  Please remember that policies and procedures change including at various times throughout the pandemic’s progression.

While the above referenced statute does not specifically mention or definitively encompass homeowner associations, condominium associations, co-operative associations, etc., please understand that the reason it should afford significant protections to these entities is predicated on the fact that corporations not-for-profit are protected under the act.  Therefore, to the degree that the Association is a not-for-profit corporation, then in that event, the significant protections afforded by the Statute, ostensibly, should apply.

Despite the above, it is imperative that Associations appreciate that the statute is not cure all and does not completely protect them.  To the contrary, Associations can still be sued to the extent that individual(s) claim they contracted COVID-19 as a result of the Association’s acts or omissions.  As such, arguably, what the statute does is make it significantly more difficult for plaintiffs to file suit against not-for-profit corporations (e.g., Associations), as well as, imposes significant hurdles before plaintiffs can proceed with and/or prevail on any such claims.