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Immune from COVID-19 Liability?

The evolving pandemic response continues to produce a plethora of legal issues. One such issue is whether to provide legal immunity to certain industries from COVID-19 related litigation.  For health care providers and nursing home operators, legal immunity would stop claims resulting from acts taken and medical decisions made when providing care for somebody with confirmed, and presumed positive, cases of COVID-19.  For business owners, legal immunity would halt claims brought by patrons who potentially contracted COVID-19 on their premises and/or from their services.  Industry representatives and trade organizations/associations have already voiced their concerns about COVID-19 related litigation. For example, the Florida Chamber of Commerce, Florida Hospital Association, Associated Industries of Florida, Florida Justice Reform Institute, and a number of other trade associations sent a letter requesting legal immunity from civil and criminal liability resulting from treating COVID-19 patients.

On the federal level, The U.S. Chamber of Commerce, National Association of Manufacturers, and National Federation of Independent Businesses all recently sought legislation to shield their members from liability where certain health and safety guidelines are followed.

State Legislation:

States are already seeking to provide a shield from COVID-19-related claims for certain industries.

  • Utah recently enacted legislation to immunizes business owners “from civil liability for damages or an injury resulting from exposure of an individual to COVID-19” on their premises.
  • New York passed the Emergency Disaster Treatment Protection Act, which provides immunity to hospitals, nursing homes, physicians and nurses, and other health care providers for malpractice and negligence in the treatment of COVID-19 patients.
  • Pennsylvania (by Executive Order), Wisconsin, and North Carolina have also codified laws which provide legal immunity to certain industries.

This trend towards state-level legal immunity for businesses, the healthcare industry, and the nursing home industry is growing and many other States have indicated a willingness to entertain such legislation in the short term. For example, while nothing has been filed yet in Florida, State Senator Jeff Brandes has already indicated that he would be introducing legislation which will provide a safe harbor for businesses which follow recommended guidelines.

Federal Legislation:

Congress has also been contemplating legal immunity from COVID-19 related litigation. United States Senator Ben Sasse just recently introduced a bill which seeks to limit liability for actions taken by health care providers to combat COVID-19. While not necessarily legal immunity or a limitation of liability, United States Congressman Andy Biggs has also introduced a bill which would have a similar effect. Congressman Bigg’s bill provides that the act of opening a business (by itself) is not negligent within the context of federal civil actions that include a claim alleging negligence arising from the transmission of COVID-19.

High ranking government officials have also issued their support for legal immunity. Senate Majority Leader Mitch McConnell has indicated that a broad liability shield will be a top priority in the next COVID-19 relief package. When questioned about Senate Majority Leader McConnell’s proposal, President Donald Trump indicated he would support such legislation.

This trend towards granting legal immunity does not seem to be ending anytime soon. As a claimant, it is essential to know if your potential defendant is afforded immunity by state or federal law. Conversely, businesses and other industries covered by immunity laws must be aware of the procedures to be followed in order to keep said immunity.

Business Interruption Coverage Update:

As noted in our previous blog post, COVID-19 business interruption coverage has become a heavily contested issue. Multiple cases have been filed in both state and federal courts throughout the United States. While many have not yet reached a resolution, some courts have determined these cases on their merits. For example, the United States District Court in and for the Southern District of New York recently found that COVID-19 did not cause direct physical loss or physical damage to property. Therefore, there were no business interruption damages. See Social Life Magazine Inc. v. Sentinel Insurance Co. Ltd. (Case no.: 20-cv-3311-VEC, S.D. N.Y.). This decision represents the first significant victory for insurance carriers and will likely be cited in business interruption cases.

If you have any questions about legal immunity legislation and its effect on you, please feel free to contact our attorneys at (305)416-3180.

Business Interruption Coverage in Light of COVID-19

Business Interruption Coverage in Light of COVID-19

As COVID-19 continues to wreak havoc on the lives of the world’s population, substantial insurance issues have arisen in its wake. Most of these issues relate to whether commercial property insurance policies and/or other policies which include coverage for business interruption, extra income, and acts of civil authority cover losses as a result of the forced shutdown of U.S. businesses.

At their heart, policies of insurance are nothing more than contracts. We have already seen countless actions filed and anticipate there will be a flood of challenges from both a declaratory judgment and breach of contract perspective for any denials based upon:

  • the pandemic event exclusions that have been quietly inserted over the last several years after the SARS-CoV virus, as well as;
  • the general business interruption clause requiring the existence of direct physical loss to a business location.

While a strong argument exists that a virus that affects individuals is not a direct physical loss to a business, the virus itself has been studied and proven to survive on surfaces for a prolonged period of time. These arguments underpin the various state and federal actions filed throughout the U.S.

Notable Insurance Coverage Actions

Some of the more notable coverage actions relating to COVID-19 include:

  • El Novillo Restaurant et al. v. Certain Underwriters at Lloyd’s London et al. (Florida).  Filed as a class action by multiple south Florida restaurants and similarity situated parties and relying upon the civil authority provision of the commercial property policies at issue.
  • Cajun Conti, LLC, et al. v. Certain Underwriters at Lloyd’s et al. (Louisiana). Filed by a chain of New Orleans restaurants. Plaintiffs argue that contamination of the insured premises by COVID-19 would be a direct physical loss, which would trigger coverage under the relevant policy.
  • SCGM, Inc. et al. v. Certain Underwriters at Lloyd’s (Texas). Filed by a movie theater chain. The endorsement at issue (purportedly created after the Ebola Pandemic in or around 2014), allegedly covers business losses resulting from a “Pandemic Event.” Plaintiff alleges that the policy in question defines “Pandemic Event” to mean “the announcement by a Public Health Authority that a specific Covered Location is being closed as a result of an Epidemic declared by the [Centers for Disease Control and Prevention] or [World Health Organization].” The endorsement also included named certain covered diseases and variations or mutations of said covered diseases. Plaintiff alleges that one named covered disease is Severe Acute Respiratory Syndrome – associated coronavirus (SARS-CoV) disease, and that COVID-19 is a variation/mutation of said SARS-CoV.

Legislative Remedies for Business Interruption Coverage

In light of these coverage actions, the U.S. federal government has already contemplated a number of legislative remedies, including:

  • The Pandemic Risk Insurance Act of 2020, which has been proposed by the United States House of Committee on Financial Services, seeks to create a federal backstop for pandemic insurance losses in excess of $250,000,000. Based on a discussion draft for the bill, losses in excess of an individual insurer’s deductible would be shared between the U.S. Government and the insurer, with the U.S. Government paying 95%. The program is modeled after the Terrorism Risk Insurance Act, which was enacted in light of the terrorism-related insurance claims following 9/11.
  • The Business Interruption Insurance Coverage Act of 2020, which provides that each insurer that offers or makes available business interruption insurance coverage shall cover losses resulting from any viral pandemic, any forced closure of business or mandatory evacuation, by law or order of any government or governmental officer or agency (including the federal government and state and local governments), or any power shut-off conducted for public safety purposes. Of note, the legislation would nullify any exclusion that excludes losses that are covered by the Act, and preempts any state approval of said exclusions. Carriers have the ability to reinstate these exclusions, but said reinstatement requires either authorization from the insured, or the insured fails to pay any increased premium charged for business interruption coverage (any notice is provided).

If you have any questions about COVID-19 and its effect on your business or operations, please contact our offices at (305)416-3180.

Employer Responsibilities under the Families First Coronavirus Response Act


What are an employer’s responsibilities under the Families First Coronavirus Response Act?

Lydecker Diaz partners Richard Lydecker, Stephanie Pidermann, and Margaret Mevers explain below.

What is the Families First Coronavirus Response Act?

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On March 25, 2020, the Department of Labor (“DOL”) issued guidance to the public to apprise employers of their responsibilities relating to paid sick leave and expanded family and medical leave under the Families First Coronavirus Response Act (“FFCRA”).

During these critical times, the FFCRA seeks to provide employees peace of mind via additional paid sick leave and further security through expanded family and medical leave for reasons specifically related to COVID-19. The below provisions take effect on April 1, 2020, and remain in force through December 31, 2020.

Does the FFCRA apply to my company?

Does the FFCRA apply to my company?

The FFCRA imposes responsibilities upon private sector employers of companies with 500 employees or less and certain public sector employers. Eligible employees must have been employed for at least thirty (30) days before the date of any request for leave relating to COVID-19 under the FFCRA. Employees who are unable to work, including being unable to work from home, may seek paid leave under the FFCRA due to the following reasons:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
  2. The employee has been advised by a health care provider to self-quarantine related to COVID-19.
  3. The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis to confirm whether they have contracted COVID-19.
  4. The employee is caring for an individual subject to an order described in paragraph (1) above or an individual that is in self-quarantine as described in paragraph (2) above.
  5. The employee is caring for their child whose school or place of care is closed or unavailable due to reasons related to COVID-19.
  6. The employee is experiencing any other substantially similar condition specified by the United States Department of Health and Human Services.

What paid-leave entitlements are employers responsible for?

What paid-leave entitlements are employers responsible for?

Employers who receive a request from an eligible employee for a qualifying reason listed above are required to provide up to two (2) weeks of paid sick leave. The amount of pay employers are obligated to provide is dependent on which of the above reasons are cited for the leave. Full-time employees are entitled to up to eighty (80) hours of paid leave, while part-time employees are entitled to two weeks of leave based on the average amount of hours they work in a given week (e.g., if the employee works twenty (20) hours each week, they are entitled to up to forty (40) hours of paid leave over a two-week period). The amount of paid leave that employers are required to expend is based on the higher of either the employee’s regular rate of pay or the applicable State or Federal minimum wage. Employees are entitled to paid leave at the following rates:

  • 100% of their pay for qualifying reasons one (1) through (3) above; limited to $511.00 daily and $5,110.00 overall.
  • 66.6 % of their pay for qualifying reasons four (4) and six (6) above; limited to $200.00 daily and $2,000.00 overall.
  • Employees who cite qualifying reason five (5) above are entitled to up to twelve (12) weeks of paid sick leave and expanded family and medical leave paid at 66.6% of their pay; limited to limited to $200.00 daily and $2,000.00 overall.

**It should be noted, small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern**

What penalties is my company subject to for non-compliance with the FFCRA?

What penalties is my company subject to for non-compliance with the FFCRA?

Although no specific penalties have been outlined to date, the DOL’s Wage and Hour Division (“WHD”) has prohibited employers from discharging, disciplining, or otherwise discriminating against any employee who lawfully takes paid sick leave or expanded family and medical leave under the FFCRA. The WHD will impose penalties against employers for violations of the FFCRA. Additionally, employers who discriminate against their employees for the above-referenced reasons, or retaliate against their employees for choosing to avail themselves to their rights under the FFCRA, would potentially expose themselves to litigation and similar damages that would otherwise be available pursuant to the Family Medical Leave Act.

What steps should my company take next?

What steps should my company take next?

Given the swift nature of COVID-19 and the rapid response that the United States government is effectuating daily, it is important to equip your company with experienced counsel to assist you in navigating through these tumultuous times.

Lydecker Diaz’s labor and employment group has decades of combined legal experience in litigation and transactional matters. Time and time again, Lydecker Diaz has prevailed in employment litigation matters through trial and has counseled employers in labor matters to provide economic and efficient solutions to prevent litigation from ensuing and ensure compliance with State and Federal regulations.

For more information, contact our professionals below:

Richard Lydecker, Senior Partner
rl@lydeckerdiaz.com
305-416-3180

Stephanie Pidermann, Partner 
sp@lydeckderdiaz.com
305-416-3180

Margaret Mevers, Partner
mhm@lydeckerdiaz.com
305-416-3180

miami attorney malpractice attorneys

Florida Finally Ends the Daubert VS. Frye Debate on Experts

Florida’s newly re-constituted Supreme Court ended years of legislative and judicial maneuvering when it suddenly adopted the Daubert standard for admission of expert testimony.

Based on the Court’s adoption of the Daubert standard, parties offering expert testimony will have to meet stricter standards for admission of testimony than had been historically required under Florida law, which previously allowed for experts to be qualified essentially on experience alone under the Frye standard.  Now, parties will have to establish that an expert’s opinions are based on sufficient facts/data and application of reliable principles/methodologies to such facts/data.

The practical effect of this change has not yet been established through Florida case law, but it is likely to result in courts limiting the testimony of experts attempting to rely solely on experience as the basis for their opinions.  It is also likely to change the way litigants approach preparation of their experts’ opinions. (READ MORE)

On May 23, 2019, without case or controversy, the Florida Supreme Court formally adopted the Daubert standard.  This ended a six-year battle between lawyers, the legislature and judiciary over the applicable standard for expert testimony in Florida.

Florida had applied the Frye standard for expert testimony, typically a more plaintiff-friendly standard, until 2013. The Florida Legislature then passed legislation adopting the Daubert standard, typically a more defense-friendly standard, which became Florida Statute Section 90.702.  This sparked a debate among lawyers and the judiciary as to whether the statute was constitutional as it potentially superseded the Legislature’s authority to impact procedural issues in the court system.  In 2017, the Florida Supreme Court elected not to adopt the Daubert standard as procedural rule and left the determination of the constitutionality of the Daubert statute for a later case or controversy.

The first case that reached the Florida Supreme Court on the issue was DeLisle v. Crane Co., a tobacco case where the defendants challenged an $8 million judgment after a trial court denied a Daubert challenge to the plaintiff’s experts.  In October 2018, the Florida Supreme Court held that the Daubert standard did not apply and that admissibility of expert testimony in Florida was still governed by the Frye standard.  In its opinion, the Court stated that the Court has been constitutionally provided its exclusive rulemaking authority for judicial procedure and the Florida legislature has the authority to create substantive law. The Court found that since the standard for admitting expert opinions was procedural in nature, the 2013 legislative adoption of the Daubert standard was a constitutional encroachment on the Court’s rule making authority.

About 3 months of the DeLisle opinion, the Florida Supreme Court was re-constituted with 3 new justices appointed by Florida’s new governor.  About 7 months after the DeLisle opinion, the newly constituted Florida Supreme Court took the somewhat extraordinary step of adopting the Daubert standard as a procedural matter without any case or controversy before it.

Following this decision, there has been much speculation about the motivations of the Florida Supreme Court and whether this sudden decision was meant to serve as a signal of the Court’s inclination on other issues.  In another new development, 2 of the 3 newly appointed judges that led to the sudden adoption of the Daubert standard have just been appointed to the United States Eleventh Judicial Circuit of Appeals.  The impact of those appointments on the 11th Circuit’s ongoing review of issues concerning construction claims will be something to monitor moving forward.  In the interim, the same governor that appointed the 3 judges who adopted Daubert will be charged with appointing their replacements on the Florida Supreme Court.  This dynamic of the continually changing Florida Supreme Court will no doubt have other impacts on construction claims.

Florida Continues to Evolve the Statute of Repose

 

The trend of Florida courts eroding the statute of repose for construction and design claims is being countered by a statutory amendment that makes the date of a pre-suit notice irrelevant to the 10-year time bar for defect claims.  This is the third time in 3 years that legislation has bolstered the statute of repose in response to judicial rulings.  However, the Florida Supreme Court is currently considering whether this statutory amendment has any effect due to a potential conflict with another statute.

In the latest judicial limitation to the statute of repose, a Florida appellate Court held in 2018 that the service of a Chapter 558 notice of claim was enough to satisfy the statute of repose even when a lawsuit is not filed within the repose period.  The Legislature responded by introducing Florida Statute Section 558.004(1)(d) that became effective on July 1, 2019 and states that Chapter 558 notices of claim “shall not toll any statute of repose” applicable to construction and design claims.

Florida’s statute of repose for construction and design claims has been under attack in recent years in Florida courts.  The two areas at issue have been: 1) the definition of “completion of contract” for purposes of triggering the running of the statute of repose; and 2) the act required to initiate an action within the statute of repose period. (READ MORE)

The first issue has already gone through the cycle of judicial erosion and legislative bolstering.  In 2015, a Florida appellate court held that “completion of contract” for purposes of starting the running of the statue of repose means the “date on which payment was made.”  See Cypress Fairway Condo. v. Bergeron Const. Co. Inc., 164 So. 3d 706, 707 (Fla. 5th DCA 2015).  Given that construction projects often include payment disputes after the conclusion of work, this ruling had the potential effect of delaying the statute of repose from running for several years.  In 2017, the Legislature amended the statute of repose to define “completion of construction” as the “date that final payment for such services becomes due without regard to the date final payment is made.”  See Fla. Stat. 95.11(3)(c).  In 2018, the Legislature eliminated an unresolved issue following the 2017 amendment by clarifying that “completion of contract” does not include warranty or post certificate of occupancy repair work. See Id.

The latest issue that is now the subject of new legislation is the act required to initiate an action before the expiration of the statute of repose.  In September 2018, Florida’s Fourth District Court of Appeal held in Gindel v. Centex Homes, et al., that compliance with the pre-suit requirements of Chapter 558 constitutes an action for purposes of the 10-year construction defect statute of repose. In Gindel, the plaintiff homeowners took possession of their townhomes on March 31, 2004 and filed suit on May 2, 2014.  The defendants argued that the statute of repose began to run on March 31, 2004 and had run prior to the filing of the plaintiffs’ lawsuit.  However, the plaintiffs argued that their Chapter 558 notice of claim served on February 6, 2014, was within the 10-year repose period and constituted an action for purposes of the statute of repose.  The trial court and appellate court agreed with the plaintiffs that a Chapter 558 notice of claim served as a statutory pre-requisite to a lawsuit constituted an “action” and brought the plaintiffs’ claims within the statute of repose.

This decision provided no favor to Florida’s construction industry. It could be used for the proposition that a property owner can eliminate the statute of repose by serving a Chapter 558 notice any time within 10 years after the completion of construction.  However, the Legislature quickly responded in amending Section 558.004(1) of the Florida Statutes to expressly state that a Chapter 558 notice of claim does not toll the statute of repose.  The bill that led to the statutory amendment expressly addressed the implication of Gindel v. Centex Homes as the basis for the amendment.

While this latest legislation might end the dispute about the impact of Chapter 558 notices served after the effective date of the statutory amendment on July 1, 2019, there remains an unresolved question about the impact of Chapter 558 notices served prior to that date.  A two-prong test exists to determine whether newly enacted statutes apply retroactively: 1) whether the legislation clearly expresses an intent that it should be applied retroactively; and 2) whether retroactive application would violate any constitutional principles.  See Metro. Dade Cty. v. Chase Fed. Hous. Corp., 737 So. 2d 494, 499 (Fla. 1999). As it relates to the second prong, it has been held that procedural and remedial measures are presumed to apply retroactively and that substantive measures do not apply retroactively. See Basel v. McFarland & Sons, Inc., 815 So. 2d 687, 692 (Fla. 5th DCA 2002).  This issue has not been tested in any published opinion, but the new statute does not specifically state it is retroactive in nature, which raises the likelihood that it will not be applied retroactively.  In addition, a statute impacting whether a party has a right to bring a lawsuit is arguably substantive in nature, which also raises the likelihood this statute will not be applied retroactively.

Importantly, the issue of whether this new statute has any impact moving forward remains the subject of briefing at the Florida Supreme Court in the Gindel case.  After the approval of the new statute, Gindel filed a brief arguing that the statutory amendment rendered Centex’s appeal moot.  Centex responded with a brief stating that the new statute does not remedy the issue caused by the Gindel opinion because the Fourth District Court of Appeals held that service of the pre-suit notice of claim was an action as that term is used in Florida Statutes Section 95.11(3)(c).  As a result, Centex asserted that the statement in the new Section 558.004(1)(d) that a Chapter 558 notice of claim does not toll the statute of repose is essentially meaningless because it does not address the definition of “action” under Section 95.11(3)(c).  The Florida Supreme Court has not yet rendered any decision on this issue.

Based on these circumstances, it seems likely Florida’s Statute of Repose for construction and design claims will continue to evolve through legislation and decisional case law.  Until the issue is clarified further through the legislature and/or judiciary, it is likely that plaintiffs and defendants will take opposing views on whether a Chapter 558 notice can constitute an action for purposes of the statute of repose.

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