Earlier this week, Florida Governor Ron DeSantis signed S.B. 72 into law, which grants some civil immunity to business entities against plaintiffs bringing COVID-19 injury and wrongful death claims. A review of the impact S.B. 72 has on business entities and civil claims is provided by my colleague and litigation attorney Heath Gelman here. The bill applies to “certain business entities,” in recognition of the public interest as a whole served by
providing relief to these business … so that they may remain viable and continue to contribute to this state.”
Among other types of businesses included in the definition of “business entities” are corporations not-for-profit under Sec. 617.01401, Fla. Stat. Based on a plain reading of the law, this would include condominium and homeowners’ associations, although it remains to be seen how the application of the law will be interpreted as it percolates in Florida courts.
Sigh of relief
Assuming its application to community associations as not-for-profits corporations will remain, the bill provides some peace of mind for Florida communities that have grappled with an array of liability questions pertaining to COVID-19 claims, such as:
- When should common amenities be closed?
- How to safely reopen common amenities?
- What rules or waivers should be implemented to monitor member and guest use of facilities for contact tracing purposes?
- What can or should an association do to minimize its liability in the event a plaintiff contracts COVID-19 and alleges it was contracted through the action or inaction of the Association?
Condo and HOA COVID-19 lawsuits in Florida
The civil immunity law does not apply to lawsuits already filed. Luckily, although community associations, as with many businesses throughout the state, have been bracing themselves for the potential onslaught of lawsuits, there have been few lawsuits initiated for COVID-19 related injuries.
There has been at least one case filed against a Florida community association relating to COVID-19 (Palm Beach County Case No. 50-2020-CA-014078). However, the allegations in that lawsuit filed by the plaintiff couple are not for injuries as a result of contracting COVID-19, but rather for alleged injuries incurred by the Association’s unlawful detention and false imprisonment of the plaintiffs after they informed the Association that they had tested positive for COVID-19 and were restricted from using common areas. The Association’s pending Motion to Dismiss the lawsuit will be heard on May 4, 2021.
Proceed with caution
Under the new law, business entities – including community associations – still face liability for gross negligence. Community associations should continue to exercise caution and diligence. Reach out to legal counsel if your community has questions regarding how COVID-19 can and should continue to affect how your community’s operations and how the association can minimize its liability. I may be reached at email@example.com or by phone at 239-344-1184.