What is the COVID shield law, and how does it affect you?

South Florida Advocate

"Aggressive fighting for the right is the noblest sport the world affords." Theodore Roosevelt

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What is the COVID shield law, and how does it affect you?

Florida leads the nation in the deaths of nursing home residents and staff due to COVID-19. And the state has one of the lowest rates of vaccination among nursing home staff in the country, according to the Tampa Bay Times.

Yet now, seniors who succumb to COVID because their residential facility failed to maintain safe protocols, will virtually be unable to sue for damages.

That's the effect of the COVID-19 Shield Law, Florida Statute 768.38, said to among the toughest of its kind among the 33 or so states with similar laws.

The law covers not only nursing homes, but businesses, schools, government agencies, hospitals and religious facilities as well. Among other things:

To sue, you must have an affidavit from a licensed Florida physician swearing that the plaintiff's COVID-19 resulted from the defendant's acts or omissions;

Even then, the defendant will not be liable if the defendant made a "good faith effort to substantially comply with standards and guidelines at the time...."

The defendant will not be liable unless its actions constituted "gross negligence" proven by "clear and convincing evidence."

There's a 1 year Statute of Limitations, rather than the 4-year statute of limitations for negligence cases, and 2-year statute of limitations for medical malpractice.

The net effect is that the bar has been set so high, it is nearly impossible to prove a case. Lawyers won't be bringing cases that they might otherwise have accepted. Posing the question: Do we really want to spare liability, and allow for lax standards, where the need for due care is greatest? And a new surge is on the rise?

Structural inspections for every condo in Florida?

MIAMI SURFSIDE COLLAPSE pt1 - sequence simulation

Every condo three stories or taller should undergo a structural inspection in no later than three years, and structural re-inspection every five years thereafter. That's one recommendation from a Florida Bar Task Force studying the Champlain Tower tragedy. Other reforms being proposed:

Condos should be required to have inspection, maintenance and replacement protocols covering roof, structure, fireproofing, elevators, plumbing, electrical etc..

Condos will be required to obtain a report from an engineer showing the remaining useful life of the roof, structure, fire proofing, elevators, plumbing, electrical, etc..

Condos should be required to maintain reserves in a sum at least equal to or greater than 50% of the cost of replacing each component based on the estimated remaining life of the roof, structure, fire proofing, etc..

Limiting or restricting condo associations' right to waive reserves

Giving unit owners the right to sue the condo association for failure to follow the maintenance, repair or replacement standards.

Right now, there is nothing in the condo statutes that specifically requires condo associations to have maintenance and inspection protocols. This leaves condo boards free to ignore needed repairs. Giving owners a specific right to sue to require adherence to established standards could go far in making substandard condos shape up.

The Florida Legislature will take these proposals up in its next regular session beginning March 3, 2022.

On the road: the most important insurance coverage you need

So you think you're "fully insured," right? Think again. With so many crazy drivers out there, remember that Florida doesn't require bodily injury coverage, and as a result, there are millions of drivers out there who are uninsured if they injure you.

Uninsured motorist coverage provides coverage in your favor if, God forbid, you're injured by a driver who has no bodily injury coverage, and is therefore, uninsured for the harm he or she has caused.

Under those circumstances, if you have uninsured motorist coverage -- "UM" for short--you can proceed against your own insurance company as if you were proceeding against the at fault driver.

This coverage-- uninsured motorist or underinsured motorist coverage--is so important that you have to sign not to buy it. Insurance companies must offer it to you if, and only if you purchase bodily injury coverage, which covers you if you accidentally injure someone else.

I hate telling an injured client that I can't help her because there's no insurance coverage. So get UM and hope you'll never need it. But if you do, you'll be glad it's there.

Our Latest: Launching a new website

Finally, after many years in the making, we have launched our new website. Kudos and thanks to Mike and Pete at Toobular for helping to make it happen. Check it out here, and let me know what you think.

Finally...

Make it a safe and peaceful holiday. And if you need me, call me. 24/7

Next time:

How to check your doctor's past malpractice claims

About Mark:

Mark Wolin, former award-winning television news reporter turned trial lawyer, is now his 35th year of practice. Admitted before the U.S. Supreme Court, and the courts of Florida and Illinois, he was legal editor of Channel Seven, WSVN Television, Miami. Mark is bilingual in Spanish and English.