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LAW ALERT
MAY 15, 2020
History has proven one thing - necessity is the mother of invention. In our legal world that potentially means creative judicial interpretations of coverages, liabilities and causation for COVID related claims. The COVID-19 team defends businesses and insurers facing lawsuits from COVID related exposures. The claims may include failures to safeguard premises and work zones, professional negligence, errors and omissions, agents, business interruption, business operations, injuries, coverage and workers’ compensation claims arising from COVID-19.  Our team is able to assist and provide claims handling guidance and services in each specialty area:

Coverage isn’t always black and white. Historical case law has shown us that sometimes necessity is the mother of creative judicial interpretations of coverage. The COVID coverage team focuses on developing case law surrounding the ISO form Exclusion for Loss Due to Virus exclusion, for loss to business income and business interruption, as well as Direct Physical Loss evaluations on manuscript policies. Led by Orlando Partner Vicki Lambert, Esq., our team is equipped to provide any level of service, from a coverage analysis, a reservation of rights letter, claim handling guidance or filing an appropriate judicial action or response to the Department of Insurance. For assistance, contact attorneys  Vicki Lambert (Direct:407.540.9174), Laurette Balinsky , and Lauren Wages .

A variety of new claims are emerging as a result of shutdown orders and mass layoffs. Our team can guide you through claims that involve allegations of retaliatory or unlawful discharge both under existing Federal law and COVID related bills, such as the Families First Coronavirus Response Act.  For assistance, contact attorney Valerie Edwards .

The team has extensive experience defending a diverse group of business professionals and health care providers in suits alleging errors and omissions, malpractice and professional negligence who are facing liability and potential licensing risks. Led by Miami Partner Stuart Cohen, Esq., the team has represented Insurer’s and Insurance agents and professionals for business interruption claims and matters involving business operating policies (“BOP”). The team can also assist Insurance agents, brokers, and underwriters with allegations of failure to warn customers that policies did not include Pandemic or “Government Shutdown” coverage and E&O claims alleging adequate coverage for policyholders was not obtained. The team can provide agents with guidance in safeguarding the professional, documenting files, and advising their E&O insurers. For assistance, contact attorneys  Stuart Cohen , William Saintilus , Valerie Edwards, Matthew Krause , and Vicki Lambert .

The team can advise on the legal implications of outbreaks in Long Term Care Facilities and exposures arising from standard of care violations. Our team can also assist on best practices to reduce exposure to these claims. For assistance, contact attorneys   Michael Schwartz , Dale Paleschic , John Bringardner, and Shanttel Grullon .

The construction delay team will analyze and provide counsel and defense on these claims asserting Force Majeure and other defenses available to our clients. The team also provides a detailed forensic capability on these claims to dispute loss of revenues or profits in a COVID era. For assistance, contact attorney Valerie Edwards .

T he team is focusing on two emerging issues in this area; first, preparation for the return to work for millions that have been working remotely; and second, the emergence of compensable claims that seek compensation for alleged workplace exposures. Our team specializes in handling F.S. 440.151 occupational diseases and is led by Miami Partner Reinaldo Alvarez, Esq. Though some workers may be eligible for workers’ compensation, most will not. Nonetheless, many affected employees will try to relate the exposure to work and trigger compensability. We will help determine which employees are eligible and which are not and if needed, litigate the case to trial. We can help Employer/Carriers navigate the return to work and claim issues they face.  For assistance, please contact Workers' Compensation Partner Reinaldo (Rey) Alvarez .

Liability, Causation and Damages claims relating to COVID exposures and shudder orders will require a sophisticated strategy to relate and verify such claims. As for causation, the incubation period for COVID-19 is believed to be in the 5-7 day average range, known as the pre-symptomatic period. This is the time infected persons can be contagious. Additionally, there can by asymptomatic transmissions of the virus by infected persons that exhibit no outward signs of infection. As such, causally connecting a transmission to any particular activity will be the challenge and key strategies defending these claims. As for shudder order damages, our forensic accounting team is adept at analyzing the pre- and post-COVID interruptions.  For assistance, contact Daniel Santaniello .
Will Florida Workers That Contract Coronavirus Be Eligible To Get Workers’ Compensation Benefits? by Rey Alvarez, Esq., and Edgardo Ferreyra, Esq.
As with most legal issues, it depends. Although some workers might be eligible, most will not. This, however, will not stop the expected influx of C oronavirus Workers’ Compensation cases. In order for a Coronavirus claim to be compensable it would need to meet the definition of an occupational disease under section 440.151, Florida Statutes. Essentially, compensability will come down to who is diagnosed with the virus and how the exposure came about.

On March 30, 2020, Chief Financial Officer Jimmy Patronis directed Florida to provide workers' comp coverage for public servants on the front line of Coronavirus. The occupations under this directive include: first responders; law enforcement officers, firefighters, emergency medical technicians, or paramedics; corrections officers; state employees working in the healthcare field whose duties require contact with persons as they are being tested for Coronavirus or otherwise known to be infected with Coronavirus; child safety investigators; and members of the Florida National Guard.

The March 30, 2020, press release ties Coronavirus with Section 112.1815, Florida Statutes (a/k/a the Heart/Lung bill). Basically, the workers’ compensation cases of the state employees in the positions listed above who have tested positive for Coronavirus are accepted as compensable, unless the state of Florida can show, by a preponderance of the evidence, that a frontline state employee contracted Coronavirus outside his or her scope of employment as a state employee. 


The state of Florida also issued an informational memorandum on April 6, 2020, advising of some of the occupations that are entitled to Workers’ Compensation benefits should they contract Coronavirus. See https://www.floir.com/siteDocuments/OIR-20-05M.pdf

The Florida Office of Insurance Regulation Informational Memorandum provides guidance to all insurers and entities (regulated entities) who are “authorized to write Workers’ Compensation insurance.” The Informational Memorandum was a reminder, advising regulated entities that section 440.09, Florida Statutes, requires an employer to provide Workers’ Compensation coverage if the employee suffers a compensable injury arising out of work performed in the course and scope of employment. The memorandum requires that “[f]irst responders, health care workers, and others that contract Coronavirus due to work-related exposure would be eligible for Workers’ Compensation benefits” under F.S. 440.151.

Needless to say, first responders and health care workers should get Workers’ Compensation coverage if diagnosed with Coronavirus due to a work-related exposure. That part is simple.

The Informational Memorandum further stated that “others that contract Coronavirus due to work-related exposure would be eligible for workers’ compensation benefits under Florida law. See § 440.151, Fla Stat.” Therefore, to be covered under Workers’ Compensation, Coronavirus would need to fall under section 440.151 of the Florida Workers’ Compensation statute.

The burden is on the injured worker to prove that the Coronavirus is work related. There is a four-prong test that needs to be passed in order to get workers’ compensation benefits for an occupational disease:

  1. The disease must be actually caused by employment conditions that are characteristic of and peculiar to a  particular occupation;
  2. The disease must be actually contracted during employment in the particular occupation;
  3. The occupation must present a particular hazard of the disease occurring so as to distinguish that occupation from usual occupations, or the incidence of the disease must be higher in the occupation than in usual occupations; and
  4. If the disease is an ordinary disease of life, the incidence of such disease must be substantially higher in the particular occupation than in the general public.

This test is not easy to pass. Standing alone, contracting Coronavirus from a fellow employee or a customer is not enough. It must also be shown that it was more than likely contracted while on the job. The last two prongs are the most difficult to meet. Would a store clerk at a local Publix get workers’ compensation benefits because they could not wear a mask? Would a meat packaging person get workers’ compensation benefits? Would an attendant at a senior living facility get workers’ compensation benefits? More than likely, the answer is no.

The severity and duration of recovery for Coronavirus varies with each patient, but generally individuals recover after two to three weeks. The cost of a Coronavirus case also varies. The benefits will include coverage for a portion of lost wages, medical costs, and, unfortunately, sometimes may include death benefits. Will it have future repercussions on an individual’s health down the line? Will it lead to other issues, concerns or conditions? No one really knows.

Whether to accept or not accept a Coronavirus case should be analyzed with the four prong test set forth above. Should you need any assistance on Coronavirus related cases or any other Workers’ compensation matter, please contact Rey Alvarez at 305-377-8900 or email RA lvarez@InsuranceDefense.net . 
ABOUT REY ALVAREZ
Rey (Reinaldo) Alvarez, Esq. i s the Managing Partner for the Workers’ Compensation and Medicare Compliance Division of Luks, Santaniello. He is also co-chair of the COVID-19 Practice. Martindale-Hubbell and his peers have rated him AV® Preeminent™. Rey serves as the WC Committee Chair for the Florida Defense Lawyers Association (FDLA) and is a columnist for the Claims and Litigation Management Alliance (CLM) Workers' Compensation magazine. He has over 17 years of WC experience defending employers, insurance carriers, tpa's, government entities and self-insureds throughout Florida. He also has more than a decade of experience in preparing Medicare Cost Projections, Medicare Set-Asides and Conditional Lien negotiations with CMS. Rey has a Bachelor of Arts degree from Barry University and earned his Juris Doctorate from the University of Miami. He is admitted in Florida (2003).
ABOUT EDGARDO FERREYRA
Edgardo Ferreyra, Esq . is a member of the firm's Appellate and Trial Support Division. Martindale-Hubbell and his peers have also rated him AV® Preeminent™. Edgardo litigates at the appellate level throughout Florida, practicing regularly before the Supreme Court of Florida, all five Florida District Courts of Appeal, as well as Circuit Court’s sitting in their appellate capacity. He also appears regularly in Florida's Southern, Middle, and Northern Federal District Courts and the Eleventh Circuit Court of Appeals. Edgardo also provides trial support in complex and high exposure matters in the area of products liability, medical products, general negligence, personal injury, automobile liability and premises liability, bad faith and insurance coverage. Ed has a Bachelor of Arts degree from Florida International University and earned his Juris Doctorate from Nova Southeastern University. He is admitted in Florida (2013) and to the United States District Court, Southern, Middle and Northern Districts of Florida. He is also admitted to the United States Court of Appeals, Eleventh Circuit.
Our verdicts tell the story.™  Luks, Santaniello, Petrillo & Cohen is a Florida Corporate & Insurance Defense Litigation firm. The Law Firm is Peer Review Rated by Martindale-Hubbell. Our mission is to provide our clients with legal services that help them manage risk and reduce exposure. Our goal is to align with technological innovation in claims portfolio management, working efficiently and effectively in garnering risk transfer opportunities and mitigating legal spend. Luks, Santaniello is a member of The Gavel.net LLC. nationwide claims defense network.

Luks, Santaniello defends businesses and insurers in Liability, most insurance lines and Workers’ Compensation matters. The firm has a diversified team of over 100+ litigators across ten offices in Miami, Boca Raton, Fort Lauderdale, Stuart, Fort Myers, Orlando, Tampa, Jacksonville, Tallahassee and Pensacola. Members have tried over 200 cases in Florida State and Federal Courts. 

Managing Partners Dan Santaniello and Anthony Petrillo (Tampa) are Florida Bar Board Certified Civil Trial Experts. Partners Christopher Burrows and Patrick Hinchey are Florida Bar Board Certified Construction Law Experts. The firm has a full-service Appellate team in South, Central and Northern Florida to assist with summary judgments, motions in limine, discovery objectives, trial strategy and post-trial positions. The Daily Business Review selected Luks, Santaniello as finalists for the Most Effective Lawyers for its innovation in filing a Declaratory Judgment Action in a multiple Wrongful Death claim. 

These times present extraordinary challenges to businesses and their insurers. Let us help even the playing field .
Contact:
T: 888.372.8711 
E: DJS@insurancedefense.net
T: 954.847.2936
E: MDonnelly@insurancedefense.net
This Law Alert is for informational purposes only and does not constitute legal advice. Reviewing this information does not create an attorney-client relationship. Sending an e-mail to Luks, Santaniello et al does not establish an attorney-client relationship unless the firm has in fact acknowledged and agreed to the same.
 
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