Luks, Santaniello Opens 11th Office in Key West, Florida. |
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Key West: Florida based Luks, Santaniello, Petrillo & Cohen is pleased to announce the opening of its11th office in Key West led by Managing Partner Jessalea Shettle, Esq. The new office is located in the heart of Old Town on 1101 Simonton Street and a 1/2 mile from the Monroe County Courthouse. The Key West office provides the firm with greater presence across the entire Florida Keys and Monroe County. Accessible street parking is available. The office is just 11 minutes from the Key West International Airport.
Jessalea Shettle, Esq., has dedicated her practice to insurance defense litigation since admission to The Florida Bar. She handles complex bodily injury claims including premises liability, general liability, medical malpractice and nursing home claims. Her practice also includes litigating bad faith, wrongful death, automobile and trucking negligence cases, homeowner association and property claims. She has assisted in multiple trials resulting in favorable results for her clients.
Jessalea earned her Bachelor of Science degree from Florida State University, summa cum laude. She was awarded her Juris Doctor, cum laude from Florida State University. She is admitted in Florida (2015) and to the United States District Court for the Middle District of Florida.
With 11 offices from Key West to Pensacola and 120+ insurance defense litigation attorneys, the firm has the reach and depth to assist clients with matters statewide in Florida.
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Luks, Santaniello, Petrillo & Cohen
1101 Simonton Street - 1st Floor
Key West, FL 33040
T: (305) 741-7735 | F: (305) 741-7736
E: JShettle@insurancedefense.net
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LAW ALERT: FLORIDA ENACTS NEW LAW TO LIMIT CIVIL LIABILITY FOR COVID-19 CASES by Angelise M. Petrillo, Esq., Daniel Weinger, Esq., and Daniel J. Santaniello, Esq.
April 6, 2021
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On March 29, 2021, Governor Ron DeSantis signed S.B. 72 into law, which enacts Sections 768.38 and 768.381, Florida Statutes. Section 768.38 provides liability protections for claims against individuals, businesses, and other entities, and section 768.381 provides liability protections for claims against health care providers.
Section 768.38 All Businesses Limitations of Liability. The legislative purpose of enacting section 768.38 is expressly stated in the statute, which provides that “the Legislature intends for certain business entities, educational institutions, governmental entities, and religious institutions to enjoy heightened legal protections against liability as a result of the COVID-19 pandemic.” The statute goes on to define a COVID-19 related claim as a civil liability claim for damages, injury, or death against a person, including a natural person, a business entity, an educational institution, a governmental entity, or a religious institution, which arises from or is related to COVID-19.
Pleading Requirements: In order to accomplish the Legislature’s stated purpose of implementing heightened protections against liability, the statute requires a plaintiff to overcome several hurdles from the outset. First, all claims that arise from or are related to COVID-19 must be pled with particularity, a higher standard than the short and plain statement of facts required in most causes of action. Although the statute does not precisely define what constitutes particularity, in other areas of the law with such a heightened pleading requirement, such as claims for fraud, in order to satisfy the particularity requirement a plaintiff must allege the time, place, and manner of the tort. In this way, the pleading puts the defendant on notice of the specific wrong of which they are accused and the causal connection between that alleged wrong and the plaintiff’s injuries (in this case contracting COVID-19). It stands to reason that plaintiffs in COVID-19 related cases will be subject to a similar threshold.
Affidavit Requirements: An additional hurdle in claims arising from or relating to COVID-19 is that at the time of filing the complaint, the plaintiff must submit an affidavit signed by a Florida licensed physician attesting 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. Failure to comply with either of these requirements (pleading with particularity and submission of an affidavit) will result in the court dismissing the claim without prejudice.
Evidentiary Determination of Good Faith Effort to Comply with Government Standards: Once the court finds that the plaintiff complied with these initial pleading requirements, the statute provides for an additional step before the case moves forward. The court must determine, as a matter of law, whether the defendant made a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance at the time the cause of action accrued. Notably, the burden of proof is on the plaintiff to demonstrate that the defendant did not make such a good faith effort. During this stage of the proceeding, admissible evidence is limited to evidence tending to demonstrate whether the defendant made a good faith effort to substantially comply with government-issued health standards in effect on the date of loss. Unfortunately, the statute provides no guidance as to the form of admissible evidence, such as whether affidavits alone are sufficient, or whether the court is required to conduct an evidentiary hearing, taking testimony from witnesses.
In any event, if the court determines that the defendant made a good faith effort to comply with the government issued health standards, the defendant is immune from civil liability. If, on the other hand, the court determines that the defendant did not make a good faith effort, the plaintiff may proceed with their case. However, even where a plaintiff is able to overcome these initial hurdles and proceed with their case, the statute provides that the defendant is still only liable upon a showing of gross negligence by clear and convincing evidence (a higher standard than the usual standard of proof by a preponderance of the evidence). It is unknown whether rulings on this statute will be immediately appealable.
Florida Statute 768.381 Limitations on specified Health Care Providers. Under section 768.381, a COVID-19 related claim is defined as a civil liability claim against a health care provider which arises from the: (1) diagnosis or treatment of, or failure to diagnose or treat a person for COVID-19; (2) provision of a novel or experimental COVID-19 treatment; (3) transmission of COVID-19; (4) delay or cancellation of surgery or a delay or cancellation of a medical procedure, a test, or an appointment based on a health care provider’s interpretation or application of government-issued health standard or authoritative guidance specifically relating to the COVID-19 emergency; (5) an act or omission with respect to an emergency medical condition (under Florida Statute 395.002) and which act or omission was the result of a lack of resources directly caused by the COVID-19 pandemic; or (6) the provision of treatment to a patient diagnosed with COVID-19 whose injuries were directly related to an exacerbation of the patient’s preexisting conditions by COVID-19.
Section 768.381 does not provide the same protections from liability as section 768.38. The statute still requires the plaintiff to plead their claim with particularity, but does not include an affidavit requirement, nor for the court to make any initial determinations before the case may proceed. Additionally, although the plaintiff must prove that the healthcare provider was grossly negligent or engaged in intentional misconduct, unlike the clear and convincing evidence standard found in section 768.38, under section 768.381 the plaintiff’s evidentiary burden is the more traditional by the greater weight of the evidence.
Statute of Limitations. Effective as of March 29, 2021, all COVID-19 related claims under both sections 768.38 and 768.381 must commence within one (1) year after the cause of action accrues or within one (1) year after the effective date of S.B. 72 if the cause of action accrued before the effective date. The act applies retroactively and prospectively; however, it does not apply in a civil action against a defendant that was commenced prior to SB 72’s effective date.
Implications. Through its enactment of sections 768.38 and 768.381, the Florida legislature took a major step toward promoting the public necessity of deterring unfounded lawsuits against individuals, businesses, health care providers, and other entities based on COVID-19-related claims, while allowing meritorious claims to proceed. However, as is oftentimes the case, the statute leaves open certain procedural questions that will only be answered as the courts begin adjudicating these claims.
Questions? Luks, Santaniello, Petrillo, and Cohen’s COVID-19 practice group will continue to monitor and provide updates regarding developments in the applications of these new laws. For questions or further assistance with your Florida matters, please reach out to our COVID-19 practice group.
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Angelise M. Petrillo, Esq.
T: (954) 847-2923
E: APetrillo@insurancedefense.net
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Daniel Weinger, Esq.
T: (954) 847-2924
E: DWeinger@insurancedefense.net
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Daniel J. Santaniello, Esq.
T: (561) 226-2525
E: DJS@insurancedefense.net
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About Luks, Santaniello, Petrillo & Cohen |
Our verdicts tell the story.™ Luks, Santaniello, Petrillo & Cohen is a Florida Corporate & Insurance Defense Litigation firm. The firm defends professionals, corporations and their insurance companies from both Liability and Workers' Compensation claims. From our eleven Florida offices in Key West, Miami, Fort Lauderdale, Boca Raton, Stuart, Fort Myers, Tampa, Orlando, Jacksonville, Tallahassee and Pensacola, the firm’s 120+ attorneys deliver counsel and legal services in over 33 practice areas. The firm has several strategic and innovative practice areas including a dedicated Time and Policy Limit Demands and Tenders Practice Group and Surgical SIU | LOP Practice that handle a number of specialized issues. Members have tried over 200 cases in Florida State and Federal Courts.
Our mission is to provide our clients with legal services that help them manage risk and reduce exposure. Our goal is to ensure that our clients obtain equal justice in the courtroom. The Law Firm is Peer Review Rated by Martindale-Hubbell and is a member of The Gavel.net LLC., Nationwide Insurance Defense Network.
Managing Partner Dan Santaniello, Esq., and Tampa Partner Anthony Petrillo, Esq., are Florida Bar Board Certified Civil Trial Experts. Construction Law Partners Christopher Burrows, Esq., and Patrick Hinchey, Esq., 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, who are increasingly faced with expensive, overreaching lawsuits. Let us help even the playing field. For questions or assistance with your Florida matters, please contact the Managing Partner, Client Relations or your Luks & Santaniello contact. View Contact Directory Now.
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Contact:
Luks, Santaniello, Petrillo & Cohen
T: (561) 226-2525
E: DJS@insurancedefense.net
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Luks, Santaniello, Petrillo & Cohen
T: 954.847.2936
E: MDonnelly@insurancedefense.net
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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.
“AV®, BV®, AV Preeminent® and BV Distinguished® are registered certification marks of Reed Elsevier Properties Inc., used under license. They are to be used in accordance with the Martindale-Hubbell® certification procedures, standards and policies. For a further explanation of Martindale–Hubbell’s Peer Review Ratings, please visit Martindale-Hubbell Ratings.
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