CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Apr 8, 2022
...D-19 at Defendants’ fa-
cility and died soon after.
Plaintiffs, as representatives for Sara Schleider’s estate, as-
serted survival and wrongful death claims against Defendants for
violating Florida Statute § 429.28—the “Resident bill of rights”
within Florida’s Assisted Living Facilities Act—in Florida state
court....
...Defendants’ facility.” And Plaintiffs alleged that Defendants’ negli-
gence was the proximate cause of Sara Schleider’s—and her es-
tate’s—injuries and damages. In the alternative, and in support of
their Florida Statute § 429.28 claims, Plaintiffs also alleged that De-
fendants’ “conduct rose to the level of willful misconduct or gross
negligence” because their “conduct was in disregard of a known or
USCA11 Case: 21-11765 Document:...
...and maintain infection control mechanisms to protect from a
known threat. Plaintiffs repeated these same allegations from the
AHCA complaint in their own complaint. For example, they spe-
cifically alleged in Count I (a survival claim under Fla. Stat. §
429.28) and Count II (a wrongful death claim under Fla. Stat. §
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21-11765 Opinion of the Court 21
429.28) that Defendants acted negligently in, among other things,
failing to implement proper COVID-19 prevention precautions.6
These allegations in the complaint control for purposes of
the preemption analysis....
...§ 247d-
6d(e)(1). But Plaintiffs did not assert an explicit claim for willful
misconduct under, and as defined by, the PREP Act. Instead, Plain-
tiffs asserted state-law causes of action for survival and wrongful
death under Florida Statute § 429.28....
...at 393).
Under Florida law, a ‘“[c]laim for residents’ rights violation’
. . . means a negligence claim alleging injury to or the death of a
resident arising out of an asserted violation of the rights of a resi-
dent under § 429.28 or an asserted deviation from the applicable
standard of care.” Fla....
...And to recover either
survival or wrongful death damages, the remedies specified in
Plaintiffs’ complaint, Plaintiffs must allege “a claim for the resi-
dent’s rights or for negligence.” Id. §
429.29.
Here, in support of their Florida Statute §
429.28 claims,
Plaintiffs alleged that Defendants acted negligently by failing to act
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21-11765 Opinion of the Court 23
“reasonably in the care of” Sara Schleider....
...§ 247d-6d(c)(1)(A) (“The criterion stated in [the PREP Act’s
definition of willful misconduct] establish[es] a standard of liability
that is more stringent than a standard of negligence in any form”).
To be sure, within their causes of action under Florida Stat-
ute § 429.28, Plaintiffs also alleged that Defendants’ “conduct rose
to the level of willful misconduct or gross negligence.” And De-
fendants contend that those allegations of willful misconduct are
completely preempted....
...COVID-19 countermeasures—although it does provide a defense
to liability against those claims—and the PREP Act’s cause of ac-
tion for willful misconduct does not preempt state-law causes of
action, like Florida Statute § 429.28, for negligence. And in further
contrast, Plaintiffs’ Florida Statute § 429.28 claims—which allege
that Defendants acted negligently and that Defendants’ negligence
proximately caused Plaintiffs’ injuries—complain of actions that
are outside the scope of the PREP Act’s cause of action for willful
misconduct....
...they are “attempt[ing] to remedy [a] violation of a legal duty inde-
pendent of” the PREP Act’s cause of action for willful miscon-
duct—i.e., Defendants’ duty to exercise non-negligent care under
Florida Statute §
429.28. Cf. Davila,
542 U.S. at 210–14.
7 Because Plaintiffs alleged that Defendants are liable for violating Florida Stat-
ute §
429.28 under a negligence theory of liability, we need not decide whether
the PREP Act would preempt a claim, under Florida Statute §
429.28, prem-
ised exclusively on willful misconduct.
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26 Opinion of the Court 21...
...Therefore, the PREP Act’s willful misconduct cause of ac-
tion does not completely preempt, i.e., “wholly displace[],” Plain-
tiffs’ “state-law cause[s] of action” for survival and wrongful death
under Florida Statute §
429.28. Dial,
541 F.3d at 1047 (quoting An-
derson,
539 U.S. at 8–9). And Plaintiffs’ allegations of willful mis-
conduct, within their broader state-law causes of action for negli-
gence under Florida Statute §
429.28, do not convert Plaintiffs’
state-law claims into claims that are completely preempted by the
PREP Act’s narrow cause of action for willful misconduct....
...n for
elder abuse, custodial negligence, and wrongful death.”) (citation
and internal quotation marks omitted).
In sum, because Plaintiffs’ state-law causes of action for neg-
ligence under Florida Statute § 429.28 cannot be brought under the
PREP Act’s cause of action for willful misconduct, Plaintiffs’ state-
law causes of action are not completely preempted by that cause of
action. Indeed, Defendants seem to concede that if Plaintiffs’ iso-
lated allegations of willful misconduct, within their broader causes
of actions under Florida Statute § 429.28, are preempted by the
PREP Act’s cause of action for willful misconduct, then Plaintiffs
will still have “residual negligence claims.” Defendants’ preemp-
tion argument is therefore an ordinary preemption defense—i.e.,
that Plaintiffs’ claims should be dismissed to the extent that they
are asserting claims for willful misconduct under the PREP Act, not
that Plaintiffs’ claims under Florida Statute § 429.28 are wholly dis-
placed by the PREP Act’s cause of action for willful misconduct.
And “a case may not be removed to federal court on the basis of”
an ordinary federal preemption defense....
