Update on Business Immunity to COVID-19 Lawsuits
by, Lexicon Legal
Legal immunity for business owners facing COVID-19 lawsuits has been an area of heated debate throughout 2020. In fact, it was one of the major sticking points that delayed the passage of both stimulus funds authorized by Congress. Amidst efforts to get stimulus funds out as quickly as possible, the issue has been left unresolved by the federal government. Instead, state legislatures across the country have introduced their own bills to address COVID-19 legal immunity. Unfortunately, this will lead to a patchwork of regulations that will become a logistical nightmare for COVID litigators — especially those who practice in more than one state.
We can help litigators stay up to date on the fast-developing body of COVID case law and state statutes. Here are some of the states that have introduced COVID liability immunity litigation as of mid-January 2021:
A bill introduced in the Wisconsin Assembly would create a civil liability exemption for business entities “for any act or failure to act resulting in or relating to a person’s exposure to the novel coronavirus” in the course of the entity’s functions or services. (Entities are defined to include any legal entity, including businesses, associations, governmental entities, schools, institutions of higher education, or nonprofit organizations, as well as employers, business owners, employees, agents, and independent contractors.) The bill would preclude immunity in cases of reckless or wanton conduct or intentional misconduct. Noncompliance with any national, state, or local order requiring entities to close or limit capacity would not qualify as reckless or wanton conduct or intentional misconduct for purposes of immunity under the bill. Immunity would be applied retroactively to claims accruing on or after March 1, 2020 – but only if the action was filed before the bill becomes effective.
Montana legislators are also contemplating a bill that was introduced to limit COVID-19 liability for Montana business owners. Ironically, the bill was introduced the same week that the first member of the state legislature tested positive for the virus. Choteau Acantha reports that Senate Bill 65 would prevent individuals from suing businesses for contracting COVID-19 so long as those businesses were following local or state health guidelines. Lawsuits can still be filed for “gross negligence” or “willful and wanton misconduct” in handling COVID-19 guidelines.
In Kentucky, a House bill has been passed to provide COVID-19 liability protection to small business owners, schools, local governments, medical facilities, religious entities, and individuals. The Bowling Green Daily News reports that these groups will be protected from liability for the spread of coronavirus if they can show a “good faith effort to follow CDC guidelines.” The bill sponsor noted that this would not provide businesses with absolute immunity, and it would not stop COVID-19 victims from pursuing claims. He characterized it as a “layer of protection” for struggling small business owners. A similar bill is being worked up in the State Senate.
The Florida House has advanced a COVID liability immunity bill through subcommittee, bringing it one step closer to a floor vote. News4Jax reports that the proposed bill would provide businesses, schools, and churches with legal protection from COVID-19-related lawsuits for damages, injuries, or death. The bill would not bar plaintiffs from filing these claims but make it harder to win lawsuits by raising the bar of proof from simple negligence to gross negligence. The evidentiary standard would also be raised to clear and convincing evidence.
There have been many proposed amendments to the bill by various other state lawmakers. As the bill works its way through subcommittees and panels, these legislators are trying to negotiate various changes that could kill the bill altogether. One protection that never made it in was specific liability protections for doctors, hospitals, or nursing homes. These were some of the first groups to call for legal protection at the start of the pandemic. A committee will discuss protections for these key frontline workers. But without drastic changes, it appears that medical professionals in Florida will be left without COVID-19 liability protections.
Meanwhile, in Indiana, the state senate has passed a bill to shield individuals and business owners from coronavirus liability lawsuits unless there is evidence of gross negligence or willful or wanton misconduct. The bill adds an additional legal hurdle by requiring the higher standard of clear and convincing evidence. The legislation would be retroactive to March 1, 2020, and remain in effect until December 31, 2024. According to the Indianapolis Business Journal, a similar version of the liability legislation is also working its way through the Indiana House of Representatives, which has not yet voted on it. The House bill would have a shorter effective period (March 1, 2020, until January 1, 2022) but is substantively similar to the Senate bill. It seems likely that the state legislature will be able to reconcile these bills into some sort of comprehensive liability immunity for businesses in Indiana. COVID immunity legislation is reported to be a top priority of both state GOP lawmakers and (Republican) Governor Eric Holcomb.
COMPREHENSIVE LITIGATION SUPPORT FOR ALL COVID-19 LIABILITY CASES
The laws that govern COVID liability for business owners are changing quickly. They also vary from state to state so it is vital that litigators track these developments.
Guidepoint can help you stay on top of all developments in this area of the law. Contact us so we can connect you with the right experts, data, and research you need for any case.
Please note: This article contains the sole views and opinions of Lexicon Legal Content and does not reflect the views or opinions of Guidepoint Global, LLC (“Guidepoint”). Guidepoint is not a registered investment adviser and cannot transact business as an investment adviser or give investment advice. The information provided in this article is not intended to constitute investment advice, nor is it intended as an offer or solicitation of an offer or a recommendation to buy, hold or sell any security. Any use of this article without the express written consent of Guidepoint and Lexicon Legal Content is prohibited.