‘Civil Liability Immunity’— The Next COVID-19 Household Name?
A number of new phrases have become household names over the last several months. Social distancing, flattening the curve, and herd immunity are all now common phrases thanks to the pandemic we are experiencing. “Civil liability immunity” may be the next phrase we hear frequently, as more states are passing legislation to limit individuals from filing civil lawsuits related to COVID-19.
As of July 8, 2020, there were 621 active litigation cases, 69 legislative bills, and additional federal legislative activity pending regarding insurance coverage for and/or liability for injury or damage related to COVID-19.
Much of the initial COVID-19-related litigation involved businesses claiming insurance should cover their lost business income and losses due to the inability to use their properties due to COVID-19 and related governmental orders. However, more recently, the litigation has centered on whether a business should be liable for employees and/or guests contracting COVID-19 at that location.
As a result, several states are attempting to limit individuals from filing civil lawsuits against a business unless the individual’s COVID-19 symptoms reached a specific severity or where the business intended to cause harm to that individual.
What Are State Legislators Doing about It?
Many states have enacted legislation to provide immunity for healthcare facilities and providers against liability related to COVID-19. Now, several states are attempting to broaden that immunity. Here are a few examples.
Iowa’s governor signed Senate File 2338, the “COVID-19 Response and Back-to-Business Limited Liability Act,” into law on June 18, 2020. This prohibits individuals from filing a civil lawsuit against a business, healthcare organization, or non-profit, unless it relates to a minimum medical condition (a diagnosis of COVID-19 resulting in inpatient hospitalization death), or involves an act intended to cause harm or constitutes actual malice.
Mississippi has pending legislation in Senate Bill 3049, the “Back to Business Liability Assurance Act.” Like the Iowa law, it would prohibit lawsuits related to COVID-19 injuries except in cases of “actual malice or willful, intentional misconduct.” Additionally, it increases the burden of proof and limits non-economic damages to $250,000.
There are multiple pending bills in Georgia, House Bill 1188 and House Bill 167, in which both would broaden immunity for business owners unless it involves “willful and wanton” actions or “intentional inflection of harm” causing injury.
Holmes Murphy Is Here to Help
Holmes Murphy continues to monitor the pending legislation and lawsuits as many employers plan and implement safety measures to return employees to their offices and reopen to guests. For example: The Council of Insurance Agents and Brokers (CIAB) has compiled a list of pending legislation in each state. Additionally, so has Chubb and Law 360.
We understand business owners have a lot to consider as they face extremely tough decisions and as expert recommendations continue to be modified frequently. However, business owners (and their liability insurance carriers) may have one less concern based on this recently enacted and pending legislative activity involving “civil liability immunity.” Ultimately, however, it remains crucial to report all claims and potential claims, regardless of whether civil immunity laws have been enacted in your state.
Published on: 07.16.20