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Multiple States Move to Enact COVID-19 Liability Protections

Recent statistics have shown the need for state legislatures to prioritize COVID-19 liability legislation this term.  As of March 23, 2021, 9,594 complaints related to COVID-19 have been filed.  From March through December 2020, 176,053 TV advertisements in the United States for legal claims or services mentioned COVID-19.  These advertisements, meant to drum up litigation against hardworking individuals and businesses, cost an estimated $34 million.  In order to protect business and individuals on the frontlines during the pandemic, multiple states have enacted or are in the process of enacting COVID-19 liability legislation.  States in which governors signed legislation this year include Montana, Alabama, South Dakota, Wisconsin, and West Virginia.  They join the 21 states plus the District of Columbia, which signed bills in 2020.

Montana Governor Gianforte signed S.B. 65 on February 10, 2021.  The law protects Montana’s economy and encourages citizens to engage in private activities.  It focuses on protecting healthcare providers, businesses, and individuals from exposure and premises claims, healthcare liability, and products liability related to COVID-19.  

On February 11, 2021, Alabama Governor Ivey signed S.B. 30.  The Act provides that a covered entity, including a business and health care provider, is not liable for any injury, damages, or death in a “health emergency claim” except in cases of wanton, reckless, willful, or intentional misconduct.  If liability is established, it is limited to actual economic compensatory damages, except in cases involving serious physical injury.  Noneconomic damages are not available and punitive damages are the only recovery available in wrongful death claims. 

H.B. 1046 was signed by South Dakota Governor Noem on February 17, 2021.  The law limits liability in cases involving COVID-19 exposure for individuals, health care providers, and any person that designs, manufactures, labels, sells, distributes, or donates personal protective equipment.  The legislation does not limit liability for intentional exposure.  

On February 25, 2021, Wisconsin Governor Evers signed S.B. 1, COVID-19 response legislation that includes premises and exposure liability provisions.  It provides entities with immunity from civil liability for a COVID-19-related injury or death, except in the case of reckless or wanton conduct or intentional misconduct. The immunity is retroactive to claims accruing on or after March 1, 2020 but does not apply to an action filed before enactment of the bill. 

Most recently, West Virginia Governor Justice signed S.B. 277, COVID-19 liability legislation that addresses exposure and premises liability, products liability, and medical liability.  The hope is that these protections will assure businesses that reopening will not expose them to liability for a person’s exposure to COVID-19. 

Multiple states have COVID-19 bills pending in the state legislatures including Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Kansas, Kentucky, Maryland, Minnesota, Missouri, Nebraska, New Hampshire, New York, North Dakota, Oregon, Pennsylvania, Texas, Washington, and Wyoming.  In general, the legislation protects health care providers, individuals, and/or businesses from litigation arising out of injuries sustained due to COVID-19, except in cases of intentional, reckless, or wanton misconduct.  State legislatures should act swiftly to pass these laws to ensure that individuals and businesses do not face further hardships during the pandemic in the form of litigation. 

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