Liability protection for businesses

News-Press NOW

The numbers associated with COVID-19 are staggering but also darkly familiar at this point.

Johns Hopkins University reports 58 million global cases, 1.3 million global deaths and more than 3,500 deaths in Missouri. The research hospital even tracks patients who have gotten better. Worldwide, an estimated 37 million have recovered.

Here’s one coronavirus statistic that went unnoticed: Since March, more than 1,000 COVID-19 lawsuits have been filed against employers, according to the Missouri Chamber of Commerce and Industry. That’s something Missouri lawmakers and businesses would like to change.

“It creates a level of insecurity in business, which is never a good thing,” said Patt Lilly, president and CEO of the St. Joseph Chamber of Commerce. “Are they going to be held responsible for certain decisions around COVID, regardless of what those decisions may have been?”

Earlier this month, Gov. Mike Parson expanded his call for a special session to include emergency legislation to shield health facilities and businesses from COVID-related lawsuits if those entities follow public health guidelines. In a grim irony, the coronavirus itself might delay this legislation after COVID exposure forced the Senate to go into recess.

The issue of COVID liability has proved controversial, although some of Missouri’s neighboring states have passed legal protections. One critic said businesses will do the bear minimum to protect workers and customers if the state grants broad immunity.

“You’ll have a race to the bottom,” said Brett Emison, immediate past president of the Missouri Association of Trial Attorneys. “We don’t make anyone safer in the state by taking away their constitutional right to hold wrongdoers accountable.”

State Rep. Bill Falkner, R-St. Joseph, said he can’t speak to specific legislation, but he believes lawmakers should address the uncertainty that businesses encounter.

“It’s never the wrong time to do the right thing,” said Falkner, who serves as vice chairman of the House Special Committee on Small Business. “It’s something we should look at. You’re dealing with a virus no one had any answers for, especially in the beginning. A lot of people tried to do exactly what they were told to do at the time, and still it wasn’t enough. I have a hard time holding them liable for following procedures.”

Lilly said businesses face a couple of problems with legal exposure to the coronavirus. One is that insurers are unlikely to cover losses from a pandemic, creating enormous financial risk. The other is that local, state and federal guidelines have evolved, so an employer that may have been following best practices could find itself exposed as recommendations change.

“Businesses, health-care providers and even to some extent individuals are looking for ways to try to limit the insecurity, limit the potential losses that would come from lawsuits,” Lilly said.

In Missouri, more than 750 businesses and individuals signed a letter urging the Legislature to shields businesses, schools and health facilities from opportunistic lawsuits. Supporters of the bill acknowledge that few lawsuits go to trial, but the general fear of litigation could keep Missouri’s economy from fully recovering.

In addition, businesses that do follow strict safety measures might need protection from legal action if a promised delivery of a product or service is interrupted because of the coronavirus, Lilly said.

“Think about a company that has a large fire and is not able to deliver a product or is not able to deliver a service,” Lilly said. “Those kinds of things are covered under typical insurance. But for COVID, there’s no coverage for something like that.”

Emison, with the trial attorneys association, said one online tracker shows about 90 COVID-related lawsuits in Missouri, with four tort cases and no personal injury claims. He said most filings involve small business owners that sued health departments and non-essential businesses that sued their insurance carriers in an attempt to cover losses from business interruptions. He said frontline health care workers already have legal immunity during the declared emergency.

In addition to liability protection for businesses and health providers, the proposed bill would shield companies from product-liability lawsuits related to the virus. This could impact businesses that made products like hand-sanitizers, if a batch caused some sort of skin reaction or another complication.

Greg Kozol can be reached at greg.kozol@newspressnow.com. Follow him on Twitter: @NPNowKozol.