Posted by Martin Heller Potempa & Sheppard, PLLC on September 2, 2020
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This August, Governor Bill Lee signed into law the Tennessee COVID-19 Recovery Act, limiting the types of legal claims arising from COVID-19. The original bill had failed to pass due to a retroactivity clause which would have applied the limitations on claims beginning in March.
The newly passed bill offers broad protections to individuals and larger entities, including businesses, hospitals, schools, nonprofits, and religious institutions, from claims “arising from COVID-19,” unless the claimant can prove by clear and convincing evidence that the defendant exhibited gross negligence or willful misconduct.
Arising from COVID-19 means, caused by or resulting from the actual, alleged, or possible exposure to or contraction of COVlD-19, or caused by or resulting from services, treatment, or other actions in response to COVID-19, including:
Implementing policies to prevent the spread
Monitoring and tracking exposure data
Supplying personal protective equipment
Closing, or permitting remote work to limit the spread
Modifying the work schedule to allow for social distancing
Providing services to combat COVID-19 spread
Are there limitations on the COVID-19 Liability Law?
The Act applies to all claims arising from COVID-19, with no time limitations except in the following situations for claims that occurred on or before August 3, 2020:
When a complaint or civil warrant had already been filed;
For claims under the Tennessee Claims Commission Act where the pre-suit notice of the claim had already been given; or
For claims under the Tennessee Health Care Liability Act where the pre-suit notice requirements had already occurred.
The August 3rd date is significant as it was the date where Governor Lee had announced the intention of creating state-wide legislation for COVID-19 legal claims.
Understanding the COVID-19 Recovery Act Intricacies
The COVID-19 Recovery Act is set to run until July 1, 2022, but will apply to any loss, illness, injury, or death occurring before then. If the virus continues past the July deadline, there is the possibility that the legislation can be extended.
Regardless, under the Act as it stands, no claims arising from COVID-19 may be filed for loss, damage, injury, or death, unless “gross negligence or willful misconduct” can be proven. While many are worried this impacts their ability to bring about legal action for harms caused, the Act explicitly states that it does not:
Impact workers’ compensation claims;
Amend, repeal, alter, or affect any immunity, defense, limitation of liability, or procedure available or required under law or contract;
Or eliminate a required element of any existing cause of action.
Can I still take legal action for COVID-19 related losses? – Liability Law
In short, the answer is yes–but carefully.
For all claims filed under the Act, the claimant must file a verified complaint with specific facts and particularity. The first being:
By requiring that the complaint be verified or sworn; and
By implementing a heightened pleading standard like that required of pleadings for fraud claims in accordance with Tennessee Rule of Civil Procedure
In addition, for claims based on exposure to or contraction of COVID-19, the claimant must additionally file a certificate of good faith stating as follows:
The claimant consulted with a physician;
The physician provided a signed written statement that he or she is competent to express an opinion on exposure to or contraction of the novel coronavirus;
The physician believes that the alleged loss, damage, injury, or death was caused by an alleged act or omission of the defendant(s).
If a claimant does not comply with the requirements, it can lead to dismissal with prejudice.
While the Act is made to protect businesses and industries who are trying to stay afloat as we continue through the tumultuous time of the COVID-19 era, it has the potential to hurt those who have already lost so much.
COVID-19 Personal Injury Lawsuits: Martin Heller Potempa & Sheppard, PLLC
At Martin Heller Potempa & Sheppard, we understand the pain you are going through as a result of the novel coronavirus. That is why our experienced Tennessee personal injury attorneys are here to help. Just because the COVID-19 Recovery Act has been implemented does not mean you cannot pursue legal action for wrongs done to you. Please contact our office today to set up a consultation so we can discuss your claim.
If You Need Legal Assistance, Contact MHPS Law Firm Today